Opinion
CV 19-4654 DSF (AFMx)
2021-03-25
Susan PECK, Plaintiff, v. COUNTY OF ORANGE, et al., Defendants.
Barbara Faye Enloe Hadsell, Dan Stormer, David Clay Washington, Tanya Sukhija-Cohen, Hadsell Stormer Renick and Dai LLP, Pasadena, CA, for Plaintiff. Jonathan C. Bond, S. Frank Harrell, Jesse Keenon Cox, Norman J. Watkins, Lynberg and Watkins PC, Orange, CA, for Defendants County of Orange, Anthony Montoya, Michael Johnson, Brent Lind. Jesse Keenon Cox, Jonathan C. Bond, Norman J. Watkins, Lynberg and Watkins PC, Orange, CA, for Defendant Sherriff Sandra Hutchens. Jesse Keenon Cox, Jonathan C. Bond, S. Frank Harrell, Lynberg and Watkins APC, Orange, CA, for Defendants Brad Carrington, John Frey.
Barbara Faye Enloe Hadsell, Dan Stormer, David Clay Washington, Tanya Sukhija-Cohen, Hadsell Stormer Renick and Dai LLP, Pasadena, CA, for Plaintiff.
Jonathan C. Bond, S. Frank Harrell, Jesse Keenon Cox, Norman J. Watkins, Lynberg and Watkins PC, Orange, CA, for Defendants County of Orange, Anthony Montoya, Michael Johnson, Brent Lind.
Jesse Keenon Cox, Jonathan C. Bond, Norman J. Watkins, Lynberg and Watkins PC, Orange, CA, for Defendant Sherriff Sandra Hutchens.
Jesse Keenon Cox, Jonathan C. Bond, S. Frank Harrell, Lynberg and Watkins APC, Orange, CA, for Defendants Brad Carrington, John Frey.
Order DENYING Defendants’ Motion for Summary Judgment
Dale S. Fischer, United States District Judge
This case arises from the fatal encounter between Paul Mono and members of the Orange County Sheriffs’ Department (OCSD). Plaintiff Susan Peck, both as an individual and as a surviving heir and successor in interest to Mono, brought (1) section 1983 claims for constitutional violations including under the Fourth and Fourteenth Amendments, (2) discrimination claims for violations of the Americans with Disabilities Act (ADA) and Rehabilitation Act (RA), and (3) state law claims for wrongful death, assault, battery, negligent infliction of emotional distress, and a violation of the Bane Act. Dkt. 19 (FAC).
On September 10, 2020, Defendants moved for an order granting summary judgment on Peck's first amended complaint. Dkt. 87. On November 18, 2020, the Court granted in part and denied in part Defendants’ motion. Dkt. 108 (Summ. J. Order). In its Order, the Court gave the parties leave to file supplemental briefing on whether Defendants Brent Lind, John Frey, and Bradley Carrington (collectively, the Non-shooting Deputy Defendants) were entitled to qualified immunity on Peck's excessive force claim. Id. at 14. Defendants had not fully briefed the issue because they believed Peck would be dismissing the claim against the Non-shooting Deputy Defendants. Id. Defendants promptly filed a supplemental brief in support of their motion for summary judgment, dkt. 109 (Supp. Mot.), and Peck filed an opposition, dkt. 112.
I. BACKGROUND
In 2016, Paul Mono and his wife Susan Peck obtained the services of real estate agent Jennifer Heflin to assist them in purchasing a residence in Laguna Woods Village, a private retirement community. SUF ¶¶ 113, 115, 119. Mono was steadily losing his eyesight due to retinitis pigmentosa, a degenerative disease that affects vision. Id. ¶ 108. The couple told Heflin they wanted to relocate from Marina del Rey to an area that would be safer for Mono to navigate in given his condition. Id. ¶¶ 113-116. At the time of his death, Mono had approximately 10% of his eyesight left, and very little peripheral vision. Id. ¶ 111. Mono also had a history of depression and suicidal ideation. In August 2009, Peck had called the Los Angeles Police Department to report that Mono suffered from depression and was threatening suicide. Id. ¶ 402. Peck had also expressed to Heflin that Mono struggled with depression and had previously attempted suicide. Id. ¶ 420.
