Sanderlin et al v. City of San Jose et al, No. 5:2020cv04824 - Document 122 (N.D. Cal. 2023)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART 101 MOTION FOR SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 3/16/2023. (blflc2, COURT STAFF) (Filed on 3/16/2023)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 DERRICK SANDERLIN, et al., Plaintiffs, 8 v. 9 10 CITY OF SAN JOSE, et al., Defendants. 11 United States District Court Northern District of California Case No. 20-cv-04824-BLF ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT [Re: ECF No. 101] 12 This case involves serious allegations of police misconduct in response to protests over the 13 14 killing of George Floyd that took place between May 29 and June 2, 2020 in San Jose. Seven 15 remaining plaintiffs have claims against the City of San Jose (the “City”) and seven named police 16 officers, alleging that the police response to their actions in the protest violated their First and 17 Fourth Amendment rights and California statutory and common law. 18 Now before the Court is Defendants’ motion for summary judgment. ECF No. 101 19 (“MSJ”); see also ECF No. 117 (“Reply”). Plaintiffs oppose the motion. See ECF No. 113 20 (“Opp.”). The Court held a hearing on February 2, 2023. For the reasons explained below, the 21 motion for summary judgment is GRANTED IN PART and DENIED IN PART. 22 I. BACKGROUND 23 A. 24 Between May 29 and June 7, 2020, demonstrators gathered in the streets of San Jose to The Protests 25 protest the May 25, 2020 killing of George Floyd and police misconduct and brutality. See 26 generally Supplemental Declaration of Sarah Marinho, ECF No. 116 (“Marinho Supp. Decl.”), 27 Ex. KK (ECF No. 116-3) (“AAR”). Plaintiffs’ claims all stem from incidents that occurred at 28 those protests. United States District Court Northern District of California 1 The San Jose Police Department (“SJPD”) responded to the protests. Officers used several 2 types of weapons in the protests, including 40mm launchers and 37mm launchers, both of which 3 are considered projectile impact weapons (“PIWs”). See AAR at 99-109. The 40mm launchers 4 can use a 40mm foam baton round, which is an impact projectile “used to precisely target 5 individual suspects engaging in acts of violence in accordance with use of force criteria set forth in 6 Duty Manual Section L 2629.” Id. at 101. The 37mm launcher uses the CTS 3555 Multi 5-Foam 7 Baton Round, which “carries a payload of 5 foam baton rounds” and “is skip fired at an angle onto 8 the ground.” Id. at 104; see also Marinho Supp. Decl., Ex. Z (ECF No. 116-1) (“Tassio Dep. 1”) 9 at 35:6-11. It is used for “crowd dispersal in accordance with DUTY MANUAL L 2629.” AAR 10 at 104. On May 31, 2020, the City instituted a curfew that was in effect from 8:30 p.m. to 5:00 11 a.m. See Declaration of James Huang, ECF No. 100 (“Huang Decl.”), Ex. 14 (curfew order). On 12 June 1, 2020, Police Chief Garcia released a memorandum that outlined a revision to the SJPD 13 Duty Manual as it related to the use of the 37mm and 40mm PIWs. Declaration of Sarah Marinho, 14 ECF No. 114 (“Marinho Decl.”), Ex. II (ECF No. 114-17) (“Exp. Rpt.”) ¶ 59. 15 16 The seven Plaintiffs each allege that he or she was a victim of SJPD police tactics in different ways and thus assert separate claims. Each is described below. Plaintiffs’ Experiences at the Protests 17 B. 18 Below is a summary of the Plaintiffs’ experiences at the protests, based on evidence 19 submitted by both parties. Not all evidence is undisputed, as will be discussed in the Discussion 20 section below. 21 22 1. Derrick and Cayla Sanderlin Plaintiffs Derrick and Cayla Sanderlin, husband and wife, participated in the protests on 23 May 29, 2020. Declaration of Derrick Sanderlin, ECF No. 113-4 (“D. Sanderlin Decl.”) ¶ 3; 24 Declaration of Cayla Sanderlin, ECF No. 113-3 (“C. Sanderlin Decl.”) ¶ 3. Ms. Sanderlin became 25 scared for her safety in the early evening when she became trapped between two lines of SJPD 26 officers. C. Sanderlin Decl. ¶ 4. The officers from those two lines issued conflicting verbal 27 commands as to what direction she could proceed, and she felt her freedom of movement was 28 restricted. Id. ¶ 5. At this time, she saw officers push demonstrators with batons and heard 2 1 projectiles fired, and police were using flash bang grenades. Id. ¶ 6. She eventually was able to 2 make her way “out of the chaos.” Id. She found Mr. Sanderlin and asked to go home. Id. ¶ 7; D. 3 Sanderlin Decl. ¶ 4. Mr. Sanderlin suggested that Ms. Sanderlin take a walk to calm down, and he 4 stated that he wanted to stay in solidarity with the other protestors. C. Sanderlin Decl. ¶ 7; D. 5 Sanderlin Decl. ¶ 4. Ms. Sanderlin agreed and began to walk west. C. Sanderlin ¶ 7; D. Sanderlin 6 ¶ 4. She met up with her friend, and they walked together. C. Sanderlin Decl. ¶ 8. United States District Court Northern District of California 7 At around 6:20 p.m., near the First United Methodist Church at E. Santa Clara Street and 8 5th Street, Mr. Sanderlin put his hands in the air and implored police to stop shooting at protestors. 9 D. Sanderlin Decl. ¶ 5; see generally Declaration of Keith Neumer, ECF No. 102 (“Neumer 10 Decl.”), Ex. A (Panighetti body warn camera video). Officer Panighetti was one of the officers in 11 this area, and he was armed with a 40mm launcher. Huang Decl., Ex. 1 (“Panighetti Dep.”) at 37. 12 Panighetti states that, as he came up to the Santa Clara Street and 5th Street intersection, he was 13 monitoring an individual wearing a 49ers jersey who had been throwing objects at officers. Id. at 14 38:3-12. The individual in the jersey was with one other individual, and both were hiding along 15 the corner of a building. Id. at 40:3-11. Those two were holding gallon paint cans that they 16 sought to throw at the officers, and then they pushed a dumpster onto the sidewalk and were 17 hiding behind it. Id. at 40:12-41:1. A third individual, Derrick Sanderlin, was standing on the 18 sidewalk with a sign. Id. Panighetti stated that Mr. Sanderlin was standing in front of the officers 19 holding a sign, and he was preventing the officers from clearing away the threat—the two 20 individuals behind the dumpster. Id. at 73:15-74:21. Mr. Sanderlin states he “was not posing a 21 threat or invading the personal space of officers.” D. Sanderlin Decl. ¶ 5. Panighetti gave Mr. 22 Sanderlin several warnings to move, but Mr. Sanderlin did not hear him. Panighetti Dep. at 74:13- 23 14; D. Sanderlin Decl. ¶ 6. Video shows that a nearby officer said, “black guy . . . trash can” to a 24 colleague. Huang Decl., Ex. 17 (news channel video). Panighetti took aim and fired at Mr. 25 Sanderlin with the 40mm launcher, striking him in the groin. D. Sanderlin Decl. ¶¶ 5-6; Panighetti 26 Dep. at 74:13-21. Mr. Sanderlin fell to the ground, unable to move. D. Sanderlin Decl. ¶ 7. He 27 was helped out of the area by bystanders. Id. ¶ 7. 28 Ms. Sanderlin called Mr. Sanderlin about fifteen minutes after she had left on her walk, 3 United States District Court Northern District of California 1 and he told her that he had been shot. D. Sanderlin Decl. ¶ 4; C. Sanderlin Decl. ¶ 8. Ms. 2 Sanderlin found Mr. Sanderlin lying near First United Methodist Church, unable to walk. D. 3 Sanderlin Decl. ¶ 7; C. Sanderlin Decl. ¶ 9. While Ms. Sanderlin’s friend went to get her car, Mr. 4 and Ms. Sanderlin were burned by tear gas. D. Sanderlin Decl. ¶ 7; C. Sanderlin Decl. ¶ 9. Ms. 5 Sanderlin stated that she did not know the source of the tear gas, and there were no officers on 6 North Fifth Street between Santa Clara Street and Saint John Street, which is where the tear gas 7 affected her. Huang Decl., Ex. 2 (“C. Sanderlin Dep.”) at 72:19-73:4. Tear gas was not fired 8 directly at Mr. and Ms. Sanderlin. Id. at 73:13-15. The tear gas burned their eyes and throats, 9 causing them to cough, so Ms. Sanderlin helped her husband to stand and walk away. D. 10 Sanderlin Decl. ¶ 7; C. Sanderlin Decl. ¶ 9. They were completely engulfed by tear gas and could 11 barely open their eyes. D. Sanderlin Decl. ¶ 8; C. Sanderlin Decl. ¶ 9. They stopped at the corner 12 of 5th Street and St. John Street because Mr. Sanderlin had to lie down. D. Sanderlin Decl. ¶ 8; C. 13 Sanderlin Decl. ¶ 9. Mr. Sanderlin iced his groin with a bag of frozen okra, and they were picked 14 up by Ms. Sanderlin’s friend. D. Sanderlin Decl. ¶¶ 8-9; C. Sanderlin Decl. ¶¶ 9-10. 15 Mr. and Ms. Sanderlin underwent medical care. Marinho Decl., Exs. F (Ms. Sanderlin’s 16 medical records), H-I (Mr. Sanderlin’s medical records). The day after the protest, Mr. Sanderlin 17 had an ultrasound of his scrotum to check for injury. D. Sanderlin Decl. ¶ 9. The pain and 18 swelling became worse that day as he waited for his results, so he went to the emergency room 19 where he was admitted for emergency surgery for a ruptured testicle. Id. After he was discharged, 20 Mr. Sanderlin had a three-inch surgical scar and scabbing on the injured area. Id. ¶ 10. Ms. 21 Sanderlin was not allowed to accompany Mr. Sanderlin due to COVID-19 restrictions at the 22 hospital. Id. ¶ 9. 23 Mr. Sanderlin’s urologist informed him that he has a high chance of sterility because of his 24 ruptured testicle. D. Sanderlin Decl. ¶¶ 10-11. Ms. and Mr. Sanderlin have been forced to 25 consult fertility specialists and had to accelerate their plans to have children. Id. Mr. Sanderlin 26 has been forced to research freezing his sperm, but would have to pay out-of-pocket for the 27 deposit because his medical insurance does not cover it. Id. ¶ 11. Ms. and Mr. Sanderlin were not 28 able to have sexual intercourse for months due to his injury. Id. 4 1 2. Breanna Contreras Just after 5:00 p.m. on May 29, 2020, Plaintiff Breanna Contreras and her 18-year-old 2 sister were standing at the intersection of E. Santa Clara Street and 7th Street when they observed 3 a commotion at the protest and saw a cloud of teargas envelope the crowd. Declaration of 4 Breanna Contreras, ECF No. 113-2 (“Contreras Decl.”) ¶ 3. Contreras stood tall to see over the 5 crowd of people. Id. She suddenly felt a strong impact to her right temple and realized she had 6 been hit with a projectile. Id. She stated she had no reason to believe that she was hit for any 7 reason other than an accident. Huang Decl., Ex. 3 (“Contreras Dep.”) at 51:16-52:2. 8 Contreras felt blood on her face, and another man ran up to her and helped her stop the 9 10 bleeding with Contreras’s face mask. Contreras Decl. ¶¶ 3-4. Contreras had heard no warnings from police. Id. ¶ 4. Contreras’s sister flagged down nearby EMTs, who helped Contreras clean 11 United States District Court Northern District of California her injury, gave her an icepack, and told her to go to the doctor. Id. ¶ 5. 12 The impact of the projectile caused the right side of Contreras’s head to swell up, and her 13 eye became bloody and swollen shut. Contreras Decl. ¶ 6; see also Marinho Decl., Exs. D 14 (photographs of injuries), E (medical records). The swelling lasted for more than a week and her 15 eye was bloody for over a month. Contreras Decl. ¶ 6. The laceration on her temple scabbed over 16 and eventually formed a quarter-sized red mark and scar. Id. 17 18 3. Pietro di Donato Plaintiff Pietro di Donato participated in the protests on May 29, 2020, joining the crowd 19 around 3:00 p.m. after watching coverage of the protests on the local news from his home. 20 Declaration of Pietro di Donato, ECF No. 113-6 (“Donato Decl.”) ¶ 3. He marched with a group 21 of mostly young protestors from S. 14th Street and E. Santa Clara Street to 4th Street to Highway 22 280, and then returned to City Hall via 4th Street. Id. 23 At around 5:00 p.m., di Donato tried to de-escalate police who were shooting at the 24 nonviolent young people he had been marching with for hours. Donato Decl. ¶ 4. di Donato 25 26 approached an officer at the front of the advancing line saying, “You should not be doing this. This is wrong!” Id. The officer threatened di Donato with his baton and told him to back up. Id. 27 di Donato backed up a few feet, but officers shortly afterwards fired rubber bullets, flash grenades, 28 5 1 and tear gas on him and other protestors. Id. At this point, di Donato resolved not to back up 2 further in protest to the use of excessive force. Id. ¶ 5. An officer shot di Donato in his lower left 3 leg, after which di Donato retreated to the side of the street and took cover behind a streetlamp 4 pole. Id. He did not see the officer fire the projectile. Huang Decl., Ex. 4 (“Donato Dep.”) at 5 14:25-15:3. He returned to the protest shortly afterwards but walked home around 6:00 p.m. to ice 6 his wound. Donato Decl. ¶ 5. Although he was previously an active senior who took miles-long 7 hikes every other day, di Donato continued to have pain in his lower leg and was under the care of 8 a physician for that persistent pain. Id. ¶ 7; see also Marinho Decl., Exs. L (photograph of injury), 9 M (medical records). 10 United States District Court Northern District of California 11 4. Adira Sharkey Plaintiff Adira Sharkey also participated in the protests on May 29, 2020. Declaration of 12 Adira Sharkey, ECF No. 113-1 (“Sharkey Decl.”) ¶ 3. Around 4:00 p.m., she left her apartment to 13 walk her dog near the protest. Id. After she walked one block, police began using tear gas on 14 demonstrators. Id. She returned her dog to her apartment and circled back to the protest with her 15 roommates. Id. 16 Around 8:00 p.m., Sharkey regrouped with other protestors at Cesar Chavez Park. Sharkey 17 Decl. ¶ 4. Police-fired tear gas got into her eyes and began burning them. Id. After other 18 demonstrators assisted her in flushing out her eyes, Sharkey recognized some fellow protestors 19 nearby as recent graduates of Del Mar High School, where Sharkey works. Id. She worried for 20 those former students and gave them her phone number in case anything went wrong. Id. 21 After walking away and reentering Cesar Chavez Park, Sharkey felt the painful impact of a 22 rubber bullet on the back side of her ribs. Sharkey Decl. ¶ 5. The bullet knocked the wind out of 23 Sharkey, and she hobbled to hide behind a redwood tree. Id. The bullet made her nauseous and 24 stunned; she had thought that the park was out of the line of fire and a safe place to gather. Id. 25 Sharkey does not know which officer fired the projectile that hit her. Huang Decl., Ex. 5 26 (“Sharkey Dep.”) at 32:2-5. But Sharkey believes that the bullet was a direct shot at her and not a 27 ricochet because the next closest person to her was 12 feet away and the bullet made a perfect 28 circle-shaped injury on her skin. Sharkey Decl. ¶ 5; see also Marinho Decl., Exs. A-C 6 1 (photographs of injuries). Sharkey had difficulty inhaling for the day after the shooting, she had 2 difficulty sleeping for several nights, and for weeks afterwards she was sore. Sharkey Decl. ¶ 6. United States District Court Northern District of California 3 5. Joseph Stukes 4 Plaintiff Joseph Stukes attended the protests on June 2, 2020. Declaration of Joseph 5 Stukes, ECF No. 113-5 (“Stukes Decl.”) ¶ 3. He peacefully protested by holding a sign and 6 chanting “Black Lives Matter.” Id. After 8:30 p.m., police officers kettled Stukes and other 7 protestors and attempted to drive them out of the plaza of City Hall. Id. Stukes was engaging in 8 peaceful civil disobedience by being out after the City’s curfew. Id. Police officers targeted him 9 and other protestors while allowing non-protestors to continue their business after the curfew. Id. 10 Dozens of officers rushed at Stukes, and an officer tripped Stukes, bloodying Stukes’s hands and 11 knees. Id. ¶ 4. While Stukes was on the ground, officers fired at him with their less-lethal 12 weapons. Id. ¶ 5. He does not know which officer(s) shot the projectiles that hit him, noting that 13 there were several in the vicinity. Huang Decl., Ex. 6 (“Stukes Dep.”) at 28:15-22, 50:8-10. 