Hearod v. Bay Area Rapid Transit District et al, No. 4:2007cv06390 - Document 38 (N.D. Cal. 2008)

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Hearod v. Bay Area Rapid Transit District et al Doc. 38 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 No. C 07-6390 CW 9 TONY HEAROD, United States District Court For the Northern District of California 10 11 12 13 14 15 ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART PLAINTIFF’S CROSSMOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff, v. BAY AREA RAPID TRANSIT DISTRICT; T. PASHOIAN, individually and in his capacity as a police officer for the BART Police Department; DOES 1-20, inclusive, Defendants / 16 17 18 Plaintiff Tony Hearod charges Defendant Timothy Pashoian, a 19 law enforcement officer, with using excessive force in the course 20 of arresting him without probable cause. 21 Bay Area Rapid Transit District (the District) move for summary 22 judgment or, in the alternative, partial summary judgment, on the 23 claims against them. 24 with respect to his claims for racial discrimination in violation 25 of the Equal Protection Clause of the Fourteenth Amendment and 26 California Civil Code § 51.7, and for violation of his Fourteenth 27 Amendment substantive due process rights. 28 summary judgment with respect to his excessive use of force and Defendants Pashoian and Plaintiff opposes Defendants’ motion except He cross-moves for Dockets.Justia.com 1 unreasonable seizure claims, but not with respect to his claims 2 brought under state law. 3 Having considered oral argument and all of the papers submitted by 4 the parties, the Court grants each motion in part and denies each 5 in part. The matter was heard on December 4, 2008. United States District Court For the Northern District of California 6 BACKGROUND 7 Shortly after 9:00 a.m. on March 26, 2007, Shelley Kushman, a 8 station agent at the 19th St. BART station in Oakland, California, 9 contacted BART police dispatch to report that she suspected a man 10 of selling BART tickets in the station. 11 Penal Code § 602.7, any person who sells anything on BART property 12 is guilty of an infraction. 13 an African-American man in his fifties, wearing a black cap, a navy 14 nylon jacket, black pants and a black backpack, and carrying a 15 priority mail package. 16 toward the 19th St. station exit. 17 Pursuant to California Ms. Kushman described the suspect as She reported that she saw the suspect walk The dispatcher relayed the information provided by Ms. Kushman 18 to officers in the field. 19 Defendant Pashoian, who is a BART police sergeant, and BART police 20 officers Anisa McNack and Wendy Trieu. 21 the scene at 9:24 a.m. and observed Plaintiff above-ground in the 22 vicinity of the station entrance.1 23 American man in his late forties. 24 was wearing a blue New York Yankees jacket, black pants and a black 25 backpack. 26 reflect whether he was wearing a black cap. Three officers responded to the call: Officer McNack arrived at Plaintiff is an AfricanAt the time of the incident, he He was not carrying a package. The record does not 27 1 28 At her deposition, Officer McNack stated that she could not recall Plaintiff’s exact location at the time she located him. 2 1 2 Officer McNack radioed dispatch and requested that they verify 3 whether the suspect was wearing a Yankees jacket. 4 back, confirming that the man Ms. Kushman had seen was wearing a 5 Yankees jacket.2 6 United States District Court For the Northern District of California Suspecting that Plaintiff was the man reported by Ms. Kushman, Dispatch radioed At this time, Sgt. Pashoian was standing on the corner of 20th 7 St. and Broadway. 8 standing near one of the entrances to the BART station and speaking 9 on his cell phone. He had located Plaintiff across Broadway, At his deposition, Plaintiff testified that he 10 had just finished transacting business at a nearby bank and was 11 speaking on his phone with his girlfriend. 12 the BART station. 13 where Sgt. Pashoian was standing. 14 He had not been inside Plaintiff began walking across Broadway toward The parties dispute what happened next. According to 15 Plaintiff, he had gotten half-way across the street when Sgt. 16 Pashoian told him, “Get over here.” 17 at 18. 18 here and he’s telling me to get over here; for what reason, I don’t 19 know.” 20 “What’s the problem, Officer?” 21 the officer, but he did not disconnect his phone call. 22 Pashoian repeated his direction to “get over here” and told Houk Dec. Ex. 4 (Pl.’s Dep.) Plaintiff told his girlfriend, “Baby, this officer is over Id. He continued to walk toward Sgt. Pashoian and asked, Id. at 19. He directly approached Sgt. 23 2 24 25 26 27 28 At her deposition, Ms. Kushman did not specifically remember being asked about the Yankees jacket. In addition, the audio recording from BART dispatch that was submitted to the Court does not reflect a call to Ms. Kushman seeking verification of the type of jacket. At oral argument, Defendants stated that they had recently discovered the recording of this call and asked for leave to submit it as evidence. Such evidence is unnecessary, however, because the recording that was previously submitted demonstrates that the dispatcher contacted Officer McNack to confirm that the suspect was wearing a Yankees jacket. 3 United States District Court For the Northern District of California 1 Plaintiff, “You know what time it is.” 2 statement about the time is a colloquial expression and was 3 equivalent to telling Plaintiff, “You know what I’m talking about.” 4 Id. at 20. 5 with him and “needed [him] to stop.” 6 was “face to face” in front of Sgt. Pashoian, Sgt. Pashoian grabbed 7 his right arm, twisted it behind his back, spun his body around and 8 “slammed” him into the window of the bank located on the corner. 9 Id. at 20-22. Id. at 19. Sgt. Pashoian’s Plaintiff understood that Sgt. Pashoian wanted to talk Id. at 20. When Plaintiff Plaintiff’s cell phone “went flying in the middle of 10 the street.” 