Freeman v. City of Fresno

Full title: ZELLA MAYE FREEMAN, Plaintiff, v. CITY OF FRESNO, R. GARRISON (F.P.D…

Court: United States District Court, E.D. California

Date published: Dec 22, 2006

1:05-cv-0328 OWW SMS (E.D. Cal. Dec. 22, 2006)

Opinion

1:05-cv-0328 OWW SMS.

December 22, 2006

MEMORANDUM DECISION AND ORDER GRANTING/DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

OLIVER WANGER, District Judge

I. INTRODUCTION

Plaintiff Zella Maye Freeman ("Freeman" or "Plaintiff") filed a complaint against Defendants for their alleged unreasonable search and seizure of her home in violation of her federal civil rights, as well as various state laws. (Doc. 1, Complaint, Filed March 8, 2005.) This action comes before the court on Defendants' motion for summary judgment of Freeman's claims. (Doc. 61-2, Motion for Summary Judgment, Filed July 31, 2006.) Freeman opposes the motion. (Doc. 89, Pl.'s Amended Opp., Filed October 4, 2006.)

II. PROCEDURAL BACKGROUND

Freeman filed her initial complaint on March 8, 2005. (Doc. 1, Complaint.) On June 28, 2005 Freeman amended her complaint. (Doc. 24, First Amended Complaint.) On July 31, 2006 Defendants filed a motion for summary judgment. (Doc. 61-2, Motion for Summary Judgment.) Freeman opposed the motion on October 2, 2006. (Doc. 81, Pl.'s Opp. to Mot. for Summary Judgment.) Freeman then filed an amended opposition on October 4, 2006. (Doc. 89, Pl.'s Amended Opp.) Defendants filed their reply on October 16, 2006. (Doc. 96, Def's Reply.)

III. FACTUAL BACKGROUND

A. UNDISPUTED FACTS

1. Facts Relevant to Obtaining the Search Warrant

During his assignment with the Multi Agency Gang Enforcement Consortium ("M.A.G.E.C."), Detective Mark Yee along with several other investigators, became involved in a one and a half year investigation of criminal activities including gang-related shootings, homicides and attempted homicides committed by rival African American gangs in the southwest Fresno area. (DSUF, No. 2) Specifically, the investigation focused on validated criminal street gangs the "West Side Strother Boys", its gang leader Darryl "Dedo" Hilliard, and their rival, "the Garrett Street Gang." (DSUF, No. 3)

In February 2004, Detective Yee authored a thirty one page search warrant affidavit, arising out of the investigation stemming from the gang related shootings by the subject gangs. (DSUF, No. 5) The Search Warrant Affidavit was signed by Detective Yee under penalty of perjury. (DSUF, No. 7) At that time, the West Side Strother Boys was still an active gang committing violent crimes and there were investigations outstanding. (DSUF, 8) The Affidavit provided specific details of incidents during that investigation.

2. Detective Yee's Investigation

i. History of Yee's One and a Half Year Investigation in Support of Probable Cause

It is undisputed that the record contains an extensive account of various incidents of violence between the Strother Boys and the Garret Street gang. These incidents were described in Yee's twenty four page statement of probable cause in support of the Search Warrant. Yee's affidavit provided specific details of incidents that included the following¹:

1 For an exhaustive list of the incidents and the details of each incident see Doc. 61, Def.'s Motion for Summary Judgment, Filed July 31, 2006, pp. 5-16.

1. shots fired at Strother Boys Gang on November 19, 2002, 2. shots fired at Garret Street Gang on November 20, 2002, 3. the shooting of a six year old boy shot in the crossfire between Srother Boys and Garret Street gangs on December 26, 2002. 4. Strother Boy Darryl Hilliard's Fingerprints on a firearm at a disturbance on March 5, 2003, 5. Shootout between Darryl Hilliard and Garret Street Boys on March 11, 2003, and 6. Garret Street Gang member shot on January 29, 2004.

ii. Detective Yee's Conclusions of the Investigation

Detective Yee, who has been an officer with the Fresno Police Department since 1994, was assigned to the M.A.G.E.C. Unit in 1997. (DSUF, No. 236)

In addition to the information described above, along with confidential information² contained in a sealed portion of the affidavit, Detective Yee relied on the following in seeking authorization to search the ten residences:

2 It is undisputed that Detective Yee requested the confidential portion of the affidavit be sealed under People v. Hobbs, 7 Cal. 4th 948 (1994) in order to protect the safety and welfare of the confidential informant(s). (DSUF, No. 54.) It is also undisputed that, according to Freeman's police practices expert, Roger Clark, requesting to seal a portion of an affidavit should be done very carefully, so as to protect the confidential sources, because people can die if such information is disclosed. (DSUF, No. 55.) It was Detective Yee's practice never to break this promise. ( Id.)

1. There was a long-standing and ongoing feud between members of the "West Side Strother Boys" and "The Garrett Street Boys" and that feud involved many acts of violence on both sides. (DSUF, No. 42)

2. Detective Yee knew that the Strother Boys were a close knit group, and that it was not uncommon for many of the members to be involved in related acts of violence. (DSUF, No. 43)

3. When an ongoing feud involving many separate members of the same gang exists, it is not uncommon for the violent members at the central core of the gang to associate with each other, and to plan together aggressive acts and/or acts of violent retaliation to be perpetrated by a few members of this violent central cadre. (DSUF, No. 44)

4. The pattern of violent acts perpetrated by "The West Side Strother Boys" and the large number of people involved in these acts, made it more likely than not that there was a general common plan existing among the gang to commit acts of violence against persons they believed to belong to or to associate with their rivals. (DSUF, No. 45)

5. In a long-standing gang shooting feud, members of the victim's gang in one shooting frequently know or suspect that they know who the perpetrators are. This is because of the "word on the street", which is information passed from person to person, often based on sources within the perpetrator's gang; on eyewitnesses reluctant to cooperate with the police; or on gang graffiti, composed of writings on buildings or walls, which is a means used by some gang members to take credit for a violent incident. (DSUF, No. 46)

6. Because of the above, a person involved as a shooter in a gang-related feud incident will generally assume his identity is known on the streets. (DSUF, No. 47) While he must temporarily dispose of the weapon used in the underlying offense, he must at the same time have accessible to himself a weapon which can be used for self-defense upon short notice. ( Id.)

7. That gang members who are involved in an ongoing feud of shooting incidents frequently do not permanently dispose of their weapons, preferring to retain access to them for protection from retaliation or for further use in acts of aggression while the feud is continuing. (DSUF, No. 48)

8. Gang members who use a firearm in gang feud situations frequently borrow the weapon used from a fellow gang member, and after the commission of a violent act with the weapon, they return it to the gang member they borrowed it from, to prevent it being seized by law enforcement officers during a search conducted shortly after the commission of the crime. (DSUF, No. 49)

9. Gang members who do use their own firearms in gang war situations frequently pass the weapons used to fellow gang members for safe keeping, in order to avoid the weapon being seized by law enforcement officers during a search of their residence, vehicle or person. (DSUF, No. 50)

10. When a gang member in the above situation believes that he is no longer liable to be searched as a suspect in the shooting incident, he will frequently retrieve the weapon used and store it where it would be readily accessible for defense or offense, such as in his residence, on his person or in a vehicle to which he has access. (DSUF, No. 51)

iii. Facts Regarding Detective Yee's Request for a Search Warrant

It is undisputed that the ten residences were listed and described with particularity in Attachment "A" to the Search Warrant Affidavit. (DSUF, No. 58) The items to be seized included evidence of gang membership, firearms and ammunition, and were listed in Attachment "B" to the Search Warrant Affidavit. (DSUF, No. 59) Detective Yee had probable cause to believe, and did believe, that the property described in Attachment "B" to the Affidavit was lawfully seizable pursuant to California Penal Code Section 1524. (DSUF, No. 60)

It is also undisputed that on or about February 17, 2004, Detective Yee took the Search Warrant Affidavit and Confidential Attachment to the Honorable Judge Franklin P. Jones' chambers in the Fresno County Superior Court. (DSUF, No. 63) Detective Yee believed that Judge Jones was a detached and neutral magistrate at the time he presented the Search Warrant Affidavit to him. (DSUF, No. 64) Freeman does not dispute that Judge Jones signed the Search Warrant after thorough review on February 17, 2004 and authorized the search of the ten residences. (DSUF, No. 69) Judge Jones ordered the confidential portion of the Affidavit to be sealed, which was kept in the custody of the Fresno County Superior Court. (DSUF, No. 70)

iv. Judge Jones Reliance on Detective Yee's Training and Experience

Defendants argue that Detective Yee described in detail his professional experience, his experience with street gangs, his assignments, and his duties and training with the Fresno Police Department. It is undisputed that Detective Yee had extensive training and experience, which included the following:

1. Identification and validation of gangs and gang members

2. The investigation of gang-related shootings, homicides and other violent gang crimes leading to the arrests and the conviction of numerous violent gang offenders and the recovery of narcotic paraphernalia, controlled substances and/or stolen property

3. Gathering of gang intelligence information; the maintenance of gang files/information shared with detectives from other local law enforcement agencies, other departments in the State of California and other states across the nation

4. He has received ongoing advanced officer training courses on the preparation and service of search warrants

5. Cultural awareness, use of force, informant development

6. Interview and interrogation and various other classes and seminars.

(DSUF, No. 71)

It is also undisputed that in his assignment with M.A.G.E.C., Detective Yee had become acquainted with numerous gang members and associates through investigations, arrests, field interviews, vehicle stops, subject checks, consensual contacts and informants. (DSUF, No. 72) Detective Yee is familiar with street gang habits, mannerisms, and techniques used in committing violent offenses and gang members' behaviors in attempting to conceal evidence of such occurrences from detection by both the general public and law enforcement. (DSUF, No. 73) At the time of preparing this Search Warrant Detective Yee had been specializing in Black gangs and investigating gang-related shootings, homicides, and other violent gang crimes for six years. (DSUF, No. 74) Detective Yee has also taught Black Gang Awareness Training Seminars in Fresno County and conducted gang presentations to numerous civic groups. (DSUF, No. 75)

Freeman does not dispute that Detective Yee participated in numerous parole/probation searches of residences of known, validated criminal street gang members/associates where gang paraphernalia was located. (DSUF, No. 76) He was a member of the California Gang Investigator's Association, Northern California Gang Investigator's Association, California Homicide Investigator's Association, and California Narcotics Officer's Association. (DSUF, No. 77)

Detective Yee received some of this training through his department agency while serving on the M.A.G.E.C.³ team. (DSUF, No. 78) Most of the named suspects included in Detective Yee's Affidavit, were validated gang members or associates. (DSUF, No. 82) Detective Yee has qualified and testified as an expert on Black gangs in the California Superior Court and Federal Court. (DSUF, No. 83) It is his expert opinion that it is common for girlfriends and parents to aid and abet their boyfriend or child who are known criminals by hiding, concealing and disposing of any type of evidence that might contribute to their prosecution. (DSUF, No. 84)

3 Freeman does not dispute that M.A.G.E.C.'s mission is to eradicate criminal activity of street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods, schools and businesses. (DSUF, No. 79) M.A.G.E.C. utilizes the California State Office of Criminal Justice 10-point criteria to validate gang members and associates. (DSUF, No. 80) Three or more of the ten points can validate the subject as an active gang member. Two of the ten points can validate the subject as an associate of the gang. (DSUF, No. 81)

v. Facts Relating to Freeman's Residence and Its Proximity to Gang Activity

Defendants state that Freeman's residence is situated in a lower economic neighborhood that is well known for criminal gang activity and violence. (DSUF, No. 85) It is undisputed that Freeman's home is located in the heart of where most of the gang-related shootings occurred. (DSUF, No. 86)

