David Aragonez et al v. County of San Bernardino et al, No. 5:2007cv00992 - Document 70 (C.D. Cal. 2008)
Court Description: ORDER by Judge Virginia A. Phillips, GRANTING Defendant Huff's MOTION for Partial Summary Judgment 41 ; ORDER GRANTING IN PART AND DENYING IN PART Defendant Recatto's MOTION for Summary Judgment 45 : (see document image for complete detai ls). For the foregoing reasons, the Court GRANTS Defendant Recattos Motion for Summary Judgment in part and DENIES it in part. The Court GRANTS summary judgment in favor of Recatto on Plaintiffs claims as follows: (1) unlawful detention claim as to A ragonez, (2) false arrest claim as to both Defendants, and (3) Fourteenth Amendment substantive due process claim. The Court DENIES the motion for summary judgment as to the excessive force claim and the unlawful detention claim as to Lozano. As discussed above, the Court GRANTS Defendant Huffs Motion for Partial Summary Judgment as to the Fourteenth Amendment substantive due process claim against him. (ad)
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David Aragonez et al v. County of San Bernardino et al Doc. 70 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 DAVID ARAGONEZ; ) SALVADOR LOZANO, ) 11 ) Plaintiffs, ) 12 ) v. ) 13 ) COUNTY OF SAN ) 14 BERNARDINO; GARY PENROD; ) ALVIN HUFF; P. RECATTO; ) 15 AND DOES 1-10, ) INDIVIDUALLY , ) 16 ) Defendants. ) 17 ) AND RELATED CROSS-CLAIMS ) 18 ________________________ ) Case No. EDCV 07-00992-VAP (OPx) [Motions filed on October 13, 2008 and October 14, 2008] ORDER GRANTING DEFENDANT HUFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT RECATTO'S MOTION FOR SUMMARY JUDGMENT 19 20 Defendant Huff’s Motion for Partial Summary Judgment 21 and Defendant Recatto’s Motion for Summary Judgment came 22 before this Court for hearing on November 17, 2008. 23 After reviewing and considering all papers filed in 24 support of, and in opposition to, the Motion, as well as 25 the arguments advanced by counsel at the hearing, the 26 Court GRANTS Defendant Huff’s Motion and GRANTS in part 27 and DENIES in part Defendant Recatto’s Motion. 28 /// Dockets.Justia.com 1 I. BACKGROUND 2 Plaintiffs David Aragonez (“Aragonez”) and Salvador 3 Lozano (“Lozano”) bring this action against Defendants 4 San Bernardino County Sheriff’s Deputy Alvin Huff 5 (“Huff”) and California Highway Patrol Sergeant Pete 6 Recatto (“Recatto”), who encountered, detained and 7 eventually arrested Plaintiffs in San Bernardino on 8 August 10, 2005. 9 10 Plaintiffs assert the following claims against Huff 11 and Recatto, all based on 42 U.S.C. § 1983:1 12 13 (1) violation of their rights under the Fourth and 14 Fourteenth Amendments to the U.S. Constitution 15 by subjecting them to an unjustified and 16 excessive detention; 17 18 (2) violation of their rights under the Fourth and 19 Fourteenth Amendments to the U.S. Constitution 20 by subjecting them to a false arrest; 21 /// 22 /// 23 /// 24 25 1 Plaintiffs originally brought a Monell claim against the County of San Bernardino and Gary Penrod in 27 his capacity as Sheriff of San Bernardino County. The parties filed a stipulation to dismiss the claims against 28 those Defendants on October 30, 2008. 26 2 1 (3) violation of their rights under the Fourth and 2 Fourteenth Amendments to the U.S. Constitution 3 by subjecting them to excessive force;2 and 4 5 (4) violation of their rights to substantive due 6 process under the Fourteenth Amendment by 7 misrepresenting facts or concealing exculpatory 8 information in the ensuing criminal 9 investigation (the “substantive due process 10 claim”). 11 12 (Compl. ¶¶ 23-41). 13 14 Before the Court are two related motions for summary 15 judgment. On October 13, 2008, Huff filed a Motion for 16 [Partial] Summary Judgment or Summary Adjudication (“Huff 17 Mot.”), seeking judgment in his favor on the substantive 18 due process claim, and lodged a Statement of 19 Uncontroverted Material Facts and Conclusions of Law 20 (“HSUF”). Huff argues that Plaintiffs have failed to 21 produce evidence of any injury under the Fourteenth 22 Amendment. Huff Mot. at 5. 23 24 On October 14, 2008, Recatto filed a Motion for 25 Summary Judgment and Summary Adjudication of Claims 26 27 2 Claims 1-3 are referred to collectively as “the 28 Fourth Amendment claims.” 3 1 (“Recatto Mot.”) and Memorandum of Points and Authorities 2 (“Recatto Mem.”), and lodged a Statement of 3 Uncontroverted Facts and Conclusions of Law (“RSUF”). As 4 to the Fourth Amendment claims, he argues: (1) the 5 undisputed facts created reasonable suspicion and 6 probable cause to detain and arrest Plaintiffs; (2) the 7 undisputed facts show that Recatto himself did not detain 8 or arrest Plaintiffs; and (3) he should be afforded 9 qualified immunity for any acts he did commit. 10 Mot. at 2.) (Recatto He argues Plaintiffs cannot establish a 11 Fourteenth Amendment violation in support of their 12 Substantive Due Process Claim. (Id.) 13 14 Plaintiffs filed Oppositions and Memoranda of Points 15 and Authorities3 on November 3, 2008, and also lodged two 16 Statements of Genuine Issues of Material Fact.4 17 18 19 II. LEGAL STANDARD A motion for summary judgment shall be granted when 20 there is no genuine issue as to any material fact and the 21 22 3 The Opposition to Huff’s motion is referred to here 23 as “Opp’n-Huff”; the Opposition to Recatto’s motion is referred to as “Opp’n-Recatto”. 