Citations to SUF refer to both "Plaintiff's Opposition to Separate Statement of Uncontroverted Facts and Conclusions of Law in Support of Motion for Summary Judgment, or in the Alternative, Summary Adjudication; Plaintiff's Additional Material Facts and Supporting Evidence," dkt. 98-1, which incorporates Defendants’ proposed uncontroverted facts and Peck's responses to those facts, and "Defendants’ Response to Plaintiff's Additional Material Facts and Supporting Evidence," dkt. 103, which incorporates Peck's proposed uncontroverted facts and Defendants’ responses to them. To the extent certain facts are not mentioned in this Order, the Court has not relied on those facts in reaching its decision. To the extent the Court cites to a disputed fact, the Court has found the dispute was not valid or was irrelevant, unless otherwise indicated. The Court has independently considered the admissibility of the evidence and has not considered facts that are irrelevant or based on inadmissible evidence.
Mono and Peck purchased a Laguna Woods Village condominium (the Residence) in September 2017. Id. ¶ 119. Before they could move in, they needed certain renovations, in part to address Mono's visual impairment. Id. ¶ 120. Heflin recommended the services of general contractor Dennis Metzler. Id. ¶ 122.
Metzler started working on the Residence, but over time his relationship with Mono and Peck deteriorated because of issues with work quality, budget, and timing. Id. ¶¶ 123-130. Mono and Peck moved into the Residence in November 2017. Id. ¶ 131. They had numerous issues with shoddy construction, including flooding, mice, and electricity issues. Id. ¶¶ 132-137. In December 2017, a building inspector refused to sign off on Metzler's water heater installation. Id. ¶ 161. After this, Metzler did not enter the Residence again. Id. As the relationship between Mono, Peck, and Metzler worsened, Heflin began serving as an intermediary. Id. ¶¶ 144-148.
On February 5, 2018, Heflin came to the Residence to assess the remaining remodel issues. Id. ¶¶ 148, 151. During this visit, Mono and Peck repeatedly told Heflin they wanted to find someone else to finish the work. Id. ¶¶ 149-150. At some point during this visit or a prior visit, Mono showed Heflin a gun. Id. ¶ 152. The bullets were kept separately in plastic bags away from the gun. Id. At no point did Heflin fear for her safety. Id. ¶ 153. She viewed Mono as "a good person" who would "never hurt her." Id.
In order to proceed with a different contractor, Mono and Peck needed floor plans in Metzler's possession. Id. ¶ 149. Heflin and Metzler agreed they would meet in a carport near the Residence the next day so that Heflin could obtain the floor plans and bring them to Mono and Peck herself. Id. ¶ 156. Heflin told Metzler she did not think it was a good idea for Metzler to interact with Mono given how upset Mono was with him. Id. ¶ 155. On February 6, 2018, Heflin met Metzler in the carport and got the floor plans. Id. ¶ 158. Metzler attempted to discourage Heflin from going to the Residence out of concern for her safety. Id. ¶ 164. Metzler had never seen a gun in the Residence but had been informed by Heflin that Mono had at least one gun. Id. ¶ 159-160. To placate Metzler, Heflin stated that she would call him and leave her phone on while in the Residence so he could hear what was happening. Id. ¶ 165.
Heflin then went into the Residence. Id. ¶ 169. When she gave Mono the floor plans, he became upset, claiming they were not the right plans. Id. During the approximately 30 minutes she was in the Residence, Heflin said Mono swung through various emotions becoming angry or upset and then calming down. Id. ¶ 170. When Heflin exited the Residence and stood outside talking to Peck, Mono came to the front door with a gun which he waved around over his head for about 30 seconds. Id. ¶ 173. At one point, he pointed it in the direction of Heflin and said, "You referred him to me" and "I'm going to shoot his fucking head off." Id. ¶¶ 172-173. Heflin was not afraid. Id. ¶ 175. She thought Mono was just "messing around" and did not believe there were bullets in the gun. Id. Heflin told Mono to "put the gun down" and he walked back into the house and returned seconds later without the gun. Id. ¶¶ 177-178.
