Cross et al v. City and County of San Francisco et alOPPOSITION/RESPONSEN.D. Cal.March 14, 20191 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC DURIE TANGRI LLP DARALYN J. DURIE (SBN 169825) ddurie@durietangri.com MATTHEW W. SAMUELS (SBN 294668) msamuels@durietangri.com LAUREN E. KAPSKY (SBN 321395) lkapsky@durietangri.com ERIC G. MESSINGER (SBN 320298) emessinger@durietangri.com WHITNEY O’BYRNE (pro hac vice) wobyrne@durietangri.com 217 Leidesdorff Street San Francisco, CA 94111 Telephone: 415-362-6666 Facsimile: 415-236-6300 POLICYLINK NOVELLA Y. COLEMAN (SBN 281632) novella@policylink.org 1438 Webster Street, Suite 303 Oakland, CA 94612 Telephone: 510-663-2333 Facsimile: 510-663-9684 ACLU FOUNDATION OF NORTHERN CALIFORNIA MICAELA DAVIS (SBN 282195) mdavis@aclunc.org ABRE’ LEANN CONNER (SBN 306024) aconner@aclunc.org CHRISTINE P. SUN (SBN 218701) csun@aclunc.org JAMIE L. CROOK (SBN 245757) jcrook@aclunc.org 39 Drumm Street San Francisco, CA 94111 Telephone: 415-621-2493 Facsimile: 415-255-8437 AMERICAN CIVIL LIBERTIES UNION FOUNDATION CRIMINAL LAW REFORM PROJECT EZEKIEL R. EDWARDS (pro hac vice) eedwards@aclu.org 125 Broad Street, 18th Floor New York, NY 10004-2400 Telephone: 212-549-2610 Facsimile: 212-549-2651 Attorneys for Plaintiffs Tiffany Cross, Shalonda Adams, Crystal Anthony, Arron Lee Mathews, Acacia McNeal, Tiana Reddic, and Darlene Francine Rouse IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION TIFFANY CROSS, SHALONDA ADAMS, CRYSTAL ANTHONY, ARRON LEE MATHEWS, ACACIA MCNEAL, TIANA REDDIC and DARLENE FRANCINE ROUSE. Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, MIKE REDMOND, in his individual capacity, JASON CHERNISS, in his individual capacity, FRANCIS J. HAGAN, in his individual capacity, RONALD T. LIBERTA, in his individual capacity, DARREN NOCETTI, in his individual capacity, RYAN R. CROSBY, in his individual capacity, JOHN PATRICK CUNNIE, in his individual capacity, MURRAY P. DAGGS, in his individual capacity, BRITT D. ELMORE, in his individual capacity, DAVID A. GOFF, in his individual capacity, THOMAS J. LEE, in his individual capacity, KENNETH R. Case No. 3:18-cv-06097-EMC PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND TO STRIKE FIRST AMENDED COMPLAINT Date: April 3, 2019 Time: 10:30 a.m. Ctrm: 5-17th Floor Judge: Honorable Edward M. Chen Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 1 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC MACDONALD, in his individual capacity, BRENTON THOMAS REEDER, in his individual capacity, DANIEL P. ROSAIA, in his individual capacity, ANTHONY M. SCAFANI, in his individual capacity, DANIEL C. SOLORZANO, in his individual capacity, AND JOHN DOES 1 THROUGH 10, in their individual capacities. Defendants. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 2 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC TABLE OF CONTENTS Page I. INTRODUCTION ...........................................................................................................................1 II. FACTUAL BACKGROUND ..........................................................................................................1 III. ARGUMENT ...................................................................................................................................3 A. The legal standard for a Rule 12(b)(6) motion to dismiss requires the Court to construe the allegations in the light most favorable to Plaintiffs and to reject Defendants’ own assertions of fact. .....................................................................................4 B. Defendants make myriad factual assertions that misstate the allegations in the FAC, are not subject to judicial notice, or have no support at all. .......................................5 C. Plaintiffs’ claims are timely. ................................................................................................6 1. Under California law, as applied by the Ninth Circuit, Plaintiffs were entitled to statutory tolling while the federal criminal charges were pending. ....................................................................................................................7 2. In the alternative, Plaintiffs are entitled to equitable tolling. .................................11 D. The FAC alleges sufficient facts to support a § 1983 selective enforcement claim. .........12 1. The FAC alleges facts that support an inference of discriminatory motivation by Defendants. .....................................................................................12 2. Prosecutorial discretion by the federal government does not “cut off” liability for targeting that itself constituted racial discrimination. .........................16 3. The FAC sufficiently pleads supervisory liability. ................................................17 E. Motions to strike are disfavored and should be denied if there is any doubt whether the allegations bear on an issue in the litigation. ...............................................................19 F. The FAC is devoid of redundant, immaterial, impertinent, or scandalous allegations. .........................................................................................................................20 1. References to United States v. Mumphrey are relevant and appropriate. ..............20 2. Allegations of racially motivated conduct by Police Department members are relevant, not inflammatory or derogatory. .......................................................21 3. The cited reports are probative of Plaintiffs’ claims. .............................................23 4. The FAC complies with Rule 8’s short-and-plain statement requirement. ...........25 IV. CONCLUSION ..............................................................................................................................25 Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 3 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC TABLE OF AUTHORITIES Page(s) Cases In re 2TheMart.com, 114 F. Supp. 2d 955 (C.D. Cal. 2000) .................................................................................................. 19 Adamson v. City & Cty. San Francisco, No. 16-CV-04370-YGR, 2018 WL 1456761 (N.D. Cal. Mar. 23, 2018) ............................................. 22 Alvarez-Orellana v. City of Antioch, No. C-12-4693 EMC, 2013 WL 3989300 (N.D. Cal. Aug. 2, 2013) ................................................... 19 Anthony v. City of Sacramento, 898 F. Supp. 1435 (E.D. Cal. 1995) ...................................................................................................... 23 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................................................ 18, 19 Avenue 6E Investments, LLC v. City of Yuma, 818 F.3d 493 (9th Cir. 2016) ................................................................................................................ 13 Awabdy v. City of Adelanto, 368 F.3d 1062 (9th Cir. 2004) .............................................................................................................. 16 Bassette v. City of Oakland, No. C-00-1645 JCS, 2000 WL 33376593 (N.D. Cal. Aug. 11, 2000) .................................................... 7 Beck v. City of Upland, 527 F.3d 853 (9th Cir. 2008) ................................................................................................................ 16 Boston v. Kitsap Cty., 852 F.3d 1182 (9th Cir. 2017) .............................................................................................................. 10 Buckey v. City of Los Angeles, 968 F.2d 791 (9th Cir. 1992) ................................................................................................................ 25 Cal. Attorneys for Criminal Justice v. Butts, 195 F.3d 1039 (9th Cir. 1999) ............................................................................................................. 15 Citizens for Quality Educ. San Diego v. San Diego Unified Sch. Dist., No. 17-CV-1054-BAS-JMA, 2018 WL 828099 (S.D. Cal. Feb. 12, 2018) ......................................... 22 City of Canton v. Harris, 489 U.S. 378 (1978) .............................................................................................................................. 23 The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690 (9th Cir. 2009) .................................................................................................... 12, 14, 15 Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 4 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (2018) .............................................................................................................................. 23 Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001) (en banc) ........................................................................................ 11, 12 Deocampo v. Potts, 836 F.3d 1134 (9th Cir. 2016) ............................................................................................................ 7, 8 Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010) ............................................................................................................ 19 Doe v. Brown Univ., 304 F. Supp. 3d 252 (D.R.I. 2018)........................................................................................................ 24 Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994) ............................... 20, 24 Felarca v. Birgeneau, No. 11-CV-5719-YGR, 2014 WL 206762 (N.D. Cal. Jan. 17, 2014) .................................................. 18 Frenzel v. AliphCom, 76 F. Supp. 3d 999 (N.D. Cal. 2014) .................................................................................................... 19 In re Gilead Scis. Secs. Litig., 536 F.3d 1049 (9th Cir. 2008) ................................................................................................................ 4 Gomillion v. Lightfoot, 364 U.S. 339 (1960) .............................................................................................................................. 13 Harding v. Galceran, 889 F.2d 906 (9th Cir. 1989) .................................................................................................... 7, 8, 9, 10 Harned v. Landahl, 88 F. Supp. 2d 1118 (E.D. Cal. 2000)........................................................................................... 8, 9, 10 Harper v. County of Merced, No. 1:18-cv-00562-LJO-SKO, 2018 WL 5880786 (E.D. Cal. Nov. 8, 2018) ........................................ 7 Holmes v. Elec. Document Processing, Inc., 966 F. Supp. 2d 925 (N.D. Cal. 2013) ............................................................................................ 19, 20 Johnson v. California, 545 U.S. 162 (2005) .............................................................................................................................. 14 Johnson v. City of Berkeley, No. 15-cv-05343-JSC, 2016 WL 928723 (N.D. Cal. Mar. 11, 2016)................................................... 19 Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ................................................................................................................ 11 Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 5 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC Kennedy v. City of Cincinnati, 595 F.3d 327 (6th Cir. 2010) ................................................................................................................ 15 Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018), petition for cert. filed sub nom., Hagan v. Khoju, No. 18-1010 (Feb. 4, 2019) ................................................................................... 5, 15 Klein v. City of Beverly Hills, 865 F.3d 1276 (9th Cir. 2017) ................................................................................................................ 