On January 22, 2004, Darryl Hilliard was under surveillance by law enforcement officers, including Detective Yee. (DSUF, No. 89) It is undisputed that as of January 22, 2004 a green 2003 Pontiac Grand Am was parked in Freeman's driveway and that a records check confirmed this vehicle was registered to her. (DSUF, No. 92) It is also undisputed that Hilliard's mother dropped off Hilliard at Freeman's residence, and then drove away without him. (DSUF, No. 93)

Freeman also does not dispute that later that same day, after a court appearance at the Fresno County Courthouse, Hilliard was observed getting into Freeman's Pontiac Grand Am. (DSUF, No. 95) It is undisputed that on the way to Hilliard's mother's house, located at 4430 N. Sequoia Avenue in Fresno, Ms. Dillingham was observed driving at high speeds and making quick turning movements as Hilliard leaned down in the front passenger seat as if to conceal himself. (DSUF, No. 97) This behavior was consistent with counter-surveillance techniques. (DSUF, No. 98)

Surveillance of Hilliard continued on February 2, 2004. (DSUF, No. 99) After taking him to court, Ms. Dillingham drove Hilliard back to his mother's house. (DSUF, No. 101) Shortly thereafter, Hilliard was observed driving Freeman's vehicle to various locations where he made contact with various other Strother Boys gang affiliates. (DSUF, No. 105) Hilliard's behavior while driving around in Plaintiff's vehicle was consistent with that of a person dealing drugs. (DSUF, No. 106) Freeman also does not dispute that due to the lack of resources and manpower amongst law enforcement, it was not feasible to monitor every move Darryl Hilliard made. (DSUF, No. 108)

It is common practice for gang members to keep their weaponry, stolen property and other evidence of their crime involvement at their homes or "safe houses". (DSUF, No. 109) It is undisputed that, in an attempt to evade detection by the police, gang members will routinely move the property among associates/members/girlfriends within their own specific gang. (DSUF, No. 110) Detective Yee was looking for ballistic evidence that would tie Darryl Hilliard to some of the crimes he was a prime suspect in, i.e. drive by shootings, shooting into homes, shooting into cars, and shooting people. (DSUF, No. 111)

Freeman's primary physician testified that she currently has stress as a result of her granddaughter living with her. (DSUF, No. 244) Freeman does not dispute that her home had been shot at while she was in her living room causing bullet hole damage to her house before this incident. (DSUF, No. 245) Further, Freeman's neighbor across the street was almost shot when her home was hit with gunfire. [Anthony Lyday testified that while his mother was cooking at the stove in her kitchen, Anthony heard gun fire so he grabbed his mother and threw her to the ground. Immediately thereafter, bullets came through her kitchen where she was standing. There have been a couple of these incidents where he has had to save his mom.] (DSUF, No. 247)

B. Facts Relevant to the Service of the Search Warrant

1. The Search Warrant Briefing

On the morning of February 19, 2004⁴, all officers who were to participate in serving the Search Warrant, met at the M.A.G.E.C. headquarters for a briefing before the search. (DSUF, No. 114) Detective Mark Yee was assigned to the Metro Investigations Team, which was to serve the Warrant at four locations, none of which are a subject of this lawsuit. (DSUF, No. 115)

4 It is undisputed that February 19, 2004 was a clear, bright, and sunny day. (DSUF, No. 113)

The Rural Tactical Team is a uniform team focused primarily on the tactical operation of eradicating criminal activity within the rural County of Fresno. (DSUF, No. 116) Members of this team consisted primarily of Fresno County Sheriff Deputies, who included: Defendants Ian Barrimond, John Capriola, Jason Hollins, Robert Perez, and Andrew Simonson; as well as Fresno Police Officer Robert Garrison. ( Id.) It also included non-defendant Officers Andrew Camerana and Michael Higgins. This team was assigned to search two homes. ( Id.)

During the briefing, Detective Yee provided all the officers with the following:

1. a background of his investigations

2. a history of the ongoing gang-related shootings

3. the nature of the Search Warrant and information regarding suspect Darryl Hilliard

4. a photograph of Darryl Hilliard

5. the locations to be searched

6. copies of the list of items authorized to be searched for and seized

7. and a copy of the Notice of Search Warrant that each team was to serve on the occupants of the residences

(DSUF, No. 117) Specifically, Detective Yee cautioned the officers that they were serving a "high risk" Search Warrant and to expect for Darryl Hilliard or his fellow gang members and/or associates, to be at any of the locations. He also cautioned that it was very likely that such individuals would be armed. (DSUF, No. 118)

Sergeant Barrimond had assigned Fresno Police Officer Robert Garrison to be the Case Agent for their team, whose responsibilities included: giving the knock and notice, collecting and documenting all the evidence and property seized, preparing the report, and booking the evidence into the Fresno Police Department ("FPD") property room. (DSUF, No. 119) Sergeant Barrimond chose Officer Garrison because he was the only Fresno Police Officer on the team and since the Case Agent for the entire operation was Detective Yee, a Fresno Police Officer, it would make the processing, documentation and booking of evidence easier to have a Fresno Police Officer act as Case Agent. (DSUF, No. 120)

After the briefing, Officer Garrison contacted the FPD Records Department by telephone and spoke with a Records' Clerk who informed him that there had been several prior calls for service at Plaintiff's residence, which included prior disturbances and prior warrant service attempts. (DSUF, No. 121)

The Rural Tactical Team then proceeded to the Chandler Airport, a neutral location near the Plaintiff's residence, to conduct a second briefing. At this location, the officers checked their equipment, ammunition, and gear to ensure everything was properly functional. Each officer was in full law enforcement tactical gear wearing bullet proof vests that bore the name, M.A.G.E.C. on the back. Each of their uniforms were clearly marked with their respective law enforcement agency insignia or patch. (DSUF, No. 122)

Sergeant Barrimond gave the officers position assignments and assigned Deputies Perez and Simonson to the perimeter of the residence. (DSUF, No. 123) Officers Garrison, Camerana and Higgins, and Deputies Capriola and Hollins, were all assigned to the Entry Team. (DSUF, No. 124) Due to the variety of risks involved in serving this Search Warrant, Sergeant Barrimond ensured that all the officers were mentally prepared and asked them, "are you all here?". (DSUF, No. 125) He wanted to make sure they were focused and did not have their minds on extraneous matters. ( Id.)

Defendants Barrimond, Capriola, Hollins, Perez, Simonson and Garrison, were of the understanding that they were going to search Plaintiff's residence pursuant to a valid search warrant signed by a judge and had no reason to believe the Search Warrant was unlawful or invalid in any respect. (DSUF, No. 157)

2. Search of Freeman's Residence

All the officers who participated in the service of this Search Warrant understood that this was a "high risk" warrant due to the nature of the underlying crimes being committed by the suspect Darryl Hilliard that included homicide, gang-related shootings, and other criminal activity. (DSUF, No. 221) All the officers understood Hilliard was a validated gang member whose fellow gang members, associates and affiliates were also very dangerous. (DSUF, No. 222) Freeman does not dispute that the officers also understood they were searching for firearms, ammunition, gang indicia and other evidence of criminal activity. (DSUF, No. 223)

While approaching the front of the house, Deputies Perez and Simonson branched out of the line to take a position near the driveway, perimeter area. (DSUF, No. 126) The lead Officer was Garrison who was followed by Officer Higgins who was then followed by Deputy Capriola. (DSUF, No. 127)

Plaintiff's front door is on a two step elevation from the ground. The house has barred windows on each side of the front door. (DSUF, No. 128) Officer Garrison did not stand in front of the door but positioned himself directly under the right front window on the ground level. (DSUF, No. 130) Officer Garrison had his department issued handgun in his right hand, and used his left hand to bang on the security door. (DSUF, No. 131) He checked and confirmed the security door was locked. (DSUF, No. 133)

Plaintiff, who was inside the residence, did not immediately open the door and the Officers on the "stick" (line-up of officers on the entry team going through the door) were growing concerned that the team was taking too long to make entry. After a lengthy period of time, the interior door finally opened. (DSUF, No. 134) Plaintiff, responded, "what do you want?" (DSUF, No. 136) Officer Garrison continued to tell Plaintiff to open the door. (DSUF, No. 137) Plaintiff finally unlocked the security door at which point Officer Garrison grabbed the door handle and pulled the door open. (DSUF, No. 138) Officer Garrison stepped onto the front step and made entry into the home, he was telling Plaintiff to get down on the floor. (DSUF, No. 139) Plaintiff was verbally abusive to Officer Garrison as well as the Paramedics who arrived on scene. (DSUF, No. 243)

It is undisputed that Detective Yee did not participate in serving the Search Warrant at Plaintiff's residence and was never present at any time during the search of her residence. (DSUF, No. 112) Two of Plaintiff's neighbors who were positioned across the street and witnessed the entry, testified in deposition that they could hear the officers shouting for Plaintiff to open the door for several minutes. (DSUF, No. 217) Specifically, Anthony Lyday estimated that it took two to three minutes before the officers made entry. (DSUF, No. 218) Gwen Echoles and Anthony Lyday both heard the officers shout and announce their presence while pounding on the front metal security door of Plaintiff's residence. (DSUF, No. 219) Neither Gwen Echoles or Anthony Lyday heard the officers ever threaten to shoot Plaintiff. (DSUF, No. 220) During the search, Officer Garrison seized a loaded six shot revolver that was located in the bedroom. (DSUF, No. 226)

3. Officer Garrison's Use of Force

Officer Garrison has been with the Fresno Police Department since 1996 and was assigned to the M.A.G.E.C. Unit in 2003. (DSUF, No. 237) Officer Garrison immediately entered the residence but was not able to clearly see inside due to a brief eye adjustment caused by coming in from outside where it was bright and sunny, into a small, dimly lit room. (DSUF, No. 140) Deputy Capriola also saw that it was very dark and he could not see much inside the residence. (DSUF, No. 141) Officer Garrison felt his foot brush against an object on the floor then saw a form in front of him. He yelled, "Police Department, get on the ground, get on the ground." (DSUF, No. 142)

There was no cover or concealment for any of the officers who were in that doorway. (DSUF, No. 146) Deputy Garrison immediately thought, "this isn't good" because the officers were not entering as fast as they should have. (DSUF, No. 147)

The doorway is known as the "funnel of death". This is due to the high likelihood of officers being injured or killed in the doorway because of the backlighting. Therefore it is necessary to get through the doorway as quickly and safely as possible. This ensures the safety of the officers and the subjects of the residence. (DSUF, No. 148)

Given the amount of time between Officer Garrison entering the residence, feeling this perceived threat to his gun arm, combined with his inability to see clearly, and his men directly behind him moving quickly, he did not have sufficient time to evaluate the age and characteristics of this individual. (DSUF, No. 150) Ordinarily, an entry would be very rapid, and although the momentum of the officers on this team was originally quick, the entry was much slower due Officer Garrison's encounter with Plaintiff. (DSUF, No. 153)

After the home was secured, Officer Garrison returned to the living room area, which was the first time he realized Plaintiff was an elderly female. (DSUF, No. 154) Officer Garrison inquired as to whether Plaintiff was okay and offered to call her an ambulance, but she refused. (DSUF, No. 155)

He asked her for her name, but she was uncooperative and verbally abusive towards him. Officer Garrison did not want to aggravate the tension Plaintiff was already exhibiting, so, he limited his contact with her. (DSUF, No. 156) Officer Garrison as well as all the officers on this team deny that Officer Garrison ever threatened to shoot Plaintiff. (DSUF, No. 216)

4. Deputy Perez

Deputy Perez remained outside of the residence securing the perimeter where he remained throughout the entire duration of the search. (DSUF, No. 159) Deputy Perez looked for threats and/or suspects who may have tried to flee the area. (DSUF, No. 160) At no time during the duration of the search did Deputy Perez ever enter Plaintiff's residence. (DSUF, No. 161) At no time during the search did Deputy Perez ever make any contact, physical or verbal, with the Plaintiff. (DSUF, No. 162)

