BAXTER v. CITY OF HEMET 15 (2024)

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT [ECF No. 35] AND PLAINTIFF'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING [ECF No. 87]

I. SUMMARY OF DECISION

This case involves the contention of Plaintiff David Baxter that his Constitutional rights were violated when he was detained and arrested after a traffic stop in Hemet, California, shortly after midnight on August 9, 2019.

Before the Court is the motion of Defendants City of Hemet, Christian Coley, Nicholas Schroeder, and Daniel Reinbolt for summary judgment or, in the alternative, partial summary judgment.¹ After considering the papers filed in support and in opposition,² as well as the oral argument of counsel at the hearing, the Court orders that Defendants’ Motion for summary judgment is GRANTED in part and DENIED in part and that Baxter's Motion for Leave to file supplemental briefing is DENIED, for the reasons explained below.

The sole claim that remains for trial is Baxter's excessive force claim against Defendant Coley.

II. BACKGROUND

A. Uncontroverted Facts 3

At the time of the events in this case, Plaintiff David Baxter was a 64-year-old man living in the City of Hemet, California.⁴ On August 9, 2019, just after midnight, Baxter was driving his Ford F-150 truck westbound on Acacia Avenue toward its intersection with Gilbert Street.⁵ Meanwhile, Defendant Christian Coley, a Hemet Police Department officer, was on patrol in his marked patrol unit traveling eastbound on Acacia toward the same intersection.⁶ The intersection of Acacia and Gilbert is controlled by stop signs for westbound and eastbound traffic.⁷ South Gilbert, where the incident took place, is considered “a high-crime area.”⁸

Although no party disputes that Baxter and Coley faced each other at the intersection,⁹ the condition of Baxter's front license plate is a disputed fact.¹⁰ Coley maintains that Baxter's front plate was illegible in violation of Cal. Veh. Code § 5201.¹¹ But Baxter says that his plate was “fine”¹² and “clearly legible,” relying on a photograph taken of Baxter's truck on that night.¹³ Upon observing that purported violation, Coley decided to conduct a traffic stop.¹⁴ With both vehicles stopped and facing each other at the intersection, Coley flashed his headlights, intending to signal to Baxter that Baxter should proceed through the intersection.¹⁵

Baxter understood Coley's signal,¹⁶ but, instead of proceeding, Baxter flashed his lights back at Coley and remained stationary.¹⁷ Following a standstill of between six and 30 seconds, Coley drove through the intersection, intending to make a U-turn to take a position behind Baxter's truck.¹⁸

Baxter then made a left turn from Acacia onto southbound Gilbert.¹⁹ Baxter glanced into his side-view mirror and observed Coley making a U-turn onto Acacia, with his patrol car's emergency overhead lights activated.²⁰ Coley then turned onto Gilbert and positioned his vehicle behind Baxter's truck, and at “14 minutes and 7 seconds after midnight,” Coley advised police dispatch that he was conducting a traffic stop.²¹

Baxter heard the chirp of Coley's siren,²² but he testified that he could not immediately pull over because both sides of Gilbert Street were lined with parked cars.²³ Baxter continued to drive for about 25 seconds ²⁴ at a speed of approximately 15 to 20 miles per hour,²⁵ then he slowed to 10 miles per hour.²⁶ Baxter drove about eight car lengths—roughly 160 feet—from the Acacia-Gilbert intersection,²⁷ then he backed his truck into his own driveway at 324 Gilbert Street.²⁸ Baxter believed that his driveway was “the first open space to pull over.”²⁹ At the 25-second point, Coley requested back-up officers using the dispatch radio code “11-10.”³⁰ During Baxter's second backing maneuver into his own driveway, the right front passenger tire of Baxter's truck collided with the push bumper of Coley's police unit.³¹ Baxter maintains that he was complying with Coley's orders by backing into his own driveway—in Baxter's view, the first available parking spot on a crowded street—but Coley testified that he regarded Baxter's failure to stop immediately, and Baxter's action in crossing the double yellow lines on Gilbert Street, to be illegal.

Approximately 12 seconds after Coley transmitted “11-10” and 37 seconds after he initiated the traffic stop, Coley requested emergency back-up using the dispatch radio code “11-11.”³² Coley testified that he called back-up officers because of Baxter's “unpredictable and atypical driving” and Baxter's purported refusal to stop.³³

Believing Baxter's behavior to be “atypical” and “unpredictable,” Coley then held Baxter at gunpoint for less than two seconds.³⁴ Coley holstered his firearm when back-up officers arrived on the scene.³⁵ Baxter was eventually handcuffed ³⁶ and transported to the Hemet Police Station, where he was informed that he was being arrested for evading a police officer in violation of Cal. Veh. Code § 2800.1.³⁷ At some point, Coley pulled Baxter's wallet out of Baxter's rear pocket, although it is disputed whether Baxter provided his consent.³⁸ The police inventoried the items in Baxter's truck before it was towed, and nothing was missing or removed.³⁹

Coley testified that only after Baxter was detained did he learn of Baxter's identity and, in particular, that Baxter resided at 324 Gilbert Street.⁴⁰ Coley believed that he had probable cause to arrest Baxter because Baxter had violated several traffic laws, including Cal. Veh. Code § 2800.1 (evading a police officer), § 5201 (driving with an illegible license plate), and § 21650 (not driving on the right-hand side of the road).⁴¹ Baxter did not at any point “perform maneuvers meant to evade ․ Coley.”⁴²

B. Procedural History

Baxter commenced this action in August 2021.⁴³ Three months later, Baxter amended his Complaint, asserting the following three claims for relief:

• a claim under 42 U.S.C. § 1983 against Coley, Schroeder, Reinbolt, and Does 1-14 for violating Baxter's Fourth Amendment right to be free from the unlawful and unreasonable seizure of his property;

• a claim under 42 U.S.C. § 1983 against Coley and Does 1-14 for violating Baxter's Fourth Amendment right to be free from the excessive use force; and

• a Monell-styled 42 U.S.C. § 1983 claim, see Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), against the City of Hemet and Does 1-15 for entity and supervisory liability.44

In his original Complaint, Baxter also asserted claims against Defendants Hemet Police Department and Police Chief Eddie J. Pust.⁴⁵ But Baxter does not assert any claims against the Police Department or Pust in his Amended Complaint, so those two Defendants are DISMISSED.

The remaining Defendants—the City, Coley, Schroeder, and Reinbolt—moved for summary judgment in January 2023.⁴⁶ Baxter filed an Opposition,⁴⁷ and Defendants replied.⁴⁸ In March 2023, Baxter filed a notice of non-opposition to (1) Defendant City of Hemet's Summary Judgment Motion; and (2) Defendant Daniel Reinbolt's Summary Judgment Motion.⁴⁹ Accordingly, the City and Reinbolt are also DISMISSED.

