Hesterberg v. United States Of America et al, No. 3:2013cv01265 - Document 123 (N.D. Cal. 2014)
Court Description: OPINION. Signed by Magistrate Judge Jacqueline Scott Corley on 10/9/2014. (ahm, COURT STAFF) (Filed on 10/9/2014)
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Hesterberg v. United States Of America et al Doc. 123 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 GARY HESTERBERG, Plaintiff, v. Case No. 13-cv-01265-JSC UNITED STATES OF AMERICA, OPINION Defendant. 10 United States District Court Northern District of California 11 12 The adoption of tasers as a law enforcement tool has undoubtedly saved countless lives. 13 14 Tasers provide law enforcement officers with the opportunity to use intermediate force where they 15 might otherwise have no choice but to utilize deadly force. The advent of tasers, however, has 16 also given law enforcement the opportunity to use a high level of intermediate force where the use 17 of such a level of force would not have otherwise been possible; in other words, tasers also permit 18 the use of more serious force. This case asks whether it was objectively reasonable for National Park Service Ranger 19 20 Sarah Cavallaro to tase Plaintiff Gary Hesterberg, who indisputably posed no danger to Ranger 21 Cavallaro, the public, or himself, but had refused Cavallaro s command not to leave the scene after 22 she had already warned him about walking his dog off leash and he had complied. Defendant the 23 United States of America insists that if a person disobeys a law enforcement officer s order to 24 stay put, the law enforcement officer has the discretion to tase the person in dart mode if the 25 person might otherwise escape regardless of why the law enforcement officer issued the stay put 26 order in the first place. After conducting a four-day bench trial, the Court disagrees and finds that 27 Ranger Cavallaro s use of the taser under the circumstances here was unlawful. 28 // Dockets.Justia.com BACKGROUND 1 2 3 A. Factual Background 1. The January 29, 2012 tasing incident In the late afternoon of January 29, 2012, 50-year-old Montara, California resident Gary 5 Hesterberg took a Sunday jog with his two dogs in Rancho Corral de Tierra ( the Rancho ), an 6 open space area in San Mateo County whose border is a half of a mile from Hesterberg s long- 7 time home. Approximately one month earlier, the Rancho had been incorporated into the Golden 8 Gate National Recreation Area ( GGNRA ), which is managed by the National Park Service 9 ( NPS ), which, in turn, is an agency within the United States Department of the Interior ( DOI ). 10 As part of NPS takeover of the Rancho, NPS enacted a rule requiring dogs to be on leash while in 11 United States District Court Northern District of California 4 the Rancho. While San Mateo County also had a law forbidding off-leash dogs in the Rancho, 12 there is no indication in the record that that law was ever enforced; to the contrary, residents had 13 been running their dogs off leash in the Rancho for many years, if not decades. 14 NPS Ranger Sarah Cavallaro was assigned to patrol the Rancho on January 29, 2012 the 15 very first day an NPS park ranger ever patrolled the property. To acclimate the community and 16 Rancho visitors to GGNRA s new enforcement of NPS leash laws, GGNRA Chief Ranger Kevin 17 Cochary instructed his deputies to order park rangers patrolling the Rancho to take an educational 18 approach or soft enforcement with regards to violations of the Rancho s new rules. (Dkt. No. 19 116 at 590:14-20, 601:3-14.) In other words, rangers were supposed to educate the community 20 about the transfer of the Rancho to GGNRA and merely warn, rather than cite, persons observed 21 violating rules such as the leash law. Cavallaro understood that was the approach her supervisors 22 wanted her to employ. 23 Hesterberg had heard rumors that the property was going to change hands and that the new 24 owner was going to enforce the leash law, but as of January 29, 2012 Hesterberg was unaware that 25 any such changes had occurred. Hesterberg s two dogs accompanying him on his jog were a 26 leashed Beagle, named Jack, and an unleashed Rat Terrier, named JoJo. Hesterberg jogged with 27 Jack on a leash because Jack is not the smartest tool in the shed and could not be kept under 28 2 1 voice control. (Dkt. No. 115 at 373:3-4.) Not so for JoJo, who Hesterberg could rely on to obey 2 his commands and stay within 10 to 15 feet of him. Hesterberg was about a mile-and-a-half into his jog on one of the Rancho trails an old 3 4 single-lane road paved with now-broken asphalt when he first saw Cavallaro. Based on an 5 instinctive reaction to Cavallaro s green uniform, Hesterberg leashed Jack immediately after he 6 saw Cavallaro. (Id. at 379:10.) Cavallaro s uniform included a jacket with a fabric NPS patch 7 badge1 and a duty belt containing Cavallaro s gun, taser, collapsible baton, and other law- 8 enforcement tools. Hesterberg continued toward Cavallaro and when he arrived within speaking 9 distance to her, Cavallaro told him that she needed to talk with him about his dogs. Although Cavallaro did not identify herself as a law enforcement officer, Cavallaro talked about the 11 United States District Court Northern District of California 10 National Park Service owning the property (Dkt. No. 114 at 81:11-12), and informed Hesterberg 12 that she was not going to cite him for having his dog off leash; rather, she was merely going to 13 give him a warning because this is going to be an educational experience for the local residents. 14 (Dkt. No. 115 at 380:4-5.) Despite Cavllaro s uniform and hefty duty belt, coupled with 15 Cavallaro s disclosure that she had the authority to issue citations, Hesterberg testified that he did 16 not believe Cavallaro was a law enforcement officer; rather, he thought she was, or at least the 17 equivalent of, a state park ranger whose law enforcement authority does not go beyond issuing 18 citations. Cavallaro then asked for Hesterberg s identification. The reason Cavallaro asked for this 19 20 information is unclear. At trial, Cavallaro gave several reasons for collecting Hesterberg s 21 identifying information. First, Cavallaro testified that, because Hesterberg was not in possession 22 of his driver s license, she requested Hesterberg s identifying information to confirm his identity 23 as well as perform a warrants check. (Dkt. No. 114 at 83:13-15.) Later, she testified that she 24 collected such information from dog-leash violators because [t]he Park Service at Golden Gate 25 has ongoing litigation with folks over the dog-walking and dog-off-leash regulations. And so it 26 was told to us in training that this was required, as part of the ongoing litigation, and what the Park 27 28 1 Cavallaro s medal badge was concealed under her jacket. 3 1 Service needs for the litigation. (Dkt. No. 117 at 691:21-25.) Finally, she testified that, in 2 addition to the ongoing litigation, it s standard practice to identify the person that you re in 3 contact with, regardless of the violation. It s again, it goes back towards officer safety. (Id. at 4 733:3-6.) In her deposition and earlier declaration, Cavallaro testified that she requested 5 identifying information for two purposes: 1) to include in the local database or local file that 6 catalogues records of leash-law contacts to counter recidivist violators who plead ignorance of the 7 law; and 2) to check for any outstanding warrants. (See Dkt. No. 28-2 at 115:10-15; see also Dkt. 8 No. 45 ¶¶ 6, 7.) Chief Ranger Cochary testified that park rangers may collect identifying 9 information from any violator to 1) run a warrants check, and 2) include the violators name in the local database. Cochary explained that the warrants check is standard practice and done for 11 United States District Court Northern District of California 10 purposes of officer safety; including the name in the local database is helpful for later enforcement 12 involving the same individual, but it is not required that park rangers use the database. The Court 13 finds that Cavallaro asked for Hesterberg s identifying information for the following reasons: 1) to 14 identity him; 2) to run a warrants check; 3) to collect for purposes of NPS ongoing litigation 15 regarding its dog-leash rules; and 4) to include in the database for possible future contact with the 16 violator. 17 Whatever the reason for the request, Hesterberg provided his correct birthdate, address, 18 and first name, but lied about his last name; he said his last name was Jones. Hesterberg testified 19 that he lied about his name because 20 21 22 in a split second in the back of my mind I thought to myself, well, I don t want to be placed on some offending dog walker or, you know, dog walk man walks dog off-leash. I didn t want to be placed on that list, and so I made a split-second decision to do that. 23 (Dkt. No. 115 at 381:12-16.) Hesterberg further testified that if Cavallaro had identified herself as 24 a law enforcement officer, or if he had known she was a law enforcement officer, he would not 25 have lied about his identity. Cavallaro radioed Hesterberg s identifying information to her 26 dispatch and waited for dispatch to confirm Hesterberg s identification. 27 28 Around the same time that Cavallaro relayed Hesterberg s identifying information, James and Michelle Babcock approached the scene and inquired about what was happening. The 4 1 Babcocks are a young married couple that live in Hesterberg s neighborhood and visit the Rancho 2 several times a month, sometimes with their dogs. Before this incident, they did not know 3 Hesterberg. Mr. Babcock testified that he stopped to talk to Cavallaro and Hesterberg because it 4 was the first time he had seen a ranger at the Rancho and he was curious why they were there, 5 because it was such an unusual circumstance. (Dkt. No. 115 at 232:5-6.) Hesterberg told the 6 Babcocks that he was stopped because he had his dog off leash. Mr. Babcock then asked 7 Cavallaro some questions along the lines of her activity in the Rancho, whether park rangers were 8 now going to normally patrol the Rancho, and whether the Rancho ownership had changed hands, 9 as Mr. Babcock had heard was going to happen at some point. According to Cavallaro, Mr. Babcock also started in with questioning of my authority and who I worked for; specifically, 11 United States District Court Northern District of California 10 Cavallaro testified that Mr. Babcock questioned her authority when he asked What is your 12 authority or What is your authority here? (Dkt. No. 114 at 86:19-20, 24-25.) Ms. Babcock 13 also asked at least one question. Cavallaro interpreted their questions as very pointed, and very 14 challenging. It was not at all inquisitive. (Dkt. No. 117 at 700:13-14.) Cavallaro responded to at 15 least some of the questions; she told the Babcocks that she was patrolling and that the National 16 Park Service had recently acquired the property. But Cavallaro s response was abrupt and she did 17 not take the time to engage with the Babcocks; rather, she viewed their arrival on the scene as 18 significant because it, at least potentially, distracted her from her law enforcement contact : 19 20 21 22 23 24 25 I was on a law-enforcement contact with what I believed was Mr. Jones. So, that is my primary focus. I have to have a general awareness of the overall scene. Folks often try to interject themselves into law-enforcement contact. Particularly on a trail setting like that. And, so, it s it goes back to my divided attention and everything that I need to be focusing on which is, you know, sort of the universe, so to speak, in kind of a broad term, just the you know, the time of day, who else is on the trail, where my backup is, the radio, Mr. Hesterberg, his body language, the Babcocks, their question, Mr. Babcock Mr. Hesterberg s questions, all of that was stuff that I was now having to focus on. Instead of just me and Mr. Hesterberg and our general surroundings, it s now three people and me that I m focusing on. 26 (Id. at 701:22-702:16.) Unsatisfied with Cavallaro s response to the Babcocks questions, 27 Hesterberg also started asking Cavallaro questions about who she was, who she worked for, and 28 what she was doing there. Cavallaro did not answer Hesterberg s questions. 