11 his arm “was going to break” and “begged” him to release it. 12 at 22-23. 13 window for about three to four minutes. 14 Plaintiff did not resist, but he may have attempted to look around 15 for his phone. 16 and escorted him to a nearby bench. 17 the bench, Plaintiff complained that Sgt. Pashoian had almost 18 broken his arm. 19 “shut up,” and that if he had wanted to break Plaintiff’s arm, he 20 would have done so. 21 Id. at 20. Plaintiff told Sgt. Pashoian he felt like Id. Sgt. Pashoian continued to hold Plaintiff against the During this time, Sgt. Pashoian then placed Plaintiff in handcuffs As they were walking toward Sgt. Pashoian responded by telling Plaintiff to Id. at 26. Not surprisingly, Sgt. Pashoian tells a different version of 22 events. 23 Plaintiff until Plaintiff had reached the sidewalk on the side of 24 the street where he was standing. 25 motioned to Plaintiff and said something to the effect of, “I need 26 to speak with you.” 27 Plaintiff made eye contact with Sgt. Pashoian but, rather than 28 respond to his request, Plaintiff ignored him, continued to talk on According to him, he did not initiate contact with At that point, Sgt. Pashoian Houk Dec. Ex 7 (Pashoian Dep.) at 25. 4 United States District Court For the Northern District of California 1 his cell phone and walked past him. 2 Plaintiff was not going to stop and might flee the scene. 3 28. 4 Pashoian “placed [his] hand on [Plaintiff’s] arm.” 5 Plaintiff “immediately tensed up and started to pull away” from 6 him. 7 detention. 8 a control hold commonly taught as a means of using low-intensity 9 force to gain control over a subject -- and “pressed him” into the Sgt. Pashoian believed that Id. at After Plaintiff had taken three or four steps past him, Sgt. Id. Id. at 27. Sgt. Pashoian believed Plaintiff was resisting a lawful Accordingly, he used a rear wrist lock on Plaintiff -- 10 window of the bank. 11 detention. 12 to stop resisting, Sgt. Pashoian handcuffed him and sat him down on 13 the bench. 14 Plaintiff complaining about being in pain, but stated that 15 Plaintiff uttered “several expletives” during the course of the 16 detention. 17 Id. at 31. Plaintiff continued to resist his After Plaintiff complied with Sgt. Pashoian’s command At his deposition, Sgt. Pashoian could not remember Id. at 35. It is undisputed that, once Plaintiff had been detained, Ms. 18 Kushman was asked to come to the scene. 19 Plaintiff as the man she suspected of illegally selling the BART 20 ticket. 21 wrists and released him. 22 and fifteen minutes. She was unable to identify Sgt. Pashoian then removed the handcuffs from Plaintiff’s The entire incident lasted between ten 23 Plaintiff now charges Sgt. Pashoian with liability under 42 24 U.S.C. § 1983 for unlawful seizure and excessive use of force in 25 violation of the Fourth Amendment, as applied to the states by 26 operation of the Fourteenth Amendment. 27 against both Defendants for the common law torts of negligence, 28 false imprisonment and battery, and for violation of California 5 He also asserts claims 1 Civil Code § 52.1.3 2 3 Summary judgment is properly granted when no genuine and 4 disputed issues of material fact remain, and when, viewing the 5 evidence most favorably to the non-moving party, the movant is 6 clearly entitled to prevail as a matter of law. 7 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 8 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 9 1987). 10 United States District Court For the Northern District of California LEGAL STANDARD Fed. R. Civ. P. The moving party bears the burden of showing that there is no 11 material factual dispute. 12 the opposing party’s evidence, if it is supported by affidavits or 13 other evidentiary material. 14 815 F.2d at 1289. 15 favor of the party against whom summary judgment is sought. 16 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 17 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 18 1551, 1558 (9th Cir. 1991). 19 Therefore, the court must regard as true Celotex, 477 U.S. at 324; Eisenberg, The court must draw all reasonable inferences in Material facts which would preclude entry of summary judgment 20 are those which, under applicable substantive law, may affect the 21 outcome of the case. 22 are material. 23 (1986). The substantive law will identify which facts Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 24 25 26 27 28 3 The complaint also asserts claims for racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment and California Civil Code § 51.7, and for violation of Plaintiff’s Fourteenth Amendment substantive due process rights. As noted above, Plaintiff does not oppose Defendants’ motion for summary judgment on these claims, and the motion will thus be granted in relevant part. 6 1 Where the moving party does not bear the burden of proof on an 2 issue at trial, the moving party may discharge its burden of 3 production by either of two methods: 4 5 6 The moving party may produce evidence negating an essential element of the nonmoving party’s case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. 7 Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 8 1099, 1106 (9th Cir. 2000). 9 If the moving party discharges its burden by showing an United States District Court For the Northern District of California 10 absence of evidence to support an essential element of a claim or 11 defense, it is not required to produce evidence showing the absence 12 of a material fact on such issues, or to support its motion with 13 evidence negating the non-moving party’s claim. Id.; see also 14 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990); Bhan v. 15 NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). If the 16 moving party shows an absence of evidence to support the non-moving 17 party’s case, the burden then shifts to the non-moving party to 18 produce “specific evidence, through affidavits or admissible 19 discovery material, to show that the dispute exists.” Bhan, 929 20 F.2d at 1409. 