Greer v. City of Hayward et al, No. 3:2015cv02307 - Document 66 (N.D. Cal. 2017)

Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT by Hon. William H. Orrick re 59 Motion for Summary Judgment. BART's motion for summary judgment is GRANTED. Tougas's motion is granted with respect to the denial of medical care and denied in all other respects. (jmdS, COURT STAFF) (Filed on 1/17/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JOSEPH JAMES GREER, 7 Case No. 3:15-cv-02307-WHO Plaintiff, 8 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. 9 CITY OF HAYWARD, 10 Re: Dkt. No. 59 Defendant. United States District Court Northern District of California 11 12 INTRODUCTION 13 This is a tragic case. James Greer was pulled over by a Hayward police officer on the 14 15 evening of May 23, 2014 for suspicion of driving under the influence. He was dead an hour later, 16 after a scuffle with several Hayward Police Department (“HPD”) officers, and one officer, 17 Sergeant Jon Tougas, from the Bay Area Rapid Transit District (“BART”). Tougas recorded the 18 encounter on his BART-issued body camera (“bodycam”). Greer’s son, the plaintiff, brought this 19 action against the City of Hayward, BART, Tougas, and each of the involved HPD officers 20 alleging 42 U.S.C § 1983 claims for violation of the Fourth and Fourteenth amendments to the 21 Constitution of the United States and for wrongful death under state law.1 Before the court is BART and Tougas’s motion for summary judgment. 2 Tougas’s video 22 23 raises genuine disputes of material fact regarding his conduct and whether he violated clearly 24 established law. He is not entitled to qualified immunity or summary judgment on the excessive 25 force-related claims. But he was not deliberately indifferent under the law to Greer’s medical 26 1 27 Given the similarities of their names, the decedent (James Greer) is referred to as “Greer” in this Order and his son (Joseph James Greer) as “plaintiff.” 28 2 The claims against the City of Hayward and its officers are now resolved. 1 needs and the defendants are entitled to summary judgment on that claim. Since plaintiff offers no 2 evidence of a pattern or practice by BART, the Monell claim fails as well. BACKGROUND 3 I. FACTUAL BACKGROUND 4 The BART bodycam video lasts approximately 16 minutes. Cajina Decl. Ex. 33 and Ex. 2 5 6 (Tougas Dep.) at 6:25–7:24. Given that the bodycam footage documented the entire interaction, 7 many of the facts are undisputed. 8 A. The Traffic Stop 9 On May 23, 2014 at approximately 10:43 p.m., HPD officer Lieutenant Lutzinger attempted to initiate a traffic stop after twice observing Greer proceed straight from a left turn 11 United States District Court Northern District of California 10 lane. Rooney Decl. Ex. A, Lutzinger Dep. 38:14–40:6 (Dkt. No. 59-2). Greer initially came to a 12 stop in the lane furthest to the left, but when Lutzinger began to exit his patrol car, Greer drove 13 away. Id. at 40:15–41:1. He was not driving fast but “casually driving away.” Id. at 41:5–7. 14 Lutzinger followed Greer who eventually came to a stop in a K-Mart parking lot. Id. at 41:16–24. 15 Lutzinger radioed for backup, exited his vehicle and directed Greer to turn the engine off and drop 16 the keys from the window or place them on the roof of the vehicle. Id. at 44:1–15, 47:11–17. 17 Greer did not immediately comply, but rather began questioning, “Why are you stopping me? 18 What are you picking on me for? What do you need? What do you want?” Id. at 44:17–21, 19 47:11–17. After about 10–15 seconds, Greer complied and put the keys on the roof. Id. at 47:18– 20 20, 48:4–9. Based on Greer’s driving maneuvers and repeated questioning, Lutzinger suspected Greer 21 22 23 24 25 26 27 28 3 The DVD containing the Tougas bodycam footage also contains footage from two other BART officers who arrived to the scene after the encounter concluded, as well as audio recordings of the dispatch tapes. Opp’n at 3. BART and Tougas argue that plaintiff’s exhibit 3 submitting the body camera video as evidence contains inadmissible hearsay and unauthenticated videos. Reply at 4. Defendants object to plaintiff’s submission of the following: (1) video entitled “J_Mateu_58035_Cover_Unit_1.mp4;” (2) the “Cover.MP4” video; and (3) the “combined video” synchronizing the three videos. Id. Because the compiled videos are not authenticated, defendants’ objections are SUSTAINED. I will only consider the video footage from Tougas’s body camera, but because plaintiff cites to the combined video footage throughout his opposition, those citations will be included. 2 1 of driving under the influence. Lutzinger Dep. 48:17–24. He observed Greer “fumbling”4 to 2 retrieve his driver’s license, his face was flushed, his eyes were glassy, and he was “not incoherent 3 – but having difficulty ... following train of thought.” Id. at 49:2–49:10. Lutzinger planned to 4 conduct a field sobriety test, but wanted to wait for another officer to arrive. Id. at 51:5–14. He 5 instructed Greer to “wait there and [he] would be back,” and he waited in his patrol car for another 6 officer to arrive. Id. BART officer Sergeant Jon Tougas was traveling back to his police office in Hayward 7 8 when he passed the K-Mart parking lot and saw the lone HPD officer and Greer’s truck stopped. 9 Rooney Decl. Ex. B, Tougas Dep. 32:9–14 (Dkt. No. 59-2). Tougas pulled into the parking lot and asked Lutzinger if he needed assistance, to which Lutzinger responded affirmatively. 11 United States District Court Northern District of California 10 Lutzinger Dep. 51:25–52:24; Tougas Dep. 32:9–14, 37:19–38:15. Tougas told Lutzinger that if he 12 remained on scene, he would have to turn his camera on. Tougas Dep. 38:5. Lutzinger responded, 13 “Go ahead,” Tougas Dep. 38:6, and informed Tougas that Greer was “argumentative and a very 14 large guy,” Lutzinger Dep. 52:22–23, but noted that he had not been physically combative. Id. at 15 51:3–53:6. Soon after, two HPD officers, Clark and Lewandowski, arrived on the scene. Id. at 16 54:16–18; Lewandowski Dep. 26:13–27:22. 17 B. The Field Sobriety Tests 18 Lutzinger led the officers back to Greer’s truck and asked Greer to step out of the car. 19 Lutzinger Dep. at 58:14–59:2. Greer complied but repeatedly questioned “Why? What’s going 20 on? What are you doing?” Id. at 59:4–7. Lutzinger explained that he wanted to evaluate Greer’s 21 intoxication and asked if he had any weapons on him. Id. at 59:23–25. Officers Lutzinger and 22 Clark conducted a pat down and recovered a pocket knife. Id. at 62:2–15. Lutzinger then 23 administered a horizontal gaze Nystagmus test, found that Greer had trouble following the 24 instructions, and concluded that additional field sobriety tests were necessary. Id. at 64:18–65:22, 25 66:2–67:8. He directed Greer to move to more level ground on the passenger’s side of the vehicle 26 so that he could conduct balance tests. Id. at 71:17–20. Greer obeyed Lutzinger’s orders, 27 28 4 Plaintiff disputes whether Greer fumbled for his license. Opp’n at 4. 3 1 Lewandowski Dep. 42:6–22, and answered affirmatively when Lutzinger asked if he had any 2 problems with his legs. Cajina Decl. Ex. 7 (Transcript of bodycam footage)(Dkt. No. 62-1) at 3 3:4–26. 