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granting summary judgment on Monell claim because plaintiff failed to point to any evidence suggesting the city failed to train its officer or that such a failure to train was attributable to deliberate indifference
Summary of this case from Paternostro v. DoeOpinion
No. Civ. S-00-1968 WBS JFM
September 6, 2001
MEMORANDUM AND ORDER
This is a civil rights action arising out of defendants' conduct during plaintiff's arrest in 1998. The complaint contains sixteen causes of action, including three claims under the Civil Rights Act, 42 U.S.C. § 1981 and 1983, and thirteen claims under California law. Defendants move for summary judgment.
I. Factual Background
The following facts are based on plaintiff's version of the events as stated in her declaration:
On June 27, 1998, officers of the Vallejo Police Department responded to a call concerning a potential fight between two male juveniles outside plaintiff's home. At some point, Officer Kenny Park grabbed plaintiff's son and threw him to the ground in a violent manner. (Carrasco Decl., ¶¶ 4-5, 13). Then, plaintiff saw Corporal Dane Neilson strike her son with his baton three or four times. (Carrasco Decl., ¶ 6). Plaintiff became concerned for the safety of her son and "ran across the street to try to stop the officers" from "hurting him." (Carrasco Decl., ¶¶ 7-8). When they ignored her, she "grabbed an officer's shoulder area." At that moment, Officer T. Lee "yanked [plaintiff] by the neck and threw [her] to the ground and held [her] to the ground by placing his knee on [her] neck." (Carrasco Decl., ¶¶ 10-11).
Defendants arrested plaintiff and searched her house while she sat in custody in a police car. Plaintiff's complaint alleges violations of the Fourth Amendment, based on excessive force and an unreasonable search. Defendants move for summary judgment regarding plaintiff's federal claims on the basis of qualified immunity. Defendants also argue that the City of Vallejo cannot be held liable for plaintiff's claims, that defendant Sergeant Eric Mortenson ("Sergeant Mortenson") cannot be held liable for failure to supervise the other officers, and that plaintiff's state causes of action are insufficient as a matter of law.
Defendants reply brief argues for the dismissal of Police Chief Robert W. Nichelini. The court does not consider this argument because it was not included in defendants' motion before the court.
II. Discussion
The court must grant summary judgment to a moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party adverse to a motion for summary judgment may not simply deny generally the pleadings of the movant; the adverse party must designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
A. Qualified Immunity
Defendants are entitled to qualified immunity if their conduct did not violate plaintiff's clearly established rights, or if defendants could have reasonably believed that their conduct was lawful. See Orozco v. County of Yolo, 814 F. Supp. 885, 895 (E.D.Cal. 1993). Defendants bear the burden of establishing qualified immunity. See Crawford-El v. Britton, 523 U.S. 574, 641 (1998).
The United States Supreme Court recently articulated the following test for determining qualified immunity. As a threshold question, the court must ask: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001). If the answer is affirmative, the court must next consider "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 2156. If the answer is negative, the officer is entitled to qualified immunity.
The mechanics of Saucier's application involves the determination of both evidentiary facts and ultimate facts. Evidentiary facts consist of the testimony of witnesses about what those witnesses saw, heard, or did, and are the premises upon which the determinations of ultimate facts are based. See Black's Law Dictionary (7th Ed. 1999). Ultimate facts are those that are essential to a claim or defense, such as negligence or the reasonableness of a person's conduct. See id.; H. Hackfeld Co. v. United States, 197 U.S. 442, 447 (1905) (negligence is ultimate question of fact to be determined by the jury); Grand Trunk Ry. Co. of Canada v. Ives, 144 U.S. 408, 417 (1892) (jury decides whether conduct of the parties in a particular case is reasonable). Both evidentiary facts and ultimate facts are ordinarily the province of the jury. See Grand Trunk at 417.