21 If the moving party discharges its burden by negating an 22 essential element of the non-moving party’s claim or defense, it 23 must produce affirmative evidence of such negation. Nissan, 210 24 F.3d at 1105. If the moving party produces such evidence, the 25 burden then shifts to the non-moving party to produce specific 26 evidence to show that a dispute of material fact exists. Id. 27 If the moving party does not meet its initial burden of 28 7 1 production by either method, the non-moving party is under no 2 obligation to offer any evidence in support of its opposition. 3 This is true even though the non-moving party bears the ultimate 4 burden of persuasion at trial. United States District Court For the Northern District of California 5 Id. Id. at 1107. Where the moving party bears the burden of proof on an issue 6 at trial, it must, in order to discharge its burden of showing that 7 no genuine issue of material fact remains, make a prima facie 8 showing in support of its position on that issue. 9 Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994). UA Local 343 v. That 10 is, the moving party must present evidence that, if uncontroverted 11 at trial, would entitle it to prevail on that issue. 12 has done so, the non-moving party must set forth specific facts 13 controverting the moving party’s prima facie case. 14 48 F.3d at 1471. 15 [the moving party’s] evidence is not negligible.” 16 standard does not change merely because resolution of the relevant 17 issue is “highly fact specific.” 20 UA Local 343, Id. This Id. DISCUSSION I. Constitutional Claims A. 21 22 Once it The non-moving party’s “burden of contradicting 18 19 Id. Unlawful Seizure 1. Violation of the Fourth Amendment “The Fourth Amendment prohibits ‘unreasonable searches and 23 seizures’ by the Government, and its protections extend to brief 24 investigatory stops of persons or vehicles that fall short of 25 traditional arrest.” 26 (2002). 27 meaning of the Fourth Amendment because, once he had been subdued 28 and handcuffed, “a reasonable person in his situation would not United States v. Arvizu, 534 U.S. 266, 273 It is undisputed that Plaintiff was “seized” within the 8 United States District Court For the Northern District of California 1 have felt free ‘to disregard the police and go about his 2 business.’” 3 (9th Cir. 2002) (quoting California v. Hodari D., 499 U.S. 621, 628 4 (1991)). 5 arrested, or merely subjected to an investigatory stop. 6 standards apply to the two types of seizures: 7 supported by probable cause. 8 investigatory search or seizure” -- also called a “Terry stop” 9 after Terry v. Ohio, 392 U.S. 1 (1968), the first case to describe Gallegos v. City of Los Angeles, 308 F.3d 987, 990 However, the parties dispute whether Plaintiff was Id. Different An arrest must be But police may conduct a “brief, 10 it -- so long as they have “a reasonable, articulable suspicion 11 that justifies their actions.” 12 reasonable suspicion standard ‘is a less demanding standard than 13 probable cause,’” and merely requires ‘a minimal level of objective 14 justification.’” 15 (2000)). 16 Gallegos, 308 F.3d at 990. “The Id. (quoting Illinois v. Wardlow, 528 U.S. 119 Whether Sgt. Pashoian’s actions constituted an investigatory 17 stop or an arrest is relevant to determining whether he is entitled 18 to qualified immunity, and is discussed below. 19 distinction is not material to the issue of whether Sgt. Pashoian 20 violated Plaintiff’s Fourth Amendment rights. 21 the Fourth Amendment in either event: 22 arrest, California Penal Code § 836(a) provides that the arrest was 23 unlawful and therefore unconstitutional. 24 they constituted an investigatory stop, the Ninth Circuit’s 25 decision in United States v. Grigg, 498 F.3d 1070 (9th Cir. 2007), 26 mandates the conclusion that the stop was unconstitutional. However, the His actions violated If they constituted an If, on the other hand, 27 California Penal Code § 836(a) provides: 28 A peace officer may arrest a person in obedience to a 9 1 warrant, or, . . . without a warrant, may arrest a person whenever any of the following circumstances occur: 2 (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence. 3 4 (2) The person arrested has committed a felony, although not in the officer’s presence. 5 6 (3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed. 7 8 Cal. Penal Code § 836(a). Pursuant to this statute, a “warrantless 9 arrest by a peace officer for a misdemeanor is lawful only if the United States District Court For the Northern District of California 10 officer has reasonable cause to believe the misdemeanor was 11 committed in the officer’s presence.” Arpin v. Santa Clara Valley 12 Transp. Agency, 261 F.3d 912, 920 (9th Cir. 2001) (quoting Johanson 13 v. Dep’t of Motor Vehicles, 36 Cal. App. 4th 1209, 1216 (1995)). 14 The same is true of a warrantless arrest for an infraction, which 15 is even less serious an offense than a misdemeanor.4 United States 16 v. Mota, 982 F.2d 1384, 1388-89 (9th Cir. 1993). Because an 17 officer is not permitted to make a warrantless arrest for an 18 infraction committed outside his or her presence, any such arrest 19 is “unreasonable,” and thus violates the Fourth Amendment. See id. 20 It is undisputed that neither Sgt. Pashoian nor any other BART 21 police officer witnessed the infraction for which Plaintiff was 22 detained. Accordingly, if Sgt. Pashoian effected an arrest of 23 24 25 26 27 28 4 The Penal Code further provides, “In all cases . . . in which a person is arrested for an infraction, a peace officer shall only require the arrestee to present his or her driver’s license or other satisfactory evidence of his or her identity for examination and to sign a written promise to appear contained in a notice to appear. . . . Only if the arrestee refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprint or fingerprint may the arrestee be taken into custody.” Cal. Penal Code § 853.5(a). 