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Herman ROBERSON, Plaintiff, v. CITY OF HAWTHORNE, et al., Defendants.
ORDER RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendants Brian Lazorek, Jerome Michalczak, and the City of Hawthorne's Motion for Summary Judgment (“MSJ”). [Doc. # 31.] The motion is fully briefed. [Doc. # 39 (“Opp.”), 41 (“Reply”).] The Court held a hearing on the motion on January 29, 2021. For the reasons set forth below, the Court GRANTS in part and DENIES in part the MSJ.
Plaintiff Herman Roberson initiated this action on August 8, 2019. Complaint [Doc. # 1]. The Complaint alleges claims for relief against Lazorek and Michalczak under 42 U.S.C. section 1983 for excessive use of force and unlawful arrest in violation of the Fourth Amendment, as well as state law claims for negligence, assault and battery, and a violation of California's Bane Act. Id. The Complaint also asserts a Monell claim for municipal liability against the City of Hawthorne. Id. Defendants filed the instant MSJ on December 2, 2020, seeking summary judgment on all causes of action.
FACTUAL BACKGROUND 1
Lazorek and Michalczak are officers with the Hawthorne Police Department. At approximately 9:18 a.m. on the morning of November 1, 2018, they both received a radio dispatch reporting a domestic disturbance at 14135 South Cerise Avenue, Apt. 105 (“the Apartment”). SUF 19. The dispatch relayed that a 911 caller had reported that her cousin's boyfriend was engaged in a verbal argument with other members of the family. SUF 20. At approximately 9:23 a.m., Michalczak arrived at the Apartment. SUF 21. From the hallway outside, he could hear a loud verbal argument and screaming coming from inside the Apartment. SUF 26. He decided to wait outside for Lazorek to arrive before attempting to investigate, noting that family disturbance calls are generally dangerous. SUF 25. Upon Lazorek's arrival, they knocked on the door, which was answered by Rhonda Luckett. SUF 28-32. When she opened the door, the officers observed Roberson walking around the living room area in an “excited defiant state.” SUF 33, 37.
Almost immediately after answering the door, Luckett and Roberson continued loudly arguing over each other, making it difficult to understand what either was saying or for the officers to ask them questions. SUF 35, 47, 164; Luckett Decl., Ex. A (“Audio Recording”) [Doc. # 32].2 Nonetheless, Luckett was able to communicate that the Apartment belonged to her daughter, who was at work, and that she was there to watch her toddler grandchildren, who were present at the time. SUF 38, 42. She told the officers that Roberson does not live at the Apartment, but that he arrived early that morning “kicking on the door” and “hollering and screaming,” and that she let him in because the children identified him as their father. SUF 36, 40-41, 44. One of the officers asked Luckett if her daughter—the resident of the Apartment and mother of the children—had a restraining order against Roberson, and Luckett responded, “Yeah, he's on parole or something,” adding that he is not supposed to be in contact with police. Audio Transcript at 27:3-6. Neither officer observed anything or received information suggesting any physical violence or threats of violence had occurred. SUF 162-63. They both stood in the doorway of the Apartment. SUF 165.
The officers soon asked both Roberson and Luckett to step outside. SUF 48. Roberson did not comply, and the officers increased the authoritativeness of their commands, repeatedly telling him to “[g]et out” and “[c]ome here” and at one point saying, “don't make this get any worse.” SUF 54, 56, 62; Audio Transcript at 32:9, 17. Roberson responded with, variably, “I'm not going to go nowhere,” “come get me,” “come get all of us then,” and saying he was going to go take a shower. SUF 50, 53, 55, 57. He also twice shouted that the officers were going to “kill [him] like Trayvon Martin.” SUF 35. Eventually though, after multiple requests,3 Roberson complied and exited the Apartment. SUF 62-63. Shortly after exiting, and before saying anything else, Roberson then said, “Let me get my shoe,” and turned back towards the door. SUF 65, 179.