6 Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012) ................................................................................................................ 12 LeDuc v. Ky. Ctr. Life Ins. Co., 814 F. Supp. 820 (N.D. Cal. 1992) ....................................................................................................... 24 Lee v. Enter. Leasing Co.-W., No. 3:10-CV-00326-LRH, 2012 WL 3996848 (D. Nev. Sept. 10, 2012) ............................................ 24 Lobaton v. City of San Diego, No. 3:15-cv-1416-GPC-DHB, 2015 WL 7864186 (S.D. Cal. Dec. 2, 2015) ....................................... 22 Magana v. Commonwealth of the Northern Mariana Islands, 107 F.3d 1436 (9th Cir. 1997), as amended (May 1, 1997) ................................................................. 13 Malik v. City & Cty. of San Francisco, No. 17-cv-06954, 2018 WL 3159718 (N.D. Cal. June 28, 2018) ........................................................... 8 Martinez v. City of West Sacramento, No. 2:16-cv-02566-TLN-EFB, 2019 WL 469038 (E.D. Cal. Feb. 6, 2019) ......................................... 25 Matthews v. Macanas, 990 F.2d 467 (9th Cir. 1993), abrogated on other grounds, Chanley v. Gillis, 466 Fed. Appx. 582 (9th Cir. 2012) ..................................................................... 9, 10 McAlpine v. Superior Court, 209 Cal. App. 3d 1 (1989) .................................................................................................................. 8, 9 McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) ................................................................................................................ 25 McMartin v. Los Angeles County, 202 Cal. App. 3d 848 (1988) .................................................................................................................. 9 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008) ................................................................................................................ 4 Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005) .............................................................................................................. 18 Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 6 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC Mitchell v. Culver, No. 2:15-CV-00058-GEB-CMK, 2015 WL 5037398 (E.D. Cal. Aug. 25, 2015) ......................... 9, 10 Morales v. City of Los Angeles, 214 F.3d 1151 (9th Cir. 2000) ................................................................................................................ 7 Moss v. United States Secret Service, 675 F.3d 1213, amended and superseded by 711 F.3d 941 (9th Cir. 2014) ......................................... 19 New York City Employees’ Ret. Sys. v. Berry, 667 F. Supp. 2d 1121 (N.D. Cal. 2009) ................................................................................................ 20 Nickerson v. Portland Police Bureau, No. CIV. 08-217-HU, 2008 WL 4449874 (D. Or. Sept. 30, 2008) ................................................ 16, 17 Nishimoto v. Cty. of San Diego, No. 3:16-cv-01974-BEN-JMA, 2017 WL 2709742 (S.D. Cal. June 20, 2017) ................................... 23 Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992) .............................................................................................................. 23 Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142 (9th Cir. 2013) .............................................................................................................. 14 Patterson v. Van Arsdel, 883 F.3d 826 (9th Cir. 2018) .................................................................................................................. 4 Petrie v. Elec. Game Card, Inc., 761 F.3d 959 (9th Cir. 2014) ................................................................................................................ 19 Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048 (N.D. Cal. 2004) ................................................................................................ 20 Rahimi v. S.F. Mun. Transp. Agency, No. 16-cv-02576-JST, 2017 WL 3453346 (N.D. Cal. Aug. 10, 2017) ................................................... 6 Ramos v. Nielsen, 321 F. Supp. 3d 1083 (N.D. Cal. 2018) .......................................................................................... 12, 13 Redman v. Cty. of San Diego, 942 F.2d 1435 (9th Cir. 1991) .............................................................................................................. 18 Rees v. PNC Bank, N.A., 308 F.R.D. 266 (N.D. Cal. 2015) .......................................................................................................... 19 Rogers v. Richard, No. 2:17-cv-00149-JAM-GGH, 2018 WL 1185226 (E.D. Cal. Mar. 7, 2018) ...................................... 7 Rosenbaum v. City & Cty. of S.F., 484 F.3d 1142 (9th Cir. 2007) .............................................................................................................. 12 Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 7 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vi PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009) ................................................................................................................... 19 Sandra T.E. v. Grindle, 599 F.3d 583 (7th Cir. 2010) ................................................................................................................ 19 Schmidlin v. City of Palo Alto, 157 Cal. App. 4th 728 (2007), as modified (Jan. 2, 2008) ............................................................ 8, 9, 10 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) .................................................................................................. 17, 18, 19 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) (per curiam) .............................................................................................. 4 Tarantino v. City of Concord, No. C-12-00579 JCS, 2013 WL 3722476 (N.D. Cal. July 12, 2013) ..................................................... 8 Trimble v. City of Santa Rosa, 49 F.3d 583 (9th Cir. 1995) .................................................................................................................... 8 Turano v. County of Alameda, No. 17-cv-06953-KAW, 2018 WL 5629341 (N.D. Cal. Oct. 30, 2018) .............................................. 21 U.S. ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174 (9th Cir. 2013) ................................................................................................................ 5 United States v. Cty. of Maricopa, 889 F.3d 648 (9th Cir. 2018), petition for cert. filed, No. 18-498 (Oct. 15, 2018)............................... 23 United States v. Mumphrey, 193 F. Supp. 3d 1040 (N.D. Cal. 2016) ................................................................................................ 12 United States v. Mumphrey, No. 3:14-cr-00643-EMC ......................................................................................................... 4, 6, 20, 21 Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) .................................................................................................................... 4, 13, 14 Villareal v. Cty. of Monterrey, 254 F. Supp. 3d 1168 (N.D. Cal. 2017) ................................................................................................ 21 Washington v. Davis, 426 U.S. 229 (1976) .............................................................................................................................. 13 Whren v. United States, 517 U.S. 806 (1996) .............................................................................................................................. 17 Yick Wo v. Hopkins, 118 U.S. 356 (1886) .............................................................................................................................. 13 Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 8 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vii PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC Federal Statutes 21 U.S.C. §§ 841 ........................................................................................................................................... 2 21 U.S.C. §§ 860 ........................................................................................................................................... 2 42 U.S.C. § 1983 .................................................................................................................................. passim 42 U.S.C. § 2000d et seq............................................................................................................................... 1 State Statutes California Government Code § 945.3 .................................................................................................. passim Rules Fed. R. Civ. Proc. 8............................................................................................................................................................. 25 12(b)(6) ....................................................................................................................................... 1, 3, 4, 5 12(f)................................................................................................................................................ passim 15(c)(1)(A)-(B)....................................................................................................................................... 6 Other Authorities U.S. Const. amend. XIV ............................................................................................................... 1, 4, 16, 17 Cal. Const. Article VI, §§ 1, 4-6 ................................................................................................................ 10 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382 (Supp. 2018) ............. 19 Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 9 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC I. INTRODUCTION Plaintiffs’ First Amended Complaint (“FAC”), ECF No. 48, pleads sufficient facts to show that Defendants City and County of San Francisco (“City”) and members of the San Francisco Police Department (“Police Department”) (collectively, “Defendants”) selectively enforced the law against Plaintiffs because Plaintiffs are Black, in violation of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the 1964 Civil Rights Act, codified at 42 U.S.C. § 2000d et seq. (“Title VI”). Plaintiffs allege that in fulfilling the role of targeting people for buy-walks and surveillance that led to federal drug charges pursuant to Operation Safe Schools (“Operation”), Defendants intentionally selected Black people for enforcement, even though they knew that people of all races conduct drug transactions in the Tenderloin neighborhood where the Operation took place. The racial motivation is borne out, among other things, by the fact that all thirty-seven people who were prosecuted as a result of Defendants’ targeting were Black. The FAC also pleads facts showing that the selective enforcement challenged here is part of a longstanding custom and practice of racially biased policing that the Police Department has condoned. Defendants’ Motion to Dismiss and to Strike the First Amended Complaint (“Motion), ECF No. 54, asks the Court to strike one-third of Plaintiffs’ well-pleaded allegations because the facts showing Defendants’ liability are far from flattering. But Defendants have not met their burden under Rule 12(f) of the Federal Rules of Civil Procedure to show that any of Plaintiffs’ allegations are impertinent, immaterial or scandalous. Defendants also err in asserting their own version of the facts as grounds for dismissal under Rule 12(b)(6), instead of staying within the four corners of the FAC, as they