Jackson et al v. City Of Pittsburg et al, No. 3:2009cv01016 - Document 119 (N.D. Cal. 2010)
Court Description: ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT by Judge Alsup granting in part and denying in part 57 Motion for Summary Judgment (whalc2, COURT STAFF) (Filed on 6/8/2010)
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Jackson et al v. City Of Pittsburg et al Doc. 119 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 12 13 14 15 16 17 18 19 20 21 v. CITY OF PITTSBURG, AARON L. BAKER, individually and in his official capacity as Chief of Police of the City of Pittsburg Police Department, G. LOMBARDI, individually and as an officer of the City of Pittsburg Police Department (Badge # 275), C. SMITH, individually and as an officer of the City of Pittsburg Police Department (Badge # 285), P. DUMPA, individually and as an officer of the City of Pittsburg Police Department (Bade # 291), WILLIAM BLAKE HATCHER, individually and as an officer of the City of Pittsburg Police Department (Badge # 274), SARA SPIRES, individually and as an officer of the City of Pittsburg Police Department, and DOES 1–100, inclusive, 24 25 26 27 28 ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT Defendants. / 22 23 No. C 09-01016 WHA Plaintiffs, 11 For the Northern District of California United States District Court 10 FREDERICK JACKSON, ASHLEY NICOLE JACKSON, a minor, BRIANA FREDRANIQUE ANNETTE JACKSON, a minor, and SHAWNA YVETTE MARTIN, INTRODUCTION In this civil rights action, defendants move for summary judgment. Their motion is GRANTED IN PART AND DENIED IN PART. STATEMENT This action arises from a police action on March 30, 2008, in front of the residence of plaintiff Shawna Martin in Pittsburg, California. The following facts are uncontroverted. Plaintiff Frederick Jackson resided next door to plaintiff Martin. Plaintiffs Ashley Jackson and Dockets.Justia.com 1 Briana Jackson are Frederick Jackson’s two minor teenage daughters (Lagos Decl. Exh. A at 2 9–10). During the evening of March 30, a party was held at the adjacent residences of plaintiffs 3 Jackson and Martin (Rooney Decl. Exh A at 52–53). A fight broke out between two party- 4 goers, Barryton “Chip” Davis and Ron Martin, Jr. (id. at 63). Martin hit Davis in the head with 5 a bottle and knocked him unconscious (Rooney Decl. Exh. B at 54). Plaintiff Frederick Jackson 6 then chased Martin down the street (Rooney Decl. Exh. A at 63). Plaintiff Frederick Jackson 7 and Martin shouted at each other, and Frederick Jackson kicked and broke a window on 8 Martin’s car (id. at 64, 96). For the Northern District of California United States District Court 9 Neighborhood visitor Cynthia Gutierrez called the police (Rooney Decl. Exh. O at 42). 10 Officers from the Pittsburg Police Department responded to the emergency call to their dispatch 11 (Rooney Decl. Exh F at 15). The dispatcher told them that two men were fighting and reported 12 to the responding officers that there was a “man down” and a shirtless African-American male 13 possibly armed with a knife (ibid.; Rooney Decl. Exh. I at 11). 14 The first officers to arrive at the scene were Officer Hatcher and Sergeant Brown 15 (Rooney Decl. Exh. E at 14–15). They requested immediate cover (Rooney Decl. Exh. I at 91). 16 Officer Brown was holding his shotgun and Sergeant Brown was holding his handgun (ibid.). 17 Officer Dumpa arrived next, followed by Officers Buck, Spires, Smith and Lombardi (Lagos 18 Decl. Exh H at 6). Sergeant Brown was the supervising officer in charge at the scene. 19 It is undisputed that plaintiff Frederick Jackson was the only shirtless African-American 20 male on the scene when the officers arrived. The parties differ in their accounts of what 21 follows, but at this stage of the litigation, the facts are considered in the light most favorable to 22 the non-moving party. Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 2005). When the 23 officers arrived, they encountered at least nine people in the vicinity of the Jackson and Martin 24 residences. At her deposition, plaintiff Ashley Jackson identified at least herself, Frederick 25 Jackson, Briana Jackson, Danielle Lynch, Shawna Martin in the front yard area, as well as the 26 injured Chip Davis who was still lying on the sidewalk (Lagos Decl. Exh. B at 40). Porchia 27 Payton was also outside in the front yard area of the residences (Lagos Decl. Exh. E at 71), as 28 2 1 was Cynthia Gutierrez (Lagos Decl. Exh. F at 56). Plaintiff Shawna Martin testified at her 2 deposition that her mother was also outside (Lagos Decl. Exh. D at 83). 3 4 officers had a shotgun, he immediately threw up his hands (Lagos Decl. Exh. A at 74). The 5 officer told him not to move and to keep his hands up (ibid.). He responded, “Man, I’m not 6 going to move. My hands is up. I ain’t got nothin’. I ain’t did nothin’” (ibid.). He also stated, 7 “Man, y’all watch him, man. He look like he gonna try to shoot a nigger” (ibid.). 