5 1 Hesterberg then told Cavallaro that because she had given him his warning he was going to 2 leave. Cavallaro responded, What? As if in disbelief, not that I didn t hear him. (Id. at 3 703:11-12.) Cavallaro was in disbelief because 4 5 6 7 8 9 we talk about people are going to telegraph what they re going do. You re watching for their body language. You know, if someone kind of keeps looking in a particular direction, that s typically an indicator that something in that direction is of interest to them, or they might be heading in that direction. If someone drops their shoulder it might mean they re cocking back to maybe swing at you. So, you re so, you re looking for different things. So when we talk about telegraphing, it s usually minor things, the nuances of people. You re not expecting that telegraph to actually be an announcement that someone is leaving. (Id. at 703:14-704:1.) Hesterberg repeated that he was leaving and Cavallaro told him that he was 11 United States District Court Northern District of California 10 not free to go. Hesterberg resumed asking questions regarding Cavallaro s authority and whether 12 he was under arrest. Cavallaro did not respond. 13 Cavallaro testified that Hesterberg s announcement of his intention to leave meant that she 14 needed to dedicate even more of her attention to Hesterberg. She thus told the Babcocks 15 something along the lines of I don t have any business with you, so leave the area; if you 16 continue to stay, I will have business with you. (See Dkt. No. 114 at 90:11-15.) The Babcocks 17 complied with Cavallaro s order and moved south on the trail for a few dozen feet before stopping 18 and resuming their observation of the incident. 19 Around this same time, and a little over two minutes after Cavallaro relayed Hesterberg s 20 information to dispatch, dispatch informed Cavallaro that he got several returns and asked for a 21 city that Jones is out of. (Trial Ex. 62.) A few seconds later, Cavallaro responded: He s out of 22 Montara. (Id.) Less than ten seconds later, dispatch told Cavallaro: 10-74, not on file for name 23 and DOB. (Id.) After 18 seconds, Cavallaro responded: Can I get a second unit headed this 24 way? And can you repeat that information? (Id.) Dispatch began summoning backup, but did 25 not repeat the information regarding the result of Hesterberg s identification check. When 26 Cavallaro called for backup she knew the closest ranger to her was north in San Francisco, which 27 is about a 25-minute drive away. Dispatch summoned San Mateo County Sheriffs, who were 28 6 1 much closer, along with two rangers from San Francisco and one ranger from Marin County, who 2 was even farther away from Cavallaro. 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 Cavallaro testified that she requested backup because [a]bout that time, I d got the information, that 10-74 not on file, I believe. And so it was the managing of the three people instead of two, the barrage of questioning that was, you know, challenging of my authority. And, the fact that I m now getting further information with the 10-74 not on file, which means negative, there are no wants or warrants for a Mr. Gary L. Jones with that date of birth. But, that there s no Gary L. Jones on file in the entire California, the CLETS system. So, there s no wants or warrants for that person, but this person doesn t exist . . . with that date of birth . . . . So, those are some red flags starting to go off. (Dkt. No. 117 at 705:10-23.) After Cavallaro requested backup, and after the Babcocks had moved farther away, 12 Hesterberg again announced he was leaving and began to jog away. Hesterberg, however, got 13 only a few steps into his jog when Cavallaro grabbed his arm and told him, Sir, it is not okay to 14 leave. (Dkt. No. 116 at 445:21-23.) Hesterberg stopped, pulled his arm away from Cavallaro, 15 asked if he was under arrest, and expressed incredulity that Cavallaro would not let him go. 16 Cavallaro did not answer Hesterberg s question. 17 Shortly after Cavallaro stopped Hesterberg from leaving, Cavallaro responded to 18 dispatch s request for her status. She told dispatch she was on the trail behind Ocean View Farms, 19 and informed dispatch that [t]his guy s tried to run on me twice. (Trial Ex. 62.) She also 20 requested an update on her backup and dispatch replied that one ranger was en route and that he 21 was still trying to connect with San Mateo County Sheriffs. 22 Hesterberg again announced his intention to leave. In response, Cavallaro drew her taser, 23 pointed it at the center of Hesterberg s chest, and ordered him to put his hands behind his back. 24 Hesterberg did not put his hands behind his back and instead asked her sarcastically and in 25 disbelief, What, you re going to tase me now? (Dkt. No. 115 at 389:24-390:1.) Hesterberg also 26 told Cavallaro something close to, Don t tase me, I have a heart condition. Cavallaro 27 responded, Well, then turn around and put your hands behind your back. (Dkt. No. 100 at 28 114:3-4.) Hesterberg again did not put his hands behind his back. Mr. Babcock, who was with his 7 1 wife 20 to 30 feet away, commented something along the lines of, Don t you think this is a little 2 excessive? (Dkt. No. 115 at 252:15-18.) Although Cavallaro was not married to the plan, if 3 [Hesterberg] ran again, [she] was going to tase him. (Dkt. No. 117 at 713:9, 12-13.) 4 Hesterberg remained at taser point for approximately the next four minutes. Cavallaro and 5 Hesterberg were facing each other on opposite sides of the trail Cavallaro facing west and 6 Hesterberg facing east and approximately 12 feet apart. During this time, Cavallaro was on her 7 radio giving directions to her location. Hesterberg was also repeating his questions to Cavallaro 8 regarding her authority to detain him. Cavallaro eventually answered that her authority was the 9 Constitution. (Dkt. No. 115 at 402:4-9.) Hesterberg responded: that is no kind of answer. 10 United States District Court Northern District of California 11 Come on, dogs, we re leaving. (Id. at 402:10-11.) Hesterberg turned to his right and began a slow jog south on the trail and got two to three 12 strides into his jog when Cavallaro fired her taser in dart mode, striking Hesterberg in the back and 13 buttock. Cavallaro did not give any verbal warning just before tasing Hesterberg, though she did 14 order him to stop. Cavallaro announced over the radio, Taser deployed! Taser deployed! (Trial 15 Ex. 62.) Besides eliciting a cry of agony, the taser incapacitated Hesterberg, causing him to fall 16 face first on the trail s degraded asphalt. Hesterberg testified that on a scale of one to ten, the pain 17 from the taser was a ten. Hesterberg hoped that he would not die. 18 After the taser s five second cycle, Hesterberg was on his back, eyes closed. Cavallaro 19 checked for signs of extreme distress, including whether Hesterberg was breathing (he was). 20 Cavallaro then ordered Hesterberg to roll onto his stomach so she could handcuff him, but 21 Hesterberg was unable to immediately comply. Cavallaro, however, believed Hesterberg was 22 intentionally refusing to comply and stated over the radio, less than a minute after she fired her 23 taser, that Hesterberg was refusing commands to turn around and get on his stomach. (Id.) 24 Cavallaro testified that she believed Hesterberg s inaction was willful because he eventually did 25 get up and because after the five-second burst of the Taser, there would be no further 26 neuromuscular interruption. (Dkt. No. 114 at 118:16-24.) 27 28 Hesterberg sat up on the ground with the taser probes still embedded in his body. Cavallaro kept him at taser point for the next three minutes until other officers arrived at the scene. 8 1 Cavallaro kept him at taser point because she was prepared to emit another five-second cycle of 2 electricity if Hesterberg attempted to leave again. Upon arrival at the scene, officers from the San 3 Mateo County Sheriff s Office placed Hesterberg in handcuffs, and Cavallaro, wearing sanitary 4 gloves, removed the probes from Hesterberg s body. Cavallaro, however, did not forewarn 5 Hesterberg that she was going to remove the probes from his back; Hesterberg testified that the 6 removal of the probes was certainly painful. (Dkt. No. 115 at 405:24-25.) Meanwhile, 7 Hesterberg asked the Babcocks, as well as a third individual, John Bartlett, who had come upon 8 the scene immediately prior to the tasing, to take Jack and JoJo to his home and to tell his wife 9 what had happened. The Babcocks and Mr. Bartlett agreed to do so. As Hesterberg was being escorted off the trail and to the area of the patrol cars, he 10 United States District Court Northern District of California 11 informed the officers that his name was Hesterberg, not Jones. Hesterberg was then seen by a 12 paramedic whom dispatch called to the scene when Cavallaro announced the deployment of her 13 taser. The paramedic took Hesterberg s blood pressure and heart rate which were both 14 elevated and dressed his wounds, which included the taser-probe punctures as well as an 15 abrasion on his forearm. Hesterberg also complained of shoulder pain, but the paramedic noted no 16 trauma. The paramedic advised Hesterberg to visit an emergency room, but Hesterberg declined 17 further treatment. Hesterberg was taken to jail and released to his wife later that night. Cavallaro cited Hesterberg with three violations, all under state law: 1) failure to obey a 18 19 lawful order; 2) providing false information; and 3) walking dog off-leash. The first two 20 violations are misdemeanors, while the off-leash violation is merely an infraction.2 The San 21 Mateo County District Attorney declined to pursue any charges against Hesterberg. This lawsuit 22 followed. 2. 23 Both DOI and NPS have overlapping policies that governed Cavallaro s use of her taser on 24 25 DOI and NPS Taser Policy January 29, 2012. At the time, DOI had two policies covering the use of tasers by DOI law 26 27 28 NPS regulations classify a violation of the dog-leash rules as a misdemeanor. See 36 C.F.R. § 2.15(a)(2). It is not apparent why Cavallaro did not cite Hesterberg under the Code of Federal Regulations. 