10 1 Plaintiff, he violated Plaintiff’s Fourth Amendment right to be 2 free from unreasonable seizure.5 United States District Court For the Northern District of California 3 Under Grigg, Sgt. Pashoian also violated Plaintiff’s Fourth 4 Amendment rights even if his actions constituted only an 5 investigatory stop. 6 Amendment issue in the context of a motion to suppress in a 7 criminal action, involved an investigatory stop of an individual 8 who had been accused of committing an infraction outside the 9 presence of the officers who effected the stop. That case, which addressed the Fourth The officers 10 responsible for the stop had responded to a telephone call from an 11 individual who reported that a car had just driven past his house 12 with its stereo playing very loudly. 13 appeared at the complainant’s house, the complainant told him that 14 “‘kids’ in the neighborhood had been harassing him with loud music 15 for ‘years,’ and that he had ‘caught’ the car in question -- a 16 Mercury Cougar, the driver of which was [the defendant] -- 17 ‘booming’ music several times in the preceding days, and that on 18 one occasion he had called the police to file a complaint.” 19 498 F.3d at 1072. 20 When the first officer Grigg, While the complainant was filling out a formal citizen 21 complaint, he informed the officer that the offending car was 22 parked down the street in front of a house. 23 the defendant exited the house, got in the car, and drove away 24 without playing his stereo. 25 officer, who had just arrived, “to stop the car to inquire about Shortly thereafter, The first officer directed the second 26 27 28 5 Defendants initially argued that Sgt. Pashoian had probable cause to arrest Plaintiff. In Defendants’ reply brief, however, they appear to abandon this argument. 11 1 excessive noise, determine the driver’s identity, and serve the 2 driver with a citation and summons.” 3 then initiated a stop of the defendant’s vehicle. 4 approached the vehicle, he saw an automatic firearm inside. 5 ordered the defendant out of the car, performed a pat-down search, 6 and arrested him after finding concealed brass knuckles. United States District Court For the Northern District of California 7 Id. at 1072-73. This officer After he He Reviewing the district court’s denial of the defendant’s 8 motion to suppress, the Ninth Circuit noted that, while law 9 enforcement officers may, under some circumstances, briefly stop 10 someone “to investigate a reasonable suspicion” that he or she is 11 “involved in criminal activity,” the “governmental interest in 12 investigating possible criminal conduct based on an officer’s 13 reasonable suspicion” may nonetheless “be outweighed by the Fourth 14 Amendment interest” of the individual “in remaining secure from the 15 intrusion.” 16 stop may “be undertaken to prevent ongoing or imminent crime, i.e., 17 when a police officer ‘observes unusual conduct which leads him 18 reasonably to conclude in light of his experience that criminal 19 activity may be afoot.’” 20 30) (emphasis added). 21 States v. Hensley, 469 U.S. 221 (1985), “the United States Supreme 22 Court held that ‘if police have a reasonable suspicion, grounded in 23 specific and articulable facts, that a person they encounter was 24 involved in or is wanted in connection with a completed felony, 25 then a Terry stop may be made to investigate that suspicion.’” 26 Grigg, 498 F.3d at 1075 (quoting Hensley, 469 U.S. at 229) 27 (emphasis in Grigg). 28 the Supreme Court had “employed a balancing test to weigh ‘the Id. at 1074-75. The Grigg court stated that a Terry Id. at 1075 (quoting Terry, 392 U.S. at In addition, the court noted that, in United The Ninth Circuit observed that, in Hensley, 12 1 nature and quality of the intrusion on personal security against 2 the importance of the governmental interests alleged to justify the 3 intrusion.’” 4 court observed, the “Hensley court explicitly confined its analysis 5 to the felony context, leaving open the question whether the rule 6 could be extended to all past crimes, however serious, i.e., 7 misdemeanors. 8 answer the issue tendered by this appeal.” 9 internal quotation marks omitted). United States District Court For the Northern District of California 10 Id. (quoting Hensley, 469 U.S. at 229). However, the Thus the Supreme Court’s Hensley decision did not Id. (citation and In the Ninth Circuit’s view, “the obvious and patent public 11 safety risk in allowing a suspect of armed robbery to remain at 12 large” was crucial to the outcome in Hensley. 13 potential threat of violence created the exigency in Hensley to 14 stop the suspect that justified foregoing the Fourth Amendment’s 15 warrant requirement.” 16 where an individual is supected of having committed a past 17 misdemeanor that does not implicate public safety. 18 concluded: 19 20 21 22 23 24 25 Id. Id. at 1077. “This Such exigency, however, is not present The court [A] court reviewing the reasonableness of an investigative stop must consider the nature of the offense, with particular attention to any inherent threat to public safety associated with the suspected past violation. A practical concern that increases the law enforcement interest under Hensley is that an investigating officer might eliminate any ongoing risk that an offending party might repeat the completed misdemeanor or that an officer might stem the potential for escalating violence arising from such conduct, both of which enhance public safety. Conversely, the absence of a public safety risk reasonably inferred from an innocuous past misdemeanor suggests the primacy of a suspect’s Fourth Amendment interest in personal security. 26 27 28 13 1 Id. at 1080.6 2 to any person arising from the misdemeanor noise violation” at 3 issue in Grigg, the Fourth Amendment prohibited the officers from 4 stopping the defendant. United States District Court For the Northern District of California 5 Because there was a complete “absence of any danger Id. at 1077, 1081-83. Here, as in Grigg, Plaintiff was detained because he was 6 suspected of having committed a minor infraction outside the 7 presence of the investigating officer. 