4 Once on the passenger’s side of the truck, Lutzinger began to administer the balancing test. 5 Lewandowski Dep. 49:15–25. Greer continually asked questions such as “What’s going on? Why 6 are you bothering me?” and “Why messing with me?” Lutzinger Dep. 68:9–13; Tougas Dep. 42: 7 21–25; see, e.g., Ex. 7 at 4:14, 22, 27–28. Perceiving that Greer was in an “agitated state,” 8 Lewandowski withdrew his Taser. Lewandowski Dep. 49:21–50:1. Tougas testified that at some 9 point Greer “pulled up his shorts and started to look around,” and determined that “those [were] preassaultive behaviors.” Tougas Dep. 53:3–6. Plaintiff contends that his father was merely 11 United States District Court Northern District of California 10 identifying a shin injury for the officers. Opp’n at 5 (citing Combined Video and Lewandowski 12 Dep. 42:6–22). Greer also informed the officers that he had medical problems with his abdomen 13 region. Id. at 6 (citing Combined Video). 14 During the balance test, Greer was unable to follow basic commands and his agitation 15 increased. Lutzinger Dep. 71:23–73:8, 75:23–76:19. He eventually stopped the test and “started 16 to walk away.” Id. at 77:2–3; Tougas Dep. 50:20–53:6. Plaintiff contends that his father “simply 17 took several steps to his side,” Compl. ¶ 12, because an officer began to walk towards him. Opp’n 18 at 5. The officers told Greer to stop and put his hands behind his back. Tougas Dep. 58:2–3. 19 Lutzinger grabbed his right arm and attempted to use a “twist lock control hold” for compliance. 20 Id. at 80:11–18. As the officers struggled to control Greer’s hands, Lewandowski holstered his 21 Taser because “[h]e wasn’t active – he wasn’t fighting or throwing any punches,” Lewandowski 22 Dep. 67:24–25, and he “went in to assist the officers in trying to control [Greer’s] hands.” Id. at 23 68:3–7. Lutzinger did not intend to take Greer to the ground. Lutzinger Dep. 82:18–25. The 24 other officers grabbed ahold of Greer as they continued to move towards the rear of the truck. Id. 25 at 80:20–81:8. 26 C. The Struggle 27 Tougas grabbed the back of Greer’s t-shirt and “[t]he struggle was on.” Tougas Dep. 28 56:23–25. Tougas tried to use a takedown procedure because he wanted Greer on the ground. Id. 4 1 at 57:14–61:8, 16. Eventually, they all ended up on the ground, id. at 66:21, although none of the 2 officers reported using a takedown maneuver. Lutzinger Dep. 83:14–22; Lewandowski Dep. 3 68:20–21, 69:18–23, 71:7–9; Tougas Dep. 57:14–58:3, 60:11–61:16, 63:16–21. Greer initially fell 4 on his back or right side, but the officers were eventually able to roll him onto his stomach. 5 Lutzinger Dep. 85:18–86:2; Tougas Dep. 68:9–16; Lewandowski Dep. 73:19–25. Greer was “a 6 significantly obese man, with a protruding hernia that [was] clearly visible... .” Opp’n at 6. 7 Greer refused to allow the officers to handcuff him. The officers repeatedly told Greer to 8 calm down, stop resisting and put his hands behind his back, as they struggled to gain control of 9 Greer’s hands which were underneath his body. Lutzinger Dep. 85:18–20; Tougas Dep. 58:23– 59:4. Over the next seven minutes, approximately four or five officers attempted to control Greer 11 United States District Court Northern District of California 10 by various means, including tasing him, applying pressure with their hands and a baton, and 12 stepping on his head. Opp’n at 6 (citing Combined Video). The officers claim that Greer 13 exhibited “super human strength.” Lutzinger Dep. 89:12; Tougas Dep. 72:22–73:1; Lewandowski 14 Dep. 78:15–19; Tong Dep. 61:13–14. At some point during the struggleTougas struck his head on 15 the back of Greer’s truck. Tougas Dep. 73:18–74:8. Somehow Tougas was able to pull Greer’s 16 right arm from underneath him. Id. at 73:16–17. 17 After several minutes, Lutzinger warned Greer that he would be tased if he did not stop 18 resisting. Lutzinger Dep. 89:22–90:3. He then twice discharged his Taser in dart mode, to no 19 effect. Id. During the struggle, HPD Officer McAdams and Reserve Officer Covarrubias arrived 20 on-scene and attempted to control Greer’s legs. Ex. D, McAdams Dep. 22:2–8, 25:8–19, 37:17– 21 22. At some point, Lewandowski placed his knee on Greer’s back near his left shoulder blade to 22 try to prevent him from getting up or rolling over. Lewandowski Dep. 75:8–76:10. Greer was 23 able to continue lifting up with Lewandowski’s knee on him. Id. at 78:15–23. While in this 24 position, Lewandowski discharged his Taser in drive mode. Id. at 100:19–101:14. This did not 25 have any effect either. Id. He also used his baton to try to pry Greer’s arm from under his torso. 26 Id. at 83:5–8. HPD officer Tong also applied two different types of nerve stimulation pain 27 techniques to Greer’s jawline. Rooney Decl. Ex. E, Tong Dep. 12:6–8, 38: 14–39:7, 40:5–41:1. 28 One of the techniques involved using a collapsible baton in the closed position. Id. at 43:4–44:11, 5 1 46:15–47:1. 2 Lutzinger was eventually able to secure a handcuff onto Greer’s left wrist. Lutzinger Dep. 3 89:5–6. Another officer secured a handcuff around Greer’s right wrist, and after a struggle lasting 4 approximately five to seven minutes; the officers were eventually able to link the handcuffs 5 together. Tougas was involved in the struggle, but it is unclear whether he assisted in handcuffing 6 Greer. Lutzinger Dep. 119:12 – 21; Tougas Dep. 75:16–25. The video shows the struggle from 7 Tougas’s perspective. According to plaintiff, “Tougas continuously applied pressure to Greer’s 8 torso from 7:55-10:36 on the Combined Video.” Opp’n at 6. During this time, “Greer repeatedly 9 begs the officers to ‘Get off [him].’” Id. at 7. His “breathing becomes rapid as he is struggling to get air into his lungs.” Id. Plaintiff contends that Greer “appears to lose consciousness” around 11 United States District Court Northern District of California 10 the 10:30 mark, and “[y]et officers continue to hold him down in a prone position – continue 12 putting pressure on him – for another minute.” Id. (citing Combined Video). 13 After Greer was handcuffed, several HPD officers placed Greer into a WRAP, a three-part 14 device designed to control combative and resistive subjects. Mot. at 8; Lutzinger Depo. 98:4– 15 102:8; Ex. F, Cosgriff Depo. 22:17–23:24; Ex. G, Krimm Depo. 78. The device consists of an 16 ankle strap, a leg restraint, and a chest harness, with a tether connecting the chest harness to the 17 leg restraint. Id. 18 Plaintiff does not dispute that Tougas did not use a baton or Taser, or punch or kick Greer 19 during the struggle. Lutzinger Dep. 118:20–119:11, 120:3–121; Lewandowski Dep. 108:9–109:6; 20 Tong Dep. 80:16–81:7; Zwickey Decl. 19; Tougas Decl. ¶¶ 5–7 (Dkt. No. 59-3). 21 D. Medical Response 22 When the officers rolled Greer over, his eyes were closed. Tougas Dep. 84:7; Lutzinger 23 Dep. 113:2–3. Tougas stated aloud, “He’s unconscious.” Id. at 84:8. One of the officers checked 24 for a pulse, but it is unclear whether he found one. Lewandowski Dep. 96:18–97:5; Tougas Dep. 25 87:3–22. Plaintiff contends that Greer’s lips were blue when he was rolled over, as evidenced in 26 the Combined Video. Opp’n at 8 (citing Combined Video, Reuter Expert Report, MacAdams 27 Dep. 43:15–21). It is unclear if Greer was unconscious when the officers first began applying the 28 WRAP device. Tougas Dep. 84:7–24. According to Lewandowski, “[h]is head was lulled to the 6 1 side.” Lewandowski Dep. 96:10. 