24 4 Although Plaintiffs filed statements of genuine 25 issues of material fact for both motions for summary judgment, they assert identical facts as to the incident. 26 All references to the PSGI are to Plaintiffs’ Statement of Genuine Issues of Material Fact in Opposition to 27 Recatto’s Summary Judgment Motion. Where necessary to cite to the SGI in opposition to Huff’s Motion, the Court 28 refers to it as PSGI-Huff. 4 1 moving party is entitled to judgment as a matter of law. 2 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 3 477 U.S. 242, 247-48 (1986). The moving party must show 4 that “under the governing law, there can be but one 5 reasonable conclusion as to the verdict.” Anderson, 477 6 U.S. at 250. 7 8 Generally, the burden is on the moving party to 9 demonstrate that it is entitled to summary judgment. 10 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); 11 Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 12 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears 13 the initial burden of identifying the elements of the 14 claim or defense and evidence that it believes 15 demonstrates the absence of an issue of material fact. 16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 17 18 Where the non-moving party has the burden at trial, 19 however, the moving party need not produce evidence 20 negating or disproving every essential element of the 21 non-moving party’s case. Celotex, 477 U.S. at 325. 22 Instead, the moving party’s burden is met by pointing out 23 that there is an absence of evidence supporting the non24 moving party’s case. Id. 25 26 The burden then shifts to the non-moving party to 27 show that there is a genuine issue of material fact that 28 5 1 must be resolved at trial. Fed. R. Civ. P. 56(e); 2 Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The 3 non-moving party must make an affirmative showing on all 4 matters placed in issue by the motion as to which it has 5 the burden of proof at trial. 6 Anderson, 477 U.S. at 252. Celotex, 477 U.S. at 322; See also William W. 7 Schwarzer, A. Wallace Tashima & James M. Wagstaffe, 8 Federal Civil Procedure Before Trial § 14:144. 9 10 A genuine issue of material fact will exist “if the 11 evidence is such that a reasonable jury could return a 12 verdict for the non-moving party.” 13 248. Anderson, 477 U.S. at In ruling on a motion for summary judgment, the 14 Court construes the evidence in the light most favorable 15 to the non-moving party. Barlow v. Ground, 943 F.2d 16 1132, 1135 (9th Cir. 1991); T.W. Electrical Serv. Inc. v. 17 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630-31 18 (9th Cir. 1987). 19 20 III. UNCONTROVERTED FACTS 21 Defendants submitted Statements of Uncontroverted 22 Facts, and Plaintiffs submitted Statements of Genuine 23 Issues of Material Fact. The Court finds the following 24 facts uncontroverted; the remaining facts set forth in 25 the parties’ respective submissions are deemed 26 controverted and discussed below. 27 /// 28 6 1 A. The Incident 2 Recatto and Huff ("the officers”) were patrolling the 3 City of Highland on August 10, 2005 to gather 4 intelligence about gang activities in the area. 5 4.) (RSUF ¶ At approximately 5:30 p.m., Recatto and Huff pulled 6 their unmarked white patrol car into the driveway of the 7 residence of Aragonez’s mother, where Aragonez was 8 standing behind a pickup truck. (PSGI ¶¶ 6, 13, 17, 38.) 9 When the officers got out of their car, Aragonez said 10 “What the fuck do you want?” He was uncooperative and 11 argumentative in response to Huff’s questions. 12 6; RSUF ¶ 8-1.5) (PSGI ¶ Huff ordered Aragonez to put his hands 13 behind his back, and Aragonez remained uncooperative, 14 cursing and directing racially derogatory language at 15 Huff. (PSGI ¶¶ 43-44.) 16 17 Huff repeatedly told Aragonez to calm down, and told 18 Aragonez, “You are coming at this all wrong.” 19 45.) (PSGI ¶ The two argued for several minutes, and Aragonez 20 continued to curse at Huff, who pulled his taser from his 21 utility belt, but did not deploy it. 22 Dep. at 104.)6 (PSGI ¶ 47; Recatto Aragonez then complied with Huff’s 23 24 5 Recatto’s Statement of Uncontroverted Facts 25 contains two paragraphs numbered "8." The first such paragraph is referred to as "8-1" and the second as "826 2." 6 Huff has invoked his right under the Fifth Amendment and refused to testify about any of the events 28 alleged in Plaintiffs' complaint. (PSGI-Huff ¶¶ 92-98.) 27 7 1 instructions to calm down, and Huff handcuffed him, and 2 put him in the back seat of the patrol car. (PSGI ¶ 49.) 3 Huff subsequently placed Aragonez under arrest for 4 violating California Penal Code section 647(f), 5 disorderly conduct - being found under the influence of 6 liquor or drugs in a public place. (RSUF ¶ 11.) 7 8 While Huff was engaged with Aragonez,7 Lozano came 9 out from behind the house and into the driveway, carrying 10 a compressor on his shoulder. (PSGI ¶ 8, RSUF ¶ 8-2.) 