The following two claims remain for resolution:

• a claim against Coley, Schroeder, and Does 1-14 under 42 U.S.C. § 1983 for violating Baxter's Fourth Amendment rights due to the unreasonable seizure of his property; and

• a claim against Coley and Does 1-14 under 42 U.S.C. § 1983 for violating Baxter's Fourth Amendment rights due to the use of excessive force.50

III. LEGAL STANDARD

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). When deciding a motion for summary judgment, the court construes the evidence in the light most favorable to the non-moving party. See Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). However, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). The substantive law determines which facts are material. See id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. A dispute about a material fact is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

IV. DEFENDANTS’ EVIDENTIARY OBJECTIONS

As a preliminary matter, Defendants raise a number of evidentiary objections to the exhibits that Baxter attached to his Opposition to Defendants’ Motion for summary judgment.⁵¹ Defendants object to Exhibits 681 and 682. Although Baxter does not provide a description of either exhibit, Exhibit 681 appears to be a photograph of a stop sign at the intersection of Gilbert and Acacia, and Exhibit 682 appears to be a photograph of Baxter's truck, including the front license plate. Defendants object that neither of those photographs has been authenticated under the Federal Rules of Evidence.⁵²

Rule 901 requires that “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” United States v. Gadson, 763 F.3d 1189, 1203 (9th Cir. 2014). Here, the Court finds that both photographs were not properly authenticated, since Baxter does not explain who took the photographs, nor does he provide any information regarding when the photographs were taken. With respect to Exhibits 681 and 682, Defendants’ Objections are therefore SUSTAINED.

Defendants also object to the admissibility of Exhibits 501-523 and 683-688.⁵³ The Court does not consider those exhibits in connection with its analysis of the Motion, so those objections are OVERRULED as moot.

V. BAXTER'S MOTION TO FILE SUPPLEMENTAL BRIEF

In a request that postdates the filing of Defendants’ Motion by several months, Baxter seeks leave to file a supplemental brief and additional undisputed facts in support of his Opposition.⁵⁴ Baxter moves to submit that additional brief (and an accompanying set of undisputed facts) pursuant to Rule 56(e). For the reasons set forth below, Baxter's Motion for Leave is DENIED.

The Federal Rules of Civil Procedure provide guidance for when a motion for summary judgment is not adequately supported. See Fed. R. Civ. P. 56(e). In pertinent part, Rule 56(e) provides that if “a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; ․ or (4) issue any other appropriate order.” Fed. R. Civ. P. 56(e). The Notes addressing the 2010 Amendment to Rule 56(e)(1) explain that “summary judgment cannot be granted by default even if there is a complete failure to respond to the motion, much less when an attempted response fails to comply with Rule 56(c) requirements.” Likewise, the Notes provide that Rule 56(e)(4) is designed “to encourage proper presentation of the record.”

Here, Baxter moves to file a supplemental brief pursuant to Rule 56(e) because he wishes to “address[ ] legal and factual issues neither party had thoroughly examined,” particularly as they relate to (1) inventory searches; (2) the doctrine espoused in Atwater v. City of Lago Vista, 532 U.S. 318 (2001); and (3) “[t]he impact of Ofc. Christian Coley's orders to David Baxter on the determination of probable cause.”⁵⁵ However, Rule 56(e) may not be used as a vehicle to introduce new facts and arguments to which the opposing party has not had an opportunity to respond. Rather, “Rule 56(e) addresses a situation that is different from the situation here, that is, Rule 56(e) addresses the situation where a party fails to support an assertion of fact with citations to record materials required by Fed. R. Civ. P. 56(c).” McEowen v. GoDaddy.com, LLC, 2021 WL 7185064, at *1 (N.D. Iowa May 7, 2021). Because Rule 56(e) does not authorize Baxter to introduce new facts that he should have included in the Joint Statement, nor does it allow him to make new arguments that he should have advanced in his Opposition (or at the hearing on the Motion), the Court DENIES Baxter's Motion for Leave.

VI. ANALYSIS

Baxter asserts a claim against the City of Hemet for failure to train its officers and for an unconstitutional policy, custom, or practice.⁵⁶ See Monell, 436 U.S. at 693–94. Through their Motion, Defendants seek summary judgment in their favor on that Monell claim. Baxter concedes.⁵⁷ Accordingly, the Court GRANTS the Motion and DISMISSES Baxter's third claim for relief with prejudice.

In the remainder of their summary judgment motion, Defendants advance the following arguments:

• no unlawful seizure—Coley had reasonable suspicion to detain Baxter;

• no unlawful arrest—the officers had probable cause to arrest Baxter;

• no unlawful search—the search of Baxter's vehicle and person was lawful; and

• no excessive force—Coley's act of pointing his firearm at Baxter did not amount to excessive force as a matter of law.

In the alternative, Defendants argue that they are entitled to qualified immunity on each of Baxter's theories.

As discussed in detail below, the Court concludes that Defendants are entitled to summary judgment on all of Baxter's remaining theories except for Baxter's excessive force claim against Coley.

A. Unlawful Seizure

In his second claim for relief, Baxter asserts that Defendants unlawfully seized his person and property in violation of his Fourth Amendment rights.⁵⁸ To maintain a § 1983 claim, Baxter must show that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived him of a constitutional right. See L.W. v. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992). Defendants argue that Coley and Schroeder did not violate Baxter's Fourth Amendment right to be free from unreasonable searches and seizures from the government,⁵⁹ and, even if they did, they are entitled to qualified immunity because the law proscribing their conduct was not clearly established.⁶⁰

In resolving questions of qualified immunity at the summary judgment stage, a court engages in a two-pronged inquiry, which may be addressed in either order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). The first prong asks whether the facts, taken in the light most favorable to the party asserting injury, show that the officer's conduct violated a constitutional right. See Tolan v. Cotton, 572 U.S. 650, 655–56 (2014). The second prong asks whether the right in question was “clearly established” at the time of the violation. Id. at 656. Thus, an officer will be denied qualified immunity only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show that the officer's conduct violated a constitutional right; and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood her conduct to be unlawful in that situation. See Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).

1. Constitutional Violation

The first question is whether Defendants violated Baxter's right to be free from unlawful seizure under the Fourth Amendment. Based upon the undisputed facts presented to the Court on this Motion viewed in the light most favorable to Baxter, the Court concludes that they did.