9 2 1 enforcement officers: 446 DM10 and 446 DM 22; respectively, Chapter 10 and Chapter 22. 2 (See Trial Exs. 40 & 41; see also Dkt. No. 116 at 645:2-8.) Chapter 10 governs Firearms and 3 Other Defensive Equipment, which includes tasers. (Dkt. No. 116 at 645:24-25.) It provides that 4 [o]nly the minimal force necessary to effect and maintain public order, protect human life or 5 property, and/or arrest shall be used. (Trial Ex. 40 at ¶ 10.3(C).) Chapter 22 is directed 6 specifically toward tasers and provides parameters for their use: 7 (1) When such force is legally justified and consistent with Department policy, ECDs [Electronic Control Devices, i.e., tasers] may be used on individuals who are actively resisting an LEO [law enforcement officer] or AFSG [armed Federal security guard] and/or to prevent individuals from harming themselves or others. ... 8 9 10 (3) Unless compelling reasons to do so can be clearly articulated, ECDs should not be used when: United States District Court Northern District of California 11 12 (a) a subject exhibits passive resistance to an LEO or AFSG; 13 (b) the LEO or AFSG believes the use of deadly force is necessary pursuant to 446 DM 20, Use of Deadly Force ; or 14 (c) the LEO or AFSG perceives use of an ECD may result in direct or secondary injuries, including but not limited to when: 15 16 (i) a subject may fall from a significant height; 17 (ii) a subject is operating a moving vehicle or machinery; 18 (iii) a subject is in or near a body of water which presents a risk of drowning; 19 20 (iv) a subject is believed to be contaminated by or otherwise near flammable or explosive materials; or 21 (v) a subject is believed to be part of a group that may be at high risk for secondary injuries (e.g., the very young, the very old, the infirm, pregnant females, etc.) 22 23 24 (Trial Ex. 41.) 25 RM-9 is NPS use of force policy that covers the entire agency. RM-9 provides 26 generally that NPS officers may use less-lethal or non-deadly defensive equipment, to, among 27 other things, effect an arrest or investigatory Terry stop when lesser force is or would be 28 insufficient. (Trial Ex. 124 at Ch. 10 ¶ 3.2.) Defensive equipment includes tasers. (Dkt. No. 10 1 116 at 620:8-10.) Specific parameters for taser use are found in Chapter 32 of RM-9, which 2 provides: 3 When such force is legally justified and consistent with Department policy, ECDs may be used on individuals who are actively resisting a commissioned employee or to prevent individuals from harming themselves or others. ... 4 5 6 Unless compelling reasons to do so can be clearly articulated, ECDs will not be used when: 7 ï § 8 ï § 9 ï § 10 United States District Court Northern District of California the LEO perceives use of an ECD may result in direct or secondary injuries. To include when: ï · 12 ï · 13 14 ï · 15 16 a subject may fall from a significant height; a subject is operating a moving vehicle or machinery; a subject is in or near a body of water which presents a risk of drowning; or a subject is believed to be contaminated by or otherwise near flammable or explosive materials. When a subject is believed to be part of a high risk group (e.g., the very young, the very old, the infirm, pregnant females, etc.) the commissioned employee should evaluate other options if possible and provide follow-up medical attention. 17 18 20 the LEO believes the use of deadly force is necessary pursuant to NPS and DOI policy, or ï · 11 19 a subject exhibits passive resistance to a LEO; (Trial Ex. 124 at Ch. 32 ¶ 4.2.) National parks and recreation areas, such as GGNRA, are allowed to develop their own 21 procedures regarding the use of tasers; however, local procedures require review and approval by 22 the NPS Deputy Chief of Law Enforcement (the so-called DCOP ) in Washington, D.C. 23 Although GGNRA has drafted one or two local procedures regarding taser use, no such local 24 GGNRA procedure has been reviewed and approved by the DCOP. 25 B. Procedural History 26 Earlier in this litigation, the Court denied Hesterberg s motion for partial summary 27 judgment on his false arrest and excessive force claims (Dkt. No. 54); the Court granted the 28 government s subsequent motion for partial summary judgment on Hesterberg s false arrest claim 11 1 and his negligence claim to the extent it relied on the alleged false arrest (Dkt. No. 88). The Court 2 found in the government s favor since the record at the time compelled the conclusion that 3 Cavallaro continued Hesterberg s detention, at least in part, so she could verify Hesterberg s 4 identification and place his name in the database of leash law violators. Because including 5 Hesterberg s name in the database was part of Cavallaro s warning for the violation, the purpose 6 of the detention issuing a warning for the leash law violation remained in place throughout the 7 encounter. Hesterberg s continued detention was therefore constitutional. DISCUSSION 8 Hesterberg s lawsuit presently includes two causes of action against Defendant United 10 States of America, pled under the Federal Tort Claims Act ( FTCA ): battery and negligence. 11 United States District Court Northern District of California 9 The FTCA vests federal courts with exclusive jurisdiction over claims against the United States 12 for certain losses and injuries for which it has waived sovereign immunity. F.D.I.C. v. Meyer, 510 13 U.S. 471, 477 (1994). Substantively, the FTCA provides that the United States may be held liable 14 for the wrongful acts or omissions of federal employees, including Park Ranger Cavallaro, under 15 circumstances where the United States, if a private person, would be liable to the claimant in 16 accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). 17 Because the events in this matter occurred in California, California law applies. 18 19 A. Battery 1. Legal Standard 20 A plaintiff alleging a common law battery cause of action must prove unreasonable force 21 as an element of the tort. See Yount v. City of Sacramento, 43 Cal. 4th 885, 902 (2008); see also 22 Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272-73 (1998); see also BAJI § 7.54 ( A 23 peace officer who uses unreasonable or excessive force in making [an arrest] [or] [a detention] 24 commits a battery upon the person being [arrested] [or] [detained] as to the excessive force[.] ). 25 In California, [c]laims that police officers used excessive force in the course of an arrest, 26 investigatory stop or other seizure of a free citizen are analyzed under the reasonableness standard 27 of the Fourth Amendment to the United States Constitution. Avina v. United States, 681 F.3d 28 1127, 1131 (9th Cir. 2012) (quoting Munoz v. City of Union City, 120 Cal. App. 4th 1077 (2004)). 12 1 The test for whether force was excessive in violation of the Fourth Amendment is 2 objective reasonableness. Graham v. Connor, 490 U.S. 386, 398 (1989); see also Gravelet- 3 Blondin v. Shelton, 728 F.3d 1086, 1090 (9th Cir. 2013) ( The Fourth Amendment, which 4 protects against excessive force in the course of an arrest, requires that we examine the objective 5 reasonableness of a particular use of force to determine whether it was indeed excessive. ). To 6 assess objective reasonableness, the Court weighs the nature and quality of the intrusion on the 7 individual s Fourth Amendment interests against the countervailing governmental interests at 8 stake. Graham, 490 U.S. at 396 (citation and internal quotation marks omitted). 9 In the Ninth Circuit, the discharge of a taser in dart mode which is what happened in this case is an intrusion on the individual s Fourth Amendment interests that involve[s] an 11 United States District Court Northern District of California 10 intermediate level of force with physiological effects, [ ] high levels of pain, and foreseeable risk 12 of physical injury. Gravelet-Blondin, 728 F.3d at 1091 (quoting Bryan v. MacPherson, 630 13 F.3d 805, 825 (9th Cir. 2010)). 14 In determining the governmental interests at stake, the court looks to the non-exhaustive 15 list of factors in Graham. See Gravelet-Blondin, 728 F.3d at 1091. These factors include the 16 severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the 17 officers or others, and whether he is actively resisting arrest or attempting to evade arrest by 18 flight. Graham, 490 U.S. at 396. Beyond these factors, the Ninth Circuit instructs courts to 19 examine the totality of the circumstances and consider whatever specific factors may be 20 appropriate in a particular case, whether or not listed in Graham. Bryan, 630 F.3d at 826 21 (internal quotation marks omitted). This analysis allows courts to determine objectively the 22 amount of force that is necessary in a particular situation. Id. (internal quotation marks omitted); 23 see also Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) ( [I]n assessing the 24 governmental interests at stake under Graham, we are free to consider issues outside the three 25 enumerated above when additional facts are necessary to account for the totality of circumstances 26 in a given case. ). Finally, the [Supreme] Court has emphasized that there are no per se rules in 27 the Fourth Amendment excessive force context; rather, courts must still slosh [their] way through 28 the factbound morass of reasonableness. Whether or not [a defendant s] actions constituted 13 1 application of deadly force, all that matters is whether [the defendant s] actions were 2 reasonable. Mattos, 661 F.3d at 441 (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)). 3 4 5 6 2. Analysis a) Governmental interest in the use of force (Graham) 1) Severity of the crimes Regarding the first Graham factor severity of the crime no offense here can 7 appropriately be considered severe. A violation of the leash law, as the government concedes, 8 is not a serious offense. It is even less severe where, as here, the violation occurred on the very 9 first day of enforcement after years of government officials allowing dogs to be run off leash and where the governing entity intends to merely educate the community about the law and not 11 United States District Court Northern District of California 10 issue any citations. Although lying to a police officer is not a trivial offense, it is also not 12 inherently dangerous or violent. See 36 C.F.R. § 2.32(a)(3); see also Cal. Penal Code § 148.9(b). 