Opinion
CASE NO. 12cv1635-GPC(BGS)
07-31-2014
MAURICE PETER EUNICE, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendant.
ORDER GRANTING DEFENDANT DAVIS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART UNITED STATES OF AMERICA'S MOTION FOR SUMMARY JUDGMENT
REDACTED -ORIGINAL FILED UNDER SEAL [Dkt. Nos. 93, 98.]
Before the Court is Defendant Jeff Davis' motion for summary judgment on the remaining 42 U.S.C. § 1983 claim against him. (Dkt. No. 93.) In addition, Defendant United States of America filed a motion for summary judgment. (Dkt. No. 98.) Oppositions were filed as well as replies. (Dkt. Nos. 100, 104, 105, 106.) A hearing was held on July 25, 2014. Eugene Iredale, Esq. appeared on behalf of Plaintiff; Carrie Mitchell, Esq. appeared on behalf of Defendant Jeff Davis; David Wallace, Esq. and Dylon Aste, Esq. appeared on behalf of Defendant United States of America. After a review of the briefs, supporting documentation and the applicable law, the Court GRANTS Defendant Davis' motion for summary judgment and GRANTS in part and DENIES in part Defendant United States of America's motion for summary judgment.
Procedural Background
On June 29, 2012, Plaintiff Maurice Peter Eunice filed a complaint against numerous Defendants alleging causes of action arising from the Defendants use of explosives to enter his property causing unnecessary and extensive damage. (Dkt. No. 1. ) On October 1, 2012, Plaintiff filed a first amended complaint ("FAC") against Defendants United States of America; Patrick Kelly; Patrick Ryan; Mike Mervos; Bethany Watrous; Steve M. Kingkade; Jeff Davis; City of El Cajon; and City of La Mesa. (Dkt. No. 10.)
On October 16, 2012, Defendant United States of America filed a motion to dismiss. (Dkt. No. 17.) On November 30, 2012, the Court granted Plaintiff's ex parte motion dismissing United States of America, Patrick Ryan, Patrick Kelly, Mike Mervos, Steve Kingkade and Bethany Waltrous ("Federal Defendants") from the third, fourth, fifth, and sixth causes of action without prejudice. (Dkt. No. 25.) On January 2, 2013, Plaintiff filed another action against the United States of America in case no. 13cv0009 alleging causes of action under the Federal Tort Claims Act ("FTCA"). (Case No. 13cv0009, Dkt. No. 1, Compl.) On September 10, 2013, the Court granted the parties' joint motion to consolidate the cases. (Dkt. No. 71.)
On October 31, 2012, Defendants City of El Cajon and Jeff Davis filed a motion to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 21.) On February 4, 2013, the City of La Mesa filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 38.) On February 26, 2013, the Court granted Defendants City of El Cajon and Jeff Davis' motion to dismiss and granted Plaintiff sixty (60) days leave to file a second amended complaint. (Dkt. No. 40.)
On March 1, 2013, Plaintiff filed a second amended complaint. ("SAC"). (Dkt No. 41.) As such, on March 4, 2013, the Court denied Defendant City of La Mesa's motion to dismiss the first amended complaint as moot. (Dkt. No. 42.) Subsequently, on May 9, 2013, the Court granted the parties' joint motions to dismiss Defendant La Mesa from all causes of action and Defendant City of El Cajon from the third cause of action without prejudice. (Dkt. Nos. 57, 58.) On July 16, 2013, the Court granted in part and denied in part Defendants City of El Cajon and Jeff Davis' motions to dismiss. (Dkt. No. 65.) Specifically, the Court denied Defendant Jeff Davis' motion to dismiss the second cause of action alleging an unreasonable seizure in violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983 and granted Defendants Davis and City of El Cajon's motion to dismiss the remaining state causes of action relating to the fourth, fifth and sixth claims for relief. (Id.)
On the same date, the Court also granted Federal Defendants' motion for judgment on the pleadings on the first claim for relief in the FAC alleging a Bivens action against them. (Dkt. No. 64.)
On April 28, 2014, Defendant Jeff Davis ("Davis") filed a motion for summary judgment on the remaining 42 U.S.C. § 1983 cause against him for unreasonable seizure under the Fourth Amendment. (Dkt. No. 93.) On June 20, 2014, Plaintiff filed an opposition. (Dkt. No. 100.) A reply was filed on July 7, 2014. (Dkt. No. 106.)