8 to public safety to justify Sgt. Pashoian’s invasion of Plaintiff’s 9 interest in personal security. There was no ongoing risk Accordingly, Grigg compels the 10 conclusion that, if Plaintiff’s detention was an investigatory stop 11 rather than an arrest, it nonetheless constituted an unreasonable 12 seizure in violation of the Fourth Amendment. 13 Defendants argue that Grigg’s holding does not reach this far. 14 In particular, they argue that “the Grigg court placed great stress 15 on the alternative means available to the officers to ascertain Mr. 16 Grigg’s identity.” 17 Ninth Circuit stated in Grigg, “An assessment of the ‘public 18 safety’ factor should be considered within the totality of the 19 circumstances, when balancing the privacy interests at stake 20 against the efficacy of a Terry stop, along with the possibility 21 that the police may have alternative means to identify the suspect 22 or achieve the investigative purpose of the stop.” 23 at 1081. Defs.’ Reply Br. at 7. It is true that the Grigg, 498 F.3d However, while the Grigg court did note that alternative 24 25 26 27 28 6 The court declined “to adopt a per se standard that police may not conduct a Terry stop to investigate a person in connection with a past completed misdemeanor simply because of the formal classification of the offense,” because “[c]ircumstances may arise where the police have reasonable suspicion to believe that a person is wanted in connection with a past misdemeanor that the police may reasonably consider to be a threat to public safety.” Id. at 1081. 14 1 methods of determining the defendant’s identity were potentially 2 available, this fact merely bolstered the court’s conclusion; it 3 was not central to it. 4 5 6 7 8 United States District Court For the Northern District of California 9 A passage from Grigg emphasizes this point: [T]he reasonableness of an investigative stop is to a degree undermined, where, as here, the police have not pursued alternate available opportunities to gather information about the driver. That Grigg was leaving the area might have warranted an immediate Terry stop at the expense of alternative investigative methods in circumstances involving an offense that threatened public safety, but the noise violation here created no such exigency. Id. at 1083 (emphasis added). The Court is mindful of the fact 10 that, had Plaintiff been allowed to leave the vicinity of the BART 11 station, the police officers may not have had any alternative 12 method of determining whether he was the individual Ms. Kushman saw 13 selling the BART ticket. 14 have been appropriate if the offense Plaintiff was suspected of 15 having committed had posed a threat to public safety, no such risk 16 was present here. 17 who had committed a minor non-violent infraction was issued a 18 citation. 19 Plaintiff’s interest in personal security. 20 matter of law, Sgt. Pashoian violated Plaintiff’s Fourth Amendment 21 right to be free from unreasonable seizure. 22 Nonetheless, while an immediate stop may The only exigency was in ensuring that someone This was not sufficient to justify the intrusion on 2. Accordingly, as a Qualified Immunity 23 Defendants argue that, even if Sgt. Pashoian’s conduct 24 infringed Plaintiff’s Fourth Amendment rights, he is entitled to 25 qualified immunity. 26 government officials “from liability for civil damages insofar as 27 their conduct does not violate clearly established statutory or 28 constitutional rights of which a reasonable person would have The defense of qualified immunity protects 15 1 known.” 2 of qualified immunity protects “all but the plainly incompetent or 3 those who knowingly violate the law.” 4 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 5 (1986)). United States District Court For the Northern District of California 6 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule Saucier v. Katz, 533 U.S. To determine whether a defendant is entitled to qualified 7 immunity, the court must apply a two-part analysis. 8 question is whether the facts, when taken in the light most 9 favorable to the plaintiff, show that the defendant’s conduct The first 10 violated a constitutional right. 11 540 F.3d 1031, 1044 (9th Cir. 2008). 12 whether the constitutional right at issue was “clearly established” 13 at the time of the conduct at issue. 14 a constitutional right was clearly established, the court should 15 not consider the right as a “general proposition.” 16 “Rather, ‘[t]he relevant, dispositive inquiry . . . is whether it 17 would be clear to a reasonable officer that his conduct was 18 unlawful in the situation he confronted.’” 19 533 U.S. at 202) (alteration and omission in Torres). 20 must be made in light of “the law as it existed at the time of the 21 challenged conduct.” 22 n.20 (9th Cir. 1996) 23 Torres v. City of Los Angeles, If so, the second question is Id. In determining whether Id. at 1045. Id. (quoting Saucier, This inquiry Washington v. Lambert, 98 F.3d 1181, 1193 As discussed above, Sgt. Pashoian violated Plaintiff’s Fourth 24 Amendment rights by detaining him on the suspicion that he 25 illegally sold a BART ticket on District property. 26 the Court must determine whether those rights were clearly 27 established at the time. 28 Accordingly, At the time of the incident, it was clearly established that 16 United States District Court For the Northern District of California 1 it was not lawful for Sgt. Pashoian to make a warrantless arrest 2 for a misdemeanor or infraction that was committed outside his 3 presence. 4 261 F.3d 912, 920 (9th Cir. 2001). 5 established that Sgt. Pashoian could not make an investigatory stop 6 for a misdemeanor or infraction that was committed outside his 7 presence where there was no ongoing risk to public safety. 8 Ninth Circuit’s decision in Grigg, which addressed this issue as a 9 matter of first impression, was filed on August 22, 2007, several See, e.g., Arpin v. Santa Clara Valley Transp. Agency, However, it was not clearly The 10 months after the incident. 