13 The Court concludes that providing a false last name in connection with a warning about the leash 14 law violation was not a severe crime. See Bryan, 630 F.3d at 828-29 ( While the commission of a 15 misdemeanor offense is not to be taken lightly, it militates against finding the force used to effect 16 an arrest reasonable where the suspect was also nonviolent and posed no threat to the safety of the 17 officers or others. (internal quotation marks omitted)). In addition, Hesterberg s alleged 18 violation of California Penal Code Section 148(a)(1) resisting, delaying, or obstructing a peace 19 officer and related federal provisions, also does not constitute a serious crime. See Young v. 20 Cnty. of Los Angeles, 655 F.3d 1156, 1164-65 (9th Cir. 2011) ( [W]hile disobeying a peace 21 officer s order certainly provides more justification for force than does a minor traffic offense, 22 such conduct still constitutes only a non-violent misdemeanor offense that will tend to justify 23 force in far fewer circumstances than more serious offenses, such as violent felonies. ); see also 24 Bryan, 630 F.3d at 828-29 (concluding that resisting a police officer, failure to comply with a 25 lawful order, and using or being under the influence of any controlled substance are not 26 inherently dangerous or violent ); Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 27 2007) (holding that obstructing a police officer was not a serious offense ); Smith v. City of 28 Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc) (holding that domestic violence suspect was 14 1 not particularly dangerous, and his offense was not especially egregious ). Moreover, not all 2 resisting a peace officer offenses are equal. Here, the resistance was refusing to stay put after 3 Hesterberg had leashed Jo-Jo and after Cavallaro had already issued her verbal warning, making it 4 less serious than perhaps other resistance. 5 6 7 The Court accordingly finds that his offenses were non-serious for purposes of the excessive force inquiry. 2) Immediate threat to safety 8 The second Graham factor asks whether the suspect posed an immediate threat to the 9 safety of the officer or others. This is the most important factor. Mattos, 661 F.3d at 441. While Hesterberg became increasingly noncompliant as the encounter wore on, at no time did he 11 United States District Court Northern District of California 10 verbally or physically threaten Cavallaro or anyone else. He was in jogging shorts and a T-shirt 12 and Cavallaro did not observe any weapons on him. Thus, [a]t most, [Cavallaro] may have 13 found [him] uncooperative, but such noncompliance does not equate to an immediate threat. Id. 14 (concluding that plaintiff did not pose an immediate threat even though plaintiff refused to exit 15 her vehicle and physically resisted the officers attempts to extract her). Moreover, Cavallaro 16 specifically testified that at the time she tased Hesterberg he posed no immediate threat to her or 17 anyone else. (Dkt. No. 114 at 109:25-110:12.) The Court agrees and finds that this factor weighs 18 against Cavallaro s use of her taser to effect the arrest. 19 20 3) Active resistance or attempts to flee The Ninth Circuit has instructed that resistance should not be understood as a binary 21 state, with resistance being either completely passive or active. Rather, it runs the gamut from the 22 purely passive protestor who simply refuses to stand, to the individual who is physically 23 assaulting the officer. Bryan, 630 F.3d at 830. As the Court did at the summary judgment stage, 24 Hesterberg s conduct is evaluated based on this continuum of passive and active resistance. 25 Hesterberg attempted to flee twice even though Cavallaro previously told him he was not 26 free to go. Hesterberg also pulled his arm away from Cavallaro when she attempted to physically 27 restrain him the first time he turned to leave. Finally, Hesterberg refused to turn around and put 28 his hands behind his back so Cavallaro could handcuff him when she had him at taser point. 15 1 Given these facts, the Court finds that Hesterberg resisted arrest. In Mattos, the court found 2 some resistance to arrest where plaintiff refused to get out of her car when requested to do so 3 and later stiffened her body and clutched her steering wheel to frustrate the officers efforts to 4 remove her from her car. 661 F.3d at 445. The court summarized this resistance as active[] . . . 5 insofar as she refused to get out of her car when instructed to do so and stiffened her body and 6 clutched her steering wheel to frustrate the officers efforts to remove her from her car. Id. at 7 446. Here, Hesterberg s action in pulling his arm away from Cavallaro, though a single instance 8 of physical resistance, is similar to the physical resistance the plaintiff-driver in Mattos provided. 9 And his attempt to flee generally weighs in favor of some use of force. See Miller v. Clark County, 340 F.3d 959, 965-66 (9th Cir. 2003) (evading arrest by flight favors the government); 11 United States District Court Northern District of California 10 see also Azevedo v. City of Fresno, 2011 WL 284637, at *8 (E.D. Cal. Jan. 25, 2011) (concluding 12 that misdemeanant suspect s active flight favored officer s use of non-deadly force ). As in 13 Mattos, however, Hesterberg s resistance did not involve any violent actions towards the 14 officers. 661 F.3d at 445. Thus, while Hesterberg engaged in some active resistance, it still did 15 not rise to the level of an individual who is physically assaulting the officer. Bryan, 630 F.3d at 16 830. Nonetheless, the Court finds that this factor weighs in the government s favor. 17 Further, the Court again rejects Hesterberg s revived argument that his flight cannot be 18 considered because he was not fleeing from a detention, not an arrest. Even if true, Hesterberg 19 cites no authority for his contention that this Graham factor must be read literally, such that only 20 an officer s desire to arrest, rather than detain, a suspect is what triggers the analysis. The cases 21 do not support such a rule. See, e.g., Bryan, 630 F.3d at 829-30 (evaluating suspect s resistance 22 to the officer s orders to reenter his vehicle so the officer could conduct the traffic stop); 23 Gravelet-Blondin, 728 F.3d at 1091-92 (analyzing resistance factor where officers were ordering 24 suspect to retreat, but not attempting to arrest suspect). 25 26 4) Other considerations Beyond the Graham factors, the Court examines a few additional factors to take account 27 of the totality of the circumstances. Bryan, 630 F.3d at 826. Specifically, i) whether Cavallaro 28 gave a warning of the imminent use of force; ii) the availability of less intrusive alternatives to 16 1 effect arrest; iii) Hesterberg s culpability in escalating the incident; and iv) Hesterberg s warning 2 that he had a heart condition. i) Warning 3 [T]he absence of a warning of the imminent use of force, when giving such a warning is 4 5 plausible, weighs in favor of finding a constitutional violation. Gravelet-Blondin, 728 F.3d at 6 1092. Cavallaro prevented Hesterberg s first escape by grabbing his arm and telling him he was 7 not free to leave. Hesterberg nevertheless expressed his intention to leave again, at which point 8 Cavallaro told him to turn around and put his hands behind [] his back and drew her taser. 9 (Dkt. No. 117 at 708:13-15.) Hesterberg did not comply with the order to put his hands behind his back, and instead asked her sarcastically and in disbelief, What, you re going to tase me 11 United States District Court Northern District of California 10 now? (Dkt. No. 115 at 389:24-390:1.) Hesterberg also told Cavallaro something close to, 12 Don t tase me, I have a heart condition. Cavallaro responded, Well, then turn around and put 13 your hands behind your back. (Dkt. No. 100 at 114:3-4.) Hesterberg again did not comply, and 14 Cavallaro held Hesterberg at taser point for the next four minutes. Cavallaro did not issue any 15 further warning or orders beyond repeatedly instructing Hesterberg to put his hands behind his 16 back. (See Dkt. No. 117 at 709:9-12 ( I have my taser pointed, I m telling him, Mr. Jones, turn 17 around, put your hands behind your back. I m giving him commands, Turn around. Put your 18 hands behind your back. ).)3 Four minutes after Cavallaro drew her taser, Hesterberg 19 announced, Come on, dogs, we re leaving (Dkt. No. 115 at 402:10-11), turned away and started 20 into a jog, and was then tased by Cavallaro after she and Hesterberg had only proceeded a few 21 strides. The only explicit warning Cavallaro gave was that if Hesterberg did not turn around and 22 23 put his hands behind his back, she would tase him; Cavallaro never told Hesterberg that if he tried 24 to leave again, she would tase him. It is possible to infer from the sequence of events i.e., 25 Although Ms. Babcock testified that Cavallaro, after drawing her taser, told Hesterberg, [i]f you take another step, I m going to tase you, Cavallaro s own testimony does not support Ms. Babcock s testimony. At no point in her testimony did Cavallaro state that she gave any such verbal warning regarding Hesterberg s attempts to leave the scene; if anything, Cavallaro admitted she did not. (See Dkt. No. 114 at 112:20-23 (stating that immediately before tasing Hesterberg she did not say stop or I will Tase you ).) 17 3 26 27 28 1 Cavallaro drawing her taser almost immediately after Hesterberg s first attempt to leave that, in 2 addition to trying to gain compliance with the order to put his hands behind his back, Cavallaro 3 also hoped drawing the taser would make Hesterberg stay put. Further, because Cavallaro 4 explicitly warned Hesterberg that he could avoid being tased if he put his hands behind his back, 5 it could also be inferred that Cavallaro would use her taser if Hesterberg tried to leave again, since 6 fleeing the scene would not comply with her order to put his hands behind his back. Nonetheless, 7 such an unstated, implicit warning does not equate to an unambiguous warning that Cavallaro 8 would use her taser if Hesterberg tried to leave again, particularly where giving an explicit verbal 9 warning stating as much was feasible. Although Cavallaro was also directing backup to her location while she had Hesterberg at taser point, there was ample time to provide Hesterberg with 11 United States District Court Northern District of California 10 a clear, unequivocal warning that any further attempts to flee would result in the firing of her 12 taser. (See Trial Ex. 62 (audio of radio communications showing a minute of uninterrupted 13 silence at the beginning of the four minutes during which Cavallaro held Hesterberg at taser 14 point).) Cavallaro testified that her plan was to tase Hesterberg if he tried to leave again; there is 15 no reason this plan could not have been communicated to Hesterberg. In sum, the Court finds that 16 Cavallaro provided an implicit warning that further attempts to flee would result in the use of the 17 taser, but did not explicitly warn Hesterberg that such conduct would result in the use of force 18 even though giving a verbal warning was feasible. 19 Even if this inferred warning was adequate when Cavallaro first drew her taser, an 20 explicit, verbal warning was required prior to the firing of the taser to leave no doubt in 21 Hesterberg s mind what would happen if he did not stop jogging away. First, the inferred 22 warning was no longer adequate by the time Cavallaro fired the taser because Cavallaro failed to 23 follow through on her verbal warning that, essentially, she would tase Hesterberg if he did not 24 turn around and put his hands behind his back. During the four minutes Cavallaro held 25 Hesterberg at taser point, Hesterberg never complied with Cavallaro s orders to put his hands 26 behind his back yet Cavallaro did not tase him for his non-compliance. Under these 27 circumstances unfulfilled verbal threats and the passage of four minutes without further verbal 28 warnings Cavallaro s unstated intentions became insufficiently ambiguous since it would be 18 1 reasonable, though risky, to believe that Cavallaro s pointing of the taser was an empty threat. 