Cross et al v. City and County of San Francisco et alREPLYN.D. Cal.March 21, 2019 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC n:\lit\li2018\170067\01345741.docx 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 DENNIS J. HERRERA, State Bar #139669 City Attorney CHERYL ADAMS, State Bar #164194 Chief Trial Deputy MARGARET W. BAUMGARTNER, State Bar #151762 RENÉE E. ROSENBLIT, State Bar #304983 Deputy City Attorneys Fox Plaza 1390 Market Street, 6th Floor San Francisco, California 94102-5408 Telephone: (415) 554-3859 [Baumgartner] Telephone: (415) 554-3853 [Rosenblit] Facsimile: (415) 554-3837 E-Mail: margaret.baumgartner@sfcityatty.org E-Mail: renee.rosenblit@sfcityatty.org Attorneys for Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA TIFFANY CROSS et al., Plaintiffs, vs. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. Case No. 3:18-cv-06097 EMC DEFENDANTS’ REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND TO STRIKE PORTION OF FIRST AMENDED COMPLAINT Hearing Date: April 3, 2019 Time: 10:30 a.m. Place: Courtroom 5, 17th Floor 450 Golden Gate Ave., SF Trial Date: Not set. Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 1 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC i n:\lit\li2018\170067\01345741.docx 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 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION AND STATEMENT OF FACTS .....................................................................1 ARGUMENT ...................................................................................................................................3 I. Plaintiffs’ Four Year Old Claims Are Untimely ......................................................3 A. California Government Code § 945.3 Does Not Toll the Statute of Limitations Because Its Plain Language Limits its Application to Criminal Proceedings in Superior Courts, and Because It is Not a General Tolling Statute ................................................................................3 B. Plaintiffs Have not Explained Why They Waited for Years to Sue, and Therefore Neither the Facts Alleged in Plaintiffs’ Complaint nor Their Opposition Brief Justify Equitable Tolling ..................................................6 C. Section 945.3 Also Does not Apply to Plaintiffs’ Title VI Claim ...............7 II. The Independent Acts of Others Cannot Reasonably Be Used to Infer Purposeful Discrimination by the 14 Individual Officer Defendants ......................7 III. Independent Prosecutorial Discretion Bars a Finding of Causation as a Matter of Law ..........................................................................................................................8 IV. Plaintiffs’ Opposition to Defendants’ Motion to Dismiss the Supervisory Liability Claims Against Captain Cherniss and Deputy Chief Redmond Ignores the Constitutional Requirement of Personal Participation .......................................9 V. The Court Should Strike the Redundant, Immaterial and Scandalous Matter in the First Amended Complaint ................................................................................11 A. The Court Should Strike the Quotations and Allegations From the Mumphrey Decision...................................................................................11 B. The Court Should Strike Allegations Regarding Racist Texts ..................13 C. The Court Should Strike Allegations Regarding Old and Outdated Reports .......................................................................................................14 CONCLUSION ..............................................................................................................................15 Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 2 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC ii n:\lit\li2018\170067\01345741.docx 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 TABLE OF AUTHORITIES Federal Cases Adamson v. City and County of San Francisco 16-cv-04370-YGR, 2018 WL 1456761 (N.D. Cal. March 23, 2018) ........................................13 Ashcroft v. Iqbal 556 U.S. 662 (2009) ...............................................................................................................7, 10 Awabdy v. City of Adelanto 368 F.3d 1062, 1066 (9th Cir. 2004) ...........................................................................................9 Beck v. City of Upland 527 F.3d 853 (9th Cir. 2008) .......................................................................................................8 Booth v. United States 914 F.3d 1199 (9th Cir. 2019) .....................................................................................................6 City of Canton v. Harris 489 U.S. 378 (1989) ...................................................................................................................13 Deocampo v. Potts 836 F.3d 1134 (9th Cir. 2016) .....................................................................................................4 Fantasy, Inc. v. Fogerty 984 F.2d 1524 (9th Cir. 1993) .............................................................................................12, 14 Felarca v. Birgeneau 2014 WL 206762 (N.D. Cal. 2014) ...........................................................................................10 Gergory v. Fresno 2018 WL 4262232 (E.D. Cal. September 6, 2018) ......................................................................5 Harding v. Galceran 990 F.2d 906 (9th Cir. 1989) .......................................................................................................4 Harned v. Landahl 88 F.Supp.2d 1118 (E.D. Cal. 200) .............................................................................................6 Healing v. Jones 174 F.Supp. 211 (D.Ariz. 1959) ................................................................................................14 Jablon v. Dean Witter & Co. 614 F.2d 677 (9th Cir. 1980) .......................................................................................................6 Jones v. Blanas 393 F.3d 918 (9th Cir. 