Metzler, who was listening to the conversation, hung up when he heard Heflin tell Mono to "put the gun down" and dialed 911, saying: "I've got a client that's threatening with a firearm to shoot somebody ... in his house." Id. ¶¶ 179-180 (alteration in original). He stated Mono was threatening him and while he was not in the house, a real estate agent was. Id. Heflin left the Residence, hugged Mono and Peck goodbye, and told them she would see them the next day. Id. ¶ 183. Heflin then walked back to Metzler and learned he had called 911 and the police were on their way. Id. ¶¶ 184-185. Heflin was upset Metzler called the police and asked him why, as she had not been in danger. Id. ¶¶ 186-187.
OCSD deputies Carrington, Lind, Frey, Anthony Montoya, and Michael Johnson (collectively, the Deputy Defendants) responded to the scene. Id. ¶¶ 194-195. Frey and Carrington each had more than 30 years of experience at the time, while Montoya and Johnson had five and six years, respectively. Id. ¶ 201. When the Deputy Defendants arrived at the scene, they had to pass by the carport area where Heflin and Metzler were, about 90-150 feet away from the Residence. Id. ¶ 202. Frey arrived at the scene first and asked Heflin and Metzler who had called 911. Id. ¶¶ 202, 207. Metzler stated he had, Mono had threatened to shoot him, and he believed there was a gun in the Residence. Id. ¶ 207. This interaction was very brief. Id. ¶ 206. Frey did not speak to Heflin directly, even though he understood she was the real estate agent mentioned in the 911 call and she, not Metzler, had been inside the Residence. Id. ¶ 205. Frey broadcast over the radio that Heflin was not inside the Residence and Metzler advised Mono waved a gun around Heflin. Id. ¶ 12. None of the other deputies stopped to talk to Heflin or Metzler even though they remained in the carport area. Id. ¶ 207.
Once at the Residence, Deputies Johnson, Lind, Carrington, and Frey took positions on the north side where they could see into the Residence through a large three-paned window. Id. ¶ 14. Montoya stood on the west side, where he could see through a window on the front door. Id. ¶ 15. Through the windows they saw Mono, who appeared agitated and was screaming. Id. ¶ 17. They also saw Peck inside the Residence. Id. ¶ 18. Montoya and Carrington tried to get Peck to open the door of the Residence, but she allegedly shook her head no. Id. ¶ 19. Peck states she could not understand what the deputies were saying because all the windows were closed. Id. Mono called the deputies derogatory names including "fuckers" and "assholes" and gave them the middle finger. Id. ¶ 22. It is unclear whether the deputies identified themselves as police officers. Id. ¶ 23.
Mono walked out of the living room for a moment and returned holding a white cane with red marks. Id. ¶¶ 24-26, 495. The deputies observed this and heard Mono make comments using the word "blind" including something along the lines of, "what are you going to do, shoot a blind man?" Id. ¶ 26. The deputies assert they did not believe Mono was blind because he did not use the cane to assist him, did not have trouble moving around the Residence, pointed his cane at individual deputies, tracked the deputies’ movements, and looked at the deputies when speaking to them. Peck disputes their contention, noting Mono had a cane colored red on the bottom and was yelling about being blind. Id. ¶¶ 26-27. Mono started waving the cane aggressively and banging it on windows. Id. ¶ 28. The deputies tried to engage Mono, but he continued to scream at them in a belligerent manner. Id. ¶ 30. At one point, Mono pressed his bare buttocks against the window on the north side of the Residence and spread his buttocks cheeks. Id. ¶ 38.