At this point, Michalczak grabbed Roberson in an attempt to handcuff him. SUF 66, 171. In response, Roberson pulled his hand away. SUF 175. On the audio recording, one of the officers is heard saying, “Put your—don't start, don't start,” after which there are muffled sounds. Audio Recording 4:30-40. Michalczak then threw Roberson against the wall, placed him in a headlock, and tackled him to the ground. SUF 68, 176, 178. It is undisputed that Roberson did not fight back. SUF 68. When on the ground, Michalczak pinned Roberson with his weight on Roberson's neck. SUF 180. According to Roberson, after being tackled, he voluntarily put his arms behind his back for Michalczak. SUF 68. According to Luckett though, he swung his arms “like [he] didn't want to give up his hands.” SUF 77. While on the ground, Lazorek then came over and straddled Roberson, placing his knee on Roberson's lower thigh and buttock and grabbing his arms to handcuff him. SUF 180-81. After Roberson was handcuffed, he sat on the floor of the hallway outside the Apartment. SUF 80. The entire altercation, from the time Michalczak first contacted Roberson until he was handcuffed and sitting on the floor, lasted about two to three seconds. SUF 81.
The officers took Roberson into custody for violating California Penal Code section 148(a)(1), which prohibits resisting, delaying, or obstructing a police officer. SUF 92, 182. The Los Angeles County District Attorney charged Roberson with battery on a police officer and resisting a police officer with force, in violation of Penal Code sections 243(c)(2) and 69. SUF 185. On November 21, 2018, Roberson's criminal preliminary hearing was held before the Los Angeles County Superior Court. SUF 99. Michalczak testified for the prosecution as its only witness. SUF 102. Following his testimony, the state court dismissed the charges because it found that the prosecution did not present sufficient evidence that Roberson had committed a crime, independent of resisting, that would give the officers authority to detain him. Suhr Decl., Ex. P (“Hearing Transcript”) at 15:12-16:16. In particular, the court found that there was “no evidence that [Roberson] doesn't have a lawful right to be there” and “no evidence of violence or threat of violence.” Id. at 15:3-4. Therefore, there was “nothing to indicate that Roberson was obligated to come out” of the Apartment when ordered to do so by the officers. Id. at 15:12-18. The court concluded that “under the Fourth Amendment, there must be specific articulable facts to this defendant,” and “because I've heard no such evidence, the People have failed in producing evidence on the element of the offense, the officers lawfully performing their duty.” Id. at 15:19-16:5.
Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.
The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, Rule 56(c) requires the nonmoving party to “go beyond the pleadings and by [his or] her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(c), (e)); see also Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (en banc) (“Rule 56 requires the parties to set out facts they will be able to prove at trial.”). “In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). “Rather, it draws all inferences in the light most favorable to the nonmoving party.” Id.
A. Monell Claim
As an initial matter, Defendants provide additional evidence relating to the Hawthorne Police Department's training and disciplinary procedures. SUF 126-48. Roberson responds to all of these statements of fact only by saying he concedes his Monell claim, and he does not address the claim in his Opposition. The Court therefore GRANTS summary judgment in favor of Defendants on the Monell claim against the City of Hawthorne.
B. Individual Section 1983 Claims
To state a valid section 1983 claim against an individual, a plaintiff must establish that: (1) a person acting under the color of state law has (2) deprived him of a right secured by the United States Constitution or federal law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). There is no dispute here that Michalczak and Lazorek were acting under color of state law. The disagreement centers on whether they violated Roberson's Fourth Amendment rights. Roberson argues that the officers violated the Fourth Amendment by (a) unlawfully arresting him and (b) using excessive force while doing so.