2004) .......................................................................................................4 Lobaton v. City of San Diego 2015 WL 7864186 (S.D. Cal. Dec. 2, 2015) .............................................................................13 Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 3 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC iii n:\lit\li2018\170067\01345741.docx 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 Matthew v. Macanas 990 F.3d 467 (9th Cir. 1993) .......................................................................................................4 McDonough v. Smith 2018 WL 5026294 (petition for writ of certiori); 2019 WL 166879 (U.S. Jan. 2019) ................3 McHenry v. Renne 84 F.3d 1172 (9th Cir. 1996) .....................................................................................................15 Mireskandari v. Daily Mail & Gen. Trust PLC 2013 WL 12129642 (C.D. Cal. July 31, 2013) ..........................................................................12 Redman v. City of San Diego 942 F.3d 1435 (9th Cir. 1991) ...................................................................................................11 Starr v. Baca 652 F.3d 1202 (9th Cir. 2011) .............................................................................................10, 11 U.S. v. Ritchie 342 F.3d 90 (9th Cir. 2003) .........................................................................................................1 Village of Arlington Heights v. Metropolitan Housing Development Corp. 429 U.S. 252 (1977) .....................................................................................................................7 State Cases McAlpine v. Superior Court 209 Cal.App.3d 1 (1989) .............................................................................................................4 Schmidlin v. City of Palo Alto 157 Cal.App.4th 728 (2007) ........................................................................................................4 State Statutes & Codes California Government Code § 945.3 ..........................................................................1, 3, 4, 5, 6, 7 California Government Code § 945.6 ..............................................................................................5 Federal Statutes 42 U.S.C. § 2000d ............................................................................................................................3 Rules Federal Rules of Civil Procedure 12(f) ..........................................................................................11 Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 4 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 1 n:\lit\li2018\170067\01345741.docx 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 INTRODUCTION AND STATEMENT OF FACTS The United States Attorneys’ Office (“USAO”) and the Drug Enforcement Administration (“DEA”) initiated a prosecutorial program focused on drug dealers in the Tenderloin District in San Francisco who sold drugs with 1000 feet of a school.1 Of the hundreds of suspects arrested by the SFPD for drug offenses during the time period of the federal program, the USAO prosecuted 37 suspects, including the seven plaintiffs here. (See First Amended Complaint (“FAC”) ¶ 58.) Plaintiffs sued 14 individual San Francisco police officers because they gathered and provided evidence to the federal government or hid facts. Plaintiffs do not, and cannot, allege that the officers provided false information. Yet, plaintiffs sue these officer under the 14th Amendment, concluding that each of them purposefully caused their criminal prosecution because of their race. Defendants moved to dismiss on the grounds that: (1) plaintiffs waited too long to sue; (2) plaintiffs’ alleged facts do not state a claim of purposeful racial discrimination against these 14 officers; and (3) independent prosecutorial discretion precludes a finding of causation. In opposing defendants’ motion to dismiss on statute of limitations grounds, plaintiffs acknowledge that their claims are timely only if California Government Code § 945.3 or equitable tolling principals apply. Plaintiffs admit that the plain language of § 945.3 tolls claims against peace officers while criminal charges are pending in “superior court,” but argue that this court should stretch the boundaries of that limited tolling provision to cover their claims. Prior case law interpreting this section, a case narrowly interpreting “superior court” in a related provision to exclude federal courts, and laws of statutory construction do not support such an extension. 1 Plaintiffs claim that the defendants cannot rely on, and the Court cannot take notice of, the fact that the USAO initiated the program, obtained warrants for, and decided who to prosecute, as well as the criteria for prosecution. The law requires prosecutors, not police officers, to decide whom to charge, and decide the criteria for charging. Moreover, plaintiffs’ complaint attaches the Mumphrey decision, which specifically quotes USAO Haag stating that she “has directed [my] office to work with the DEA and the [SFPD] to aggressively prosecute drug trafficking in areas around Tenderloin schools,” and quotes USAO Hasib stating that “[t]he purpose of OSS ‘was to aggressively prosecute drug dealers around schools and playgrounds in the Tenderloin district.’” (Compl., Ex. A, Mumphrey, 139 F.Supp.3d at 1042.) The memorandum states the same. Plaintiffs’ objections to the Court considering these indisputable facts when plaintiffs rely so heavily on the Mumphrey decision is, at a minimum, inconsistent. See U.S. v. Ritchie, 342 F.3d 90 (9th Cir. 2003) (incorporation by reference). Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 5 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 2 n:\lit\li2018\170067\01345741.docx 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 Plaintiffs also ask the court to apply equitable tolling. Plaintiffs provide no explanation for why they waited so long to sue, which precludes a finding that they are “good faith” plaintiffs. Plaintiffs also fail to allege any extenuating circumstances. Moreover, the delay prejudices defendants. The Court should therefore find plaintiffs’ claims untimely, and dismiss plaintiffs’ complaint in its entirety. Plaintiffs also oppose defendants’ motion to dismiss for failure to state a claim, concluding that the 14 individual officers must have discriminated against them because of their race because the USAO prosecuted only black suspects. Their argument ignores plaintiffs’ own admission that San Francisco police officers arrested persons of all races for drug crimes in the Tenderloin during the relevant time period. (FAC ¶ 58.) Isolating the 37 persons prosecuted by the USAO, a miniscule percentage of the hundreds of drug arrests in that neighborhood during that time cannot support a reasonable inference that each of the 14 officers purposefully discriminated against these seven plaintiffs because of their race. The three other facts upon which plaintiffs rely - one defendant officer while in a private room surveilling a group of male and female drug dealers from across the street once uttered the phrase “fucking BM”, one unidentified undercover officer avoided an Asian drug dealer to buy drugs from a black drug dealer, and over 15 years statistics show racial disparities in certain aspects of SFPD policing unrelated to drug enforcement, such as traffic stops – also do not raise this inference to “probable” as opposed to “possible” as is required to state a claim. Defendants also moved to dismiss because the exercise of independent prosecutorial discretion precludes a finding of causation. Plaintiffs oppose defendants’ motion to dismiss because the prior cases applying this doctrine include only 4th Amendment claims. But the same concepts apply to both 4th and 14th Amendment claims: when a prosecutor independently decides to initiate a criminal prosecution and the investigating officer has not hidden or falsified evidence thus undermining the true independence of the prosecutor, the prosecutor’s decision precludes a finding of causation. Lastly, defendants moved to strike the numerous redundant, immaterial and scandalous allegations in plaintiffs’ complaint, including the citations and quotations from a prior decision of this court, to which these defendants were not a party. Plaintiffs oppose the motion, claiming that the Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 6 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 3 n:\lit\li2018\170067\01345741.docx 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 information is “historical” or “background.” Rule 12(e) and Rule 8, however, support defendants’ motion to strike some portions of plaintiffs’ 360 paragraph complaint. ARGUMENT I. Plaintiffs’ Four Year Old Claims Are Untimely Plaintiffs acknowledge that absent the application of the tolling provision in California Government Code § 945.3 or equitable tolling, their claims are untimely. Neither provision applies here. Plaintiffs state in their opposition that both parties agree that the statute of limitations accrued at the earliest when the federal public defender started to seek discovery related to selective enforcement. (Opp. MPA pg. 6, line 7-9.) That is not the case. Defendants assert that the statute of limitations began to run at the time of the arrest in early 2014. See McDonough v. Smith, 2018 WL 5026294 (petition for writ of certiori); 2019 WL 166879 (U.S. Jan. 2019) (acceptance of writ). Plaintiffs did not sue until October 2018, more than four and half years later. However, for purposes of this matter, the accrual date for the statute of limitations does not create a different result because in either case plaintiffs’ claims would be timely only if one of the two tolling provisions applies. Plaintiffs also do not address defendants’ arguments that any extension of § 945.3 based on its purpose does not justify its extension to plaintiffs’ Fourth cause of action for violation of federal grant provisions. On page 9, the City argued that neither § 945.3 or equitable tolling apply to claims under 42 U.S.C. § 2000d, which is plaintiffs’ claim for violation of federal grant conditions. (FAC pg. 66.) If the court extends the tolling provisions to apply to plaintiffs’ equal protection claims, the same bases for extending tolling do not apply to plaintiffs’ Title VI claim, and dismiss the claim. A. California Government Code § 945.3 Does Not Toll the Statute of Limitations Because Its Plain Language Limits its Application to Criminal Proceedings in Superior Courts, and Because It is Not a General Tolling Statute Government Code § 945.3 tolls the six month period of time for filing a complaint against peace officers after denial of a government tort claim, when criminal charges are pending before the plaintiff “in superior court.” No charges were ever pending against plaintiffs in superior court here. Thus, this provision does not make serve to toll the two year statute of limitations and make plaintiffs’ otherwise untimely claims timely. Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 7 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 4 n:\lit\li2018\170067\01345741.docx 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 Plaintiffs disagree, arguing that: (1) the court should ignore the plain language of the statute because parts of the legislative history reference “trial courts;” and (2) the statute’s purpose was to avoid leverage in plea bargains. Both these arguments fail. With regard to use of the term “superior court”, plaintiffs ignore the cases cited by defendants that require a federal court to abide by the “literal” language of a statute, such as the court did when holding that § 945.3’s use of the term “peace officer” does not apply to federal law enforcement. See Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) (relying on “literal language” of tolling statute to find it inapplicable, even though purpose of the statute would be met by application); Matthew v. Macanas, 990 F.3d 467 (9th Cir. 1993). Plaintiffs do not cite to any case where the Ninth Circuit has ignored the literal language of a tolling statute or one