On May 28, 2014, Defendant United States of America filed a motion for summary judgment on the five state law causes of action against it under the FTCA. (Dkt. No. 98.) An opposition was filed by Plaintiff on June 20, 2014. (Dkt. No. 104.) Defendant filed a reply on July 7, 2014. (Dkt. No. 105.)
Factual Background
In 1995, Plaintiff purchased the property located at 419/421/423 El Cajon Boulevard in El Cajon, California. He has been a member of the Hells Angels Motorcycle Club ("Hells Angels") since 1994. In 1996, Plaintiff began leasing the properties to Tim Timms, a member of the Hells Angels for use by the Hell Angels as their Clubhouse. All three buildings on the property are used solely for the Hells Angels Clubhouse.
On August 2, 2011, Special Agent ("SA") Patrick Ryan of the Drug Enforcement Agency ("DEA") obtained a night search warrant for the properties pursuant to a DEA investigation into Plaintiff's tenants. Plaintiff does not challenge the validity of the search warrant. Agent Ryan contacted the El Cajon Police Department regarding the service of the high-risk search warrant at the properties. There were eleven arrest warrants and eight search warrants related to the case. The role of the El Cajon SWAT team was to assist the DEA with entry and to secure the location and all the occupants on the premises and to clear the compound for the DEA investigators to perform the search.
According to the El Cajon Police Department SWAT After Action Report of the incident on August 3, 2011, Special Agent Ryan contacted the El Cajon Police Department ("ECPD") SWAT Team regarding the service of a high-risk search warrant at the Hells Angel Clubhouse. (Dkt. No. 110-1, Jun Decl., Ex, 1 at 2 (under SEAL).) The search warrant was the result of a lengthy investigation regarding criminal activity involving the Hells Angels Motorcycle gang. (Id. (under SEAL).) There were 11 arrest warrants and 8 search warrants related to the case which involved kidnapping, extortion, robbery and torture. (Id. (under SEAL).) There was a possibility that two members could be at the location but based on recent surveillance, it was possible that no one would be at the location. (Id. (under SEAL).) The Clubhouse consists of three single story buildings where the doors and/or windows have been fortified with metal bars. (Id. (under SEAL).) One building had securities screens and interior petal plating to some of the windows. (Id. (under SEAL).) There were nine surveillance cameras on the property. (Id. at 3 (under SEAL).) It was noted that members of the Hells Angels can be violent and are often armed. (Id. (under SEAL).)
The task of the SWAT team was to "[s]ecure the location and all occupants on premises" and "[c]lear compound for investigators". (Id. at 3 (under SEAL).) In the early morning of August 3, 2011, the SWAT team had a briefing at 4:00 a.m. with execution of the service of the search warrant to begin at 5:00 a.m. (Id. (under SEAL).) Once the perimeter was established, SWAT used a PA to announce itself at 5:05 a.m. (Id. (under SEAL).) Then a flash-bang, a diversionary device, went off at 5:06 a.m. in order to rouse any occupants inside the target location. (Id. (under SEAL).) At 5:11 a.m., a final call-out announcement was made. (Id. at 4 (under SEAL).) At 5:13 a.m., a breaching charge was set at 421 El Cajon Blvd. and an announcement to "clear from the door" was made. (Id. (under SEAL).) At 5:16 a.m., SWAT successfully breached the entry point door and deployed a flash band and entered the building at 5:19 a.m. (Id. (under SEAL).) Then entry was made to the other two buildings where warnings were given, the entry was breached and a flash bang was deployed. (Id. (under SEAL).) At the third building, a fire was started by the breach and/or deployment of the flash bang which was successfully put out. (Id. (under SEAL).) No subjects were encountered. (Id. (under SEAL).) At 5:53 a.m., the target was confirmed to be clear. (Id. (under SEAL).) Then the target was handed over to DEA S/A Ryan with SWAT perimeter units assisting with scene security. (Id. (under SEAL).)
Breaching charges are detonating explosives used by SWAT to remove doors and hinges and create a loud boom and a flash. (Dkt. No. 100-5, Davis Depo. at 15:24-16:24.) Flash bangs are diversionary devices used to startle occupants of a home by making a loud noise and creating a bright flash. (Id. at 14:17-15:23.) The purpose is to stun people who may be inside a house. (Id. at 15:9-10.)
Discussion
A. Legal Standard for Federal Rule of Civil Procedure 56
Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate 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). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp., 477 U.S. at 323. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his pleading, but must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. If the non-moving party fails to make a sufficient showing of an element of its case, the moving party is entitled to judgment as a matter of law. Id. at 325. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In making this determination, the court must "view[] the evidence in the light most favorable to the nonmoving party." Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001). The Court does not engage in credibility determinations, weighing of evidence, or drawing of legitimate inferences from the facts; these functions are for the trier of fact. Anderson, 477 U.S. at 255.