14 Stukes was struck from the back on his left hip with a 40mm foam baton, as well as the back of his 15 right leg. Stukes Decl. ¶ 5. A bean bag round ripped a hole through his closed backpack. Id. As 16 Stukes got up and fled, officers deployed less-lethal weapons in his direction approximately fifty 17 times. Id. He suffered injuries and sought medical treatment. See Marinho Decl., Exs. J 18 (photographs of injures), K (medical records). 19 6. Vera Clanton 20 Plaintiff Vera Clanton attended the protest as a Legal Observer for the National Lawyers 21 Guild on May 31, 2020. Declaration of Vera Clanton, ECF No. 113-7 (“Clanton Decl.”) ¶ 3. As a 22 legal observer, Clanton was at the protests to watch police in the course of their duties in a public 23 place and to document any use of force, arrests, misconduct, or other notable activity by law 24 enforcement. Id. Clanton observed a man getting arrested and walked over to witness and record 25 the arrest. Id. She was warned several times by officers that there was a curfew, and she would be 26 arrested if she did not leave, but she did not leave. Huang Decl., Ex. 7 (“Clanton Dep.”) at 34-35; 27 Neumer Decl., Ex. B (Tassio body worn camera video); see also Huang Decl., Ex. 14 (curfew 28 order). When she did not disperse, Officer Tassio ordered other officers to arrest her. Huang 7 1 Decl., Ex. 8 (“Tassio Dep. 2”) at 88:4-89:6; Neumer Decl., Ex. B. Officers Marshall and Avila 2 “manhandled” her and slammed her to the ground. Clanton Decl. ¶ 3; see also Neumer Decl., Exs. 3 D, E, F (body worn camera video from various officers). The officers used what is called a 4 control hold arrest. Huang Decl., Ex 9 (“Avila Dep.”) at 73:15-74:3. As a result of the arrest, her 5 knees were injured. Clanton Decl. ¶ 3; see also Marinho Decl., Ex. N (photograph of injury); 6 Huang Decl., Ex. 16 (photograph of injury). 7 C. 8 The parties also submit evidence as to various officers’ actions during the protests. 9 United States District Court Northern District of California 10 Officer Actions 1. Chief Garcia Edgardo Garcia became chief of the SJPD in 2016, and he was the chief at the time of the 11 protests. Marinho Supp. Decl., Ex. FF (ECF No. 116-2) (“Garcia Dep.”) at 15:20-21. He stated in 12 his deposition that his source of information about the protests was his assistant chief at the time, 13 David Knopf. Id. at 18:1-3. On May 29, 2020, the first information Garcia received from Knopf 14 was that there was a protest and a march in the area and that it was loud but peaceful. Id. at 21:9- 15 23. Garcia first learned that the protests were no longer peaceful around 5:00 p.m., while he was 16 at an event near the Rose Garden. Id. at 22:7-19. He learned from Knopf that individuals “were 17 throwing bottles and doing other things to police or other innocent bystanders.” Id. at 22:20-23:7. 18 Garcia then received a phone call from the NAACP President, Reverend Moore, who asked if 19 SJPD wanted him to speak to protestors to try to calm things down. Id. at 24:5-10. Garcia called 20 Knopf to ask how to get Reverend Moore to the crowd, but Knopf told him that the situation had 21 become too dangerous to get Reverend Moore to the crowd. Id. at 24:11-17. Garcia stated that 22 Knopf was the highest-ranking person handling the event at that point and that Garcia had 23 delegated to Knopf to handle the situation as he saw fit. Id. at 24:24-25:5. 24 Knopf continued to keep Garcia updated on the status of the protests. Garcia Dep. at 25 26:21-27:2. Knopf told Garcia that they needed to call the protest an unlawful assembly. Id. at 26 27:3-20. Garcia stated that he did not need to sign off on that decision, but he did need to be 27 informed of it. Id. at 27:12-25. Garcia and Knopf discussed using force to disperse the crowd 28 during several conversations. Id. at 28:1-21. Garcia stated that the conversations were about “the 8 1 use of chemical agents”—namely tear gas—“more than anything else.” Id. at 28:17-29:5. Garcia 2 then stated that the use of chemical agents is something both Garcia and Knopf would have had to 3 agree on, and Garcia could have said no to its use. Id. at 31:2-20. Garcia gave authorization to 4 use gas if it was necessary. Id. at 31:17-22. Garcia could not remember whether he and Knopf 5 discussed the use of PIWs on May 29, 2020. Id. at 31:23-32:9. He similarly could not remember 6 whether Knopf informed him that PIWs were being used to disperse the crowd at any point on 7 May 29, 2020. Id. at 33:14-18. Garcia also stated he could not remember whether he and Knopf 8 discussed the use of LRAD to give announcements to the crowd on May 29, 2020, or whether 9 SJPD had only one LRAD at that time. Id. at 34:6-12. Garcia states that after he left the event 10 United States District Court Northern District of California 11 12 13 near the Rose Garden, he was off duty. Id. at 35:19-21. Garcia attended briefings at the SAP Center on later days of the protests. Garcia Dep. at 36:12-21. Knopf continued to have operational control. Id. at 41:11-23. 2. Captain Dwyer 14 Captain Jason Dwyer was the incident commander on May 29, 2020. Garcia Dep. at 33:7- 15 9. The incident commander needs to provide approval for the deployment of the 37mm launcher. 16 Tassio Dep. 1 at 36:1-6. On May 29, 2020, Captain Dwyer gave Officers Price and Zeminini 17 authorization to use the 37mm launcher. Id. at 37:1-12. Once Dwyer gave the authorization, it 18 lasted for the length of the incident for which it was authorized—in this case, the protest—and it 19 was up to the officer to decide when to fire the weapon within SJPD policy. Id. at 37:13-38:9. 20 Only those two officers deployed 37mms on May 29, 2020. Id. at 37:1-7. 21 Plaintiffs submit only a brief excerpt of the deposition of Dwyer himself. See Marinho 22 Supp. Decl., Ex. GG (ECF No. 114-16) (“Dwyer Dep.”). This excerpt does not discuss Dwyer’s 23 role in the protests, but rather his description of the protestors. Id. at 68-70. He stated that the 24 protestors were yelling “pejoratives toward law enforcement” and “the name George Floyd.” Id. 25 at 68:9-13. He further explained that he thought the protests “started with the George Floyd 26 incident,” but that by the time Dwyer arrived at the protests, they were “straight anti-police” and 27 “very hateful.” Id. at 69:7-25. Finally, he stated that the protestors were “sober minded and they 28 were making a conscious decision to turn on the police, like, violently turn on the police.” Id. at 9 United States District Court Northern District of California 1 70:16-20. 2 D. 3 In September 2020, the SJPD issued the “Police Department Preliminary After Action 4 Report for the Public Protests, Civil Unrest and Law Enforcement Response from May 29th – 5 June 7th, 2020” (“After Action Report”). See AAR. The SJPD identified several issues that 6 influenced the response to the protest, including “a lack of training and experience, insufficient 7 staffing levels, and a need to update policies and procedures.” See id. at 4. Subsequent Events 8 E. 9 Plaintiffs filed the original complaint on July 18, 2020. ECF No. 1. Plaintiffs filed a First This Lawsuit 10 Amended Complaint on January 19, 2021. ECF No. 38. On June 29, 2021, the Court granted in 11 part with leave to amend in part and denied in part Defendants’ motion to dismiss the First 12 Amended Complaint. See Sanderlin v. City of San Jose, 2021 WL 2662094 (N.D. Cal. June 29, 13 2021) (“Sanderlin I”). Plaintiffs filed the Second Amended Complaint on August 30, 2021. ECF 14 No. 68. On March 29, 2022, the Court granted in part and denied in part Defendants’ motion to 15 dismiss the Second Amended Complaint. See Sanderlin v. City of San Jose, 2022 WL 913055 16 (N.D. Cal. Mar. 29, 2022) (“Sanderlin II”). Plaintiffs filed a Third Amended Complaint on June 4, 2022. ECF No. 83 (“TAC”). Since 17 18 19 20 the TAC was filed, one plaintiff settled her claims. The remaining claims are as follows: # CLAIM DEFENDANT(S) TAC ¶¶ Derrick Sanderlin 21 1 § 1983 (1A) Garcia, Dwyer, Yuen, Panighetti 165–170 22 9 § 1983 (4A) Garcia, Dwyer, Yuen, Panighetti 213–218 23 20 Bane Act City, Yuen, Panighetti 282–285 24 28 IIED City, Yuen, Panighetti 314–318 25 Cayla Sanderlin 26 2 § 1983 (1A) Garcia, Dwyer 171–176 27 10 § 1983 (4A) Garcia, Dwyer 219–224 28 10 1 # CLAIM DEFENDANT(S) TAC ¶¶ 2 21 Bane Act City 286–289 3 29 IIED City 319–323 4 36 Loss of consortium City, Panighetti 354–358 5 6 3 § 1983 (1A) Garcia, Dwyer 177–182 7 11 § 1983 (4A) Garcia, Dwyer 225–230 8 22 Bane Act City 290–293 9 30 IIED City 324–328 10 United States District Court Northern District of California Breanna Contreras Pietro di Donato 11 4 § 1983 (1A) Garcia, Dwyer 183–188 12 12 § 1983 (4A) Garcia, Dwyer 231–236 23 Bane Act City 294–297 31 IIED City 329–333 13 14 15 16 17 18 19 20 21 Adira Sharkey 5 § 1983 (1A) Garcia, Dwyer 189–194 13 § 1983 (4A) Garcia, Dwyer 237–242 24 Bane Act City 298–301 32 IIED City 334–338 Joseph Stukes 6 § 1983 (1A) Garcia 195–200 14 § 1983 (4A) Garcia 243–248 25 Bane Act City 302–305 33 IIED City 339–343 22 23 24 25 Vera Clanton 26 8 § 1983 (1A) Garcia 207–212 16 § 1983 (4A) Tassio, Avila, Marshall 255–258 27 28 11 1 # CLAIM DEFENDANT(S) TAC ¶¶ 2 19 Monell (4A) City 271–281 3 27 Bane Act City, Tassio, Avila, Marshall 310–313 4 35 IIED City, Tassio, Avila, Marshall 349–353 5 6 17 Monell (1A) City 259–264 7 18 Monell (4A) City 265–270 8 On December 29, 2022, Defendants filed the instant motion for summary judgment on all claims. 9 See MSJ. 10 11 United States District Court Northern District of California All Plaintiffs II. LEGAL STANDARD “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 12 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 13 Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P. 14 56(a)). “The moving party initially bears the burden of proving the absence of a genuine issue of 15 material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex 16 Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the non-moving party bears the burden of 17 proof at trial, the moving party need only prove that there is an absence of evidence to support the 18 non-moving party's case.” Id. (citing Celotex, 477 U.S. at 325). 19 “Where the moving party meets that burden, the burden then shifts to the non-moving 20 party to designate specific facts demonstrating the existence of genuine issues for trial.” Oracle, 21 627 F.3d at 387 (citing Celotex, 477 U.S. at 324). “[T]he non-moving party must come forth with 22 evidence from which a jury could reasonably render a verdict in the non-moving party’s favor.” 23 Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). “The court must view the 24 evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the 25 nonmovant's favor.” City of Pomona, 750 F.3d at 1049 (citing Clicks Billiards Inc. v. Sixshooters 26 Inc., 251 F.3d 1252, 1257 (9th Cir. 2001)). “Where the record taken as a whole could not lead a 27 rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Id. at 28 1049-50 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 12 1 (1986)). 2 III. 3 A. 4 Defendants seek summary judgment as to each Plaintiff’s claim for intentional infliction of Intentional Infliction of Emotional Distress (Claims 28-33, 35) 5 emotional distress. MSJ at 23-24. Plaintiffs do not contest that summary judgment as to these 6 claims is proper. See Opp. At the hearing, Plaintiffs confirmed that they have conceded these 7 claims. The Court therefore GRANTS summary judgment to Defendants on all claims for 8 intentional infliction of emotional distress (Claims 28-33, 35). 9 10 United States District Court Northern District of California DISCUSSION B. Defendant Yuen (Claims 1, 9, 20, 28) Officer Yuen seeks summary judgment as to all claims naming him as Defendant. See 11 MSJ at 6. He stated in his deposition that he did not shoot Derrick Sanderlin in the groin. Huang 12 Decl., Ex. 11 (“Yuen Dep.”) at 75:21-76:22. Derrick Sanderlin provides no evidence to contradict 13 this, and the description given by Derrick Sanderlin of the officer that shot him does not match 14 that of Yuen. See Huang Decl., Ex. 10 (“D. Sanderlin Dep.”) at 91:1-11; MSJ at 6. The Court 15 therefore GRANTS Defendant Yuen’s motion for summary judgment as to all claims in which he 16 was named (Claims 1, 9, 20, and 28). 17 C. 18 Defendants seek summary judgment on each of the seven Plaintiff’s Section 1983 claims Fourth Amendment Claims (Claims 9-14, 16) 19 alleging violation of their Fourth Amendment rights. Two of the Plaintiffs have identified the 20 officers that used excessive force against them, while the other five have not. Those five Plaintiffs 21 bring their excessive force claims against Chief Garcia and Captain Dwyer, or only Garcia. The 22 Court will first address those five Plaintiffs as a group, and then it will address each of the other 23 two Plaintiffs individually. 24 On all seven claims, Defendants assert qualified immunity. See MSJ at 6-18. “In 25 evaluating a grant of qualified immunity, a court considers whether (1) the state actor’s conduct 26 violated a constitutional right and (2) the right was clearly established at the time of the alleged 27 misconduct.” Gordon v. Cnty. of Orange, 6 F.4th 961, 967-68 (9th Cir. 2021). Defendants 28 contest both prongs, arguing that they are entitled to summary judgment because (1) Plaintiffs 13 1 cannot establish a constitutional violation, and (2) they are entitled to qualified immunity because 2 they did not violate clearly established law. See MSJ at 6-18. “Either question [of the qualified 3 immunity test] may be addressed first, and if the answer to either is ‘no,’ then the state actor 4 cannot be held liable for damages.” Gordon, 6 F.4th at 968 (citing Pearson v. Callahan, 555 U.S. 5 223, 236 (2009)). 