that applied § 945.3 to toll the statute based on a federal prosecution. Rather, they cite to cases where the Ninth Circuit applied § 945.3 because the circumstances meet the literal language: the court tolled the statute during the pendency of a criminal prosecution in “superior court.” See e.g., Harding v. Galceran, 990 F.2d 906, 908-09 (9th Cir. 1989) (superior court prosecution); Deocampo v. Potts, 836 F.3d 1134, 1137 n. 1 (9th Cir. 2016) (superior court prosecution). Plaintiffs also argue that California State courts have broadly interpreted § 945.3. But the cases cited by plaintiffs do not interpret the term “superior court,” only the ambiguous term “pending.” Schmidlin v. City of Palo Alto, 157 Cal.App.4th 728 (2007); McAlpine v. Superior Court, 209 Cal.App.3d 1 (1989). In both Schmidlin and McAlpine, the court addressed the meaning of the word “pending,” deciding that because the concerns addressed by the statute tolled through judgment because the term “pending” extended that time. Schmidlin, 157 Cal.App.4th at 753; McAlpine, 209 Cal.App.3d at 7. It would be entirely inconsistent to narrowly construe the broad term “peace officer” to exclude federal officers who exercise peace officer powers within the state, as the Ninth Circuit has done, and then to broadly construe the specific term “superior court” to include federal courts. See Matthew, 990 F.3d 467. A consistent reading requires the court to interpret the statute as actually written: to apply to state prosecutions, not federal ones. See e.g. Jones, 393 F.3d at 228-29 (even though civil detainees Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 8 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 5 n:\lit\li2018\170067\01345741.docx 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 subject to same impediments to filing suit as criminal detainees, refusing to extend language of tolling provision to apply to civil detainees). The limited legislative history supports defendants’ position. It makes clear that the legislature was aware that if it wished to do so it could use a broader term – “trial court” or “lower court” – rather than the narrower language of “superior court” that the legislature actually used. In fact, the language provided in the initial bill analysis indicated that original the statute read “lower court” and a handwritten note deleted that phrase and substituted the word “trial court,” yet the final version did not use either of those terms: it said “justice, municipal or superior court.” See Pltfs. Req. Jud. Notice Ex. E; see also Comment to § 945.3. And, the legislature had a number of opportunities to express a broader intent. The legislature in 1998 amended the statute upon the elimination of the justice courts, and again in 2002 upon elimination of the municipal courts. Id. The legislature continued to use specific reference to state courts, not a more general term such as “trial court.” None of the legislative history provided by plaintiffs discuss why, despite the drafter’s use of “trial courts” in some letters discussing the legislation, the legislature failed to use that language in the actual legislation. Thus the court should give meaning to the legislature’s apparently deliberate use of the limited term “superior courts.” Moreover, the federal court has interpreted the term “superior court” in a neighboring statute to express a limitation to state court, not federal court. See Gergory v. Fresno, 2018 WL 4262232 (E.D. Cal. September 6, 2018). In that case, the court addressed the term “superior court” in California Government Code § 945.6, which, like § 945.3, is part of the Tort Claims Act. Section 945.6 allows a “superior court” to grant late claim relief to a litigant who does not file a tort claim within six months. The Court held that the legislature’s use of the term “superior court” did not include federal court, and therefore the federal court lacked authority under this statute. This interpretation of a related, neighboring statute that uses the same term supports defendants’ assertion here that federal court prosecutions fall outside the tolling statute. Plaintiffs cite to numerous cases applying § 945.3 to toll a claim against California peace officers or their employers while a California District Attorney criminal prosecuted the plaintiff in the superior court. Except for the District Court decision in Harned v. Landahl, 88 F.Supp.2d 1118 (E.D. Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 9 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 6 n:\lit\li2018\170067\01345741.docx 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 Cal. 200), however, a case in which the court was prosecuted in both state and federal court, no case applies § 945.3 tolling based on a federal prosecution. And, to the extent that the purpose behind this tolling provision is to prevent the opportunity to leverage a plea bargaining, the close relationship between a District Attorney and a local police department could make the legislature’s concern reasonable. But the same concerns do not exist in a federal prosecution. First, because federal courts have already held that the first provision of § 945.3, prohibiting lawsuits during a criminal prosecution does not apply to federal claims, a suspect charged with a crime may already use a federal civil suit to leverage a plea. Moreover, a federal prosecutor relationship is removed from local law enforcement, and thus the same concerns regarding leverage do not apply. Plaintiffs relegate to a footnote the fact that the tolling provision they argue applies here resides within the California Tort Claims Act, and thus is not a generally applicable tolling provision. Plaintiffs also ignore defendants’ argument that the purpose of a statute of limitations – notice – is served by a Tort Claim, which a plaintiff must file before § 945.3 even begins to toll the statute. Because no notice would be given here, the Court should be reluctant to interpret this section broadly. B. Plaintiffs Have not Explained Why They Waited for Years to Sue, and Therefore Neither the Facts Alleged in Plaintiffs’ Complaint nor