Coldwell v. County of Fresno, No. 1:2007cv01131 - Document 43 (E.D. Cal. 2009)

Court Description: ORDER DENYING 34 Motion for Summary Judgment or in the Alternative Motion for Partial Summary Judgement filed by plaintiff, signed by District Judge Lawrence J. O'Neill on 1/26/2009. (Kusamura, W)

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Coldwell v. County of Fresno Doc. 43 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 MARTIN COLDWELL, 9 10 11 12 CASE NO. CV-F-07-1131 LJO SMS Plaintiff, ORDER ON PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE MOTION FOR PARTIAL SUMMARY JUDGMENT vs. COUNTY OF FRESNO, et. al, Defendant. / 13 14 By notice filed on December 19, 2008, Plaintiffs Martin Coldwell, Stephen Lake, Robert Turner, 15 and David Durbin move for summary judgment on the grounds that there is no genuine issue of disputed 16 fact pursuant to Fed.R.Civ.P 56. Defendants Richard Pierce, Rick Ko, Kevin Wiens, Bertsch, Gallegos, 17 Asselin, and the County of Fresno filed an opposition to the motion on January 7, 2009. Plaintiffs filed 18 a reply on January 22, 2009. The Court thereafter took the motion under submission and vacated the 19 hearing date pursuant to Local Rule 78-230(h). Having considered the moving papers, the opposition, 20 and the reply, as well as the Court’s file, the Court issues the following order. 21 FACTUAL BACKGROUND 22 The Fresno County Sheriff's Department ran an undercover operation in 2002, referred to as 23 “Protect Our Children” operation (the “Operation”), to address complaints of lewd conduct occurring 24 near the restrooms located in Roeding Park in Central Fresno. The Operation used officers as decoys. 25 Plaintiffs allege that the decoy officers would make eye contact with males in the park, approach solitary 26 men, and suggest sexual relations in the restrooms. Approximately 35 arrests stemmed from the 27 undercover operation. Martin Coldwell was arrested for a violation of Penal Code Section 647(a) based 28 on conduct characterized as "solicitation." Others were arrested under the same criminal statute for 1 1 "engaging" in lewd conduct. Some of those arrested for violation of Penal Code Section647(a) were 2 arrested at the scene, in Roeding Park. Most were arrested within two to three months pursuant to 3 warrants. Some arrests were covered by the media, some were not. Different officers acted as decoys in 4 connection with the various arrests. 5 Plaintiffs Robert Turner, Martin Coldwell and Stephen Lake were arrested pursuant to Ramey1 6 warrants issued by Superior Court judges. David Durbin was arrested at the scene pursuant to the 7 authority of Penal Code Section 836. Charges were filed against all plaintiffs by the District Attorney's 8 Office. Coldwell plead nolo contendere to the charge of lewd conduct. Lake was convicted by a jury of 9 violation of 647(a), which conviction was later reversed by the Appellate Panel of the Fresno County 10 Superior Court. Robert Turner went to trial where a hung jury resulted in a mistrial. David Durbin's case 11 was dismissed on November 1, 2007 due to discovery issues.2 12 Plaintiff Martin Coldwell, Stephen Lake, Robert Turner, and David Durbin allege they were 13 falsely arrested by undercover sheriff deputies for soliciting sexual conduct in Roeding Park. They also 14 allege the arrests were discriminatory in that the Sheriff's Department only made arrests for 15 non-monetary male/male sexual solicitations and never arrested any one for making non-monetary 16 male/female sexual solicitations. Plaintiffs allege that the Fresno Sheriff's Department has a policy of 17 discriminating against male/male public non-monetary sexual solicitations. Plaintiffs further allege the 18 Fresno Sheriff's Department failed to adequately train its deputies so as to avoid making false and 19 discriminatory arrests. 20 In this motion, plaintiffs move for summary judgment on their Monell claim for failure to 21 adequately train the officers. Plaintiffs also move for summary judgment on their Monell claims of false 22 arrest without probable cause. Finally, plaintiffs move for summary judgment for discriminatory arrest 23 in violation of the Equal Protection clause in the 14th Amendment. Plaintiff allege that the undisputed 24 facts support summary judgment on their 1983 claim for unreasonable seizure based on lack of probable 25 1 26 People v. Ramey, 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 637 (1976) (warrantless arrests within the home are per se unreasonable in the absence of exigent circumstances). 27 2 28 The status of the prosecutions was provided in Defendants’ opposition. (See Doc. 38, Opposition p.2.) Neither plaintiff nor defendant provided evidence of the prosecutions. 