The officers arrested Roberson for violating California Penal Code section 148(a)(1). Defendants purport that the violation was based on Roberson's refusal to comply with multiple orders to exit the Apartment. MSJ at 21-23. As the state criminal court correctly held though, the officers' orders must have been lawful in order for Roberson's non-compliance to amount to criminal wrongdoing. See People v. Simons, 42 Cal. App. 4th 1100, 1109, 50 Cal.Rptr.2d 351 (1996) (“Defendant cannot be convicted of an offense against an officer engaged in the performance of official duties [i.e., of violating section 148(a)(1)] unless the officer was acting lawfully at the time.”); see also Blankenhorn v. City of Orange, 485 F.3d 463, 472 (9th Cir. 2007) (“If there was no probable cause to arrest Blankenhorn for trespassing in the first place, it makes no difference for present purposes if he resisted arrest.”).
Defendants concede that their commands to Roberson constituted a seizure under the Fourth Amendment. Reply at 12; see also Orhorhaghe v. I.N.S., 38 F.3d 488, 494-96 (9th Cir. 1994) (officious, authoritative requests by several officers to enter plaintiff's apartment amounted to a seizure). But they maintain that, contrary to the state court's conclusion, the seizure was justified by their need to investigate possible criminal activity. Reply at 10-11.
The Fourth Amendment permits the police to stop and briefly detain a person for investigative purposes if they have reasonable suspicion that criminal activity is occurring. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Officers have reasonable suspicion to stop a person if based on the totality of the circumstances, the officers have a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Reasonable suspicion (and probable cause) are objective inquiries; the officers' subjective intent is irrelevant. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
Defendants argue primarily that they had reason to suspect Roberson had committed either trespass or domestic violence. The state court rejected both of those crimes as potential bases for the detention. This Court agrees with the state court that reasonable suspicion did not exist to justify a detention.4 Luckett told the officers that even though Roberson kicked on the door, she willingly let him in because he is the father of the children. Moreover, there is no evidence that she asked him to leave while in the officer's presence, told the officers that she had previously asked him to leave, or asked the officers to make him leave. California's trespass statute criminalizes failing to leave property “upon being requested to leave by (1) a peace officer at the request of the owner, the owner's agent, or the person in lawful possession ․ or (2) the owner, the owner's agent, or the person in lawful possession.” Cal. Penal Code § 602(o). Without any such request from Luckett, Roberson was not trespassing, and the officers had no reason to believe otherwise. Just because someone is yelling at a houseguest does not mean that the houseguest is unwelcome, much less has committed criminal trespass.
Similarly, just because two people are verbally arguing loudly does not mean that there is domestic violence. It is undisputed that the officers perceived no sign of physical violence or threat of violence. The 911 dispatch relayed only that there was a verbal altercation. Luckett did not report that she had been assaulted or felt threatened in any way. Roberson was non-compliant (initially), emotional, and somewhat erratic, but viewing the facts in the light most favorable to him—and as the court that heard Michalczak's live testimony viewed them—he was not physically threatening to either Luckett or the officers.
Defendants rely heavily on Brown v. Cty. of San Bernardino, 250 F. Supp. 3d 568 (C.D. Cal. 2017). In Brown, a resident called 911 to report a domestic disturbance involving his girlfriend and her ex-boyfriend (the plaintiff) at his house. Id. at 588. Officers detained the plaintiff at the scene on suspicion of trespassing and domestic violence. Id. While superficially similar, Brown is distinguishable from this case in several important ways. In Brown, when the officers arrived, they saw the plaintiff standing over the resident yelling, and the plaintiff admitted that the altercation had escalated into pushing. Id. The resident said that he called 911 because he feared the plaintiff and his girlfriend would kill each other. Id. The resident also told the officers that he had asked the plaintiff to leave. Id. These critical facts evidencing physical violence or threats of violence and trespass are absent here. The facts in the record show that Michalczak and Lazorek had evidence only of a verbal argument. As the state court held, that is not a crime.5
Without reasonable suspicion to detain Roberson,6 Defendants could not arrest him for passively resisting their detention—even if the resistance otherwise would be a crime.7 Accordingly, viewing the facts in the light most favorable to Roberson, the arrest violated the Fourth Amendment.