Their Opposition Brief Justify Equitable Tolling Plaintiffs request that the Court apply “equitable tolling” to make their claim timely. Although plaintiff states that the purpose of equitable tolling is to prevent the “harsh impact of technical rules” and that the analysis is “fact intensive,” plaintiffs fail to set forth the required elements of equitable tolling. To apply equitable tolling, a litigant must establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way.” Booth v. United States, 914 F.3d 1199, 1207 (9th Cir. 2019). The statute of limitations bar here appears on the face of plaintiffs’ complaint, yet plaintiffs make no allegations supporting equitable tolling. And, in their brief, plaintiffs have not even attempted to provide any facts regarding their diligence or any extraordinary circumstance. It seems impossible in this case that they could do so. Therefore, the Court should dismiss the complaint. Jablon v. Dean Witter & Co., 614 F.2d 677 (9th Cir. 1980) (dismissal on statute of limitations grounds appropriate when defense appears on face of complaint). Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 10 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 7 n:\lit\li2018\170067\01345741.docx 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 C. Section 945.3 Also Does not Apply to Plaintiffs’ Title VI Claim Defendants moved to dismiss plaintiffs’ Title VI claim as untimely, and argued that any possible justification for application of the § 945.3’s tolling provision would not apply equally to plaintiffs’ Title VI claim. Plaintiffs do not address this argument, and therefore waive it. II. The Independent Acts of Others Cannot Reasonably Be Used to Infer Purposeful Discrimination by the 14 Individual Officer Defendants Defendants moved to dismiss plaintiffs’ equal protection claim because the facts plaintiffs allege do not make their conclusory allegations that each of the 14 named officers purposefully discriminated against plaintiffs on the basis of their race plausible, as opposed to possible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, plaintiffs attempt to infer motivation of every officer based on the act of one: for example, Officer Crosby’s one use of the phrase “fucking BM” while in a private room surveilling black male and female drug dealers. This cannot reasonably be used to assert that all 14 of the officers sued here purposefully discriminated against plaintiffs on the basis of their race. Similarly, one officers’ avoidance of an Asian drug dealer to approach a black drug dealer cannot be used to imply motivation to all the other officer defendants. Plaintiffs cannot make reasonable inference simply by lumping together the results of myriad of actions over which the individual officers had no control and then claiming that it is evidence of an individual’s motivation. Plaintiffs also rely on historical data that they claim shows “tolerance” of racism. That claim, however, although potentially relevant to a claim against the City, cannot be used to assume that these 14 individuals purposefully discriminated against these seven plaintiffs. Such an inference is based on flawed reasoning, and would create boundless spheres of liability. For example, it would allow a plaintiff to sue all Hollywood producers for discrimination because one was a sexual predator. Plaintiffs appear to rely primarily on the statistical result of the federal prosecutions to infer racism. An equal protection claim has two elements: both discriminatory effect and discriminatory purpose. While defendants agree that these facts showing discriminatory effect, any inference arising from the effect ignores the role of the federal prosecutors and the fact of the myriad other arrests made in the Tenderloin. “Impact alone is not determinative.” Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977). This is not a case where there is no Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 11 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 8 n:\lit\li2018\170067\01345741.docx 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 conceivable alternative explanation other than discrimination by the individual officers – the federal government is the ultimate decision maker here, not the officers. These 14 defendants have the right to review of the motion to dismiss as it relates to them as individuals. Plaintiffs must allege facts regarding each of them as individuals that would suggest that they acted with racist motives. Plaintiffs have not done so, despite their lengthy complaint. And, plaintiffs have not cited to any case where a court denied a motion to dismiss individual defendants based on statistical results not caused by a particular individuals’ action. Plaintiffs’ complete misconstruction of defendants’ arguments as one of “following orders” appears to be intentionally misleading. Defendants are not arguing that the court should dismiss the compliant because someone ordered them to purposefully discriminate, and they obeyed. Rather, the argument is that the result alone does not prove discriminatory intent when the result is caused by non- race based factors that constrain the limited actions under examination. For example, an officer assigned to investigate Latin gangs would be expected to arrest Latins. An officer assigned to undercover prostitution stings focused on the buyers would be expected to arrest only men. Here, plaintiffs look at an extremely small number of federal prosecutions, ignoring the constraints placed on the individual officers by the federal government’s enforcement priorities, and make overly-broad and unreasonable inferences. Yet plaintiffs themselves allege evidence contradicting their own implications of race based enforcement by including a broader sample of similar actions – officers arrested drug dealers of all races. These facts simply do not support plaintiffs’ conclusion of race-motivated enforcement. The Court should therefore dismiss the complaint for failure to state a claim. III. Independent Prosecutorial Discretion Bars a Finding of Causation as a Matter of Law Defendants moved to dismiss on the grounds that independent decisions of the federal prosecutors to prosecute plaintiffs, and continue their prosecution for more than a year after the federal public defender raised race discrimination issues, cuts off liability. See Beck v. City of Upland, 527 F.3d 853, 862 (9th Cir. 2008). In this case, San Francisco police officer gathered evidence and presented it to the federal government, which then obtained warrants and prosecuted plaintiffs. Gathering evidence is not a constitutional violation – it does not deprive an individual of any right. Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 12 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 9 n:\lit\li2018\170067\01345741.docx 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 The cause of plaintiffs’ harm here is the obtaining of the arrest warrants, and the criminal prosecutions by the federal government. The federal government’s role in the initiation of this federal prosecutorial program highlights the federal government’s independent role in the causation of any harm to plaintiffs. Plaintiffs oppose dismissal, arguing that the decisions of the prosecutors cut off liability only when plaintiffs bring a 4th Amendment claim regarding a lack of probable cause. Not so. The basis of this doctrine is that courts presume that “the decision to file a criminal complaint is presumed to result from an independent determination of the prosecutor, and, thus, precludes liability for those who participated in the investigation or filed a report that resulted in initiation of proceedings.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066-67 (9th Cir. 2004). In Awabdy, the Court applied this doctrine when the plaintiff needed to prove not only a lack of probable cause, but also an intent to violate the criminal defendants’ equal protection rights. Id(independent of prosecutor bars liability when proof of claim require intent to violate equal protection or another specific constitutional right.) Nothing about the prosecutor’s independence differs when a plaintiff alleges only an equal protection violation and not a lack of probable cause. Plaintiffs assert in their brief that federal prosecutors exercised “zero discretion in bringing charges.” This boldly false allegation ignores the constitutional role of a prosecutor in our criminal justice system. Police officers have no authority to bring charges – they provide evidence, and the prosecutors have ethical obligations to bring charges only when they have a good faith basis for doing so. As the court in Awabdy stated, a police officer can be liable only if the officer interferes with that independent by providing false or misleading evidence. Here, plaintiffs have not made any such allegations. IV. Plaintiffs’ Opposition to Defendants’ Motion to Dismiss the Supervisory Liability Claims Against Captain Cherniss and Deputy Chief Redmond Ignores the Constitutional Requirement of Personal Participation Defendants moved to dismiss the claims against Captain Jason Cherniss, who was the Captain of Tenderloin Station during the times at issue, and Deputy Chief Redmond, who was both a Captain of Southern Station, and a Deputy Chief supervising various units in the Department. Defendants Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 13 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 10 n:\lit\li2018\170067\01345741.docx 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 based their motion on the grounds that the only allegations against these supervisors that they were supervisors. Plaintiffs claim that the current state of the law allows them to simply conclude that a supervisor should be aware of everything that an employee does, and therefore a supervisor is liable for an employee’s constitutional violations. Courts have made clear, however, that under the constitution only individuals who have personally participated in a violation can be held liable. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (knowledge of subordinates’ actions insufficient to state a claim against a supervisor.) In their motion, defendants pointed out that plaintiffs’ only allegations specifically regarding the two individual supervisory employees are contained in two paragraphs. Plaintiffs’ opposition is based on two arguments: that the City “ignored” all of the other supervisory liability allegations contained in nine additional paragraphs, and that the case of Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) allows them to allege only that the supervisors should have known generally of unconstitutional behavior. Both plaintiffs’ arguments fail. First, defendants did not “ignore the record.” The paragraphs plaintiffs’ cite in addition to the two paragraphs defendants reference are general allegations, merely reiterating that certain of the officers acted as supervisors, and therefore they should have known what the individual officers would be violating the constitution. Those generic allegations, not linked to the personal participation of the two identified supervisors do not state a claim. Simply seeing a supervisor in a 2000 person department where some officer sent racist texts, for example, is not sufficient to create supervisory liability in a purposeful discrimination case. Plaintiffs must make sufficient allegations to allege that the supervisor was aware of the actual unconstitutional conduct at issue, have the opportunity to address it, and did not. See Felarca v. Birgeneau, 2014 WL 206762 *5 (N.D. Cal. 2014) (to state a claim against the supervisor administrators in excessive force case plaintiffs must allege facts showing that administrators were aware of the “conduct of the afternoon raid, including that police had injured protestors, under circumstances giving rise to a plausible inference that the response was an excessive use of force” and then ordering the officers out again.) Plaintiffs have not made those allegations here. None of plaintiffs’ allegations include facts supporting that these defendants were aware that the Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 14 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 