The reasonableness of an officer's conduct or belief is an ultimate fact which is ordinarily a quintessential jury question. See Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th Cir. 1994) ("evaluating the reasonableness of human conduct is undeniably within the core are of jury competence"); id. ("the jury is best suited to determine the reasonableness of an officer's conduct in light of the factual context in which it takes place"); Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994) ("reasonableness is traditionally a question of fact for the jury"); Hopkins v. Andaya, 958 F.2d 881, 885 (9th Cir. 1992) ("reasonableness of force is usually a question of fact for the jury");Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); White v. Pierce County, 797 F.2d 812, 816 (9th Cir. 1986). In the context of the qualified immunity inquiry, however, it is the judge who must make the determination of the ultimate fact of the reasonableness of the officer's belief. Prior to its decision in Saucier, the Supreme Court suggested that in the context of a motion for summary judgment based on qualified immunity, the judge decides the ultimate fact of an officer's objective reasonableness. See Hunter, 502 U.S. at 228 (criticizing Ninth Circuit for declining to decide reasonableness of officer's belief on summary judgment and stating that the issue "should ordinarily be decided by the court long before trial"); see also Reynolds v. County of San Diego, 84 F.3d 1162 (9th Cir. 1996) (interpreting Hunter to require resolution of qualified immunity on summary judgment when underlying facts are undisputed), overruled on other grounds, Acri v. Varian Assoc., Inc., 114 F.3d 999 (9th Cir. 1997); Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993) (interpreting Hunter to hold that reasonableness of officer's belief is a legal question to be determined by the district court at the earliest possible stage).
Saucier affirms this rule, clarifying that while the reasonableness of an officer's conduct on the merits of a Fourth Amendment claim remains the province of the jury, the judge is the trier-of-fact on the question of whether the officer could have reasonably believed that his conduct was lawful in the situation he confronted. In applying Saucier's test, the court treats the threshold question of whether the facts alleged show the officer's conduct violated a constitutional right as a jury question, asking whether a reasonable jury could find a violation on the facts alleged by plaintiff, resolving both evidentiary and ultimate facts in the light most favorable to plaintiff. See Saucier, 121 S.Ct. at 2159 (characterizing threshold question as whether a constitutional violation "could be found" or "could have occurred" on the facts alleged by the plaintiff).
If the answer to this threshold question is affirmative, the court decides "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 2156; see id. at 2160 (framing question for court as whether a reasonable officer "could have believed" that his conduct was "within the bounds of appropriate police responses" according to settled law). The court must decide this question by construing the facts as the officer perceived them. See id. at 2156 (refining question to the "situation [the officer] confronted"); id. at 2158 ("Qualified immunity operates . . . to protect officers from the sometimes `hazy border between excessive and acceptable force.'" (quoting Priester v. Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000))).
While Saucier's approach relegates to the judge a decision traditionally made by the jury, it best preserves the concept of qualified immunity by assuring that the issue is "decided by the court long before trial." Hunter, 502 U.S. at 228; see Saucier, 121 S.Ct. at 2156 (privilege of qualified immunity is "effectively lost if a case is erroneously permitted to go to trial"). This approach is also justifiable because judges may be perceived to be in a better position to gauge the objective reasonableness of an officer's belief in a particular situation based on settled law. Cf. Illinois v. Gates, 462 U.S. 213, 238 (1983) (judges issue warrants based on their own practical, common sense determinations, including the "veracity" and "basis of knowledge" of persons providing information contained in affidavits); United States v. Leon, 468 U.S. 897, 914 (1984) (according "great deference" to a judge's determination of whether a particular affidavit establishes probable cause). By making the judge the trier-of-fact on summary judgment,Saucier's test prevents the question of immunity from being routinely placed in the hands of the jury. See Hunter, 112 S.Ct. at 228 (admonishing approach that "routinely places qualified immunity in the hands of the jury").
With the foregoing standards in mind, the court considers plaintiff's allegations of excessive force and unreasonable search to determine whether defendants are entitled to qualified immunity.
1. Excessive Force Claim
The reasonableness of the use of force under the Fourth Amendment is measured by three factors, including "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [she] is actively resisting arrest or attempting to evade arrest by flight." See Graham v. Connor, 490 U.S. 386, 396 (1989). Plaintiff here was ultimately charged and prosecuted for (1) resisting, delaying or obstructing a peace officer in the discharge of his duty, Cal. Penal Code § 148, and (2) battery against a peace officer, Cal. Penal Code § 243.