5. Deputy Simonson

Deputy Simonson remained outside of the residence securing the perimeter until the entry team was done securing the interior of the residence. (DSUF, No. 163) Deputy Simonson then went inside the residence to assist in documenting evidence seized on an inventory log. (DSUF, No. 164) At no time while inside the residence did Deputy Simonson ever make any physical or verbal contact with the Plaintiff. (DSUF, No. 165) He was not present during the initial entry and did not observe the physical contact between Plaintiff and Officer Garrison. (DSUF, No. 166)

6. Deputy Capriola

Deputy Capriola was the third officer who entered Plaintiff's residence, behind Officer Higgins, who was behind Officer Garrison. (DSUF, No. 167) Usually, the entry into a residence is very rapid, however, on this particular day, it was slower. (DSUF, No. 168) Deputy Capriola's immediate thought was, "this isn't good . . . this is going too slow" because the officers were not entering into the house as fast they should have. (DSUF, No. 169)

Deputy Capriola looked beyond the physical contact into the dark living room and beyond Officer Garrison to see if there were any other threats ahead. (DSUF, No. 172) Deputy Capriola was very concerned because Officer Garrison got hung up just inside the doorway, causing Officer Higgins to stall in the door frame, thereby causing Deputy Capriola to stall just outside the doorway. (DSUF, No. 173) In this position, there was no cover or concealment for any of the officers who were in that doorway. (DSUF, No. 174)

Once inside the door, Deputy Capriola observed Plaintiff laying partially on the ground and halfway on a chair that was situated a foot or two on the right, inside the door. (DSUF, No. 175) Plaintiff's legs were sticking out partially in the doorway but Deputy Capriola did not see how it was she landed in that position. (DSUF, No. 176) Deputy Capriola stepped over Plaintiff's feet and went left into the kitchen to secure that area. (DSUF, No. 177) After the house was determined to be secured, he walked over to the Plaintiff and assisted Sergeant Barrimond in helping Plaintiff to a couch. (DSUF, No. 178) Deputy Capriola had no further contact or communication with Plaintiff. (DSUF, No. 179)

7. Deputy Hollins

Deputy Hollins was one of the last officers to enter Plaintiff's residence because he was assigned to the breaching device that is used to force entry when necessary. (DSUF, No. 180) The breaching device requires two hands to carry so he did not have a firearm in hand. (DSUF, No. 181) The knock and notice took much longer than any other search warrant he had ever been on. (DSUF, No. 182) Deputy Hollins, who stands six feet, four inches tall, was able to see over the officers in front of him. (DSUF, No. 183)

As the officer made their way into the residence, Deputy Hollins caught a glimpse of Plaintiff falling near a chair that was by the front door. (DSUF, No. 184) Deputy Hollins did not see how she fell or what caused her to fall. (DSUF, No. 185)

After securing the residence but prior to conducting the search, Deputy Hollins photographed the residence. He also photographed the items and locations from where they were seized. (DSUF, No. 186) He had no physical or verbal contact with the Plaintiff the entire duration of the search. (DSUF, No. 187)

8. Sergeant Barrimond

Sergeant Barrimond was the supervisor for the Rural Tactical Team. (DSUF, No. 188) Sergeant Barrimond's responsibilities as Supervisor were to make the assignments and to ensure that his team executed the search warrant in a lawful, efficient and safe manner. (DSUF, No. 189) Prior to embarking to the Plaintiff's residence, Sergeant Barrimond obtained, reviewed and familiarized himself with a copy of the entire Search Warrant Affidavit and attachments because he wanted to be comfortable with it since his team did not write the Search Warrant. (DSUF, No. 190)

When the team arrived to Plaintiff's residence, Sergeant Barrimond got in position about the fourth or fifth officer in the entry stick. (DSUF, No. 191) Officer Garrison continued to knock without anyone from within the residence opening the door. (DSUF, No. 193) The team waited a long enough period of time before receiving a response from within the residence, that Sergeant Barrimond almost ordered the team to force entry by using the breaching device. (DSUF, No. 194)

During the knocking he heard a voice from within the home. Finally the occupant of the home unlocked the door at which point Sergeant Barrimond gave the command, "let's go". (DSUF, No. 195) Sergeant Barrimond was concerned about the officers being in the "funnel of death" because they did not know whether there was anyone within the residence who had weapons. (DSUF, No. 196) The officers had a disadvantage because the sunlight was behind them, so they were backlit and the interior of Plaintiff's residence was somewhat dark. (DSUF, No. 197)

After making entry, Sergeant Barrimond'S eyes had to acclimate to the dimness of the house. (DSUF, No. 198) After the residence was secured, Sergeant Barrimond focused his attention on Plaintiff who was leaning on a chair, and the children who were on the couch in the living room. (DSUF, No. 199)

Sergeant Barrimond helped Plaintiff get seated on a chair and explained to her why the officers were there and the purpose of their search. (DSUF, No. 200) He advised her that the officers were looking for guns and gang-related items pursuant to a search warrant. (DSUF, No. 201) Sergeant Barrimond then began talking to the children and tried to calm them down by making funny faces and small talk to try and make them comfortable. (DSUF, No. 202) He asked Plaintiff if the kids needed to be changed, fed or taken care of in any way. (DSUF, No. 203)

Officer Garrison explained to Sergeant Barrimond that when he went in through the door, someone grabbed for his gun arm, so he pushed them away. (DSUF, No. 204) Sergeant Barrimond understood that in the heat of the moment, the normal reflex for a person who is concerned for the safety of children in her residence, is to challenge a person coming into the residence with a gun, which would include grabbing at that person. (DSUF, No. 205)

Officers have discretion as to how to evaluate a tactical situation. Plaintiff was not arrested or cited for her offense, nor was she ever patted down, searched, placed in handcuffs or restrained in any other way. In fact, she was allowed to use the telephone to receive and make phone calls. (DSUF, No. 206)

Sergeant Barrimond asked Plaintiff if she was okay and whether or not she would like an ambulance called. (DSUF, No. 195) Plaintiff complained of hip pain but refused the offer to have an ambulance called. (DSUF, No. 207) Nevertheless, Sergeant Barrimond directed Officer Garrison to call an ambulance because he wanted to make sure she was okay. When the paramedics arrived, Plaintiff refused treatment by them. (DSUF, No. 208)

After the search, Sergeant Barrimond ensured that all his officers had their equipment and materials before leaving Plaintiff's residence. (DSUF, No. 209) At some point after the search, Sergeant Barrimond contacted Detective Yee to advise him that suspect Darryl Hilliard was not at Plaintiff's location. (DSUF, No. 211) Detective Yee responded that Darryl Hilliard was apprehended at another location and was in custody. (DSUF, No. 212)

9. Oversight and Training of Fresno Police Officers

Officer Yee and Garrison are obligated to comply with the ongoing training requirements of the Department. (DSUF, No. 228)

C. Disputed Facts

1. Facts Relevant to Obtaining the Search Warrant

Freeman disputes the fact that Detective Yee received credible information from reliable sources, including confidential informants, and continued to monitor the information provided to him from those informants. (DSUF, No. 4). Freeman also disputes that the twenty-four page statement of probable cause in support of the Search Warrant accurately described the one and a half year investigation arising out of the gang related shootings in Fresno and other criminal acts committed by members of the West Side Strother Boys and Garrett Street gangs. (DSUF, No. 6)

Freeman argues that Detective Yee's affidavit lacked adequate foundation for the reliability of any of the confidential and/or anonymous sources. (PSDF, No. 1) Freeman also argues that Detective Yee lacked personal corroboration information regarding the confidential/anonymous sources which had been deemed "reliable by Officers other than Detective Yee.

i. Detective Yee's Use of Confidential Informants and Witnesses in His Affidavit

Detective Yee failed to do anything to personally assess the credibility of Confidential Informant #1. (PSDF, No. 3) Freeman also argues that Detective Yee did not affirmatively establish the following:⁵

5 Officers Eddie and Cardinelli are not parties to this dispute.

1. whether both officers Eddy and Cardinelli utilized Confidential Informant #1. (PSDF, No. 4) 2. whether said officers vouched for the reliability of Confidential Informant #1. (PSDF, No. 5) 3. the particular factors upon which said Officers based their opinions as to the reliability of Confidential Informant #1. (PSDF, No. 6) Freeman also argues that during his deposition, Detective Yee could not remember who the witnesses were who he listed on page 13 of his affidavit. (PSDF, No. 7) Yee did not author reports concerning the page 13 witnesses and could not affirmatively establish the existence of written reports. (PSDF, No. 8) Yee also never spoke to the page 13 witnesses or determined the reliability of page 13 witnesses. (PSDF, No. 9 — 10)

Detective Yee did not speak to any of the witness listed on page 15, lines 3-11, of his Affidavit. (PSDF, No. 11) Further, Detective Yee determined the reliability of the anonymous caller on page 15 of his affidavit by traveling to the Cooley Plaza Apartments and determining that Antoinette Hilliard's vehicle was parked at said location. (PSDF, No. 12)

Detective Yee did not write a report concerning said page 15 anonymous caller. (PSDF, No. 13) Detective Yee did not know the identity of the page 15 anonymous caller. (PSDF, No. 14) Detective Yee did not take any steps to independently corroborate the trustworthiness of the witness listed in his search warrant affidavit at page 15. (PSDF, No. 15)

Detective Yee's search warrant affidavit at page 16, relies upon an anonymous source, who Detective Yee did not speak to, nor did he write a report concerning this anonymous source's information. (PSDF, No. 19) Detective Yee did not corroborate the accuracy of the page 16 anonymous source's information. (PSDF, No. 20)

Detective Yee did not know the identity of the confidential informant #2 listed on page 16, line 330 of his affidavit. (PSDF, No. 21) Detective Yee did not "handle" Confidential Informant #2. (PSDF, No. 22) Detective Yee did not know which officer handled Confidential Informant #2. (PSDF, No. 23) Detective Yee did not know who determined that confidential informant #2 was trustworthy. (PSDF, No. 24) Detective Yee surmised that since the information turned out to be true that confidential informant #2 would be deemed trustworthy. (PSDF, No. 25)

Detective Yee knew the identity of the confidential informant #3 listed on page 17 line 357 of his affidavit. (PSDF, No. 26) Detective Yee did not handle confidential informant #3, prior to authorizing the search warrant affidavit. (PSDF, No. 27) Detective Yee determined that confidential informant #3's trustworthiness and reliability were established based upon what other detectives told him. (PSDF, No. 28) Detective Yee did not know "specifically" how confidential informant #3 was deemed reliable by those other officers. (PSDF, No. 29) Detective Yee indicated that confidential informant #3 had not been paid for any information contained in the search warrant affidavit. (PSDF, No. 30)

Detective Yee indicated that confidential informant #3 had been paid in the past by other detectives. (PSDF, No. 31) Detective Yee stated that the services of confidential informants were utilized in coming to the conclusion that Darryl Hilliard had committed assault with a deadly weapon. (PSDF, No. 34)

Detective Yee indicates that the reliability of the informants is contained within the "sealed" Hobbs portion of the search warrant affidavit. (PSDF, No. 35) Detective Yee did not include his allegation that D. Hilliard went into Freeman's house, within his search warrant affidavit. (PSDF, No. 36)

ii. Monique Thomas

Detective Yee admitted that he did not take Monique Thomas's complaint and that he knew that Detective Andreas and Torres were unable to corroborate her information. (PSDF, No. 16 and No. 53) Detective Yee knew that there were inconsistencies in Monique Thomas' statements and further knew that Detective Andrews' and Torres' were unable to corroborate her information. (PSDF, No. 17)

Detective Yee knew that Mr. Green, another potential victim in the alleged attempted shooting of Monique Thomas, gave a different account of said alleged shooting, inconsistent with Ms. Thomas's account. (PSDF, No. 18)