2 Given this ambiguity, a new, explicit warning should have been given when Hesterberg attempted 3 to leave. Further, an explicit warning after Hesterberg turned to leave and before Cavallaro fired 4 her taser was feasible. After all, Cavallaro ordered Hesterberg to stop after he turned to leave; 5 Cavallaro could have easily added or I will tase you to her command, which would have 6 transformed the command into a warning. 7 The Court accordingly finds that, while Cavallaro issued an inferred non-verbal warning 8 that she would tase Hesterberg if he tried to leave again, it was feasible to issue an explicit verbal 9 warning that would eliminate the ambiguity about Cavallaro s intentions; thus Cavallaro s 10 inferred warning was inadequate. ii) The availability of less intrusive measures United States District Court Northern District of California 11 12 [P]olice are required to consider what other tactics if any were available to effect the 13 arrest. Bryan, 630 F.3d at 831 (alterations and internal quotation marks omitted). This inquiry, 14 however, does not disrupt the settled principle that police officers need not employ the least 15 intrusive degree of force possible; rather, it merely recognize[s] the equally settled principle 16 that officers must consider less intrusive methods of effecting the arrest and that the presence of 17 feasible alternatives is a factor to include in [the] analysis. Id. at 831 n.15 (internal quotation 18 marks omitted). 19 Hesterberg proposes four feasible, less intrusive alternative methods to effecting his arrest. 20 First, Hesterberg contends that Cavallaro could have used communication skills throughout the 21 encounter to deescalate the situation. However, that horse had already left the barn by the time 22 Hesterberg began to jog away and Cavallaro fired her taser. The inquiry looks at what less 23 intrusive methods were available at the time the officer used force against the subject; what 24 Cavallaro could have done minutes before the use of force is irrelevant. At the time Cavallaro 25 used her taser to stop Hesterberg s flight, the Court is not persuaded that beyond the issuance of 26 an explicit verbal warning, which the Court just discussed better communication by Cavallaro 27 would have stopped Hesterberg. Cavallaro ordered him to stop, but Hesterberg did not comply. 28 It is not clear how Cavallaro could verbally persuade Hesterberg to end his flight as Cavallaro 19 1 attempted to chase after him. Cavallaro, wearing her duty belt and boots, was in no position to 2 match Hesterberg s pace as he attempted to jog away in his running shoes and athletic clothes. 3 Further, Cavallaro s taser has an effective range of only 12 to 15 feet, thus leaving only brief 4 moments in which Cavallaro could conceivably expect to keep pace with Hesterberg and stay 5 within range to still use her taser. The Court accordingly finds that using communication skills 6 was not a viable alternative to effect Hesterberg s arrest at the time Cavallaro fired her taser. 7 Hesterberg also asserts that Cavallaro could have let him go after giving him the verbal warning for having his dog off leash. As just explained, proposing alternatives to Cavallaro s 9 course of conduct leading up to the need for the use of force misses the mark. The Court thus 10 finds that letting Hesterberg go with a verbal warning several minutes before the use of force 11 United States District Court Northern District of California 8 arose is not a viable alternative to effect Hesterberg s arrest at the time Cavallaro fired her taser. 12 Next, Hesterberg argues that Cavallaro could have let him go and arrested him at his 13 house. Again, the Court is not persuaded. Although Hesterberg gave Cavallaro his real address, 14 Cavallaro at least had a suspicion that the name Hesterberg gave her was not real. Further, 15 Hesterberg s own police practices expert declined to agree that either arresting Hesterberg at his 16 home or later at the trailhead was feasible. (See Dkt. No. 115 at 330:20-331:2.) Given the 17 uncertainty surrounding the information Hesterberg provided, the Court finds that arresting 18 Hesterberg at his home was not a viable method to effect Hesterberg s arrest. 19 Finally, Hesterberg asserts that an alternative option was simply letting Hesterberg go. 20 While letting Hesterberg flee was certainly a feasible alternative to tasing him, it was not an 21 alternative means to effect his arrest, which is the focus of the inquiry on this factor. 22 23 24 25 The Court finds the absence of viable alternatives to effecting Hesterberg s arrest, and thus this factor weighs in the government s favor. iii) The relative culpability for the escalation of the incident 26 The Ninth Circuit indicated in Mattos that a plaintiff s culpability in escalating the 27 incident influences the totality of these circumstances. 661 F.3d at 445; see also id. at 446 n.6 28 ( Though failure to cooperate may be a relevant consideration, it is not the primary factor that we 20 1 are directed to consider. ). The Court finds that Hesterberg bears some culpability for escalation 2 of the incident because he lied to Cavallaro about his last name and failed to correct this untruth 3 throughout the 15-minute encounter before the taser was fired. If Hesterberg had told the truth 4 about his name, the encounter would have almost certainly ended uneventfully and in a matter of 5 minutes. Hesterberg testified that his decision to give a false name was split second and 6 motivated by a desire to keep his name off of any list that catalogued dog-leash violations. 7 (Dkt. No. 115 at 381:11-16.) Neither explanation for the decision absolves his culpability. While 8 the initial decision might have been split second, he could have corrected it in the proceeding 15 9 minutes but chose not to do so. Further, a desire to keep one s name out of the possession of law 10 United States District Court Northern District of California 11 enforcement does not justify lying to a law enforcement officer. To the extent Hesterberg argues that the false name can be justified because Cavallaro 12 failed to identify herself as a law enforcement officer, the Court is not persuaded. As an initial 13 matter, the Court notes that the salient question is not whether Hesterberg knew that an NPS park 14 ranger has the same authority as a police officer; rather, what matters are the facts relevant to 15 Hesterberg s knowledge of Cavallaro s general authority to enforce the law. On that measure, 16 Hesterberg testified that had he known Cavallaro was a law enforcement officer, he would not 17 have lied to her and he would have corrected his lie once he found out who she was. (See id. at 18 382:2-4.) To Hesterberg, Cavallaro was simply someone in a green uniform. The Court does not 19 find Hesterberg credible on this issue. On the day in question (and at trial), Cavallaro wore her 20 green duty uniform, which includes a duty belt that contains a multitude of law enforcement tools, 21 including a gun and, of course, a taser. A reasonable person who sees this belt would understand 22 that Cavallaro was highly likely to be some kind of law enforcement officer. The duty belt is also 23 large, rather bulky, and easily visible. It strains credulity to believe that Hesterberg did not see it 24 at any point in the 15-minute encounter with Cavallaro. Her uniform that day also included a 25 jacket that had an NPS patch badge and Cavallaro s embroidered name. Although Cavallaro s 26 medal badge was concealed under the jacket, the patch badge was nevertheless consistent with the 27 signs pointing to Cavallaro s law enforcement role. 28 21 1 The course of conduct between Cavallaro and Hesterberg also undermines Hesterberg s 2 assertion that he was unaware of her authority. In particular, Hesterberg was likely aware of 3 Cavallaro s authority when Cavallaro took Hesterberg s partially false identifying information, 4 radioed it to her dispatch, and waited several minutes for verification from dispatch. While 5 Hesterberg admits that he assumed that the ensuing delay was because Cavallaro was waiting for 6 a response from the dispatcher, he denies that he had any inkling why the response was delayed. 7 The Court, however, finds it difficult to credit Hesterberg s denial. The reason for the delay 8 should have been obvious to him he gave a false name to avoid his real name being put into a 9 database, Cavallaro radioed his information to dispatch prior to putting it into the database (which he may not have expected when he lied), and dispatch could not match the partially false 11 United States District Court Northern District of California 10 identifying information with law enforcement records. The Court fails to conceive of any other 12 logical reason that could have explained the delay under the circumstances known to Hesterberg. 13 Hesterberg s efforts to leave the scene in the face of Cavallaro s attempt to verify his identity also 14 strongly suggest that Hesterberg understood she was a law enforcement officer to whom he was 15 not allowed to lie. 16 Finally, once Cavallaro drew her taser and pointed it at him, Hesterberg should have 17 known that Cavallaro was a law enforcement officer and admitted to his lie. Given Cavallaro s 18 appearance and actions up to that point, it is not plausible that Hesterberg could have still believed 19 that Cavallaro was not a law enforcement officer. 20 Notwithstanding Cavallaro s abrupt and incomplete responses to the questions regarding 21 who she was and the basis for her authority, the Court finds that Hesterberg bears some 22 responsibility for the escalation of the incident. Hesterberg s untruthful statement to Cavallaro 23 and his subsequent efforts to escape his lie contributed to circumstances leading to Cavallaro s 24 use of her taser. The Court accordingly finds that this factor weighs in favor of the government. 25 iv) Hesterberg s statement that he had a heart condition 26 An additional factor to consider in this case is Hesterberg s statement to Cavallaro that she 27 should not tase him because of his heart condition. Cavallaro was trained that a person with a 28 heart condition may be in a high-risk group for serious injuries or even death from being tased. 22 1 (See Dkt. No. 114 at 36:17-37:8.) Cavallaro was also trained that one of the factors that she must 2 consider before tasing a person is whether that person may have a heart condition. (See id. at 3 39:18-21.) In her encounter with Hesterberg, Cavallaro considered Hesterberg s statement that he 4 had a heart condition,4 but tased him nonetheless as he began to jog away. The Court accordingly 5 finds that, consistent with Cavallaro s training and testimony at trial, Hesterberg s statement that 6 he had a heart condition weighed against but did not preclude Cavallaro s use of the taser. 