Considering the facts in a light most favorable to plaintiff, the officers' conduct during her arrest could have constituted excessive force. Plaintiff did not resist her own arrest, but intervened in her son's arrest after she watched an officer violently throw him to the ground and repeatedly strike him with a baton. See People v. Soto, 80 Cal.Rptr. 627, 630 (1969) ("A person who uses reasonable force to protect himself or others against the use of unreasonable excessive force in making an arrest is not guilty of any crime [under California law]." (citing Cal. Penal Code, §§ 692, 694)). According to plaintiff's account, the severity of her intervention was minimal, limited to her yelling "stop, you're hurting him," and grabbing an officer's shoulder. (Carrasco Decl., ¶¶ 10-11). Based on these alleged facts, a reasonable jury could find that holding plaintiff to the ground by kneeling on her neck was unreasonable force in response to her minor gestures.
California Penal Code section 692 allows for "lawful resistance to the commission of a public offense." Cal. Penal Code § 692. Section 694 provides for resistance by third persons, stating: "Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense." Cal. Penal Code § 694.
In proceeding to the second question under Saucier, the court must decide the ultimate fact of whether the officer could reasonably believe that his conduct was lawful in the situation he confronted. See Saucier, 121 S.Ct. at 2156, 2159-60 ("question is what the officer reasonably understood his powers and responsibilities to be, when he acted, under clearly established standards"). The court determines objective reasonableness from the facts as the officers perceived them.See id. at 2156, 2158.
It is well-settled that circumstances involving resistance and a threat to the safety of officers may justify the use of force. See Graham, 490 U.S. at 396. It is undisputed that plaintiff tried to stop the officers' arrest of her son. (See Carrasco Decl., ¶ 7). From the officers' perspective, the arrest of her son was lawful because he was intoxicated and threatening to engage in a fist fight. The force used in restraining plaintiff's son was not unprovoked because he resisted arrest. (See Def.'s Statement of Undisputed Facts, ¶¶ 2-4). According to the officers, plaintiff's physical interference threatened their safety and their ability to detain her son. (See id. at ¶¶ 6-7).
Further, plaintiff's own account does not specify the amount of force applied by Officer Lee when he placed his knee on her neck. (See Carrasco Decl., ¶¶ 10-11). Plaintiff has not identified, nor is the court aware of "any case demonstrating a clearly established rule prohibiting the officer from acting as he did." Saucier, 121 S.Ct. at 2160. Thus, reasonable officers in defendants' position could believe that their use of force was lawful. Defendants are entitled to qualified immunity on this claim.
2. Search Without a Warrant
Taken in a light most favorable to plaintiff, the facts alleged show an unreasonable search in violation of the Fourth Amendment. See Saucier, 121 S.Ct. at 2156 (discussing threshold question). Searches inside the home without a warrant are presumptively unreasonable under the Fourth Amendment. See Payton v. New York, 445 U.S. 573, 585 (1979) ("physical entry of the home is the chief evil against which the working of the Fourth Amendment is directed" (quoting United States v. United States District Court, 407 U.S. 297 (1972)). A warrantless search may be upheld if the officers demonstrate both that they had probable cause to enter the home and that exigent circumstances excused the warrant requirement.See United States v. Johnson, 256 F.3d 895, 905 (9th Cir. 2001) (exigent circumstance does not relieve probable cause requirement). A warrant is not required for a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others."Maryland v. Buie, 494 U.S. 325, 327 (1990) (discussing the "protective sweep").
A reasonable jury could find that defendants did not have probable cause to enter plaintiff's house. Probable cause exists if the known facts and circumstances would lead "a person of reasonable caution to believe that the items sought will be found in the place to be searched."See Johnson, 256 F.3d at 905. Defendants' stated purpose of the search "was to make sure there were no other intoxicated minors on the premises, as the supervising adult, the Plaintiff, was being taken to jail." (Eng Decl., ¶ 6). However, defendants have not articulated with factual specificity the basis for their belief that other intoxicated minors remained inside plaintiff's house. See id.
Even if defendants did have probable cause to enter plaintiff's home, the circumstances do not compel a finding that the warrantless search was a lawful protective sweep. In Buie, the Supreme Court held that the Fourth Amendment permits "a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Buie, 494 U.S. at 1099-1100. In defining the protective sweep, "the Supreme Court emphasized the precautionary nature of the search, the seriousness of the crime involved, and the need for law enforcement to protect themselves by securing the scene and preventing surprise attacks by co-conspirators." United States v. Furrow, 229 F.3d 805, 811-12 (9th Cir. 2000) ("A specific exigent circumstance, the safety risk to officers presented by unsearched premises, is what permits the warrantless protective sweep."), overruled on other grounds, United States v. Johnson, 256 F.3d 895 (9th Cir. 2001). The present case, however, did not involve an in-home arrest. Defendants arrested plaintiff outside her home and placed her in a police car before they searched her house. Defendants have not articulated the basis for a need to protect themselves from surprise attacks. By entering the home, defendants actually placed themselves at a greater risk of harm.