11 Recatto suspected Plaintiffs may have been involved in a 12 residential burglary and were under the influence of 13 alcohol; thus, he believed the circumstances warranted 14 further investigation. (RSUF ¶¶ 9-10; Recatto Dep. 78: 15 218-21.)8 16 17 Recatto instructed Lozano to put down the compressor 18 and put his hands behind his back. (PSGI ¶ 51.) At this 19 point, Huff took over, eventually handcuffing Lozano, 20 placing him under arrest, and putting him into the patrol 21 car. (PSGI ¶¶ 52-53; RSUF ¶ 12.9) 22 7 The parties dispute the precise timing of this, but 23 the discrepancy is immaterial. 24 8 Plaintiffs dispute this fact, but do not succeed in controverting it, since their objection is merely a legal 25 conclusion that there was insufficient bases for 26 Recatto’s suspicions - not that he did not have those suspicions. See PSGI ¶ 9. 27 9 Although Plaintiffs attempt to dispute this fact, (continued...) 28 8 1 Once Huff began driving to the West Valley Detention 2 Center, Aragonez and Lozano asked several questions about 3 their arrests and their destination. 4 14.) (PSGI ¶ 60; RSUF ¶ En route, Aragonez and Lozano “kicked [out] the 5 windows of the car,” (PSGI ¶ 63), after which Huff pulled 6 the car into a restaurant parking lot. (PSGI ¶ 63.) 7 8 There, Huff sprayed both Plaintiffs with chemical 9 spray. (PSGI ¶ 66; Recatto Dep. at 128-29.) At least 10 one backup officer arrived, and he, Huff, and Recatto 11 removed Aragonez from the patrol car and placed him into 12 a restraint. (PSGI ¶¶ 72-73; Recatto Dep. at 134-135.) 13 The officers placed Aragonez in another patrol car, and 14 took both Plaintiffs to the West Valley Detention Center. 15 (PSGI ¶ 74; Recatto Dep. 135:14-16, 137:24-138:3.) 16 17 B. The Belt Recording and Police Report 18 A device on Huff’s utility belt recorded the events 19 at Aragonez’s mother’s house. The transcript of this 20 recording, referred to as the “belt recording,” is 21 22 23 24 25 9 (...continued) their response to Defendants' SUF merely states that 26 Recatto "participated" in taking Lozano into custody. 27 This fails to create a dispute as to who placed Lozano under arrest, as Plaintiffs cite no evidence showing that 28 Recatto took Lozano into custody. See PSGI ¶ 12. 9 1 attached as Exhibit 2 to Sheriff’s Department employee 2 Dan Garcia’s Declaration.10 3 4 Huff prepared a police report about the incident, 5 (Garcia Decl. 2, Ex. 1 (“Report”)), which Plaintiffs 6 claim contained several falsehoods.11 7 8 C. The Criminal Prosecution 9 Aragonez and Lozano, represented by counsel, were 10 arraigned on August 12, 2005, on felony charges of 11 violating California Penal Code § 594(b)(1), vandalism of 12 public property ($400 or more).12 13 guilty" pleas. Both entered "not (Christensen Decl. ¶ 3, Ex. 1 (Criminal 14 Court Docket).) 15 16 Plaintiffs moved to suppress their arrests under 17 California Penal Code § 18 granted their motions. 1538.5; the Superior Court (No details of the basis for the 19 10 Plaintiffs claim this recording establishes that Aragonez and Lozano “were not completely uncooperative.” 21 (PSGI-Huff ¶ 5.) Plaintiffs do not specify any portion of the recording that illustrates such a "cooperative" 22 attitude or demeanor, however, and the certified transcript reveals Aragonez's repeated use of racial 23 epithets, insults, curses, and vulgarities directed at Huff. (Garcia Decl., Ex. 2, throughout.) 24 11 It is undisputed that Recatto had no involvement 25 with the preparation of the Report. (RSUF ¶ 18.) 20 12 Although neither party provides any information regarding the basis for the charges, the Court assumes 27 the property at issue was the windows in the patrol car in which Plaintiffs were first placed, and in the patrol 28 car in which Aragonez was later placed. 26 10 1 Superior Court's ruling has been provided to the Court.) 2 See Christensen Decl. 6, Ex. 4 (transcript excerpts); 3 Santa Romana Decl. 7, Ex. 6 (same). On October 10, 2006, 4 the Superior Court granted the prosecution’s motion to 5 dismiss all charges against Aragonez and Lozano. 6 (Christensen Decl., Ex. 4 at 3; HSUF ¶ 2.) 7 8 9 IV. DISPUTED FACTS Defendants claim to have encountered Aragonez first 10 when he was walking along the sidewalk, approximately 100 11 feet from his mother's house. 12 Report at 3.) (Recatto Dep. 48:7-25; As the officers drove by, Aragonez was 13 looking over his shoulder at their car. 14 49:5-8). (Recatto Dep. The officers sought to initiate a consensual 15 pedestrian contact, but lost sight of Aragonez. (Recatto 16 Dep. 50:5-8). Plaintiffs claim Aragonez was not walking 17 along the street that evening, and did not become aware 18 of the officers until they pulled into the driveway. 19 (PSGI ¶¶ 31-34.) 20 21 Recatto claims both Aragonez and Lozano appeared 22 intoxicated throughout the encounter. He observed Lozano 23 was belligerent, was slurring his speech, had the odor of 24 alcohol on his breath, and his eyes were booodshot and 25 watery. (Recatto Dep. 106:13-17.) Recatto also noted 26 Aragonez’s eyes were bloodshot, red, and watery, and he 27 28 11 1 was acting belligerently, though Recatto never had a full 2 chance to evaluate him. (Recatto Dep. 108:7-11.) 3 4 Plaintiffs maintain they were not drunk, although 5 Lozano admits having consumed one 24-ounce beer. (PSGI ¶¶ 6 21-23.) Plaintiffs offer the testimony of a neighbor, 7 Darlene Brown, who was present and “less than one car8 length” away from Plaintiffs and Defendants during the 9 initial encounter in the driveway. According to Ms. 10 Brown, neither Aragonez nor Lozano appeared intoxicated. 