2. Detective Yee's Investigation

i. History of the Investigation

Freeman does not dispute most of the facts in the record regarding the extensive incidents of violence between Strother Boys and Garret Street gangs. However Freeman disputes Defendants contention that on February 13, 2003 Monique Thomas ("Thomas"), the girlfriend of Garrett Street gang member Monette Solomon, was allegedly shot near Martin Luther King Jr. Boulevard and Florence Avenues. (DSUF, No. 18) Freeman disputes the fact that Thomas was the passenger in a vehicle driven by Robin Green when they were shot at by Strother Boys gang members Daniel Pena and Darryl Hilliard. ( Id.) Freeman also disputes that Thomas related that Pena leaned out of the passenger's side of Hilliard's light blue Ford Mustang that had pulled alongside of her, that Pena started shooting at them with an assault-type rifle, striking the vehicle in which she was traveling in, and that Thomas recognized Pena and Hilliard on sight. ( Id.)

ii. Detective Yee's Conclusions of the Investigation — Confidential Facts

Freeman disputes that Detective Yee's Affidavit was also supported by a "Confidential Attachment" which set forth additional information he considered in making his determination that there was probable cause to request the issuance of the Search Warrant. (DSUF, No. 52) Freeman also disputes that the information within the "Confidential Attachment" was provided to Detective Yee by confidential informant(s) and could not be included in the Affidavit. (DSUF, No. 53)

Detective Yee confirmed that Darryl Hilliard was only charged for Health and Safety Code 11351.5, Possession of Marijuana for Sale, and committing a crime while out on bail. (PSDF, No. 32) According to Freeman, Detective Yee stated there was no probable cause to believe Darryl Hilliard had committed murder, attempted murder, or conspiracy to commit murder. (PSDF, No. 33.)

iii. Facts Regarding Detective Yee's Request for a Search Warrant

Freeman disputes the following facts set forth in Defendants' statement of undisputed facts:

1. That Detective Yee requested a search warrant for ten (10) residences in Fresno County of suspects or affiliates who, based upon his investigation, he believed were in possession of weapons and gang indicia that had been used in the gang related shootings he was investigating. (DSUF, No. 56)

2. that surveillance conducted of Darryl Hilliard, determined an association between him and these ten residences. (DSUF, No. 57) that Yee also believed there was a strong possibility that said property was located at the locations set forth in Attachment "A" to the Affidavit. (DSUF, No. 61)

3. that the Search Warrant was considered a "high risk" Search Warrant because it involved the search for numerous weapons, mostly firearms and gang indicia, suspected to have been used in numerous gang-related shootings between rival criminal street gangs; and which were believed to be located at those residences associated with gang members. (DSUF, No. 62)

4. that all of the information Detective Yee presented to Judge Jones was accurate and truthful and at no time did he mislead or make any misrepresentations to him. (DSUF, No. 65)

5. that Detective Yee had a good faith belief that there was sufficient probable cause to justify the issuance of the Search Warrant for the search of the ten residences. (DSUF, NO. 66)

6. that Yee also had a good faith belief that the warrant was not overbroad.

7. that Detective Yee had no reason to believe that the warrant was unlawful or otherwise invalid in any respect and signed it under penalty of perjury. (DSUF, NO. 67)

8. that Detective Yee disclosed to Judge Jones information pertaining to the reliability of the confidential informant(s). (DSUF, NO. 68)

iv. Disputed Facts Relating to Freeman's Residence and It's Proximity to Gang Activity

Freeman disputes Defendants contention that her granddaughter, Shatera Dillingham, had lived with her for a significant period of time before the search. (DSUF, No. 87) Freeman also disputes that Ms. Dillingham was the girlfriend of suspect, Darryl Hilliard and the mother of his child; and Plaintiff provided care and babysitting for Darryl Hilliard's child on a daily basis. It is also disputed that on the day of the search, Ms. Dillingham drove by her grandmother's home, saw law enforcement officers there, but did not stop, instead, kept driving because she got nervous. (DSUF, No. 88)

Freeman further disputes the following:

1. Shatera Dillingham was observed with Darryl Hilliard more than half the time he was under surveillance. (DSUF, No. 90)

2. During this surveillance, Hilliard was observed being dropped off at the Plaintiff's residence by his mother, and seen walking to her front door. (DSUF, No. 91)

3. Detectives no longer saw Hilliard and determined he went inside Plaintiff's residence. (DSUF, No. 94)

4. His girlfriend, Shatera Dillingham, was driving Plaintiff's vehicle. (DSUF, No. 96)

5. Hilliard exited his mother's residence and got into Plaintiff's vehicle with his girlfriend, Shatera Dillingham, driving. (DSUF, No. 100)

6. Darryl Hillard later left his mother's residence as a passenger in Plaintiff's car. (DSUF, No. 102)

7. Later that same day, Hilliard was driven in Plaintiff's car to a residence on Tuolomne street. (DSUF, No. 103)

8. On February 2, 2004 at approximately 4:28 p.m., Hilliard was driven to the Plaintiff's residence, where he exited the vehicle and walked inside the house and remained there briefly. (DSUF, No. 104)

9. Detective Yee determined that it was likely that Darryl Hilliard possessed weapons used in the rival gang shootings and other criminal indicia. Hilliard could have circulated them among his fellow gang members including his girlfriend, Shatera Dillingham. (DSUF, No. 107)

10. Plaintiff's home had been searched on at least three occasions prior to this incident. (DSUF, No. 246)

According to Freeman, Shatera Dillingham was no longer the girlfriend of Darryl Hilliard on February 2, 2004. (PSDF, No. 54)

3. Facts Relevant to the Service of the Search Warrant

i. Search of Freeman's Residence

Freeman disputes the following facts:

1. The officers were unable to see through the locked security door and could not tell whether or not the interior door was opened. (DSUF, No. 129)

2. Officer Garrison knocked loudly on the door and shouted words similar to, "Police Department, Search Warrant, Open the door!" several times. (DSUF, No. 132)

3. Again, Officer Garrison shouted, "Police Department, Search Warrant, Open the door!" (DSUF, No. 135)

4. Defendants served the Search Warrant lawfully, professionally and ethically. (DSUF, No. 158)

5. All the officers understood that Darryl Hilliard or any of his fellow gang members or affiliates could be at Plaintiff's residence and possibly armed. (DSUF, No. 224)

6. Given the totality of the available information, including two independent civilian witnesses, Defendants' Police Practices Expert, Joseph Callanan agrees that these officers complied with standard police procedures in their approach to the Plaintiff's residence and in their verbal announcements attempting to identify themselves, establish the reason for their presences, and demand entry. From a law enforcement perspective, the described police procedures fully comport with professional training based on both federal and state guidelines. (DSUF, No. 227)

On February 2, 2004, Shatera Dillingham was not a resident of 139 W. Eden Ave. (PSDF, No. 50)

ii. Officer Garrison's Entry

The following facts are also disputed:

1. Within seconds and a foot or two within the front doorway, Officer Garrison felt someone (Plaintiff) grab his right arm, which was holding his gun. (DSUF, No. 143)

2. Officer Higgins, who was directly behind Officer Garrison, and who was standing in the doorframe, saw Plaintiff grab Officer Garrison's gun arm. (DSUF, No. 144)

3. Deputy Capriola, who was directly behind Officer Higgins and who was just outside the doorframe, also saw Plaintiff grab Officer Garrison's gun arm. (DSUF, No. 145)

4. Upon feeling someone grab his arm, Officer Garrison's immediate reaction was to use his left hand and push away the threat, which he perceived to be someone attempting to disarm him. (DSUF, No. 149)

5. As Officer Garrison pushed Plaintiff away from him, she continued to grab onto his arm, thereby causing the two to lose balance, entangle their feet, and Plaintiff fell over the arm of a chair then to the ground. (DSUF, No. 151)

6. Officer Garrison struggled with keeping his balance but was able to stay on his feet and he proceeded down the hall toward the back of the house to clear the residence. (DSUF, No. 152)

7. At the moment Officer Garrison felt the physical contact on his arm, he had no idea whether this person was the suspect, a fellow gang member or an innocent bystander. (DSUF, No. 225)

(a) Freeman's Allegations

Freeman testified that the Officers did not knock on the front door, but instead, she saw them through a window and went to open the door. (DSUF, No. 213) According to Freeman after Plaintiff was knocked onto the floor, Officer Garrison told her to get up or he would shoot her. (DSUF, No. 214 — 215)

Freeman denied having any dealings with gang members. (PSDF, No. 47) Further, Freeman was visibly upset. (PSDF, No. 48) According to Freeman upon entry Garrison shouted to Freeman, "Get down on the ground or I'll shoot you!" (PSDF, No. 51) As a direct result of the excessive force applied by the Defendants, Freeman alleges that she suffered severe physical and emotional injuries. (PSDF, No. 55)

iii. Deputy Capriola's Entry

Freeman disputes that as Deputy Capriola stood just outside the doorway, he saw a hand from his right peripheral vision, reach out and grab Officer Garrison's right, gun arm. (DSUF, No. 170) Freeman also disputes that Deputy Capriola immediately perceived this as a threat and thought this person was grabbing for Officer Garrison's handgun. (DSUF, No. 171)

iv. Sergeant Barrimond

Freeman disputes the following facts:

1. When Sergeant Barrimond reached Plaintiff's front door, he positioned himself underneath the front window and waited while Officer Garrison knocked loudly on the metal, security door and gave the appropriate notice. (DSUF, No. 192)

2. Barrimond indicated hearing a female voice from inside 139 W. Eden when they started knocking. (PSDF, No. 37)

3. Barrimond recalled the voice as saying either "I'm coming" or "who is it?" (PSDF, No. 38)

4. Barrimond noted that the team had a ram and a pick to force entry if necessary. (PSDF, No. 39)

5. Barrimond gave the command "let's go" as soon as he saw Ms. Freeman's door knob turn. (PSDF, No. 40)

6. Barrimond lost sight of the first member of the entry team for seconds. (PSDF, No. 41)

7. Barrimond confirmed that all members of the entry team had their weapons drawn upon entry. (PSDF, No. 42)

8. Right after the point of entry, Barrimond did not notice Freeman and he didn't really pay attention to her. (PSDF, No. 43)

9. Upon entry, Barrimond saw and heard little children crying. (PSDF, No. 44)

10. Barrimond entered the house yelling at people to get down on the ground. (PSDF, No. 45)

11. Barrimond was unable to see Freeman upon first entry. (PSDF, No. 49)

4. Oversight and Training of Fresno Police Officers

Freeman disputes the following with respect to the oversight and training of police officers:

1. Officers employed with the Fresno Police Department are given training over and above that required by POST, (Peace Officer Standards and Training) the commission which regulates training for law enforcement officers in California. (DSUF, No. 229)

2. The Fresno Police Department had training units that ensured that the officers employed by the Department received training in compliance with POST. (DSUF, No. 230)

3. The training provided to officers employed by the Department meets or exceeds POST guidelines. (DSUF, No. 231)

4. Prior to February 19, 2004, the Fresno Police Department provided training to all their officers including those assigned to the M.A.G.E.C. Unit receive training on topics, including but not limited to: (1) the appropriate means and manner of conducting a search and seizure, in light of the totality of the circumstances faced by the officers; (2) proper use of force; (3) proper investigation and acquisition of search warrants. (DSUF, No. 232)

5. New police officer recruits are required go through a field training program and are required to complete 24 hours of POST training every 24 months. They also undergo a rigorous sixteen week training program which includes training on the appropriate use of force, including lethal force. (DSUF, No. 233)

6. Officers are also provided training in the use of force, including lectures and scenario-based performances. The Fresno Police Department's policy regarding the use of force is part of the instruction given in any class in which the use of force is reviewed. (DSUF, No. 234)

7. Plaintiff's retained police procedural matters expert, Roger Clark, has expressed his opinion in this case, the training provided by Fresno Police Department to its police officers is consistent with POST mandates. (DSUF, No. 235)

8. At all times relevant to this lawsuit, it has been the policy of the Fresno Police Department to conduct thorough internal investigations into allegations of misconduct by employees of the Department. (DSUF, No. 238)

9. It has also been the policy of the Fresno Police Department to take sufficient corrective action to prevent their employees from committing constitutional violations, or any violations of state or federal law. (DSUF, No. 239)

10. At no time relevant to this lawsuit has the Fresno Police Department had any policies, practices or customs of the following: (1) tolerating the use of excessive or unjustified force; (2) allowing constitutional violations by encouraging unlawful police activity, withholding or concealing material information from a search warrant; (3) performing pretextual investigations that vindicate and ratify an officer's misconduct; (4) taking insufficient corrective actions to prevent alleged patterns of constitutional violations from continuing; (5) delegation of obligations to manage, supervise, train and control officers; and/or (6) avoiding proper public oversight of the actions of officers. (DSUF, No. 240)

11. The hiring process for new recruits with the Fresno Police Department includes, among other matters, obtaining a background check and a psychological evaluation of the applicant prior to hiring. The applicant's propensity toward untruthfulness is tested and used as a basis of exclusion of potential applicants. (DSUF, No. 241)

12. New recruits are required to undergo a rigorous sixteen week training program which includes training on the appropriate use of force. (DSUF, No. 242)

IV. STANDARD OF REVIEW

A. Summary Judgment Standard

Summary judgment is warranted only "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." Fed.R.Civ.P. 56(c); California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Therefore, to defeat a motion for summary judgment, the non-moving party must show (1) that a genuine factual issue exists and (2) that this factual issue is material. Id. A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56 (1986). Facts are "material" if they "might affect the outcome of the suit under the governing law." Campbell, 138 F.3d at 782 (quoting Anderson, 477 U.S. at 248).