6 7 1. Plaintiffs Cayla Sanderlin, Breanna Contreras, Pietro di Donato, Adira Sharkey, and Joseph Stukes (“Group Plaintiffs”) (Claims 10-14) Plaintiffs Cayla Sanderlin, Breanna Contreras, Pietro di Donato, and Adira Sharkey 8 brought Fourth Amendment excessive force claims against Chief Garcia and Captain Dwyer, and 9 Plaintiff Joseph Stukes brought a Fourth Amendment excessive force claim against Chief Garcia 10 alone. See TAC ¶¶ 219-48. Defendants assert that without evidence identifying the specific 11 United States District Court Northern District of California officers who struck them or used any force against them, they cannot prove a constitutional 12 violation under Graham v. Connor. MSJ at 6-7. Defendants further argue that the Group 13 Plaintiffs’ claims against Garcia and Dwyer fail because Plaintiffs cannot show that Garcia and 14 Dwyer violated a clearly established right. Id. at 15-18. 15 “A defendant may be held liable as a supervisor under § 1983 ‘if there exists either (1) his 16 or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection 17 between the supervisor’s wrongful conduct and the constitutional violation.’” Starr v. Baca, 652 18 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). 19 Group Plaintiffs argue that Garcia and Dwyer are liable both as integral participants in the 20 constitutional deprivations and because there was “a sufficient causal connection” between their 21 conduct and the alleged constitutional violations. See Opp. at 9-10, 19-21. 22 Under either theory of liability, there must of course be a constitutional deprivation, and 23 Defendants assert there was not. The Court will therefore first address whether the Group 24 Plaintiffs were seized and, if so, whether the officers used excessive force. It will then address 25 whether Garcia and Dwyer can be held liable for any constitutional deprivation, either as integral 26 participants or through a causal connection. Finally, the Court will address qualified immunity. 27 28 14 1 a. Constitutional Deprivation Defendants argue that Plaintiffs cannot prove a constitutional violation by any subordinate 2 officer. MSJ at 6-7, 16. 3 4 1. Seizure “A person is seized by the police and thus entitled to challenge the government’s action 5 under the Fourth Amendment when the officer by means of physical force or show of authority 6 7 terminates or restrains his freedom of movement through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254 (2007) (internal quotation marks and citations omitted). “[T]he 8 application of physical force to the body of a person with intent to restrain is a seizure, even if the 9 person does not submit and is not subdued.” Torres v. Madrid, 141 S. Ct. 989, 1003 (2021). 10 United States District Court Northern District of California 11 12 “Accidental force will not qualify.” Id. at 998. And “the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain.” Id. (emphasis in original). If a plaintiff does not show “an unambiguous intent to restrain,” then they “must prove that in view of 13 all of the circumstances surrounding the incident, a reasonable person would have believed that 14 [they were] not free to leave.” Jackson-Moeser v. Armstrong, 765 F. App’x 299, 299 (9th Cir. 15 2019) (internal quotation marks and citations omitted). In seizures by show of authority, a seizure 16 only occurs if the subject does yield. California v. Hodari D., 499 U.S. 621, 626 (1991) (“An 17 arrest requires either physical force (as described above) or, where that is absent, submission to 18 the assertion of authority.” (emphasis in original)). 19 Four of the Group Plaintiffs—Breanna Contreras, Pietro di Donato, Adira Sharkey, and 20 Joseph Stukes—assert that they were seized when they were shot with projectiles. Defendants 21 argue that Plaintiffs cannot show an unambiguous intent to restrain, nor can they show that they 22 were not free to leave. Reply at 4-6. Plaintiffs point the Court to Nelson v. City of Davis, 685 23 F.3d 867 (9th Cir. 2012), in which the Ninth Circuit applied the intentionality requirement of 24 Brendlin v. California. The Ninth Circuit addressed whether there was a seizure where police 25 officers fired pepperball guns towards a group of students at a party. Id. at 873-74. The plaintiff 26 in the case had been hit in the eye with a projectile fired from one of the pepperball guns. Id. at 27 875. The Ninth Circuit stated that “[t]he intentionality requirement is satisfied when the 28 15 1 ‘termination of freedom of movement [occurs] through means intentionally applied.’” Id. at 876 2 (quoting Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989)) (emphasis in original). The Court 3 determined there was a seizure because the officers “took aim and intentionally fired in the 4 direction of a group of which Nelson was a member.” Id. at 875. The officers argued that there 5 was no seizure because the plaintiff “was not individually targeted by officers.” Id. at 876. But 6 the Ninth Circuit disagreed with this argument, noting that the plaintiff and other students “were 7 the undifferentiated objects of shots intentionally fired by the officers in the direction of that 8 group.” Id. at 877. The situation here is similar. Plaintiffs Contreras, di Donato, Sharkey, and Stukes have United States District Court Northern District of California 9 10 provided evidence sufficient to create a dispute of fact as to whether they were impacted by 11 projectiles from weapons that were intentionally fired by officers. They need not prove that they 12 were the intended targets of those shots under Nelson. And under Jackson-Moeser, they need not 13 show that they were not free to leave if they can show the force was intentionally applied. 14 Defendants argue that this case is distinguishable from Nelson because there, the plaintiff’s 15 freedom of movement was actually limited. Reply at 5. But the Supreme Court’s decision in 16 Torres indicates that, for a seizure to occur, the individual need not actually submit or be subdued 17 when force is applied. Therefore, the Court determines that Plaintiffs Breanna Contreras, Pietro di 18 Donato, Adira Sharkey, and Joseph Stukes have shown a dispute of fact as to whether they were 19 seized. 20 Plaintiff Cayla Sanderlin’s theory on her Fourth Amendment claim is somewhat unclear. 21 The briefing suggests that it may stem from either (1) when she got stuck between two lines of 22 SJPD officers or (2) when she was impacted by tear gas. See Opp. at 11. She cannot succeed 23 under either theory. The first would be considered a seizure by a show of authority. In such 24 instances, a seizure occurs only if the subject yields to the authority. Hodari D., 499 U.S. at 626. 25 From the evidence submitted by Cayla Sanderlin, it appears that she was able to, and did, walk 26 away. See C. Sanderlin Decl. ¶ 6. As to the second theory—tear gas—Cayla Sanderlin states that 27 she walked into an area where tear gas was already present. C. Sanderlin Dep. at 72-73. She 28 therefore cannot show that the officers intentionally applied tear gas to her. Plaintiff Cayla 16 1 2 3 2. Excessive Force Analysis of the reasonableness of force under the Fourth Amendment involves a totality of 4 the circumstances inquiry. Courts first consider the governmental interests at stake, such as “(1) 5 the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety 6 of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to 7 evade arrest by flight.” Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011) (citing 8 Graham v. Connor, 490 U.S. 386, 396 (1989)). On the other side, courts also consider the 9 plaintiff’s interests by looking to the “type and amount of force inflicted” and “the severity of 10 11 United States District Court Northern District of California Sanderlin therefore cannot show she was seized. injuries” experienced by the plaintiff. Felarca v. Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018). The Court first examines the governmental interests at stake. On the first Graham factor— 12 the severity of the crime—Plaintiffs were participating in protected First Amendment activity 13 against police violence. There is no evidence that any of the Group Plaintiffs was committing any 14 acts of violence. On the second factor—whether Plaintiffs presented an immediate threat to the 15 safety of the officers or others—there is no evidence that Group Plaintiffs were threatening officer 16 safety. And on the third factor—resisting or evading arrest—there is no evidence that any of the 17 Group Plaintiffs was charged with any crime or that any officer attempted to arrest any of them. 18 As to Plaintiffs’ interest factors—the type and amount of force used and the injuries inflicted— 19 they further weigh in favor of a finding of excessive force. The Plaintiffs were hit with projectiles. 20 And the use of the weapons left them with injuries. 21 Therefore, four of the Group Plaintiffs—Contreras, di Donato, Sharkey, and Stukes—have 22 shown a genuine dispute of material fact as to whether there was an unreasonable use of force 23 under the Graham factors based on a totality of the circumstances. Plaintiff Cayla Sanderlin has 24 not. The Court will next address whether Defendants Garcia and Dwyer can be held liable for 25 these violations under either of the Plaintiffs’ theories of liability. 26 b. Garcia and Dwyer’s Liability 27 28 Defendants further claim that Group Plaintiffs have no evidence that Garcia or Dwyer caused a constitutional violation through deliberate indifference and Group Plaintiffs cannot 17 1 establish that Garcia or Dwyer violated a constitutional right. MSJ at 15-18. Plaintiffs provide 2 two theories by which they argue Garcia and Dwyer are liable for their constitutional violations: 3 integral participation and causal connection. Opp. at 9-10, 19-21. The Court will address each in 4 turn. 5 6 Defendants argue that Garcia and Dwyer cannot be held liable as integral participants 7 because there is no evidence Garcia and Dwyer had any involvement in the Group Plaintiffs’ 8 alleged constitutional violations. Reply at 1-3. Group Plaintiffs assert that “[t]he SJPD officers at 9 the protests” can be held liable as integral participants in the constitutional deprivation. Opp. at 9- 10 11 United States District Court Northern District of California 1. Integral Participation 10. “‘[I]ntegral participation’ does not require that each officer’s actions themselves rise to a 12 level of a constitutional violation.” Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th Cir. 2004). But 13 any officer who is an “integral participant” in the constitutional deprivation can be held liable. Id. 14 “Officers are not integral participants simply by the virtue of being present at the scene of an 15 alleged unlawful act.” Monteilh v. Cnty. of Los Angeles, 820 F. Supp. 2d 1081, 1089 (C.D. Cal 16 2011) (citing Jones v. Williams, 297 F.3d 930, 936 (9th Cir. 2002)). “Instead, integral 17 participation requires some fundamental involvement in the conduct that allegedly caused the 18 violation.” Id. (citing Jones, 297 F.3d at 936) (emphasis in original). “Officers are fundamentally 19 involved in the alleged violation when they provide some affirmative physical support at the scene 20 of the alleged violation and when they are aware of the plan to commit the alleged violation or 21 have reason to know of such a plan, but do not object.” Id. (collecting cases). “Additionally, 22 officers may be integral participants even if they have no knowledge of a plan to commit the 23 alleged violation if their physical participation in the alleged violation was part of a closely related 24 series of physical acts leading to the violation.” Id. at 1089 n.10 (citing Blankenhorn v. City of 25 Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007)). 26 Here, Group Plaintiffs have not provided evidence indicating that Garcia and Dwyer were 27 integral participants in their alleged constitutional deprivations. There is evidence that Garcia was 28 not present at the protests on May 29, 2020. See Garcia Dep. at 22. And there is no evidence that 18 United States District Court Northern District of California 1 Garcia was present on June 2, 2020. And Dwyer was present at the protests at least on May 29, 2 2020, but Plaintiffs have provided no evidence that he was involved with, or even in the vicinity 3 of, any of the shootings of the Group Plaintiffs. 4 The cases relied on by Plaintiffs are distinguishable. First, in Rutherford v. City of 5 Berkeley, the plaintiff alleged that several officers, “without any provocation and without placing 6 him under arrest, . . . threw him to the ground, punched, kicked, and handcuffed him.” 780 F.2d 7 1444, 1445 (9th Cir. 1986). At trial, the plaintiff identified Officers Hood, McBride, and Houpt as 8 the officers who assaulted him, but he later stated he was not sure whether those officers actually 9 kicked or punched him. Id. The plaintiff confirmed that “while he was on the ground being 10 beaten he saw the faces of the named officers.” Id. The court directed a verdict in favor of the 11 defendants because the plaintiff had not offered proof that any of those individual defendants had 12 beaten him. Id. at 1445-46. The Ninth Circuit overturned, noting that the plaintiff “did testify that 13 [Hood, McBride, and Houpt] were among the five or six officers who were surrounding him while 14 he was being beaten and that he saw each of their faces while he was being beaten.” Id. at 1448. 15 And the Ninth Circuit further noted that those three officers admitted they “were among the five or 16 six officers who detained, arrested and handcuffed [the plaintiff], but denied punching or kicking 17 [him].” Id. The Ninth Circuit determined that, based on this evidence, “a jury could reasonably 18 infer that the named officers were participants in punching or kicking [the plaintiff].” Id. 19 Plaintiff also points to Boyd v. Benton County, 374 F.3d 773. In that case, a group of 20 officers executed a search warrant at the plaintiff’s home and used a flash-bang device. Id. at 777- 21 78. All of the officers were aware of the plan to use the flash-bang and did not object. Id. at 777. 22 The plaintiff brought an excessive force claim, and the court determined that, viewing the facts in 23 the light most favorable to the plaintiff, the use of force was constitutionally excessive. Id. at 779. 24 Defendants argued that only the officer who deployed the flash-bang should be liable. Id. at 780. 