“An investigatory stop of a vehicle is reasonable under the Fourth Amendment if the officer reasonably suspects that a traffic violation has occurred.” United States v. Miranda-Guerena, 445 F3d 1233, 1236 (9th Cir. 2006) (citing United States v. Willis, 431 F.3d 709, 714 (9th Cir. 2005)). “Reasonable suspicion is formed by ‘specific articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.’ ” United States v. Colin, 314 F3d 439, 442 (9th Cir. 2002) (quoting United States v. Lopez–Soto, 205 F.3d 1101, 1105 (9th Cir. 2000)). “The ‘reasonable suspicion’ necessary to justify such a stop ‘is dependent upon both the content of information possessed by police and its degree of reliability.’ ” Navarette v. California, 572 U.S. 393, 397 (2014) (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). The court must determine reasonable suspicion based upon the totality of the circumstances. See United States v. Arvizu, 534 U.S. 266, 273 (2002). In addition, the subjective intent of the officer is irrelevant to the Fourth Amendment analysis. See Whren v. United States, 517 U.S. 806, 813 (1996).

Here, Defendants attempt to justify Baxter's detention by arguing that he committed an array of traffic violations, all of which Coley reasonably observed. First, Defendants assert that Coley observed Baxter violating Cal. Veh. Code § 5201(a), which specifies that license plates “shall be maintained in a condition so as to be clearly legible.”⁶¹ See Cal. Veh. Code § 5201(a).⁶² Defendants maintain that it was reasonable for Coley to suspect that Baxter was in violation of that statute because Baxter's front license plate “was not clearly visible or legible.”⁶³ Next, Defendants claim that Baxter committed another traffic violation by failing to yield to Coley in violation of Cal. Veh. Code § 21806.⁶⁴ Finally, Defendants argue that when Baxter drove his truck across the double yellow lines on Gilbert Street, Baxter committed another traffic code violation under Cal. Veh. Code § 21650.⁶⁵

Here, viewing the facts in the light most favorable to Baxter, the Court concludes that a reasonable jury could determine that Coley lacked the requisite reasonable suspicion to conduct a traffic stop.

a. Cal. Veh. Code § 5201(a)

California law provides as follows:

License plates, including temporary license plates, shall at all times be securely fastened to the vehicle for which they are issued so as to prevent the plates from swinging, shall be mounted in a position so as to be clearly visible, and so that the characters are upright and display from left to right, and shall be maintained in a condition so as to be clearly legible.

Cal. Veh. Code § 5201(a).

Baxter makes a number of arguments for why Coley could not have reasonably suspected Baxter to be in violation of that statute. Baxter first contends that he wins as a matter of law; specifically, he argues that Coley could not have reasonably suspected that a violation of Cal. Veh. Code § 5201 was occurring because the traffic law does not criminalize faded plates, nor does it mention whether their “shine” or “reflectivity” must be maintained in a particular condition.⁶⁶ As a matter of law, Baxter is incorrect.

In order to determine the scope of Cal. Veh. Code § 5201, the Court defers to California courts’ interpretation of the statute. In People v. White, 93 Cal. App. 4th 1022 (2001), the California Court of Appeal determined the scope of that statute in the context of a motion to suppress. See id. at 1025. In that case, in determining that the statute was unambiguous, the court deferred to its plain meaning:

The words “clearly visible” are unambiguous. “Visible” means “capable of being seen,” “perceptible to vision,” “exposed to view,” “conspicuous.” ․ The term “clearly” means “free from obscurity ․ unmistakable ․ unhampered by restriction or limitation, unmistakable.”

White, 93 Cal. App. 4th at 1026 (quoting Webster's 9th New Collegiate Dict. (1987), 247 & 1318). Applying that interpretation, the White court reasoned that the “the Legislature meant a license plate must not be obstructed in any manner and must be entirely readable.” Id. at 1026. It further held that a license plate that was partially obstructed from view—by a trailer hitch ball—ran afoul of the code. See id.

Applying the reasoning in White, the Court concludes that a license plate that is illegible because it has faded or has lost its reflectivity or shine—as is alleged here—is not necessarily exempt from the strictures of Cal. Veh. Code § 5201. Focusing on the plain meaning of the statute, the crux is whether the plates are illegible; the cause of such illegibility is immaterial. Baxter's blanket argument that faded plates are somehow exempt from Cal. Veh. Code § 5201 therefore fails.

Next, Baxter asserts that genuine issues of material fact on this point preclude summary judgment in favor of Defendants. The Court agrees, in part.

Baxter begins his argument by suggesting that Coley could not possibly have reasonably suspected Baxter to be in violation of Cal. Veh. Code § 5201, since “Coley testifie[d] that he informed dispatch of the license plate number before initiating the stop.”⁶⁷ However, Baxter's argument in this respect misstates the record:

Attorney: All right. So at 14 minutes and 7 seconds, is this you calling out the license plate?

Coley: Yes.

Attorney: Is that before or after the stop?

Coley: That would be before the stop.

Attorney: And at 11-11—I'm sorry. What was that?

Coley: That's the emergency back-up request, and actually if I'm putting out the license plate, I'm behind him at that point because I couldn't read it from in front of him; so that is during the stop.68

As the record demonstrates, Coley explained that he did not inform dispatch of Baxter's plate number until after his police vehicle was positioned behind Baxter's truck. Moreover, Coley points out that the legibility of Baxter's front license plate was at issue, not his rear license plate. Therefore, Coley does not impeach himself through his own deposition testimony, as Baxter suggests.

One element of the record, however, materially deviates from Coley's assertions, raising a triable issue. While during his deposition Coley testified that he believed that “Plaintiff's front license plate was not clearly visible or legible,”⁶⁹ that testimony is contradicted by a photograph taken by the Hemet Police Department on the night of the incident, which clearly shows Baxter's front license plate.⁷⁰ Therefore, a reasonable fact finder viewing that photograph could conclude that it contradicts Coley's assertions.

Because evidence is genuinely disputed on this issue, the Court concludes that the question of whether Coley reasonably suspected Baxter to have violated Cal. Veh. Code § 5201 is “inappropriate for resolution on summary judgment.” Direct Techs., LLC v. Elec. Arts, Inc., 836 F.3d 1059, 1067 (9th Cir. 2016); see Bator v. State of Hawai'i, 39 F.3d 1021, 1026 (9th Cir. 1994) (“At the summary judgment stage, ․ the district court may not make credibility determinations or weigh conflicting evidence.”).