B. Defendant Jeff Davis' Motion for Summary Judgment
Defendant Davis argues that Plaintiff cannot prevail on his claim for violation of the Fourth Amendment for unreasonable seizure because Davis did not personally participate in the alleged constitutional violation. In the alternative, Davis argues he is immune under the doctrine of qualified immunity. Plaintiff asserts that Davis was personally involved because he approved the use of explosives and subjected Plaintiff to an unreasonable seizure. Moreover, Plaintiff argues that Davis is not entitled to qualified immunity.
Section 1983 creates a cause of action based on personal participation by a defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ("Liability under section 1983 arises only upon a showing of personal participation by the defendant.") A person deprives another "of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). "The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused the constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).
A plaintiff cannot hold an officer liable "because of his membership in a group without a showing of individual participation in the unlawful conduct." Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002) (citing Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). In order to be liable under § 1983, a defendant need not be directly engaged in the unconstitutional conduct; however, a plaintiff must demonstrate "'integral participation' of the officers in the alleged constitutional violation." Jones, 297 F.3d at 935. "'[I]ntegral participation' does not require that each officer's actions themselves rise to the level of a constitutional violation." Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004). Integral participation requires "some fundamental involvement in the conduct that allegedly caused the violation." Blankenhorn v. City of Orange, 485 F.3d 463, 481, n. 12 (9th Cir. 2007). Merely being present at the scene of the alleged constitutional violation is not sufficient. Motley v. Parks, 432 F.3d 1072, 1082 (9th Cir. 2006) (overruled in part on other grounds by United States v. King, 687 F.3d 1189, 1189-90 (9th Cir. 2012) (en banc) (per curiam)). "Officers are fundamentally involved in the alleged violation when they provide some affirmative physical support at the scene of the alleged violation and when they are aware of the plan to commit the alleged violation or have reason to know of such a plan, but do not object." Monteilh v. County of Los Angeles, 820 F. Supp. 2d 1081, 1090 (C.D. Cal. 2011).
Defendant Davis argues that he was not personally involved in the alleged constitutional violation. Davis states he held the title of Administrative Commander of the SWAT team on the day of the incident and states that he was not present at the property to execute the search warrant. (Dkt. No. 93-4, Davis Decl. ¶¶ 3, 8.) He was not at the scene when the breaching charges or flash bangs were utilized. (Id. ¶ 8.) He did not use any breaching charges, dynamite, explosives, or flash bang devices. (Id.) He did not enter the property to secure or search the premises. (Id.) He also did not plan how the entry would be accomplished or direct the manner in which the warrant would be executed. (Id. ¶ 9.) He states he was not in charge of the SWAT operation at the clubhouse and did not direct the El Cajon SWAT team or any of the officers at the scene. (Id.) He also did not give the final approval for the use of breaching charges to enter the premises. (Id.) He explained that the chief of police gives final approval for SWAT operations of this nature. (Id.)
In opposition, Plaintiff states that for this operation, Davis was listed as the Commander of the SWAT team. (Dkt. No. 109, Jun Decl., Ex. 1 at 6 (under SEAL).) While Davis was not at the property, he was at tactical operations command ("TOC"), about a mile away, and was monitoring communications among SWAT members and also communicating with the SWAT team. (Dkt. No. 100-5, Jun Decl., Davis Depo. at 25:23-26:24; 27:24-28:8.) There was at least one sergeant in charge of the SWAT team at the scene where the search warrant was to be executed. (Id. at 28:9-15). However, as a lieutenant, Davis outranked the sergeant and had authority to tell the sergeant what to do. (Id. at 17:19-18:4). Davis recommended that the team use explosives during the execution of the search warrant. (Id. at 36:21-37:16.) Before the execution of the search warrant, Davis knew of the plan to use explosives (breaching charges) and flash bangs (diversionary devices) to effect entry. (Id. at 36:21-38:20). Davis had the authority to countermand the plan to use breaching charges and diversionary devices. (Id. at 38:21-25).
While Davis was not present at the location of the incident, Plaintiff has presented evidence that Davis was involved in the execution of the service of the search warrant. He was listed as the Commander in charge of the operation; he monitored and communicated with SWAT team members; and he had authority to countermand the plan. Plaintiff has shown that there is a genuine issue of fact as to whether Davis integrally participated in the alleged constitutional violation. Accordingly, the Court DENIES Davis' motion for summary judgment based on lack of personal participation in the alleged violation.