2. Qualified Immunity as to the Arrest
Defendants raise the defense of qualified immunity as to the arrest. To determine whether a police officer is entitled to qualified immunity, the Court must answer two separate questions: (1) whether the officer violated a federal statutory or constitutional right, and (2) whether the unlawfulness of his conduct was “clearly established” at the time. District of Columbia v. Wesby, ––– U.S. ––––, 138 S.Ct. 577, 589, 199 L.Ed.2d 453 (2018). Courts may “exercise ․ discretion in deciding which of the two prongs ․ should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 243, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). As already discussed above, Michalczak and Lazorek have not met their initial burden of showing that their arrest of Roberson was constitutional as a matter of law. The Court now addresses the “clearly established” prong of the qualified immunity analysis.
Demonstrating that the unlawfulness of an officer's actions was “clearly established” requires a showing that “at the time of the officer's conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful.” Wesby, 138 S.Ct. at 589; Hardwick v. Cty. of Orange, 844 F.3d 1112, 1118 (9th Cir. 2017). The party asserting the injury, Roberson in this case, bears the burden of “showing that the rights allegedly violated were clearly established.” Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017), cert. denied sub nom. Shafer v. Padilla, ––– U.S. ––––, 138 S. Ct. 2582, 201 L.Ed.2d 295 (2018).
A clearly established right cannot be merely implied by precedent and plaintiffs may not defeat qualified immunity by describing violations of clearly established general or abstract rights. See White v. Pauly, ––– U.S. ––––, 137 S. Ct. 548, 551-52, 196 L.Ed.2d 463 (2017); Kisela v. Hughes, ––– U.S. ––––, 138 S.Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (the Supreme Court has “repeatedly told courts ․ not to define clearly established law at a high level of generality”). Rather, the right must be “particularized to the facts of the case.” White, 137 S. Ct. at 552 (stating that the plaintiff “failed to identify a case where an officer acting under similar circumstances as [the police officer] was held to have violated the Fourth Amendment”). The Ninth Circuit has emphasized that “it is the facts of particular cases that clearly establish what the law is.” Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938, 951 (9th Cir. 2017). The standard, however, does not “require a case directly on point for a right to be clearly established,” so long as “existing precedent” places “the statutory or constitutional questions beyond debate.” Kisela, 138 S.Ct. at 1152 (quoting White, 137 S.Ct. at 551).
It is clearly established beyond debate that the police cannot arrest someone under section 148(a)(1) if the underlying detention was unlawful. See Blankenhorn, 485 F.3d at 472 (“We focus on trespassing. Although Blankenhorn was also arrested for resisting arrest under California Penal Code section 148(a), any such resistance (and corresponding probable cause) arose out of the initial arrest for trespassing. If there was no probable cause to arrest Blankenhorn for trespassing in the first place, it makes no difference for present purposes if he resisted arrest.”). It is also clearly established that the police cannot detain a person for trespass if there is no evidence that the property owner or her agent asked the person to leave. See Flynn v. City of Santa Clara, 388 F. Supp. 3d 1158, 1170 (N.D. Cal. 2019) (“[T]here are no allegations in the complaint that a[n owner's agent] asked the officers to make the Flynns leave; if there was no such request, then a critical element to trespass is missing. And given the lack of facts on probable cause, then there can be no ruling on qualified immunity at this juncture. That is, the officers could not claim a reasonable mistake on trespass if there was never a request by the owner or owner's agent in the first instance.”).
As for reasonable suspicion of domestic violence, however, the law is less clear. Roberson does not provide any case with facts similar to these where the court found there to be no reasonable suspicion of domestic violence. He cites Thomas v. Dillard, 818 F.3d 864 (9th Cir. 2016), for the proposition that a 911 call reporting domestic violence alone is not sufficient to establish that the suspect is armed and dangerous such that a pat-down search is justified. Id. at 882. But at the time Roberson refused to comply with the officers' demands, they had only instigated an investigatory stop, not a frisk. In Thomas, the court found that while a frisk—the rationale for which is to check for weapons to ensure the officer's safety—was not warranted, a stop solely for investigative purposes was justified where the 911 call reported that a man wearing the same color shirt as the plaintiff had pushed a woman in same location that the plaintiff was found. Id. at 875. While in this case there is no evidence of any pushing, merely distinguishing Thomas is not sufficient to clearly establish the right.