8 At that point, plaintiff Ashley Jackson started screaming, “Don’t y’all do nothin’ to my 9 daddy. Don’t ya’ll hurt my daddy. Don’t do nothin’ to my daddy. My daddy ain’t did nothin’” 10 (id. at 75). According to plaintiff Frederick Jackson, his daughter Ashley kept screaming (ibid.) 11 For the Northern District of California United States District Court Plaintiff Frederick Jackson testified at his deposition that when he saw that one of the According to plaintiff Shawna Martin, after the police told everyone to put up their 12 hands, she put her hands up but kept yelling (Lagos Decl. Exh. D at 82). She yelled for people 13 to “[j]ust shut up and calm down,” because everyone in the vicinity was yelling (ibid.). Plaintiff 14 Martin also continued to argue with her mom, who was telling her to be quiet (ibid.). 15 At that point, one of the officers told plaintiff Ashley Jackson to “shut the fuck up” 16 (Lagos Decl. Exh. A at 75). Plaintiff Frederick Jackson became really upset when the officer 17 used profanity with his daughter (id. at 86). With his hands still in the air and not moving, he 18 stated to the officer, “Man, you don’t tell my daughter to shut the fuck up. You shut the fuck 19 up, okay?” (id. at 75–76). Officer Hatcher attempted to put handcuffs on plaintiff Frederick 20 Jackson (Lagos Decl. Exh. B at 52). The officer put plaintiff Frederick Jackson’s left hand 21 behind his back, while his right hand was behind his head (id. at 52–53). Another officer 22 moved in front of plaintiff Frederick Jackson and said, “Well, didn’t my partner tell you to shut 23 the fuck up. If you don’t shut the fuck up, I’m gonna taze you” (Lagos Decl. Exh. A at 75, 87). 24 Plaintiff Frederick Jackson responded by saying, “Well, fuck you, too” (id. at 75). 25 In trying to put handcuffs on plaintiff Frederick Jackson, Officer Hatcher attempted to 26 move him in order for him to turn. At that point, according to plaintiff Frederick Jackson’s 27 deposition testimony, plaintiff’s body inadvertently “probably either nudged [Officer Hatcher] 28 or something” (id. at 83–84). 3 1 2 Jackson (Rooney Decl. Exh. F at 33, 112, 115; Exh. G at 46–47, 50, 61; Exh. H at 27, 40). 3 Plaintiff was standing up on two feet when he was first tased (Lagos Decl. Exh. B at 53). When 4 he was hit by the first taser, he immediately folded up and fell face first to the sidewalk (Lagos 5 Decl. Exh. A at 87–88, 95). Plaintiff felt the first taser from the front, then felt an additional 6 taser from behind and started flapping harder (id. at 88). For the Northern District of California 7 United States District Court Officers Lombardi, Smith and Dumpa then discharged their tasers at plaintiff Frederick Each time a taser was fired, it discharged electricity for a five second cycle (Lagos Decl. 8 Exh. M at 18). Dataport downloads of the taser devices indicate when and how many times 9 each taser was discharged, but not the order in which the officers tasered plaintiff because the 10 tasers’ internal clocks were not correlated to each other in true time (Lagos Decl. Exh. Q). 11 Officer Dumpa discharged her taser once. Officer Lombardi discharged his taser once in the air 12 and once into plaintiff. Officer Smith discharged his taser twice into plaintiff, with a delay of 13 six seconds between each five-second cycle (ibid). In summary, plaintiff was tased a total of 14 four times: the first three times in quick succession by Officers Dumpa, Lombardi and Smith, 15 and then once more by Officer Smith after a delay of six seconds. 16 Police officers ordered the crowd to stay back, calm down and be quiet (Lagos Decl. 17 Exh. B at 86). Plaintiff Shawna Martin admitted at her deposition that she was “disobeying the 18 female officer’s [Spires] commands” by continuing to argue with her mother (Rooney Decl. 19 Exh. B at 121). She was subsequently handcuffed and placed in a police car by Officer Spires, 20 which she admitted that she “deserved” (ibid.). She stated at her deposition that she did not 21 “have any dispute or argument with the fact that [she was] handcuffed and placed in a police car 22 that evening” (id. at 122). The handcuffs, however, were placed on her “really, really tight” (id. 23 at 96). She stated that she did not, however, suffer any physical injuries (id. at 116). 24 Despite police commands to be quiet, plaintiff Ashley Jackson cried and said, “Why did 25 you all tase my daddy. He didn’t do nothing” (Lagos Decl. Exh. B at 58) and “What the fuck 26 are you doing with my daddy, he didn’t do shit” (Lagos Decl. Exh. D at 96). One of the police 27 officers took her to a police car and threw her on the car (Lagos Decl. Exh. B at 58–59). She 28 4 1 was then handcuffed and detained (not arrested) for interfering with the police officers’ 2 performance of their duties (ibid.; Lagos Decl. Exh. D at 88). 3 4 a police officer (Rooney Decl. Exh. E at 61, Exh. B at 116, Exh. D at 83). According to 5 plaintiff Martin, plaintiff Frederick Jackson was slammed against the window of the police car 6 in which she was detained (Rooney Decl. Exh. D at 101). 7 For the Northern District of California Plaintiff Briana Jackson was not detained or touched by police officers during the March 8 30 incident (Lagos Decl. Exh. P at 76). She witnessed the tasering and arrest of her father and 9 the detention of her sister and plaintiff Martin. 