1. Qualified Immunity
Alternatively, Davis argues he is entitled to qualified immunity because the constitutional rights were not clearly established at the time of the challenged conduct and references the Court's prior ruling in this case. The Court previously held that "Federal Defendants were not put on sufficient notice that under the circumstances, their use of explosives without first attempting to contact Plaintiff could be unconstitutional." (Dkt. No. 64 at 14.) Plaintiff does not address the effect of the Court's prior ruling in his opposition but argues that Davis had fair notice that he could be liable on a § 1983 claim for approving a plan to use explosive devices when such force was not reasonably necessary to effectuate a search warrant. It seems that Plaintiff has dropped the allegation that the defendants used explosives instead of contacting him since they knew he had the keys to the properties.
The SAC alleges an unreasonable seizure under the Fourth Amendment when Davis caused excessive and unnecessary property destruction by using "explosives to blow up entrance to properties." (Dkt. No. 41, SAC ¶ 66.) While the explosives used to blow up the doors were the breaching charges, Plaintiff appears to allege the use of both breaching charges and flash bangs was unreasonable and excessive.
Government officials who perform discretionary functions generally are entitled to qualified immunity from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The United States Supreme Court has presented a two-part analysis for determining qualified immunity claims, which the court may address in any order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). At the summary judgment stage, the court asks whether the facts, "[t]aken in the light most favorable to the party asserting the injury," show that the officers violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). Second, the court must determine whether the right was clearly established at the time of the alleged violation. Id. at 201; see also Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003).
In this case, even if the law was clearly established, the Court concludes that Defendant has demonstrated that Davis did not violate Plaintiff's constitutional right to be free from unreasonable seizure of his property.
In order to prevail on his unlawful seizure claim arising under 42 U.S.C. § 1983, Plaintiff must establish that Davis, (1) deprived him of his Fourth Amendment right to be free from unreasonable seizures by unreasonably seizing Plaintiff's "persons, houses, papers [or] effects," (2) while acting under color of state law. See Soldal v. Cook Cnty., Ill., 506 U.S. 56, 60-63 n. 6 (1992). "A 'seizure' of property occurs when 'there is some meaningful interference with an individual's possessory interests in that property.'" Id. at 63 (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Determining the reasonableness of a seizure entails a careful balancing of the nature and quality of the intrusion on an individual's Fourth Amendment interests weighed against the countervailing governmental interests at stake, such as investigating and preventing crime. United States v. Ankeny, 502 F.3d 829, 836 (9th Cir. 2007) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
"A seizure becomes unlawful when it is 'more intrusive than necessary.'" San Jose Charter of Hells Angels Motorcycle Club v. San Jose, 402 F.3d 962, 975 (9th Cir. 2005) (citing Florida v. Royer, 460 U.S. 491, 504 (1983)). The reasonableness of the seizure "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. Thus, the Court examines whether the totality of the circumstances, "viewed objectively, justify [the challenged] action," Scott v. United States, 436 U.S. 128, 138 (1978).
Officers executing a search warrant occasionally "must damage property in order to perform their duty." Mena v. City of Simi Valley, 226 F.3d 1031, 1041 (9th Cir. 2000) (quoting Liston v. County of Riverside, 120 F.3d 965, 979 (1997)). Therefore, "destruction of property during a search does not necessarily violate the Fourth Amendment." Id. "Only unnecessarily destructive behavior, beyond that necessary to execute a warrant effectively, violates the Fourth Amendment." Liston, 120 F.3d at 979. "[D]estruction of property that is not reasonably necessary to effectively execute a search warrant may violate the Fourth Amendment." United States v. Becker, 929 F.2d 442, 446 (1991) (quoting Tarpley v. Greene, 684 F.2d 1, 9 (D.C. Cir. 1982)).
In Mena, the court held that officers unnecessarily and unreasonably broke down two doors that were unlocked and one officer kicked a door on the patio that was already open saying "I like to destroy these kinds of materials, it's cool." Mena, 226 F.3d at 1041. In Boyd, the Ninth Circuit held that the use of "flash bang" device where an officer threw it "blind", without either looking or sounding a warning, into an apartment where it was believed that there were up to eight people many of whom were not connected to the crime and many of whom were likely asleep causing personal injury was an excessive use of force. Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004). In San Jose Charter of Hells Angels Motorcycle Club, the court held that the seizure of "truckloads" of personal property for the sole purpose of proving that the Hells Angels was a gang and the shooting of dogs at the residences was unreasonable. San Jose Charter of Hells Angels Motorcycle Club, 402 F.3d 962, 966 (9th Cir. 2005).