The Ninth Circuit has held that "the fact that an arrest occurs outside the house does not invalidate an otherwise lawful protective sweep."United States v. Hoyos, 892 F.2d 1387, 1397 (9th Cir. 1989), overruled on other grounds, United States v. Ruiz, 257 F.3d 1030 (9th Cir. 2001). However, the Ninth Circuit emphasized that the defendant in that case was arrested as he was opening the door to his home: "the arresting officers were within a few inches of persons who might be hiding with drawn weapons on the other side of the door." Id. at 1398. In addition, the officers had specific knowledge from prior events that at least five men involved in the crimes, which included conspiracy to distribute cocaine, were not yet in custody. The Ninth Circuit recognized that certain crimes, such as cocaine distribution, carry the risk that hiding suspects will be armed. See id. at 1397 (citing United States v. Castillo, 866 F.2d 1071, 1079-781 (9th Cir. 1989)). Therefore, when one officer saw suspects running back into the house, the officers had a specific basis for their belief that the defendant's alleged conspirators, who were likely armed, remained inside. See id. at 1396.
Defendants here have not shown similar proximity to potential danger, or a "reasonable, individualized suspicion" of danger to themselves or others from suspects inside the house. See Hoyos, 892 F.2d at 1396. The possible presence of intoxicated minors does not carry the same risk of harm as crimes involving the traffic of narcotics. Thus, a reasonable jury could find a constitutional violation on the facts alleged by plaintiff.
As discussed above, the second consideration under Saucier concerns the objective reasonableness of an officer's belief that his conduct was lawful according to settled law. As the ultimate fact-finder on summary judgment, the court finds that no reasonable officer could believe that mere precaution warranted a search of the home after plaintiff was arrested outside the home for a crime committed outside the home. Any mistake by the officers regarding the legality of the search would not be reasonable in the absence of specific facts suggesting that individuals inside the house posed a danger to officers outside the house. Therefore, defendants are not entitled to summary judgment based on qualified immunity with respect to plaintiff's claim for an unreasonable search.
B. Municipal Liability
To establish liability against the City of Vallejo under section 1983, plaintiff must show that an official policy or custom was the moving force behind the alleged unreasonable search, or that the City's alleged failure to train or fault in hiring amounted to deliberate indifference to plaintiff's constitutional right to be free from such searches. See Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 1387-88 (1997) ("municipality may not be held liable under § 1983 solely because it employs a tortfeasor"); Los Angeles Police Protective League v. Gates, 907 F.2d 879, 889 (9th Cir. 1990) (citing Monell v. Department of Social Serv., 436 U.S. 658, 690-94 (1978)); City of Canton, Ohio v. Harris, 489 U.S. 378, 338 (1989). Plaintiff may establish a municipal custom by pointing to specific facts demonstrating a "permanent and well-settled," widespread practice by the city. See Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989).
Here, plaintiff has not pointed to any evidence of a municipal policy or custom in connection with her alleged constitutional deprivations. The only evidence offered by plaintiff is state court documents purporting to show that the California Superior Court found Fourth Amendment violations in the search of other homes by Vallejo police officers. However, the court can almost take judicial notice that it would find such examples on the Superior Court dockets of any major county such as Solano County. If such information were sufficient to establish a city custom, it would result in wide-spread City liability contrary to the principles of Monell. Therefore, plaintiff's showing, without more, cannot support the existence of a practice that is "so permanent and well-settled as to constitute a custom with the force of law." Adickes v. S.H. Kress Co., 398 U.S. 144, 168 (1970).
Plaintiff has not pointed to any evidence suggesting that the city failed to train its officers, or that such failure is attributable to deliberate indifference. See City of Canton, 489 U.S. at 338. Nor has plaintiff pointed to any evidence suggesting that a municipal hiring decision reflected deliberate indifference that a particular officer was highly likely to engage in an unreasonable search of plaintiff's home.See Bryan County, 520 U.S. at 412. Because there are no triable issues regarding the circumstances that could create liability against the City of Vallejo, the City is entitled to summary judgment.