11 (PSGI ¶¶ 25-26.) 12 13 Lozano claims that, when Recatto approached him and 14 told him to put the compressor down and put his hands 15 behind his back, Recatto held Lozano’s hands behind his 16 back. (Lozano Dep. 46:19-24.) 17 touched Lozano. Recatto claims he never (RSUF ¶ 13.) 18 19 Once in the patrol car, Plaintiffs contend they were 20 confused about where the officers were taking them 21 because they did not recognize the route, and the 22 officers would not answer their questions about their 23 destination. (PSGI ¶¶ 60-62.) Only then, Plaintiffs 24 maintain, did they kick out the windows in the patrol 25 car, because they doubted the authenticity of the 26 officers' identity. (PSGI ¶ 63.) 27 28 12 1 Recatto maintains he responded to Plaintiffs’ 2 questions and told them they were not going to the 3 Victorville prison, but to the West Valley Detention 4 Center. (Recatto Dep. at 117-118.) At that point, 5 according to Recatto, Plaintiffs launched racial 6 invective toward him, and began spitting at the officers. 7 (Recatto Dep. at 118-119.) A few minutes later, Recatto 8 heard a noise and saw that Aragonez had kicked out the 9 window in the backseat and was trying to hang out the 10 window. (Recatto Dep. at 120.) Aragonez then told 11 Lozano to do the same, and Lozano kicked out the window 12 on his side of the car. (Recatto Dep. at 121.) 13 14 Recatto claims Plaintiffs were still cursing and 15 yelling when the officers stopped the patrol car at the 16 restaurant parking lot, and Huff then sprayed each with a 17 chemical spray through the broken window for 2 or 3 18 seconds. (Recatto Dep. at 128-129). According to 19 Plaintiffs, on the other hand, they were sitting “quietly 20 and still” after kicking the windows out of the car, when 21 without any warning Huff, laughing, sprayed each of them 22 twice at close range with chemical spray, pausing for 23 over a minute between each spray. (PSGI ¶¶ 64-71.) 24 25 Once he was placed in the second patrol car, Aragonez 26 claims, Huff turned the heat up and rolled up the 27 windows, making it difficult for him to breathe. 28 13 1 Aragonez contends he screamed for help, and eventually 2 “managed to kick another window out, but just slightly.” 3 (PSGI ¶ 74.) According to Recatto, however, he never 4 heard Aragonez yelling in the car, and no one on the 5 scene reported hearing Aragonez complain about the heat 6 in the car. (Recatto Dep. 137:6-23.) 7 8 9 10 V. DISCUSSION A. The Fourth Amendment Claims Against Recatto 1. Recatto’s responsibility for the events 11 12 Recatto moves for summary judgment on all three of 13 Plaintiffs’ Fourth Amendment claims on the basis that he 14 did not detain, arrest, or use force against either 15 Aragonez and Lozano. 16 17 Recatto's mere presence at the scene of the incident 18 is not enough to establish liability. “In order for a 19 person acting under color of state law to be liable under 20 section 1983 there must be a showing of personal 21 participation in the alleged rights deprivation.” 22 v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Jones To 23 prevail against Recatto on their claims, Plaintiffs must 24 demonstrate either that his actions constituted “integral 25 participation” in the alleged violation, see Torres v. 26 City of Los Angeles, --- F.3d ---, No. 06-55817, 2008 WL 27 4878904 at *5 (9th Cir. Nov. 14, 2008), citing 28 14 Chuman v. 1 Wright, 76 F.3d 292, 294-95 (9th Cir. 1996), or that 2 Recatto's failure to intervene was itself a violation of 3 his constitutional duties, see Ting v. U.S., 927 F.2d 4 1504, 1511 (9th Cir. 1991). 5 6 Thus, the Court first analyzes the extent, if any, of 7 Recatto’s involvement in the allegedly wrongful acts to 8 determine the extent to which he can be held liable under 9 either theory. 10 11 a. 12 13 Recatto’s participation in the early stages of the encounter Plaintiffs do not dispute that Recatto was not 14 directly involved in the initial detention of Aragonez. 15 (PSGI ¶¶ 45-49.) Rather, he merely acted as the 16 “covering” officer. (Recatto Dep. 87:10-15.) Recatto 17 did participate in the arrest and detention of Lozano to 18 a greater degree, however. The parties agree Recatto 19 told Lozano to put down the compressor and put his hands 20 behind his back. (PSGI ¶ 51; Recatto Dep. 100:16-17.) 21 Whether or not anything else happened is disputed, as 22 Lozano alleges that Recatto briefly “held” his hands 23 behind him. (Lozano Dep. 46:19-24.) 24 /// 25 /// 26 /// 27 /// 28 15 1 The only evidence Plaintiffs cite in support of this 2 is the following deposition testimony of Lozano: 3 Recatto tells me, “Keep your hands out of your pockets.” And I think he said, “Turn around.” And he just held my hand until – and then right away, Huff comes to me. 4 5 6 (Lozano Dep. 46:19-22.) Asked to describe how 7 Recatto held his hands, Lozano responded “Just held 8 them behind me. You know.” (Id. at 46:23-24.) 9 10 There are no other allegations of physical 11 interaction between Recatto and either Plaintiff. 