2 1 cause for arrest. (Doc. 35, Moving papers p.13.) Plaintiffs allege claims a violation of equal protection 2 in that they have been discriminatorily prosecuted because the sheriff’s department never made an arrest 3 for male/female lewd conduct, despite such conduct occurring. (Doc. 35, Moving papers p.13-14.) 4 Plaintiffs argue that the Sheriff’s department never used decoys to target male/female non-monetary 5 sexual conduct. (Doc. 35, Moving papers p.17.) Plaintiffs argue that their arrest are invidious because 6 the arrests bear no relationship to legitimate law enforcement objectives. (Doc. 35, Moving papers p. 7 21.) 8 Defendants contend that officers had probable cause to arrest Plaintiffs and that the arrest or 9 prosecution of any person for violation of Penal Code §647(a), (d), was not discriminatory, did not result 10 from any custom or practice intended to disparately impact homosexuals, and was not based on any 11 arbitrary classification, such as homosexuality, which would violate equal protection. 12 13 ANALYSIS & DISCUSSION A. Summary Judgment Standard 14 Initially, it is the moving party's burden to establish that there is "no genuine issue of material 15 fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56( c); British 16 Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). 17 Rule 56(e) requires the party against whom the motion is made to “set forth specific facts showing that 18 there is a genuine issue for trial.” Absent such a showing, a properly supported motion for summary 19 judgment may be granted if the court finds it appropriate.” Nilsson, Robbins, et al v. Louisiana 20 Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988). 21 On summary judgment, a court must decide whether there is a “genuine issue as to any material 22 fact.” F.R.Civ.P. 56( c); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. Columbia 23 Broadcast System, 368 U.S. 464, 467 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985). 24 The criteria of “genuineness” and “materiality” are distinct requirements. Anderson v. Liberty Lobby, 25 Inc., 477 U.S. 242, 248 (1986). The requirement that an issue be “genuine” relates to the quantum of 26 evidence the nonmoving party must produce to defeat the summary judgment motion. There must be 27 sufficient evidence “that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 28 477 U.S. at 248. 3 1 “As to materiality, the substantive law will identify which facts are material.” Anderson, 477 2 U.S. at 248. “[A] complete failure of proof concerning an essential element of the non-moving party’s 3 case necessarily renders all other facts immaterial,” and in such circumstances, summary judgment 4 should be granted “so long as whatever is before the . . . court demonstrates that the standard for entry 5 of summary judgment, as set forth in Rule 56( c), is satisfied.” Celotex Corp. v. Catarett, 477 U.S. 317, 6 322 (1986). 7 To establish the existence of a factual dispute, the opposing party need not establish a material 8 issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to 9 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First National Bank 10 of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968); T.W. Elec. Serv. v. Pacific Elec. Contractors 11 Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). The opposing party “must do more than simply show that there 12 is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead 13 a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matasushita 14 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted). The opposing 15 party’s evidence is to be believed and all reasonable inferences that may be drawn from the facts placed 16 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. 17 The court, however, has no duty to search the record, sua sponte, for some genuine issue of 18 material fact; the court may rely entirely on the evidence of the moving party. Guarino v. Brookfield 19 Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). If the motion is based on deposition testimony, 20 the court may rely exclusively on portions highlighted by the moving party and need not comb the 21 deposition to discover conflicting testimony. Guarino v. Brookfield Township Trustees, supra, 980 F.2d 22 at 403. The court is not obligated to consider matters not specifically brought to its attention. Thus, it 23 is immaterial that helpful evidence may be located somewhere in the record. The opposition must 24 designate and reference specific triable facts. Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (DC 25 Cir. 1988). Inferences drawn from the evidence, however, must be viewed in the light most favorable 26 to the nonmoving party. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456, 112 27 S.Ct. 2072, 2077 (1992). 