10 United States District Court Plaintiff Frederick Jackson was subsequently arrested for resisting arrest and battery on Sometime within a week or so of the March 30 incident, plaintiff Frederick Jackson and 11 plaintiff Briana Jackson’s cousin were parked in a car across the street from their home and 12 were approached by the same police officer who during the March 30 incident had used 13 profanities with plaintiffs and who had tased plaintiff Frederick Jackson. The officer said that 14 they could not park there (Lagos Decl. Exh. C at 92). Plaintiff Frederick Jackson disagreed that 15 they could not park there, and said to the police officer, “What, you going to try and tase me 16 again?” (ibid.). The officer replied, “umm, well, I can do it again” (ibid.). Following this 17 incident, police officers started driving by every other day and making comments to plaintiffs 18 (id. at 98). 19 20 * * * Plaintiffs’ first amended complaint contains twelve claims, including (1) violation of 21 civil rights under California Civil Code § 52.1 against all defendants, (2) violation of civil rights 22 under California Civil Code § 51.7 against all defendants, (3) battery against defendants 23 Lombardi, Smith, Dumpa, Hather and Spires, (4) intentional infliction of emotional distress 24 against all defendants, (5) negligence against all defendants, (6) negligence per se against 25 defendants City of Pittsburg, Lombardi, Smith, Dumpa, Hatcher and Spires, (7) negligent 26 selection, training, retention supervision, investigation and discipline against defendants City of 27 Pittsburg and Baker, (8) respondeat superior against defendant City of Pittsburg, (9) violation of 28 42 U.S.C. 1983 and 28 U.S.C. 1343 against all individual defendants, (10) injunctive and 5 1 declaratory relief pursuant to Monell against defendant City of Pittsburg, (11) false 2 imprisonment and false arrest against defendants Lombardi and Spires, and (12) conspiracy 3 against all defendants. In their opposition to defendants’ motion for summary judgment, 4 plaintiffs withdraw their sixth claim (for negligence per se) (Opp. at 17). ANALYSIS For the Northern District of California United States District Court 5 6 Summary judgment must be granted under FRCP 56 when “the pleadings, the discovery 7 and disclosure materials on file, and any affidavits show that there is no genuine issue as to any 8 material fact and that the movant is entitled to judgment as a matter of law.” A district court 9 must determine, viewing the evidence in the lights most favorable to the nonmoving party, 10 whether there is any genuine issue of material fact. Giles v. General Motors Acceptance Corp., 11 494 F.3d 865, 872 (9th Cir. 2007). A genuine issue of fact is one that could reasonably be 12 resolved, based on the factual record, in favor of either party. A dispute is “material” only if it 13 could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 14 477 U.S. 242, 248–49 (1986). 15 1. 16 SECTIONS 52.1 AND 1983. Plaintiffs’ first claim alleges that the individual defendants used excessive force in 17 detaining them. It is brought under California Civil Code §52.1, which allows relief “against 18 anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an 19 individual’s exercise or enjoyment of rights secured by federal or state law.” Jones v. Kmart 20 Corp., 17 Cal.4th 329, 331 (1998). Because the elements of plaintiffs’ Civil Code §52.1 21 excessive force claim are essentially identical to those of their ninth claim brought under 42 22 U.S.C. 1983, the discussion of a plaintiff’s federal constitutional claim resolves both the federal 23 and state constitutional claims. 24 “Determining whether the force used to effect a particular seizure is reasonable under 25 the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on 26 the individual’s Fourth Amendment interests against the countervailing governmental interests 27 at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989). First, the gravity of the particular 28 intrusion on Fourth Amendment interests is assessed by evaluating the type and amount of force 6 1 inflicted. Second, the importance of the government interest at stakes is evaluated, “ including 2 the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of 3 the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by 4 flight.” Ibid. “The reasonableness of a particular use of force must be judged from the 5 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . 6 . .” Id. at 396–97. “In some cases . . . the availability of alternative methods of capturing or 7 subduing a suspect may be a factor to consider.” Smith v. City of Hemet, 349 F.3d 689, 701 (9th 8 Cir. 1994). Third, the gravity of the intrusion is weighed against the government’s interest to 9 determine whether the force used was constitutionally reasonable. Miller v. Clark County, 340 For the Northern District of California United States District Court 10 F.3d 959, 964 (9th Cir. 2003). 11 A. Multiple Taserings Of Plaintiff Frederick Jackson. 12 The type and amount of force inflicted during the March 30 incident was greatest 13 against plaintiff Frederick Jackson, who was tasered by three officers nearly simultaneously. 