Defendants argue that even if Coley was incorrect about the legibility of Baxter's front license plate, Baxter's detention was still lawful because Coley made a mistake of fact.⁷¹ See United States v. Mariscal, 285 F.3d 1127, 1131 (9th Cir. 2002) (“[A] mere mistake of fact will not render a stop illegal, if the objective facts known to the officer gave rise to a reasonable suspicion that criminal activity was afoot.”). However, that argument fails, because Defendants do not point to any objective facts in the record that show that Coley's purported mistake amounted to a good-faith error. See, e.g., United States v. Dorais, 241 F.3d 1124, 1130–31 (9th Cir. 2001) (holding that it was a reasonable mistake of fact for an officer to pull over a rental car when the rental car company had reported the vehicle stolen, even though it was still less than 48 hours overdue, and, therefore, it was not yet “stolen” under state law); United States v. Miguel, 368 F.3d 1150, 1153-54 (9th Cir. 2004) (holding that it was a reasonable mistake of fact for officers to rely on inaccurate information in a computer database that a vehicle's registration had expired); Rohde v. City of Roseburg, 137 F.3d 1142, 1143-44 (9th Cir. 1998) (holding that probable cause existed to arrest a driver when a radio dispatcher erroneously told the arresting officer that the driver's vehicle was stolen and the driver produced only a vehicle title bearing another person's name). Instead, Coley merely points to his own self-serving testimony in support of his contention that he made a mistake of fact. In the absence of any objective fact known to Coley at the time—for instance, an erroneous report from a dispatcher or inaccurate information from a computer database—Coley fails to show that there is “no genuine issue of material fact” regarding his purported mistaken belief. See Anderson, 477 U.S. at 247-48.

b. Cal. Veh. Code § 21806

Defendants next argue that Coley had reasonable suspicion that Baxter committed a violation of Cal. Veh. Code § 21806. Defendants claim that they meet their burden on summary judgment for the following three reasons: (1) pursuant to Cal. Veh. Code § 21806, Baxter understood that he was required to yield to emergency vehicles by immediately pulling over to the right side of the street, stopping his vehicle, and remaining stopped; (2) Baxter also understood that he was required to stop his vehicle and pull to the right side of the road upon observing a marked police unit driving behind him with its lights activated; and (3) Baxter continued to drive instead of stopping.⁷²

California law provides as follows:

Upon the immediate approach of an authorized emergency vehicle which is sounding a siren and which has at least one lighted lamp exhibiting red light that is visible, under normal atmospheric conditions, from a distance of 1,000 feet to the front of the vehicle, the surrounding traffic shall, except as otherwise directed by a traffic officer, do the following:

(a)(1) Except as required under paragraph (2), the driver of every other vehicle shall yield the right-of-way and shall immediately drive to the right-hand edge or curb of the highway, clear of any intersection, and thereupon shall stop and remain stopped until the authorized emergency vehicle has passed.

(2) A person driving a vehicle in an exclusive or preferential use lane shall exit that lane immediately upon determining that the exit can be accomplished with reasonable safety.

(b) The operator of every street car shall immediately stop the street car, clear of any intersection, and remain stopped until the authorized emergency vehicle has passed.

(c) All pedestrians upon the highway shall proceed to the nearest curb or place of safety and remain there until the authorized emergency vehicle has passed.

Cal. Veh. Code § 21806.

Viewing the evidence in the light most favorable to Baxter—the nonmoving party—the Court finds that a genuine dispute of material fact still exists regarding whether Coley reasonably suspected Baxter of violating that statute. In particular, it is undisputed that Baxter could not pull over to the side of the road or to the curb, since both sides of Gilbert Street were lined with parked cars.⁷³ It is also undisputed that Baxter's driveway was the first open space available on a street that was crowded with parked cars.⁷⁴ Therefore, taking those facts together, a reasonable jury could conclude that Coley knew that Baxter was in the process of yielding, as required by the law.⁷⁵ Defendants therefore fail to meet their burden to show that no issue of material fact exists with respect to whether Coley had reasonable suspicion to detain Baxter based upon Baxter's purported violation of Cal. Veh. Code § 21806.

c. Cal. Veh. Code § 21650

California law requires drivers “[u]pon all highways, ․ [to] drive[ ] upon the right half of the roadway, except [under certain specified conditions].” Cal. Veh. Code § 21650. Defendants argue that Coley had reasonable suspicion to detain and arrest Baxter because Baxter admitted to violating that statute by crossing the double yellow lines on Gilbert Street.⁷⁶ However, a jury might determine that Baxter crossed the double yellow lines on Gilbert Street in order to comply with Coley's command to pull over. Accordingly, a genuine issue of material fact exists regarding whether Coley could have reasonably suspected Baxter to be in violation of Cal. Veh. Code § 21650.

In view of the foregoing, the Court concludes that Baxter's maneuvers, after he encountered Coley at the corner of Acacia and Gilbert, do not give rise to inarguable reasonable suspicion for Coley to detain Baxter. See United States v. Smith, 217 F.3d 746, 749 (9th Cir. 2000) (“In order to determine if reasonable suspicion existed to justify an investigatory stop, the court must consider the facts available to the officer at the moment of seizure.”).

2. Clearly Established Right

“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson, 555 U.S. at 231 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (internal quotation marks omitted). Qualified immunity exists to shield an officer from liability for “mere mistakes in judgment, whether the mistake is one of fact or one of law.” Butz v. Economou, 438 U.S. 478, 507 (1978). To determine whether the law was clearly established, a court does not “require a case directly on point,” but existing precedent must have placed the “constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Coley is entitled to qualified immunity in this instance. In order to demonstrate that qualified immunity applies, “[a] plaintiff ‘bears the burden of showing that the right at issue was clearly established.’ ” Emmons v. City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019). In this case, Baxter has not cited any precedent that would demonstrate that “[Coley] had fair notice that [his] conduct was unlawful.” Evans v. Skolnik, 997 F.3d 1060, 1066 (9th Cir. 2021) (citing Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). Baxter does not, for instance, invite the Court's attention to Ninth Circuit precedent that “clearly established the rule on which [he] seek[s] to rely,” nor does Baxter point to “a consensus of cases of persuasive authority such that [Coley] could not have believed that his actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999). Baxter likewise fails to direct the Court to any other authority in support of his position, such as “decisions of state courts, other circuits, and district courts.” Evans, 997 F.3d at 1066. Because Baxter has failed to identify a clearly established right,⁷⁷ the Court concludes that that Coley is entitled to qualified immunity. Therefore, to the extent that Baxter's Amended Complaint is based upon his unlawful detention, Defendants’ Motion is GRANTED.

B. Unlawful Arrest

In his Amended Complaint, Baxter alleges that his arrest was unlawful and that it violated his Fourth Amendment rights.⁷⁸ Defendants move for summary judgment, arguing that Coley had probable cause to arrest Baxter for violating Cal. Veh. Code §§ 21806, 21650, and 2800.1.⁷⁹ Even if there was no probable cause for Baxter's arrest, Defendants contend that qualified immunity applies. The Court addresses each argument below.

1. Constitutional Violation

“In order to satisfy the requirements of the Fourth Amendment, an arrest must be supported by probable cause to believe that the arrestee has committed a crime.” Allen v. City of Portland, 73 F.3d 232, 236 (9th Cir. 1995), as amended (Jan. 17, 1996) (citing Henry v. United States, 361 U.S. 98, 102 (1959)). “In determining whether there was probable cause to arrest, we look to ‘the totality of circumstances known to the arresting officers, [to determine if] a prudent person would have concluded there was a fair probability that [the defendant] had committed a crime.’ ” Crowe v. Cty. of San Diego, 608 F.3d 406, 432 (9th Cir. 2010) (citing United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986)). “The analysis involves both facts and law. The facts are those that were known to the officer at the time of the arrest. The law is the criminal statute to which those facts apply.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011).