28 4 1 B. When Plaintiff is the Moving Party 2 When plaintiffs are the moving parties, plaintiffs’ burden of proof is: (1) to demonstrate 3 affirmatively (by admissible evidence) that there is no genuine issue of material fact as to each element 4 of its claim for relief, entitling it to judgment as a matter of law; and (2) to demonstrate the lack of any 5 genuine issue of material fact as to affirmative defenses asserted by the defendant. Schwarzer, Tashima 6 & Wagstaffe, Cal. Prac. Guide: Fed Civ. Pro. Before Trial, §14:140 (The Rutter Group 2008). 7 According to this practice guide, plaintiff must establish not only the elements of its claim, by 8 undisputed material facts, but also that the defendants’ affirmative defenses do not raise triable issues 9 of fact. 10 The parties did not cite to any controlling case authority on plaintiff’s burden of proof. See 11 Harper v. Delaware Valley Broadcasters, Inc., 743 F.Supp. 1076 (D.C.Del.1990) (the Court was not 12 precluded from granting summary judgment for plaintiff by the fact that affirmative defenses, which 13 were not addressed by either party in motions for summary judgment, were preserved in the pleadings; 14 defendants failed to point to any specific facts that would raise genuine dispute as to affirmative 15 defenses, on which they would have the burden of proof at trial), affirmed, 932 F.2d 959 (3rd Cir. 1991); 16 Kouba v. Allstate Ins. Co., 523 F.Supp. 148, 160 (D.C.Cal.1981) (plaintiff moved for partial summary 17 judgment on one of defendant’s affirmative defenses - “A plaintiff may, of course, test the sufficiency 18 of a defense by motion for summary judgment [citations omitted]. Where plaintiff seeks summary 19 judgment on the question of liability, the plaintiff must initiate the inquiry by demonstrating that there 20 is no material fact in issue as to the affirmative defense and that it is insufficient as a matter of law”), 21 rev'd on other grounds, 691 F.2d 873 (9th Cir.1982). 22 This Court, however, need not resolve whether plaintiff’s burden includes disproof of each 23 affirmative defense, or merely proof of its own prima facie case. Defendant has raised issues of fact as 24 to plaintiffs’ claims. 25 C. Municipal Liability under Monell 26 Plaintiff filed a civil rights, 42 U.S.C. § 1983 (“Section 1983") action, alleging Fourth and 27 Fourteenth violations of the United States Constitution. Section 1983 “creates a private right of action 28 against individuals who, acting under color of state law, violate federal constitutional or statutory rights.” 5 1 Squaw Valley Development Co. v. Goldberg, 375 F.3d 936, 943 (9th Cir. 2004). 2 1. 3 A local government unit may not be held liable for the acts of its employees under a respondeat 4 superior theory. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018 (1978); 5 Davis v. Mason County, 927 F.2d 1473, 1480 (9th Cir.), cert. denied, 502 U.S. 899, 112 S.Ct. 275 (1991). 6 “[A] local government may not be sued for an injury inflicted solely by its employees or agents. Instead, 7 it is when execution of a government’s policy or custom, whether made by its lawmakers or by those 8 whose edicts or actions may fairly be said to represent official policy, includes the injury that the 9 government as an entity is responsible under §1983.” Monell, at 98 S.Ct. 2038. Thus, the County 10 cannot be liable for the conduct of the officers solely on the basis of respondeat superior. Plaintiffs must 11 show that the officers conduct represents County policy. See City of Canton v. Harris, 489 U.S. 378, 109 12 S.Ct. 1197 (1989) (inadequate police medical training representing a city policy may serve as basis for 13 §1983 case); Pembaur v. City of Cincinnati, 475 U.S. 469, 478-480, 106 S.Ct. 1292 (1986). Standards for Municipality Liability Under Monell 14 One way to show a municipality is liable for violating a constitutional right is to show it acted 15 pursuant to a policy, practice or custom to intentionally deprive plaintiff of a federally protected right. 16 “Only if a plaintiff shows that his injury resulted from a ‘permanent and well-settled’ practice may 17 liability attach for injury resulting from a local government custom.” Thompson v. City of Los Angeles, 18 885 F.2d 1439, 1444 (9th Cir. 1989). “[O]fficial policy must be ‘the moving force of the constitutional 19 violation’ in order to establish the liability of a government body under § 1983.” Polk County v. 20 Dodson, 454 U.S. 312, 326, 102 S.Ct. 445 (1981) (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018); see 21 Rizzo v. Goode, 423 U.S. 362, 370-377, 96 S.Ct. 598 (1976) (general allegation of administrative 22 negligence fails to state a constitutional claim cognizable under section 1983). “The existence of a 23 policy, without more, is insufficient to trigger local government liability under section 1983.” Oviatt 24 v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992). A “plaintiff must show that the municipal action was 25 taken with the requisite degree of culpability and must demonstrate a direct causal link between the 26 municipal action and the deprivation of federal rights.” Bryan County Commissioners v. Brown, 520 27 U.S. 397, 404, 117 S.Ct. 1382 (1997). A plaintiff must demonstrate that a defendant’s policy was 28 “closely related to the ultimate injury.” City of Canton, 489 U.S. at 391, 109 S.Ct. at 1206. 