Here, the DEA had a valid search warrant for the property owned by Plaintiff, a member of the Hells Angels, who rented the property to the Hells Angels to be used as their clubhouse. (Dkt. No. 100-9, P's Response to Davis' Separate Statement of Material Facts Nos. 1-4.) The doors and windows were fortified with metal bars and nine surveillance cameras were in the property. (Dkt. No. 93-4, Davis Decl. ¶ 5.) The search warrant was approved for night service and was considered high-risk involving eleven arrest warrants and eight search warrants related to allegations of kidnapping, extortion, robbery, torture and weapons violations by Hells Angels' members. (Dkt. No. 100-9, P's Response to Davis' Separate Statement of Material Facts No. 9; Dkt. No. 93-4, Davis Decl. ¶ 4.) Specifically, the search warrant affidavit presents facts supporting these allegations. (Dkt. No. 18-1, Ds' Exs., Search Warrant Aff. at 15 (redacted).) For example, a member of the Hells Angels was the victim of "assault, torture, mayhem, false imprisonment, kidnapping, extortion, auto theft, and robbery at the hands of several members . . ." when he informed the Hells Angels that he decided to quit the gang. (Dkt. No. 18-1, Ds' Exs., Search Warrant Aff. at 15.) In that incident, he was punched in the face, prevented from leaving, and was held down so members could tattoo over, by covering it with black ink, his Hells Angels tattoos located on his neck and both arms. (Id. at 15-16.) Afterwards, the Hells Angels took the victim to his residence and took ownership of his motorcycle forcing him to sign the Certificate of Title. (Id. at 16-17.) They also retrieved any Hells Angels indicia and took his personally owned 42 inch LG flat-screen television. (Id. at 17.) The victim eventually acquired enough money to leave California permanently out of fear of retaliation. (Id.) In another incident, the victim was struck across his back and rib cage with a baseball bat which caused him to be knocked to the ground and caused him to defecate. (Id. at 20.) He was beaten until he could not longer defend himself. (Id.) He was treated for a fractured orbital and fractured nasal bones and required facial surgery to insert a plate into his face under his left eye. (Id. at 21.) Another incident involved the theft of a motorcycle. (Id. at 22-25.) The purpose of the search warrant was to obtain circumstantial evidence of firearms possession, evidence of gang membership which may confirm motive for the commission of the crimes in the case or provide evidence identifying other persons who have knowledge of, or are involved in the commission of the crime, or may corroborate information given by other witnesses. (Id. at 26-27.)
Plaintiff disputes that the doors and windows are fortified with metal bars and security screens and contends that the buildings were equipped with normal everyday windows and doors found at Home Depot. However, pictures of the doors and buildings of the Clubhouse show that the doors and windows are fortified with metal bars. (Dkt. No. 93-6, Ex. A.)
Members of the Hells Angels are known to have a propensity for violence and are often armed. (Dkt. No. 93-4, Davis Decl. ¶ 6.) Due to the high-risk nature of the search warrant, the fortified doors and windows and the crimes being investigated, the DEA requested assistance from ECPD SWAT team. (Id.)
Announcements were given over a public address system at least 10 minutes prior to the breaching of the first door. (Dkt. No. 109, Jun Decl., Ex. 1 at 3 (under SEAL).) At the time of the incident, Plaintiff was not allowed at the Clubhouse or to be in contact with any members because he was on supervised released as part of a felony conviction in a case out of Nevada. (Dkt. No. 93-6, Ex. C, Eunice Depo. at 52:22-53:3; 55:9-19.)
Unlike the defendants in Boyd, in this case, more than one warning was issued prior to the breaching charges and there was no indication that non-Hells Angels members would be present. Here, Defendant executed the search warrant in a methodical manner by providing notice in order to prevent any serious injury to anyone inside the building. As to whether the use of the breaching charges to enter the properties was reasonable, Plaintiff has not provided any legal authority that the use of breaching charges and flash bangs are unreasonable where the search warrant concerned allegations of kidnapping, extortion, robbery, torture and weapons violations, where the windows and doors are fortified with metal bars, and where the Hells Angels' members have a known history of criminal activity. In balancing the Fourth Amendment protections with the governmental interests at stake, the Court concludes that the use of breaching charges and flash bangs was reasonable in relation to the potential dangers at issue at the time. Accordingly, the Court concludes that Davis is entitled to qualified immunity and GRANTS his motion for summary judgment on the § 1983 claim.