According to the Braille Institute, Mono was in fact legally blind. Id. ¶ 26. Because of his vision problems, he stopped driving around a decade prior to his death. Id.
Two neighbors – Larry and Marsha Berman – observed the incident from a grassy area approximately 100-120 feet from the Residence. Id. ¶¶ 370-372. Marsha Berman observed Mono waving around his cane and yelling obscenities and statements like "shoot me," "kill me," and "if you come in my house, I'm going to shoot you." Id. ¶ 34. At one point, Marsha Berman saw Mono step away and return carrying a "blind person's cane" and wearing "dark sunglasses." Id. ¶ 383. The Bermans both heard Mono repeatedly state he was blind. Id. ¶¶ 385, 387.
During this encounter, Montoya noticed a firearm sitting at the north end of a couch along the eastern wall of the Residence. Id. ¶ 39. Montoya told the other officers he saw a gun and used a flashlight to illuminate its location. Id. ¶ 40. The gun was holstered. Id. ¶ 41. Mono began screaming about the firearm, making statements like "I'll show you my gun! You wanna see my gun?" Id. ¶ 45. Johnson gave several loud commands to Mono not to go near or touch the gun. Id. ¶ 46. Despite the commands, Mono moved in the direction of the firearm. Id. ¶ 47.
At this point, four of the five Deputy Defendants were standing directly outside the windows to the Residence. Moments before, when Montoya had pointed out the gun to his colleagues, Lind had walked away from the Residence to speak with Metzler. Id. ¶ 44. Because Montoya was outside the front door – the remaining deputies were standing outside the three-paned window – he could not hear the exchanges between Mono and the remaining deputies. Id. ¶ 327.
The Deputy Defendants claim Mono reached for and grabbed the gun, picked it up, and began raising it towards the deputies positioned outside the three-paned window on the north side of the Residence. Id. ¶¶ 48, 50. Peck disputes that Mono grabbed the gun. Id. As Mono purportedly grabbed the firearm, Johnson began firing at Mono through the three-paned window. Id. ¶ 49. Johnson said he did not wait for Mono to reach the gun before he fired. Id. ¶ 52. Montoya began firing at Mono as he raised the gun. Id. ¶ 52. At the time Johnson and Montoya fired, neither was aware the other had also fired. Id. ¶ 69. The shots were fired approximately ten to twenty minutes after the deputies arrived on the scene. Id. ¶ 55. Only a matter of seconds elapsed between Johnson's commands not to go near the firearm and Johnson and Montoya firing their weapons. Id. ¶ 57. After the incident, the unloaded firearm was found secured in the holster under the coffee table, away from Mono's body. Id. ¶ 48.
Montoya testified he began firing because Mono raised his gun while facing the three deputies outside the three-paned window. Id. ¶ 52. However, all the bullets from Montoya's gun entered Mono from behind, indicating that Mono was standing to the east, facing the couch, not to the north. Id. There are numerous other discrepancies between the Deputy Defendants’ description of Mono's actions, position, and location, and other evidence including where the revolver was found, Peck's ballistic expert David E. Balash's analysis, the autopsy doctor's testimony, and the testimony of witness Larry Berman. Id. ¶ 50.