6 1 A second way to hold a local government entity liable for failing to act to preserve a 2 constitutional right is for a plaintiff to demonstrate that the official policy evidences a deliberate 3 indifference to plaintiff’s constitutional rights. Oviatt, 954 F.2d at 1477; See Gibson v. County of 4 Washoe, 290 F.3d 1175, 1185 (9th Cir. 2002) (setting forth the “two paths” to municipal liability), cert. 5 denied, 537 U.S. 1106 (2003). Such indifference arises when the need for more or different action “is 6 so obvious, and the inadequacy [of the current procedure] so likely to result in the violation of 7 constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately 8 indifferent to the need.” City of Canton, 489 U.S. at 390, 109 S.Ct. at 1205; Oviatt, 954 F.2d at 1478. 9 A municipality’s failure to train may create liability where plaintiff shows (1) he was deprived of a 10 constitutional right, (2) the County had a training policy that amounts to deliberate indifference to the 11 constitutional rights of the persons' with whom its police officers are likely to come into contact; and 12 (3) his constitutional injury would have been avoided had the County properly trained those officers. See 13 Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001); Price v. Sery, 513 F.3d 962, 973 (9th Cir. 14 2008) (deliberate indifference is a high burden laid out in Canton v. Harris.) 15 2. 16 Plaintiffs allege that the officers were inadequately trained as to the elements of lewd conduct. 17 Plaintiffs argue that the officers were not trained that a third person must be present, who may be 18 offended, before a crime of lewd conduct has been committed. Plaintiffs argue that using decoys leads 19 the suspect to reasonably believe that the conduct is not likely to offend the observer. (Doc. 35, Moving 20 papers p. 4.) Plaintiffs argue that it is “negligence per se” for the County to conduct a decoy operation 21 without training their officers in the necessary elements of the crime of lewd conduct. (Doc. 35, Moving 22 papers p. 4.) Failure to Adequately Train 23 Here, defendants have raised issues of fact as to whether the officers were adequately trained. 24 See Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (the County had a training policy that 25 amounts to deliberate indifference to the constitutional rights of the persons' with whom its police 26 officers are likely to come into contact). Sergeant Ko supervised the undercover Operation at Roeding 27 Park. Sergeant Ko was familiar with the elements of the crime of lewd conduct from his experience and 28 training, and from his discussion with two District Attorneys, as well as others. He instructed his 7 1 undercover officers that the crime required lewd conduct occurring within the presence of others. (Doc. 2 38-9, Decl. Ko ¶2-3.) Officers Asselin, Wiens and Ko were aware that an element of the crime was the 3 possible presence of someone who might be offended by the conduct. (Doc. 38-9, Ko Decl. ¶3; Doc. 4 38-10, Asselin Decl. ¶5; Doc. 38-12 Wiens Decl. ¶4.) Thus, the evidence shows that the officers were 5 aware that an element to the offense was the presence of a third party. In addition, defendants represent 6 evidence that the officers involved in the operation received instruction in the law prohibit harassment 7 and discrimination based upon sexual orientation. (Doc. 38-9, 38-12, 38-10, respectively, Ko Decl. ¶7; 8 Wiens Decl. ¶9, and Asselin Decl. ¶4.) An inference a reasonable jury could conclude form this 9 evidence is that the officers and the County did not target homosexual activity. 10 Further, the officers engaged in the undercover operation are POST certified. California's Peace 11 Officer Standards and Training (“POST”) regulations, are promulgated under California Penal Code § 12 13510. These rules establish “minimum standards for training of police officers and other peace officers 13 in California.” See Cal.Penal Code § 13510(a). Officer Asselin testified he had received 771 hour Basic 14 POST training and possesses POST basic, intermediate and advanced certificates. (Asselin Decl. ¶3.) 