“ ‘[I]n a § 1983 action the factual matters underlying the judgment of reasonableness generally mean that probable cause is a question for the jury, and summary judgment is appropriate only if no reasonable jury could find that the officers did or did not have probable cause to arrest.’ ” Orr v. Cal. Highway Patrol, 2015 WL 848553, at *5 (E.D. Cal. Feb. 26, 2015) (quoting McKenzie, 738 F.2d at 1008). “If an officer has probable cause to believe that an individual has committed even a minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

a. Cal. Veh. Code §§ 21806 & 21650

Defendants first argue that the uncontroverted facts show that Coley had probable cause to arrest Baxter because Baxter violated Cal. Veh. Code §§ 21806 and 21650.⁸⁰ However, for the reasons described above, there are material factual disputes concerning whether Coley had reasonable suspicion that Baxter committed violations of Cal. Veh. Code §§ 21806 and 21650. Because those fact issues remain, it logically follows that fact issues also remain regarding whether Coley had probable cause to arrest Baxter based upon the same conduct giving rise to the same traffic violations. See United States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2000) (noting that “probable cause” is a “higher standard” than “reasonable suspicion”).

b. Cal. Veh. Code § 2800.1

A driver commits a misdemeanor under California law by willfully fleeing or attempting to elude a pursuing police officer's motor vehicle. See Cal. Veh. Code § 2800.1. Defendants argue that Coley had probable cause to arrest Baxter for violating Cal. Veh. Code § 2800.1 because Baxter continued to drive for 37 seconds without stopping, despite (1) seeing the emergency lights illuminated on Coley's vehicle; (2) hearing the chirp of Coley's police siren; and (3) receiving directives from Coley to “pull over.”⁸¹

Based upon the available facts, a reasonable jury could determine that Baxter was not trying to evade Coley. Accepting Baxter at his word, as the Court is required to do at the summary judgment stage, Baxter did not immediately pull over because several cars lined Gilbert Street and Baxter believed that his driveway was the first available spot to pull over.⁸² Coley's testimony also corroborates the fact that Baxter was not trying to evade; at his deposition, Coley testified that Baxter reached a top speed of 10 miles per hour before he pulled into this driveway.⁸³ The parties also agree that “[Baxter] did not perform maneuvers meant to evade ․ Coley.”⁸⁴ Therefore, considering the totality of circumstances known to Coley at the time, the Court finds an undeniable and material factual dispute that precludes summary judgment on the basis of Baxter's purported violation of Cal. Veh. Code § 2800.1.

Defendants cite Jankins v. City of Pasadena, 2019 WL 994959 (C.D. Cal. Feb. 15, 2019), in support of their argument that case law justifies Coley's conduct, but Jankins is inapposite. In that case, whether the plaintiff had committed a minor traffic violation was not in dispute. See id. at *4. In contrast, here, Baxter invites the Court's attention to facts in the record that contradict Coley's assertion that Baxter had committed a violation.

Defendants also refer to Manners v. Cannella, 891 F.3d 959 (11th Cir. 2018), but Manners is likewise inapposite. In Manners, the plaintiff testified that he did not pull over immediately because “[i]t was late at night ․ [and he] was in fear for [his] life.” Id. at 965. Manners also did not provide any indication to the police officer that he intended to stop. See id. at 970. Here, in contrast, a reasonable factfinder could determine that it was not reasonable for Coley to suspect that Baxter had the intent to evade him. Unlike the circumstances in Manners, there are facts in the record here that directly negate Baxter's intent. In the face of a direct factual dispute, summary judgment is inappropriate. See Anderson, 477 U.S. at 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”).

2. Qualified Immunity

Even if the arrest was unconstitutional, Defendants are entitled to qualified immunity because the right violated was not “sufficiently clear that every reasonable official would have understood that what he [was] doing violate[d] that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015). Baxter has not cited any case law in which a police officer was found to have violated the Fourth Amendment under circumstances similar to those present here.⁸⁵ Nor is the Court aware of any legal authority that would have placed Defendants “on notice their conduct [was] unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and internal quotations omitted). Therefore, to the extent that Baxter's Amended Complaint is based upon his alleged unlawful arrest, Defendants’ Motion is GRANTED.

C. Unlawful Search

Defendants next argue that they are entitled to summary judgment on Baxter's claims regarding the search of his person and vehicle.⁸⁶ In the alternative, Defendants argue that they are entitled to qualified immunity, since no clearly established law put the officers on notice that a search for Baxter's license and registration was unconstitutional. In his Opposition, Baxter does not directly respond to Defendants’ arguments.⁸⁷

When a summary judgment motion is unopposed, a district court must “determine whether summary judgment is appropriate—that is, whether the moving party has shown itself to be entitled to judgment as a matter of law.” Leramo v. Premier Anesthesia Med. Grp., 2011 WL 2680837, at *1 (E.D. Cal. July 8, 2011), aff'd, 514 F. App'x 674 (9th Cir. 2013) (quoting Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 175 (3rd Cir. 1990)). A district court “cannot base the entry of summary judgment on the mere fact that the motion is unopposed, but, rather must consider the merits of the motion.” Id. (quoting United States v. One Piece of Real Property, 363 F.3d 1099, 1101 (11th Cir. 2004)). A court “need not sua sponte review all of the evidentiary materials on file at the time the motion is granted, but must ensure that the motion itself is supported by evidentiary materials.” Id. (quoting One Piece of Real Property, 363 F.3d at 1101).

1. Constitutional Violation

a. Defendant Schroeder

As a preliminary matter, Baxter claims that Schroeder is liable because he “unlawfully and unreasonably searched Plaintiff Baxter's vehicle,”⁸⁸ “seized Plaintiff Baxter's vehicle,”⁸⁹ and “seized and never returned Plaintiff's cellphone.”⁹⁰ Defendants, on the other hand, argue that Baxter cannot raise a triable issue of fact regarding his claims against Schroeder based upon supervisor liability.⁹¹

An official may be liable as a supervisor only if either (1) he or she was personally involved in the constitutional deprivation; or (2) a sufficient causal connection exists “between the supervisor's wrongful conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). “The requisite causal connection can be established by setting in motion a series of acts by others, or by knowingly refusing to terminate a series of acts by others, which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury.” Id. at 1207-08 (quoting Redman v. County of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991), and Dubner v. City and County of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001)) (internal alterations, citations, and quotation marks omitted). There is no respondeat superior liability under 42 U.S.C. § 1983. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (citing Monell, 436 U.S. at 691). An officer may not be held liable merely for being present at the scene of a constitutional violation or for being a member of the same operational unit as the wrongdoer. See id. at 936-37.