25 And the Ninth Circuit disagreed, stating that “each officer involved in the search operation was an 26 ‘integral participant.’” Id. at 780. The Ninth Circuit noted that (1) the other officers stood armed 27 behind the officer who deployed the flash-bang while he did so; (2) “the use of the flash-bang was 28 part of the search operation in which every officer participated in some meaningful way”; and (3) 19 1 “every officer was aware of the decision to use the flash-bang, did not object to it, and participated 2 in the search operation knowing the flash-bang was to be deployed.” Id. 3 4 constitutional violations in the same manner as the officers in Rutherford or Boyd. As stated 5 above, Plaintiffs have provided no evidence that Garcia was present at the protests. And while 6 Dwyer was present at the protests, Plaintiffs have provided no evidence he was in the vicinity of 7 any of the locations of their alleged constitutional violations. And even if he was in the vicinity, 8 they have provided no evidence that he was involved in the decisions made to shoot them, or in 9 the carrying out of those shootings. Plaintiffs have not shown that either Garcia or Dwyer was an 10 11 United States District Court Northern District of California Defendants Garcia and Dwyer were not involved in the Group Plaintiffs’ alleged 12 13 integral participants in their alleged constitutional violations. Defendants Garcia and Dwyer are not liable as integral participants for any of the Group Plaintiffs. 2. Causal Connection 14 Defendants argue that they are entitled to summary judgment because Group Plaintiffs do 15 not have any evidence showing that Garcia and Dwyer are liable as supervisors based on a causal 16 connection. MSJ at 16-18. Group Plaintiffs assert that Defendants Garcia and Dwyer can be held 17 liable as supervisors because there is a sufficient causal connection between their wrongful 18 conduct and the constitutional violations. Opp. at 19-21. 19 As stated above, “[a] defendant may be held liable as a supervisor under § 1983 ‘if there 20 exists . . . a sufficient causal connection between the supervisor’s wrongful conduct and the 21 constitutional violation.’” Starr, 652 F.3d at 1207 (quoting Hansen, 885 F.2d at 646). To succeed 22 under this theory, Group Plaintiffs “must show (1) that an officer used excessive force against 23 them, and (2) the requisite causal connection between that officer, on the one hand, and [the 24 supervising officers], on the other.” Felarca, 891 F.3d at 821 (citing Jackson v. City of 25 Bremerton, 268 F.3d 646, 653-54 (9th Cir. 2001); Starr, 652 F.3d at 1207). The Court already 26 addressed the first prong, excessive force, above. The Court therefore turns to whether Plaintiffs 27 have provided evidence that there was a causal connection between the acts of Garcia and Dwyer 28 and the acts of the officers who caused the alleged constitutional deprivations. “The requisite 20 1 causal connection can be established by setting in motion a series of acts by others, or by 2 knowingly refusing to terminate a series of acts by others, which the supervisor knew or 3 reasonably should have known would cause others to inflict a constitutional injury.” Felarca, 891 4 F.3d at 820 (quoting Starr, 652 F.3d at 1207-08). “A supervisor can be liable in his individual 5 capacity for his own culpable action or inaction in the training, supervision, or control of his 6 subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a 7 reckless or callous indifference to the rights of others.” Starr, 652 F.3d at 1208 (quoting Watkins 8 v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)). United States District Court Northern District of California 9 The evidence as to Garcia and Dwyer is summarized in the Background section, above. 10 First, the main evidence as to the role of Chief Garcia is an excerpt from his deposition. See 11 Garcia Dep. In the excerpt, Garcia discusses his conversations with Assistant Chief Knopf on 12 May 29, 2020. See id. Garcia states that he authorized the use of tear gas as necessary. Id. at 31. 13 He also states that he was informed that the officers would be calling the protest an unlawful 14 assembly. Id. Garcia indicates that he could not remember if he spoke with Knopf about PIWs on 15 that day. Id. at 31-33. Plaintiffs’ evidence does not create a dispute of fact as to whether there 16 was a causal connection between Garcia’s actions and any deprivation of Group Plaintiffs’ 17 constitutional rights. See Reply at 14 (summarizing Plaintiffs’ evidence as to Garcia). Garcia did 18 not set in motion a series of acts that he knew or reasonably should have known would lead to any 19 of the Group Plaintiffs’ alleged constitutional violations. He authorized the use of tear gas as 20 necessary. Tear gas did not cause any of the constitutional deprivations at issue here—the four 21 Group Plaintiffs who can possibly show constitutional deprivations were hit by projectiles. And 22 further, Group Plaintiffs provide no evidence that Garcia knew or should have known that any 23 weapons would be used in a way that would be constitutionally suspect. Garcia is therefore not 24 liable for any constitutional violations as a supervisor. 25 Second, the Court will address Plaintiffs’ evidence as to Captain Dwyer. Dwyer was the 26 incident commander on May 29, 2020. Garcia Dep. at 33:7-9. As incident commander, he 27 provided authorization for use of certain less-lethal weapons. Tassio Dep. 1 at 36-38. The 28 evidence shows that on May 29, 2020, SJPD officers declared the protest an unlawful assembly 21 1 and gave dispersal orders. AAR at 41, 48. Plaintiffs state that this order was made by Dwyer. 2 Opp. at 21, 23. The Court determines that there are disputed facts as to Dwyer’s acts as incident 3 commander on May 29, 2020. And the Court determines that, looking at the evidence in the light 4 most favorable to Plaintiffs, a reasonable jury could determine that Dwyer set in motion a series of 5 events that he knew, or reasonably should have known, would lead to excessive force being used 6 against peaceful protestors in violation of their Fourth Amendment rights. 7 Plaintiffs have shown disputed facts such that summary judgment for Dwyer is improper as 8 to the Fourth Amendment claims of Breanna Contreras, Pietro di Donato, and Adira Sharkey. The 9 Court next turns to Dwyer’s assertion of qualified immunity. 10 United States District Court Northern District of California 11 c. Qualified Immunity Dwyer argues that he is entitled to qualified immunity. MSJ at 15-18. The Court must 12 “consider whether the law was clearly established at the time of the challenged conduct.” Felarca, 13 891 F.3d at 816 (citing Sjurset, 810 F.3d at 615). And “the clearly established right must be 14 defined with specificity.” Emmons, 139 S. Ct. at 503. 15 Here, the Court finds that granting qualified immunity to Dwyer turns on accepting 16 Defendant’s version of disputed facts, so qualified immunity is not appropriate at present. See 17 Estate of Aguirre v. Cnty. of Riverside, 29 F.4th 624, 630 (9th Cir. 2022) (holding “[c]ritical 18 disputes of fact render[ed] summary judgment premature” in police violence case where police 19 claimed qualified immunity); Espinosa v. City & Cnty. of San Francisco, 598 F.3d 528, 532 (9th 20 Cir. 2010) (affirming denial of summary judgment on qualified immunity grounds because there 21 were genuine issues of fact regarding whether the officers violated plaintiff’s Fourth Amendment 22 rights, which were also material to a proper determination of the reasonableness of the officers’ 23 belief in the legality of their actions). 24 Here, looking at the facts in the light most favorable to Plaintiffs, the question is whether it 25 was clearly established that an officer could not shoot a projectile at an individual who was 26 peacefully protesting. In Nelson, the Ninth Circuit affirmed denial of an officer’s bid for qualified 27 immunity in an excessive force case. As discussed above, the plaintiff had attended a large party 28 at his university, and police officers were summoned to break it up. Nelson, 685 F.3d at 872-73. 22 1 Officers gathered in the breezeway of the apartment complex and gave dispersal orders but 2 recognized that they could not be heard over the din of the party. Id. at 873-74. A group of 3 students, including the plaintiff, attempted to leave but were blocked in the breezeway by officers. 4 Id. at 874. Although some bottles were thrown in the area, officers knew that no one from 5 plaintiff’s group threw them. Id. Officers fired at the group with pepperball guns; plaintiff was 6 struck in the eye and immobilized. Id. He suffered temporary blindness, required multiple 7 surgeries, and was forced to withdraw from U.C. Davis after losing his athletic scholarship. Id. 8 The Ninth Circuit affirmed denial of qualified immunity, finding that the plaintiff was seized when 9 he was struck by the projectile and “rendered immobile,” and that the use of force was excessive 10 United States District Court Northern District of California 11 under Graham. Id. at 875–87. Here, officers shot projectiles at Breanna Contreras, Pietro di Donato, and Adira Sharkey, 12 even though they were not engaged in any violence towards the police, although others around 13 them may have been. Under Plaintiffs’ version of events, the officers had notice that shooting of 14 these Plaintiffs would be unconstitutional. Therefore, Plaintiffs’ evidence, if credited by the jury, 15 would support a finding that Dwyer violated a clearly established right by setting in motion these 16 constitutional violations. Cf. Felarca, 891 F.3d at 823 (conducting qualified immunity analysis 17 for supervisory liability). The Court therefore determines that Dwyer is not entitled to qualified 18 immunity. 19 20 ***** The Court GRANTS Defendant Garcia’s motion for summary judgment as to Claims 10- 21 14. The Court GRANTS Defendant Dwyer’s motion for summary judgment as to Claim 10. The 22 Court DENIES Defendant Dwyer’s motion for summary judgment as to Claims 11-13. 23 24 2. Plaintiff Vera Clanton (Claim 16) Defendants Tassio, Avila, and Marshall move for summary judgment on Plaintiff Vera 25 Clanton’s Fourth Amendment claim, asserting qualified immunity. MSJ at 12-14. Under a 26 qualified immunity analysis, the relevant inquiry is: “(1) whether the facts, taken in the light most 27 favorable to the non-moving party, show that the officials’ conduct violated a constitutional right, 28 and (2) whether the law at the time of the challenged conduct clearly established that the conduct 23 1 was unlawful.” Felarca, 891 F.3d at 815 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The 2 Court will address each prong in turn. 3 a. Violation of a Constitutional Right Plaintiff Clanton alleged two violations of her constitutional rights: (1) she was arrested 4 5 without probable cause and (2) the officers used excessive force in her arrest. TAC ¶ 255-58. 6 Defendants argue that the arrest was made with probable cause and that the officers did not use 7 excessive force in effectuating her arrest. MSJ at 12-14. The Court will address each in turn. 8 1. Probable Cause First, Defendants assert that they had probable cause to arrest Clanton. “Probable cause United States District Court Northern District of California 9 10 exists if the arresting officers ‘had knowledge and reasonably trustworthy information of facts and 11 circumstances sufficient to lead a prudent person to believe that [the arrestee] had committed or 12 was committing a crime.’” Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097-98 (9th Cir. 2013) 13 (quoting Maxwell v. Cnty. of San Diego, 697 F.3d 941, 951 (9th Cir. 2012)). The Supreme Court 14 has recognized that probable cause “is not a high bar.” Kaley v. United States, 571 U.S. 320, 338 15 (2014). “If an officer has probable cause to believe that an individual has committed even a very 16 minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest 17 the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). Here, the officers arrested Clanton for violation of the curfew order. She was warned 18 19 several times by officers that there was a curfew, and she would be arrested if she did not leave, 20 but she did not leave. Clanton Dep. at 34-35; see also Huang Decl., Ex. 14 (curfew order). When 21 she did not disperse, Tassio ordered other officers to arrest her. Tassio Dep. 2 at 88:4-89:6. This 22 undisputed evidence establishes that officers had probable cause to arrest Clanton. See Huang 23 Decl. Ex. 14 (curfew order); Cal. Gov’t Code § 36900(a) (violation of city ordinance a 24 misdemeanor). The Court therefore determines that the act of arresting Clanton did not violate her 25 constitutional rights. It now turns to whether the officers used excessive force in effectuating the 26 arrest. 27 28 2. Excessive force Second, the officers assert that they did not use excessive force in effectuating the arrest. 24 United States District Court Northern District of California 1 As discussed, “police use of force violates the Fourth Amendment if it is objectively unreasonable 2 under the circumstances.” Felarca, 891 F.3d at 816 (citing Graham, 490 U.S. at 388). A court 3 must “assess reasonableness by balancing ‘the nature and quality of the intrusion on the 4 individual’s Fourth Amendment interests against the countervailing governmental interests at 5 stake.’” Id. (quoting Graham, 490 U.S. at 396). Courts first consider the governmental interests 6 at stake, such as “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate 7 threat to the safety of the officers or others, and (3) whether the suspect was actively resisting 8 arrest or attempting to evade arrest by flight.” Torres v. City of Madera, 648 F.3d at 1124 (citing 9 Graham, 490 U.S. at 396). On the other side, courts also consider the plaintiff’s interests by 10 looking to the “type and amount of force inflicted” and “the severity of injuries” experienced by 11 the plaintiff. Felarca, 891 F.3d at 817. 12 The Court first examines the governmental interests at stake. On the first Graham factor— 13 the severity of the crime—Plaintiff was violating a curfew, but there is no evidence that she was 14 committing any acts of violence. On the second factor—whether Plaintiff presented an immediate 15 threat to the safety of the officers or others—the video evidence shows that Clanton was not 16 directly threatening officer safety. But Tassio states that, although she was not violent, the fact 17 that she refused to leave after being ordered to leave “was creating this environment where people 18 were openly defiant towards law enforcement and refusing to the follow the curfew order 19 violation, or refusing to follow our lawful orders.” Tassio Dep. 2 at 88:13-25. And on the third 20 factor—resisting or evading arrest—Plaintiff refused to disperse, but there is no evidence that 21 Plaintiff resisted arrest once the officers began to arrest her. Plaintiff’s interest factors—the type 22 and amount of force used and the injuries inflicted—further weigh in favor of a finding of 23 excessive force. Plaintiff has alleged that although she was peacefully recording police activity, 24 the officers arrested her. The evidence shows that the police took her down to the ground in order 25 to handcuff Clanton. Clanton has submitted evidence showing the nature of her injuries. 