15 Officer Asselin testified he also has been to vice investigation training, has in-service training, has 16 reviewed old reports on lewd conduct and was knowledgeable about the County’s policy against 17 discrimination and harassment based upon sexual orientation. (Doc. 38-10, Asselin Decl. ¶3.) Officer 18 Wiens similarly testifies. He has been POST training, including undercover operations, and has POST 19 Basic and Intermediate certificates. He has received in service training and participated in undercover 20 operations for investigation of lewd acts on more than 25 occasions. (Doc. 38-12, Weins Decl. ¶2.) 21 Thus, the evidence suggests a level of training which is consistent with adequate training. 22 Plaintiff argues that the POST training was inadequate. (Doc. 41, Reply Brief p. 4.) Here, 23 however, there is a factual dispute as to the training of the officers. Given that they received POST 24 training, their supervisor knew of the elements of lewd conduct and so instructed the officers on the 25 elements, defendants have raised issues of fact. A reasonable jury could conclude from the evidence 26 currently before the Court that the officers were trained in the elements of the crime of lewd conduct. 27 3. 28 Plaintiffs argue that their arrests were without probable cause because the decoy officers Probable Cause for Arrest 8 1 "engaged in enticing conduct designed to gain the confidence of suspects and to assure them that they 2 (the decoys) were not likely to be offended by sexual conduct in their presence." (Doc. 35, Moving 3 Papers p. 18.) Plaintiffs argue that the element of lewd conduct of “presence of a person likely to be 4 offended” can never occur in the decoy operation because the decoy affirmatively engages the suspect 5 and gains the confidence of the suspect and therefore cannot be offended. (Doc. 41, Reply Brief, p.4.) 6 Probable cause exists when, under the totality of the circumstances known to the arresting officers 7 (or within the knowledge of the other officers at the scene), a prudent person would believe the suspect 8 had committed a crime. Dubner v. City and County of San Francisco, 266 F.3d 959, 966 (9th Cir. 2001). 9 Probable cause to arrest exists when “officers have knowledge or reasonably trustworthy information 10 sufficient to lead a person of reasonable caution to believe an offense has been or is being committed by 11 the person being arrested.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007) (citing Beck v. 12 Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)), cert. denied, 128 S.Ct 335 (2007). Courts 13 look to “the collective knowledge of all the officers involved in the criminal investigation.” United States 14 v. Ramirez, 473 F.3d 1026, 1032 (9th Cir.2007) (citation and quotation marks omitted). Where the facts 15 or circumstances surrounding an individual's arrest are disputed, the existence of probable cause is a 16 question for the jury. Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008). 17 Defendants have raised an issue of fact as to whether probable cause existed for the plaintiffs’ 18 arrests. First, defendants present evidence that none of the named defendants made the arrests of any of 19 the plaintiffs. The crime reports were prepared by Deputy Kevin Wiens in connection with the arrests 20 of Martin Coldwell, Robert Turner, and David Durbin. David Durbin was arrested without a warrant at 21 the Roeding Park. Officer Asselin prepared the crime report in connection with the arrest of Stephen 22 Lake. Plaintiffs do not present any facts to dispute defendant’s evidence that Officers Wiens and Asselin 23 accurately reported their observations. (Wiens Decl. ¶7; Asselin Decl. ¶6.) 24 The dispute, from plaintiffs view, centers on whether the presence of the decoy officers negated 25 an element of the crime of lewd conduct such that plaintiffs should not have been arrested. Plaintiffs 26 argue that the presence of the decoys negated the element that someone would be offended by the 27 conduct. The Court need not address at this point the applicable element of the crime because the 28 disputed evidence shows that the decoy officers knew during the Operation that “the presence of a third 9 1 party who might be offended by the conduct” was required. (Asselin Decl. ¶5, Wiens Decl. ¶4.) The 2 facts presented by defendants show that lewd conduct was conducted in public, with potentially other 3 persons present. The Operation was initially undertaken to discourage or eliminate lewd conduct 4 occurring in the part in and rest rooms, in areas near where children frequented. For instance, defendant 5 Wiens testified that plaintiff Coldwell unzipped his pants while in the open next to a park