Here, no genuine issue of material fact exists regarding whether Schroeder is liable for any of the searches. Although Baxter vaguely argues that “Schroeder affirmatively aid[ed] Coley by doing less than minimal, and looking the other wa[y],”⁹² no facts in the Joint Statement suggest that Schroeder was involved in any search.⁹³ Accordingly, the Court GRANTS Defendants’ Motion with respect to Baxter's claim that Schroeder unlawfully searched Baxter's vehicle and person.

b. Defendant Coley

i. Search of Person

In his Amended Complaint, Baxter alleges that Coley unlawfully searched his person by removing his personal items, including his wallet and his cellphone.⁹⁴ Defendants move for summary judgment with respect to that theory on the ground that the Amended Complaint alleges that after Baxter was detained, he consented to the search.⁹⁵

The Supreme Court has repeatedly declared that when an officer “seeks to rely upon consent to justify the lawfulness of a search, [the officer] has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); see also Florida v. Royer, 460 U.S. 491, 500 (1983); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). For example, in Amos v. United States, 255 U.S. 313 (1921), the Supreme Court determined that when internal revenue officers appeared at an individual's home and stated that they “had come to search the premises ‘for violations of the revenue law,’ ” the officers were “demanding admission to make search of [the individual's home] under government authority” and that subsequent compliance did not constitute consent to search. Id. at 317. Similarly, in Johnson v. United States, 333 U.S. 10 (1948), the Supreme Court held that an individual's compliance with an officer's demands to search was “granted in submission to authority,” when an officer stated, “I want you to consider yourself under arrest because we are going to search the room.” Id. at 12-13.

Here, by relying on a single allegation in the Amended Complaint that Baxter “consented” to the search of his person once he was detained,⁹⁶ Defendants have not met their burden to show that Baxter's purported consent to the search was “no more than acquiescence to a claim of lawful authority.” Bumper, 391 U.S. at 548-49. Accordingly, the Court concludes that there is evidence in the record from which a reasonable jury could find that Baxter did not provide consent for Defendants to search his person and that the search was executed in violation of the Fourth Amendment.

ii. Search of Vehicle

In his Amended Complaint, Baxter alleges that officers searched his vehicle without his consent.⁹⁷ Defendants move for summary judgment on that theory of liability. Specifically, Defendants argue that the search of Baxter's vehicle was lawful on two grounds: (1) it was a valid inventory search; and (2) it was a valid protective search. Both arguments fail.

Because warrantless searches and seizures are per se unreasonable, the government bears the burden of showing that a warrantless search or seizure falls within an exception to the Fourth Amendment's warrant requirement. See United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001). Under the community caretaking exception, “police officers may impound vehicles that jeopardize public safety and the efficient movement of vehicular traffic.” Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005) (internal quotation marks omitted). When a vehicle has been legally impounded, the police may conduct an inventory search, so long as it conforms to the standard procedures of the local police department. See South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976); see also United States v. Wanless, 882 F.2d 1459, 1463 (9th Cir. 1989). However, “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990).

Here, while Defendants claim that the purpose of the inventory search was to protect Baxter's property while he remained in police custody and to protect the Hemet Police Department from claims or disputes over stolen property,⁹⁸ Defendants fail to show that Baxter's vehicle was lawfully impounded.⁹⁹ See Opperman, 428 U.S. at 375-76. In sum, on this record, the search of Baxter's vehicle was not justified by the inventory search exception to the Fourth Amendment's warrant requirement.

In the alternative, Defendants argue that the search of Baxter's vehicle was lawful because it was a protective search.¹⁰⁰ But a protective sweep of Baxter's car would be lawful only “if a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Michigan v. Long, 463 U.S. 1032, 1050 (1983). Here, Defendants assert that the officers were justified in their belief that their safety or that of others was in danger, but do not cite to the record in support of that theory; instead, Defendants make the blanket assertion that Baxter's behavior was “erratic and unpredictable.”¹⁰¹ Because jurors’ minds could differ regarding whether the officers were reasonable in their belief that they were in danger, the Court cannot conclude that Defendants’ search of Baxter's vehicle was lawful under the protective search exception to the Fourth Amendment for purposes of this Motion.

2. Qualified Immunity

Having determined that a fact issue remains regarding whether the search of Baxter's person and vehicle was lawful, the Court next turns to whether Defendants violated a “clearly established right.” See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“The qualified immunity analysis requires a court to address two questions: (1) whether the facts alleged or shown by the plaintiff establish a constitutional violation and (2) whether the right at issue was clearly established at the time.”).

Here, Baxter once again fails to present evidence demonstrating that the right at issue was clearly established at the time of Defendants’ alleged misconduct. See Hope, 536 U.S. at 739 (“For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”) (quotation omitted). To the extent that there is any ambiguity in the record regarding whether a genuine dispute of fact exists, Baxter utterly fails to demonstrate that his right—that Defendants allegedly violated—was clearly established. Accordingly, for that reason alone, Defendants are entitled to summary judgment on their qualified immunity defense with respect to this claim. See, e.g., Callahan v. Unified Gov't of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015) (“When a defendant raises the defense of qualified immunity, the plaintiff bears the burden to demonstrate that the defendant violated his constitutional rights and that the right was clearly established.”); Findlay v. Lendermon, 722 F.3d 895, 900 (7th Cir. 2013) (the plaintiff failed to “carry his burden of showing a clearly established right” when he failed to identify precedent showing that “any reasonable officer would know [the conduct at issue] violated the constitution”); Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th Cir. 1991) (“[t]he plaintiff bears the burden of proof that the right allegedly violated was clearly established at the time of the alleged misconduct”). Therefore, to the extent that Baxter's Amended Complaint is based upon the purported unlawful search of his person and vehicle, Defendants’ Motion is GRANTED.

D. Excessive Force

1. Constitutional Violation

In his second claim for relief, Baxter contends that Coley also used excessive force by pointing a firearm at Baxter, in violation of Baxter's Fourth Amendment rights.¹⁰² Defendants move for summary judgment on Baxter's claim on the ground that a police officer's act of pointing a weapon at an individual does not amount to excessive force as a matter of law.¹⁰³ The Court disagrees.

When the use of force is objectively unreasonable, that use of force is constitutionally excessive, and it violates the Fourth Amendment's prohibition against unreasonable seizures. See Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011). The Supreme Court instructs courts to weigh the “nature and quality of the intrusion” against the “countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal citations omitted). Three factors guide that analysis: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officer or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. See Longoria v. Pinal Cty., 873 F.3d 699, 705 (9th Cir. 2017). That said, “[t]he intrusiveness of a seizure by means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9 (1985).