12 Plaintiffs do not dispute that Recatto was not 13 involved in the chemical spraying in the restaurant 14 parking lot. They do allege, however, he did nothing 15 to stop the spraying from occurring, though he could 16 have done so. (PSGI ¶¶ 77-78; Aragonez Dep. 180:22- 17 25.) 18 19 20 b. Integral Participation To hold an officer liable for his participation 21 as part of a team or group of officers, a plaintiff 22 must show the officer “integrally participated” via 23 “some fundamental involvement in the conduct that 24 allegedly caused the violation.” Blankenhorn v. 25 City of Orange, 485 F.3d 463, 481 n. 12 (9th Cir. 26 2007). While there is no bright-line test for 27 determining what constitutes 28 16 “fundamental 1 involvement,” courts have interpreted the integral 2 participation standard to require either physical 3 interaction with a suspect, or some knowledge or 4 control over the challenged conduct. See Torres, 5 2008 WL 4878904 at *5, (finding no integral 6 participation where there was no evidence that 7 defendant had “instructed the other detectives to 8 arrest [plaintiff] or that any of those detectives 9 consulted with [plaintiff] before making the 10 arrest”); Blankenhorn, 485 F.3d at 481 n. 12 (finding 11 assistance in handcuffing a suspect was integral 12 participation, but providing crowd control was not); 13 Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 14 2004) (finding officers could be liable for excessive 15 force they did not personally deploy where they were 16 “aware of the decision to use the flash-bang, did not 17 object to it, and participated in the search 18 operation knowing the flash-bang was to be 19 deployed”); Myser v. Spokane County, No. CV-06-2420 FVS, 2008 WL 4833294, at *9 (E.D. Wash. Nov. 3, 2008) 21 (granting summary judgment and finding no integral 22 participation even though evidence showed officer 23 “was nearby and should have paid closer attention to 24 what the deputies were doing”). 25 /// 26 /// 27 /// 28 17 1 c. 2 3 Failure to Intervene/ Bystander Liability The Ninth Circuit has noted that “police 4 officers have a duty to intercede when their fellow 5 officers violate the constitutional rights of a 6 suspect or other citizen.” U.S. v. Koon, 34 F.3d 7 1416, 1446-47 n. 25 (9th Cir. 1994), rev’d on other 8 grounds by 518 U.S. 81 (1996); Estate of Brutsche v. 9 City of Federal Way, No. C05-1538Z, 2006 WL 3734153, 10 at *5- *6 (W.D. Wash. Dec. 14, 2006). If a bystander 11 officer fails to fulfill this duty, he can face the 12 same liability as colleagues who directly violated 13 the suspect’s rights. Id. Bystander officers only 14 have a duty to stop a violation, though, where they 15 know or have reason to know of the constitutional 16 violation. Ting v. U.S., 927 F.2d 1504, 1511 (9th 17 Cir. 1991), see also Ramirez v. Butte-Silver Bow 18 County, 298 F.3d 1022, 1029-30 (9th Cir. 2002) 19 (holding that bystander officers could not be held 20 liable for failing to stop an unlawful search where 21 they had no reason to believe the warrant at issue 22 was defective). 23 24 25 2. The Excessive Force Claim Although neither Plaintiff alleges Recatto 26 personally used excessive force on them, it is well27 settled that, once a suspect is taken into custody, 28 18 1 law enforcement officers have a duty to protect the 2 suspect's safety. See United States v. Reese, 2 3 F.3d 870, 887-88 (9th Cir. 1993). Therefore, Recatto 4 can be held liable if (1) excessive force was used 5 against Plaintiffs; and (2)he was an “integral 6 participant” or had reason to believe excessive force 7 was being used and could have, but failed to, stop 8 it. 9 10 To determine if a use of force was excessive, 11 the finder of fact must consider "whether the use of 12 force was objectively reasonable in light of the 13 facts and circumstances confronting" the arresting 14 officers. Blankenhorn v. City of Orange, 485 F.3d 15 463, 477 (9th Cir. 2007), quoting Graham v. Connor, 16 490 U.S. 386, 397 (1989) (internal quotation marks 17 omitted). Plaintiffs allege the use of chemical 18 spray against them was excessive force. (Opp’n- 19 Recatto at 11.) 20 21 The parties dispute at least some of the events 22 leading up to Huff's use of the chemical spray. 23 While Recatto claims Plaintiffs were spitting and 24 kicking at the officers, (Recatto Dep. at 113-114.) 25 Plaintiffs contend they were sitting "quietly and 26 still," when, without notice each was sprayed twice 27 in the eyes with chemical spray. 28 19 (PSGI ¶¶ 64-65.) 1 They further claim there was pause of over a minute 2 between sprays. (PSGI ¶¶ 64-71.) Viewing this 3 factual dispute in the light most favorable to 4 Plaintiffs, the Court cannot conclude that no 5 reasonable jury would find this spraying to be 6 objectively unreasonable and that Recatto did not 7 have an opportunity to intervene. 8 9 In light of this triable issue of fact, the 10 Court cannot determine whether or not Recatto 11 breached his duty to protect a suspect’s safety once 12 in custody, or reach the issue whether Recatto is 13 entitled to qualified immunity on the basis that his 14 conduct did “not violate clearly established 15 statutory or constitutional rights of which a 16 reasonable person would have known.” Harlow v. 17 Fitzgerald, 457 U.S. 800, 818 (1982). 18 19 3. 