2 medical services” or “EMS”) were already on scene, but staging a safe distance away until the 3 scene was cleared. Lutzinger Dep. 113:6–8; Tougas Dep. 91:25; Lewandowski Dep. 97:5; Ex. J, 4 Brassfield Dep. 15:13–16:4. Approximately a minute or two passed between the time EMS staged 5 and the time the paramedics were dispatched to render aid. Brassfield Dep. 17:25–18:3. 6 According to the paramedic’s patient care report, Greer suffered cardiac arrest after EMS arrival. 7 Id. at 40:3–13. Within 30 – 60 seconds of EMS’s arrival, the WRAP was removed. Cajina Decl. 8 Ex. 14, Brassfield Dep. 26:21–27:4. The paramedics began administering CPR at approximately 9 11:04 p.m. Brassfield Dep. 48:6–16. They transported Greer from the scene at 11:16 p.m. and 10 The Hayward Fire Department and paramedics (“emergency arrived at the hospital at 11:27 p.m. Greer was pronounced dead at 11:49 p.m. United States District Court Northern District of California 11 E. Third Party Witnesses 12 On the night of the incident, Pastor Todd Hendricks was on a ride-along with Officer 13 Clark. Ex. H, Hendricks Dep. 9:3–11. He observed the encounter from approximately 30 yards 14 and witnessed Greer resisting the officers’ attempts to control him. Id. at 31:13–32:2, 37:19–25, 15 36:19–37:18, 26:9–13, 53:1–8, 32:3–4. He did not see the officers punch, kick, or use a baton on 16 Greer. Id. at 37:4–7. A second eyewitness, Cuitahus Frias, also observed Greer resisting and 17 denied seeing the officers kicking, punching, or standing on Greer. Ex. I, Frias Dep. 29:24–30:11, 18 31:21–32:3. 19 F. BART Training and Policies 20 BART Police Department requires a minimum of 40 hours of training every year, 21 compared to the 24 hours every two years required by the Peace Officers Standard and Training 22 (POST). Mot. at 9; see also Haight Decl. ¶ 9 (Dkt. No. 59-5). 23 G. Forensic Investigations 24 The Alameda County medical examiner considered his autopsy dissection, the Toxicology 25 Report, and the coroner’s investigation report and determined Greer’s cause of death to be acute 26 phencyclidine (PCP) intoxication associated with physical exertion. Ex. K, Rogers Depo. 41:16– 27 43:20. The manner of death is listed as “accident.” Greer’s PCP level was 0.596 milligrams per 28 liter (mgL). Ex. L, Posey Depo. 26:12–14. The fatal range for PCP is 0.3 to 25 mgL. Id. at 7 1 30:16–21. He was 46 years old, 5’11” tall and weighed 380 pounds. 2 H. Plaintiff’s Experts5 3 In opposition to summary judgment, plaintiff submitted numerous expert reports. The 4 experts include Bryan Reuter, a digital forensic examiner who synchronized and analyzed the 5 video footage, and created still images from the video, Cajina Decl. Exs. 7 and 8 (Dkt. Nos. 61-9 6 and 61-10; Barry Brodd, “Use of Force” police expert, Cajina Decl. Ex. 9 (Dkt. No. 61-11), Dr. 7 Carter Clements, emergency medical expert, Cajina Decl. Ex. 10 (Dkt. No. 61-12), Dr. Kent 8 Olson, medical toxicology expert, Cajina Decl. Ex. 11 (Dkt. No. 61-12), and Dr. Joseph Cohen, 9 forensic pathologist, Cajina Decl. Ex. 12 (Dkt. No. 61-14). 1. Reuter Report 11 United States District Court Northern District of California 10 Reuter concludes, “the body mounted video recording depicts Sergeant Tougas pulling Mr. 12 Greer to the ground, maintaining contact with Mr. Greer as a taser was being deployed, and 13 continuously leaning on Mr. Greer from above while applying the pressure of his bodyweight onto 14 Mr. Greer’s torso from 00:07:53 until 00:11:21, a total of approximately 3 minutes, 28 seconds. 15 After Mr. Greer was rolled onto his back, Sergeant Tougas declared him unconscious. Sergeant 16 Tougas then walked away from Mr. Greer.” Cajina Decl. Ex. 8 (Dkt. No. 61-10). 17 2. Brodd Report 18 Brodd reviewed police reports, the videos, depositions and other discovery, the policies 19 and procedures of the police departments, the personnel records for the officers, the WRAP 20 training manual, the POST use of force, and the relevant law. Brodd Report at 2. He concluded, 21 in part: 22 d. Failure of Lt. Lutzinger and the officers engaged with Mr. Greer to realize that due to the amount of pressure applied to Mr. Greer’s upper torso and Mr. Greer’s physical statute it would have been extremely difficult for Mr. Greer to have placed his hands behind his back; e. Attempting to control Mr. Greer by intentionally and forcefully stepping on Mr. Greer’s head while Mr. Greer was in a prone position on the pavement and being held down by a minimum of five officers; 23 24 25 26 27 5 28 Defendants agreed that expert reports would be admissible in connection with the motion for summary judgment. Rooney Decl. ¶ 14. 8 1 2 3 4 5 … g. Applying prolonged and extreme pressure to Mr. Greer’s torso while he lay in a prone position, which is a known and taught danger given that it can cause positional asphyxia – especially given Mr. Greer’s body size, weight, level of exertion and apparent problems with his abdomen; h. Failing to recognize and properly react to signs of Mr. Greer’s labored breathing as he lay prone on the ground; Brodd Report at 3–4. 6 3. Clements Report 7 Dr. Clements reviewed the videos, paramedic reports, fire department records, police 8 reports, hospital records, autopsy report, deposition testimony, and American Heart Association 9 Guidelines for CPR prior to forming his opinion. Clements Report at 2–3. Dr. Clements concluded, in part: Mr. Greer’s conduct was inconsistent with the level of PCP found in his 11 United States District Court Northern District of California 10 system; the cause of Mr. Greer’s death was asphyxia; a major factor in his death was the amount 12 of time he spent in the prone position with officers compressing his chest cavity and abdomen 13 cavity; he was unconscious when he was rolled over; and, had he been given immediate medical 14 attention he would have survived. Id. at 3–4. He further opines that the “efforts by Mr. Greer to 15 move from the prone position he was being held in ... were at least in part due to his effort to 16 breath because, in that position, Mr. Greer was unable to get air in and out of his lungs.” Id. at 4. 17 4. Olson Report 18 Dr. Olson reviewed the same records as Dr. Clements, plus medical literature related to 19 phencyclidine intoxication. Clements Report (Dkt. No. 61-13 at 4). He concluded that “[Greer] 20 exhibited no signs of serious or life-threatening phencyclidine (PCP) intoxication during his initial 21 interaction with police,” and he “did not die as a direct result of phencyclidine intoxication, but as 22 a consequence of his physical interaction with the police.” Id. He states that “[d]eath from 23 phencyclidine alone is very uncommon” and would be associated with other symptoms not 24 observed in Mr. Greer. Id. He explains that the acidity of Mr. Greer’s blood would have been 25 elevated by increased carbon dioxide caused by his inability to breath. Id. at 4–5. He cites to 26 medical literature to posit that the measured level of PCP is inconclusive because “[w]hen the 27 blood is more acidic, PCP shifts from tissues into the blood.” Id. at 5. 