The Court is aware of only one case—an out-of-circuit, unpublished district court decision—where a court held that a 911 call reporting a domestic disturbance in the form of a verbal argument was insufficient to establish reasonable suspicion. Smith v. Thurston, No. 16-60603-CIV, 2017 WL 2838183, at *4 (S.D. Fla. June 30, 2017). In Thurston, the 911 caller reported that her sister was in a verbal argument with her boyfriend and that she feared for her sister's safety, but did not report any threats of violence, possession of a weapon, or history of domestic violence on the part of the boyfriend. Id. The caller described the boyfriend's physical appearance and type of car, and as the officer approached, he saw the same car exiting the building and pulled it over. Id. at *2. The court concluded that even though the caller reported a disturbance and a generalized fear for a third-party's safety, because the only specific allegations were of a verbal argument, there was not enough evidence to form a reasonable suspicion. Id. at *4. Yet, the Court also granted qualified immunity because it did not have an on-point authority upon which to rely.
The Court agrees with Thurston's reasoning and conclusion,8 but this single unpublished decision from the Southern District of Florida is insufficient to put Michalczak and Lazorek on notice of the law in California and the Ninth Circuit. This is especially true because there are factual distinctions between Thurston and this case that make the defense of qualified immunity even more compelling here—unlike Thurston, the officers actually saw the verbal altercation firsthand and witnessed Roberson pace about and shout out angrily and erratically, and heard Luckett's suggestion that there might be a restraining order against him.
Given the lack of precedent indicating that the facts of this case do not give rise to a reasonable suspicion of domestic violence,9 the officers' mistake in detaining Roberson cannot lead to liability. Accordingly, the Court GRANTS summary judgment in favor of Michalczak and Lazorek on the false arrest claim on the basis of qualified immunity.
3. Use of Force
Courts analyze excessive force claims under the Fourth Amendment's “objective reasonableness” standard. Brooks v. City of Seattle, 599 F.3d 1018, 1025 (9th Cir. 2010) (citing Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The reasonableness determination “requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (internal quotation marks and citation omitted). Because reasonableness is not susceptible to precise definition or mechanical application of rules, the inquiry “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.
Courts in the Ninth Circuit employ a three-step analysis in evaluating excessive force claims. The first step is to assess the severity of the intrusion on the plaintiff's Fourth Amendment rights based on the type and amount of force inflicted. Next, a court must evaluate the government's interests in light of the three Graham factors: (1) the severity of the crime; (2) the threat posed to officers or bystanders; and (3) any resistance to arrest and risk of flight. Finally, a court must balance the gravity of the intrusion on the plaintiff against the government's need for the intrusion. Espinosa v. City and County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010); see also Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003). The Ninth Circuit has held that “[b]ecause the reasonableness standard ‘nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, ․ summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.” Torres v. City of Madera, 648 F.3d 1119, 1125 (9th Cir. 2011) (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)). “This is because such cases almost always turn on a jury's credibility determinations.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005).
Crediting Roberson's version of the facts from his deposition testimony, as the Court must for the purpose of ruling on the MSJ, the nature of the intrusion involved placing him in a headlock, throwing him against the wall and then to the ground, and then putting weight on his neck, with Lazorek adding weight to his lower backside. Defendants emphasize that the whole scuffle took only a few seconds and that Roberson did not suffer any immediate apparent injuries. But a violent tackle, especially focused on the head and neck area, need not take long to be severe. Nor does the fact that Roberson appeared to emerge relatively unscathed change the nature of the attack that he described. Defendants ignore the fact that Roberson attests to suffering continued neck and arm pain after the incident. Roberson Decl. ¶ 8 [Doc. # 39-4].