must. Controlling precedent, which Defendants ignore, forecloses their arguments that Plaintiffs’ claims are untimely and that the allegations do not support an inference of discriminatory motivation or supervisory liability. Plaintiffs therefore respectfully ask that the Court deny Defendants’ Motion. II. FACTUAL BACKGROUND From 2013 to 2015, members of the Police Department participated in a joint drug enforcement initiative in the Tenderloin neighborhood of San Francisco. FAC ¶¶ 58-59. The Operation involved the U.S. Attorney’s Office (“USAO”), the Drug Enforcement Administration (“DEA”), and the Police Department. Id. As part of the Operation, members of the Police Department selected people to target for Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 10 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC surveillance and buy-walks. Id. ¶¶ 3, 26-48, 64-67, 203. Those targeting decisions by Police Department members led to federal prosecution for conducting drug transactions within 1,000 feet of a school. Id. ¶¶ 67, 71. The federal indictments rested almost exclusively on evidence generated and information provided by Police Department members. Id. ¶ 68. All thirty-seven people who were targeted for buy- walks and surveillance, and subsequently arrested and prosecuted for selling narcotics within 1,000 feet of a school pursuant to the Operation-including the seven Plaintiffs in this case-were Black. Id. ¶¶ 70- 71. The numbers speak for themselves. So, too, do the words and actions of members of the Police Department. One officer was captured on video saying “fucking BMs,” i.e., Black males, during surveillance and was warned that he was being recorded (“shh, hey, I’m rolling”) by his partner. Id. ¶¶ 34, 88. Another was videotaped choosing not to engage in an undercover buy with an Asian-American person in favor of engaging with and targeting a Black person. Id. ¶¶ 45, 88. The Tenderloin is a racially diverse neighborhood with a high incidence of drug sales and use across a number of racial groups. Id. ¶¶ 52-53. One set of survey results, for example, suggests that approximately half of the persons who sell drugs within the Tenderloin are Black, while 20% are Latino and 17% are white. Id. ¶ 56. Yet Police Department members targeted Black people for buy-walks and surveillance that led to federal prosecution. Id. ¶¶ 52-58, 85. The crimes with which Plaintiffs and the other people arrested in the Operation were charged involved small amounts of drugs sold, such as one “rock” of crack. Id. ¶ 74. But because almost every part of the Tenderloin is within 1,000 feet of a school, these individuals faced at least one-year mandatory minimum sentences under 21 U.S.C. §§ 841 and 860. Id. ¶¶ 61-62, 71, 73-75. By contrast, there are no mandatory minimum sentences for drug-related offenses under California law. Id. ¶ 75. In engaging in racially selective targeting while discharging their duties for the Operation, Police Department members were acting pursuant to and consistent with longstanding Police Department customs and practices of racially biased policing. FAC ¶¶ 203-207, 324-328. Since at least 2002, reputable reports by experts in police practices have documented widespread racial bias in the Police Department; systemic racial disparities in every aspect of the criminal justice system over which the Police Department has influence, with Black people overrepresented in traffic stops, searches, use of Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 11 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC force, officer-involved shootings, arrests, bookings, and pretrial detention; the Police Department’s failure to attempt to implement recommendations made by expert panels to address these documented disparities; and the Police Department’s failure to discipline and even promoting officers known to have engaged in exchanging explicitly racist text messages or posting racially offensive videos. Id. ¶¶ 93-202. In the federal criminal prosecutions that followed the Operation arrests, a group of the Black arrestees represented by the Federal Public Defender moved for discovery relating to claims of racially discriminatory selective enforcement and prosecution. FAC ¶¶ 77-80. The motion was supported by declarations, exhibits, expert reports, and statistical analyses showing that (1) there were many similarly situated non-Black dealers in the Tenderloin who could have been targeted but were not; (2) there was evidence of explicit racial bias on the part of some of the individual officers involved in the buy-walks; and (3) the Police Department has a well-documented history of tolerating racism by its officers against Black people. Id. ¶ 81. This Court granted the motion for discovery relating to selective enforcement, finding that the Black arrestees had submitted sufficient threshold evidence to show both discriminatory effect and discriminatory intent. Id. ¶¶ 85-89;1 FAC Ex. A, ECF No. 48-1, at 1047-63. Following the Court’s Order, the prosecution and defense engaged in some discovery, but the USAO ultimately dropped the charges. FAC ¶¶ 89-91. On October 3, 2018, Plaintiffs commenced this action to bring claims based on selective enforcement under the Equal Protection Clause and Title VI. On January 11, 2019, Plaintiffs filed the FAC, adding Plaintiff Tiana Reddic, adding 15 individual defendants, and clarifying some of their allegations in response to Defendants’ original Motion to Dismiss and to Strike, ECF No. 37. III. ARGUMENT In support of Rule 12(b)(6) dismissal, Defendants rely heavily on improper factual assertions that cannot be considered at the pleading stage. Defendants’ argument that Plaintiffs’ claims are untimely fails under controlling Ninth Circuit precedent, which establishes that Plaintiffs are entitled to statutory 1 The Court’s relevant findings included: 100% of the individuals targeted were Black; there was considerable evidence that similarly situated non-Black people were known to law enforcement but were not targeted for enforcement in the Operation; an officer conducting an undercover buy-walk was video- recorded declining an offer from an Asian dealer and purposefully waiting for a Black suspect to target her; and officers were recorded using racially explicit language to refer to targets. FAC ¶¶ 85-86. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 12 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC tolling while their federal criminal charges were pending. Defendants also err in asserting that Plaintiffs have not stated a viable equal protection claim. As shown below, Plaintiffs have alleged sufficient circumstantial and direct evidence to state selective enforcement claims against the City and the named Police Department members, as allowed under Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66 (1977) (“Arlington Heights”). The fact that Defendants have arrested people of other races in the Tenderloin on state drug charges is no defense to racially selective enforcement in connection with the Operation. Nor does the role of the USAO in initiating the prosecutions sever Defendants’ liability for selective enforcement. Defendants’ prosecutorial independence argument is based on inapposite case law addressing Fourth Amendment claims for which a plaintiff must show lack of probable cause. And Plaintiffs have alleged sufficient facts to show that supervisory officers, including Defendant Redmond and Defendant Cherniss, knew about, acquiesced, and failed to intervene in their supervisees’ selective targeting of Black people in the Operation. Nor have Defendants met their burden to support striking up to one-third of the paragraphs in the FAC, which relate to this Court’s findings in United States v. Mumphrey, No. 3:14-cr-00643-EMC, the many reports documenting racially troubling trends in policing practices by the Police Department and the Department’s failure to do anything about them, and widely reported incidents of racially offensive conduct by Police Department members that was never adequately addressed. A. The legal standard for a Rule 12(b)(6) motion to dismiss requires the Court to construe the allegations in the light most favorable to Plaintiffs and to reject Defendants’ own assertions of fact. “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A court must accept a complaint’s factual allegations as true unless they are “merely conclusory, unwarranted deductions of fact, or unreasonable inferences,” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008), and must construe them “in the light most favorable to the nonmoving party,” Patterson v. Van Arsdel, 883 F.3d 826, 829 (9th Cir. 2018) (internal quotation marks and citation omitted). In deciding a Rule 12(b)(6) motion, a court must consider only the four corners of the complaint, documents incorporated into the complaint by reference, and matters subject to judicial notice. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam). In Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 13 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC order to dismiss a claim based on untimeliness under Rule 12(b)(6), it must be “apparent on the face of the complaint” that the statute of limitations has run. U.S. ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174, 1178 (9th Cir. 2013) (internal quotation marks and citation omitted). B. Defendants make myriad factual assertions that misstate the allegations in the FAC, are not subject to judicial notice, or have no support at all. Throughout their Memorandum of Points and Authorities, ECF No. 54-1 (“Defs.’ Mem.”), Defendants misstate allegations in the FAC; make factual assertions based on materials that are not judicially noticeable (and frequently not even supported by the materials of which they seek judicial notice), as shown in the concurrently filed Plaintiffs’ Opposition to Defendants’ Request for Judicial Notice; and make other factual assertions that lack any citation. This is improper. Defendants are not entitled at the pleading stage to present and rely on their own version of the facts, let alone to suggest facts that have no basis in any materials that are properly before the Court at this time. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018), petition for cert. filed sub nom., Hagan v. Khoju, No. 18-1010 (Feb. 4, 2019). The subject matter of Defendants’ improper factual assertions, none of which can be relied on in deciding this Motion, includes: - Repeated assertions that the USAO decided whom to prosecute based on a set of criteria devised by the USAO and that Plaintiffs met that criteria; that the USAO’s reliance on these criteria explains the stark racial disparity of these arrests; that the USAO was aware of every suspects’ race when it decided whom to prosecute; and that the Police Department “do[es] not believe” that the USAO prosecuted Plaintiffs because of their race. Defs.’ Mem. at 1-3, 10- 11; Request for Judicial Notice in Support of Defs.’ Mem., ECF No. 55 (“RJN”) Ex. A, Ex. C, Ex. G. - Claims about the impetus for the Operation; the creation of a task force by the DEA; the delegation of responsibilities between the USAO, the DEA, and the Police Department; joint decision-making about surveillance by the DEA and Police Department officers; and the presence of DEA agents during surveillance. Defs.’ Mem. at 2-3, 11; RJN Exs. A-D. - An assertion that the USAO provided a map identifying approved areas where task force members should conduct surveillance. Defs.’ Mem. at 3; RJN Ex. D. - An assertion that the USAO obtained the warrants authorizing Plaintiffs’ arrests. Defs.’ Mem. at 3, 5, 10; RJN Ex. C. - Claims that the Police Department was denied an opportunity-by the Court, the USAO, and the defense-to defend itself against allegations of racism in the consolidated criminal cases. Defs.’ Mem. at 3-4, 11, 14; RJN Ex. E, Ex. H. - An assertion that Defendants are required to be “cautious in providing assistance to the Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 14 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC federal government concerning” those at risk of deportation, referring to “Hispanic or Latino drug dealers in the Tenderloin.” Defs.’ Mem. at 10 n.5. - An assertion that relevant records have “disappeared” and that Defendants have suffered prejudice by the passage of time since Plaintiffs’ claims accrued. Defs.’ Mem. at 8; Ex. F. These factual assertions are not grounded in the FAC or any judicially noticeable facts and should be disregarded.2 C. Plaintiffs’ claims are timely. The parties agree that the statute of limitations for Plaintiffs’ claims is two years.3 The parties also agree that Plaintiffs’ claims accrued at the earliest when the Federal Public Defender began pursuing discovery relating to selective enforcement in 2015. Defs.’ Mem. at 5.4 The parties disagree as to whether the two-year statute of limitations was tolled from that date until the criminal charges were dismissed, on January 25, 2017. FAC ¶ 91. Defendants’ arguments against tolling are based on an incorrect rejection of tolling rules that are well settled under California law, which the Ninth Circuit has held apply to § 1983 claims. Pursuant to California Government Code section 945.3 as interpreted and applied by the Ninth Circuit, Plaintiffs’ claims were tolled from the moment they accrued until the federal criminal charges against them were dismissed. Plaintiffs timely filed the Complaint within two years of the dismissals of these charges, on October 3, 2018.5 Even if the Court were to hold that section 945.3 did not toll the limitations period, Plaintiffs would satisfy the factors supporting equitable tolling. 2 It is apparent on the face of their Memorandum when Defendants have made factual assertions relying on their Request for Judicial Notice or on no source at all. While they purport to rely on paragraphs in the FAC for other improper assertions, frequently the cited paragraphs do not support Defendants’ “facts.” Plaintiffs dispute Defendants’ reliance on the FAC for factual assertions in their Memorandum on page 1:3-10, page 2:23-26, page 3:5-13, page 4:3, page 11:16-17, and page 14:21-22. 3 Klein v. City of Beverly Hills, 865 F.3d 1276, 1278 (9th Cir. 2017) (§ 1983 claims arising in California have a two-year statute of limitations); Rahimi v. S.F. Mun. Transp. Agency, No. 16-cv-02576-JST, 2017 WL 3453346, at *4 (N.D. Cal. Aug. 10, 2017) (same, for Title VI claims). 4 Defendants do not give an exact date. The Federal Public Defender first raised selective enforcement in a March 31, 2015 motion to relate cases, FAC ¶ 78, and filed the motion to compel discovery relating to selective enforcement, the subject of the Court’s ruling in United States v. Mumphrey, on July 16, 2015. 5 The FAC, filed on January 11, 2019, relates back to the filing of the original Complaint pursuant to Rule 15(c)(1)(A)-(B), but even if it did not, it was still filed within two years of the dismissals. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 15 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC 1. Under California law, as applied by the Ninth Circuit, Plaintiffs were entitled to statutory tolling while the federal criminal charges were pending. A federal court adjudicating a § 1983 claim arising in California must “apply California’s tolling rules that are not inconsistent with federal law.” Morales v. City of Los Angeles, 214 F.3d 1151, 1155 (9th Cir. 2000).6 California Government Code section 945.3 prohibits a plaintiff from bringing a civil action for damages against any peace officer or against a public entity that employs a peace officer- based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, while the charges against the accused are pending before a superior court. Any applicable statute of limitations for filing and prosecuting these actions shall be tolled during the period that the charges are pending before a superior court. Id. (emphasis added). Addressing the italicized tolling provision in section 945.3, the Ninth Circuit held that there is “no inconsistency between the purposes of section 945.3’s tolling provision and the policies behind § 1983.” Harding v. Galceran, 889 F.2d 906, 908-09 (9th Cir. 1989). Harding establishes that a plaintiff pursuing a § 1983 claim against a peace officer or an entity that employs a peace officer in California is entitled to invoke section 945.3’s tolling provision. Id. at 908-09.7 In so holding, the Court emphasized that “federal law requires this court to apply state tolling rules, [and] application of section 945.3’s tolling provision ensures consistent adjudication in state and federal courts.” Id. at 909. Since Harding, the Ninth Circuit and federal district courts have repeatedly applied section 945.3’s tolling provision to § 1983 claims arising in California. See, e.g., Deocampo v. Potts, 836 F.3d 1134, 1137 n.1 (9th Cir. 2016) (holding that section 945.3 applied to toll the statute of limitations for plaintiffs’ § 1983 claim while criminal charges against them were pending); Harper v. County of Merced, 6 The following analysis applies equally to Plaintiffs’ Title VI claims, which are subject to the same state tolling rules. See Bassette v. City of Oakland, No. C-00-1645 JCS, 2000 WL 33376593, at *3 (N.D. Cal. Aug. 11, 2000) (state tolling applies to Title VI claims); Rogers v. Richard, No. 2:17-cv-00149-JAM- GGH, 2018 WL 1185226, at *1 (E.D. Cal. Mar. 7, 2018) (Hollows, M.J.) (applying section 945.3 tolling to Title VI claim). 7 The Ninth Circuit also held in Harding that under the Supremacy Clause, Section 945.3 could not serve as a prohibition on filing a § 1983 claim. Although this additional holding is not relevant here, Harding establishes that a § 1983 plaintiff may file her federal claim while criminal charges are pending, but she is not required to do so and has the benefit of statutory tolling until those charges are no longer pending. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 16 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC No. 1:18-cv-00562-LJO-SKO, 2018 WL 5880786, at *3 (E.D. Cal. Nov. 8, 2018) (same); Malik v. City & Cty. of San Francisco, No. 17-cv-06954, 2018 WL 3159718, at *6 (N.D. Cal. June 28, 2018) (same); Tarantino v. City of Concord, No. C-12-00579 JCS, 2013 WL 3722476, at *11 (N.D. Cal. July 12, 2013) (same); Harned v. Landahl, 88 F. Supp. 2d 1118, 1122 (E.D. Cal. 2000) (same).8 As binding precedent, Harding and Deocampo, which like this case addressed the application of section 945.3’s tolling provision to federal claims against county and city law enforcement officers, are fatal to Defendants’ argument that Plaintiffs are not entitled to statutory tolling under section 945.3. Because Plaintiffs filed the Complaint within two years of the dismissal of the criminal charges against them, their claims are timely. Without ever addressing Harding or Deocampo, Defendants claim that section 945.3’s tolling provision does not apply to charges that were pending in a federal criminal case because a federal district court is not a “superior court.” Defs.’ Mem. at 6-7. This rigidly textual argument, for which Defendants provide no legal authority, fails for several reasons. First, it cannot be reconciled with Harding or Deocampo. Second, state and federal courts recognize that section 945.3 should be construed broadly, not restrictively, to effectuate the statute’s underlying purpose of allowing people to bring civil claims after the conclusion of criminal proceedings. For example, in Schmidlin v. City of Palo Alto, 157 Cal. App. 4th 728 (2007), as modified (Jan. 2, 2008), the court applied section 945.3 to a civil damages claim arising out of a misdemeanor citation, even though no charging document was ever “pending” before a superior court. Id. at 761. Notwithstanding the “literal language” of the statute, the court reasoned that construing section 945.3 to exclude misdemeanor citations would frustrate legislative intent by “encourag[ing] a race to the courthouse between law enforcement authorities and arrestees.” Id. at 758. Similarly, in McAlpine v. Superior Court, 209 Cal. App. 3d 1 (1989), the court held that the plaintiff’s civil claim was tolled until the date of judgment and sentence, notwithstanding the literal language of the statute. According to the court, the defendants’ overly restrictive interpretation of the phrase “charges . . . are pending,” which would have cut off tolling as of the earlier date of adjudication of guilt by conviction, 8 See also Trimble v. City of Santa Rosa, 49 F.3d 583, 585-86 (9th Cir. 1995) (holding that section 945.3 tolls the statute of limitations for a § 1983 claim but that despite tolling, plaintiff’s claim was untimely). Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 17 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC would have frustrated the “legislative policy of preventing the bargaining use of civil suits.” Id. at 7-8. Following Schmidlin and McAlpine, the Court here should reject a narrow reading of the phrase “superior court” in section 945.3 and should instead construe this language broadly to mean any trial court, including a federal district court. This would effectuate the statute’s intended purpose: “avoiding the use of a civil complaint as a bargaining chip in plea negotiations, and preventing the use of civil discovery tools to probe the prosecution’s case in a related criminal matter.” Schmidlin, 157 Cal. App. 4th at 758; see also Harding, 889 F.2d at 908-09 (describing the legislative purpose of section 945.3 “to prevent the use of civil actions as a discovery device to inquire into prosecutorial information while the criminal charge is pending” (citing McMartin v. Los Angeles County, 202 Cal. App. 3d 848, 855-56 (1988))). Indeed, considering a scenario on all fours with this case, in Harned the district court held that section 945.3 tolled the plaintiff’s § 1983 claims while his criminal charges were pending in federal district court (not state superior court), reasoning that the legislative purpose of preventing manipulation of one proceeding by another would apply equally “whether the criminal action is pending in state or federal court.” Harned, 88 F. Supp. 2d at 1122. In so holding, the Harned court relied on the Ninth Circuit’s holding in Harding, emphasizing that “unless the tolling provision is inconsistent with the purposes of the federal statute ‘it must be applied’” and that the California legislature intended for section 945.3 to “‘eliminate the use of civil damage complaints as plea bargaining levers’” to affect ongoing criminal proceedings. Id. (quoting Harding, 889 F.2d at 908-09). Defendants make two attempts to distinguish Harned. Neither succeeds. Their argument that Harned disregards the plain statutory language, Defs.’ Mem. at 7-8, is contrary to the consistent line of state and federal cases recognizing that section 945.3 should be construed and applied liberally, not narrowly. Moreover, their reliance on Matthews v. Macanas, 990 F.2d 467 (9th Cir. 1993), abrogated on other grounds, Chanley v. Gillis, 466 Fed. Appx. 582 (9th Cir. 2012), and Mitchell v. Culver, No. 2:15- CV-00058-GEB-CMK, 2015 WL 5037398 (E.D. Cal. Aug. 25, 2015), is unavailing. Defs.’ Mem. at 8. Matthews and Mitchell each held that section 945.3’s tolling provision was limited to claims against state peace officers and the public entities that employ them and thus did not toll civil damages claims against federal law enforcement agents. See Matthews, 990 F.2d at 469; Mitchell, 2015 WL 5037398, at *2. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 18 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC The courts’ narrow construction in Matthews and Mitchell of “peace officer” in section 945.3 to exclude federal agents is not inconsistent with the broad construction of the term “superior court” in Harned and Schmidlin. In Matthews and Mitchell, no state interests were affected by an outcome releasing federal officers from potential liability for alleged constitutional violations, so there was no obligation to construe the term broadly to effectuate state legislative intent. By contrast, this case, like Schmidlin and Harned, implicates critical state interests in the accountability of California peace officers and the City for racial targeting of California citizens, and thus section 945.3 should be construed consistent with state and federal court precedent to achieve these legislative objectives. Indeed, the very reasons why federal courts apply state law in deciding the timeliness of § 1983 claims in cases where state-law interests, such as accountability of state peace officers, are at stake is because state statutes of limitations and tolling rules reflect the state’s “‘value judgment concerning the point at which the interests in favor or protecting valid claims are outweighed by the interest in prohibiting the prosecution of stale ones.’” Harding, 889 F.2d at 908 (citation omitted).9 Finally, the legislative history of section 945.3 confirms the legislature’s intent to apply the tolling provision to criminal proceedings in any trial court, without limitation to a state superior court. In that history, the bill was described multiple times as a law that would toll the filing of a civil damages action against peace officers and their employers while related criminal charges are pending in or before “a trial court” or “at the trial level.” Pls.’ Request for Judicial Notice, filed herewith, Exs. A-E.10 In sum, pursuant to section 945.3, as interpreted and applied by the Ninth Circuit and district courts in this Circuit, Plaintiffs’ federal claims were tolled from the time of their accrual until the 9 There is no support for Defendants’ contention that because the California Tort Claims Act has a six- month claim presentment requirement for state-law claims against state governmental defendants, tolling Plaintiffs’ federal claims would be inconsistent with state policy to give timely notice. Defs.’ Mem. at 7. State-law claim presentment requirements do not apply to federal claims, see Boston v. Kitsap Cty., 852 F.3d 1182, 1185 (9th Cir. 2017), and as shown above, there is unanimity among federal and state courts that section 945.3’s tolling provision reflects a valid legislative purpose, whether applied to pending state or federal charges. Nor is there any support for Defendants’ assertion that section 945.3 tolling is limited to claims arising under the Tort Claims Act. Cf. Defs.’ Mem. at 8. 10 The statutory definition of “superior court” in the California Constitution is inapposite. Cf. Defs.’ Mem. at 8. The cited constitutional provisions vest the judicial power of the State of California and delineate differences between its different levels. See Cal. Const. Art. VI, §§ 1, 4-6. The California legislature would not purport to have the power to vest the judicial power of the United States and, therefore, had no need to reference or expressly exclude federal courts from those definitions. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 19 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC criminal charges against them were no longer pending, on January 25, 2017. Plaintiffs timely commenced this action on October 3, 2018, before the two-year limitations period had run. 2. In the alternative, Plaintiffs are entitled to equitable tolling. Even if section 945.3 did not toll Plaintiffs’ claims (it does), the Court should apply California’s equitable tolling rules and find Plaintiffs’ claims timely. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (holding a federal court applies the forum state’s equitable tolling laws unless they are inconsistent with federal law). Equitable tolling in California “operates independently of the literal wording of the Code of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” Id. at 928 (internal quotation marks and citation omitted). In Jones, the Court concluded that the trial court committed reversible error in failing to apply equitable tolling after finding that the § 1983 plaintiff was not entitled to statutory tolling (under a provision in the California Civil Procedure Code section that is inapplicable here). Id. The Ninth Circuit emphasized that “[t]he purpose of California’s equitable tolling doctrine ‘is to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.’” Id. (internal quotation marks and citation omitted). Weighing the “generic public policy interest in ensuring prompt resolution of legal claims” against “[t]he injustice arising from a refusal to toll the statute of limitations for [the plaintiff],” the court held that equitable tolling was appropriate because otherwise the plaintiff’s § 1983 claims would have run while he was in jail and subject to library restrictions. Id. at 928-29. Defendants’ bare invocation of prejudice, Defs.’ Mem. at 9, is insufficient to foreclose equitable tolling at the pleading stage.11 The equitable tolling analysis is complex and fact-intensive. See Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1133 (9th Cir. 2001) (en banc). Indeed, Jones was an appeal from summary judgment, based on a fully developed factual record. If the Court declines to apply statutory tolling here, it should allow Plaintiffs an opportunity to gather and present evidence 11 Defendants again make improper factual assertions that relevant records have “disappeared,” based on a record retention policy, of which they seek judicial notice. That policy does not establish beyond dispute why Defendants claim that the records have “disappeared” or what the triggering date is for the three-year retention period. Given that the criminal proceedings were not dismissed until January 2017, under that policy the records should be retained through 2020, in addition to the litigation hold that now applies given the commencement of this action in October 2018. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 20 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC supporting equitable tolling and consider Defendants’ prejudice claim after the development of the factual record, because “[o]nly then will the district court be in a position to engage in the practical fact- specific and evidence-bound inquiry required under California law.” Daviton, 241 F.3d at 1142. D. The FAC alleges sufficient facts to support a § 1983 selective enforcement claim. To plead an equal protection claim for selective enforcement, Plaintiffs must allege facts showing that the “‘enforcement had a discriminatory effect and the police were motivated by a discriminatory purpose.’” Lacey v. Maricopa Cty., 693 F.3d 896, 920-21 (9th Cir. 2012) (quoting Rosenbaum v. City & Cty. of S.F., 484 F.3d 1142, 1152 (9th Cir. 2007)); see also United States v. Mumphrey, 193 F. Supp. 3d 1040, 1044-45 (N.D. Cal. 2016). As set forth below, the FAC easily satisfies this standard.12 Defendants, however, assert that: (1) Plaintiffs have not alleged sufficient facts to show discriminatory motivation by Police Department officers; (2) the USAO’s prosecutorial discretion cuts off any liability for the Police Department and its officers; and (3) Plaintiffs’ factual allegations are insufficient to establish supervisory liability of Defendants Cherniss and Redmond. These arguments lack merit, as shown below. 1. The FAC alleges facts that support an inference of discriminatory motivation by Defendants. Defendants do not dispute that Plaintiffs have alleged facts showing discriminatory effect, one prong of the selective enforcement analysis.13 Instead, they challenge Plaintiffs’ allegations concerning the second prong-discriminatory purpose. Defs.’ Mem. at 9-10. To survive dismissal, Plaintiffs need only plead allegations that give rise to a plausible inference that “a discriminatory purpose was a motivating factor in the decisions” to target Plaintiffs for the buy- walks and surveillance that led to their arrests on federal drug charges. See, e.g., Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1124 (N.D. Cal. 2018) (“[G]overnment action may violate equal protection if a 12 Defendants do not address Plaintiffs’ Title VI claim. Nonetheless, for the same reasons that Plaintiffs have adequately pled § 1983 claims based on selective enforcement, their Title VI claims also survive dismissal. See The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009) (noting that Title VI and equal protection claims require the same proof). Plaintiffs’ Title VI claim additionally requires allegations of federal financial assistance, which the FAC alleges and Defendants do not challenge. See FAC ¶¶ 22, 351-354. 13 Plaintiffs allege facts showing discriminatory effect, inter alia, in Paragraphs 54, 56, 70-71, and 85 of the FAC. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 21 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC discriminatory purpose was one motivating factor.” (quoting Arlington Heights, 429 U.S. at 265-66 (emphasis added))); accord Avenue 6E Investments, LLC v. City of Yuma, 818 F.3d 493, 504 (9th Cir. 2016); see also Magana v. Commonwealth of the Northern Mariana Islands, 107 F.3d 1436, 1448 (9th Cir. 1997), as amended (May 1, 1997) (to survive dismissal of § 1983 discrimination claim, complaint need only “set[] forth facts from which a trier of fact could infer discriminatory intent”). An “invidious discriminatory purpose may often be inferred from the totality of the relevant facts” and does not require smoking gun allegations. Washington v. Davis, 426 U.S. 229, 242 (1976). To allege discriminatory motivation, Plaintiffs may rely on circumstantial evidence, direct evidence, or both. See Avenue 6E, 818 F.3d at 504; Ramos, 321 F. Supp. 3d at 1125 (“Plaintiffs need only plausibly plead direct or circumstantial evidence of discriminatory intent[.]”). While circumstantial or direct evidence would satisfy their burden at the pleading stage, Plaintiffs allege both in the FAC. They alleged that everyone targeted and charged in the Operation was Black even though Police Department members knew people of other racial identities sell drugs in the Tenderloin. See FAC ¶¶ 54, 56, 58, 70-73. This stark pattern alone suffices to show discriminatory intent. See Gomillion v. Lightfoot, 364 U.S. 339, 340-41 (1960); Yick Wo v. Hopkins, 118 U.S. 356, 373- 74 (1886); see also Arlington Heights, 429 U.S. at 266 (“Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.”). Although allegations concerning the invariant focus on Black people for surveillance and buy- walks would suffice, Plaintiffs allege far more: that the decisions to target the 37 Operation Arrestees (“OSS Arrestee(s)”) were deliberate and intentional, FAC ¶ 72; that defendant officers who conducted buy-walks and surveillance used racially explicit language when conducting surveillance, id. ¶ 86(d); and that another officer declined an undercover drug transaction with an Asian dealer, instead targeting a Black OSS Arrestee, id. ¶¶ 85(b)(iv), 86(e). Plaintiffs also allege that an expert statistical analysis concluded that there was a greater than 95% likelihood that the selection of only Black OSS Arrestees was not the result of chance-in other words, that it was intentional. Id. ¶¶ 85(c), 86(a). Plaintiffs further show that each named Police Department member, in discharging his duties pursuant to the Operation, Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 22 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC engaged in specific conduct for which he can be held liable.14 See id. ¶¶ 26-44. Finally, Plaintiffs allege relevant historical facts suggesting a long history of racially-motivated policing and a culture that tolerates racism against Black people. See FAC ¶¶ 103-202; Arlington Heights, 429 U.S. at 267 (noting that historical background is an evidentiary source for showing discriminatory intent); Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1163-64 & n.29 (9th Cir. 2013) (considering historical background factor in evaluating claim based on selective enforcement). These allegations of direct and circumstantial evidence support an inference that discriminatory intent was a motivating purpose behind the challenged enforcement of federal drug laws in the Tenderloin neighborhood pursuant to the Operation. Defendants’ only response to Plaintiffs’ showing is an assertion that they have also arrested non-Black people for drug trafficking crimes in the Tenderloin. Defs.’ Mem. at 10. This argument fails for three reasons. First, the Supreme Court and the Ninth Circuit have repeatedly rejected the “overdiscrimination” argument that Defendants make here. Whether individuals of other races were targeted by the Police Department for state-level drug-law enforcement cannot immunize Defendants’ racially discriminatory targeting of Plaintiffs in the Operation. “A single invidiously discriminatory governmental act is not immunized by the absence of such discrimination in the making of other comparable decisions.” Johnson v. California, 545 U.S. 162, 169 n.5 (2005) (internal quotation marks and citation omitted). “[A] consistent pattern of official racial discrimination is [not] a necessary predicate to a violation of the Equal Protection Clause.” Arlington Heights, 429 U.S. at 266 n.14. Thus, in Arlington Heights, the Court held that even if a rezoning decision denied housing opportunities to some white residents, it would still violate the Equal Protection Clause if it was motivated in part by an intent to exclude Black people. Id. at 270; see also Pac. Shores Props., 730 F.3d at 1160-61, The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 703-04 (9th Cir. 2009) (both rejecting a requirement to show that no one outside the protected class was harmed in order to establish an equal protection violation). Indeed, in Modesto, the challenged conduct would have harmed significant white populations, in addition to 14 Defendants do not assert that the City would not be liable based on actions of the individual Police Department members and thus concede that if the FAC pleads sufficient facts to establish liability of the Individual Defendants, it also adequately alleges the City’s liability. See also infra Part III.E. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 23 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC Latinos. Modesto, 583 F.3d at 704. Whether, outside the context of the Operation, the Police Department has arrested people of other races for state drug charges does not preclude a finding that the targeting of Plaintiffs for enforcement in the Operation was at least in part racially motivated. That every single person arrested in the Operation for federal prosecution was Black is highly probative that it was. Second, it is appropriate to compare the racial composition of people targeted by the Police Department in the Operation for buy-walks and surveillance that ultimately led to federal drug charges to the racial composition of people whom the Police Department has arrested on state-law drug charges. The federal indictments that resulted from Defendants’ conduct “carried the stigma of federal prosecution and a mandatory minimum one-year sentence.” FAC ¶ 75. The fact that the Police Department targeted only Black people for enforcement in the Operation, which led to more serious charges and potential penalties than state charges, when the alleged evidence shows they could have also targeted people of other races, is probative of discriminatory purpose. As a fallback, Defendants assert that the stark pattern of arrests in the Operation “is the result of the federal government’s required criteria and its enforcement priorities, not purposeful and intentional discrimination on the part of individual officers.” Defs.’ Mem. at 10.15 Defendants offer no citation for this claim-not to facts pled in the FAC or to judicially noticeable facts. Of course, Defendants’ own version of the facts cannot support dismissal. Khoja, 899 F.3d at 998. Instead, the asserted justifications for the stark pattern of racially selective enforcement in the Operation should be tested during discovery. Moreover, it is no defense to racial discrimination to say that “I discriminated because someone else told me to,” even when that someone else is the federal government. Cal. Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, 1049-50 (9th Cir. 1999) (holding that individuals are not immunized from § 1983 liability “simply because they were enforcing policies or orders” (internal quotation marks and citation omitted)); Kennedy v. City of Cincinnati, 595 F.3d 327, 337 (6th Cir. 2010) (“[P]ublic officials have an obligation to follow the Constitution even in the midst of a contrary directive from a superior or in a policy.” (emphasis added, internal quotation marks and citation omitted)). 15 Defendants’ excuse that they were only following orders from the federal government in targeting Black people for surveillance and buy-walks is difficult to square with their astounding yet unsupported suggestion that they may have intentionally excluded “Hispanic or Latino” people from enforcement, presuming them to be undocumented and at risk of deportation. Defs.’ Mem. at 10 n.5. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 24 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC 2. Prosecutorial discretion by the federal government does not “cut off” liability for targeting that itself constituted racial discrimination. Defendants next contend that they cannot be liable for racially motivated selective enforcement because they handed over Plaintiffs to the federal government for arrest and prosecution. Defs.’ Mem. at 10-12. Not so. The Police Department’s conduct would constitute racial discrimination even if Plaintiffs had not been prosecuted by the federal government.16 Defendants do not provide any legal authority to show that prosecutorial discretion cuts off the chain of causation in an equal protection claim for selective enforcement (or any other equal protection violation). Defendants rely on Fourth Amendment cases involving claims for false arrest and malicious prosecution, which require a showing of lack of probable cause. In such cases, courts apply a rebuttable presumption of prosecutorial independence-“an evidentiary presumption . . . that the prosecutor filing a criminal complaint exercised independent judgment in determining that probable cause for an accused’s arrest existed, thereby breaking the chain of causation between an arrest and prosecution . . . .” Beck v. City of Upland, 527 F.3d 853, 862 (9th Cir. 2008) (internal quotation marks, alterations, and citation omitted); see also Awabdy v. City of Adelanto, 368 F.3d 1062, 1067, 1068-69 (9th Cir. 2004) (analyzing presumption of prosecutorial independence in the context of the probable cause element of a malicious prosecution claim, and holding that the plaintiffs pled sufficient facts to rebut the presumption of prosecutorial independence). Unlike in the Fourth Amendment probable cause cases cited by Defendants, the absence of probable cause is not an element of Plaintiffs’ selective enforcement claims. For example, in Nickerson v. Portland Police Bureau, No. CIV. 08-217-HU, 2008 WL 4449874, at *9 (D. Or. Sept. 30, 2008), the court rejected the argument that a claim for selective enforcement based on race should be dismissed because the officer had probable cause to surveil the plaintiff, holding: The problem with the City’s [probable cause] argument here is that it is directed toward a Fourth Amendment claim, not a Fourteenth Amendment claim. Plaintiff’s race discrimination claim does not contend there was no 16 Defendants rely on a number of unsupported factual assertions in this section, including that the U.S. Attorney’s Office had information about the race of the criminal defendants before it sought indictments, had “the officer statements alleged by the plaintiffs” to show racial bias, and made independent decisions to prosecute despite knowledge of race, but that Defendants “do not believe that the USAO prosecuted plaintiffs” because of race. These statements exceed the four corners of the FAC and are improper. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 25 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC probable cause for the citation. Rather, he states that [the officer] followed him and cited him because of his race. Id. at *9 (citing, inter alia, Whren v. United States, 517 U.S. 806, 813 (1996)). Because the presence or absence of probable cause plays no role in the analysis of Plaintiffs’ claims based on racially motivated selective enforcement, the rebuttable presumption of prosecutorial independence in the cases cited by Defendants is inapposite.17 Plaintiffs’ claims are predicated on the underlying conduct of the Police Department in profiling them based on their race. Defendants cannot escape liability by pointing the finger at the federal government (through improper factual assertions). Even if the rebuttable presumption of prosecutorial independence applied in this equal protection case (it does not), Plaintiffs have alleged facts to overcome it. See FAC ¶¶ 64-68, 72 (alleging that Police Department members targeted particular individuals for buy-walks, and that it was those targeting decisions that led to their federal prosecutions). Federal prosecutors exercised zero discretion in bringing charges arising from the second wave of buy-walks, which included all seven Plaintiffs.18 Without the targeting by Police Department members, the prosecutions of Plaintiffs and the other Black people arrested in the Operation never would have happened. 3. The FAC sufficiently pleads supervisory liability. The FAC pleads facts sufficient to state a claim based on supervisory liability against Defendants Cherniss and Redmond under well-settled Ninth Circuit case law.19 “A defendant with supervisory responsibilities may be liable under § 1983 based on either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (internal quotation marks and citation omitted). In Starr, the Court held that the plaintiffs adequately pled supervisory liability with allegations that the defendant sheriff knew about unconstitutional conditions in the jail and his subordinates’ “culpable actions,” and that this knowledge, 17 The remaining authorities upon which Defendants rely in Part III.B (Defs.’ Mem. at 10-11) are also Fourth Amendment cases requiring lack of probable cause, in which the rebuttable presumption applies. 18 Paragraph 71 contains a typographical error. At page 16, line 6, it should read: “All seven Plaintiffs in this action were arrested in the second wave.” 19 Defendants do not challenge the sufficiency of Plaintiffs’ second cause of action as to Defendants Hagan, Liberta, or Nocetti. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 26 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC “coupled with his inaction, amounted to acquiescence in the unconstitutional conduct of his subordinates . . . . ‘[A]quiescence or culpable indifference’ may suffice to show that a supervisor ‘personally played a role in the alleged constitutional violations.’” Id. at 1208 (quoting Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005); see also Redman v. Cty. of San Diego, 942 F.2d 1435, 1446-48 (9th Cir. 1991) (similar). In Felarca v. Birgeneau, No. 11-CV-5719-YGR, 2014 WL 206762, at *5 (N.D. Cal. Jan. 17, 2014), the Court similarly found that a plaintiff pled supervisory liability with allegations that supervisory officers were aware that their subordinates had previously used excessive force but ordered them to use similar force and arrests again. Likewise here, Plaintiffs allege that Defendants Cherniss and Redmond supervised other officers and sergeants who participated in the targeting, surveillance, and arrests of Plaintiffs; knew or should have known that “racially selective enforcement was occurring on their watch” and did nothing to intervene; knew or should have known of the culture in the Police Department of allowing racially discriminatory policing but failed to address the deficiencies in training, supervision, and discipline that contributed to that pervasive pattern of discriminatory law enforcement practices; failed to take action to prevent Police Department members under their supervision from racially targeting Plaintiffs; and were deliberately indifferent to Plaintiffs’ constitutional rights. FAC ¶¶ 26-28, 203, 321-322, 329-331, 341. These allegations suffice to avoid dismissal of Redmond and Cherniss based on Starr and Redman. In claiming that Plaintiffs have not alleged sufficient facts to hold Defendants Redmond and Cherniss liable, Defendants ignore the record. They incorrectly assert that the only allegations relating to Cherniss and Redmond are contained in Paragraphs 27 and 28 of the FAC. See Defs.’ Mem. at 12. Defendants entirely disregard the detailed allegations establishing supervisory liability in Paragraphs 26, 203, 321-322, 329-331, and 339-341 of the FAC. Defendants further rely on an erroneous legal premise. They claim that Plaintiffs must allege that Defendants Cherniss and Redmond personally participated in the arrests and prosecutions. That is incorrect. The Ninth Circuit’s decision in Starr makes clear that after Ashcroft v. Iqbal, 556 U.S. 662 (2009), a plaintiff need not show that an officer directly participated in the events giving rise to a constitutional violation. The Court rejected the same argument that Defendants make here, holding that Iqbal did not impose any new requirement that a supervisor personally participated in the events giving Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 27 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC rise to the plaintiff’s claim. Starr, 652 F.3d at 1207 (holding that after Iqbal, a plaintiff may still “state a claim against a supervisor for deliberate indifference based upon the supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or her subordinates” (citing Dodds v. Richardson, 614 F.3d 1185, 1204 (10th Cir. 2010); Sandra T.E. v. Grindle, 599 F.3d 583, 591 (7th Cir. 2010); Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009))). The remaining authorities cited by Defendants are consistent with Starr: They affirm the availability of supervisory liability without a personal participation requirement, though on the specific facts of those cases, distinguishable from these facts, the allegations failed to satisfy the Ninth Circuit’s test in Starr.20 E. Motions to strike are disfavored and should be denied if there is any doubt whether the allegations bear on an issue in the litigation. Motions to strike under Rule 12(f) are disfavored. Petrie v. Elec. Game Card, Inc., 761 F.3d 959, 965 (9th Cir. 2014); Frenzel v. AliphCom, 76 F. Supp. 3d 999, 1006 (N.D. Cal. 2014). Rule 12(f) gives trial courts discretion to strike allegations from a complaint only if they are “redundant, immaterial, impertinent, or scandalous.” Fed. R. Civ. P. 12(f).21 In deciding a Rule 12(f) motion, the court must construe the pleadings in the light most favorable to the nonmoving party. In re 2TheMart.com, Inc. Secs. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). If there is any doubt whether the allegations might bear on an issue in the litigation, a court should not strike them. Id. Even if a matter that is the subject of a motion to strike is “literally within one or more of the categories set forth in Rule 12(f), “where the 20 See Moss v. United States Secret Service, 675 F.3d 1213, amended and superseded by 711 F.3d 941 (9th Cir. 2014) (holding that “[w]e have never required a plaintiff to allege that a supervisor was physically present when the injury occurred” but that the plaintiffs failed to allege specific facts to establish supervisors’ knowing acquiescence (quotation marks and citation omitted); Johnson v. City of Berkeley, No. 15-cv-05343-JSC, 2016 WL 928723, at *3 (N.D. Cal. Mar. 11, 2016) (similar); Alvarez- Orellana v. City of Antioch, No. C-12-4693 EMC, 2013 WL 3989300, at *6 (N.D. Cal. Aug. 2, 2013) (holding that a supervisor’s knowing acquiescence in the commission of constitutional deprivations would establish supervisory liability under § 1983 but that the plaintiff failed to allege the supervisor had notice of the alleged unlawful pattern or practice). 21 A “redundant” allegation is needlessly repetitive or wholly foreign to the issues involved in the case. Rees v. PNC Bank, N.A., 308 F.R.D. 266, 271 (N.D. Cal. 2015). An allegation is “immaterial” if it has “no bearing on the controversy before the court.” In re 2TheMart.com, 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). Relatedly, an “impertinent” allegation is one that is unnecessary to the issues in question. 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382 (Supp. 2018). An allegation qualifies as scandalous only if it rises to the level of “cast[ing] a cruelly derogatory light on a party or person.” Holmes v. Elec. Document Processing, Inc., 966 F. Supp. 2d 925, 938 (N.D. Cal. 2013) (internal quotation marks and citation omitted). Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 28 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC moving party fails to show prejudice, courts frequently deny motions to strike.” New York City Employees’ Ret. Sys. v. Berry, 667 F. Supp. 2d 1121, 1128 (N.D. Cal. 2009) (emphasis added); see also Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994); Holmes v. Elec. Document Processing, Inc., 966 F. Supp. 2d 925, 938 (N.D. Cal. 2013); Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004) (all requiring prejudice). F. The FAC is devoid of redundant, immaterial, impertinent, or scandalous allegations. Defendants seek to strike 119 of the FAC’s 360 paragraphs and three footnotes-approximately one-third of the FAC. Defendants focus on three categories of allegations: allegations based on the consolidated criminal cases that this Court addressed in United States v. Mumphrey; references to well- documented and widely reported exchanges of racist text messages and videos between Police Department members and the use of racially offensive, sexist, and trans- and homophobic language by Police Department members with people on the street; and references to seven studies (two of which were commissioned the City’s own district attorney and the U.S. Department of Justice, respectively) that describe a culture of racism and make findings showing a longstanding pattern of racially disparate policing at the Police Department. Defendants have not met their burden to show that any of the challenged allegations are impertinent, immaterial, scandalous, or prejudicial, as required by Rule 12(f). 1. References to United States v. Mumphrey are relevant and appropriate. Defendants ask the Court to strike all allegations based on United States v. Mumphrey, arguing that the Court’s holdings in the related criminal cases are irrelevant and based on an incomplete record. Plaintiffs appropriately rely on United States v. Mumphrey in pleading the facts of this case. The FAC summarizes the procedural history of the consolidated criminal cases against the OSS Arrestees. FAC ¶¶ 77-83, 89-91. It also cites this Court’s holdings relating to the OSS Arrestees’ threshold showing of discriminatory effect and discriminatory intent. Id. ¶¶ 84-88. These allegations are clearly relevant to why Plaintiffs-who are seven former OSS Arrestees-are now before the Court in this civil suit for selective enforcement under § 1983 and Title VI. Contrary to Defendants’ claims, the FAC never relies on United States v. Mumphrey to assert that the Court has already determined that the Police Department officers who participated in the Operation were motivated by racial bias. The FAC only states, accurately, that the Court made findings in United Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 29 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC States v. Mumphrey that there was a sufficient threshold showing that the thirty-seven arrests had a discriminatory effect and were motivated by discriminatory intent to justify allowing the OSS Arrestees to seek discovery. Relevant allegations based on a prior case are not subject to being stricken under Rule 12(f). See, e.g., Turano v. County of Alameda, No. 17-cv-06953-KAW, 2018 WL 5629341, at *8 (N.D. Cal. Oct. 30, 2018) (denying motion to strike references to a prior case which was relevant to issues in the new case); Villareal v. Cty. of Monterrey, 254 F. Supp. 3d 1168, 1179-80 (N.D. Cal. 2017) (same). See also Decl. of Jamie Crook (“Crook Decl.”), Exhibit 1 at 1-13 (responding to Defendants’ objections to specific paragraphs of the FAC). Moreover, Defendants are not prejudiced by the FAC’s allegations relating to United States v. Mumphrey. They repeatedly protest that they had no opportunity to respond to allegations of racism in the criminal proceeding because they were not served with the discovery motion and the USAO dismissed the indictments before Police Department could defend itself in court. E.g., Defs.’ Mem. at 14. Defendants have that opportunity now. Requiring Defendants to respond to the allegations in the FAC relating to the consolidated criminal cases and the Court’s ruling in United States v. Mumphrey will give Defendants the very chance they claim they were unfairly denied before. 2. Allegations of racially motivated conduct by Police Department members are relevant, not inflammatory or derogatory. Defendants next assert that the Court should strike all allegations of racially motivated conduct by Police Department members, including allegations that officers have exchanged racist text messages, posted racist videos online, and used racially offensive language with citizens on the street. Plaintiffs properly allege that Police Department members have used offensive language with each other and with the public; that the Police Department knew of such incidents for years; only took any action at all after those incidents became public when criminal charges were brought against certain officers and media coverage required a response; and has promoted officers known to the Department to have engaged in blatantly racist conduct. FAC ¶¶ 139-158. The FAC places these events in context, alleging that a documented history of racial bias within the Police Department and a failure to implement measures to prevent repetitions of racist conduct led to the violations in this case. Id. ¶¶ 203-207. The only scandalous matter here is the conduct of Police Department members. Plaintiffs have not used Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 30 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC derogatory or repulsive language to refer to any person or entity; they have alleged, based on reputable reports, the use of derogatory and repulsive language by Police Department members and inaction by the Police Department.22 Plaintiffs’ relevant allegations about a culture that tolerates and condones racially offensive actions by Police Department members are not scandalous as that term has been consistently interpreted and applied by courts in this Circuit.23 Judge Rogers of this Court recently denied a motion to strike allegations relating to the same text message scandals that Plaintiffs address in paragraphs 140-152 of the FAC, holding that they were relevant to the plaintiff’s claims of discrimination and retaliation by the Police Department, even though the plaintiff’s claims did not arise out of the text message scandals: The allegations in these paragraphs discuss a well-publicized situation at the San Francisco Police Department . . . in which mostly white officers sent text messages containing racist, homophobic, and transphobic slurs. Plaintiff alleges that [Former Chief] Suhr was aware of these texts, but delayed or avoided taking disciplinary action against the officers, and in fact promoted those officers. . . . These allegations are not so “redundant, immaterial, impertinent or scandalous” to warrant striking and are relevant context for plaintiff’s claims of discrimination and retaliation. Adamson v. City & Cty. San Francisco, No. 16-CV-04370-YGR, 2018 WL 1456761, at *5 (N.D. Cal. Mar. 23, 2018); see also Lobaton v. City of San Diego, No. 3:15-cv-1416-GPC-DHB, 2015 WL 7864186, at *2 (S.D. Cal. Dec. 2, 2015) (“‘It is not enough that the matter offends the sensibilities of the objecting party or the person who is the subject of the statements in the pleading, if the challenged allegations describe acts or events that are relevant to the action.’” (citation omitted)). See also Crook Decl., Exhibit 1 at 51-59. Similarly, here, allegations of the Police Department’s knowledge of these events coupled with its failure to respond by disciplining officers appropriately, training officers to reduce the impact of bias, or taking steps to address evidence of a culture of racism within the Department are highly relevant. These allegations, if proven, will show that there is a custom and practice of racially biased policing, deliberate 22 Plaintiffs rely for these allegations on reputable news publications and findings in the DOJ Report and the Blue Ribbon Panel Report. 