There is no dispute that the knock and announce rule was followed by the agents. Officers provided notice on a PA system at least 10 minutes prior to breaching the door.
C. United States of America's Motion for Summary Judgment
Defendant United States of America filed a motion for summary judgment on the five claims against it alleging 1) intentional infliction of emotional distress; 2) negligence; 3) trespass to land; 4) private nuisance; and 5) California Civil Code section 52.1.
Defendant argues that Plaintiff has dropped his claim for intentional infliction of emotional distress. Plaintiff does not dispute this assertion in his opposition and at the hearing Plaintiff confirmed he was dropping that allegation. (Dkt. No. 98-5, D's NOL, Ex. C, Eunice Depo. at 144:20-25; 146:2-7; 168:15-24.) Accordingly, the Court GRANTS Defendant's motion for summary judgment on the claim for intentional infliction of emotional distress.
As to trespass to land and private nuisance, Defendant argues that it is immune from liability as to trespass to land and nuisance under the FTCA. However, in response to Plaintiff's opposition, Defendant, in its reply, concedes that trespass to land and private nuisance may be brought under the Federal Tort Claims Act. (Dkt. No. 98-1 at 2-3; Dkt. No. 105 at 4 n. 5.) Defendant, in a footnote, in support of its argument on trespass to land and private nuisance merely states "Plaintiff's claims, however, refer to action taken by SWAT, not DEA." (Dkt. No. 105 at 4 n. 5.) The Court concludes that Defendant has failed to bear its burden to show that the nonmoving party failed to make a showing sufficient to establish an element of his claim as Defendant has not established the elements of a cause of action to trespass to land and private nuisance. See Celotex, 497 U.S. at 322-23. As such, Defendant has failed to meet its burden on summary judgment. Accordingly, the Court DENIES Defendant United States of America's motion for summary judgment on the causes of action for trespass to land and private nuisance. The Court now considers the remaining causes of action for negligence and violation of California Civil Code section 52.1.
1. Negligence
Defendant argues that it cannot be liable for negligence because the DEA did not have a duty of care when SWAT made the decision to use breaching charges to enter Plaintiff's property. Without addressing the threshold issue of duty of care, Plaintiff opposes arguing that Defendant is essentially arguing lack of causation instead of duty of care and provides argument that Defendant's actions were the proximate cause of the harm suffered by Plaintiff.
The elements of a negligence cause of action are: (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury. Ladd v. County of San Mateo, 12 Cal. 4th 913, 917 (1996). The existence of a duty is a threshold element of a negligence claim. Paz v. California, 22 Cal. 4th 550, 559 (2000) ("The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion."); Bily v. Arthur Young & Co., 3 Cal. 4th 370, 397 (1992). The existence of a duty is a question of law for the court. Ky. Fried Chicken of Cal. v. Superior Court, 14 Cal. 4th 814, 819 (1997).
In California, "the general rule is that all persons have a duty to use ordinary care to prevent others from being injured as the result of their conduct." Friedman v. Merck & Co., 107 Cal. App. 4th 454, 463 (2003) (citing Rowland v. Christian, 69 Cal. 2d 108, 112 (1968)); Cal. Civ. Code § 1714. The existence of a legal duty is a question of law which is "simply an expression of the sum total of the policy considerations that lead a court to conclude that a particular plaintiff is entitled to protection." Jacoves v. United Merch. Corp., 9 Cal. App. 4th 88, 114 (1992).
Fundamentally, a defendant owes a legal duty of care to persons who are foreseeably endangered by the defendant's conduct, but a defendant has no duty to control the conduct of another or to warn others endangered by another's conduct. However, there are judicially created exceptions which impose a duty on a defendant to control the conduct of others when the defendant stands in some special relationship either with the person whose conduct needs to be controlled or with the person who is the foreseeable victim.Id. at 114.
"Special relationships between a defendant and a person whose conduct needs to be controlled, as well as whose conduct defendant has the ability to control consist of parent and child, master and servant, and one tho takes charge of a third person whom he or she knows is likely to cause bodily harm to himself/herself if not controlled." Id.
Here, neither party has argued or demonstrated any special relationship between S/A Agent Ryan and the SWAT team that would impose a duty on Ryan to control the conduct of the SWAT team, or any special relationship between S/A Ryan and Plaintiff.