roadway, near 6 where people were located. (Doc. 38-11, Wiens Decl. ¶10.) Defendant Asselin testified that plaintiff 7 Lake asked to have sex in the park, where families were located. (Doc. 38-10, Asselin Decl. ¶7.) The 8 evidence raises issues of fact because the decoy, himself, is not the person “likely to be offended.” The 9 person likely to be offended is inferred from the totality of the circumstances that the purported lewd 10 conduct was occurring in the park, where families are located and where potential third persons could 11 view the conduct. See People v. Lake, 156 Cal.App.4th Supp. 1, 9, 67 Cal.Rptr.3d 452, 458 (2007) (the 12 court finds the statute requires the People prove beyond a reasonable doubt that the defendant knew or 13 reasonably should have known that someone was likely to be present who could be offended by the 14 requested conduct.) Probable cause is a question of fact because defendants present evidence of the 15 families and other persons in the park. Where the facts or circumstances surrounding an individual's arrest 16 are disputed, the existence of probable cause is a question for the jury. Harper v. City of Los Angeles, 17 533 F.3d 1010, 1022 (9th Cir. 2008) (conclusive evidence of guilt is of course not necessary to establish 18 probable cause.) 19 4. 20 Defendants also argue that summary judgment should be denied because of their qualified 21 immunity defense. The deputies contend that they are entitled to qualified immunity in that they 22 reasonably believed their conduct was constitutionally permissible. Qualified Immunity 23 Qualified immunity protects section 1983 defendants “from liability for civil damages insofar as 24 their conduct does not violate clearly established statutory or constitutional rights of which a reasonable 25 person would have known.” Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 943 (9th Cir. 2004). The 26 “heart of qualified immunity is that it spares the defendant from having to go forward with an inquiry into 27 the merits of the case. Instead, the threshold inquiry is whether, assuming that what the plaintiff asserts 28 the facts to be is true, any allegedly violated right was clearly established.” Kelley v. Borg, 60 F.3d 664, 10 1 666 (9th Cir. 1995). 2 The issue of qualified immunity is “a pure question of law.” Elder v. Holloway, 510 U.S. 510, 3 514, 114 S.Ct. 1019 (1994); Romero v. Kitsap County, 931 F.2d 624, 627-628 (9th Cir. 1991). The Ninth 4 Circuit has explained: 5 6 7 8 9 10 Under Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the first step in the qualified immunity analysis is “to consider the materials submitted in support of, and in opposition to, summary judgment in order to decide whether a constitutional right would be violated if all facts are viewed in favor of the party opposing summary judgment.” Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001). “If no constitutional violation is shown, the inquiry ends.” Cunningham v. City of Wenatchee, 345 F.3d 802, 810 (9th Cir. 2003). On the other hand, if “the parties’ submissions” create a triable issue of whether a constitutional violation occurred, the second question is “whether the right was clearly established.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. A constitutional right is clearly established when “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. 2151. 11 12 Squaw Valley, 375 F.3d at 943 (bold added). 13 The “contours” of the allegedly violated right “must be sufficiently clear that a reasonable official 14 would understand that what he is doing violates that right. . . . [I]n the light of preexisting law the 15 unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039 (1987). 16 “The question is what the officer reasonably understood his powers and responsibilities to be, when he 17 acted under clearly established standards.” Saucier v. Katz, 533 U.S. 194, 208, 121 S.Ct. 2151 (2001). 18 “If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the 19 immunity defense.” Saucier, 533 U.S. at 205, 121 S.Ct. 2151. “Qualified immunity shields an officer 20 from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends 21 the law governing the circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 22 596, 599 (2004). 23 “If the law did not put the officer on notice that his conduct would be clearly unlawful, summary 24 judgment based on qualified immunity is appropriate.” Saucier, 533 U.S. at 202, 121 S.Ct. at 2156-2157. 25 However, determination of qualified immunity on summary judgment/adjudication is improper if there 26 are disputes “as to the facts and circumstances.” See Acosta v. City and County of San Francisco, 83 F.3d 27 1143, 1147, n. 10 (9th Cir.), cert. denied, 519 U.S. 1009, 117 S.Ct. 514 (1996). 