14 The Ninth Circuit has previously held that use of a taser “was a serious intrusion into the core of 15 the interests protected by the Fourth Amendment: the right to be secure in our persons.” Mattos 16 v. Agarano, 590 F.3d 1082, 1087 (9th Cir. 2010). 17 In Mattos, two officers were dispatched to a home after a fourteen year old minor called 18 the police and said that her parents were engaged in a physical altercation and things were being 19 thrown around. Id. at 1084. When the officers arrived, they encountered the husband, a six- 20 foot-three-inch tall man weighing approximately 200 pounds — intoxicated. The husband 21 admitted that he and his wife had argued by denied they had gotten physical. The officers and 22 the husband stepped inside the doorway of the home, and the wife became situated between the 23 officers and her husband. The husband then became agitated, asked the officers to leave, and 24 began yelling profanities at them. One of the officers entered the hallway to arrest the husband. 25 The wife asked one of the officers why her husband was being arrested and asked that the 26 officers and her husband calm down. She “raised her hands, palms forward at her chest, to keep 27 [the officer] from flushing his body against hers.” Id. at 1085. The officer immediately stepped 28 7 For the Northern District of California United States District Court 1 back and asked if she was touching an officer. The wife again asked everyone to calm down. 2 At that moment, she was tased by the officer. Ibid. 3 Reversing the district court, the Ninth Circuit held that “[i]n this heated situation, [the 4 officer’s] deployment of a Taser did not violate [the wife’s] constitutional rights” and granted 5 summary judgment on her excessive force claim. Id. at 1089. In assessing the importance of the 6 government’s stake at issue, the Ninth Circuit held that the safety of the police officers was “the 7 most important” factor to consider. Id. at 1088. Although the wife’s actions were not a serious 8 crime, the Ninth Circuit found that they carried the potential for a far more serious crime due to 9 her husband’s intoxicated state, the close quarters, the threat posed by the husband to the 10 officers, the volatility of situations involving domestic violence, and the interference she caused 11 — even if inadvertent — to the officers’ ability to arrest her husband. Ibid. The present action is distinguishable from Mattos on several grounds. First, unlike 12 13 Mattos, the present action is not a domestic violence dispute. The Ninth Circuit emphasized in 14 Mattos that “the volatility of situations involving domestic violence makes them particularly 15 dangerous. . . . Indeed, more officers are killed or injured on domestic violence calls than on 16 any other type of call.” Ibid. The element of domestic violence in Mattos therefore raised the 17 risk of immediate threat to the safety of the officers in a way that is not applicable to the present 18 action. 19 Second, the Ninth Circuit emphasized that the officers in Mattos used the taser “only 20 once.” Id. at 1090. In the present action, by contrast, plaintiff Frederick Jackson was tased four 21 times. The fourth tasering was administered by Officer Smith after a six second delay, when 22 plaintiff was already lying face first on the sidewalk and had been tased three times. In these 23 circumstances, there is at least a genuine issue of material fact whether any threat to the officers 24 from plaintiff Frederick Jackson and others present, the severity of plaintiff Frederick Jackson’s 25 crime, and the magnitude of his resistance justified being tased so many times. 26 Third, the plaintiff in Mattos admitted that she raised her hands palms forward at her 27 chest to keep an officer from pushing flush against her. In the present circumstance, plaintiff 28 Frederick Jackson stated that, at most, he inadvertently nudged an officer when the officer 8 1 moved plaintiff’s arms to handcuff him. He claimed that he was otherwise stationary with his 2 hands over his head. For the Northern District of California United States District Court 3 It is true that he directed profanities and loud criticisms at the police officers for their 4 treatment of his daughter Ashley, but “[t]he First Amendment protects a significant amount of 5 verbal criticism and challenge directed at police officers.” Houston v. Hill, 482 U.S. 451, 461 6 (1987). In Houston v. Hill, the appellee shouted at police officers who had approached his 7 friend to “pick on somebody your own size.” Id. at 454. The Supreme Court held that the 8 Constitution does not allow such speech to be made a crime. Id. at 462–63. “The freedom of 9 individuals verbally to oppose or challenge police action without thereby risking arrest is one of 10 the principal characteristics by which we distinguish a free nation from a police state.” Id. at 11 462–63. Even though the police may dislike being the object of abusive language, they are not 12 allowed to punish individuals for conduct that is not only lawful, but which is protected by the 13 First Amendment. Duran, 904 F.2d at 1378. In these circumstances, a reasonable jury could 14 find that the multiple tasing was excessive force. 