28 9 5. Cohen Report 1 Dr. Cohen reviewed all of the police reports, hospital records, photographs, Coroner’s 2 report, autopsy protocol, histological examination, toxicology report, video and audio files, 3 deposition testimony, discovery documents, and the certificate of death. Cohen Report at 1 (Dkt. 4 No. 61-14). He criticized the autopsy report, noting “”[m]arked suffusion of the head, neck and 5 upper torso is readily apparent in photographs of Mr. Greer, though this is not mentioned in the 6 7 8 autopsy report.” Id. at 4. According to Dr. Cohen, “[t]his is indicative of antemortem compression of the torso with the development of relative hypoxia.” Id. He states that “[p]hencyclidine intoxication provided a physiologic contribution to his death, in the face of the 9 physical confrontation, through death would not have occurred at that particular time in the 10 absence of a confrontation.” Id. He concluded that the cause of death was “Cardiorespiratory 11 United States District Court Northern District of California arrest (minutes) due to Sustained Hypoxia (minutes) due to Prolonged Physical Confrontation and 12 13 14 15 Restraint by Law Enforcement (minutes).” Id. And “[o]ther significant contributing factors” as “Hypertensive Cardiovascular Disease; Obesity; Phencyclidine Intoxication.” Id. And finally, “[t]he manner of death is most appropriately classified as ‘homicide (death in the hands of other(s)).’” Id. 16 II. PROCEDURAL BACKGROUND 17 On March 23, 2015, plaintiff, heir of the decedent, commenced this action in the Superior 18 Court of the State of California, Alameda County. Compl. ¶ 1. Defendant City of Hayward was 19 served on April 22, 2015, and, with consent from defendant BART, removed the action to federal 20 court on May 22, 2015. Notice of Removal (Dkt. No. 1). Plaintiff filed a first amended complaint 21 on March 9, 2016 (Dkt. No. 35), and a second amended complaint (“SAC”) on April 7, 2016 (Dkt. 22 No. 38). Plaintiff brought causes of action against the City of Hayward, BART, and the individual 23 24 officers for: (1) wrongful death, SAC ¶¶ 20–25; (2) a violation of his father’s Fourth Amendment rights, id. at ¶¶ 26–31; and (3) a violation of his father’s Fourteenth Amendment rights, id. at 32– 25 37. 26 LEGAL STANDARD 27 Summary judgment on a claim or defense is appropriate “if the movant shows that there is 28 10 1 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 2 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show 3 the absence of a genuine issue of material fact with respect to an essential element of the non- 4 moving party’s claim, or to a defense on which the non-moving party will bear the burden of 5 persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has 6 made this showing, the burden then shifts to the party opposing summary judgment to identify 7 “specific facts showing there is a genuine issue for trial.” Id. The party opposing summary 8 judgment must then present affirmative evidence from which a jury could return a verdict in that 9 party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986). 10 On summary judgment, the Court draws all reasonable factual inferences in favor of the United States District Court Northern District of California 11 non-movant. Id. at 255. In deciding a motion for summary judgment, “[c]redibility 12 determinations, the weighing of the evidence, and the drawing of legitimate inferences from the 13 facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony 14 does not raise genuine issues of fact and is insufficient to defeat summary judgment. See Thornhill 15 Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). DISCUSSION 16 17 BART and Sergeant Tougas move for summary judgment on the grounds that there is no 18 genuine issue of material fact as to the following issues: (1) Tougas’s use of force was reasonable; 19 (2) Tougas is entitled to qualified immunity; (3) there was no loss of familial relationship; (4) 20 Tougas was not deliberately indifferent to Greer’s medical condition; (5) Tougas was not an 21 integral participant; (6) there is no proximate cause between Greer’s death and Tougas’s actions; 22 (7) BART is immune under Government Code § 845.6; (8) there is no viable Monnell claim 23 against BART; and (9) Tougas had no reasonable opportunity to intercede. BART’s Mot. for 24 Summ. J. (Dkt. No. 59). Plaintiff relies heavily on Tougas’s body camera footage to argue that 25 Tougas took Greer to the ground, applied his body weight to Greer’s back for several minutes, 26 recognized that Greer was unconscious when the officers rolled him over, and failed to render 27 medical aid. Opp’n at 1–2 (Dkt. No. 62). 28 11 1 2 3 4 5 6 7 I. PRELIMINARY ISSUES A. Proximate Cause Plaintiff warns that the Alameda County Medical Examiner’s conclusion regarding Greer’s cause of death “should be taken with a large grain of salt” because Dr. Rogers never watched the police body camera video and he misstated critical facts at his deposition. Opp’n at 8. According to plaintiff’s pathology expert, Greer’s death resulted from the “minutes of sustained relative hypoxia consequent to restraint maneuvers and compression [of Greer’s] torso with inability to adequately exchange air.” Cohen Report at 4 (Dkt. No. 61-14). Plaintiff also points to the nearly 8 seven minutes that passed between when Greer was turned over and when the paramedics began 9 10 administering CPR. Opp’n at 9 (citing Clements Report and Cohen Report). Additionally, plaintiff provides an expert toxicologist who reports that “it is likely that the measured 11 United States District Court Northern District of California postmortem blood level of 0.596 mg/L was artificially high (perhaps as much as 10-fold) 12 compared to what it was when he was initially stopped by police, due to the effects of acute 13 14 respiratory and metabolic acidosis on the measured blood level.” Olson Report (Dkt. No. 61-13). Given plaintiff’s evidence, a disputed issue exists as to the actual cause of Greer’s death. 15 16 B. Integral Participant BART argues that Tougas was not an integral participant in an alleged constitutional 17 violation because there was no coordination between Tougas and the HPD officers, and therefore, 18 19 20 21 22 23 24 Tougas “was not fundamentally involved in restraining Mr. Greer.” Mot. at 18–19. Plaintiff counters that Tougas “directly violate[d] Mr. Greer’s rights by, among other things, compressing his torso to the point he could no longer breath, despite Greer’s repeated cries, and by failing to render any medical aid to a person he knew, or should’ve known, was in acute medical distress.” Opp’n at 14. “An officer's liability under section 1983 is predicated on his ‘integral participation’ in the alleged violation.” Brown v. City & Cty. of San Francisco, No. C 11-02162 LB, 2014 WL 25 1364931, at *10 (N.D. Cal. Apr. 7, 2014)(quoting Blankenhorn v. City of Orange, 485 F.3d 463, 26 481 n.12 (9th Cir. 2007)). “Integral participation does not require each officer's actions themselves 27 rise to the level of a constitutional violation. But it does require some fundamental involvement in 28 12 1 the conduct that allegedly caused the violation.” Id. (internal quotation marks and citations 2 omitted). 