The severity of Michalczak's tackle is all the more apparent when balanced against the governmental interests at stake. The crime at issue was at most a misdemeanor offense involving Roberson essentially being uncooperative with police officers. See Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007) (obstructing a police officer is a minor offense). He had also begun to cooperate by the time of the arrest, notwithstanding his turning back into the Apartment to get his shoes. Even crediting the officers' suspicion that there may have been a domestic violence incident, there was no indication any such crime had been especially egregious or that Roberson was a continuing threat of violence. See Smith, 394 F.3d at 703 (even though officers responded to 911 call reporting domestic violence, non-threatening state of plaintiff when officers arrived mitigated the relevance of the nature of the crime).
Relatedly, there was no serious safety threat to the officers or any of the other bystanders, which is the most important Graham factor. Id. at 702. Much like in Smith, Roberson's pacing about, reentering the Apartment, and non-compliance with commands did not render him threatening or dangerous, even though he was a subject of a domestic disturbance call—there was no indication that he had a weapon or engaged in any violent behavior. Id. at 696-97, 702. Finally, Roberson's resistance to the arrest was minimal. Viewing the facts in the light most favorable to him, he reflexively pulled his arm away when Michalczak attempted to grab it with little warning.10 This de minimis reaction does not warrant throwing him against the wall and to the ground in a headlock and pinning him down by the neck. See id. at 703 (“To the extent that he physically resisted arrest, defendants acknowledge that it lasted for only a brief time․ In all, it does not appear that Smith's resistance was particularly bellicose or that he showed any signs of fleeing the area.”).11
4. Qualified Immunity as to the Use of Force Claim
Qualified immunity does not change the outcome as to the excessive force claim. It has long been clear that tackling an unarmed, non-violent, minimally resisting suspect to the ground—especially using a chokehold—constitutes excessive force. See Blankenhorn, 485 F.3d at 481 (“[G]ang-tackling without first attempting a less violent means of arresting a relatively calm trespass suspect—especially one who had been cooperative in the past and was at the moment not actively resisting arrest—was a violation of that person's Fourth Amendment rights.”); Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (grabbing plaintiff by arms and throwing her to the ground was excessive when she was only “passively resisting” by loudly requesting a search warrant); Santos, 287 F.3d at 854-55 (forcefully taking down to the ground suspect who was “passive” in his non-compliance was excessive); Rosenfeld v. Mastin, No. CV 11-7002-DOC, 2013 WL 5705638, at *6 C.D. Cal. Oct. 15, 2013 (“[E]ven a person who knowingly fails to comply with the lawful command of a police officer states a claim for excessive force when, after a traffic stop for a minor violation, the officer allegedly placed the plaintiff in a choke hold while the plaintiff posed no security threat to the officer.”).12 To the extent that Defendants contend that Roberson's resistance was greater than he suggests, or that the headlock, tackle, and pinning were less severe than Roberson describes, these are triable issues of fact for the jury.
The Court therefore DENIES summary judgment as to both Michalczak and Lazorek on the excessive force claim.
C. State Law Claims
1. The Bane Act
California Civil Code section 52.1, known as the Bane Act, creates a cause of action against those who interfere with constitutional rights “by threat, intimidation, or coercion.” In Fourth Amendment seizure cases, where coercion is inherent in the constitutional violation, the Bane Act requires not merely establishing a violation, but also “a specific intent to violate the arrestee's right to freedom from unreasonable seizure.” Reese v. Cty of Sacramento, 888 F.3d 1030, 1043 (2018) (quoting Cornell v. City and Cty. of San Francisco, 17 Cal. App. 5th 766, 801-802, 225 Cal.Rptr.3d 356 (2017)). A plaintiff must prove that the offending officer “intended not only the force, but its unreasonableness, its character as more than necessary under the circumstances.” Id. at 1045 (internal quotation marks omitted). The specific intent requirement can be satisfied by “a reckless disregard for a person's constitutional rights.” Reese, 888 F.3d at 1045.