15 The doctrine of qualified immunity shields the officers from liability for civil damages 16 unless their conduct violated clearly established statutory or constitutional rights of which a 17 reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right 18 is “clearly established” if “it would be clear to a reasonable officer that his conduct was 19 unlawful in the situation he confronted.” Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th 20 Cir. 2003) (emphasis in original). An officer will therefore be entitled to qualified immunity 21 even if he was mistaken in his belief that his conduct was lawful, so long as that belief was 22 reasonable.” Id. at 955. In the present circumstances, a genuine issue of material fact existed as 23 to whether defendant officers’ belief in the legality of tasering plaintiff so many times was 24 reasonable under the circumstances, precluding summary judgment on ground of qualified 25 immunity. At the least, whether the officers may be said to have made a “reasonable mistake” 26 of fact or law may depend on the jury’s resolution of disputed facts regarding the tasering 27 incident. 28 9 1 2 For the Northern District of California first and ninth claims for excessive force arising out of his tasering is DENIED. 3 B. 4 Both plaintiffs Ashley Jackson and Martin were detained for interfering with the police Other Constitutional Rights Claims. 5 officers’ performance of their duties. Plaintiff Martin admitted that she continued to argue with 6 her mother despite police orders to stay back, calm down, and be quiet. California Penal Code 7 Section 148 proscribes resisting, delaying, or obstructing a police officer. She herself stated 8 that she did not contest her detention. Nevertheless she complains that the handcuffs placed 9 upon her were painfully tight, causing a bruise over an approximate half-inch area on her right 10 United States District Court Accordingly, defendants’ motion for summary judgment on plaintiff Frederick Jackson’s wrist (Lagos Decl. Exh. D at 123). 11 The Ninth Circuit has held that overly tight handcuffs may constitute excessive force. 12 Meredith v. Erath, 342 F.3d 1057, 1063-64 (9th Cir.2003). Taking the facts in the light most 13 favorable to plaintiff Martin, a reasonable jury could find that the officers used an unreasonable 14 amount of force in handcuffing her and as a result violated her Fourth Amendment rights. 15 Although plaintiff Martin was disobeying the officers’ commands to be quiet, she did not resist 16 the handcuffing and the need for force was minimal at best. When these events occurred, it was 17 clearly established that the amount of force plaintiff Martin says was used in handcuffing her 18 was excessive, and a reasonable agent would have known that such conduct violated the Fourth 19 Amendment. See, e.g., Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989) (“[T]he officers 20 used excess force on Hansen by unreasonably injuring her wrist and arm as they handcuffed 21 her.”). Defendants are therefore not entitled to qualified immunity on summary judgment as to 22 plaintiff Martin’s excessive force claim. 23 Plaintiff Ashley Jackson was also detained for disobeying the police after being told to 24 stay back, calm down, and be quiet. Plaintiff Ashley Jackson’s disobedience primarily involved 25 criticizing the police for detaining and tasering her father. As noted above, such speech cannot 26 be criminalized. Houston, 482 U.S. at 462–653 (1987). Id. at 462–63. It is true that the police 27 may interfere with personal autonomy if such action is reasonably calculated to promote public 28 safety, but they require legitimate, articulate reasons to do so. Duran, 904 F.2d at 1377. A 10 1 reasonable jury could find that the officers did not have such reasons here when they detained 2 plaintiff Jackson. Plaintiffs Frederick and Ashley Jackson claim that excessive force was used against For the Northern District of California United States District Court 3 4 them because they were each “slammed” against police cars while not resisting the police. 5 Force is justified only when there is a need for it. Blankenhorn v. City of Orange, 485 F.3d 463, 6 471 (9th Cir.2007). At a minimum, factual disputes exist regarding both the level of force that 7 the officers used when placing plaintiffs into the police cars as well as their compliance. 8 Viewing the evidence in the light most favorable to plaintiffs, a reasonable jury could conclude 9 that the officers used excessive force by slamming plaintiffs against police cars. This 10 constitutional violation was clearly established at the time of the March 30 incident, so the 11 officers would not be entitled to qualified immunity. Defendants’ motion for summary 12 judgment on claims one and nine with regards to plaintiffs Shawna Martin and Frederick and 13 Ashley Jackson is therefore DENIED. 14 Plaintiff Briana Jackson does not point to any evidence that she was ever touched by 15 police. Accordingly, she cannot be the victim of excessive force and defendants’ motion for 16 summary judgment on claims one and nine as to her is GRANTED. 