3 BART misunderstands the requirements of an integral participant. In Blankenhorn, the 4 court concluded that the officers who tackled the plaintiff were integral participants. 485 F.3d at 5 481 n.12. Here, Tougas may have been responsible for bringing Greer to the ground. Opp’n at 6 6 (citing Combined Video); see also Cajina Decl. Ex. 8 (Reuter Supplemental Report) at 3. Further, 7 he assisted the other officers in attempting to handcuff Greer by applying pressure to his body. 8 See id. Unlike the officer in Brown, Tougas was involved in the duration of the struggle. 2014 9 WL 1364931, at *11. There is at least a dispute of material fact whether Tougas was an integral participant. 11 United States District Court Northern District of California 10 II. SECTION 1983 CLAIMS 12 A cause of action for violation of the Constitution by a person acting under color of state 13 law is brought under 42 U.S.C. § 1983. Gomez v. Toledo, 446 U.S. 635, 639 (1980). To 14 successfully assert a section 1983 claim, plaintiff must demonstrate that the action (1) occurred 15 “under color of state law,” and (2) resulted in the deprivation of a constitutional or federal 16 statutory right. Leer v. Murphy, 844 F.2d 628, 632–33 (9th Cir. 1988) (citations omitted). The 17 parties do not dispute that the defendants acted under color of state law, but argue whether Tougas 18 used excessive force or is otherwise entitled to qualified immunity. 19 A. Fourth Amendment – Excessive Force 20 Under the Fourth Amendment, the amount of force used by law enforcement officers must 21 be objectively reasonable when viewed in light of the totality of the circumstances. Tennessee v. 22 Garner, 471 U.S. 1, 7–8 (1985). Determining the objective reasonableness of a particular use of 23 force involves a three-step inquiry. Graham v. Connor, 490 U.S. 386, 396 (1989). After first 24 assessing the type and amount of force inflicted, the court should determine the government’s 25 interests at stake by looking to “(1) the severity of the crime at issue, (2) whether the suspect 26 posed an immediate threat to the safety of the officers or others, and (3) whether the suspect 27 actively resisted arrest or attempted to escape.” Maxwell v. Cty. of San Diego, 697 F.3d 941, 951 28 (9th Cir. 2012). These factors are non-exhaustive. Id. 13 1 The final step is to balance the degree of force used against the government interest at 2 stake to determine if the force used was “greater than is reasonable under the circumstance.” 3 Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002). “The reasonableness of a particular use of 4 force must be judged from the perspective of a reasonable officer on the scene, rather than with the 5 20/20 vision of hindsight.” Graham, 490 U.S. at 396. And this determination is “ordinarily a 6 question of fact for the jury.” Liston v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997). 7 Accordingly, “summary judgment should be granted sparingly.” Maxwell, 697 F.3d at 951. 8 BART argues that Tougas’s use of force was reasonable under the totality of the 9 circumstances because he was confronted by “an extremely large and combative individual … with ‘Hulk-like strength.’” Mot. at 11. Greer claims that the officers “were negligent and careless 11 United States District Court Northern District of California 10 in their actions ... by[] deliberately and intentionally Tasering decedent at least three times in rapid 12 succession; placing decedent in a WRAP and applying pressure to decedent’s back even though he 13 was unconscious, resulting in asphyxia... .” SAC at 5:26–6:3. He argues that Tougas is the one 14 officer that decided to escalate the situation and deliberately brought Greer down to the ground. 15 Opp’n at 13–14. He points to the video footage and Tougas’s own deposition testimony to 16 highlight Tougas’s “inappropriate state of mind.” Id. at 5. 17 18 1. Graham Analysis a. Nature and Quality of Intrusion 19 The incident involved the actions of numerous officers, all of whom participated in some 20 way to the use of force against Greer. It is undisputed that Tougas did not use his Taser, nor did 21 he kick, punch, or deploy his baton in an effort to control Greer. But plaintiff claims—and the 22 video tends to corroborate his claims—that Tougas continuously applied pressure to Greer’s torso 23 in an attempt to control him. Because the present motion pertains only to Tougas, the analysis will 24 focus on his application of prolonged body-weight on Greer’s torso while Greer was in a prone 25 position. While it is true that “not every push or shove, even if it may seem unnecessary in the 26 peace of a judge's chambers is a violation of the Fourth Amendment, it is equally true that even 27 where some force is justified, the amount actually used may be excessive.” Santos v. Gates, 287 28 F.3d 846, 853 (9th Cir. 2002)(internal quotation marks and citation omitted). 14 The video depicts Greer on the ground in a prone position for approximately seven minutes 1 2 while several officers, including Tougas, applied pressure to various parts of Greer’s body in an 3 attempt to make him comply. According to plaintiff, Tougas “continuously applied pressure to 4 Greer’s torso from 7:55–10:36:01.” Opp’n at 6 (citing Combined Video); see also Reuter 5 Supplemental Report at 3. BART highlights that Greer never claimed he was unable to breathe. 6 Reply at 8. But as plaintiff points out, Greer “repeatedly beg[ged] the officers to ‘Get off [him]’.” 7 Id. at 6–7. He then yelled in desperation as his breathing became labored, and he eventually 8 “stop[ped] saying words, and start[ed] grunting.” Id. This evidence at least creates a genuine 9 issue whether the officers knew that Greer was having trouble breathing. Although no evidence regarding the officers’ knowledge of the risks of compression 11 United States District Court Northern District of California 10 asphyxia was presented, the officers may have been on notice that Greer had issues with his 12 abdomen that would have been exacerbated by his position on the ground. Opp’n at 6 (citing 13 Combined Video).6 As discussed above, there exists a genuine issue as to the cause of Greer’s 14 death. Even though the officers may not have intended to use deadly force, their actions may have 15 resulted in Greer’s death and could be found substantially likely to cause serious harm or death. 16 Bryan v. MacPherson, 630 F.3d 805, 825 (9th Cir. 2010)(finding lethal force is that which 17 “creates a substantial risk of death or serious bodily injury.”). Viewing the evidence in the light 18 most favorable to Greer, “a reasonable jury could find that the officers’ use of force was 19 excessive.” Lolli v. Cty. of Orange, 351 F.3d 410, 416 (9th Cir. 2003). A recent case from the Eastern District of California (which the parties inexplicably failed 20 21 to cite) analyzed a similar factual scenario in which the detainee, who was clearly under the 22 influence, “was restrained and prone on the ground for approximately eight to ten minutes with 23 four officers applying body-weight pressure to his back.” Garlick v. Cty. of Kern, 167 F. Supp. 3d 24 1117, 1155 (2016). The court noted that “[p]revailing precedent in the Ninth Circuit is that law 25 enforcement officers’ use of body weight to restrain a ‘prone and handcuffed individual [] in an 26 27 28 6 It is unclear from the bodycam footage and transcript whether Greer actually indicated a problem with his abdomen, but at one point he appears to gesture towards his abdomen region. See Combined Video at 0:03:00.70. 