Roberson does not show that the officers specifically intended to violate his rights when they first ordered him outside the Apartment. Even drawing all reasonable inferences in his favor, they did so to take control of the situation and break up the argument between him and Luckett. On the excessive force claim, however, a reasonable jury could conclude that their violent arrest was so excessive and unnecessary that it amounted to a reckless disregard of his rights. As discussed, there are triable issues of fact as to whether the officers placed a non-violent, minimally resisting person in a headlock and threw him to the ground, placing their weight on his neck. Accordingly, the Court DENIES the MSJ as to the Bane Act claim to the extent it is based on the excessive use of force.
2. Negligence and Battery
In California, claims for battery against police officers acting in their official capacities “are analyzed under the reasonableness standard of the Fourth Amendment to the United States Constitution.” Avina v. United States, 681 F.3d 1127, 1131 (9th Cir. 2012) (quoting Munoz v. City of Union City, 120 Cal. App. 4th 1077, 16 Cal.Rptr.3d 521 (2004)). Similarly, “[t]he standard of reasonableness applicable in a negligence action under California law is the same as that in a § 1983 claim.” McKay v. City of Hayward, 949 F. Supp. 2d 971, 988 (N.D. Cal. 2013). Therefore, because the Court denies the MSJ as to the Fourth Amendment claim, the Court also DENIES the MSJ as to the negligence and battery claims, to the extent they stem from the excessive force claim.
In light of the foregoing, the Court:
1. GRANTS Defendant's MSJ as to the Monell claim against the City of Hawthorne;
2. GRANTS the MSJ as to the false arrest claim;
3. DENIES the MSJ as to the excessive use of force claim;
4. DENIES the MSJ as to the Bane Act claim;
5. DENIES the MSJ as to the negligence claim; and
6. DENIES the MSJ as to the assault and battery claim.
IT IS SO ORDERED.
2. Defendants' Exhibit A is an audio recording of the incident, captured from a recording device that Michalczak wore on his belt. A transcript of the recording is at Exhibit C (“Audio Transcript”) [Doc. # 32]. Roberson objects to the transcript because it was not provided in discovery. Defendants provided the recording itself, and Roberson does not claim that the transcript is inauthentic or inaccurate. Roberson's objection to the transcript is OVERRULED.
3. The parties quibble over how many requests the officers made, but there is not dispute that it was at least six. SUF 62.
4. The state court's ruling does not have a collateral estoppel effect because Defendants in this proceeding—the officers—are not in privity with the state in the criminal proceeding. Nonetheless, as discussed, the Court finds it persuasive.
5. The mere fact that there are children present when two adults verbally argue does not suggest there is child endangerment—another crime that Defendants mention, though they do not thoroughly analyze it.
6. Roberson also argues that even if the officers did have reasonable suspicion, the detention amounted to a warrantless in-home seizure, which violates the Fourth Amendment. Opp. at 15-17 (citing Payton v. New York, 445 U.S. 573, 583-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and its progeny). But the Payton rule is not implicated here because Michalczak and Lazorek never actually entered the Apartment. In United States v. Crapser, 472 F.3d 1141 (9th Cir. 2007), the Ninth Circuit held that the Payton rule does not apply when the suspect voluntarily opens the door to the police and the officers then effectuate a Terry stop in the doorway based upon reasonable suspicion. Id. at 1148.
7. Roberson does not dispute Defendants' contention that his refusal to obey their commands to exit the Apartment would violate section 148(a)(1), if the commands were in fact lawful. See In re Muhammed C., 95 Cal. App. 4th 1325, 1328, 116 Cal.Rptr.2d 21 (2002) (suspect's refusal to follow multiple lawful orders to step away from officers' patrol car, which impeded their investigation, violated section 148(a)(1)).