11 n:\lit\li2018\170067\01345741.docx 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 officers purposefully violated plaintiffs’ constitutional rights, or any other purposeful discrimination. See Starr, 652 F.3d at 1206 (differentiating claims of purposeful discrimination from conditions of confinement claims). Plaintiffs therefore have not stated a claim against these supervisors. Plaintiffs rely on Starr and another conditions of confinement case to argue that Cherniss and Redmond should have been broadly aware of reports regarding statistical race disparities in various types of law enforcement, and specific instances of racist text, apparently arguing that they should then have been on notice that every officer in every arrest would be violating the constitution. But Starr and Redman are both conditions of confinement cases, which a plaintiff can prove through deliberate indifference. Id., Redman v. City of San Diego, 942 F.3d 1435 (9th Cir. 1991). That is not the case here, where plaintiffs must prove purposeful discrimination. Those cases simply do not apply. V. The Court Should Strike the Redundant, Immaterial and Scandalous Matter in the First Amended Complaint Defendants moved to strike as “redundant, immaterial, impertinent, or scandalous” plaintiffs’ allegations based on (1) the discovery order in Mumphrey, (2) outdated, irrelevant reports, and (3) the text messages and other alleged misconduct by officers who are not parties to this lawsuit. Fed. R. Civ. P. 12(f). Plaintiffs opposed each of those motions. A. The Court Should Strike the Quotations and Allegations From the Mumphrey Decision The discovery decision in the Mumphrey case, a decision in the federal criminal prosecution of plaintiffs, is immaterial to this civil lawsuit and prejudicial to the defendants. Plaintiffs contend that the Court’s decision in that cases is “directly relevant to Plaintiffs’ selective enforcement claims in this case, which arise out of the same events.” (Plaintiffs’ Opp., Ex. 1 at ¶¶ 4-5, 78-91.) Not only is the Federal Public Defender’s evidence for obtaining discovery in a criminal case far from what is required to prove that these 14 defendants purposefully discriminated, the Court made its decisions in that matter without the input from any of the defendants here, including the City. That decision cannot be used for issue or claim preclusion against the City. To the extent that the complaint here alleges the underlying evidence relied on for the allegations and opinions of the Court in that matter, plaintiffs can do so. But the allegations or opinion “has no essential or important relationship to the claim for relief or the defenses being plead” and “do[es] not pertain, and [is] not necessary, to the issues in question.” Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 15 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 12 n:\lit\li2018\170067\01345741.docx 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 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), overruled on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (defining “immaterial” and “impertinent”). In allowing discovery, the Court found that the criminal defendants’ evidence of selective enforcement was left “largely unrebutted.” Plaintiffs certainly cannot use this “unrebutted” opinion against the City and the individual defendants. Including such allegations forces defendants to respond to irrelevant and impertinent allegations about what the USAO or the court said during that proceeding, to which it was not a party and was not present. The Court should strike these allegations under Rule 12(e). These allegations are also scandalous and inflammatory because plaintiffs imply that the Police Department did not consider the allegations of racism worthy of a response. This is far from the truth, and disingenuous given that plaintiffs know the Police Department was not a party to the criminal case and was not represented at the hearing on the motion. For example, in paragraph 5 of their civil complaint, plaintiffs allege that “Neither the Police Department nor the federal prosecutors provided any meaningful explanation for why these [criminal] defendants had been targeted . . . .” In paragraph 83, plaintiffs allege that “no declarations or other evidence was submitted on behalf of the Police Department, the City and County of San Francisco, or any Police Department officer or employee. At oral argument . . . the USAO stated that the Police Department was ‘unwilling to cooperate in allegations of racism against them.” Whether or not the police department had knowledge of and/or responded to those allegations in that context is completely irrelevant to prove whether any defendant has liability here. Yet, the implication that the Police Department’s failed to respond because they do not care about plaintiffs’ allegations of racism, despite not being a party to the case, served with the discovery motion, or represented at the hearing – which plaintiffs are very aware of – is inflammatory, disingenuous, and scandalous. See Fantasy, Inc., 984 F.2d at 1527 (“Scandalous” matters includes material that “casts a cruelly derogatory light on a party or other person.”); see also, Mireskandari v. Daily Mail & Gen. Trust PLC, 2013 WL 12129642, at *4 (C.D. Cal. July 31, 2013) (quoting 2 Moore's Fed. Prac. § 12.37[3] at 12-97). The Court should strike these allegations. Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 16 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 13 n:\lit\li2018\170067\01345741.docx 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 B. The Court Should Strike Allegations Regarding Racist Texts Similarly, plaintiffs’ allegations concerning the racist texts sent between members of the Department, and other individualized incidents of misconduct by other officers, have no bearing on the claims here. Plaintiffs argue that these allegations are relevant to plaintiffs’ Monell claim against the City. (See Opp., Ex. 1, ¶¶ 139-162, 174, 205, 325.) But, the City can be liable only if the officers’ conduct is directly attributable to the City’s policy or custom. See City of Canton v. Harris, 489 U.S. 378, 385 (1989) (there must be “a direct causal link between a municipal policy or custom and the alleged constitutional deprivation”). Plaintiffs’ allegations regarding racist text messages and other misconduct are not about these named police officers. And these allegations do not speak to the City’s policy or practice with respect to arresting individuals for selling drugs. Alleging that the Police Department has a “racist culture” is too tangential to support plaintiffs’ Monell claim. Plaintiff’s citation to Adamson v. City and County of San Francisco is not persuasive. In Adamson, the plaintiff alleged that the City and Greg Suhr criminally prosecuted and fired him from the Police Department because of his race. No. 16-cv-04370-YGR, 2018 WL 1456761, at *5 (N.D. Cal. March 23, 2018). Adamson specifically alleged that “Suhr, the Chief of Police, personally participated in demanding the criminal prosecution against him, as well as instituting terminating proceedings;” “Suhr was the chief policymaker for SFPD at the time and that ‘Suhr created, ratified, and/or adopted a prosecutorial policy with discriminatory effect motivated by discriminatory purposes.’” Id. (quoting complaint). Judge Gonzalez Rogers declined to strike allegations that Suhr was aware of racist texts messages between officers and that he avoided taking disciplinary action. Id. Judge Gonzalez Rogers did strike allegations regarding “Suhr’s handling of various scandals and protests as “too tangential to plaintiff’s claims.” Id. Here, unlike in Adamson, Greg Suhr is not a named defendant and plaintiffs do not allege that Suhr was involved in Operation Safe Schools or acted as the chief policymaker. The allegations about misconduct by officers who are not named in this lawsuit and sweeping allegations of a “racist culture” are “too tangential” to plaintiffs’ claims and should be struck. Plaintiff also cites Lobaton v. City of San Diego, 2015 WL 7864186 ((S.D. Cal. Dec. 2, 2015) for the proposition that “it is not enough that the matter offends the sensibilities of the objecting party . Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 17 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 14 n:\lit\li2018\170067\01345741.docx 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 . . if the challenged allegations describe acts or events that are relevant to the action.” (Emphasis added). The key is relevancy, and here, plaintiffs’ allegations concerning other officers’ alleged misconduct are not relevant. Defendants are also unable to fully explain the City’s actions to address those concerns without violating the confidentiality of officers’ disciplinary proceedings. These allegations serve no purpose other than to smear the named individual defendants with scandalous matters that have nothing to do with them. C. The Court Should Strike Allegations Regarding Old and Outdated Reports The Court should also strike plaintiffs’ allegations based on old and outdated reports. Plaintiffs argue that the outdated studies “provide relevant context for Plaintiffs’ claims of selective enforcement” and are relevant to plaintiffs’ Monell claim against the City. (See Opp., Ex. 1 at ¶¶ 95- 106, 111-117, 126-136, 165-173, 175-187, 189-200.) First, plaintiffs’ allegations regarding old studies fail to acknowledge the Department’s significant reform efforts, and thus, do not provide relevant or fair context. Attempting to answer these allegations will require extensive explanation so that the City can provide a fair view of the Department’s extensive reform efforts. See Fogerty, Inc., 984 F.2d at 1527 (“’Superfluous historical allegations are a proper subject of a motion to strike.’”), citing Healing v. Jones, 174 F.Supp. 211, 220 (D.Ariz. 1959). Second, the allegations are not relevant to plaintiffs’ claims. For example, whether or not the Department’s 16-year-old traffic stop data showed racial disparities does not prove or disprove that the officers here intentionally chose to arrest these seven plaintiffs, all of whom sold illegal drugs on videotape, because of, rather than in spite of their race. (See FAC ¶¶ 79(a); 84-183.) Nor does traffic stop data from 2002 demonstrate that the City had a policy, practice, or custom of selective enforcement of drug laws in 2014. Likewise, allegations that the police use force disproportionately are not relevant to plaintiffs’ claims against these officers or the City for selective drug enforcement. (See FAC ¶¶ 132-136.) The Court should therefore strike the allegations regarding these irrelevant, superfluous historical allegations and require that plaintiffs amend their complaint to make factual allegations rather than arguments. Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 18 of 19 Motion to Dismiss – Reply MPA Case No. 3:18-cv-06097 EMC 15 n:\lit\li2018\170067\01345741.docx 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 Finally, plaintiffs’ complaint far exceeds the short and plain statement required by federal law. See McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (affirming motion to dismiss 37 page civil rights complaint). Defendants submit that plaintiffs’ complaint does mix “allegations of relevant facts, irrelevant facts, political argument, and legal argument in a confusing way” and is full of irrelevant details. (See Opp. at 25 (quoting McHenry, 84 F.3d at 1174, 1178.)) CONCLUSION For the foregoing reasons, the Court should grant defendants’ motion to dismiss in its entirety. Alternatively, the Court should dismiss plaintiffs’ Title VI claim as untimely, dismiss Captain Cherniss and Deputy Chief Redmond for failure to state a claim against them as supervisors, and strike the redundant, immaterial and scandalous matter contained in plaintiffs’ First Amended Complaint. Dated: March 21, 2019 DENNIS J. HERRERA City Attorney CHERYL ADAMS Chief Trial Deputy MARGARET W. BAUMGARTNER RENEE E. ROSENBLIT Deputy City Attorneys By: /s/ Margaret W. Baumgartner MARGARET W. BAUMGARTNER Attorneys for Defendants Case 3:18-cv-06097-EMC Document 72 Filed 03/21/19 Page 19 of 19