26 The Court finds there is a genuine dispute of material fact as to whether the officers used 27 excessive force in effectuating Clanton’s arrest. A reasonable jury could determine the force was 28 excessive. The Court therefore moves to the second step of the qualified immunity analysis— 25 1 2 United States District Court Northern District of California 3 whether the violation was clearly established. b. Clearly Established Defendants also assert qualified immunity. MSJ at 14. They argue that there is no clearly 4 established law that the officers could not use a control hold to arrest Clanton. Id. Under the 5 second step of the qualified immunity analysis, the Court must “consider whether the law was 6 clearly established at the time of the challenged conduct.” Felarca, 891 F.3d at 816 (citing Sjurset 7 v. Button, 810 F.3d 609, 615 (9th Cir. 2015)). The Supreme Court recently reiterated the 8 longstanding principle that “the clearly established right must be defined with specificity.” City of 9 Escondido v. Emmons, 139 S. Ct. 500, 503 (2019). Defining the right at too high a level of 10 generality “avoids the crucial question whether the official acted reasonably in the particular 11 circumstances that he or she faced.” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 12 (2018) (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). “[A] defendant cannot be said to 13 have violated a clearly established right unless the right's contours were sufficiently definite that 14 any reasonable official in the defendant's shoes would have understood that he was violating 15 it.” Plumhoff, 134 S. Ct. at 778-79. There can, however, be “the rare ‘obvious case,’ where the 16 unlawfulness of the officer's conduct is sufficiently clear even though existing precedent does not 17 address similar circumstances.” Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1164 (9th Cir. 18 2020) (quoting Wesby, 138 S. Ct. at 590). 19 The Court must determine whether it was clearly established that the officers here used 20 excessive force in arresting Clanton. The Ninth Circuit has said that “[t]he right to be free from 21 the application of non-trivial force for engaging in mere passive resistance was clearly established 22 prior to 2008.” Gravelet-Blondin, 728 F.3d at 1093. Here, the evidence establishes that Clanton 23 had observed a man getting arrested, and she walked over to witness and record the arrest. 24 Clanton Decl. ¶ 3. She was warned by officers that there was a curfew, but she did not leave, and 25 Tassio ordered her arrest. Clanton Dep. at 34-35; Tassio Dep. 2 at 88:4-89:6; Neumer Decl., Ex. 26 B. The officers then arrested her. Clanton Decl. ¶ 3. There are several videos of the arrest from 27 officers’ body worn cameras, but none provides a completely clear depiction of her arrest. See 28 Neumer Decl., Exs. B, D, E, F. Clanton’s knees were injured from the arrest. See Clanton Decl. ¶ 26 1 3; Marinho Decl., Ex. N; Huang Decl., Ex. 16. Based on the evidence submitted by Clanton, a 2 reasonable jury could find that Clanton was engaged in mere passive resistance and that the force 3 used by the officers was excessive and non-trivial. United States District Court Northern District of California 4 Defendants point the Court to Donovan v. Phillips, 685 F. App’x 611 (9th Cir. 2017). That 5 case stemmed from an arrest at a traffic stop, in which the plaintiff alleged excessive force. Id. at 6 612. The plaintiff did not follow an officer’s orders to stay in her vehicle while he administered a 7 sobriety test to her partner. Id. The officer arrested plaintiff using a control hold, which resulted 8 in an injury to the plaintiff’s rotator cuff. Id. at 614. The Ninth Circuit upheld the district court’s 9 determination that the officer did not use excessive force, and it stated that the officer was entitled 10 to qualified immunity. Id. at 613. But that case is distinguishable. The Ninth Circuit made much 11 of the fact that the stop happened in the context of a traffic stop, stating that “[t]he Supreme Court 12 has expressly recognized that traffic stops ‘are especially fraught with danger to police officers.’” 13 Id. at 612 (quoting Arizona v. Johnson, 555 U.S. 323, 330 (2009)). The Ninth Circuit went on to 14 mention that the officer was outnumbered and “ha[d] to monitor two potentially intoxicated 15 individuals on the side of a highway at night.” Id. at 612-13. Further, the court noted that the 16 officer’s conduct complied with the California Highway Patrol’s Highway Patrol Manual. Id. at 17 613. The arrest here happened in completely different factual circumstances. The arrest did not 18 take place in the context of a traffic stop, and it therefore did not have the inherent dangers 19 recognized by the Supreme Court and Ninth Circuit. The officers’ conduct was not governed by 20 the California Highway Patrol’s Highway Patrol Manual. And the officers were not outnumbered 21 by Clanton; instead, they outnumbered her. 22 The Court determines that it is for a jury to determine whether the officers’ conduct 23 violated Clanton’s Fourth Amendment right to be free from excessive force. It was clearly 24 established that Clanton had that right. 25 ***** 26 The Court DENIES Defendants Avila, Marshall, and Tassio’s motion for summary 27 judgment as to Claim 16. 28 27 1 3. Plaintiff Derrick Sanderlin (Claim 9) Defendants Garcia, Dwyer, and Panighetti move for summary judgment on Plaintiff 2 Derrick Sanderlin’s Fourth Amendment claim, asserting qualified immunity. MSJ at 7-12. 3 Sanderlin alleges that Defendant Panighetti shot him with a rubber bullet in violation of his Fourth 4 Amendment rights, and his claims against Defendants Garcia and Dwyer are based on supervisory 5 liability. The Court will therefore separately analyze the claims against Defendant Panighetti and 6 Defendants Dwyer and Garcia. 7 8 a. Defendant Panighetti Panighetti asserts qualified immunity on Derrick Sanderlin’s excessive force claim. MSJ 9 at 8-12. The Court must address both prongs of the qualified immunity analysis: (1) whether 10 Panighetti’s conduct violated a constitutional right and (2) whether the law clearly established that 11 United States District Court Northern District of California the conduct was unlawful. See Felarca, 891 F.3d at 815. 12 13 1. Violation of a Constitutional Right Defendants argue that Sanderlin was not unreasonably seized under the Fourth 14 Amendment. MSJ at 8-10. Defendants argue that there was no seizure because Panighetti sought 15 to move Plaintiff, not to restrain him. Id.; Reply at 6. But the Court looks at “whether the 16 challenged conduct objectively manifests an intent to restrain, for [a court] rarely probe[s] the 17 18 subjective motivations of police officers in the Fourth Amendment context.” Torres, 141 S. Ct. at 998 (emphasis in original). In Nelson, the Ninth Circuit rejected the defendant officers’ argument 19 that there was no seizure because their intent was to disperse the crowd, because the subjective 20 intent of the officers is not determinative of whether there was a seizure. 685 F.3d at 877. Here, 21 Panighetti intentionally aimed and fired at Derrick Sanderlin. Derrick Sanderlin has at least 22 created a dispute of fact as to whether there was a seizure for purposes of the Fourth Amendment. 23 Now that the Court has determined there is a dispute of fact as to whether there was a 24 seizure, it turns to the question of whether Panighetti used excessive force in shooting Derrick 25 26 27 Sanderlin with a projectile. “Under the first step of the [qualified immunity] analysis, police use of force violates the Fourth Amendment if it is objectively unreasonable under the circumstances.” Felarca, 891 F.3d at 816 (citing Graham, 490 U.S. at 388). As discussed, a court must “assess 28 28 1 reasonableness by balancing ‘the nature and quality of the intrusion on the individual’s Fourth 2 Amendment interests against the countervailing governmental interests at stake.’” Id. (quoting 3 Graham, 490 U.S. at 396). Courts first consider the governmental interests at stake, such as “(1) 4 the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety 5 of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to 6 evade arrest by flight.” Torres v. City of Madera, 648 F.3d at 1124 (citing Graham, 490 U.S. at 7 396). On the other side, courts also consider the plaintiff’s interests by looking to the “type and 8 amount of force inflicted” and “the severity of injuries” experienced by the plaintiff. Felarca, 891 9 F.3d at 817. The Court first examines the governmental interests at stake. On the first Graham factor— United States District Court Northern District of California 10 11 the severity of the crime—Plaintiff was protesting peacefully. He had his hands up, and he was 12 holding a sign. On the second factor—whether Plaintiff presented an immediate threat to the 13 safety of the officers or others—Plaintiff states he was not directly threatening officer safety. 14 However, Panighetti states that Plaintiff was standing between officers and two individuals who 15 the officers considered dangerous targets, thus preventing the officers from getting to those 16 targets. Sanderlin claims he was merely standing with his hands up. And on the third factor— 17 resisting or evading arrest—there is no evidence that Plaintiff was charged with any crime or that 18 any officer attempted to arrest him. Plaintiff’s interest factors—the type and amount of force used 19 and the injuries inflicted—further weigh in favor of a finding of excessive force. The force used 20 against Plaintiff was quite strong—a projectile weapon. And the injuries inflicted were incredibly 21 severe. 22 The Court finds there is a genuine dispute of material fact as to whether Panighetti used 23 excessive force against Derrick Sanderlin. It would depend largely on how the jury interprets the 24 video footage, and whether the jury credits Panighetti’s testimony that Sanderlin was blocking the 25 police from targeting the two individuals behind the dumpster. Because the Courts determines 26 there is a dispute of fact, it moves to the second step of the qualified immunity analysis—whether 27 the violation was clearly established. 28 2. Clearly Established 29 1 Under the second step of the qualified immunity analysis, the Court must “consider 2 whether the law was clearly established at the time of the challenged conduct.” Felarca, 891 F.3d 3 at 816 (citing Sjurset, 810 F.3d at 615). And “the clearly established right must be defined with 4 specificity.” Emmons, 139 S. Ct. at 503. 5 Here, the Court finds that granting qualified immunity to Officer Panighetti turns on 6 accepting Defendants’ version of disputed facts, so qualified immunity is not appropriate at 7 present. See Estate of Aguirre, 29 F.4th at 630; Espinosa, 598 F.3d at 532. 8 Here, looking at the facts in the light most favorable to the Plaintiff, the question is 9 whether it was clearly established that an officer could not shoot a projectile at an individual who 10 United States District Court Northern District of California 11 was peacefully protesting. The Court again looks to Nelson, summarized above. As in Nelson, here, Panighetti shot a projectile at Derrick Sanderlin after shouting dispersal 12 orders that Mr. Sanderlin stated he did not hear, even though Mr. Sanderlin was not engaged in 13 any violence towards the police, although others around him were. Under Sanderlin’s version of 14 events, Panighetti had notice that his shooting of Sanderlin would be unconstitutional. The Court 15 therefore denies Panighetti’s request for qualified immunity. 16 17 b. Defendants Garcia and Dwyer Defendants Garcia and Dwyer also move for summary judgment on Plaintiff Derrick 18 Sanderlin’s Fourth Amendment excessive force claim. MSJ at 15-18. For the reasons discussed 19 above with respect to the Group Plaintiffs, the Court determines that Garcia was not liable for any 20 deprivation of Derrick Sanderlin’s constitutional rights, but Dwyer may be. ***** 21 22 23 The Court DENIES Defendants Panighetti and Dwyer’s motion for summary judgment as to Claim 9 and GRANTS Defendant Garcia’s motion for summary judgment as to Claim 9. 24 D. 25 Defendants also move for summary judgment on Plaintiffs’ Section 1983 claims asserting First Amendment Claims (Claims 1-6, 8) 26 violations of the First Amendment (Claims 1-6, 8). To state a claim for retaliatory violation of the 27 First Amendment, Plaintiffs must plead and prove (1) they were engaged in a constitutionally 28 protected activity; (2) Defendants’ actions would “chill a person of ordinary firmness from 30 1 continuing to engage in the protected activity;” and (3) “the protected activity was a substantial or 2 motivating factor in [Defendants’] conduct.” Index Newspapers LLC v. U.S. Marshals Serv., 977 3 F.3d 817, 827 (9th Cir. 2020). The final element can be demonstrated “through direct or 4 circumstantial evidence” and “involves questions of fact that normally should be left for trial.” 5 NAACP of San Jose/Silicon Valley v. City of San Jose, 562 F. Supp. 3d 382, 398 (N.D. Cal. 2021) 6 (citing Index Newspapers, 977 F.3d at 827). 7 1. Plaintiffs Cayla Sanderlin, Breanna Contreras, Pietro di Donato, Adira Sharkey, and Joseph Stukes (Claims 2-6) 8 Plaintiffs Cayla Sanderlin, Breanna Contreras, Pietro di Donato, and Adira Sharkey bring 9 their Section 1983 claims asserting violations of the First Amendment against Defendants Garcia 10 and Dwyer, see TAC ¶¶ 171-94, and Plaintiff Joseph Stukes brings his against Defendant Garcia, 11 United States District Court Northern District of California see TAC ¶¶ 195-200 (Claims 2-6). Defendants Garcia and Dwyer move for summary judgment 12 on qualified immunity grounds. MSJ at 15-18. 