The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrell, 477 U.S. 317, 322-23 (1986). The more implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment. See United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir. 1996). Nevertheless, the evidence must be viewed in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. A court's role on summary judgment is not to weigh evidence or resolve issues; rather, it is to determine whether there is a genuine issue for trial. See Abdul-Jabbar v. G.M. Corp., 85 F.3d 407, 410 (9th Cir. 1996).

B. Summary Judgment in a Qualified Immunity Case

In this case, Defendants assert the defense of qualified immunity on behalf of all the individual defendants. Deciding qualified immunity entails a two-step analysis. First, a court must ask whether a constitutional violation occurred at all. If the answer to this question is yes, the court must then inquire whether the right violated was "clearly established" by asking whether a reasonable officer could believe that the defendant's actions were lawful. See Saucier v. Katz, 533 U.S. 194, 201 (2001).

The traditional summary judgment approach should be used in analyzing the first step of the Saucier analysis:

A court required to rule upon the qualified immunity issue must consider, then, this threshold question: 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? Where the facts are disputed, their resolution and determinations of credibility are manifestly the province of a jury.

Wall v. County of Orange, 364 F.3d 1107, 1110-1111 (9th Cir. 2004) (internal citations and quotations omitted). In the second step, the court must ask whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted. Although this inquiry is primarily a legal one, where the reasonableness of the officer's belief that his conduct was lawful "depends on the resolution of disputed issues of fact . . . summary judgment is not appropriate." Wilkins v. City of Oakland, 364 F.3d 949, 1110-11 (9th. Cir. 2003) (citing Saucier, 533 U.S. at 216 (Ginsburg J., concurring)).

C. Civil Rights Claims Under 42 U.S.C. section 1983

"Section 1983 provides for liability against any person acting under color of law who deprives another `of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (quoting 42 U.S.C. § 1983). "The rights guaranteed by section 1983 are `liberally and beneficently construed.'" Id. (quoting Dennis v. Higgins, 498 U.S. 439, 443 (1991). Pursuant to 42 U.S.C. § 1983, Plaintiff may bring a civil action for deprivation of rights under the following circumstances:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

D. Fourth Amendment

Under the Fourth Amendment the right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated. U.S. Const. amend. IV.; Menotti v. City of Seattle, 409 F. 3d 1113, 1152 (9th Cir. 2005). The Supreme Court has held that "in the ordinary case, seizures of personal property are unreasonable within the meaning of the Fourth Amendment, without more, unless accomplished pursuant to a judicial warrant issued by a neutral and detached magistrate after finding probable cause. Id. However, when faced with special law enforcement needs, the Supreme Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable. Id.

E. The Monell Doctrine

Local governments⁶ are "persons" subject to suit for "constitutional tort[s]" under 42 U.S.C. § 1983.⁷ Haugen v. Brosseau, 339 F.3d 857, 874 (9th Cir. 2003) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 n. 55 (1978)) (also finding the fact that "local governments can be sued under § 1983 necessarily decides that local government officials sued in their official capacities are "persons" under § 1983 in those cases in which, as here, a local government would be suable in its own name"). "[T]he legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies." Id. at 690. "Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers . . . [or for] deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decision making channels."⁸ Id. 690-91.

6 Although Monell dealt with a municipal government's liability under § 1983, the standard there announced was more broadly framed in terms of "a local government." Brass v. County of L.A., 328 F.3d 1192, 1198 (9th Cir. 2003).

7 "There is certainly no constitutional impediment to municipal liability. `The Tenth Amendment's reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.'" Monell, 436 U.S. 691 (quoting Milliken v. Bradley, 433 U.S. 267, 291 (1977)). There is no "basis for concluding that the Eleventh Amendment is a bar to municipal liability." Id. (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Lincoln County v. Luning, 133 U.S. 529, 530 (1890)).

8 In Brass v. County of Los Angeles, the Ninth Circuit followed evolution of municipal liability from Monroe to Monell:

In Monroe v. Pape, 365 U.S. 167 [ ] (1961), the Supreme Court held that municipal corporations were not subject to liability under § 1983. In Monell, 436 U.S. at 665, the Court, based upon its "fresh" review of the legislative history of the Civil Rights Act of 1871 (the statutory predecessor to § 1983), "overrule[d] Monroe v. Pape . . . insofar as it holds that local governments are wholly immune from suit under § 1983." Id. at 663 (footnote omitted). The Court, however, upheld Monroe "insofar as it holds that the doctrine of respondeat superior is not a basis for rendering municipalities liable under § 1983 for the constitutional torts of their employees." Id. at 663 n. 7. It stated that "the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." Id. at 691.

328 F.3d at 1198.

A local government's liability is limited. Although a local government can be held liable for its official policies or customs, it will not be held liable for an employee's actions outside of the scope of these policies or customs. "[T]he language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, . . . a municipality cannot be held liable solely because it employs a tortfeasor, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell, 436 U.S. at 691. The statute's "language plainly imposes liability on a government that, under color of some official policy, [that] `causes' an employee to violate another's constitutional rights." Id. at 692. Therefore, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its law-makers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694.

F. Suits Against Government Officials: Official Capacity and Individual Capacity Suits

"1983 claims against government officials in their official capacities are really suits against the governmental employer because the employer must pay any damages awarded." Butler v. Elle, 281 F.3d 1014, 1023 (9th Cir. 2002) (citing Ky. v. Graham, 473 U.S. 159, 165-66 (1985)); see also Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir. 1997) (finding that "a suit against a state official in his official capacity is no different from a suit against the [official's office or the] State itself") (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71 (1989). In such suits, the real party in interest is the entity for which the official works. Hafer v. Melo, 502 U.S. 21, 25 (1991). A federal action for monetary damages against an individual state official acting in his official capacity is barred by the Eleventh Amendment in the same way that an action against a State is barred. Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir. 1997). "As the Supreme Court has stated, `official-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 524 n. 3 (9th Cir. 1999) (quoting Graham, 473 U.S. at 165). "`As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.'" Ruvalcaba, 167 F.3d at 524 n. 3 (quoting Graham, 473 U.S. at 166.)

By contrast, "[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions [taken] under color of state law." Dittman v. California, 191 F.3d 1020, 1027 (9th Cir. 1999) ( citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)) (internal quotations omitted). To establish personal liability in a § 1983 or § 1985 action, it is enough to show that the official, "acting under color of state law, caused the deprivation of a federal right." Hafer, 502 U.S. at 25 (internal quotations omitted). Public officials sued in their personal capacity may assert personal liability defenses, such as qualified immunity. Dittman, 191 F.3d at 1027.

V. DISCUSSION

A. Federal Claims

1. Qualified Immunity of the Individual Defendant Officers

Defendants assert qualified immunity for the individual officers in this case. Qualified immunity grows out of the policy concern that few individuals would enter public service if they risked personal liability for their official decisions. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). The immunity protects "all but the plainly incompetent or those who knowingly violate the law," Hunter v. Bryant, 502 U.S. 224, 228 (1991), and "spare[s] a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit." Siegert v. Gilley, 500 U.S. 226, 232 (1991). Qualified immunity is not a defense on the merits; it is an "entitlement not to stand trial or face the burdens of litigation" that may be overcome only by a showing that (1) a constitutional right was in fact violated and (2) no reasonable officer could believe defendant's actions were lawful in the context of fact-specific, analogous precedents. Saucier v. Katz, 533 U.S. 194, 200-202 (2001).

Here, Freeman alleges that Defendant Officers violated her Fourth Amendment right based on an allegedly unreasonable search and seizure of her home. Freeman claims the search and seizure was illegal because (1) Detective Yee's affidavit in support of the warrant contained material misrepresentations and failed to establish probable cause and (2) Defendants Garrison, Capriola, Barrimond, Hollins, Perez, and Simons "acted unreasonably" and with excessive force⁹ in their conduct in executing said warrant and detaining plaintiff.¹⁰ Because it is undisputed that Detective Yee was not present during the execution of the search warrant, Freeman's claims require a different qualified immunity inquiry for Detective Yee than the remaining Defendant Officers.

9 Plaintiff offers a litany of facts that would support an excessive force claim. However, Plaintiff has not asserted a Fourth Amendment violation based on excessive force. Such facts are still relevant to the reasonableness of executing the search warrant.

10 In their motion papers the parties make arguments in reference to alleged excessive use of force. However, Freeman does not bring an excessive use of force claim. For the purposes of this motion the inquiry as to the individual officers' inquiry is limited to their actions in reliance on the executed search warrant.

i. Detective Yee

Freeman can only survive summary judgment on a Yee's defense of qualified immunity if she can establish both (1) a substantial showing of a deliberate falsehood or reckless disregard by Yee and (2) that but for the dishonestly included or omitted information, the magistrate would not have issued the warrant. Butler v. Elle, 281 F.3d 1014, (9th Cir. 2002); Hervey v. Estes, 65 F. 3d 784, 789 (9th Cir. 1995) Put another way, Freeman must establish that the remaining information in the affidavit is insufficient to establish probable cause. Hervey, 65 F. 3d at 789.

(a) Freeman Fails to Show a Substantial Showing by Yee's of Deliberate Falsehood or Reckless Disregard

If an officer submitted an affidavit that contained statements he knew to be false or would have know to be false had he not recklessly disregarded the truth, he cannot be said to have acted in an objectively reasonable manner. Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002.)

Plaintiff argues that Yee had knowledge his affidavit contained false statements. According to Plaintiff, Yee did not take Monique Thomas' complaint and he knew that Detective Andreas and Torres were unable to corroborate her information. (PSUF, No. 53) Plaintiff argues that Yee knew that there were inconsistencies in Monique Thomas' statement. However, Plaintiff fails to establish how failure to corroborate witness testimony makes such testimony false or establishes Yee's deliberate falsehood.

In support of her arguments, Freeman disputes the fact that Detective Yee received credible information from reliable sources, including confidential informants, and continued to monitor the information provided to him from those informants. (DSUF, No. 4). Freeman also disputes that the twenty-four page statement of probable cause in support of the Search Warrant accurately described the one and a half year investigation arising out of the gang related shootings in Fresno and other criminal acts committed by members of the West Side Strother Boys and Garrett Street gangs. (DSUF, No. 6)

Freeman argues that Detective Yee's affidavit lacked adequate foundation for the reliability of any of the confidential and/or anonymous sources. (PSDF, No. 1) Freeman also argues that Detective Yee lacked personal corroboration information regarding the confidential/anonymous sources which had been deemed "reliable" by Officers other than Detective Yee.