20 21 The False Arrest and Detention Claims a) Aragonez’s Claims Plaintiffs have pointed to no authority holding 22 an officer is responsible when another officer 23 unlawfully detains or arrests a suspect under either 24 an integral participation or failure to intervene 25 theory. Nonetheless, a claim is feasible under 26 either theory. 27 28 20 1 Plaintiffs argue that by “covering” Sergeant 2 Huff during the incident, Recatto's participated 3 sufficiently to be held liable for Aragonez's 4 detention and arrest. They have produced no evidence 5 to show that Huff consulted with Recatto before 6 making the decision to detain and arrest Aragonez, 7 however. It is undisputed that Huff and Recatto had 8 no communications with one another from the time the 9 officers got out of the car until after Aragonez was 10 arrested.13 Providing cover is “an essentially 11 defensive posture.” Neuburger v. Thompson, 305 F. 12 Supp.2d 521, 530 (W.D. Pa. 2004). As an act designed 13 to secure an area and minimize the risks of 14 unexpected danger, it is analogous to crowd control, 15 which the Blankenhorn court determined was not a 16 sufficient basis for liability. 17 18 As such, the Court finds Plaintiffs have failed 19 to produce evidence that Recatto integrally 20 participated in the arrest or detention of Aragonez, 21 and thus cannot prevail on such a theory. See Travis 22 v. Village of Dobbs Ferry, 355 F.Supp.2d 740, 753 23 (S.D.N.Y. 2005) (granting summary judgment in favor 24 of backup officers where plaintiff failed “to provide 25 evidence to support her claim that they were 13 At hearing on this motion, Plaintiffs' counsel suggested Huff only decided to arrest Aragonez once 27 Aragonez started belligerently yelling and cursing at Huff. This would preclude any determination that Recatto 28 knew Huff was going to arrest Aragonez. 26 21 1 personally involved in her arrest or evidence that 2 they were in a position to stop the illegal arrest 3 and failed to do so”). 4 5 As for a bystander liability theory, it may be 6 difficult or impossible for a bystander officer to 7 know whether another officer, in the moment, is 8 acting based on the reasonable suspicion or probable 9 cause required. See also U.S. v. Ramirez, 473 F.3d 10 1026 (9th Cir. 2007) (discussing "collective 11 knowledge" or "fellow officer" doctrine). Still, 12 under the cases discussed above, a claim based on an 13 officer's failure to intervene is plausible if an 14 officer knew or had reason to know his colleague was 15 engaging in an unlawful arrest or detention.14 16 17 Here, there is no evidence to suggest that 18 Recatto knew or had reason to know that Huff was 19 acting without either probable cause15 or reasonable 20 suspicion16 in arresting or detaining Aragonez.17 21 The 14 Contrary to Plaintiffs’ assertions, an officer need not establish that he personally observed evidence 22 to support his colleague’s decision to arrest or detain. 23 15 See U.S. v. Hernandez, 322 F.3d 592, 596 (9th Cir. 2002) (explaining probable cause standard). On this 24 motion, there is no need to address whether Huff had 25 probable cause to arrest Aragonez. Even assuming probable cause was lacking, Recatto could only be liable 26 if he knew or had reason to know it was lacking. 16 See Terry v. Ohio, 392 U.S. 1 (1968) (establishing reasonable suspicion standard). As with the probable (continued...) 28 27 22 1 undisputed evidence shows Recatto was not involved in 2 any interaction between Aragonez and Huff at all. 3 As such, Recatto is entitled to summary judgment 4 on the claims by Aragonez for false arrest and 5 excessive detention claims against him. 6 7 b) Lozano’s Claim 8 There is no dispute that Recatto had any 9 involvement in the decision to arrest Lozano, and 10 there is no evidence to suggest that Recatto had any 11 reason to believe Huff was acting unlawfully in 12 arresting Lozano. Accordingly, Recatto is entitled 13 to summary judgment as to Lozano's false arrest 14 claim. 15 16 It is undisputed, though, that Recatto did 17 detain Lozano. A detention is deemed a Fourth 18 Amendment seizure when, “taking into account all of 19 the circumstances surrounding the encounter, the 20 police conduct would have communicated to a 21 reasonable person that he was not at liberty to 22 16 (...continued) cause determination, there is no need to conclude whether 24 there was reasonable suspicion for detaining Aragonez. 23 17 While, on a summary judgment motion, the Court is to “draw[] all reasonable inferences supported by the 26 evidence,” Noyes v. Kelly Services, 488 F.3d 1163, 1167 (9th Cir. 2007) the Court is not required to indulge the 27 mere speculation advanced by Plaintiffs’ counsel at the hearing that Recatto “must have” known that Huff planned 28 to unlawfully detain and arrest Aragonez. 25 23 1 ignore the police presence and go about his 2 business.” U.S. v. Washington, 490 F.3d 765, 769 3 (9th Cir. 2007), quoting Florida v. Bostick, 501 U.S. 4 429, 437 (1991) (internal marks omitted). By 5 ordering Lozano to put down the generator and 6 allegedly holding Lozano’s hands behind his back, 7 Recatto thus “seized” Lozano for Fourth Amendment 8 purposes, and thus can be held responsible on a 9 theory of direct liability if this seizure was 10 unconstitutional. 