23 Even if the Court found that the allegations were on the line, however, it “must resolve any doubt as to the relevance of the challenged allegations in favor of” Plaintiffs. Citizens for Quality Educ. San Diego v. San Diego Unified Sch. Dist., No. 17-CV-1054-BAS-JMA, 2018 WL 828099, at *4 (S.D. Cal. Feb. 12, 2018) (internal quotation marks and citation omitted). Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 31 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC indifference to racism within the Police Department, and tolerance of racism within the Department. This is material to Plaintiffs’ claims that the City is liable to them based on the actions of its police officers. See United States v. Cty. of Maricopa, 889 F.3d 648, 652 (9th Cir. 2018), petition for cert. filed, No. 18- 498 (Oct. 15, 2018) (“[A]n entity . . . can be held liable under Title VI [or § 1983] if an official with power to take corrective measures is ‘deliberately indifferent to known acts’ of discrimination.” (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 641 (2018))); Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (“[A] local government entity may be liable [under § 1983] if it has a policy of inaction and such inaction amounts to a failure to protect constitutional rights.” (citing City of Canton v. Harris, 489 U.S. 378, 388 (1978))); Nishimoto v. Cty. of San Diego, No. 3:16-cv-01974-BEN-JMA, 2017 WL 2709742, at *4-5 (S.D. Cal. June 20, 2017) (allegations of deliberate indifference that led to a pattern of constitutional violations sufficed for § 1983 liability against county); Anthony v. City of Sacramento, 898 F. Supp. 1435, 1452 (E.D. Cal. 1995) (evidence of pervasive racism, sexism, and mistreatment of inmates, “while irrelevant to the merits of plaintiff’s claims, is nonetheless admissible on the broader question of custom which underlines potential county liability”). Defendants’ claim of prejudice fails here too. They complain that the allegations put them in the “impossible position of admitting or denying allegations made completely out of context” and that purported confidentiality concerns prevent them from explaining the City’s responses. Defs.’ Mem. at 15-16. But the regular rules of answering a complaint are available to Defendants. For any allegations they disagree with, they are free to deny or to respond that they lack sufficient knowledge of or information about the allegation and on that basis deny them. Defendants have not explained how simply answering the FAC’s allegations with any of the widely accepted ways of doing so would require them to violate any legitimate concerns about the confidentiality of discipline records. During discovery, any legitimate confidentiality concerns can be addressed through the use of a protective order, for example. 3. The cited reports are probative of Plaintiffs’ claims. Finally, Defendants seek to strike allegations that reference seven studies documenting racially disparate stops, searches, arrests, and uses of force; racially troubling behavior that has been prevalent in and tolerated by the Police Department; and the Department’s failures to implement expert recommendations to address these problems. See FAC ¶¶ 95-202. Defendants claim that the studies Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 32 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC Plaintiffs cite are outdated and argumentative and, to the extent they do not address drug-related offenses, irrelevant. Defs.’ Mem. at 16.24 Defendants do not identify any prejudice they would suffer if they had to answer these allegations. Defendants err in characterizing the reports as “superfluous historical allegations.” Defs.’ Mem. at 16.25 The seven reports, five of which were published in the last six years, provide evidence of “a long-established pattern of Police Department officers employing racist policing practices without accountability.” FAC ¶ 94. They also provide evidence that the Police Department “has long been on notice of the need for reform” to address racial disparities in its enforcement practices “yet has refused to undertake even the most commonsense recommendations to curb racist policing practices.” Id. ¶ 95. “[A]llegations supplying background or historical material or other matter of an evidentiary nature will not be stricken unless unduly prejudicial to defendant. Where allegations, when read with the complaint as a whole, give a full understanding thereof, they need not be stricken.” LeDuc v. Ky. Ctr. Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992) (internal citations omitted). Courts routinely allow allegations based on historical facts, studies, and reports that provide relevant background and context to the specific circumstances of a plaintiff’s claim. See, e.g., Doe v. Brown Univ., 304 F. Supp. 3d 252, 266 (D.R.I. 2018) (holding that allegations based on studies of the prevalence of sexual assault on college campuses was relevant to duty of care and foreseeability of plaintiff student’s alleged harm); Lee v. Enter. Leasing Co.-W., No. 3:10-CV-00326-LRH, 2012 WL 3996848, at *6 (D. Nev. Sept. 10, 2012) (refusing to strike allegations based on a decades-old report and guidelines because the allegations, “even if unnecessary to the proof of Plaintiffs’ claims . . . have some bearing as historical background”). The reports are relevant and material for the same reasons as the allegations of racially motivated conduct by Police Department members and the Department’s inaction, addressed above in Part III.F.2. Because the allegations in Paragraphs 93-136 and 162-201 of the FAC contain relevant historical background and contemporary events that bear directly on the facts of this case, and because Defendants 24 In the chart attached to their Memorandum, Defendants further claim that many allegations are argumentative. As shown in Attachment 2, that claim is inaccurate, but as a threshold matter, “argumentative” is not a basis for striking an allegation pursuant to Rule 12(f). 25 Defendants cite Fantasy, Inc. for this point. The “historical facts” in that case concerned “stale and barred charges that had already been extensively litigated” by the proper parties in interest. 984 F.2d at 1528. Fantasy has no similarity to the allegations Defendants seek to strike from the FAC. Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 33 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC have made no showing of prejudice, the request to strike these paragraphs should be denied as well. See also Crook Decl., Ex. 1 at 15-51, 64-93. 4. The FAC complies with Rule 8’s short-and-plain statement requirement. Defendants suggest without elaboration that the FAC does not comply with Rule 8, citing McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996). That complaint mixed “allegations of relevant facts, irrelevant facts, political argument, and legal argument in a confusing way,” was replete with irrelevant biographical details about the plaintiff, and failed to make clear “who is being sued, for what relief, and on what theory.” Id. at 1174, 1178. The FAC has no such deficiencies. Defendants’ understanding of the nature of Plaintiffs’ claims, the legal theories on which Plaintiffs proceed, and the relief sought is clear from the grounds asserted in their Motion to Dismiss and to Strike. Nor is a complaint subject to being stricken simply because it is long. See, e.g., Martinez v. City of West Sacramento, No. 2:16-cv-02566- TLN-EFB, 2019 WL 469038, at *6-7 (E.D. Cal. Feb. 6, 2019) (length of complaint did not justify dismissal where it was logically organized, alleged a factual background in chronological order, and listed the “claims made against particular defendants as well as the legal basis for those claims”). IV. CONCLUSION Defendants have not shown that Plaintiffs’ claims are untimely. The FAC alleges adequate facts to show that the City as well as the named Police Department members are liable for selective enforcement. The allegations Defendants seek to strike are relevant to key issues in the case, are based on reliable sources (including a prior order of this Court and the report of a panel convened by the City itself), and will not prejudice Defendants. Defendants’ Motion should therefore be denied in its entirety. Should the Court find merit in Defendants’ Motion, however, Plaintiffs respectfully request dismissal with leave to amend. See, e.g., Buckey v. City of Los Angeles, 968 F.2d 791, 794-95 (9th Cir. 1992). Dated: March 14, 2019 By: DURIE TANGRI LLP /s/ Eric G. Messinger DARALYN J. DURIE MATTHEW W. SAMUELS LAUREN E. KAPSKY ERIC G. MESSINGER WHITNEY O’BYRNE Attorneys for Plaintiffs Tiffany Cross, Shalonda Adams, Crystal Anthony, Arron Lee Mathews, Acacia McNeal, Tiana Reddic, Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 34 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC and Darlene Francine Rouse Dated: March 14, 2019 By: POLICYLINK /s/ Novella Y. Coleman NOVELLA Y. COLEMAN Attorney for Plaintiffs Tiffany Cross, Shalonda Adams, Crystal Anthony, Arron Lee Matthews, Acacia McNeal, Tiana Reddic, and Darlene Francine Rouse Dated: March 14, 2019 By: ACLU FOUNDATION OF NORTHERN CALIFORNIA /s/ Jamie L. Crook ABRE’ L. CONNER MICAELA DAVIS CHRISTINE P. SUN JAMIE L. CROOK Attorney for Plaintiffs Tiffany Cross, Shalonda Adams, Crystal Anthony, Arron Lee Matthews, Acacia McNeal, Tiana Reddic, and Darlene Francine Rouse Dated: March 14, 2019 By: AMERICAN CIVIL LIBERTIES UNION FOUNDATION CRIMINAL LAW REFORM PROJECT /s/ Ezekiel R. Edwards EZEKIEL R. EDWARDS Attorney for Plaintiffs Tiffany Cross, Shalonda Adams, Crystal Anthony, Arron Lee Matthews, Acacia McNeal, Tiana Reddic, and Darlene Francine Rouse FILER’S ATTESTATION Pursuant to Civil L.R. 5-1(i)(3), regarding signatures, I, Eric G. Messinger, attest that concurrence in the filing of this document has been obtained. Dated: March 14, 2019 By: /s/ Eric G. Messinger ERIC G. MESSINGER Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 35 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS AND TO STRIKE / CASE NO. 3:18-CV-06097-EMC CERTIFICATE OF SERVICE I hereby certify that on March 14, 2019 the within document was filed with the Clerk of the Court using CM/ECF which will send notification of such filing to the attorneys of record in this case. /s/ Eric G. Messinger ERIC G. MESSINGER Case 3:18-cv-06097-EMC Document 69 Filed 03/14/19 Page 36 of 36