15 1 agitated state’ can cause suffocation ‘under the weight of restraining officers,’ therefore, such 2 conduct may be considered deadly force.” Id. (citing Drummond ex rel. Drummond v. City of 3 Anaheim, 343 F.3d 1052, 1056–67 (9th Cir. 2003)). “Known as ‘compression asphyxia,’ prone 4 and handcuffed individuals in an agitated state have suffocated under the weight of restraining 5 officers.” Id. (citation omitted). 6 In Drummond, two officers brought to the ground an unarmed man whom they knew 7 suffered from mental illness. Id. at 1054. Although Drummond “offered no resistance,” the 8 officers continuously applied their weight to his neck and upper torso. Id. Drummond repeatedly 9 told the officers he could not breathe; he soon fell into respiratory distress, and eventually lost consciousness. Id. at 1054–55. In analyzing the Graham factors, the court found that the officers 11 United States District Court Northern District of California 10 applied severe force that resulted in compression asphyxia, id. at 1056, despite the minimal need 12 for force because Drummond was not resisting and “no underlying crime was at issue.” Id. at 13 1057 (emphasis in original)(internal quotation marks omitted). 14 While there are factual differences between Garlick and this case, on the one hand, and 15 Drummond on the other, the Garlick court found that “Drummond[] makes plain that multiple 16 officers’ use of prolonged body-weight pressure to a suspect’s back is known to be capable of 17 causing serious injury or death.” Garlick, 167 F. Supp. 3d at 1155 (citing Drummond, 343 F.3d at 18 1056). I agree with its analysis. Under Drummond, and viewing the facts in a light most 19 favorable to plaintiff, the nature and quality of the force used here could constitute lethal force. 20 Id.; see also Bryan, 630 F.3d at 825 (finding lethal force is that which “creates a substantial risk of 21 death or serious bodily injury.”) 22 b. Government Interest 23 i. Severity of crime 24 Greer was suspected only of a non-violent crime, driving under the influence. Viewing the 25 evidence in the light most favorable to Greer suggests that he was pulled over for minor traffic 26 violations and that Lutzinger was unable to conclusively determine whether he was driving under 27 the influence. There is no evidence that Greer escalated the incident to a violent encounter. 28 ii. Immediate threat to officers 16 1 “The most important factor under Graham is whether the suspect posed an immediate 2 threat to the safety of the officers or others.” Bryan, 630 F.3d at 826 . In finding this factor 3 weighed against the reasonableness of the police officers’ conduct in Drummond, the court noted 4 the detainee’s relatively slight weight at 160 pounds compared to one of the officer’s 225 pounds. 5 343 F.3d at 1057. Here, Greer weighed 380 pounds and a number of the officers testified as to his 6 size and strength. But the officers also testified that Greer was not combative, merely 7 uncooperative. None of them explicitly testified that they feared for their own safety. And the 8 video raises doubts as to whether the officers were confronted with an “imminent threat of 9 violence.” Ryburn v. Huff, 132 S. Ct. 987, 990 (2012). 10 Of course, “judges should be cautious about second-guessing a police officer’s assessment, United States District Court Northern District of California 11 made on the scene, of the danger presented by a particular situation.” Id. at 991–92. But none of 12 the officers testified that Greer presented a threat to their safety—he was not armed and did not 13 verbally threaten the officers. Cf. George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013)(“If the 14 person is armed—or reasonably suspected of being armed—a furtive movement, harrowing 15 gesture, or serious verbal threat might create an immediate threat.”); Gregory v. Cty. of Maui, 523 16 F.3d 1103, 1108–09 (9th Cir. 2008)(“Moreover, the officers had reason to believe that Gregory 17 posed a threat to them, because he refused their requests, acted in an aggressive manner, and had 18 already assaulted Finazzo.”) The Garlick court found that “[d]efendants’ allegations about the 19 officers’ concerns about [detainee’s] size, apparent intoxication (alcohol or illicit substances), and 20 general actions or noncompliance, are insufficient factual bases for the Court to conclude that 21 [detainee] was an actual immediate threat, post-handcuffing, where a reasonable jury could also 22 conclude that such conduct poses no such threat.” Garlick, 167 F. Supp. 3d at 1156. The same 23 holds true here. Defendants have not presented sufficient evidence establishing the immediacy of 24 the threat to the safety of the officers or others. 25 26 iii. Resisting Arrest The parties dispute whether Greer resisted arrest. While the officers insist Greer’s 27 resistance caused the struggle, plaintiff’s expert contends that Greer could merely have been 28 struggling for air while he was face down in a prone position with five officers on top of him. See 17 1 Clements Report at 4. The defendants point to the officers’ testimony, corroborated by third-party 2 witnesses, and to the officers repeated commands for Greer to relax and put his hands behind his 3 back. Once again, the similarities to Garlick are instructive. Garlick, 167 F. Supp. 3d at 1156– 5 57 (“Plaintiffs further allege that the officers’ weight on Silva’s back restricted his breathing and 6 that Silva’s movements trying to lift his chest and kicking his legs were not resistance but a sign of 7 his struggle to breathe.”) In finding a genuine issue of material fact whether the detainee was 8 actively or passively resisting, the court noted that “[s]imilar cases turn on the fact-finder’s 9 determination of where on the spectrum of resistance a misdemeanor suspect falls.” Id. at 1157 10 (collecting cases); see also Tucker v. Las Vegas Metro. Police Dep't, 470 F. App'x 627, 629 (9th 11 United States District Court Northern District of California 4 Cir. 2012)(“Keith, unlike Drummond, continued to resist the officers after handcuffs were applied, 12 but this distinction does not, by itself, suffice to bring this case out of Drummond's orbit.”) I agree 13 with the reasoning in Garlick; this issue should be left to the jury. 14 15 c. Balancing Level of Intrusion Against Government Interests To support its argument that Tougas’s actions were reasonable under the circumstances, 16 BART submitted a declaration from Jared Zwickey, an Associate Professor at the San Joaquin 17 Delta College District in the Administration of Justice Discipline with over 38 years of law 18 enforcement experience. Zwickey Decl. ¶ 1, 8 (Dkt. No. 59-4). He works closely with the 19 California Commission on Basic Police Officer Standards and Training (POST), and currently 20 serves as the use of force subject matter expert. Id. ¶ 4. After reviewing numerous materials, 21 including police reports, the BART police video, the autopsy and coroner’s reports, and the 22 deposition testimonies, he concluded that Tougas used reasonable force in detaining Greer. Id. ¶ 23 13. Plaintiff countered with the report of Barry Brodd, a retired officer and adjunct faculty 24 member with 29 years of law enforcement experience and 34 years of teaching experience, who 25 concluded that HPD and BART PD “violated their training and standards of practice for police 26 officers in California in their detention of James Greer… .” Cajina Decl. Ex. 9, Initial Report of 27 Barry Brodd at 3 (Dkt. No. 61-11). 