7 See Mattos, 661 F.3d at 445-46 (concluding that officer s tasing of a pregnant woman in drive- 8 stun mode weighed against the reasonableness of the officer s use of force). The government contends that, regardless of Cavallaro s training, the Court should not 9 find that this factor weighs against the use of a taser because there was no serious risk of death or 11 United States District Court Northern District of California 10 injury to Hesterberg s heart. The Court is not persuaded. At the outset, the Court underscores 12 that the Ninth Circuit has already determined that the use of a taser in dart mode constitutes an 13 intermediate level of force with physiological effects, [ ] high levels of pain, and foreseeable risk 14 of physical injury. Gravelet-Blondin, 728 F.3d at 1091 (quoting Bryan, 630 F.3d at 825). 15 Whether Hesterberg was actually at high risk for injury or death due to his heart condition will not 16 change the taser s intermediate level of force classification. The Court s consideration of 17 Hesterberg s statement regarding his heart condition merely examines whether the statement 18 influences the totality of the circumstances; it does. The government presented the testimony of Dr. Theodore Chan in support of the 19 20 proposition that an officer who is told of an individual s heart condition may disregard the 21 statement as medically insignificant insofar as the officer does not tase the individual in the chest. 22 Dr. Chan is a professor of emergency medicine and an emergency physician at the University of 23 California San Diego, who has studied the physiological effects of tasers since the mid-2000s. 24 Dr. Chan testified that a taser is a relatively safe device that produces metabolic and physiologic 25 26 27 28 4 Although not known to Cavallaro at the time, Hesterberg has had three episodes of atrial fibrillation before this incident that required trips to the emergency room and one overnight stay to return his heart to a normal beating rhythm. Hesterberg also has hypertension, which his doctor told him contributes to his risk of atrial fibrillation. At the time of the incident, and now, Hesterberg was on medication for his hypertension. 23 effects similar to exertion. (Dkt. No. 116 at 528:1-8.) Dr. Chan further opined that while 2 studies have shown that a taser is capable of causing a particularly serious condition called 3 cardiac capture, 5 such occurrences in the medical literature were confined to instances where 4 the subject was tased in the chest. Dr. Chan s opinion, however, was based on studies where the 5 individuals tased had no known history of heart disease, including atrial fibrillation. In particular, 6 none of Dr. Chan s own studies examined an individual that was known to have a heart condition. 7 (See id. at 547:15-548:2.) In sum, Dr. Chan s opinions boil down to the proposition that, at least 8 for individuals without a preexisting heart condition, a taser used away from the chest area is 9 unlikely to lead to serious injury or death and will merely produce metabolic and physiological 10 effects similar to exertion. The problem with this opinion is that it says virtually nothing about 11 United States District Court Northern District of California 1 individuals with preexisting heart conditions, which is the segment of the population relevant to 12 this case. Thus, contrary to the government s assertion, it has not shown that there is zero 13 cardiac risk to someone who is tased in the back. (Dkt. No. 118 at 842:17.) If anything, the logical deduction from Dr. Chan s opinions is that an individual with a 14 15 heart condition is at greater risk for injury from a taser than an individual without a heart 16 condition. Dr. Chan opined that when an individual is tased, it is a stressful situation that could 17 lead to an elevated heart rate, elevated blood pressure, and increased respiration. (Id. at 534:24- 18 535:9, 536:8-14.) This makes sense considering the at-a-minimum five-second incapacitation and 19 severe pain caused by the taser s electrical impulses. Subjecting an individual with an undefined 20 heart condition to these elevated vital signs which may already be elevated because of the 21 stressful nature of the situation prior to the taser use or because of the individual s recent exertive 22 activity, such as jogging would seem to pose a particular risk of triggering that individual s 23 heart condition. In other words, while the taser may not directly cause injury to the heart, such 24 damage, if it were to occur, may constitute secondary injuries arising from the fear-inducing 25 tasing experience. As noted above, Hesterberg feared for his life as the taser pulsed electricity 26 27 28 Dr. Chan explained that cardiac capture is the notion that the taser s electrical impulses are not only able to stimulate the outer skeletal muscles, but also able to stimulate your heart and cause capture of the heart because of these rapid fire electrical impulses. (Dkt. No. 116 at 526:8-12.) 24 5 1 into his body. The absence of evidence quantifying the risk of such secondary injuries does not 2 preclude the Court from considering Hesterberg s heart-condition statement in analyzing the 3 totality of the circumstances; rather, the lack of quantifiable risk merely goes to the weight the 4 Court gives this factor. b) 5 Balancing 6 To determine reasonableness, the Court must balance the government s interest in 7 continuing to detain Hesterberg against the intrusion on Hesterberg s Fourth Amendment interests 8 with an intermediate level of force. The reasonableness of Cavallaro s use of the taser must be 9 judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, making allowance for the fact that police officers are often forced to make split- 11 United States District Court Northern District of California 10 second judgments in circumstances that are tense, uncertain, and rapidly evolving about the 12 amount of force that is necessary in a particular situation. Graham, 490 U.S. at 396-97. 13 Based on the Graham analysis above, whether Cavallaro s use of the taser was excessive 14 turns on whether such use was justified in stopping a fleeing, nonviolent, non-serious 15 misdemeanant, who posed no threat to Cavallaro or the public, who was not sufficiently warned 16 prior to the tasing, and who Cavallaro knew had an undefined heart condition. For the reasons 17 explained below, the Court finds that Cavallaro s use of the taser under those circumstances was 18 not justified. 19 Although the government has a clear interest in stopping fleeing suspects, that interest is 20 not absolute. See Tennessee v. Garner, 471 U.S. 1, 11 (1985) ( Where the suspect poses no 21 immediate threat to the officer and no threat to others, the harm resulting from failing to 22 apprehend him does not justify the use of deadly force to do so. ). Further, the government s 23 interest in apprehending suspects varies depending on what the suspect is fleeing from; for 24 example, the government would have a greater interest in apprehending a residential burglar than a 25 litterer. If that suspect is violent or poses a threat to the officer or the public, the government s 26 interest in stopping his flight increases still. 27 28 The Court finds that this case involves an almost imperceptibly low government interest in apprehending Hesterberg. The government concedes that Cavallaro had probable cause to arrest 25 1 Hesterberg for only the dog-leash violation and disobeying her lawful orders to stay and to put his 2 hands behind his back; Hesterberg, meanwhile, does not challenge that Cavallaro had reasonable 3 suspicion that he had lied about his name and thus was authorized to continue to detain him while 4 she investigated that crime. As discussed above, however, these are non-serious offenses on their 5 face. The offenses are particularly inconsequential in the context of this case, given that 6 Cavallaro s duty at the Rancho was to engage leash-law violators in an educational contact that 7 would inform the violator of the transfer of ownership to GGNRA. Cavallaro s mission was to 8 merely warn off-leash dog-walkers that GGNRA s dog leash laws would be enforced against them 9 in the future.6 In other words, Cavallaro and her superiors viewed leash-law violations on January 29, 2012 as not meriting even a citation. In light of that previous position, the Court fails to see 11 United States District Court Northern District of California 10 how the government can now plausibly claim its interest in pursuing such violations was so high 12 as to necessitate Hesterberg s capture with near-maximum non-deadly force. Further, Hesterberg 13 was nonviolent and posed no threat to Cavallaro or anyone else; thus, the government had no 14 interest in capturing him because of a danger he posed. The lack of any violent conduct on the 15 part of Hesterberg is crucial; as noted above, the Ninth Circuit has held that the most important 16 factor in the Graham analysis is whether the suspect posed a threat to safety not whether the 17 suspect was fleeing in evaluating the government s interest in the use of force. Mattos, 661 F.3d 18 at 441. 19 Weighed against this minimal interest is the intermediate level of force inflicted on 20 Hesterberg; specifically, the taser s physiological effects, high levels of pain, and foreseeable risk 21 of physical injury. Gravelet Blondin, 728 F.3d at 1091 (internal quotation marks and alterations 22 omitted). The Court finds that the intrusion on Hesterberg s Fourth Amendment interest to be free 23 from being tased greatly outweighs the minimal governmental interest in apprehending him for his 24 violations of the law. Cavallaro s use of her taser on Hesterberg was therefore unconstitutional. 25 26 27 28 6 There is no evidence in the record that any leash law enforcement by any government entity had ever occurred at the Rancho prior to the day in question. Nor is there any evidence that, as of January 29, 2012, GGNRA had posted any sign in the Rancho informing users of the leash law. 26 The Court s ruling is from the perspective of a reasonable officer on the scene. Although 1 2 Cavallaro was dealing with a developing situation in that she was trying to direct backup to her 3 location on the trail, the record does not show a situation in which Cavallaro s decision to tase 4 Hesterberg was made in haste or impulsively. In fact, Cavallaro testified that the situation 5 presented enough time for her to formulate a plan to tase Hesterberg if he attempted to leave at any 6 point during the four minutes she had him at taser point. The dispatch recordings and radio 7 transcripts verify Cavallaro s testimony; specifically, the verbal exchanges were sparse and there 8 were numerous moments for reflection during the four minutes that she had her taser out. 9 Cavallaro merely made the incorrect constitutional calculation when she chose to tase Hesterberg 10 rather than let him flee. United States District Court Northern District of California 11 Cavallaro s failure to adequately warn Hesterberg and her decision to tase him despite his 12 disclosure of a heart condition contributes to the unreasonableness of the use of force. However, 13 even if Cavallaro had given Hesterberg an explicit verbal warning of the impending use of force, 14 the Court would still find that the tasing was unreasonable. The government s interest in 15 apprehending Hesterberg is simply too low to justify his tasing even if he willfully disregarded 16 such a warning. Nor would the absence of the disclosure about his heart condition warrant a 17 different result in light of the government s meager interests. 