11 clear to a reasonable officer in Sgt. Pashoian’s position that he 12 or she was not entitled to subject Plaintiff to a Terry stop if he 13 or she possessed a reasonable suspicion that Plaintiff had sold the 14 BART ticket. 15 person reported by Ms. Kushman in several respects, Sgt. Pashoian 16 had a reasonable suspicion that Plaintiff had committed an 17 infraction outside his presence. 18 Pashoian is entitled to qualified immunity will depend on whether 19 his conduct constituted an arrest or an investigatory stop. 20 Accordingly, it would not have been And, because Plaintiff matched the description of the Accordingly, whether Sgt. In determining whether a particular police action constitutes 21 an arrest or an investigatory stop, courts must consider not only 22 the intrusiveness of the restraint on the suspect’s liberty, but 23 also the reasonableness of imposing such restraint under the 24 circumstances. 25 26 27 As the Ninth Circuit has explained: There is no bright-line rule to determine when an investigatory stop becomes an arrest. Rather, in determining whether stops have turned into arrests, courts consider the totality of the circumstances. As might be expected, the ultimate decision in such cases is fact-specific. 28 17 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 In looking at the totality of the circumstances, we consider both the intrusiveness of the stop, i.e., the aggressiveness of the police methods and how much the plaintiff’s liberty was restricted, and the justification for the use of such tactics, i.e., whether the officer had sufficient basis to fear for his safety to warrant the intrusiveness of the action taken. In short, we decide whether the police action constitutes a Terry stop or an arrest by evaluating not only how intrusive the stop was, but also whether the methods used were reasonable given the specific circumstances. As a result, we have held that while certain police actions constitute an arrest in certain circumstances, e.g., where the “suspects” are cooperative, those same actions may not constitute an arrest where the suspect is uncooperative or the police have specific reasons to believe that a serious threat to the safety of the officers exists. The relevant inquiry is always one of reasonableness under the circumstances. 11 Lambert, 98 F.3d at 1185 (emphasis in original; citations and 12 internal quotation marks omitted). 13 of the rationale behind the balancing test provides further 14 guidance in determining whether a particular police action 15 constitutes an investigatory stop or an arrest: 16 17 18 19 20 21 22 23 24 25 26 The Lambert court’s explanation The complexity of this doctrinal scheme -- i.e., that the identical police action can be an arrest under some circumstances and not in others -- originated with Terry v. Ohio and subsequent decisions allowing the police to stop suspects for “investigatory detentions” with less than probable cause. When the investigatory stop became an accepted part of police procedure, courts began allowing police, in certain circumstances, to take intrusive steps to protect themselves as part of a Terry stop, while recognizing that in other circumstances the use of those same methods in connection with such a stop might turn it into an arrest. This doctrinal flexibility allows officers to take the steps necessary to protect themselves when they have adequate reason to believe that stopping and questioning the suspect will pose particular risks to their safety. It is because we consider both the inherent danger of the situation and the intrusiveness of the police action, that pointing a weapon at a suspect and handcuffing him, or ordering him to lie on the ground, or placing him in a police car will not automatically convert an investigatory stop into an arrest that requires probable cause. 27 Id. at 1186 (emphasis in original; citations omitted). 28 18 United States District Court For the Northern District of California 1 Although the measures taken to detain Plaintiff were not 2 extreme, the degree of force used against him, together with his 3 placement in handcuffs, was intrusive enough to constitute an 4 arrest if it was not reasonable under the circumstances. 5 at 1189 (“[W]hether the police physically restrict the suspect’s 6 liberty is an important factor in analyzing the degree of intrusion 7 effected by the stop.”); United States v. Ricardo D., 912 F.2d 337, 8 340 (9th Cir. 1990) (finding an arrest where the suspect “was 9 patted down, gripped by the arm, told he was not to run anymore, 10 and directed to the back of one of two patrol cars present at the 11 scene”); United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 12 1982) (“[H]andcuffing substantially aggravates the intrusiveness of 13 an otherwise routine investigatory detention and is not part of a 14 typical Terry stop.”)7 15 preclude the Court from determining as a matter of law whether Sgt. 16 Pashoian’s conduct was reasonable and, therefore, constituted a 17 mere investigatory stop that would entitle him to qualified 18 immunity. 19 Pashoian in response to the officer’s command to “get over here.” 20 Then, when he was face-to-face with Sgt. Pashoian, Sgt. Pashoian See id. Material disputes of fact, however, According to Plaintiff, he walked directly toward Sgt. 21 22 23 24 25 26 27 28 7 At oral argument, Defendants cited Pierce v. Multnomah County, 76 F.3d 1032 (9th Cir. 1996), in support of their position that Plaintiff’s detention did not constitute an arrest. In Pierce, the plaintiff was taken into custody and spent four hours in jail after she allegedly failed to provide her identifying information so that she could be issued a citation for fare evasion, an infraction. The Ninth Circuit assumed without discussion that her detention constituted an arrest that was required to be supported by probable cause. Id. at 1039-41. Pierce did not purport to establish a rule that a four-hour custodial detention is required before detention for a minor infraction is considered an arrest, and thus it has no bearing on the Court’s decision. 