28 Although there was an actual crime at issue, since Lutzinger observed Greer commit traffic 18 1 violations and suspected him of driving under the influence, the severity of the crime was 2 relatively minor and there is no evidence that the officers feared for their safety. Further, the 3 purported “resistance” may have been passive, and not active. These factors suggest that the 4 government interest was low. The requisite balancing to determine whether the officers’ use of 5 force was reasonable, when considering their attempts to secure a 380 pound man who was 6 passively or actively resisting arrest, “requires a jury to sift through disputed factual contentions, 7 and to draw inferences therefrom… .” Id. When balanced against the lethal level of force 8 employed, a factfinder could find the level of force used objectively unreasonable under the 9 circumstances. Tougas’s actions, in conjunction with the conduct of the other officers, may rise to 10 United States District Court Northern District of California 11 12 the level of an constitutional violation. B. Tougas is Not Entitled to Qualified Immunity BART and Tougas argue that Tougas is entitled to the protection of qualified immunity 13 because his actions were objectively reasonable under the circumstances. Mot. at 13. “The 14 doctrine of qualified immunity protects government officials from liability for civil damages 15 insofar as their conduct does not violate clearly established statutory or constitutional rights of 16 which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) 17 (internal quotation marks and citation omitted). “A clearly established right is one that is 18 sufficiently clear that every reasonable official would have understood that what he is doing 19 violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)(internal quotation marks 20 omitted). The Supreme Court has repeatedly—and recently—“reiterate[d] the longstanding 21 principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’” 22 White v. Pauly, 580 U.S. __, No. 16-67, slip op. at 6 (Jan. 9, 2017) (quoting Ashcroft v. al-Kidd, 23 563 U.S. 731, 742 (2011)). Rather, “clearly established law must be particularized to the facts of 24 the case.” Id. (internal quotation marks and citation omitted). 25 “Put simply, qualified immunity protects all but the plainly incompetent or those who 26 knowingly violate the law.” Id. (internal quotation marks omitted). In addition, the Supreme 27 Court has “repeatedly [] stressed the importance of resolving immunity questions at the earliest 28 possible stage in litigation.” Pearson, 555 U.S. at 232. However, “[i]f a genuine issue of material 19 1 fact exists that prevents a determination of qualified immunity at summary judgment, the case 2 must proceed to trial.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003). Defendants bear 3 the burden to prove they are entitled to qualified immunity. Moreno v. Baca, 431 F.3d 633, 638 4 (9th Cir. 2005). 5 The appropriate inquiry is “whether it was clearly established that the Fourth Amendment prohibited the officer's conduct in the situation [he] confronted.” Mullenix v. Luna, 136 S. Ct. 7 305, 309 (2015). Greer cites to Drummond to support his position that “fact patterns such as the 8 one presented here – where officers use excessive force against a suspect in a prone position, 9 resulting in asphyxia ... do not shield officers from liability under qualified immunity.” Opp’n at 10 11 (citing Drummond, 343 F.3d at 1061–62). The Garlick court agreed. 167 F. Supp. 3d at 1158 11 United States District Court Northern District of California 6 (“Drummond is sufficiently similar to the specific context of this case that it clearly warned 12 officers that when a suspect is handcuffed and prone on the ground, further restraint measures, if 13 applied as alleged here, would be unconstitutional.”). Several unpublished Ninth Circuit decisions 14 also support plaintiff’s position. See, e.g., Tucker v. Las Vegas Metro. Police Dep’t, 470 F. App'x 15 627, 629 (9th Cir. 2012)(“Turning to the clearly established law inquiry, we conclude that existing 16 law recognized a Fourth Amendment violation where two officers use their body pressure to 17 restrain a delirious, prone, and handcuffed individual who poses no serious safety threat.”); 18 Abston v. City of Merced, 506 F. App'x 650, 652-53 (9th Cir. 2013)(“ A reasonable fact-finder 19 could conclude that defendants’ use of body compression as a means of restraint was unreasonable 20 and unjustified by any threat of harm or escape when Abston was handcuffed and shackled, in a 21 prone position, and surrounded by numerous officers.”). Accordingly, Drummond created clearly 22 established law on a particularized level sufficient to give fair and clear warning to officers. See 23 White, supra. 24 BART and Tougas contend that officers are entitled to “breathing room regarding use of 25 force,” that they “need not retreat or desist,” and have a “right to self-defense.” Mot. at 14. That 26 may be, but clearly established law indicates that the officers’ use of prolonged pressure while 27 Greer lay on the ground in a prone position was substantially likely to cause death or serious 28 injury, and such force may not have been reasonable under the circumstances. A jury may agree 20 1 with Tougas’s view of the evidence, but given the disputed facts and the clearly established law, I 2 cannot find that Tougas is entitled to qualified immunity as a matter of law. C. Fourth Amendment – Denial of Medical Care7 3 Under the Fourth Amendment, officers must provide objectively reasonable post-arrest 4 5 medical care to a detainee. Tatum v. City and Cty. of San Francisco, 441 F.3d at 1090, 1099 (9th 6 Cir. 2006). “[A] police officer who promptly summons ... necessary medical assistance has acted 7 reasonably for purposes of the Fourth Amendment, even if the officer did not administer CPR.” 8 Id. Here, the evidence indicates that EMS arrived on the scene as the officers continued to 9 struggle with Greer. Plaintiff claims that Tougas and the other officers knew that Greer was unconscious and yet walked away and neglected to administer CPR. Opp’n at 8–9. BART points 11 United States District Court Northern District of California 10 to testimony from the officers and third-party witness Pastor Todd Hendricks to support its 12 position that paramedics administered CPR without delay and therefore, Tougas was not 13 deliberately indifferent to Greer’s medical needs. Mot. at 15–18; Reply at 10–11. The parties disagree over the relevance of Lolli v County of Orange, supra, to this case. 14 15 See Mot. at 16–17; Opp’n at 12. Lolli was a diabetic who allegedly told the officers of his medical 16 condition and need for medical assistance. 