Freeman offers no support in the form of affidavits, exhibits, or any other information or evidence to show that Yee did not receive credible information from reliable sources, including confidential informants or that his declaration was not made in good faith. Freeman disputes the accuracy of Yee's affidavit by arguing that:

1. Yee did not ensure the reliability of several confidential informants he used to gather his information

2. Yee did not know or speak to several of the confidential informants to determine the accuracy of the information they provided

3. There is no way of telling the reliability of these informants because that information is contained in the sealed portion of the affidavits

4. Detective Yee did not take Monique Thomas' complaint and knew that Detective Andreas and Detective Torres were unable to corroborate her information

Freeman further argues that, based on his investigation, Detective Yee was not reasonable in concluding the following:

1. That the ten residences searched were in possession of weapons and gang indicia that had been used in the gang related shootings he was investigating.

2. That surveillance conducted of Darryl Hilliard determined an association between him and the ten residences.

3. That there was a strong possibility that evidence of gang membership, firearms and ammunition would be found at these homes.

4. That the search warrant should be a "high risk" warrant because it involved the search for weapons, mostly firearms and gang indicia

5. That he had a good faith belief that there was sufficient probable cause to justify the issuance of the warrant, that the warrant was not overbroad, that the warrant was lawful, and that the informants used were reliable.

However, Freeman does not dispute that Yee knew that at the time the warrant was sought, a long history of violence existed between the Strother Boys and the Garret Street gangs and that these incidents were described in Yee's affidavit. Plaintiff admits that her residence is located in an area well known for criminal street gang activity and violence where most of the gang-related shootings in the southwest occur. Freeman also admits that Hilliard's mother dropped off Hilliard at her residence and drove away without him. Further, later that same day, after a court appearance at the Fresno County Courthouse, Hilliard was observed getting into Freeman's automobile. While Freeman disputes that her granddaughter, Shatera Dillingham lived with her for a significant period of time and that Shatera was still Hilliard's girlfriend at this point. Plaintiff does not dispute that Dillingham drove Hilliard to his mother's house at high speeds making quick turning movements as Hilliard leaned down in the front passenger seat to conceal himself. Plaintiff does not dispute that Hilliard was a suspected gang member.

Further, on February 2, 2004, after attending court Hilliard was observed driving Freeman's vehicle to various locations, where he made contact with several Strother Boy gang affiliates. Freeman admits that Hilliard's behavior while driving her car was consistent with that counter-surveillance activities of a person involved in dealing drugs. Further Freeman also does not dispute that it is common practice for gang members to keep their weaponry, stolen property, and other evidence of their crime involvement at their homes or "safe houses." Freeman does not dispute that a gang member will attempt to evade detection by the police by moving their property among associates, members, and girlfriends within their own gang.

Viewing the facts in dispute in Freeman's favor, the undisputed facts do not show that Yee's affidavit was based on deliberate falsehood or reckless disregard, because Yee had extensive knowledge of local West Fresno gang members and that his conclusions came as the result of a one and a half year investigation into gang violence between Strother Boys and Garret Street Gangs. The undisputed facts also show and Plaintiff cannot credibly deny that Hilliard is a violent gang member of the West Side Strother Boys; Hilliard had numerous contacts with Freeman's granddaughter Shatera, rode in Freeman's car; and was in Freeman's residence on more than one occasion prior to the search. Further, Freeman's objection to Yee's reliance on confidential informants and witnesses in no way establishes that Yee's affidavit was based on falsehood and misrepresentation to the court.

(b) Even if Freeman's Disputes As to the Confidential Informants and Witnesses Are Sufficient to Show Misrepresentations in the Affidavit, Such Misrepresentations Are Not So Material That the Warrant Would Not Have Been Issued

Even assuming arguendo the alleged failings in portions of Yee's declaration, it cannot be said that the search warrant would not have been issued but for the alleged misrepresentations by Yee obtained from reliance on confidential informants and witnesses. Freeman does not dispute that Yee observed Hilliard, a violent Strother Boy gang member was present in Plaintiff's, Hilliard's, house, drove around in her car; and had a relationship with Plaintiff's grandaughter. Where a law enforcement officer's observations support a reasonable belief that a parolee resides at a particular address, this provides a reasonable basis for a parole search. Motley v. Parks, 432 F.3d 1072, 1078 (9th Cir. 2005.) The undisputed facts show that Detective Yee's year and a half long investigation of the Strother Boys and Garret Street gang and Hilliard's involvement as described, was fully sufficient to establish the requisite probable cause for a search warrant.

Plaintiff cannot deny Hilliard was a violent gang member and convicted felon. On the basis of all the evidence known to Yee, he had a duty to seek a search warrant to lawfully endeavor to locate the suspected weapon used in a gang shooting. Summary judgment in favor of Defendant Yee is GRANTED.

ii. Defendant Officers' Reliance on the Search Warrant

To establish a Fourth Amendment violation by Defendants Garrison, Capriola, Barrimond, Hollins, Perez, and Simons Freeman must show they (1) unreasonably relied on the search warrant to conduct the search of her residence and, if so, (2) that no reasonable officer, confronting the same circumstances and with the same information, would have executed the warrant and made their entry into Freeman's home the same way. See Saucier, 533 U.S. at 202.

(a) Defendant Officers Were Not Unreasonable In Relying on a Valid Search Warrant to Conduct Their Search of Freeman's Home

A warrant must name the places to be searches and the items to be seized with reasonable precision. United States v. Mann, 389 F.3d 869, 877 (9th Cir. 2004). While a search warrant must describe items to be seized with particularity sufficient to prevent a general, exploratory rummaging in a person's belongings, it need only be reasonably specific rather than elaborately detailed. Id.

It is undisputed that the ten residences were listed and described with particularity in Attachment "A" to the Search Warrant Affidavit. (DSUF, No. 58) The items to be seized included evidence of gang membership, firearms and ammunition, and were specifically listed in Attachment "B" to the Search Warrant Affidavit. (DSUF, No. 59) Detective Yee had probable cause to believe, and did believe, that the property described in Attachment "B" to the Affidavit was lawfully seizable pursuant to California Penal Code Section 1524. (DSUF, No. 60)

It is also undisputed that on or about February 17, 2004, Detective Yee took the Search Warrant Affidavit and Confidential Attachment to the Honorable Judge Franklin P. Jones' chambers in the Fresno County Superior Court. (DSUF, No. 63) Detective Yee believed that Judge Jones was a detached and neutral magistrate at the time he presented the Search Warrant Affidavit to him. There is no evidence to the contrary. (DSUF, No. 64) Freeman does not dispute that Judge Jones signed the Search Warrant after thorough review on February 17, 2004 and authorized the search of the ten residences. (DSUF, No. 69) Judge Jones ordered the confidential portion of the Affidavit to be sealed, which was kept in the custody of the Fresno County Superior Court. (DSUF, No. 70) All the officers who participated in the service of this Search Warrant understood that this was a "high risk" warrant due to the nature of the underlying crimes being committed by the suspect Darryl Hilliard that included homicide, gang-related shootings, and other criminal activity. Freeman also does not dispute that the officers also understood they were searching for firearms, ammunition, gang indicia and other evidence of criminal activity. (DSUF, No. 223) Plaintiff had the right to obtain the confidential portion of the search warrant affidavit in discovery in this case and apparently failed to do so.

The search warrant in this case was not overbroad or insufficiently particular. Officers in this case reasonably relied on a search warrant issued by a detached and neutral magistrate.

(b) A Reasonable Officer Confronting the Same Circumstances and With the Same Information Would Have Executed the Search Warrant In the Same Manner

While Freeman does not bring an excessive force claim, she argues that police conduct was unreasonable in executing the warrant upon entry into her home when she was knocked on the floor.

(1) Undisputed Facts Regarding Officers' Briefing

It is undisputed that On the morning of February 19, 2004, all officers who were to participate in serving the Search Warrant, met at the M.A.G.E.C. headquarters for a briefing before the search. (DSUF, No. 114) Members of this team consisted primarily of Fresno County Sheriff Deputies, who included: Defendants Ian Barrimond, John Capriola, Jason Hollins, Robert Perez, and Andrew Simonson; as well as Fresno Police Officer Robert Garrison. During the briefing, Detective Yee provided all the officers with the following:

1. a background of his investigations

2. a history of the ongoing gang-related shootings

3. the nature of the Search Warrant and information regarding suspect Darryl Hilliard

4. a photograph of Darryl Hilliard

5. the locations to be searched

6. copies of the list of items authorized to be searched for and seized

7. and a copy of the Notice of Search Warrant that each team was to serve on the occupants of the residences

Detective Yee cautioned the officers that they were serving a "high risk" Search Warrant and to expect for Darryl Hilliard or his fellow gang members and/or associates, to be at any of the locations. He also cautioned that it was very likely that such individuals would be armed.

(2) Search of Freeman's Residence

It is also undisputed that all the officers who participated in the service of the Search Warrant understood that it was "high risk" due to the nature of the underlying crimes being committed by the suspect Darryl Hilliard. These crimes included homicide, gang related shootings, and other criminal activity. All the officers understood that Hilliard was a validated gang member whose fellow gang members and associates were very dangerous. Freeman does not dispute that the officers also understood they were searching for firearms, ammunition, gang indicia and other evidence of criminal activity.

It is undisputed that Plaintiff's front door is on a two step elevation from the ground. The house has barred windows on each side of the front door. (DSUF, No. 128) Officer Garrison did not stand in front of the door but positioned himself directly under the right front window on the ground level. (DSUF, No. 130) Officer Garrison had his department issued handgun in his right hand, and used his left hand to bang on the security door. (DSUF, No. 131) He checked and confirmed the security door was locked. (DSUF, No. 133)

Plaintiff, who was inside the residence, did not immediately open the door and the Officers on the stick were growing concerned that the team was taking too long to make entry. After a lengthy period of time, the interior door finally opened. (DSUF, No. 134) Plaintiff, responded, "what do you want?" (DSUF, No. 136) Officer Garrison continued to tell Plaintiff to open the door. (DSUF, No. 137) Plaintiff finally unlocked the security door at which point Officer Garrison grabbed the door handle and pulled the door open. (DSUF, No. 138) Officer Garrison stepped onto the front step and made entry into the home, he was telling Plaintiff to get down on the floor. (DSUF, No. 139) Plaintiff was verbally abusive to Officer Garrison as well as the Paramedics who arrived on scene. (DSUF, No. 243) There was no cover or concealment for any of the officers who were in that doorway. (DSUF, No. 146) The doorway is known as the "funnel of death". This is due to the high likelihood of officers being injured or killed in the doorway because of the backlighting. Therefore it is necessary to get through the doorway as quickly and safely as possible. This ensures the safety of the officers and the subjects of the residence. (DSUF, No. 148)

However, Freeman disputes the following facts related to the entry to her residence:

1. The officers were unable to see through the locked security door and could not tell whether or not the interior door was opened. (DSUF, No. 129)

2. Officer Garrison knocked loudly on the door and shouted words similar to, "Police Department, Search Warrant, Open the door!" several times. (DSUF, No. 132)

3. Again, Officer Garrison shouted, "Police Department, Search Warrant, Open the door!" (DSUF, No. 135)

4. Defendants served the Search Warrant lawfully, professionally and ethically. (DSUF, No. 158)

5. All the officers understood that Darryl Hilliard or any of his fellow gang members or affiliates could be at Plaintiff's residence and possibly armed. (DSUF, No. 224)

6. Given the totality of the available information, including two independent civilian witnesses, Defendants' Police Practices Expert, Joseph Callanan agrees that these officers complied with standard police procedures in their approach to the Plaintiff's residence and in their verbal announcements attempting to identify themselves, establish the reason for their presences, and demand entry. From a law enforcement perspective, the described police procedures fully comport with professional training based on both federal and state guidelines. (DSUF, No. 227)

These disputes raise the issue whether the search warrant was lawfully executed and whether Defendants' handling of Plaintiff effected an unlawful seizure under the Fourth Amendment.