18 The government s arguments to the contrary are unpersuasive. The government s primary 19 contention is that, outside of the deadly force context, a law enforcement officer is never required 20 to let a suspect flee and may always use intermediate force to apprehend a fleeing suspect if the 21 officer exhausts her use-of-force options.7 But there is no rule that using non-deadly force to 22 capture an unidentified law-breaker is per se reasonable; in fact, the [Supreme] Court has 23 emphasized that there are no per se rules in the Fourth Amendment excessive force context. 24 Mattos, 661 F.3d at 441 (emphasis added). Moreover, the Ninth Circuit rejected a similar 25 assertion over two decades ago. See Chew v. Gates, 27 F.3d 1432, 1443 n.11 (9th Cir. 1994) 26 (rejecting defendant s contention that anything short of deadly force may constitutionally be used 27 7 28 The government further contends that no other use of force option was feasible in terms of effectiveness and officer safety at the point Cavallaro chose to fire her taser. 27 1 to apprehend a felon; reasoning that this assertion conflicts with the holding and the reasoning 2 of Graham as well as with prior circuit law ). And in Azevedo v. City of Fresno, 2011 WL 3 284637 (E.D. Cal. Jan. 25, 2011), the court denied the officer s motion for summary judgment 4 since a reasonable jury could conclude that the officer s use of a taser to apprehend a fleeing 5 misdemeanant was excessive. The Azevedo court rejected the officer s argument (now posed by 6 the government) that flight alone justifies the use of the taser: 7 While Azevedo was clearly in flight when Carr deployed the taser, the Court cannot say as a matter of law that Azevedo s flight made use of the taser reasonable. The misdemeanors involved were all non-violent, and the evidence indicates that Azevedo did not pose an immediate threat to the officers. Importantly, Azevedo and Carr were running at full speed on the street. It was understood that the taser would immobilize Azevedo. . . . In the absence of an immediate threat posed by Azevedo, a reasonable jury could conclude that the nature of the force and the risk of injury were too great relative to the offenses at issue. 8 9 10 United States District Court Northern District of California 11 12 13 Id. at *9. Other courts have also indicated that it can be unreasonable to use intermediate levels of 14 force to apprehend a fleeing suspect. See Cockrell v. City of Cincinnati, 2010 WL 4918725, at *3- 15 4 (S.D. Ohio Nov. 24, 2010) (denying officer s motion to dismiss since fact that nonviolent, 16 nonthreatening suspect fled from the minor crime may not well support the use of a taser when 17 reviewed under the totality of the circumstances ) overturned on other grounds by 468 Fed. Appx. 18 491 (6th Cir. 2012) (unpublished); see also Mason v. Hamilton Cnty., 13 F. Supp. 2d 829, 836 19 (S.D. Ind. 1998) (denying plaintiff s motion for judgment as a matter of law, but emphasizing that 20 the jury could have easily ruled that the officer s use of a police dog to stop a fleeing 21 misdemeanant was unreasonable under Graham); see also Marley v. City of Allentown, 774 F. 22 Supp. 343, 345-46 (E.D. Pa. 1991) (holding that it was not objectively reasonable for [the officer] 23 to think that unleashing a trained attack dog to apprehend a fleeing misdemeanant comported with 24 [Garner] ). 25 The government s cited cases are either unpersuasive or distinguishable. In Hernandez v. 26 City of Pomona, 46 Cal. 4th 501, 520 (2009), the California Supreme Court held that officers were 27 not obliged to cease pursuing a fleeing suspect who was willing to endanger his own life and 28 the lives of the officers and the public. As conceded by the government, however, Hesterberg 28 1 posed no danger to anyone; Hernandez is accordingly not applicable. For similar reasons, Beaver 2 v. City of Federal Way is also distinguishable. 507 F. Supp. 2d 1137, 1145 (W.D. Wash. 2007) 3 (concluding that the first three of five tasings of a fleeing felon residential burglary who 4 appeared to be under the influence of controlled substances, did not constitute excessive force). 5 Finally, the Eighth Circuit s decision in McKenney v. Harrison is unpersuasive to the extent it 6 holds that use of a taser is per se reasonable to stop a fleeing misdemeanant. 635 F.3d 354, 360 7 (8th Cir. 2011) ( Although the charges were limited to misdemeanors, the officers executing the 8 warrant were not required to let Barnes run free. ). The McKenney court failed to analyze the use 9 of force under Graham; that is, it failed to weigh the government s interest in apprehending McKenney pursuant to misdemeanor arrest warrants against McKenney s interest in being free 11 United States District Court Northern District of California 10 from a taser shot in dart mode. Rather, the court concluded, without supporting authority, that 12 McKenney s mere attempt to escape justified the use of the taser. This Court respectfully 13 disagrees. 14 The government s argument that law enforcement may not be compelled to simply let a 15 non-serious misdemeanant escape is also undermined by the evidence in this case. Specifically, 16 Hunter Bailey (the government s expert witness on use of force) testified, in response to 17 questioning by the Court, that some law enforcement agencies prohibit their officers from using 18 tasers on nonviolent, fleeing misdemeanants. (See Dkt. No. 116 at 664:24-665:16.) Bailey further 19 testified that some agencies do not even distribute tasers to their officers in the first place. (See id. 20 at 665:17-22.) Thus, those officers would not be able to use a taser to prevent escape when all 21 other use-of-force options were unavailable (as Cavallaro contends here); in other words, they 22 would have no option other than letting the non-dangerous, non-serious misdemeanor suspect flee. 23 Bailey s acknowledgment of the contrary practices of other law enforcement agencies supports the 24 Court s conclusion that preventing escape cannot alone justify the use of the taser under the 25 circumstances here. In addition, Cavallaro s supervisors, Kevin Cochary and Marybeth 26 McFarlane, instructed Cavallaro following the incident with Hesterberg that if a similar situation 27 presented itself again, Cavallaro should simply let the person leave. (See Dkt. No. 114 at 157:5- 28 21.) Thus, Cavallaro s own supervisors also undercut the government s contention that allowing 29 1 such low-level violators to escape under similar circumstances is an untenable law-enforcement 2 practice. 3 The government also argues that Hesterberg s status as an unidentified law-breaker is 4 significant; specifically, the government argues that the use of a taser is justified in capturing 5 unidentified, non-serious misdemeanants because we live in a safer world when people who are 6 witnessed committing crimes are identified and checked for outstanding warrants. (See Dkt. No. 7 119 at 848:23-849:2 ( People are stopped for minor violations who have warrants, who are 8 probation violators, and we are all safer, the Court is safer, I am safer, Gary Hesterberg is safer in 9 a world where people who are stopped for conceded and obvious violations of the law are identified. ).) The government contends that Cavallaro s actions in preventing Hesterberg s 11 United States District Court Northern District of California 10 escape were consistent with this principle because he had yet to be identified and checked for 12 warrants when she tased him. Even if the government s proposed warrant-check rule would 13 promote overall safety, the rule s constitutionality is questionable. As this Court previously noted 14 in an earlier ruling, the Ninth Circuit has held that in certain circumstances an officer may not 15 prolong an initially lawful detention to check for outstanding warrants without reasonable 16 suspicion that such warrants exist. United States v. Luckett, 484 F.2d 89, 91 (9th Cir. 1973) (per 17 curium) (finding Fourth Amendment violation where pedestrian stopped for jaywalking continued 18 to be detained for a warrants check after pedestrian was issued a citation, and where no reasonable 19 suspicion supported seizure for check of outstanding warrants). The government concedes that 20 Cavallaro had no reasonable suspicion that Hesterberg had any outstanding warrants. Thus, given 21 the questionable constitutionality of continuing to detain Hesterberg for the sole purpose of 22 running a warrants check, the Court is not persuaded that the need to run a warrants check elevates 23 the government s interest in preventing Hesterberg s escape such that Cavallaro s use of force was 24 reasonable. 25 Finally, the government contends that the tasing was justified because of the paramount 26 interest of law enforcement officers in identifying the persons they are dealing with. (Dkt. No. 27 98 at 5.) As an initial matter, the Court notes that Cavallaro failed to actually try to identify 28 Hesterberg after she suspected his name was false but prior to the taser deployment. As 30 1 Hesterberg s police practices expert testified, a reasonable law enforcement officer is trained to 2 use their words in extracting identifying information from individuals, particularly where the 3 officer believes she has been given false identifying information. Cavallaro, however, did not 4 even ask Hesterberg if the name he had given her was correct, even though she asserts she had a 5 hunch that the name was false and despite sufficient opportunities to do so. In any event, the 6 Court is not persuaded that the need to identify Hesterberg for his low-level violations of law 7 justify Cavallaro s use of the taser, even if the taser was the only tool remaining to collect 8 Hesterberg s identifying information. 9 The Court is aware that its ruling is counter to the conclusion drawn by Hunter Bailey, NPS Deputy Chief of Law Enforcement ( DCOP ), i.e., the point person for the agency s use of 11 United States District Court Northern District of California 10 force policy. However, Bailey s testimony at trial revealed a startling lack of awareness of the law 12 and its application to use of force scenarios. Specifically, Bailey testified that Cavallaro s tasing 13 of Hesterberg was appropriate under various sections of both DOI and NPS policies. First, Bailey 14 concluded that Cavallaro s actions were consistent with the provision in DOI s Chapter 22 and 15 NPS RM-9 that states: When such force is legally justified and consistent with Department 16 policy, ECDs may be used on individuals who are actively resisting a commissioned employee or 17 to prevent individuals from harming themselves or others. (Trial Ex. 124 at Ch. 32 ¶ 4.2.) To 18 interpret and enforce this policy, Bailey is required to know, among other things, when force is 19 legally justified and when an individual is actively resisting arrest. Bailey is further required 20 to know how United States Courts of Appeal have interpreted those specific legal terms; for this 21 case, he would need to know under what circumstances the Ninth Circuit has deemed the use of 22 intermediate force, and specifically a taser, legally justified as well as the Ninth Circuit s rule 23 governing active resistance. Bailey, however, was ignorant of any such holdings: 24 Q. You don t even know what the legal standard was for the use of a taser at the time of this incident, do you? 25 26 27 28 A. The legal standard in the Ninth Circuit? Q. Right. A. No, not specifically. 