351 F.3d at 419. Some officers, despite having actual 17 knowledge of Lolli’s deteriorating medical condition, failed to provide medical aid. Id. at 420 18 The Ninth Circuit found that issues of fact precluded summary judgment. Id. BART argues that this case is not like Lolli because “Tougas did not have such direct 19 20 actual knowledge.” Mot. at 17. Defendants further contend that the presence of paramedics “who 21 [were] more experienced in rendering medical care,” id. at 18, precludes a finding of deliberate 22 indifference. Plaintiff responds that the defendants’ “argument is belied by the Combined 23 Video[,]” where “for nearly two minutes – no paramedics or EMTs were near Greer.” Opp’n at 9. 24 Further, “the physical restraints impeded the paramedics’ ability to provide care,” and “nearly 25 seven minutes had gone by from the time Mr. Greer was first flipped over ... to when he received 26 27 28 7 BART’s immunity under Government Code 845.6 pertains to claims by prisoners. Greer was not a prisoner, and BART offers no authority that this immunity extends to others in police custody. 21 1 the first chest compressions... .” Id. (citing Brassfield Depo.). This case is not like Lolli. The officers “promptly summoned medical care,” and “acted 2 3 reasonably for purposes of the Fourth Amendment.” Acevedo v. City of Anaheim, No. 8:14-CV- 4 01147-ODW(E), 2016 WL 79786, at *5 (C.D. Cal. Jan. 6, 2016). Even accepting plaintiff’s 5 allegations as true, Tougas is entitled to summary judgment on Greer’s failure to render medical 6 aid claim. D. Fourteenth Amendment – Substantive Due Process Claim 7 Plaintiff brings a cause of action for loss of familial relationship.8 Compl. § 31–37. The 8 9 Fourteenth Amendment’s substantive due process clause protects against “government power arbitrarily and oppressively exercised.” Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998). “The 11 United States District Court Northern District of California 10 Supreme Court has made it clear ... that only official conduct that ‘shocks the conscience’ is 12 cognizable as a due process violation.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) 13 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). “The relevant question ... is 14 whether the shocks the conscience standard is met by showing ... deliberate indifference or 15 requires a more demanding showing [of] a purpose to harm [decedent] for reasons unrelated to 16 legitimate law enforcement objectives.” Id. Plaintiffs urge me to apply the deliberate indifference 17 standard, while defendants contend the proper standard is a purpose to harm. Mot. at 14. 18 The Porter court reviewed precedent and found that the more deferential “purpose to 19 harm” standard should apply when officers are “reacting to the urgent public safety threat of 20 fleeing motorists in a situation where inaction could be the most dangerous.” Id. The court 21 concluded that the higher standard should apply even where the officers faced a “much less 22 obvious public safety threat” than in police chase cases “because the critical consideration is 23 whether the circumstances are such that actual deliberation is practical.” Id. (internal quotation 24 marks and citation omitted). Here, the confrontation between Greer and the officers was not 25 “rapidly escalating” in the same way as in Porter. But when Tougas pulled Greer’s shirt, he was 26 making a “snap judgment” in which actual deliberation may have been impractical. See Lewis, 27 8 28 Defendants’ argument that no familial relationship exists between plaintiff and his father is, charitably, unconvincing. 22 1 523 U.S. at 851. Subsequent cases have characterized Lewis’s “purpose to harm” as “the standard of 3 culpability as applicable to substantive due process claims arising from the unintentional killing of 4 an individual by law enforcement officers.” Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 5 365, 372 (9th Cir. 1998). Accordingly, “intentionality is relevant” but not central. Porter, 546 6 F.3d at 1138. Here, the officers had time to deliberate while they lay on Greer’s back as he 7 struggled to breathe. This is a close question, but again, the Garlick reasoning is helpful: “a 8 reasonable trier of fact could conclude from [defendants’] alleged conduct pressing body-weight 9 on Silva’s back for a prolonged period that these officers were deliberately indifferent to the risk 10 posed by their conduct to Silva’s unjustified deprivation of liberty.” Garlick, 167 F. Supp. 3d at 11 United States District Court Northern District of California 2 1171. The court relied on Drummond to find that the officers’ “inaction [of not removing the 12 pressure from Silva’s back] supports the inference that the officers were deliberately indifferent to 13 the risk of serious injury or death posed by their conduct.” Id. Here, there is evidence to support 14 both standards, and the determination should be left to the jury. C.E.W. v. City of Hayward, No. 15 13-cv-04516-LB, 2015 WL 1926289, at *13 (N.D. Cal. Apr. 27, 2015). 16 III. CLAIMS AGAINST BART 17 Local governments “can be sued directly under § 1983 for monetary, declaratory, or 18 injunctive relief where … the action that is alleged to be unconstitutional implements or executes a 19 policy statement, ordinance, regulation, or decision officially adopted and promulgated by that 20 body’s officers.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978). “There 21 are three ways to show a policy or custom of a municipality: (1) by showing a longstanding 22 practice or custom which constitutes the ‘standard operating procedure’ of the local government 23 entity; (2) by showing that the decision-making official was, as a matter of state law, a final 24 policymaking authority whose edicts or acts may fairly be said to represent official policy in the 25 area of decision; or (3) by showing that an official with final policymaking authority either 26 delegated that authority to, or ratified the decision of, a subordinate.” Menotti v. City of Seattle, 27 409 F.3d 1113, 1147 (9th Cir. 2005)(internal quotation marks omitted). “Liability for improper 28 custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices 23 1 of sufficient duration, frequency and consistency that the conduct has become a traditional method 2 of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 3 BART contends that “there is no evidence of a long-standing practice or custom which 4 constitutes the standard operating procedure of the BART Police Department or any other 5 decision-making official regarding use of excessive force or lack of medical care.” Mot. at 22 6 (citing Haight Decl.). Plaintiff does not address his Monell claim in his opposition, and includes 7 no allegations of a custom or practice in his complaint. Accordingly, BART is entitled to 8 summary judgment. CONCLUSION 9 10 United States District Court Northern District of California 11 12 13 14 15 BART’s motion for summary judgment is GRANTED. Tougas’s motion is granted with respect to the denial of medical care and denied in all other respects. IT IS SO ORDERED. Dated: January 17, 2017 ______________________________________ WILLIAM H. ORRICK United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 24

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