28 This Court has not been asked to decide whether qualified immunity exists for the officers in this 11 1 case. Defendants are not the moving parties. Rather, defendants raise qualified immunity as an 2 affirmative defense. Plaintiff, therefore, had the burden of negating the elements of the affirmative 3 defense. Plaintiff failed to present evidence which negates the affirmative defense. Accordingly, issues 4 of fact exist as to the officers’ immunity. 5 D. Discriminatory Enforcement of the Lewd Conduct Statutes 6 Plaintiffs contend that they are entitled to summary judgment on their claim for discriminatory 7 enforcement/prosecution of the lewd conduct statute in violation of the Equal Protection Clause. (Doc. 8 35, Moving papers, p.13-17.) Plaintiff contend that defendants did not enforce or prosecute the lewd 9 conduct statutes for male/female lewd conduct. (Id.) Plaintiffs argue that strict scrutiny applies to the 10 statutes and enforcement procedures because sexual orientation is a “suspect class” under a California 11 case.3 For purposes of this motion, the Court will accept that sexual orientation is a suspect class. 12 1. Standards of Proof of Equal Protection Violations 13 To state a viable Equal Protection claim under Section 1983, “a plaintiff must show that the 14 defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership 15 in a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Proof of racially 16 discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. City of 17 Cuyahoga Falls, Ohio v. Buckeye Community Hope Foundation, 538 U.S. 188, 194, 123 S.Ct. 1389, 1394 18 (2003). 19 Official action will not be held unconstitutional solely because it results in a racially 20 disproportionate impact. “Disproportionate impact is not irrelevant, but it is not the sole touchstone of 21 an invidious racial discrimination.” See Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049 22 (1976) (holding that disparate impact is insufficient for an Equal Protection Clause violation claim). 23 Indeed, proof of discriminatory intent is required to show that state action having a disparate impact 24 violates the Equal Protection Clause. See Village of Arlington Heights v. Metropolitan Housing Dev. 25 Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). 26 27 28 3 Plaintiffs cite to “In Re Marriage Cases, S147999.” Plaintiffs fail to provide a proper legal citation to the case, do not provide a table of authorities and do not include a copy of the case in the Exhibits, attached to the motion. It is not for this Court to search out the authorities upon which the plaintiffs rely. 12 1 "A facially neutral law ... warrants strict scrutiny only if it can be proved that the law was 2 'motivated by a racial purpose or object,' or if it is 'unexplainable on grounds other than race.' " Hunt v. 3 Cromartie, 526 U.S. 541, 548, 119 S.Ct. 1545, 1549 (1999) (presented statistical and demographic 4 evidence on racial impact of re-districting). “Analysis of an equal protection claim alleging an improper 5 statutory classification involves two steps. Appellants must first show that the statute, either on its face 6 or in the manner of its enforcement, results in members of a certain group being treated differently from 7 other persons based on membership in that group.” United States v. Lopez-Flores, 63 F.3d 1468, 1472 8 (9th Cir.1995), cert. denied, 516 U.S. 1982 (1996). “Second, if it is demonstrated that a cognizable class 9 is treated differently, the court must analyze under the appropriate level of scrutiny whether the 10 distinction made between the groups is justified.” Lopez-Flores, 63 F.3d at 1472. 11 2. 12 Plaintiffs argue that the use of decoys to target homosexual, but not heterosexual, conduct is 13 discriminatory. (Doc. 35, Moving papers p. 17.) Plaintiffs argue that only male decoys were used and 14 placed where males cruise looking for males. Female decoys were not used and placed where men and 15 women were located. Decoys Target Homosexuals 16 Defendants, however, have raised issues of a fact as to use of male/female decoys. (Doc. 38, 17 Opposition p.14.) Defendants present evidence that a female vice detective participated in the decoy 18 operation, and entered women’s restrooms to look for lewd conduct. (Doc. 38-12, Wiens Decl. ¶9.) 19 Officer Andrea McCormick was assigned to the operation, drove around in the park to look for lewd 20 conduct and entered bathrooms looking for lewd conduct. (Id.) Defendants present evidence that the 21 undercover officers where instructed to look for any lewd conduct, including male/female. (Doc. 38-9, 22 Ko Decl. ¶6.) The evidence provided is that the Operation was designed to uncover all lewd conduct in 23 Roeding Park, not just male/male, but lewd conduct between females and males was not observed. (See 24 e.g., Doc 38-9, Ko Decl. ¶6.) Thus, defendants have presented issues of fact as to discriminatory 25 enforcement of the lewd conduct laws in the Roeding Park operation. 