In Rowland, the California Supreme Court provided the following policy considerations for courts to consider to determine whether to impose a legal duty: "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." Rowland, 69 Cal.2d at 113. When a public agency is involved, additional elements include "the extent of the [agency's] powers, the role imposed upon it by law and the limitations imposed upon it by budget." Thompson v, County of Alameda, 27 Cal. 3d 741, 750 (1980) (citations omitted). Moreover, if the harm is purely economic, the California Supreme Court takes a more restrictive view of foreseeability. Bily, 3 Cal. 4th at 398-99. While all are relevant, foreseeability is relevant and necessary. Toomer v. United States, 615 F.3d 1233, 1238 n.2 (9th Cir. 2010).
Defendant only argues that there was no duty between Defendant and Plaintiff because there was no foreseeability of harm since it was the SWAT, not the DEA's conduct that caused damage to Plaintiff's property. Therefore, SWAT, not the DEA owes a duty of care to Plaintiff. In opposition, Plaintiff argues that Defendant's argument is akin to a causation challenge and addresses causation instead of the duty of care. When Ryan asked SWAT for assistance as they had done in 2003, he knew that use of explosives was a possibility. In fact, Ryan testified that he was not surprised that explosives were used. In addition, Ryan testified that he had executed search warrants in dangerous situations without the use of explosives because the DEA is prohibited from using explosives. Therefore, Plaintiff argues that the harm was foreseeable and the cause of Plaintiff's injuries.
In 2003, S/A Ryan and El Cajon SWAT executed a search and arrest warrants on the same Clubhouse. (Dkt. No. 98-5, D's NOL, Ex. C, Eunice Depo. at 61:14-64:12.) At the time, SWAT used a breaching charge to gain entry. (Id. at 64:5-7.) People were arrested as well as seizure of firearms, and possibly ammunition and ballistic vests. (Id. at 159:2-21.)
The negligence cause of action is based on the use of explosives to blow up doors and windows to enter the Clubhouse instead of using a less intrusive and less destructive way. (Case No. 13cv0009, Dkt. No. 1 at 8.)
About three weeks before the search, the DEA informed El Cajon Police Department that they had a search warrant for the Clubhouse and sought assistance in entering the building. (Dkt. No. 98-8, D's NOL, Ex. H., Ryan Depo. at 12:5-13:14-16; 14:7-12.) Ryan told the El Cajon police that he was looking into entering the Hells Angels Clubhouse and told them it was "your guys' ball of wax." (Id. at 14:14-15.) He stated that because he does not tell another agency what to do if he is asking them for assistance. (Id. at 15:1-9.) According to the El Cajon Police Department SWAT After Action Report, SWAT team members were the only ones involved in the breaching charge of the Clubhouse. (Dkt. No. 110-1, Jun Decl., Ex, 1 (under SEAL). It was not until after SWAT entered the properties and secured the location that they allowed DEA investigators to enter the Clubhouse. (Id. at 4 (under SEAL).)
The conduct that caused Plaintiff's injury is SWAT's detonating an explosive charge that destroyed the doors and windows. Ryan's request for assistance is too remote of a connection to impose a duty of care by the DEA to Plaintiff. After the request for assistance, the DEA had no other role in determining how the Clubhouse would be breached and only entered the scene once SWAT's entry was successfully made. It was SWAT's responsibility to conduct the entry into the Clubhouse. DEA agents merely observed from a distance. DEA did not use the explosives and did not direct SWAT to use explosives.
Plaintiff has not shown that the DEA is responsible for SWAT's decisions and actions to establish a duty of care. Plaintiff has not provided any legal authority to support the fact that S/A Ryan's knowledge of SWAT's prior use of explosives establishes a duty of care. Moreover, the fact that the DEA has a policy of not using explosives does not provide a sufficient basis to establish a duty of care.
The Court concludes that Plaintiff has not demonstrated a genuine issue of material fact as to whether Defendant negligently entered the Clubhouse because he has failed to demonstrate that there was a legal duty of care to Plaintiff. Accordingly, the Court GRANTS Defendant United States of America's motion for summary judgment on the negligence cause of action.
2. California Civil Code section 52.1
Defendant United States of America argues that the DEA did not intimidate, threaten, coerce or interfere with Plaintiff's Fourth Amendment right to be free from unreasonable seizure when it used explosives, and allegedly smashed windows and photographs and damaged the buildings beyond use. Plaintiff opposes.