Applying those standards here, the Court concludes that a reasonable jury could find that Defendants’ use of force was constitutionally excessive. See Torres, 648 F.3d at 1124. Questions of fact remain regarding whether Baxter presented an immediate threat to the officers and whether Baxter was actively resisting arrest or attempting to evade arrest by flight. See Longoria, 873 F.3d at 705. Finally, although Defendants argue that Coley's action in pointing his firearm at Baxter was constitutionally permissible, the Ninth Circuit has repeatedly held that it is a constitutional violation for an officer to point a weapon at a person who is compliant and who presents no danger. See, e.g., Robinson v. Solano County, 278 F.3d 1007, 1015–16 (9th Cir. 2002) (en banc) (pointing a firearm at an unarmed suspect who poses no danger constitutes excessive force).

Defendants cite Anderson v. City of Bainbridge Island, 2010 WL 4723721 (W.D. Wash. Nov. 17, 2010), aff'd, 472 F. App'x 538 (9th Cir. 2012), but that case does not support Defendants’ arguments. There, the district court determined that the officer's act in pointing a firearm at the plaintiff was reasonable, since it was not reasonably in dispute that the plaintiff posed a momentary safety threat. See id. at *3. However, in Anderson—unlike in this case—whether the plaintiff had committed various traffic violations, including a Class C Felony, was not reasonably in dispute. See id. Therefore, viewing the facts in the light most favorable to Baxter, a reasonable juror could find that Baxter did not present a danger to Coley and that pointing a firearm at Baxter was excessive. Defendants’ argument that they are entitled to summary judgment based upon Baxter's excessive force claim therefore fails.

2. Qualified Immunity

Alternatively, Defendants assert that even if a constitutional violation occurred, they are nevertheless entitled to qualified immunity. In response, Baxter argues that it is well settled that pointing a firearm at a non-dangerous suspect, who possesses no articulable danger, violates the Fourth Amendment.¹⁰⁴ To establish that well-settled principle was known at the time of the incident, Baxter invokes Thompson v. Rahr, 885 F.3d 582 (9th Cir. 2018).

Under Baxter's version of the facts, Coley committed an act that no reasonable officer in Coley's position could have believed to be lawful. According to the Ninth Circuit, it is clearly established law that “pointing guns at persons who are compliant and present no danger is a constitutional violation.” Id. at 587.

Defendants attempt to distinguish Thompson. Defendants argue that the circumstances in that case are different because the officer pointed a loaded weapon at the unarmed suspect's head after the suspect had already been searched.¹⁰⁵ See id. at 587. Defendants also note that the suspect in Thompson was calm and compliant and that he was being observed by a second armed deputy.¹⁰⁶ See id. at 584.

“For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope, 536 U.S. at 739. Here, while the factual scenario presented in Thompson is not a carbon copy of the circumstances presented here, the cases do not differ in material respects. Thompson stood for the basic principle that pointing a firearm at a suspect—an act that can hardly be characterized as a minor intrusion—is unconstitutional when the “safety threat either to the officers or the public [is] relatively low.” Thompson, 885 F.3d at 586-87. In Thompson, it was undisputed that the “[the plaintiff] was suspected of driving with a suspended license and violating the Uniform Firearms Act,” id. at 586, but none of those circumstances—viewed in the light most favorable to Baxter—is present here. In fact, based upon Baxter's version of the facts, he did not commit any traffic violation. Therefore, it is hardly a stretch to conclude that Coley, faced with the undisputed circumstances present here, should have known that pointing his firearm at Baxter was unconstitutional.

In view of the Ninth Circuit's decision in Thompson, this Court concludes that it was clearly established that Coley's act of pointing a weapon at Baxter could constitute excessive force. As a matter of law, Coley is not entitled to summary judgment on the defense of qualified immunity here. Therefore, Defendants’ Motion is DENIED as it relates to Coley's alleged use of excessive force.

VII. DISPOSITION

For the foregoing reasons, the Court hereby ORDERS as follows:

1. Defendants’ Motion for Summary Judgment is GRANTED with respect to Baxter's first claim for relief, which is DISMISSED with prejudice.

2. Defendants’ Motion for Summary Judgment is GRANTED in part and DENIED in part with respect to Baxter's second claim for relief, as follows:

a. with respect to Coley's alleged use of excessive force against Baxter, the Motion is DENIED; and

b. with respect to all other alleged uses of force, the Motion is GRANTED.

3. Defendants’ Motion for Summary Judgment is GRANTED with respect to Baxter's third claim for relief, which is DISMISSED with prejudice.

4. Baxter's Motion for Leave to file supplemental briefing is DENIED.

5. The parties are DIRECTED to meet and confer forthwith and to file no later than April 19, 2024, a Joint Report proposing a case schedule.

6. A Scheduling Conference is SET for April 26, 2024, at 11:00 a.m. in Courtroom 9D of the Ronald Reagan Federal Building and U.S. Courthouse, 411 W. 4th Street, Santa Ana, California.

IT IS SO ORDERED.

FOOTNOTES

1.   Defs.’ Mot. for Summ. J. or, in the Alternative, Partial Summ. J. (the “Motion”) [ECF No. 35].

2.   The Court considered the documents of record in this action, including the following papers: (1) First Amended Compl. (the “Amended Complaint”) [ECF No. 18]; (2) Motion (including its attachments); (3) Pl.’s Opp'n to the Motion (the “Opposition”) [ECF No. 42]; (4) Defs.’ Reply in Supp. of the Motion (the “Reply”) [ECF No. 49]; (5) Final [Proposed] Joint Statement of Uncontroverted Facts and Conclusions of Law (the “Joint Statement”) [ECF No. 52]; (6) Joint Notice of Errata Re: Docket Number 52, Final [Proposed] Joint Statement of Uncontroverted Facts and Conclusions of Law (the “Notice of Errata”) [ECF No. 57]; (7) Joint Notice of Errata Re: ECF Number 48-1, SUF No. 19 and ECF No 52, SUF 19. (Final [Proposed] Joint Statement of Uncontroverted Facts (the “Second Notice of Errata”) [ECF No. 59]; (8) Joint Ex. Vol. 1 (“Joint Exhibit Volume 1”) (pages 1-322) [ECF No. 38]; (9) Joint Ex. Vol. 2 (“Joint Exhibit Volume 2”) (pages 333-523) [ECF No. 44]; (10) Joint Ex. Vol. 3 (“Joint Exhibit Volume 3”) (pages 524-742) [ECF No. 45]; (11) Pl.’s Mot. for Leave to File a Suppl. Br. in Supp. of the Opposition and to File Additional Undisputed Facts and Augment the Separate [sic] Bound Volume of Exhibits (including its attachments) (the “Motion for Leave”) [ECF No. 87]; and (12) Defs.’ Opp'n to the Motion for Leave [ECF No. 89]; and (13) Pl.’s Reply to the Motion for Leave [ECF No. 90].