26 Plaintiff argue that a statistical analysis of all arrests for a given period of time show 27 discrimination. (Doc. 35, Moving papers p. 20.) Plaintiffs, however, do not present the statistical 28 evidence. Plaintiffs argue that none of the defendants made an arrest for male/female lewd conduct and 13 1 that a complaint log for Roeding Park showed examples of complaints of male/female lewd conduct.4 2 (Doc. Stmt Undisputed Fact no. 29-3.) 3 male/female lewd conduct occurred in the park during the Operation. Thus, plaintiffs have failed to carry 4 their burden and defendants have raised questions of fact. Defendants, however, have provided evidence that no 5 3. 6 Plaintiffs also argue that invidious discrimination occurred because the use of decoys. Plaintiffs 7 argue that use of decoys to arrest for lewd conduct is invidious because the decoy attempts to gain the 8 confidence of suspects. (Doc. 35, Moving Papers p. 22.) By using a decoy, plaintiff argues that the 9 “observed conduct becomes legal.” (Id.) Plaintiffs argue that the arrests are invidious in that they bear 10 Invidious Use of Decoys no relationship to legitimate law enforcement objectives. 11 Here, the plaintiffs’ claim of discriminatory prosecution goes not to the nature of the charged 12 offense, but to a defect of constitutional dimension in the initiation of the prosecution. Baluyut v. 13 Superior Court, 12 Cal.4th 826, 831, 50 Cal.Rptr.2d 101, 104 (1996). To establish discriminatory 14 enforcement, the plaintiff must prove: (1) 'that he has been deliberately singled out for prosecution on the 15 basis of some invidious criterion'; and (2) that 'the prosecution would not have been pursued except for 16 the discriminatory design of the prosecuting authorities.' " Baluyut v. Superior Court, 12 Cal.4th at 831, 17 on which plaintiffs relies, holds that a defendant must show that "he has been deliberately singled out for 18 prosecution on the basis of some invidious criterion" in order to prove discriminatory prosecution. Id. 19 (citation and internal quotation marks omitted). That case defines "invidious" as "unrelated to legitimate 20 law enforcement objectives." Id. at 6. Additionally, Baluyut states that "[u]nequal treatment which results 21 simply from laxity of enforcement or which reflects a nonarbitrary basis for selective enforcement of a 22 statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement." 23 Here, there is an issue of fact as to whether the decoy operation was unrelated to legitimate law 24 enforcement objectives. Indeed, defendants present evidence that the Operation was related to law 25 enforcement objectives. The Operation was intended to eradicate lewd conduct at Roeding Park near 26 27 28 4 Plaintiffs do not attach the “complaint log” as evidence, but cites to “Transcript of the Murguia Motion.” (Doc. 36, Stmt Undisputed Fact no 30.) No transcript is attached to any exhibit or otherwise identified. Accordingly, this evidence does not establish any statistical proof. 14 1 bathrooms and other facilities near park attractions frequented by children. (Doc. 38-9, Ko Decl. ¶7.) 2 Defendants present evidence that the operation was instituted to look for lewd conduct, regardless of the 3 gender of the participants. (Doc. 38-9, Ko Decl. ¶5.) The undercover officers where not instructed to 4 limit their investigation activities to males. (Id.) Lewd male/female conduct was not observed. (Id.) 5 Accordingly, defendants have raised issues of a fact as to legitimate purpose for the law enforcement 6 operation. 7 4. 8 Plaintiffs argues that using a decoy to lure a person into a crime rises to a level of constitutional 9 violation. (Doc. 41, Reply p.1-3.) Plaintiffs offer no authority for this proposition. The purpose of the 10 motion before the Court is to determine whether factual issues exist as to the claims presented by 11 plaintiff. As noted infra, this Court has found factual issues upon which a reasonable jury could decide 12 in defendants’ favor. The court must not weigh the evidence and must draw all reasonable inferences 13 in favor of the nonmoving party. See Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997). Decoys Luring Suspects into Lewd Conduct 14 CONCLUSION 15 For all the foregoing reasons, the motion for summary judgment or in the alternative partial 16 summary judgment is DENIED. 17 IT IS SO ORDERED. 18 Dated: b9ed48 January 26, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 15
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