(3) Sergeant Barrimond

It is undisputed that prior to embarking to the Plaintiff's residence, Sergeant Barrimond obtained, reviewed and familiarized himself with a copy of the entire Search Warrant Affidavit and attachments because he wanted to be comfortable with it since his team did not write the Search Warrant. (DSUF, No. 190)

When the team arrived at Plaintiff's residence, Sergeant Barrimond got in position about the fourth or fifth officer in the entry "stick." (DSUF, No. 191) Officer Garrison continued to knock, but no one from within the residence opened the door. (DSUF, No. 193) The team waited a reasonable period of time before receiving a response from within the residence, that Sergeant Barrimond almost ordered the team to force entry by using the breaching device. (DSUF, No. 194)

During the knocking Barrimond heard a voice from within the home. Finally the occupant of the home unlocked the door at which point Sergeant Barrimond gave the command, "let's go". (DSUF, No. 195) Sergeant Barrimond was concerned about the officers being in the "funnel of death" because they did not know whether there was anyone within the residence who had weapons. (DSUF, No. 196) The officers had a disadvantage because the sunlight was behind them, so they were backlit and the interior of Plaintiff's residence was somewhat dark. (DSUF, No. 197)

After making entry, Sergeant Barrimond'S eyes had to acclimate to the dimness of the house. (DSUF, No. 198) After the residence was secured, Sergeant Barrimond focused his attention on Plaintiff who was leaning on a chair, and the children who were on the couch in the living room. (DSUF, No. 199)

The facts raise a question whether Sergeant Barrimond was reasonable in his execution of the search warrant. He gave the command to enter based upon the belief that persons inside the residence were not responding. Plaintiff declares that she answered the door and there was no need for forced entry. The facts show that once inside the residence, Sergeant Barrimond helped Plaintiff get seated on a chair and explained to her why the officers were there and the purpose of their search. He advised her that the officers were looking for guns and gang-related items pursuant to a search warrant. Further, in an attempt to calm the children in the house, Sergeant Barrimond then began talking to the children and tried to make funny faces and small talk to make them comfortable. (DSUF, No. 202) He asked Plaintiff if the kids needed to be changed, fed or taken care of in any way. (DSUF, No. 203)

Plaintiff was not arrested or cited for any offense, nor was she ever subjected to a pat down search, placed in handcuffs or restrained in any other way. In fact, she was allowed to use the telephone to receive and make phone calls. (DSUF, No. 206)

Sergeant Barrimond asked Plaintiff if she was okay and whether or not she would like an ambulance called. (DSUF, No. 195) Plaintiff complained of hip pain but refused the offer to have an ambulance called. (DSUF, No. 207) Nevertheless, Sergeant Barrimond directed Officer Garrison to call an ambulance because he wanted to make sure Plaintiff was okay. When the paramedics arrived, Plaintiff refused treatment. (DSUF, No. 208)

Freeman however argues that Barrimond entered the house yelling at people to get on the ground and that he in fact did see Freeman upon first entry, contrary to what he claims.

If a trier of fact believes Plaintiff's version of the events, there was no need for forced entry to execute the search warrant.

Summary Judgment in favor of Sergeant Barrimond is DENIED.

(4) Officer Garrison

Freeman does not dispute that Officer Garrison immediately entered the residence but was not able to clearly see inside due to a brief eye adjustment caused by coming in from outside where it was bright and sunny, into a small, dimly lit room. It is further undisputed that given the amount of time between Officer Garrison entering the residence, feeling a perceived threat to his gun arm, combined with his inability to see clearly, and his men directly behind him moving quickly, he did not have sufficient time to evaluate the age and characteristics of this individual. Ordinarily, a search warrant entry should be very rapid, and although the momentum of the officers on this team was originally quick, the entry was much slower due Officer Garrison's encounter with Plaintiff.

After the home was secured, Officer Garrison returned to the living room area, which was the first time he realized Plaintiff was an elderly female. Officer Garrison inquired as to whether Plaintiff was okay and offered to call her an ambulance, but she refused. He asked her for her name, but she was uncooperative and verbally abusive towards him. Plaintiff does not dispute these facts. Officer Garrison did not want to aggravate the tension Plaintiff was already exhibiting, so, he limited his contact with her. (DSUF, No. 156) Officer Garrison as well as all the officers on this team deny that Officer Garrison ever threatened to shoot Plaintiff. (DSUF, No. 216)

However, there is a factual dispute as to whether Garrison felt someone grab his right arm which was holding his gun. Plaintiff says she did not. There is also dispute as to whether Garrison pushed plaintiff away from him and whether she continued to grab his arm, thereby causing the two to lose balance and entangle their feet. Lastly, there is a factual dispute as to whether Garrison yelled at Freeman to "Get down on the ground, or I'll shoot you!" The facts raise a dispute as to whether a reasonable officer confronting the same circumstances as Garrison, with the same information under the totality of circumstances, would have made forced entry into Freeman's home in the same manner. Whether Freeman's Fourth Amendment rights to be free of an unreasonable search and seizure and injured as a result, remain in dispute.

Summary Judgment in favor of Officer Garrison is DENIED.

(5) Deputy Capriola

It is undisputed that Deputy Capriola was the third officer who entered Plaintiff's residence, behind Officer Higgins, who was behind Officer Garrison. Once inside the door, Deputy Capriola observed Plaintiff laying partially on the ground and halfway on a chair that was situated a foot or two on the right, inside the door. (DSUF, No. 175) Plaintiff's legs were sticking out partially in the doorway but Deputy Capriola did not see how it was she landed in that position. (DSUF, No. 176) Deputy Capriola stepped over Plaintiff's feet and went left into the kitchen to secure that area. (DSUF, No. 177) After the house was determined to be secured, he walked over to the Plaintiff and assisted Sergeant Barrimond in helping Plaintiff to a couch. (DSUF, No. 178) Deputy Capriola had no further contact or communication with Plaintiff. (DSUF, No. 179)

Plaintiff fails to offer any evidence that Deputy Capriola's entry and conduct was unreasonable or that he acted unlawfully in any way, because he had no command responsibility, made no independent decision to force entry, and did not use force of any kind against anyone.

Summary judgment in favor of Deputy Capriola is GRANTED.

(6) Deputy Simpson

Plaintiff does not dispute that Deputy Simonson remained outside of the residence securing the perimeter until the entry team was done securing the interior of the residence. (DSUF, No. 163) Deputy Simonson then went inside the residence to assist in documenting evidence seized on an inventory log. (DSUF, No. 164) At no time while inside the residence did Deputy Simonson ever make any physical or verbal contact with the Plaintiff. (DSUF, No. 165) He was not present during the initial entry and did not observe the physical contact between Plaintiff and Officer Garrison. (DSUF, No. 166) Plaintiff fails to offer any evidence that Deputy Simpson's conduct was unreasonable.

Summary judgment in favor of Deputy Simpson is GRANTED.

(7) Deputy Hollins

Deputy Hollins was one of the last officers to enter Plaintiff's residence because he was assigned to the breaching device that is used to force entry when necessary. (DSUF, No. 180) The breaching device requires two hands to carry so he did not have a firearm in hand. (DSUF, No. 181) After securing the residence but prior to conducting the search, Deputy Hollins photographed the residence. He also photographed the items and locations from where they were seized. (DSUF, No. 186) He had no physical or verbal contact with the Plaintiff the entire duration of the search. (DSUF, No. 187). Plaintiff fails to offer any factual dispute as to any unlawful conduct by Deputy Hollins.

Summary Judgment in favor of Deputy Hollins is GRANTED.

B. Freeman's Monell claim against the City of Fresno

To prevail on a § 1983 complaint against a local government under Monell, a plaintiff must satisfy a three-part test: (1) The official(s) must have violated the plaintiff's constitutional rights;^1a (2) The violation must be a part of policy or custom and may not be an isolated incident; and (3) A nexus must link the specific policy or custom to the plaintiff's injury. See Monell, 436 U.S. at 690-92. There are three ways to show a policy or custom of a municipality:

1a "[A] public official is liable under § 1983 only if he causes the plaintiff to be subjected to deprivation of his constitutional rights.'" Brass, 328 F.3d at 1200 (quoting Baker v. McCollan, 443 U.S. 137, 142 (1979) (citation and internal quotation marks omitted)). "`Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." Brass, 328 F.3d at 1200 (quoting Baker, 443 U.S. at 146).

(1) By showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity;

(2) By showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision or

(3) By showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.

Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). A municipal policy may be inferred from widespread practices or evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded. Id.

Plaintiff argues that Defendants' alleged constitutional violations were according to official or tacitly approved policy, practice and custom of the City of Fresno. Plaintiff further argues that Defendants City of Fresno negligently hired, trained, staffed, and supervised Defendant officers by failing to adequately and properly supervise, control, and discipline them for violating her Fourth Amendment rights. However, Plaintiff has not introduced evidence creating a material issue of fact as to whether the Defendant officers were acting pursuant to a municipal policy or custom. Plaintiff disputes a number of facts regarding the training requirements that the Police Department requires its officers to undergo. Freeman disputes the following facts:

1. Officers employed with the Fresno Police Department are given training over and above that required by POST, (Peace Officer Standards and Training) the commission which regulates training for law enforcement officers in California. (DSUF, No. 229)

2. The Fresno Police Department had training units that ensured that the officers employed by the Department received training in compliance with POST. (DSUF, No. 230)

3. The training provided to officers employed by the Department meets or exceeds POST guidelines. (DSUF, No. 231)

4. Prior to February 19, 2004, the Fresno Police Department provided training to all their officers including those assigned to the M.A.G.E.C. Unit receive training on topics, including but not limited to: (1) the appropriate means and manner of conducting a search and seizure, in light of the totality of the circumstances faced by the officers; (2) proper use of force; (3) proper investigation and acquisition of search warrants. (DSUF, No. 232)

5. New police officer recruits are required go through a field training program and are required to complete 24 hours of POST training every 24 months. They also undergo a rigorous sixteen week training program which includes training on the appropriate use of force, including lethal force. (DSUF, No. 233)

6. Officers are also provided training in the use of force, including lectures and scenario-based performances. The Fresno Police Department's policy regarding the use of force is part of the instruction given in any class in which the use of force is reviewed. (DSUF, No. 234)

7. Plaintiff's retained police procedural matters expert, Roger Clark, has expressed his opinion in this case, the training provided by Fresno Police Department to its police officers is consistent with POST mandates. (DSUF, No. 235)

8. At all times relevant to this lawsuit, it has been the policy of the Fresno Police Department to conduct thorough internal investigations into allegations of misconduct by employees of the Department. (DSUF, No. 238)

9. It has also been the policy of the Fresno Police Department to take sufficient corrective action to prevent their employees from committing constitutional violations, or any violations of state or federal law. (DSUF, No. 239)

10. At no time relevant to this lawsuit has the Fresno Police Department had any policies, practices or customs of the following: (1) tolerating the use of excessive or unjustified force; (2) allowing constitutional violations by encouraging unlawful police activity, withholding or concealing material information from a search warrant; (3) performing pretextual investigations that vindicate and ratify an officer's misconduct; (4) taking insufficient corrective actions to prevent alleged patterns of constitutional violations from continuing; (5) delegation of obligations to manage, supervise, train and control officers; and/or (6) avoiding proper public oversight of the actions of officers. (DSUF, No. 240)

11. The hiring process for new recruits with the Fresno Police Department includes, among other matters, obtaining a background check and a psychological evaluation of the applicant prior to hiring. The applicant's propensity toward untruthfulness is tested and used as a basis of exclusion of potential applicants. (DSUF, No. 241)

12. New recruits are required to undergo a rigorous sixteen week training program which includes training on the appropriate use of force. (DSUF, No. 242)

Plaintiff does not offer evidence to create factual disputes in this case to sustain Freeman's Fourth Amendment claim. Freeman merely denies that there was no policy or custom in place tolerating the use of excessive force. Freeman has not established by any evidence that any conduct against her person by any officer resulted from any Monell policy or pattern and practice. To the contrary, Plaintiff's expert agreed that Fresno City Police Officer training meets or exceeds P.O.S.T. standards. Freeman has no evidence that any alleged of rights violation was the product of a pattern, practice, or policy of the City of Fresno. Plaintiff has submitted no affidavits or testimony that establishes any disputed issues of fact that her alleged injuries were the result of a longstanding practice or custom by the City of Fresno to hire and keep "rogue cops" or failure to train its officers.