At the time of the incident, Peck was suffering from mental fogginess, confusion, and difficulty concentrating. Id. ¶ 61. This was a result of the flu, lack of sleep, and a prescription medication she took to treat an autoimmune disorder. Id. ¶ 348; dkt. 98-4 (Peck Decl.) ¶ 3. She believes this, coupled with her terror from the incident, have negatively affected her ability to recall what happened. Peck Decl. ¶ 3. She does, however, remember the following. Peck was in her bedroom when the officers first approached. SUF ¶ 348. She began walking to the living room because she heard loud sounds. Id. ¶ 349. She observed the front area of the house was surrounded by men with guns standing against the windows. Id. The men were dressed in uniforms she did not recognize. Id. She initially thought she was dreaming. Id. ¶ 351. After spending a few seconds gathering her thoughts, she entered the living area. Id. ¶¶ 352-353. She saw Mono standing at the north window and moved toward him. Id. ¶ 354. Mono was clutching his cane in both hands over his head. Id. ¶ 355. She became aware the men outside were making statements, but she could not understand what they were saying. Id. ¶ 356. There is a gap in Peck's memory. The next thing she recalls is standing next to the kitchen counter, with her husband a few feet to her right in front of the dining table. Id. ¶ 358. She saw her husband move toward the living room and then remembers hearing gunfire and exploding glass. Id. ¶ 361. She dropped to the floor and crawled to Mono after the shooting stopped. Id. ¶ 362. When she reached her husband, she did not see a gun in his hands or anywhere near his body. Id. ¶ 363. Montoya handcuffed and searched Peck and then escorted her to a parked patrol car where she remained for just over an hour. Id. ¶ 65. Peck was subsequently interviewed, advised she was not under arrest, and released to a nearby hotel. Id. ¶¶ 66-67.
Because Peck and Mono had just moved to Orange County from Los Angeles County, they were not familiar with the County's law enforcement uniforms. Peck Decl. ¶ 40.
II. LEGAL STANDARD
"A party may move for summary judgment, identifying each claim or defense – or the part of each claim or defense – on which summary judgment is sought. The court shall grant summary judgment if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "This burden is not a light one." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). But the moving party need not disprove the opposing party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, "the burden on the moving party may be discharged by ‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. If the moving party satisfies this burden, the party opposing the motion must set forth specific facts, through affidavits or admissible discovery materials, showing that there exists a genuine issue for trial. Id. at 323-24, 106 S.Ct. 2548 ; Fed. R. Civ. P. 56(c)(1). A non-moving party who bears the burden of proof at trial as to an element essential to its case must make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element of the case or be subject to summary judgment. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.
The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is a genuine issue if it reasonably can be resolved in favor of either party. Id. at 248, 106 S.Ct. 2505. "[A] district court is not entitled to weigh the evidence and resolve disputed underlying factual issues." Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). Summary judgment is improper "where divergent ultimate inferences may reasonably be drawn from the undisputed facts." Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) ). Instead, "the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (punctuation omitted).
III. DISCUSSION
Defendants argue Peck's excessive force claim is barred by qualified immunity. In its previous Order, the Court denied summary judgment on Defendants’ excessive force claim as to Defendants Montoya and Johnson. Summ. J. Order at 13-14. It did not rule on Defendants’ motion as to the Non-shooting Deputy Defendants. Id. at 14. Qualified immunity is an affirmative defense that "shield[s] an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law." Pearson v. Callahan, 555 U.S. 223, 244, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The doctrine "protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Id. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ).
To determine whether officers are entitled to qualified immunity, a court conducts a two-step inquiry. A plaintiff must show her allegations, if true, establish a constitutional violation. Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003). The court must also decide "whether the right at issue was ‘clearly established’ at the time of defendant's alleged misconduct." Pearson, 555 U.S. at 232, 129 S.Ct. 808. "Clearly established" means the "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Because qualified immunity is an affirmative defense, the initial burden of proof lies with the officials asserting the defense. Harlow, 457 U.S. at 812, 102 S.Ct. 2727. However, a plaintiff bears the initial burden of proving that the rights allegedly violated by defendants were clearly established at the time of the alleged misconduct. Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) ; Houghton v. South, 965 F.2d 1532, 1534 (9th Cir. 1992).
Defendants argue the excessive force claim is barred both because the Non-shooting Deputy Defendants did not use excessive force and because they did not violate clearly established law.
A. Use of Excessive Force
In its previous Order, the Court held there is a question of material fact as to whether Montoya and Johnson used excessive force in violation of the Fourth Amendment by shooting and killing Mono. Summ. J. Order at 11-14. Now it must decide whether the Non-shooting Deputy Defendants can be held liable even though they did not directly use the alleged excessive force.