17 2. 18 SECTION 51.7. Plaintiffs’ second claim is for violation of California Civil Code § 51.7. The elements of 19 a Section 51.7 claim are that (1) defendant threatened or committed violent acts against 20 plaintiff, (2) defendant was motivated by his perception of plaintiff’s sex, color, race, religion, 21 ancestry, national origin, disability, medical condition, marital status, or sexual orientation,, (3) 22 plaintiff was harmed, and (4) defendant’s conduct was a substantial factor in causing plaintiff’s 23 harm. Austin B. v. Escondido Union School District 149 Cal.App.4th 860, 880–881. In Austin 24 B., the California Court of Appeal affirmed the trial court’s entry of nonsuit on a Section 51.7 25 claim where plaintiffs did not point to any evidence creating even an inference that the 26 defendant’s motivation in harming plaintiffs was his perception of their protected status. Ibid. 27 28 Plaintiffs’ first amended complaint asserts that defendants were motivated here by racial prejudice against plaintiffs who are African American. Nevertheless, as in Austin B., plaintiffs 11 1 do not point to any evidence in opposition to defendants’ motion for summary judgment that 2 could create an inference that defendants’ motivation in harming plaintiffs was defendants’ 3 perception of plaintiffs’ race. Accordingly, defendants’ motion for summary judgment on 4 plaintiffs’ second claim is GRANTED. 5 3. Plaintiffs’ third claim is for battery. California Penal Code § 835(a) entitles an arresting 6 7 or detaining police officer to “use reasonable force to effect the arrest, to prevent escape or to 8 overcome resistance.” A police officer does not commit battery unless unreasonable force is 9 used. Saman v. Robbins, 173 F.3d 1150, 1157, fn. 6 (9th Cir. 1999). Because no evidence shows that Briana Jackson was touched by police officers, 10 11 For the Northern District of California United States District Court BATTERY. defendants’ motion for summary judgment on plaintiffs’ third claim as to her is GRANTED. 12 As discussed above, a reasonable jury could conclude that the use of multiple tasers on 13 plaintiff Frederick Jackson, too-tight handcuffs on plaintiff Shawna Martin, and the slamming 14 of plaintiffs Frederick and Ashley Jackson into police cars constituted unreasonable force. 15 Defendants’ motion for summary judgment on plaintiffs’ third claim as to Shawna Martin and 16 Frederick and Ashley Jackson is therefore DENIED. 17 4. 18 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. Plaintiffs’ fourth claim is for intentional infliction of emotional distress. The elements 19 of the tort of intentional infliction of emotional distress are: “(1) extreme and outrageous 20 conduct by the defendant with the intention of causing, or reckless disregard of the probability 21 of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; 22 and (3) actual and proximate causation of the emotional distress by the defendant's outrageous 23 conduct.” Christensen v. Superior Court, 54 Cal.3d 868, 903 (9th. Cir. 1991). For conduct to 24 be outrageous, it must “be so extreme as to exceed all bounds of that usually tolerated in a 25 civilized community.” Ibid. 26 Plaintiffs Frederick and Ashley Jackson may pursue claims for intentional infliction of 27 emotional distress for allegedly being “slammed” by officers onto police cars. Plaintiff Shawna 28 Martin may pursue a claim based on too-tight handcuffs. Plaintiff Frederick Jackson may 12 1 pursue a claim based on multiple tasings. As to those claims, defendants’ motion for summary 2 judgment as to claim four is DENIED. It is otherwise GRANTED. 3 5. Plaintiffs’ fifth claim is for negligence. Plaintiffs offer several grounds upon which they For the Northern District of California 4 United States District Court NEGLIGENCE. 5 make this claim. First, they argue that defendants were negligent by offensively and non- 6 consensually touching them. Plaintiffs may pursue this claim as it relates to their contention 7 that defendant officers “slammed” plaintiffs Frederick and Ashley Jackson onto police cars, put 8 too-tight handcuffs on plaintiff Shawna Martin, and tasered plaintiff Frederick Jackson multiple 9 times. Defendants’ motion for summary judgment on claim five as to this ground is DENIED. 10 Second, plaintiffs argue that defendants were negligent by falsely arresting or 11 imprisoning them. Because it cannot be held as a matter of law that plaintiffs were lawfully 12 arrested and/or detained, as explained above, defendants’ motion for summary judgment on 13 claim five as to this ground is DENIED. Third, plaintiffs argue that defendants were negligent by lying in the reporting of the 14 15 March 30 incident and conspiring with and wrongfully aiding other defendants in either 16 arresting/battering plaintiff Frederick Jackson, and/or falsely imprisoning/battering the other 17 plaintiffs. In particular, plaintiffs note that the City of Pittsburg Police Department’s written 18 handcuff policy states that when an individual is handcuffed and released without an arrest, a 19 written report of the incident shall be made to document the details of the detention and the 20 need for use of handcuffs (Lagos Decl. Exh X at 142). Nevertheless, the incident reports 21 regarding the March 30 incident do not mention the detentions of plaintiffs Ashley Jackson or 22 Shawna Martin (Lagos Decl. Exh. T). In the light most favorable to plaintiffs, this omission 23 from the police report regarding plaintiffs Ashley Jackson and Shawna Martin could be 24 interpreted by a jury as negligence in light of their claim for excessive force. Defendants’ 25 motion for summary judgment on claim five as to this ground is DENIED. 