13 14 Defendants here dispute the third prong: whether Plaintiffs’ protected activity— protesting—was a substantial or motivating factor in the officers’ conduct. MSJ at 16. Plaintiffs 15 argue that the fact that the protests were anti-police in nature is sufficient circumstantial evidence 16 that the protest was a substantial or motivating factor in the conduct. Opp. at 16-17. They point to 17 several other cases dealing with police brutality protests in spring 2020, in which courts made 18 such an inference. Id. But those cases were decided on a motion to dismiss or motion for 19 preliminary injunction or temporary restraining order, not a motion for summary judgment. See 20 Sanderlin II, 2022 WL 913055, at *7-8; NAACP of San Jose/Silicon Valley, 562 F. Supp. 3d at 21 398-400; Anti Police-Terror Project v. City of Oakland, 477 F. Supp. 3d 1066, 1088 (N.D. Cal. 22 2020); Don’t Shoot Portland v. City of Portland, 465 F. Supp. 3d 1150, 1155-56 (D. Or. 2020); 23 Black Lives Matter Seattle-King Cnty. v. City of Seattle, 466 F. Supp. 3d 1206, 1214 (W.D. Wash. 24 2020); Baca v. Anderson, No. 22-cv-02461-WHO, 2022 WL 7094267, at *4 (N.D. Cal. Oct. 12, 25 2022). 26 That being said, the Court notes that it would be difficult for Plaintiffs to produce direct 27 evidence that the officers’ subjective motives for shooting were related to the protests and their 28 31 United States District Court Northern District of California 1 subject matters. And Plaintiffs have produced some evidence. Captain Dwyer stated in his 2 deposition that the protests were “straight anti-police.” Dwyer Dep. at 69:3-25. Further, the Ninth 3 Circuit has recognized that a short “proximity in time between the protected action and the 4 allegedly retaliatory [conduct]” supports a First Amendment claim. Keyser v. Sacramento City 5 Unified Sch. Dist., 265 F.3d 741, 744 (9th Cir. 2001). Here, the retaliatory actions happened 6 during the protests. Further, the Court can consider reasonable inferences drawn from the 7 evidence that there was no reason for the officers to have engaged in the retaliatory actions 8 towards Plaintiffs other than the speech; there is no evidence that the Group Plaintiffs were 9 breaking the law. Cf. Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1377 (9th Cir. 1990) 10 (denying summary judgment to officer on First Amendment claim where record showed no 11 “legitimate, articulate reason” for officer to have arrested plaintiff). The Court also notes that the 12 Ninth Circuit has recognized that a First Amendment analysis “involves questions of fact that 13 normally should be left for trial.” Index Newspapers, 977 F.3d at 827. The Court thus finds that 14 there is a genuine dispute of material fact as to whether the Group Plaintiffs’ protected activity— 15 anti-police protesting—was a “substantial or motivating factor” in the officers’ conduct. 16 Group Plaintiffs again brought these claims against Defendants Garcia and Dwyer. While 17 it is not entirely clear on what theory Group Plaintiffs name these Defendants, it appears to be 18 under a theory of supervisory liability. And for supervisory liability, Group Plaintiffs must show 19 Garcia and/or Dwyer’s “(1) . . . personal involvement in the constitutional deprivation, or (2) a 20 sufficient causal connection between the supervisor’s wrongful conduct and the constitutional 21 violation.” Starr, 652 F.3d at 1207 (quoting Hansen, 885 F.2d at 646). 22 First, as above, Plaintiffs provide no evidence that either Garcia or Dwyer was personally 23 involved in the incidents in which they were impacted by projectiles or tear gas. Second, the 24 Court looks at a causal connection. And again, as above, the Court determines Plaintiffs have not 25 shown a causal connection as to Garcia. He authorized the use of tear gas as necessary, which did 26 not set in motion a series of events that caused the alleged First Amendment violations. But again, 27 as above, the Court determines there are disputed facts as to Dwyer’s role. A reasonable jury 28 could determine that Dwyer improperly called the protest an unlawful assembly and authorized the 32 1 use of less-lethal weapons despite knowing that many protestors were peaceful, and that this set in 2 motion the series of events that he knew or reasonably should have known would lead to Group 3 Plaintiffs’ alleged First Amendment violations. And, for the same reasons and based on the same 4 evidence that the Court pointed to above in its discussion of the third prong—retaliatory motive— 5 the Court determines that a reasonable jury could also find that Dwyer acted with a retaliatory 6 motive. United States District Court Northern District of California 7 Dwyer also argues that he did not violate a clearly established right. See MSJ at 15. Here, 8 looking at the facts in the light most favorable to the Plaintiffs, the question is whether Plaintiffs 9 had a clearly established right to peacefully engage in anti-police protests. And the Court finds 10 that such a right was clearly established. “Police officers have been on notice at least since 1990 11 that it is unlawful to use their authority to retaliate against individuals for their protected speech.” 12 Ford v. City of Yakima, 706 F.3d 1188, 1195 (9th Cir. 2013), abrogated on other grounds by 13 Nieves v. Bartlett, 139 S. Ct. 1715 (2019); see also City of Houston v. Hill, 482 U.S. 451, 461 14 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge 15 directed at police officers”); Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996) (“Activities 16 such as demonstrations, protest marches, and picketing are clearly protected by the First 17 Amendment.”). Dwyer is thus not entitled to qualified immunity on this claim. 18 19 20 21 The Court GRANTS Defendant Garcia’s motion for summary judgment as to Claims 2-6. The Court DENIES Defendant Dwyer’s motion for summary judgment as to Claims 2-5. 2. Plaintiff Vera Clanton (Claim 8) Defendant Garcia also moves for summary judgment as to Plaintiff Vera Clanton’s First 22 Amendment claim against him. Defendants argue that Clanton cannot show retaliatory motive 23 because she was arrested for violating the curfew, not for her protected activity. MSJ at 14-15. 24 The Court agrees with regard to the fact of Clanton’s arrest. As discussed above, the officers had 25 probable cause to arrest Clanton, as she was in violation of the curfew. See Clanton Dep. at 34-35; 26 Tassio Dep. 2 at 88:4-89:6; Huang Decl., Ex. 14 (curfew order). Further, Clanton has provided no 27 evidence that Chief Garcia would be a proper Defendant for this claim. He was neither personally 28 involved in her arrest, nor was there a causal connection between his actions authorizing the use of 33 1 tear gas and her arrest. Plaintiffs submit no other evidence of Chief Garcia’s connection to 2 Clanton’s arrest. 3 4 5 Claim 8. 3. Plaintiff Derrick Sanderlin (Claim 1) 6 Defendants Panighetti, Garcia, and Dwyer move for summary judgment on Derrick 7 Sanderlin’s First Amendment claim against them. MSJ at 14-18. The Court will analyze whether 8 Derrick Sanderlin has a claim as to Panighetti. Panighetti disputes the third prong: the motivation 9 for the officer’s conduct. See MSJ at 15. The Court will then address Garcia and Dwyer. Finally, 10 United States District Court Northern District of California The Court therefore GRANTS Defendant Garcia’s motion for summary judgment as to the Court will address Defendants’ claims of qualified immunity. See id. at 14-15. 11 Here, Panighetti states that his motivation for shooting Derrick Sanderlin was not 12 Sanderlin’s protected activity, but rather the fact that Sanderlin was blocking Panighetti and other 13 officers from taking action against the suspects standing behind the dumpster. MSJ at 15; see 14 Panighetti Dep. at 37:15-18, 79:23-81:3. But Derrick Sanderlin states that he was merely standing 15 in front of Panighetti with his hands up. As stated above with respect to the Fourth Amendment 16 claim, there is a dispute of fact as to Derrick Sanderlin’s actions prior to the shooting. It is for the 17 jury to decide. And if the jury credits Sanderlin’s version of the facts, then it could determine, 18 based on the circumstantial evidence discussed with regard to Group Plaintiffs, above, that 19 Panighetti’s shooting of Sanderlin was in retaliation for Plaintiff’s protected protesting activity. 20 For the same reasons as discussed above with respect to Group Plaintiffs, the Court 21 determines that Garcia is not liable as a supervisor for any violation of Derrick Sanderlin’s First 22 Amendment rights, but there is a dispute of fact as to whether Dwyer is liable. 23 The Court next turns to the qualified immunity analysis. Again, the Court finds that 24 granting qualified immunity turns on accepting Defendants’ version of disputed facts, so qualified 25 immunity is not appropriate. See Estate of Aguirre, 29 F.4th at 630; Espinosa, 598 F.3d at 532. 26 Here, looking at the facts in the light most favorable to the Plaintiff, the question is whether it was 27 clearly established that an officer could not shoot a projectile at an individual who was peacefully 28 protesting the police. And the Court finds that it was clearly established. See Ford, 706 F.3d at 34 1 1195 (“Police officers have been on notice at least since 1990 that it is unlawful to use their 2 authority to retaliate against individuals for their protected speech.”); Hill, 482 U.S. at 461 (“[T]he 3 First Amendment protects a significant amount of verbal criticism and challenge directed at police 4 officers”); Collins, 110 F.3d at 1371 (“Activities such as demonstrations, protest marches, and 5 picketing are clearly protected by the First Amendment.”). Defendants are thus not entitled to 6 qualified immunity on this claim. 7 8 9 United States District Court Northern District of California 10 The Court DENIES Defendants Panighetti and Dwyer’s motion for summary judgment as to Claim 1 and GRANTS Defendant Garcia’s motion for summary judgment as to Claim 1. E. Loss of Consortium (Claim 36) Defendants City and Panighetti move for summary judgment on Plaintiff Cayla Sanderlin’s 11 loss of consortium claim. MSJ at 24. “‘Consortium’ refers to ‘the noneconomic aspects of the 12 marriage relation, including conjugal society, comfort, affection, and companionship.’” Mealy v. 13 B-Mobile, Inc., 195 Cal. App. 4th 1218, 1223 (2011) (quoting Boeken v. Philip Morris USA, Inc., 14 48 Cal. 4th 788, 793 n.1 (2010)). “Consortium also encompasses sexual relations, moral support, 15 and household services.” Id. “A person who suffers a loss of consortium as the result of a 16 negligent or intentional injury to his or her spouse is entitled to recover damages from the 17 tortfeasor.” Id. In California, a claim for loss of consortium has four elements: 18 19 20 21 22 (1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff's spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant's act. Hahn v. Mirda, 147 Cal. App. 4th 740, 746 n.2 (2007). Defendants argue that the cause of action should fail because Derrick Sanderlin has no 23 cause of action in tort. MSJ at 24. In response, Plaintiff merely argues that for her “loss of 24 consortium claim she need not prove intent, negligence is enough.” Opp. at 10. She cites 25 Rodriguez v. Bethlehem Steel Corp., in which the court held that “[i]n California each spouse has a 26 cause of action of loss of consortium, as defined herein, caused by a negligent or intentional injury 27 to the other spouse by a third party.” 12 Cal. 3d 382, 408 (1974). In reply, Defendants argue that 28 Cayla Sanderlin did not provide evidence that Panighetti acted negligently. Reply at 15. 35 United States District Court Northern District of California 1 It is not clear whether Defendants are arguing that Cayla Sanderlin’s loss of consortium 2 claim fails because Derrick Sanderlin’s Section 1983 excessive force claim should fail or because 3 Derrick Sanderlin’s intentional infliction of emotional distress claim, which his only common law 4 tort cause of action, should fail. The Court denied summary judgment on Mr. Sanderlin’s Section 5 1983 excessive force claim so, to the extent Defendants make the first argument, it fails. To the 6 extent Defendants are arguing that the loss of consortium claim fails because Mr. Sanderlin no 7 longer has a common law tort cause of action, that argument also fails. Several courts have 8 determined that the facts underlying a Section 1983 excessive force claim are sufficient to state a 9 common law negligence claim. See, e.g., Atkinson v. Cnty. of Tulare, 790 F. Supp. 2d 1188, 1211 10 (E.D. Cal. 2011) (“Plaintiffs’ claim for negligence and battery flow from the same facts as the 11 alleged Fourth Amendment violation for excessive force and are measured by the same 12 reasonableness standard of the Fourth Amendment.”); Gomez v. City of Fremont, 730 F. Supp. 2d 13 1056, 1068 (N.D. Cal. 2010) (“Because Defendants are not entitled to summary judgment on their 14 excessive force claim under section 1983, they are not entitled to summary judgment on the 15 related state claims [including assault, battery, and negligence].”). Derrick Sanderlin was not 16 required to plead a negligence claim for Cayla Sanderlin’s loss of consortium claim to survive. 17 Because Derrick Sanderlin has shown a dispute of fact as to whether he suffered a tortious injury, 18 Defendants have not shown they are entitled to summary judgment on Cayla Sanderlin’s loss of 19 consortium claim. 20 21 The Court therefore DENIES Defendants City and Panighetti’s motion for summary judgment as to Claim 36. 22 F. 23 Defendants move for summary judgment as to all of Plaintiff’s Bane Act claims. MSJ at 24 22-23. Under the Bane Act, a plaintiff can seek damages “if a person or persons, whether or not 25 acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by 26 threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals 27 of rights secured by the Constitution or laws of the United States, or of the rights secured by the 28 Constitution or laws of this state.” Cal. Civ. Code § 52.1(b)-(c). “The essence of a Bane Act Bane Act Claims (Claims 20-25, 27) 36 1 claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or 2 coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do 3 under the law or to force the plaintiff to do something that he or she was not required to do under 4 the law.” Simmons v. Superior Court, 7 Cal. App. 5th 1113, 1125 (2016) (quoting Austin B. v. 5 Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 883 (2007)). United States District Court Northern District of California 6 The Court first addresses the Group Plaintiffs, who bring their Bane Act claims against the 7 City. See TAC ¶¶ 286-305. Defendants argue that the Bane Act claims fail for Group Plaintiffs 8 because they cannot identify any officers and cannot show any specific intent to violate their 9 constitutional rights. MSJ at 22-23. The Court first notes that municipalities can be liable for 10 Bane Act violations by their employees under the doctrine of respondeat superior. Robinson v. 11 Solano Cnty., 278 F.3d 1007, 1016 (9th Cir. 2002) (“California . . . has rejected the Monell rule 12 and imposes liability on [municipalities] under the doctrine of respondeat superior for acts of 13 [municipal] employees.”). Therefore, the City is a proper defendant. But the Bane Act requires 14 that a plaintiff show “threats, intimidation or coercion separate from the coercion inherent in the . . 