11 Recatto violated Lozano's constitutional rights 12 if he detained him without reasonable suspicion of 13 criminal activity supported by “specific and 14 articulable facts" and "rational inferences from 15 those facts." Terry v. Ohio, 392 U.S. 1, 21 (1968). 16 In determining whether reasonable suspicion is 17 present, a reviewing court is to consider the 18 totality of the circumstances known to the officer. 19 United States v. Arvizu, 534 U.S. 266, 273-275 20 (2002). The Court cannot fully analyze the totality 21 of circumstances here, however, since key facts are 22 unclear or disputed. 23 24 Recatto has explained that he suspected a 25 residential burglary might be underway when he saw 26 Lozano emerge from behind the house carrying a 27 compressor towards the truck. 28 24 (Recatto Dep. at 79- 1 80.) At the same time, Huff, his partner on the 2 scene, was engaged with Aragonez, who was cursing and 3 shouting racist invective. (Id., PSGI ¶ 8.) Huff 4 was either in the process of arresting Aragonez, or 5 had just done so. While these facts are undisputed, 6 the combination is insufficient to establish a 7 reasonable suspicion of burglary as a matter of law. 8 9 A police officer may detain an individual to 10 prevent ongoing or imminent crime, provided he 11 “observes unusual conduct which leads him reasonably 12 to conclude in light of his experience that criminal 13 activity may be afoot.” U.S. v. Grigg, 498 F.3d 14 1070, 1075 (9th Cir. 2007), quoting Terry, 392 U.S. 15 at 30. Recatto has not shown that it is sufficiently 16 unusual to carry a compressor out of a house in the 17 early evening as to establish reasonable suspicion of 18 criminal activity. Nor has Recatto explained how 19 Aragonez's behavior, though perhaps giving rise to 20 suspicion that Aragonez had committed some crime, 21 created a "reasonable inference" that Lozano was 22 engaged in criminal activity. 23 24 While the Court cannot, at this stage, conclude 25 that Recatto definitively did have reasonable 26 suspicion, such a finding is not barred by the 27 evidence before the Court. 28 25 Since "[c]onduct that 1 alone may appear innocent can be suspicious when 2 viewed in context of other information or surrounding 3 circumstances that police are aware of,"People of 4 Territory of Guam v. Ichiyasu, 838 F.2d 353, 355-56 5 (9th Cir. 1988), a jury, upon a fuller examination of 6 the totality of circumstances, may conclude that 7 Recatto's suspicion was reasonable. See also U.S. v. 8 Arvizu, 534 U.S. 266 (2002)(explaining that seemingly 9 innocent actions may justify detention when placed in 10 larger context). In addition, Recatto's observation 11 that Lozano appeared intoxicated, (Recatto Dep. 79:912 13), could be sufficient to establish reasonable 13 suspicion of criminal activity, i.e., public 14 drunkenness. However, Plaintiffs dispute whether 15 Recatto had any reason to suspect intoxication, and 16 it is unclear whether Recatto had any chance to 17 observe Lozano's behavior before detaining him. 18 19 While Recatto independently moves for summary 20 judgment on this claim on the basis of qualified 21 immunity, the parties' factual disputes must be 22 resolved to determine whether Recatto violated 23 clearly established law when he detained Lozano. 24 Harlow, 457 U.S. 800, supra. See Recatto therefore has 25 not carried his burden of showing he is entitled to 26 qualified immunity as a matter of law. 27 28 26 1 In light of the undisputed facts, the Court 2 grants summary judgment in favor of Recatto on the 3 unlawful arrest claim against him brought by both 4 Plaintiffs, and the unlawful detetntion claim as to 5 Aragonez. Due to the remaining factual uncertainty, 6 the Court denies Recatto's motion for summary 7 judgment as to Lozano's unlawful detention claim. 8 9 10 B. The Fourteenth Amendment Claim Plaintiffs bring a claim against both Lozano and 11 Recatto under the substantive due process component 12 of the Fourteenth Amendment for "providing false or 13 misleading information" in the Report. 18 While this 14 claim originally named Huff and Recatto, Compl. ¶¶ 15 33-41, Plaintiffs now concede that there is no 16 evidence Recatto was involved in drafting the report. 17 Thus, Plaintiffs concede the claim as to Recatto has 18 no merit. Accordingly, the Court grants summary 19 judgment in favor of Recatto on the Fourteenth 20 Amendment claim. 21 22 Plaintiffs now characterize their claim against 23 Huff as one of deliberate falsification of evidence, 24 based on the Ninth Circuit’s decision in Devereaux v. 25 18 While Plaintiffs initially claimed that the withholding of the belt recording was a substantive due 26 process violation, (Compl. ¶ 39), they now only argue 27 that the presentation of "false evidence" via the police report is the basis of their claim. See Opp’n-Huff at 28 11-12. 27 1 Abbey, 263 F.3d 1070 (9th Cir. 2001)(en banc). 2 Devereaux concerned the investigation and prosecution 3 of a foster parent for alleged sexual abuse of foster 4 children living in his home. 263 F.3d at 1073. 