Based on the totality of the record, and viewing the evidence in the light most favorable to Plaintiff, there are no material issues concerning the adequacy of training, hiring, and supervisory measures of the City of Fresno in the administration of its Police department. Nor is there evidence that the City is responsible for the training and supervision of M.A.G.E.C. or that any M.A.G.E.C. practice or tactic violates the law or any P.O.S.T. standard.

Defendants' motion for summary judgment as to Freeman's Monell claim against the City of Fresno is GRANTED.

C. State Law Claims Against Garrison, Yee, and City of Fresno

1. Supplemental Jurisdiction Under 1367(a)

Title 28 U.S.C. section 1367(a) provides in pertinent part: "In any civil action of which the district courts have original jurisdiction, the district court shall have supplemental jurisdiction over all other claims that are so related to the claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."

Freeman alleges a § 1983 claim for Fourth Amendment violations. Freeman's state law claims invoke supplemental jurisdiction and arise from the same facts in controversy in her § 1983 claim.

2. California Tort Claims Act

In California, a person making a claim against a public entity or a public employee must present such a claim in writing to the clerk, auditor or secretary of the local public entity within six months after the accrual of the cause of action. Cal. Gov. Code § 911.2.; see also Javor v. Taggart, 98 Cal. App. 4th 795, 804 (Cal.Ct.App. 2002) (submission of a claim to a public entity pursuant to the California Tort Claims Act is a condition precedent to a civil action against the state or its employees and failure to present the claim bars the action.) A person may not maintain a cause of action against a public entity or public employee without having first presented a claim as required by California Statute. Cal. Gov. Code 945.4. Cal. Gov. Code section 954.6 requires that a claimant file a civil action within six months after the public agency issues its decision. Javor, 98 Cal. App. 4th at 804. Defendants concede that Plaintiff's claim was timely filed.

3. California Civil Code § 43 claims

California Civil Code § 43 states in relevant part, "Besides the personal rights mentioned or recognized in the Government Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm from personal insult, from defamation, and from injury to his personal relations."

There are no issues of disputed fact showing that Freeman was subjected to bodily restraint, harm from personal insult, defamation, or injury to her personal relations.

Summary Judgment is GRANTED in favor of Defendants on Plaintiff's Civil Code § 43 claims.

4. California Civil Code § 52.1

Cal. Civ. Code § 52 sets forth a damages remedy for civil rights violations under California Law. Koebke v. Bernardo Heights Country Club, 36 Cal. 4th 824, 836 (Cal. 2004). Civ. Code § 52.1(a) provides that if a person interferes, or attempts to interfere, by threats, intimidation, or coercion, with the exercise or enjoyment of the constitutional or statutory rights of an individual or individuals, a civil action may be brought for equitable or injunctive relief. Venegas v. County of Los Angeles, 32 Cal. 4th 820, 841 (Cal. 2004). Cal. Civ. Code § 52.1(b) allows any individual so interfered with to sue for damages. Id. Cal. Civ. Code § 52.1(g) states that an action brought under § 52.1 is independent of any other action, remedy or procedure that may be available to an aggrieved individual under any other provision of law. Id. To state a claim under California Civil Code § 52.1, Plaintiffs must allege that the interference with the plaintiff's rights by means of threats, intimidation, or coercion was "because of" their membership in a protected classification. Nelson v. City of Irvine, 143 F.3d 1196, 1206 (9th Cir. 1998).

Here, although Plaintiff is African-American, she does not allege that Defendants interfered with her legal rights due to her particular membership in a protected class.

Summary judgment is GRANTED in favor of Defendants on Plaintiff's California Civil Code § 52.1 claim.

5. California Civil Code § 51.7

California Civil Code § 51.7(a) states:

"All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b)^1b or (e)^2a of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics."

1b Cal. Civ. Code § 51(b) provides, "All persons within the jurisdiction of this state are free and equal no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."

2a Cal. Civ. Code § 51(e) provides definitions for the terms "Disability," "Medical condition," "Religion," "Sex," and "Sexual Orientation."

California Civil Code § 51.7 is a separate and independent enactment referred to in § 52.1. California Civil Code § 52.1(b) makes persons who violate § 51.7 liable for actual and exemplary damages.

Plaintiff does not bring claims against Defendants on a theory that she suffered a constitutional deprivation because she is a member of a protected class.

Summary Judgment is GRANTED in favor of Defendants on Plaintiff's California Civil Code § 51.7 claim.

6. Assault and Battery

To establish civil assault, plaintiff would need to establish that (1) the officers threatened to touch her in a harmful or offensive manner (2) it reasonably appeared to her that they were about to carry out the threat (3) she did not consent to the conduct (4) she was harmed and (5) the officers' conduct was a substantial factor in causing the harm. CAL. PEN. CODE § 240; Tekle v. United States, 457 F.3d 1088, 33 (9th Cir. 2006)

A civil battery claim requires that plaintiff show 1) defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person, 2) plaintiff did not consent to the contact, and 3) the harmful or offensive contact caused injury, damage, loss or harm to the plaintiff. CAL PENAL CODE § 242; Tekle 457 F.3d at 33; Piedra v. Dugan, 123 Cal. App. 4th 1483, 1495 (Cal.Ct.App. 2004) (internal quotations omitted). A battery is any intentional, unlawful, and harmful contact by one person with the person of another. Id. A harmful contact, intentionally done is the essence of a battery. Id. A contact is unlawful if it is unconsented to. Id.

The court in Tekle found that Plaintiff in that case raised genuine issues of material facts regarding officers' engaging in assault and battery. Tekle 457 F.3d at 35. According to Plaintiff's deposition in that case, an officer handcuffed plaintiff while he was lying face down on the ground, then picked him up by the chain of the handcuffs cutting his skin. Id. The court noted that over twenty armed officers encountered a barefoot, unarmed eleven year old Plaintiff who was not resisting them. Id. Further, Plaintiff testified that the officers continued to keep their guns trained upon him throughout the incident and that one officer picked him up from behind by the chain of the handcuffs. Id.

Freeman's allegations, if believed, are that she offered no resistance and there was no need to push her to the floor.

This requires that summary judgment be DENIED on Plaintiff's state assault and battery claim.

7. False Imprisonment

The basis for the tort of false imprisonment is the unlawful restraint of another's liberty. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 920 (9th Cir. 2001.)

There are no facts to show that Plaintiff was restrained, arrested, or confined in any way during the officers' execution of the warrant. While Plaintiff was unfortunately knocked over during the execution of the warrant, the undisputed facts show that, upon securing the perimeter, the officers assisted her onto the couch and even allowed her to use the phone. She was not handcuffed or restrained in any way. During the execution of a search warrant, officers may keep persons on the premises in view and from interfering with the search. Plaintiff offered no evidence she was unreasonably detained.

Summary Judgment is GRANTED in favor of Defendants as to Plaintiff's false imprisonment claim.

8. Trespass to Land

Trespass is an unlawful interference with possession of property. Saples v. Hoefke, 189 Cal. App. 3d 1397, 1406 (1987). A police officer executing a valid search warrant may enter a plaintiff's home. Brunette v. Humane Soc'y, 294 F.3d 1205, 1210 (9th Cir. XXX) Despite this privilege to enter, the police officer's actions while executing the warrant must relate to the objectives of the authorized intrusion. Id.

The officers in this case entered Freeman's home pursuant to a valid search warrant. It is undisputed that Freeman's home was listed and described with particularity in Attachment "A" to the Search Warrant Affidavit. (DSUF, No. 58) The items to be seized were also detailed in the warrant. These items included evidence of gang membership, firearms and ammunition, and were listed in Attachment "B" to the Search Warrant Affidavit. (DSUF, No. 59)

Summary judgment as to Plaintiffs claim for tresspass is GRANTED in favor of Defendants.

9. Intentional Infliction of Emotional Distress

Freeman asserts intentional infliction of emotional distress against Defendant Officers.

To state a claim for intentional infliction of emotional distress, a plaintiff must allege 1) extreme and outrageous conduct by the defendant, with the intent or reckless disregard of the probability of causing emotional distress 2) plaintiff suffered severe emotional distress and 3) that defendant was the cause of the emotional distress. Ess v. Eskaton Properties, Inc., 97 Cal. App. 4th 120, 129 (Cal.Ct.App. 2002). The conduct must be extreme and outrageous, so as to be intolerable in a civilized society. See, Tekle v. United States, 457 F.3d 1088, 1103 (9th Cir. 2006).

Freeman's state claim for intentional infliction of emotional distress by the officers fails to show evidence of extreme and outrageous conduct in executing the search warrant. Emotional distress damages are provable as part of Plaintiff's § 1983 claim. On the record presented, the officers' conduct was not so extreme or outrageous to support a claim for intentional infliction of emotional distress.

Summary Judgment in favor of Defendants is GRANTED.

10. Negligent Infliction of Emotional Distress

To prove a claim for negligent infliction of emotional distress a plaintiff mist show: 1) serious emotional distress, 2) actually and proximately caused by 3) wrongful conduct 4) by a defendant who should have foreseen that the conduct would cause such distress. Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004). It is well settled that negligent infliction of emotional distress is not an independent tort; rather it is the tort of negligence to which the duty element applies. Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 588 (Cal. 1989); Friedman, 107 Cal. App. 4th at 464;.

Where injury such as mental and emotional distress is caused by the constitutional violation, that injury is compensable under § 1983. Anderson v. Cent. Point Sch. Dist., 746 F.2d 505, 508 (9th Cir. 1984); Carey v. Piphus, 435 U.S. 247, 263-264 (1978). Freeman's emotional distress claims are properly alleged under her § 1983 claim. The circumstances of this case do not support a claim for NIED. Freeman was not a target of the search, the officers had no animus as to her, and did not intentionally act to cause her harm.

Freeman does not dispute that she has stress. However, according to the undisputed facts, this stress is the result of her granddaughter living with her and does not result from the officers' conduct.

Summary Judgment GRANTED in favor of Defendants on the negligent infliction of emotional distress claim.

VI. CONCLUSION

43 52.1 51.7

• Summary Judgment as to Detective Yee is GRANTED. • Summary judgment as to Sergeant Barrimond is DENIED. • Summary Judgment as to Officer Garrison is DENIED. • Summary Judgment as to Deputy Capriola is GRANTED in favor of Defendants • Summary Judgment as to Deputy Simpson is GRANTED in favor of Defendants • Summary Judgment as to Deputy Hollins is GRANTED in favor of Defendants • Summary Judgment as to the City of Fresno is GRANTED in favor of Defendants • Summary Judgment as to Plaintiffs claims under Cal. Civ. Code § is GRANTED in favor of Defendants • Summary Judgment as to Plaintiffs claims under Cal. Civ. Code is GRANTED in favor of Defendants • Summary Judgment as to Plaintiffs claims under Cal. Civ. Code is GRANTED in favor of Defendants • Summary Judgment as to Plaintiffs claims for assault and battery is DENIED. • Summary Judgment as to Plaintiffs claims for false imprisonment is GRANTED in favor of Defendants • Summary Judgment as to Plaintiffs claims for trespass to land is GRANTED in favor of Defendants • Summary Judgment as to Plaintiffs claims for intentional infliction of emotional distress is GRANTED in favor of Defendants • Summary Judgment as to Plaintiffs claims for negligent infliction of emotional distress is GRANTED in favor of Defendants IT IS SO ORDERED.