19 United States District Court For the Northern District of California 1 seized him by the arm, forced him against a window and placed him 2 in handcuffs, apparently for no reason other than that he did not 3 immediately terminate his telephone conversation. 4 is proved true, Sgt. Pashoian’s conduct was not reasonable under 5 the circumstances, and therefore constituted an arrest. 6 it would be unlawful and Sgt. Pashoian would not be entitled to 7 qualified immunity. 8 that he gestured to Plaintiff and told him that he needed to speak 9 with him, but that Plaintiff ignored him, continued talking on his If this account As such, On the other hand, Sgt. Pashoian has testified 10 cell phone and walked past him. 11 reasonable juror could conclude that Sgt. Pashoian’s conduct was 12 reasonable under the circumstances. 13 constitute an investigatory stop and he would be entitled to 14 qualified immunity. If this account is proved true, a If so, his actions would 15 Because there are issues of fact with respect to the 16 interaction between Plaintiff and Sgt. Pashoian that preclude a 17 finding of reasonableness as a matter of law, the Court cannot 18 summarily adjudicate the issue of whether Sgt. Pashoian is entitled 19 to qualified immunity. 20 judgment in either party’s favor on Plaintiff’s Fourth Amendment 21 unlawful seizure claim. 22 23 24 B. Accordingly, the Court cannot grant summary Excessive Use of Force 1. Violation of the Fourth Amendment Claims of excessive force which arise in the context of an 25 arrest, investigatory stop or other “seizure” of a person are 26 analyzed under a reasonableness standard. 27 U.S. 386, 395 (1989). 28 questions of fact for the jury, Hervey v. Estes, 65 F.3d 784, 791 Graham v. Connor, 490 While excessive force claims are generally 20 1 (9th Cir. 1995), such claims may be decided as a matter of law if 2 the district court concludes, after resolving all factual disputes 3 in favor of the non-moving party, that the reasonableness of the 4 officer’s use of force can be determined as a matter of law. 5 Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). 6 summary judgment “should be granted sparingly” because the inquiry 7 “nearly always requires a jury to sift through disputed factual 8 contentions, and to draw inferences therefrom.” 9 287 F.3d 846, 853 (9th Cir. 2002). United States District Court For the Northern District of California 10 See However, Santos v. Gates, The question in an excessive use of force claim is “whether 11 the officers’ actions are ‘objectively reasonable’ in light of the 12 facts and circumstances confronting them, without regard to their 13 underlying intent or motivation.” 14 Determining whether use of force is reasonable “requires a careful 15 balancing of ‘the nature and quality of the intrusion on the 16 individual’s Fourth Amendment interests’ against the countervailing 17 governmental interests at stake.” 18 United States v. Place, 462 U.S. 696, 703 (1983)). 19 “must be judged from the perspective of a reasonable officer on the 20 scene, rather than with the 20/20 vision of hindsight.” 21 calculus “must embody allowance for the fact that police officers 22 are often forced to make split-second judgments -- in circumstances 23 that are tense, uncertain, and rapidly evolving -- about the amount 24 of force that is necessary in a particular situation.” 25 97. 26 Graham, 490 U.S. at 397. Id. at 396 (quoting in part Reasonableness Id. The Id. at 396- Just as triable issues of fact preclude a finding of 27 reasonableness as a matter of law here in the context of 28 distinguishing between an investigatory stop and an arrest, triable 21 1 issues of fact preclude a finding of reasonableness as a matter of 2 law in the context of Plaintiff’s excessive use of force claim. 3 Accordingly, summary judgment cannot be granted in either party’s 4 favor on this claim. 5 2. United States District Court For the Northern District of California 6 Qualified Immunity As with Plaintiff’s claim for unlawful seizure, Sgt. Pashoian 7 invokes qualified immunity as a defense to Plaintiff’s excessive 8 use of force claim. 9 force cases, unlike in other cases, the qualified immunity inquiry However, in “Fourth Amendment unreasonable 10 is the same as the inquiry made on the merits.” 11 39 F.3d 912, 914-15 (9th Cir. 1994) (quoting Hopkins v. Andaya, 958 12 F.2d 881, 885 n.3 (9th Cir. 1992)). 13 officer’s use of force was not objectively reasonable and thus 14 constitutes a Fourth Amendment violation, a “reasonable officer” in 15 his or her position would necessarily conclude that the use of 16 force was unlawful, and thus qualified immunity is not available. 17 If, on the other hand, the use of force was reasonable and thus did 18 not violate the Fourth Amendment, there is no need for qualified 19 immunity. 20 that Sgt. Pashoian used and whether it was reasonable as a matter 21 of law, he is not entitled to qualified immunity on this claim. 22 II. 23 Scott v. Henrich, In other words, if an Because the Court cannot determine the amount of force State Law Claims As noted above, Plaintiff asserts claims against both 24 Defendants for the common law torts of negligence, false 25 imprisonment and battery, and for violation of California Civil 26 Code § 52.1. 27 “whether or not acting under color of law, interferes by threats, 28 intimidation, or coercion, or attempts to interfere by threats, Section 52.1 imposes civil liability on a person who, 22 1 intimidation, or coercion, with the exercise or enjoyment by any 2 individual or individuals of rights secured by the Constitution or 3 laws of the United States, or of the rights secured by the 4 Constitution or laws of [California].” 