8. One other out-of-circuit district court case also concluded that “a verbal argument is simply not sufficient to provide reasonable suspicion for a stop,” and also denied qualified immunity. Price v. City of Philadelphia, 239 F. Supp. 3d 876, 898 (E.D. Pa. 2017). But in Price, there was no 911 call; the officers simply saw two people arguing on a street corner and approached them. The existence of a 911 call from a third party reporting an in-home altercation changes the calculation for the investigating officers.
9. Roberson also cites to Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159 (9th Cir. 2013) for the principle that an officer cannot detain a misdemeanor suspect when no crime was afoot when the officer arrived on the scene. Id. at 1174-76. This rule, described at a “high level of generality,” says nothing of whether in the facts of this case, an officer might believe that crime was afoot. Kisela, 138 S.Ct. at 1152. Johnson did not involve a domestic disturbance incident or an ongoing, heated verbal altercation between a male and a female. Moreover, the rule in Johnson is actually much more fact-bound than Roberson implies, requiring the court to consider the nature of the offense, the potential for ongoing and repeated danger, and the risk of escalation. 724 F.3d at 1175 (citing United States v. Grigg, 498 F.3d 1070, 1081 (9th Cir. 2007)). Michalczak and Lazorek could have viewed all of these factors as favoring a detention in this case.
10. Defendants point out that one of the officers said “don't start” and “hands behind your back,” SUF 69, but in the audio it sounds as if the struggle began a split second after one of them said “don't start” and before anyone says “hands behind your back,” suggesting Michalczak grabbed Roberson before making any of these statements. Audio Recording 4:30-40; see also Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).
11. Defendants argue that Lazorek did not partake in the takedown, and that his participation was limited to handcuffing Roberson after he was already on the ground. But they ignore the undisputed fact that Lazorek straddled Roberson and placed his knee on Roberson's backside. SUF 181. Based on Roberson's account, at this point Roberson was not resisting at all and in fact was surrendering his hands. Assuming the lack of resistance, pinning him on the ground with his knee could therefore amount to excessive force in itself. Moreover, Lazorek's “help in handcuffing the prone [Roberson] was, of course, meaningful participation in the arrest” such that he was fundamentally involved in the takedown and pinning that caused the alleged constitutional violation. Blankenhorn, 485 F.3d at 481 n.12.
12. By contrast, the cases Defendants cite are distinguishable. In Shay v. City of Huntington Beach, 816 F. App'x 47 (9th Cir. 2020)—an unpublished decision with few factual details—the force used “involved a takedown maneuver by one officer and nothing further.” Id. at 50. Here, there was something further: an alleged headlock, throwing Roberson against the wall, and two officers pinning him down by his neck. In Sorgen v. City & Cty. of San Francisco, No. C 05-03172 TEH, 2006 WL 2583683 (N.D. Cal. Sept. 7, 2006), the court noted that “[u]nlike many excessive force cases, the amount of force used is not in dispute.” Id. at *6. The Sorgen court described three baton blows to the legs and buttocks of a non-compliant, belligerent individual who was impeding officers as a “modest escalation.” Id. at *7. The facts here are in dispute—Roberson's description is much more violent than Defendants'—and Michalczak at the very least put Roberson in a headlock and tackled him to the ground, which is different both in kind and in degree from “modest” baton blows to the legs and buttocks. Finally, in Redon v. Jordan, No. 13 CV 1765-WQH-KSC, 2017 WL 1155342 (S.D. Cal. Mar. 28, 2017), the officer used a headlock and tackle on a plaintiff who was suicidal, had been asked to be handcuffed first, and most importantly, was actively resisting and struggling throughout the attempted handcuffing and arrest. Id. at *7.
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
Response sent, thank you
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Docket No: Case No. CV 19-6913 DMG (JPRx)
Decided: January 29, 2021
Court: United States District Court, C.D. California.
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