4.   Joint Statement ¶ 84.

5.   Id. at ¶ 1.

6.   Id. at ¶ 2.

7.   Id. at ¶ 3.

8.   Id. at ¶¶ 1-4.

9.   Id. at ¶ 4.

10.   Id. at ¶ 5.

11.   Id.

12.   Id., Opponent Response; see also id. at ¶ 142, Opponent Response; Joint Exhibit Volume 1 152:5-22 (wherein Coley testifies that Baxter's “front license plate was faded and lacking [ ] reflective coding ․ This is an issue at night because I cannot see the numbers on the front license plate and the one letter that would be on the front license plate.”).

13.   Joint Statement ¶¶ 144 & 145; Joint Exhibit Volume 2 348.

14.   Joint Statement ¶ 6.

15.   Id. at ¶ 7.

16.   Id. at ¶ 9.

17.   Id. at ¶ 10.

18.   Id. at ¶ 11.

19.   Id. at ¶ 15.

20.   Id.

21.   Id. at ¶ 18.

22.   Id.

23.   Id. at ¶ 190.

24.   Id. at ¶ 24.

25.   Id. at ¶ 177.

26.   Id. at ¶ 194.

27.   Id. at ¶ 165.

28.   Id. at ¶¶ 25- & 26.

29.   Id. at ¶ 212.

30.   Id. at ¶ 24.

31.   Id. at ¶ 28.

32.   Id. at ¶ 29.

33.   Id. at ¶ 30.

34.   Id. at ¶ 32.

35.   Id.

36.   Id. at ¶ 245.

37.   Id. at ¶¶ 249, 262, & 263.

38.   Id. at ¶¶ 251 & 252.

39.   Id. at ¶ 40.

40.   Id. at ¶ 34.

41.   Id. at ¶ 44.

42.   Id. at ¶ 192.

43.   See generally Compl. (the “Complaint”) [ECF No. 1].

44.   See generally Amended Complaint.

45.   See Complaint ¶¶ 91-131.

46.   See generally Motion.

47.   See Opposition.

48.   See Reply.

49.   Pl.’s Notice of Non-Opposition to Defendants’ City of Hemet and Daniel Reinbolt Summary Judgment Motion (the “Notice of Non-Opposition”) [ECF No. 58].

50.   See Amended Complaint ¶¶ 64-78.

51.   See Defs.’ Statement of Evidentiary Objections to Pl.’s Evidence in Opposition to the Motion (the “Objections”) [ECF No. 51].

52.   Defendants object to the photographs on two additional grounds. First, they suggest that the photographs should be excluded as hearsay pursuant to Rule 801. However, “in view of fact that a photograph is not an assertion, oral, written, or nonverbal,” Rule 801 does not apply. See United States v. May, 622 F.2d 1000, 1007 (9th Cir. 1980); see also Fed. R. Evid. 801(a). Defendants also argue that the photographs violate Rule 1002. However, as the Ninth Circuit has held, “to survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.” Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003) (citing Block v. City of L.A., 253 F.3d 410, 418–19 (9th Cir. 2001)). In other words, when evidence is not presented in an admissible form in connection with a motion for summary judgment, but it may be presented in an admissible form at trial, a court may still consider that evidence. Therefore, Rule 1002 does not apply.

53.   Objections ¶¶ 2, 3, & 6-15.

54.   See generally Motion for Leave.

55.   Id. at 6:19-25.

56.   Amended Complaint ¶¶ 79-84.

57.   See generally Notice of Non-Opposition.

58.   Amended Complaint ¶¶ 64-78.

59.   Motion 9:18-11:10.

60.   Id. at 18:9-20:22.

61.   Motion 10:7-10.

62.   That statute provides as follows: “License plates, including temporary license plates, shall at all times be securely fastened to the vehicle for which they are issued so as to prevent the plates from swinging, shall be mounted in a position so as to be clearly visible, and so that the characters are upright and display from left to right, and shall be maintained in a condition so as to be clearly legible.” Cal. Veh. Code § 5201(a).

63.   Motion 7:17-19.

64.   Id. at 10:10-12.

65.   Id. at 10:10-17.

66.   Opposition 19:11-20:20.

67.   Id. at 20:17-18; Joint Statement ¶ 155.

68.   Joint Statement ¶¶ 155 & 156; Joint Exhibit Volume 1 160:19-161:3 (emphasis added).

69.   Motion 7:17-19; Joint Statement ¶ 45; Joint Exhibit Volume 1 152:5-22 & 153:6-24 (Coley deposition).

70.   Opposition 20:8-11; Joint Statement ¶ 145; Joint Exhibit Volume 2 348.

71.   Motion 10:18-11:10.

72.   Motion 6:2-7; Joint Statement ¶¶ 19-23.

73.   Opposition 7:2-5; Joint Statement ¶ 190.

74.   Motion 7:15-17; Joint Statement ¶¶ 190 & 212.

75.   Motion 7:17-20.

76.   Id. at 7:1-7; Joint Statement ¶¶ 34-37.

77.   During the hearing, the Court asked whether Baxter could point to a specific case addressing the second prong of the qualified immunity inquiry. Baxter's counsel responded that “[he] [didn't] have a specific case in mind.”

78.   Amended Complaint ¶¶ 17, 35, 40, 46, 50, 52, 59, 65, & 74.

79.   Motion 11:11-15:6.

80.   Id. at 11:12-15.

81.   Id. at 12:11-23.

82.   Joint Statement ¶ 212.

83.   Id. at ¶ 194.

84.   Id. at ¶ 192.

85.   See generally Opposition.

86.   Motion 15:7-16:10.

87.   See generally Opposition.

88.   Amended Complaint ¶ 68.

89.   Id. at ¶ 69.

90.   Id. at ¶ 70.

91.   Motion 15:11-15.

92.   Opposition 27:5-6.

93.   Joint Statement ¶ 43, 49, & 50.

94.   Amended Complaint ¶¶ 37 & 76.

95.   Motion 15:10-11; Amended Complaint ¶ 37 (“Coley asked Plaintiff if he could conduct a safety search of his person. Plaintiff consented. Coley then searched Plaintiff's person, removed his personal items (wallet and cell phone).”).

96.   Motion 15:10-11; Amended Complaint ¶ 37.

97.   Amended Complaint ¶¶ 38, 68, & 76.

98.   Motion 15:23-25.

99.   Defendants raise for the first time, in their Reply, the argument that Baxter's vehicle was legally impounded. See Reply 5:13-21. However, as a general rule, a “movant may not raise new facts or arguments in his reply brief.” United States v. Puerta, 982 F.2d 1297, 1300 n.1 (9th Cir. 1992).

100.   Motion 15:27-16:10.

101.   Id. at 16:8-10.

102.   Amended Complaint ¶¶ 36 & 76.

103.   Motion 16:16-17.

104.   Opposition 26:4-14 & 26:26-27:2.

105.   Reply 11:1-5.

106.   Id.

John W. Holcomb, UNITED STATES DISTRICT JUDGE