31 1 (Dkt. No. 116 at 655:15-19.) At the time of Bailey s deposition in this case in April 2014, Bailey 2 had never heard of the Ninth Circuit s en banc opinion in Mattos nor its decision in Bryan. (Id. 3 at 653:13-25.) Mattos and Bryan are fundamental to understanding some of the circumstances 4 under which the use of a taser would be unconstitutional under Ninth Circuit precedent.8 Bailey s 5 lack of knowledge was reflected in his testimony (introduced as impeachment) that a baton 6 strike also an intermediate level of force in the Ninth Circuit would not have been justified 7 under the same circumstances present here because a baton strike is a higher level of force with 8 more significant potential injuries than a taser in dart mode. (Id. at 658:8-659:19.) There is no 9 such distinction in the Ninth Circuit. The Court fails to see how Bailey could competently opine on whether an NPS officer s 11 United States District Court Northern District of California 10 use of a taser was legally justified when he is unaware of what the law justifies. Nor could he 12 competently say whether an individual was actively resisting since he has no knowledge of what 13 that term means in the Ninth Circuit. Thus, contrary to Bailey s belief, he has no basis to assert 14 whether any NPS officer s use of a taser in the Ninth Circuit (Cavallaro s included) complied with 15 DOI and NPS policy. Bailey further testified regarding the paragraph in RM-9 that states: 16 17 When a subject is believed to be part of a high risk group (e.g., the very young, the very old, the infirm, pregnant females, etc.) the commissioned employee should evaluate other options if possible and provide follow-up medical attention. 18 19 20 (Trial Ex. 124 at Ch. 32 ¶ 4.2 (emphasis added).) Bailey opined that Cavallaro s tasing in this 21 case would have also been justified pursuant to RM-9, [u]nder all the same facts that applied to 22 Mr. Hesterberg, if used against a nine-year-old girl or an eight-month pregnant woman, rather 23 than Hesterberg, so long as Cavallaro evaluated other options. 9 (Dkt. No. 116 at 660:10-20.) 24 8 25 26 27 28 National parks and recreation areas within the Ninth Circuit accounted for nearly 26% of total NPS park visitors in 2013. See NAT L PARK SERV., U.S. DEP T OF THE INTERIOR, NPS/NRSS/EQD/NRDS 2014/635, STATISTICAL ABSTRACT 2013 (2014). In particular, the GGNRA had the highest number of visitors in 2013 out of all the national parks and recreation areas in the country. See id. It is thus surprising, if not disturbing, that the NPS official responsible for NPS taser policy was not familiar with Ninth Circuit law regarding taser use. 9 On redirect, counsel for the government attempted to rehabilitate Bailey s testimony by suggesting that a nine-year-old girl and an eight-month pregnant woman were not likely 32 1 While Bailey s opinion may reflect a literal reading of NPS policy, it is nevertheless unacceptable. 2 The Court cannot imagine a rational fact-finder that would find it reasonable to tase a nonviolent 3 and nonthreatening nine-year-old or eight-month-pregnant woman fleeing from non-serious 4 misdemeanors. 5 The Court accordingly gives no weight to Bailey s opinions regarding the reasonableness 6 of Cavallaro s use of force. Further, the DOI and NPS policies on their face provide no guidance 7 for the Court not to mention DOI and NPS officers since they are, essentially, standardless 8 policies devoid of any rules for dealing with fleeing subjects. For the reasons stated above, the Court finds that Cavallaro s use of her taser against 10 Hesterberg was objectively unreasonable under the totality of the circumstances. The Court 11 United States District Court Northern District of California 9 accordingly rules in favor of Hesterberg, and against the government, on Hesterberg s state-law 12 battery claim. 13 B. Negligence 14 Except when otherwise provided by law, public employees in California are statutorily 15 liable to the same extent as private persons for injuries caused by their acts or omissions, subject 16 to the same defenses available to private persons. Hayes v. Cnty. of San Diego, 57 Cal. 4th 622, 17 628-29 (2013). [I]n order to prove facts sufficient to support a finding of negligence, a plaintiff 18 must show that [the] defendant had a duty to use due care, that he breached that duty, and that the 19 breach was the proximate or legal cause of the resulting injury. Nally v. Grace Cmty. Church, 47 20 Cal. 3d 278, 292 (1988). 21 The government does not dispute that Cavallaro had a duty under California law to act 22 reasonably when using her taser against Hesterberg. The government also does not challenge 23 Hesterberg s contention that the California Supreme Court s decision in Hayes, a case involving 24 the use of deadly force, applies to a case such as this where the use of force was less than deadly. 25 26 27 28 candidates to be able to flee from Cavallaro. (See id. at 672:8-18.) However, the hypothetical posed to Bailey on cross-examination involved a scenario where the nine-year-old and the eightmonth pregnant woman were actually fleeing. In any event, government counsel s altered hypotheticals do little to help Bailey s testimony since they merely go to the likelihood of flight not what force Cavallaro would be authorized to use if the high-risk individual actually flees. On that latter point, Bailey s testimony remained unchanged. 33 1 The Hayes court held that, under California negligence law, liability can arise from tactical 2 conduct and decisions employed by law enforcement preceding the use of deadly force if such 3 tactical conduct and decisions show, as part of the totality of circumstances, that the use of deadly 4 force was unreasonable. 57 Cal. 4th at 626. Hesterberg claims that, in addition to the tasing itself, Cavallaro breached her duty of care 6 by failing to identify herself as a law enforcement officer, her poor communication skills, and her 7 decisions to prolong and escalate th[e] situation. (Dkt. No. 90 at 30.) The Court finds that 8 even if Cavallaro s pre-tasing conduct was reasonable Cavallaro breached her duty of care to 9 Hesterberg when she tased him, which, for the reasons explained above, was unreasonable under 10 the totality of the circumstances. The Court further finds that Cavallaro s tasing of Hesterberg 11 United States District Court Northern District of California 5 was the proximate cause of his injuries. Because Hesterberg has established the elements for his negligence cause of action, the 12 13 Court finds in favor of Hesterberg, and against the government, on the negligence claim. C. 14 Damages For the breach of an obligation not arising from contract, the measure of damages, 15 16 except where otherwise expressly provided by this code, is the amount which will compensate for 17 all the detriment proximately caused thereby, whether it could have been anticipated or not. Cal. 18 Civ. Code § 3333. Hesterberg seeks damages for the following injuries: physical injuries, 19 including puncture wounds, contusions, scrapes, and shoulder pain;10 physical pain and suffering; 20 and emotional and mental distress. Although Hesterberg s physical injuries were minor (they all healed within a week or so), 21 22 the physical pain and suffering Hesterberg suffered during the five-second tasing, and as he 23 crashed face-first onto the pavement, was intensely overwhelming. Hesterberg, who has 24 experienced a broken collar bone and dual hip surgeries, testified that he has never experienced 25 such pain in his life. The sudden pain was so intense that Hesterberg feared he would die. 26 27 28 10 Hesterberg does not claim any damage to his heart. 34 The Court also finds that Hesterberg suffered some emotional and mental distress as a 1 2 result of the tasing. Cavallaro s tasing of Hesterberg garnered substantial media attention; one of 3 Cavallaro s supervisors, Marybeth MacFarlane, described the incident as basically becoming a 4 shit storm in the media. (Dkt. No. 111-1 at 96:2.) United States Congresswoman Jackie Speier 5 wrote a public letter to GGNRA Superintendent Frank Dean a few days after the incident inquiring 6 into GGNRA s use-of-force policies and practices as well as GGNRA s handling of the transition 7 of the Rancho property. (See Trial Ex. 6.) The Hesterbergs answering machine became full with 8 messages from reporters and the media even showed up at the Hesterbergs home. As a result of 9 the media attention, which Hesterberg has not materially supported or indulged in, Hesterberg s friends and acquaintances often ask him about the incident. Even people who meet Hesterberg for 11 United States District Court Northern District of California 10 the first time have recognized him as the man tased at the Rancho and have asked him about the 12 incident, thus serving as a nasty reminder of the tasing. (Dkt. No. 115 at 423:18.) Hesterberg 13 also testified that the incident replays in his mind every time he jogs by the part of the trail 14 where the tasing occurred. (Id. at 422:13-423:7.) Although he now jogs in the Rancho as often as 15 he did before the incident, it took about a month after the incident before Hesterberg felt 16 comfortable returning to the Rancho. The Court accordingly finds that Hesterberg suffered 17 compensable emotional and mental distress. The Court notes, however, that while Hesterberg has 18 some emotional and mental distress as the result of Cavallaro s decision to tase him, that distress 19 is likely tempered by Hesterberg s acknowledgment of his own role leading to the tasing; namely, 20 lying to Cavallaro and never correcting his lie. In other words, Hesterberg s self-reflection of his 21 behavior leading up to the tasing should lessen the level of distress that he feels was unjustly put 22 upon him. CONCLUSION 23 For the reasons stated above, the Court finds in favor of Gary Hesterberg, and against the 24 25 government, on Hesterberg s battery and negligence claims and awards $50,000.00 in damages. 26 The Opinion constitutes the findings of facts and conclusions of law required by Federal Rule of 27 Civil Procedure 52(a)(1). A separate judgment will follow. 28 // 35 1 2 3 4 IT IS SO ORDERED. Dated: October 9, 2014 ______________________________________ JACQUELINE SCOTT CORLEY United States Magistrate Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36
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