To be held liable under section 1983, a public official must "integrally participate" in the unlawful act even if the official's "individual actions" do "not ‘themselves rise to the level of a constitutional violation.’ " Reynaga Hernandez v. Skinner, 969 F.3d 930, 941 (9th Cir. 2020) (quoting Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004) ). The "official must be more than a ‘mere bystander.’ " Id. (brackets omitted) (quoting Bravo v. City of Santa Maria, 665 F.3d 1076, 1090 (9th Cir. 2011) ). The Ninth Circuit has not however, "define[d] the minimum level of involvement for liability under the integral-participant doctrine," nor has it "clarified whether [it] import[s] both proximate cause and but-for cause into [the] integral-participant doctrine." Id. at 941-42.
Because no exact standard has been set, the Court will compare this case to a handful of Ninth Circuit decisions on the same issue. In Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007), the Ninth Circuit held an officer whose actions were "instrumental" in effectuating a constitutional violation was an integral participant. The officer handcuffed the suspect, which then allowed another officer to place hobble restraints on him. Id. The circuit court held the use of hobble restraints was an excessive use of force and the handcuffing officer integrally participated in the unlawful use of those restraints. Id.
In Boyd, 374 F.3d at 780, the Ninth Circuit considered whether two officers who had not used a "flash-bang" – the alleged Fourth Amendment violation – but had been involved in the search operation were "integral participants." The Court held the officers were integral participants because: (1) the officers served as armed backup for the officer who deployed the flash-bang, (2) "the use of the flash-bang was part of the search operation in which every officer participated in some meaningful way," and (3) "every officer was aware of the decision to use the flash-bang, did not object to it, and participated in the search operation knowing the flash-bang was to be deployed." Id.
In Nicholson v. City of Los Angeles, 935 F.3d 685, 692 (9th Cir. 2019), the circuit court found an officer played an integral role in an unlawfully prolonged detention. There, the officer "was the initial officer who set the[ ] events into motion, and either instructed the other officers to arrest Plaintiffs or consulted with them in that decision." Id. By contrast, in Torres v. City of Los Angeles, 548 F.3d 1197, 1206 (9th Cir. 2008), the circuit court found a detective was not an integral participant in an unlawful arrest because she "was not present when Torres was arrested, and there is no evidence that [she] instructed the other detectives to arrest Torres or that any of those detectives consulted with her before making the arrest."
Here, viewing the evidence in the light most favorable to Peck, the Non-shooting Deputy Defendants were more than "mere bystanders" in the alleged constitutional violations. Frey was the first to arrive and spoke to Heflin and Metzler. A jury could conclude he put the process in motion. All five officers were active participants in the incident as a whole. While Lind left to speak with Heflin and Metzler before the shooting occurred, moments before he had been standing along with the four other armed officers outside of the Residence observing Mono. A reasonable jury could infer from the circumstances that the Non-shooting Deputy Defendants were integral participants during the time when the allegedly violative applications of force occurred.
B. Clearly Established Law
Defendants also argue the Non-shooting Deputy Defendants did not violate clearly established law because the Ninth Circuit has yet to explicitly define the level of involvement necessary for liability under the integral-participation doctrine. Supp. Mot. at 3-4. The question is not whether the official's liability was clearly established but rather "whether the constitutional right in question was clearly established." Reynaga Hernandez, 969 F.3d at 943 (emphasis added). For instance, in Reynaga Hernandez, the Ninth Circuit noted that the integral participation doctrine was not well defined, but in evaluating the clearly established prong considered only whether the plaintiff's rights to be free from a Terry stop and unlawful arrest were clearly established. Id. at 941-44. The Court has already held the right at issue here was clearly established. Summ. J. Order at 13-14.
IV. CONCLUSION
The Court DENIES Defendants’ Motion for Summary Judgment on Peck's excessive force claim as to the Non-shooting Deputy Defendants.
IT IS SO ORDERED.