15 . seizure itself.” Sandoval v. Cnty. of Sonoma, No. 11-cv-05817-TEH, 2016 WL 612905, at *3 16 (N.D. Cal. Feb. 16, 2016); see also Lyall v. City of Los Angeles, 807 F.3d 1178, 1196 (9th Cir. 17 2015) (“Numerous California decisions make clear that a plaintiff in a search-and-seizure case 18 must allege threats or coercion beyond the coercion inherent in a detention or search in order to 19 recover under the Bane Act.”). “[T]he requirements of the Bane Act cannot be satisfied simply by 20 alleging that an individual's rights were interfered with and that the interference itself was 21 inherently coercive.” Ranero v. Cnty. of San Bernadino, No. CV 16-02655 CBM, 2018 WL 22 8058373, at *5 (N.D. Cal. Mar. 12, 2018). “[W]here coercion is inherent in the constitutional 23 violation alleged . . . the statutory requirement of ‘threats, intimidation, or coercion’ is not met.” 24 Shoyoye v. Cnty. of Los Angeles, 203 Cal. App. 4th 947, 959 (2012). “The statute requires a 25 showing of coercion independent from the coercion inherent in the [constitutional violation] 26 itself.” Id. 27 28 Here, the Group Plaintiffs have not provided evidence of any “threats, intimidation, or coercion” outside of the alleged constitutional violations themselves. The Court therefore 37 United States District Court Northern District of California 1 determines that none of the Group Plaintiffs has shown a dispute of material fact as to their Bane 2 Act claims. 3 Defendants raise similar arguments regarding Derrick Sanderlin and Vera Clanton. MSJ at 4 22-23. And the Court reaches the same conclusion as to them. These Plaintiffs have not provided 5 any evidence of “threats, intimidation, or coercion” beyond the claimed excessive force used in 6 their seizures. The Court notes that excessive force used in an unlawful arrest can support a Bane 7 Act claim. See Bender v. Cnty. of Los Angeles, 217 Cal. App. 4th 968, 978 (2013) (“Where, as 8 here, an arrest is unlawful and excessive force is applied in making the arrest, there has been 9 coercion independent from the coercion inherent in the wrongful detention itself—a violation of 10 the Bane Act.” (citation omitted) (emphasis in original)). But because the Court determined that 11 the officers had probable cause to arrest Vera Clanton, her arrest was not unlawful, and the 12 excessive force is not sufficient for a Bane Act claim. 13 The Court GRANTS Defendant City’s motion for summary judgment on the Bane Act 14 claims of the Group Plaintiffs (Claims 21-25). The Court GRANTS Defendants City, Tassio, 15 Avila, and Marshall’s motion for summary judgment on Clanton’s Bane Act claim (Claim 27). 16 And the Court GRANTS Defendants City and Panighetti’s motion for summary judgment on 17 Derrick Sanderlin’s Bane Act claim (Claim 20). 18 G. 19 Defendant City seeks summary judgment as to all three of Plaintiffs’ Monell claims 20 (Claims 17–19). MSJ at 18-22. Plaintiffs, as a group, bring Monell claims against the City of San 21 Jose for violations of their First Amendment rights and Fourth Amendment right to be free from 22 unreasonable seizure and excessive force, and Plaintiff Clanton brings a separate Monell claim for 23 violation of her Fourth Amendment right to be free from arrest without probable cause. TAC ¶¶ 24 259-81. Plaintiffs assert that their allegations support Monell liability pursuant to unconstitutional 25 customs or policies, failure to train, and ratification. Opp. at 19. 26 Monell “The Supreme Court in Monell held that municipalities may only be held liable under 27 section 1983 for constitutional violations resulting from official . . . policy or custom.” Benavidez 28 v. Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021) (citing Monell v. Dep’t of Soc. Servs. 38 United States District Court Northern District of California 1 of City of New York, 436 U.S. 658, 694 (1978)). “[P]olicies can include written policies, unwritten 2 customs and practices, failure to train municipal employees on avoiding certain obvious 3 constitutional violations, . . . and, in rare instances, single constitutional violations [that] are so 4 inconsistent with constitutional rights that even such a single instance indicates at least deliberate 5 indifference of the municipality[.]” Id. at 1153 (citations omitted). “A municipality may [also] be 6 held liable for a constitutional violation if a final policymaker ratifies a subordinate’s actions.” 7 Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004). “In order to establish liability for governmental 8 entities under Monell, a plaintiff must prove ‘(1) that [the plaintiff] possessed a constitutional right 9 of which [s]he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to 10 deliberate indifference to the plaintiff’s constitutional right; and (4) that the policy is the moving 11 force behind the constitutional violation.’” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th 12 Cir. 2011) (alterations in original) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 13 F.3d 432, 438 (9th Cir. 1997)). The Court will first address Plaintiff Clanton’s standalone claim 14 for Monell liability, and it will then analyze each theory of Monell liability for the group claims in 15 turn. 16 17 1. Plaintiff Clanton’s Monell Claim (Claim 19) Defendants move for summary judgment as to Plaintiff Vera Clanton’s standalone claim 18 against the City asserting Monell liability for her arrest without probable cause. See TAC ¶¶ 271- 19 81. A Monell claim requires that the Plaintiff have been deprived of a constitutional right. See 20 Dougherty, 654 F.3d at 900. The Court earlier determined that the undisputed evidence 21 demonstrated the officers had probable cause to arrest Clanton. She therefore cannot prevail on a 22 Monell claim against the City for violation of her Fourth Amendment right to not be arrested 23 without probable cause. The Court GRANTS the City’s motion for summary judgment as to 24 Clanton’s Monell claim against the City (Claim 19). 25 26 2. Group Claims (Claims 17-18) Defendants also move for summary judgment as to all Plaintiffs’ Monell claims against the 27 City for violation of their First and Fourth Amendment rights. See TAC ¶¶ 259-70. Because 28 several Plaintiffs have shown a dispute of fact as to whether they were deprived on their Fourth 39 1 Amendment right to be free from excessive force and their First Amendment rights, these claims 2 can move forward. The Court will address each theory of liability in turn. United States District Court Northern District of California 3 a. Policy, Custom, or Practice 4 A municipality may be held liable on the basis of an unconstitutional policy if a plaintiff 5 can “prove the existence of a widespread practice that, although not authorized by written law or 6 express municipal policy, is ‘so permanent and well settled as to constitute a “custom or usage” 7 with the force of law.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes 8 v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). “Liability for improper custom may not be 9 predicated on isolated or sporadic incidents”—rather, “[t]he custom must be so persistent and 10 widespread that it constitutes a permanent and well settled city policy.” Trevino v. Gates, 11 99 F.3d 911, 918 (9th Cir. 1996) (internal quotation marks and citations omitted). 12 One policy that Plaintiffs point to in the briefing as being a constitutional violation is the 13 use of skip-fired, or multi-target, munitions. Opp. at 20-21. The 37mm weapon is the one that 14 fires multi-round munitions. See AAR at 104; Tassio Dep. 1 at 35:6-11. This theory faces several 15 problems. First, for Monell liability, a plaintiff must show “that the policy is the moving force 16 behind the constitutional violation.” Dougherty, 654 F.3d at 900 (quoting Plumeau, 130 F.3d at 17 438). Here, none of the Plaintiffs has provided any evidence of being struck with a projectile that 18 was fired as a skip-fired munition. And second, “an isolated or sporadic incident . . . cannot form 19 the basis of Monell liability for an improper custom.” Saved Mag. v. Spokane Police Dep't, 19 20 F.4th 1193, 1201 (9th Cir. 2021) (citing Trevino, 99 F.3d at 918) (cleaned up). Tassio stated in his 21 deposition that the 37mm launchers were only deployed on May 29, 2020. Tassio Dep. 1 at 22 36:21-22. Plaintiffs have not provided any examples of use of skip-fired munitions on protestors 23 that preceded the George Floyd protests. Plaintiffs thus have not offered any evidence that the 24 policies or customs were “so persistent and widespread that [they] constitute[] a permanent and 25 well settled city policy.” Trevino, 99 F.3d at 918. 26 In their opposition, Plaintiffs also asserted that “Garcia changed SJPD policies days before 27 the May 29, 2020 demonstration to allow use of additional chemical agent devices and allow use 28 of impact munitions that it had previously prohibited in crowd control situations.” Opp. at 18-19. 40 United States District Court Northern District of California 1 But the citation that Plaintiffs provide for that assertion discusses a change in policy made after 2 the protests had already started—on June 1, 2020. See Exp. Rpt. ¶ 59. Only one Plaintiff— 3 Stukes—states that he was at the protests after June 1, 2020; he attended on June 2, 2020. Stukes 4 Decl. ¶ 3. The June 1, 2020 memorandum provided that “only the 37mm Projectile Impact 5 Weapon (i.e. SAGE Gun) may be used for crowd control purposes in the method prescribed in this 6 section. 40mm Projectile Impact Weapons that contain chemical agents may be used for crowd 7 control purposes as described in section L2609 [of the Duty Manual].” Exp. Rpt. ¶ 59. It further 8 provided that the 37mm launcher “is not intended to target individual suspects, but to provide a 9 visual and auditory deterrent (loud report and bright muzzle flash). The primary objective when 10 deploying a 37mm Projectile Impact Weapon in this manner is to compel persons engaged in 11 assaultive resistance to disperse peacefully, so that the use of physical force intentionally directed 12 at persons can be avoided.” Id. ¶ 60. Stukes states that officers fired at him with their less-lethal 13 weapons. Stukes Decl. ¶ 5. He does not know which officer(s) shot the projectiles that hit him, 14 noting that there were several officers in the vicinity. Stukes Dep. at 28:15-22, 50:8-10. Stukes 15 was struck from the back on his left hip with a 40mm foam baton, and his right leg. Stukes Decl. 16 ¶ 5. Plaintiffs have provided no evidence suggesting that the June 1, 2020 policy change was the 17 “moving force” behind any deprivation of Stukes’s constitutional rights, or the constitutional 18 rights of any other Plaintiff. 19 Plaintiffs also mention that “SJPD wrongly declared the protest an unlawful assembly 20 through a loudspeaker but the announcement was inaudible and/or unclear.” Opp. at 21. But 21 Plaintiffs provide no argument or evidence as to why it was improper for SJPD to declare the 22 protest an unlawful assembly. To the extent Plaintiffs were seeking to make this argument, the 23 Court determines it has been waived. 24 25 26 Plaintiffs’ policy or custom Monell theory thus fails. b. Failure to Train “A municipality’s failure to train an employee who has caused a constitutional violation 27 can be the basis for § 1983 liability where the failure to train amounts to deliberate indifference to 28 the rights of persons with whom the employee comes into contact.” Long v. Cnty. of Los Angeles, 41 United States District Court Northern District of California 1 442 F.3d 1178, 1186 (9th Cir. 2006) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). 2 This standard is met when “the need for more or different training is so obvious, and the 3 inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the 4 city can reasonably be said to have been deliberately indifferent to the need.” Canton, 489 U.S. at 5 390. “Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a 6 municipality—a ‘policy’ as defined by our prior cases—can a city be liable for such a failure 7 under § 1983.” Id. at 389. And only under such circumstances does the failure to train constitute 8 “a policy for which the city is responsible, and for which the city may be held liable if it actually 9 causes injury.” Id. at 390. “A municipality’s culpability for a deprivation of rights is at its most 10 tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). 11 As such, “[a] pattern of similar constitutional violations by untrained employees is ‘ordinarily 12 necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Id. at 62. 13 Here, Plaintiffs assert a failure to train related to violation of their First Amendment rights 14 and Fourth Amendment right to be free from unreasonable seizure and excessive force. The Court 15 must therefore evaluate whether the training on both subjects was adequate. 16 Every SJPD officer must graduate from a police academy that is certified by the California 17 Commission on Peace Officer Standards and Training (“POST”). Declaration of Christopher 18 Sciba, ECF No. 103 (“Sciba Decl.”) ¶ 4. Officers receive a Basic Certificate after completing the 19 initial academy, which is a 26-week program with about 976 hours of training, and they must 20 complete Continuing Professional Training every two years. Id. ¶¶ 4, 6. Police academies can 21 become certified by POST if they teach the POST minimum standards, which include Learning 22 Domains (“LDs”). Id. ¶ 5. The SJPD police academy teaches the 43 POST LDs, as well as 23 additional training, including a four-hour course on PIWs. Id. ¶ 6. POST has LDs on arrest and 24 control and use of force, which teach about reasonable force. Id. ¶¶ 7-8. The additional SJPD 25 course on PIWs addresses the Graham v. Connor factors. Id. ¶ 9. 26 The CPT courses address use of force and less-lethal weapons, among other issue areas. 27 Sciba Decl. ¶ 10. In 2018, SJPD emailed a training video to all officers, which they also played 28 during briefings, following a change to the Duty Manual that requires all trained patrol officers to 42 1 carry a stunbag shotgun or 40mm PIW while on duty. Id. ¶ 11. It warns that projectiles fired from 2 either weapon can cause serious injury or death; provides instructions for using the weapons; and 3 reminds officers of the Duty Manual language on these weapons. Id. There is also a CPT course 4 on Defensive Tactics Update that is given every two years, including in 2019, which addresses the 5 use of less-lethal projectile weapons. Id. ¶ 12; Huang Decl., Ex. 12 (“Sciba Dep.”) at 22:15-23:22. 