5 6 7 8 9 Cal. Civ. Code § 52.1(a). Plaintiff’s common law claims against the District are based on California Government Code § 815.2, which provides: (a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. United States District Court For the Northern District of California 10 11 12 13 14 (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. Cal. Gov’t Code § 815.2 The parties’ arguments in connection with Plaintiff’s state 15 law claims duplicate their arguments made in connection with 16 Plaintiff’s constitutional claims. 17 is precluded on the constitutional claims, it is also precluded on 18 the state law claims. 19 And, just as summary judgment Specifically, Plaintiff’s negligence claim is premised on Sgt. 20 Pashoian’s breach of a legal duty owed to Plaintiff. 21 summary judgment, Defendants argue that no such duty was breached 22 because Sgt. Pashoian’s conduct “was lawful and proper.” 23 respect to Plaintiff’s battery claim, Defendants argue that Sgt. 24 Pashoian is not liable because he used only reasonable force to 25 detain Plaintiff. 26 false imprisonment claim, Defendants assert that Sgt. Pashoian had 27 probable cause to arrest Plaintiff. 28 claim, Defendants argue that they cannot be held liable because In moving for With In arguing for summary judgment on Plaintiff’s 23 With respect to the § 52.1 1 they did not interfere with any of Plaintiff’s constitutional 2 rights. 3 require the Court to resolve material issues of fact.8 4 Accordingly, Defendants’ motion for summary judgment on Plaintiff’s 5 state law claims must be denied. United States District Court For the Northern District of California 6 As explained above, reaching these conclusions would Defendants also argue that they are entitled to discretionary 7 immunity pursuant to California Government Code § 820.2, which 8 provides, “Except as otherwise provided by statute, a public 9 employee is not liable for an injury resulting from his act or 10 omission where the act or omission was the result of the exercise 11 of the discretion vested in him, whether or not such discretion be 12 abused.” 13 applies only to “basic policy decisions,” and not to “operational” 14 decisions such as the ones at issue in this case. 15 Montoya, 10 Cal. 4th 972, 980-81 (1995). 16 Plaintiff’s position in their reply, but instead assert essentially 17 that they are immune from liability under § 820.2 because Sgt. 18 Pashoian did not use excessive force or make an unlawful arrest. 19 This amounts to saying that they did nothing to incur liability in However, Plaintiff has pointed out that this section See Caldwell v. Defendants do not refute 20 21 22 23 24 25 26 27 28 8 Although the Court has determined that Sgt. Pashoian violated Plaintiff’s Fourth Amendment rights by unlawfully seizing him, California Penal Code § 847(b) provides in part, “There shall be no civil liability on the part of, and no cause of action shall arise against, any peace officer or federal criminal investigator or law enforcement officer . . . acting within the scope of his or her authority, for false arrest or false imprisonment” if the arrest “was lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.” Cal. Penal Code § 847(b)(1) (emphasis added). Because the “reasonable cause” language parallels the standard for qualified immunity, Defendants cannot be held liable for false imprisonment if they succeed on their defense of qualified immunity. The Court has held that there are triable issues of fact that preclude resolution of the qualified immunity issue on this motion. 24 1 the first instance, not that they are entitled to statutory 2 immunity even if they would otherwise be liable. 3 Defendants have not shown that § 820.2 shields them from liability 4 on Plaintiff’s state law claims, the statute does not provide a 5 basis for granting summary judgment. 6 III. Punitive Damages United States District Court For the Northern District of California 7 Because Defendants argue that punitive damages are not available 8 against Sgt. Pashoian in connection with Plaintiff’s § 1983 claims 9 because there is no evidence that his conduct was “motivated by 10 evil motive or intent, or . . . involve[d] reckless or callous 11 indifference to [Plaintiff’s] federally protected rights.” 12 v. Wade, 461 U.S. 30, 56 (1983). 13 version of events, however, it could infer an evil motive or intent 14 based on Sgt. Pashoian’s use of force without any justification. 15 Likewise, a jury could determine that punitive damages are 16 available in connection with Plaintiff’s state law claims; under 17 California law, punitive damages may be awarded “where it is proven 18 by clear and convincing evidence that the defendant has been guilty 19 of oppression, fraud, or malice.” 20 Accordingly, the issue of punitive damages against Sgt. Pashoian is 21 one for the jury. 22 23 Smith If a jury believes Plaintiff’s Cal. Civ. Code § 3294(a). CONCLUSION For the foregoing reasons, the Court GRANTS Defendants’ motion 24 for summary judgment (Docket No. 16) on Plaintiff’s claims for 25 racial discrimination in violation of the Equal Protection Clause 26 of the Fourteenth Amendment and California Civil Code § 51.7, and 27 for violation of his Fourteenth Amendment substantive due process 28 rights. The motion is DENIED with respect to all other claims. 25 1 Plaintiff’s cross-motion for partial summary judgment (Docket No. 2 20) is GRANTED to the extent it seeks summary adjudication that 3 Plaintiff’s Fourth Amendment rights were violated; it is otherwise 4 DENIED.9 5 IT IS SO ORDERED. 6 7 Dated: 12/17/08 CLAUDIA WILKEN United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 9 25 26 27 28 Defendants’ objections to evidence submitted by Plaintiff are overruled. The Court did not rely on any inadmissible evidence in its ruling. Plaintiff’s motion to strike Defendants’ supplemental submission is denied as moot and his objections to the evidentiary material in the submission are overruled. The Court did not rely on the arguments in the submission to conclude that it was not clearly established that a Terry stop could not be conducted in connection with the investigation of a completed misdemeanor. 26