5 Based on interviews of questionable validity, 6 Devereaux was charged with several felonies. Id. 7 After a yearlong investigation, the felony charges 8 were dropped in exchange for Devereaux’s gulity plea 9 to two misdemeanor counts (rendering criminal 10 assistance and fourth-degree assault for spanking one 11 foster child). Id. Devereaux sued various 12 investigators and state employees for violating his 13 civil rights in the course if the investigation, 14 saying they used improper interview techniques with a 15 known tendency to produce false testimony. Id. at 16 1075. 17 18 Even though Devereaux was convicted as a result 19 of the investigation, an en banc Ninth Circuit panel 20 held that, even absent a conviction, "there is a 21 clearly established constitutional due process right 22 not to be subjected to criminal charges on the basis 23 of false evidence that was deliberately fabricated by 24 the government." 263 F.3d at 1074-75; see also 25 Cunningham v. City of Wenatchee, 345 F.3d 802, 811 26 (9th Cir. 2003). To survive summary judgment on that 27 claim, though, the court held a plaintiff must point 28 28 1 to evidence that, at a minimum, shows that "(1) 2 Defendants continued their investigation of 3 [Plaintiff] despite the fact that they knew or should 4 have known that he was innocent; or (2) Defendants 5 used investigative techniques that were so coercive 6 and abusive that they knew or should have known that 7 those techniques would yield false information." 263 8 F.3d at 1076; see also Ramirez v. County of Los 9 Angeles, 397 F. Supp.2d 1208, 1226 (C.D. Cal. 2005). 10 Here, Plaintiffs do not claim Defendant Huff's method 11 of taking a police report was improper, so only the 12 first prong is relevant. 13 14 Plaintiffs argue the Court should construe 15 Devereaux broadly. However, some courts have 16 questioned the continued viability of a Devereaux 17 claim at all. See, e.g., Bastidas v. City of Los 18 Angeles, No. CV 04-8902-GAF, 2006 WL 4749706 at *6 19 (C.D. Cal. 2006). Moreover, not only are Plaintiffs 20 unable to establish any evidence to suggest Huff, or 21 any other officer, knew Plaintiffs were innocent of 22 the charges against them, i.e., vandalism of public 23 property, but they fail to show any specific 24 falsehoods or omissions that have given rise to a 25 constitutional injury.19 26 None of the facts in the 19 Plaintiffs argue that Huff’s failure to testify about the accuracy of the Report creates a presumption of 27 falsehood. (Opp’n-Huff at 14.) However, several of the (continued...) 28 29 1 police report that they dispute have any relevance to 2 the question of whether or not they committed that 3 crime. Plaintiffs were charged with vandalism after 4 they undisputedly kicked out the windows of a police 5 car.20 6 7 Plaintiffs’ allegations boil down to two 8 complaints. First, they contend the Report was 9 faulty, as it reveals the investigation was not 10 particularly thorough. Second, Plaintiffs disagree 11 with the arresting officer’s description of the 12 events of the evening. But as one court applying 13 Devereaux has noted, "a careless or inaccurate 14 investigation that does not ensure an error-free 15 result does not rise to the level of a constitutional 16 violation." Costanich v. Washington, No. C05- 17 0090MJP, 2008 WL 1968775 at *11 (W.D. Wash. May 2, 18 19 20 21 22 23 24 19 (...continued) challenged aspects of the report are demonstrably true based on other evidence on the record. For example, Plaintiffs challenge the Report’s characterization of them as "completely uncooperative and combative" and "completely belligerent and uncooperative." (PSGI-Huff ¶¶ 76, 80, 83.) Rather, they claim there was only "some" non-cooperation. (PSGI-Huff ¶ 76.) As a matter of law, a dispute over such a subjective inquiry is not evidence of deliberate falsification. Other challenged aspects of the report, including the earlier encounter with Aragonez, are substantiated by Recatto’s testimony. 20 At hearing, Plaintiffs’ counsel argued that Plaintiffs may have had an affirmative defense of 26 “necessity.” However, their claimed necessity - that they believed the officers were not real officers or they 27 were not truly being taken to the West Valley Detention Center- has no relationship to the alleged falsehoods or 28 omissions in the Report. 25 30 1 2008). Devereaux makes clear that a deliberate 2 falsification claim requires evidence that an officer 3 knew of the plaintiff’s innocence, and proceeded 4 anyway. No such evidence has been presented here. 5 6 Accordingly, the Court grants summary judgment 7 as to the Fourteenth Amendment claim against Huff. 8 9 10 V. CONCLUSION For the foregoing reasons, the Court GRANTS 11 Defendant Recatto’s Motion for Summary Judgment in 12 part and DENIES it in part. The Court GRANTS summary 13 judgment in favor of Recatto on Plaintiff’s claims as 14 follows: (1) unlawful detention claim as to Aragonez, 15 (2) false arrest claim as to both Defendants, and (3) 16 Fourteenth Amendment substantive due process claim. 17 The Court DENIES the motion for summary judgment as 18 to the excessive force claim and the unlawful 19 detention claim as to Lozano. As discussed above, 20 the Court GRANTS Defendant Huff’s Motion for Partial 21 Summary Judgment as to the Fourteenth Amendment 22 substantive due process claim against him. 23 24 Dated: 25 November 18, 2008 VIRGINIA A. PHILLIPS United States District Judge 26 27 28 31
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