6 It includes a lecture-based portion and a practical exercise portion. Sciba Dep. at 27:15-28:15. It 7 provides, among other things, that officers should avoid targeting or striking the groin area. Sciba 8 Decl. ¶ 12. Another CPT course called Force Options Simulator, which was given in 2017, also 9 addresses the reasonable officer standard and the Graham factors. Id. ¶ 13. United States District Court Northern District of California 10 Plaintiff provided a copy of the PowerPoint presentation used by Officer Sciba in his 11 training on Projectile Impact Weapons. See Marinho Supp. Decl., Ex. LL (ECF No. 116-4) 12 (“PPT”). The presentation includes information on the Graham factors. Id. at 6. It also covers 13 less-lethal weapons, including both 37mm and 40mm launchers. Id. at 8, 17-19. It addresses 14 where officers should aim their shots and includes three different zones, from least to greatest 15 severity of injury. Id. at 35-40. The description of Zone 1 states that “[t]he groin area should not 16 be intentionally targeted,” but the slides also include a cartoon in which cavemen have shot a large 17 animal in the groin with a bow and arrow that states “Maybe we should write that spot down.” Id. 18 at 38, 41. The abdominal area is in Zone 2. Id. at 39. The slides state that Zone 3 “carries the 19 greatest potential for serious or fatal injury and should be avoided when possible.” Id. at 40. The 20 final slide of the presentation states “Do not hesitate[.] Always win[.]” Id. at 47. 21 Officer Panighetti completed the Defensive Tactics Update course on May 10, 2019; 22 Officer Marshall completed the Force Options Simulator course on May 9, 2017; and Officer 23 Avila completed the Force Options Simulator course on June 15, 2017. Sciba Decl. ¶ 14. 24 Panighetti stated that he underwent a specific less-lethal projectile weapons training prior to being 25 allowed to carry the 40mm launcher. Declaration of Michael Panighetti, ECF No. 104 26 (“Panighetti Decl.”) ¶ 4. He states he was taught not to aim for the groin, but that he could aim for 27 the lower abdomen. Id. ¶ 5. He also states that he had training on the SJPD Duty Manual sections 28 addressing less-lethal PIWs, and he believed he could use the weapon in two circumstances: 43 United States District Court Northern District of California 1 “when objectively reasonable (1) to incapacitate a suspect armed with a weapon likely to cause 2 serious bodily injury or death until the suspect can be controlled and safely taken into custody, or 3 (2) in situations where its use is likely to prevent any person from being seriously injured.” Id. ¶ 4 7. 5 Tassio provided a four-hour training on use of the 37mm launcher for officers who had 6 already completed the SJPD less-lethal weapons training. Tassio Dep. 1 at 38:10-39:21. That 7 course “involved power point and practical exercises and firing the weapon in a live 8 environment.” Id. at 38:22-24. Tassio stated that shortly after the protests, the SJPD changed 9 policy regarding the 37mm weapon such that it could no longer be deployed. Id. at 44:10-46:9. 10 He also stated that use of the weapon for crowd dispersal is no longer allowed under California 11 law. Id. at 44:10-16. 12 SJPD also provides training on First Amendment issues. One of the POST LDs covers 13 crowd control training. Declaration of Lee Tassio, ECF No. 105 (“Tassio Decl.”) ¶ 4. This 14 training teaches officers about their responsibility to protect individuals’ First Amendment rights 15 to free speech and assembly; addresses legal observers and their role; and also covers news media 16 and the taping or photographing of officers. Id. ¶ 5. The training also addresses dispersal orders 17 and what constitutes an unlawful assembly. Id. ¶ 6. There is an 8-hour crowd control training for 18 certain units that covers the First Amendment, legal observers, arrest techniques, the use of PIWs, 19 and crowd control tactics, which Marshall and Avila attended in April 2020. Id. ¶¶ 7-8. Portions 20 of the Duty Manual also address these issues, stating that officers cannot interfere with members 21 of the public and media who take audio or video recordings or photographs. Id. ¶ 9, Ex. A. 22 Plaintiffs provide the report of an expert who analyzed the SJPD’s policies and training 23 materials. See Exp. Rpt. He identifies “two major deficiencies” in the SJPD training materials. 24 Id. ¶ 83. First, he states that the training materials “are much more disorganized than what [he] 25 typically encounter[s] when assessing police preparedness for handling crowd events.” Id. He 26 points to the lack of version control. Id. Second, he states that the training materials are 27 “unbalanced and incomplete.” Id. Specifically, they “focus almost exclusively on crowd control 28 tactics, including the use of less-lethal weapons,” while providing almost no information on 44 United States District Court Northern District of California 1 “crowd management strategies that are intended to prevent conflict and violence before it becomes 2 necessary for police to resort to more aggressive crowd control tactics.” Id. 3 The City’s After Action Report also addresses training, noting that one of the themes from 4 the after action review was a lack of training and experience. AAR at 4. It specifically states that 5 “[c]rowd control training has been minimal and infrequent as mass training requires time away 6 from already depleted patrol staffing.” Id. It further explains that “[a]cademy training and the 7 mandated annual training is insufficient for ensuring staff are the highly trained operators expected 8 by the public.” Id. at 25. 9 In looking at the evidence, the Court determines that there is no genuine dispute of 10 material fact as to whether SJPD’s training showed a deliberate indifference by SJPD to the rights 11 of the individuals with whom SJPD officers come into contact. SJPD has shown that officers were 12 required to go through extensive training. Plaintiffs point to the cartoon on the PowerPoint 13 showing a shot in the groin, and the language stating “Don’t hesitate[.] Always win[.]” Opp. at 14 24. These slides were inappropriate, but they do not rise to the level of deliberate indifference. 15 And neither does the lack of version control or the focus on crowd control, as opposed to crowd 16 management, identified by Plaintiff’s expert. It cannot be said that “the need for more or different 17 training is so obvious, and the inadequacy so likely to result in the violation of constitutional 18 rights, that the policymakers of the city can reasonably be said to have been deliberately 19 indifferent to the need.” Canton, 489 U.S. at 390. Nor can it be said that the City made “a 20 ‘deliberate’ or ‘conscious’ choice” to inadequately train officers. Id. at 389. The Court reiterates 21 that “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim 22 turns on a failure to train.” Connick, 563 U.S. at 61. And this is not one of the cases that meets 23 that bar. 24 25 This Monell theory thus fails. c. Ratification 26 “A municipality may be held liable for a constitutional violation if a final policymaker 27 ratifies a subordinate’s actions.” Lytle, 382 F.3d at 987. “To show ratification, a plaintiff must 28 show that the ‘authorized policymakers approve a subordinate’s decision and the basis for it.’” Id. 45 United States District Court Northern District of California 1 (quoting Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999)). The policymaker must have 2 knowledge of the constitutional violation and actually approve of it—a failure to overrule a 3 subordinate’s actions, without more, is insufficient to support a § 1983 claim. Id. In other words, 4 ratification requires an authorized policymaker to make a “conscious, affirmative choice” to 5 endorse subordinate’s actions. Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992). A 6 policymaker’s after-the-fact approval of a subordinate’s conduct that caused the alleged 7 constitutional violations may be used as evidence that a municipality had a pre-existing policy that 8 caused the alleged constitutional violations. Silva v. San Pablo Police Dep’t, 805 F. App’x 482, 9 485 (9th Cir. 2020). To show that ratification was a “moving force” behind the constitutional 10 deprivation, a plaintiff must demonstrate both causation in fact and proximate causation. Arnold 11 v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); Dougherty v. City of Covina, 654 12 F.3d 892, 900-901 (9th Cir. 2011). 13 Plaintiffs’ theory as to ratification is not entirely clear, and it is hard to separate their 14 arguments as to ratification from those as to supervisory liability. See Opp. at 17-24. Plaintiffs do 15 argue that Defendants Garcia and Dwyer “planned, authorized, ordered, permitted, and ratified the 16 SJPD response to the entire demonstration.” Id. at 21. But while the Court determined there is 17 disputed evidence that Dwyer set in motion a series of events that led to Plaintiffs’ alleged 18 constitutional violations, the Court determines there is no evidence that either Garcia or Dwyer 19 ratified any acts of subordinates after the fact. 20 The evidence as to Garcia indicates that he authorized the use of tear gas as necessary, and 21 he was informed that officers would be calling the protest an unlawful assembly. Garcia Dep. at 22 31-33. The evidence as to Dwyer is that he was the incident commander on May 29, 2020, and he 23 authorized the use of less-lethal weapons on that date. Garcia Dep. at 33:7-9; Tassio Dep. 1 at 36- 24 37. There is also evidence that SJPD conducted an investigation into Panighetti’s shooting of 25 Derrick Sanderlin. Huang Decl., Ex. 13 (“Garcia Dep. 2”) at 83:1-14. This evidence is not 26 sufficient to show that Garcia or Dwyer ratified the actions of any of the subordinate officers that 27 caused Plaintiffs’ constitutional deprivations. 28 Plaintiffs claim that Garcia and Dwyer were responsible for the following: SJPD wrongly 46 1 declared the protest and unlawful assembly through a loudspeaker but it was inaudible and/or 2 unclear; SJPD only had one Long Range Acoustic Device to make announcements; and the police 3 officers formed a barricade behind demonstrators, which constituted a “skirmish line” to “move 4 the crowd.” Opp. at 21. Plaintiffs provide no evidence that either Garcia or Dwyer ratified these 5 decisions, other than that Garcia was informed that an unlawful assembly would be announced. 6 Nor do Plaintiffs connect any of these theories of liability to their alleged constitutional 7 deprivations. These arguments do not support ratification. This Monell theory thus fails. 8 * 9 United States District Court Northern District of California 12 13 14 15 16 17 18 * The City’s motion to dismiss Plaintiffs’ Monell claims (Claims 17–18) is GRANTED. 10 11 * IV. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ motion for summary judgment is GRANTED IN PART AND DENIED IN PART as follows: 1. Per Plaintiffs’ concession, Defendants’ motion for summary judgment as to all claims for intentional infliction of emotional distress (Claims 28-33, 35) is GRANTED; 2. Defendant Yuen’s motion for summary judgment as to all claims against him (Claims 1, 9, 20, 28) is GRANTED; 3. Defendant Garcia’s motion for summary judgment as to Cayla Sanderlin, Breanna 19 Contreras, Pietro di Donato, Adira Sharkey, and Joseph Stukes’s Section 1983 claims for violation 20 of their Fourth Amendment rights (Claims 10-14) is GRANTED; 21 22 23 4. Defendant Dwyer’s motion for summary judgment as to Cayla Sanderlin’s Section 1983 claim for violation of her Fourth Amendment rights (Claim 10) is GRANTED; 5. Defendant Dwyer’s motion for summary judgment as to Breanna Contreras, Pietro 24 di Donato, and Adira Sharkey’s Section 1983 claims for violation of their Fourth Amendment 25 rights (Claims 11-13) is DENIED; 26 6. Defendants Avila, Marshall, and Tassio’s motion for summary judgment as to Vera 27 Clanton’s Section 1983 claim for violation of her Fourth Amendment rights (Claim 16) is 28 DENIED; 47 1 Defendants Panighetti and Dwyer’s motion for summary judgment as to Derrick 2 Sanderlin’s Section 1983 claim for violation of his Fourth Amendment rights (Claim 9) is 3 DENIED; 4 8. 5 6 Defendant Garcia’s motion for summary judgment as to Derrick Sanderlin’s Section 1983 claim for violation of his Fourth Amendment rights (Claim 9) is GRANTED; 9. Defendant Garcia’s motion for summary judgment as to Cayla Sanderlin, Breanna 7 Contreras, Pietro di Donato, Adira Sharkey, and Joseph Stukes’s Section 1983 claims for violation 8 of their First Amendment rights (Claims 2-6) is GRANTED; 9 United States District Court Northern District of California 7. 10. Defendant Dwyer’s motion for summary judgment as to Cayla Sanderlin, Breanna 10 Contreras, Pietro di Donato, and Adira Sharkey’s Section 1983 claims for violation of their First 11 Amendment rights (Claims 2-5) is DENIED; 12 13 14 15 16 17 18 19 20 11. Defendant Garcia’s motion for summary judgment as to Vera Clanton’s Section 1983 claim for violation of her First Amendment rights (Claim 8) is GRANTED; 12. Defendants Panighetti and Dwyer’s motion for summary judgment as to Derrick Sanderlin’s Section 1983 claim for violation of his First Amendment rights (Claim 1) is DENIED; 13. Defendant Garcia’s motion for summary judgment as to Derrick Sanderlin’s Section 1983 claim for violation of his First Amendment rights (Claim 1) is GRANTED; 14. Defendants City and Panighetti’s motion for summary judgment as to Cayla Sanderlin’s loss of consortium claim (Claim 36) is DENIED; 15. Defendant City’s motion for summary judgment as to Cayla Sanderlin, Breanna 21 Contreras, Pietro di Donato, Adira Sharkey, and Joseph Stukes’s Bane Act claims (Claims 21-25) 22 is GRANTED; 23 24 25 26 27 28 16. Defendants City, Tassio, Avila, and Marshall’s motion for summary judgment as to Vera Clanton’s Bane Act claim (Claim 27) is GRANTED; 17. Defendants City and Panighetti’s motion for summary judgment as to Derrick Sanderlin’s Bane Act claim (Claim 20) is GRANTED; 18. Defendant City’s motion for summary judgment as to Clanton’s Monell claim (Claim 19) is GRANTED; and 48 1 2 19. Defendant City’s motion for summary judgment as to all Plaintiffs’ Monell claims (Claims 17-18) is GRANTED. 3 4 5 6 Dated: March 16, 2023 ______________________________________ BETH LABSON FREEMAN United States District Judge 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 49

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