26 6. 27 28 NEGLIGENT SELECTION, TRAINING, RETENTION AND SUPERVISION. Plaintiffs’ seventh claim is for negligent selection, training, retention and supervision against defendant City of Pittsburg and defendant Baker as the chief of police of the Pittsburg 13 For the Northern District of California United States District Court 1 Police Department. A municipality may not be held liable under Section 1983 solely because it 2 employs a tortfeasor, see, e.g., Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 3 692 (1978). Instead, plaintiffs must identify a municipal “policy” or “custom” that caused the 4 injury. Plaintiff must also demonstrate that, through its deliberate conduct, the municipality 5 was the “moving force” behind the injury alleged. Monell, 436 U.S. at 694. That is, a plaintiff 6 must show that the municipal action was taken with the requisite degree of culpability and must 7 demonstrate a direct causal link between the municipal action and the deprivation of federal 8 rights. 9 The inadequacy of police training may serve as the basis for Section 1983 liability only 10 where the failure to train amounts to deliberate indifference to the rights of persons with whom 11 the police come into contact. City of Canton v. Harris, 489 U.S. 379, 388 (1989). Only where a 12 failure to train reflects a “deliberate” or “conscious” choice by the municipality can the failure 13 be properly thought of as an actionable city “policy.” Moreover, the identified deficiency in the 14 training program must be closely related to the ultimate injury. Thus, respondent must still 15 prove that the deficiency in training actually caused the police officers' indifference to her 16 medical needs. 17 Plaintiffs claim that defendants are liable due to the inadequacy of police training for 18 several reasons. First, although the Pittsburg Police Department has policies that require that 19 officers not be disrespectful and discourteous to citizens, it does not have a written policy on the 20 express use of insulting or profane language (Lagos Decl. Exh. O at 26, 39). Plaintiffs argue 21 that the March 30 incident escalated “because and as a direct result of the profanities by the 22 officers” (Opp. at 18). 23 Considering the March 30 incident in the light most favorable to plaintiffs, the officers’ 24 use of profanities with plaintiff Ashley Jackson escalated and even precipitated the 25 confrontation with plaintiff Frederick Jackson that led to his arrest and her detention. 26 Second, plaintiffs argue that the absence of an official investigation into the March 30 27 incident by defendant Baker or the City of Pittsburg Police Department regarding the actions of 28 defendant officers at the scene reveals inadequacy of police training. This arguably could show 14 1 continued adherence to an approach that defendants knew or should have known had failed to 2 prevent tortious conduct by police officers. Third, plaintiffs cite several claims by other individuals against Pittsburg police officers, 3 4 which they argue show that defendant City has a strong disinclination to discipline or 5 investigate the behavior of its police officers. Given the number of profanities uttered by the officers during the March 30 incident, at 6 7 least according to plaintiffs, it is possible that a jury could reasonably infer the existence of a 8 pattern of tortious conduct by inadequately trained employees and a lack of proper training to 9 support this claim. Accordingly, defendants’ motion for summary judgment on claim seven is DENIED. Plaintiffs’ tenth claim is for injunctive and declaratory relief under Monell. Plaintiffs 11 For the Northern District of California United States District Court 10 12 seek to compel defendant City of Pittsburg to adopt new training policies. This claim is closely 13 related to plaintiffs’ seventh claim, and for the same reasons, defendants’ motion for summary 14 judgment on claim ten is DENIED. 15 7. RESPONDEAT SUPERIOR. Plaintiffs’ eighth claim is for respondeat superior liability against defendant City of 16 17 Pittsburg for the deprivation of plaintiffs’ constitutional rights by the individual defendants. 18 But a city cannot be held liable for a violation of constitutional rights on a theory of respondeat 19 superior. Los Angeles Police Protective League v. Gates, 907 F.2d 879, 889 (9th Cir. 1990). 20 Accordingly, defendants’ motion for summary judgment on claim eight is GRANTED. 21 8. 