C. Supervisory Liability
Plaintiff alleges that defendant Sergeant Mortenson is liable for the alleged unconstitutional search as the supervisor on the scene at plaintiff's house. "Supervisors can be held liable [under section 1983] for: 1) their own culpable action or inaction in training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or 3) conduct that showed a reckless or callous indifference to the rights of others." Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000) (citing Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). Sergeant Mortenson's presence on the scene is sufficient to create a triable issue concerning his liability as a supervisor. The court will accordingly deny defendants' motion on this ground.
D. State law claims
1. False Arrest/Imprisonment
Defendants argue that they are entitled to summary judgment on plaintiff's claim for false arrest and imprisonment because her arrest was lawful as a matter of law. See Bell v. State of California, 63 Cal.App.4th 919 (1998) ("Imprisonment based on a lawful arrest is not false and is not actionable in tort.").
Under California law, an officer may arrest a person without a warrant when the officer "has probable cause to believe that the person arrested has committed a public offense in the officer's presence." Cal. Penal Code § 835(a)(1). "Cause to arrest exists when the acts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime." People v. Price, 1 Cal.4th 324, 410 (1991).
The parties dispute the circumstances of plaintiff's arrest. According to plaintiff, she was arrested after she tried to stop the officers' unreasonable use of force on her son. See People v. Soto, 80 Cal.Rptr. 627, 630 (1969); Cal. Penal Code, §§ 692, 694. Because a person who uses reasonable force to protect another against the use of unreasonable excessive force in making an arrest is not guilty of any crime under California law, a reasonable juror could find that the officers did not have cause to arrest plaintiff. See Soto, at 630; Cal. Penal Code, §§ 692, 694; see also supra note 1. Therefore, summary judgment on plaintiff's claim for false arrest and imprisonment is not proper.
2. Malicious Prosecution
Plaintiff offers no evidence creating a triable issue on her claim for malicious prosecution under either federal or state law. Plaintiff merely argues that "defendants made material representations to the jury in [her] criminal trial." (Opp'n at 15:11-13). However, a police officer's testimony at trial cannot form the basis for a claim for damages under section 1983. See Briscoe v. LaHue, 460 U.S. 325, 335-36 (1983). Moreover, plaintiff has not pointed to any evidence supporting a reasonable inference that defendants' acted with malice in instituting criminal proceedings against her, or that plaintiff was prosecuted on the basis of false statements made by the officers. See Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th Cir. 1987) (citing Singleton v. Perry, 45 Cal.2d 489, 494 (1955)). Therefore, defendants are entitled to summary judgment on this claim.
The complaint does not indicate whether plaintiff's claim for malicious prosecution is based on California law or the Fourteenth Amendment.
3. Battery/Assault
Defendants argue that they are entitled to summary judgment on plaintiff's claim for assault and battery because their contact with plaintiff was lawful. However, the evidence presents triable issues concerning the reasonableness of defendants' use of force. (See Pl.'s Ex. D, Attached to Carrasco Decl.) (photos purportedly depicting bruises to plaintiff's neck that were caused by defendants). Because a reasonable juror could conclude that defendants' use of force was unreasonable, and thus unlawful, summary judgment on plaintiff's claim for assault and battery is not proper.
4. Emotional Distress
Defendants are not entitled to summary judgment on plaintiff's claims for negligent and intentional infliction of emotion distress because triable issues remain concerning the nature and severity of defendants' conduct.
E. Plaintiff's Claim Against Corporal Dane Neilson
Defendants argue that plaintiff "has no cause of action" against Corporal Dane Neilson based on his conduct in striking her son because her son is not a party to this action. However, plaintiff's allegation that Corporal Neilson struck her son with a baton three or four times in her presence is the basis of her claims for negligent and intentional infliction of emotional distress. The court will accordingly deny defendants' motion to dismiss Corporal Neilson.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment on the basis of qualified immunity be, and the same hereby is, GRANTED with respect to plaintiff's claim for excessive force, and DENIED with respect to plaintiff's claim for an unreasonable search.
IT IS FURTHER ORDERED that defendants' motion for summary judgment with respect to plaintiff's claims against the City of Vallejo be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that defendants' motion for summary judgment on plaintiff's claim for malicious prosecution be, and the same hereby is, GRANTED, and plaintiff's Eighth Cause of Action is accordingly dismissed. All other motions are DENIED.