California Civil Code section 52.1 establishes a private right of action for damages and other relief against a person who "interferes by threats, intimidation, or coercion," or attempts to so interfere, with the exercise or enjoyment of a individual's constitutional or statutory rights. Cal. Civ. Code § 52.1. Liability "does not extend to all ordinary tort actions because its provision are limited to threats, intimidation or coercion that interferes with a constitutional or statutory right." Venegas v. Cnty. of Los Angeles, 32 Cal. 4th 820, 843 (2004). Section 52.1 requires a violation of a right and a violation that was accomplished by threat, intimidation or coercion. City and Cnty of San Francisco v. Ballard, 136 Cal. App. 4th 381, 408 (2006); Shoyoye v. County of Los Angeles, 203 Cal. App. 4th 947, 959 (2012) ("the statute was intended to address only egregious interferences with constitutional rights, not just any tort. The act of interference with a constitutional right must itself be deliberate or spiteful".)
Here, Plaintiff alleges violations of the constitutional right to be free from unreasonable seizure under the United States Constitution and the California State Constitution. (Case No. 13cv0009, Dkt. No. 1, Compl. ¶ 82.) Neither party has specifically and substantively addressed whether there was an unreasonable seizure under the United States Constitution or California State Constitution.
Since section 52.1 also requires a showing of "threats, coercion or intimidation" as it relates to the constitutional violation, Defendant moves for summary judgment on that issue. As to the acts of threats, coercion and intimidation, Plaintiff contends that once the DEA agents entered the properties, they smashed windows, threw photographs off of walls and stepped on faces of the people depicted in the photographs. (Id. ¶ 85.) Moreover, DEA agents "intimidated and coerced Mr. Eunice by causing so much damage that the buildings can no longer be used." (Id. ¶ 86.) Moreover, Plaintiff was called to the scene of the incident and when he arrived, he "witnessed the massive destruction while armed law enforcement agents surrounded the perimeter." (Id. ¶ 87.) He alleges that the agents called Plaintiff to the property so they could intimidate him. (Id. ¶ 88.)
In its motion, Defendant argues that it did not cause damage to Plaintiff's photographs. Agent Ryan testified he saw framed photographs on the ground with broken glass when he entered and did not see DEA agents stomp on photographs. (Dkt. No. 98-8, D's NOL, Ex. H, Ryan Depo. at 44:8-18.) Plaintiff testified that when he was at the scene, he was told to wait beside the door, and "couldn't really see anything." (Id., Ex. C, Eunice Depo. at 111:17-24.) While he waited outside about 35 or 45 minutes, he stated he could not see inside. (Id. at 113:11-114:8.) Plaintiff testified that S/A Ryan was cordial and professional towards him. (Id. at 167:2-20.) Moreover, the Hells Angels still continue to use the Clubhouse. (Id. at 52:20-21; 144:16-19.)
Defendant cites to Plaintiff's testimony where he states that he did not see anyone throw photographs off the wall, (D's NOL, Ex. C, Eunice Depo. at 201:19-204:6 and 202:7-10); however, the record does not include these pages of Plaintiff's deposition.
In opposition, Plaintiff does not present any facts to show that there are genuine issues of fact for trial. See Celotex, 477 U.S. at 324. Therefore, Defendants has demonstrated that there are no genuine issue of fact that there were no acts of threats, coercion or intimidation to demonstrate a violation of section 52.1. Accordingly, the Court GRANTS Defendant United States of America's motion for summary judgment on the claim pursuant to California Civil Code section 52.1.
D. Request for Judicial Notice
Defendant Davis filed a request for judicial notice of three documents. (Dkt. No.93-3.) He seeks judicial notice of a youtube video of the incident which Plaintiff does not oppose. Second, he seeks judicial notice of a department action log of City of La Mesa and it appears a search warrant in "U.C.S.D. Case No. 08cr7050-IEG". Plaintiff opposes these requests.
The Court may take judicial notice of facts that are "not subject to reasonable dispute that is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).
The Court DENIES Davis' requests for judicial notice as the Court did not rely on them for ruling on his motion for summary judgment.
E. Evidentiary Objections
Jeff Davis filed evidentiary objections to Plaintiff's evidence in opposition to motion for summary judgment. (Dkt. No. 107.) The Court notes the objections. To the extent that the evidence is proper under the Federal Rules of Evidence, the Court considered the evidence. To the extent that the evidence is not proper, the Court did not consider it.
Conclusion
Based on the above, the Court GRANTS Defendant Davis' motion for summary judgment and GRANTS in part and DENIES in part Defendant United States of America's motion for summary judgment. Specifically, the Court GRANTS Defendant United States of America's motion for summary judgment on the intentional infliction of emotional distress, negligence and California Civil Code section 52.1 causes of action; and DENIES Defendant United States of America's motion for summary judgment on the causes of action for trespass to land and private nuisance.
IT IS SO ORDERED. DATED: July 31, 2014
/s/_________
HON. GONZALO P. CURIEL
United States District Judge