22 FALSE IMPRISONMENT/FALSE ARREST. Plaintiffs’ eleventh claim alleges that defendants Lombardi and Spires falsely 23 imprisoned or arrested plaintiffs Frederick Jackson and Martin. As noted above, plaintiff 24 Martin admitted that she continued to argue with her mother despite police orders to stay back, 25 calm down, and be quiet, and stated during her deposition that she did not contest that she did 26 not contest her detention (Lagos Decl. Exh. D at 121–22): 27 28 Q: Do you think you deserved to be handcuffed and placed in a police car that evening? 15 1 A: Yes. 2 Q: So I take it then you don’t have any dispute or argument 3 with the fact that you were handcuffed and placed in a 4 police car that evening. 5 A: 6 ..... 7 Q: ago, you feel that the reason why you deserved to be 9 handcuffed and placed in the police car is because you were disobeying the female officer’s commands? A: 11 For the Northern District of California And just to follow up on your testimony from a moment 8 10 United States District Court No, I don’t. Yeah, that’s the only reason. Even accepting plaintiffs’ version of events, plaintiff Martin’s actions by disobeying the 12 13 officers’ commands and continuing to argue with her mother while the police were attempting 14 to secure the crowded, chaotic scene justified her detention. Defendants’ motion for summary 15 judgment on plaintiffs’ eleventh claim as to plaintiff Martin is therefore GRANTED. As to plaintiff Frederick Jackson, however, it cannot be stated as a matter of law on the 16 17 facts described above that the officers had probable cause to arrest him for battery on a police 18 officer and resisting arrest. A reasonable jury could conclude that any contact he had with the 19 officer who was attempting to handcuff him was inadvertent or was caused by the officer 20 himself. A reasonable jury could also conclude that plaintiff Jackson did not resist arrest. 21 Defendants’ motion for summary judgment on plaintiffs’ eleventh claim as to plaintiff Frederick 22 Jackson is therefore DENIED. 23 9. CONSPIRACY. 24 Plaintiffs’ twelfth claim is for conspiracy. According to their opposition to defendants’ 25 motion for summary judgment, they seek to assert a claim for civil conspiracy under California 26 common law (Opp. at 24). A conspiracy is a combination of two or more persons to accomplish 27 by concerted action a criminal or unlawful purpose, or a lawful purpose by criminal or unlawful 28 means. The gravamen of a claim for civil conspiracy consists of “(1) the formation and 16 1 operation of the conspiracy, (2) the wrongful act or acts done pursuant thereto, and (3) the 2 damage resulting from such act or acts.” Ahrens v. Superior Court, 197 Cal.App.3d 1134, 1150 3 (1988). As to the first element, a plaintiff is entitled to damages from those defendants who 4 concurred in the tortious scheme with knowledge of its unlawful purpose. Furthermore, the 5 requisite concurrence and knowledge“may be inferred from the nature of the acts done, the 6 relation of the parties, the interests of the alleged conspirators, and other circumstances.” Ibid. For the Northern District of California United States District Court 7 Plaintiffs’ conspiracy claim here is predicated on their allegations that defendants agreed 8 and acted (a) to intentionally falsely arrest and/or imprison plaintiffs, (b) to intentionally 9 fabricate and contrive the charges lodged against plaintiff Frederick Jackson, (c) to intentionally 10 submit false police reports, statements, and testimony to support and corroborate the fabricated 11 charges lodged against plaintiffs, (d) to use force that was excessive and to intimidate and 12 terrorize plaintiffs Frederick and Ashley Jackson and Martin, (e) to punish plaintiff Frederick 13 Jackson for having exercised his right to freedom of speech, and (f) to discriminate against 14 plaintiffs based on their race by fabricating criminal charges used as mere pretext to provide 15 color for plaintiff Frederick Jackson’s arrest and the use of excessive force (Complaint ¶ 70). 16 As noted above, the detention of plaintiff Martin was not contrary to law. Nor have 17 plaintiffs produced any evidence that support an inference that defendants’ actions were 18 motivated by race. 19 Plaintiffs argue that a conspiracy may be inferred in this matter from the fact that no 20 officer objected to the conduct engaged in by any of the other officers, including the supervisor 21 Sergeant Brown (Opp. at 24). The failure of the incident reports to record, as required by 22 Pittsburg Police Department handcuff rules, the detentions of plaintiffs Ashley Jackson or 23 Martin could be interpreted by a jury as evidence of a conspiracy to cover up alleged 24 wrongdoing stemming from the March 30 incident. 25 Accordingly, defendants’ motion for summary judgment on claim twelve is GRANTED 26 IN PART and DENIED IN PART. Plaintiffs may attempt to show that the other individual 27 defendants conspired to cover up the other claims of wrongdoing remaining in this action. 28 17 CONCLUSION 1 2 3 Defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN PART as described above. 4 5 IT IS SO ORDERED. 6 7 Dated: June 8, 2010. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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