Opinion
Case No. CV 18-0712 FMO (ASx)
2022-11-23
Christopher A. BALLEW, Plaintiff, v. CITY OF PASADENA, et al., Defendants.
Matthew Sahak, John C. Burton, The Law Offices of John Burton, Pasadena, CA, for Plaintiff. Steven J. Rothans, Jill Williams, Carpenter Rothans and Dumont LLP, Los Angeles, CA, Javan N. Rad, Michele Beal Bagneris, Pasadena City Attorney's Office, Pasadena, CA, for Defendants City of Pasadena, Chief of Police Phillip A. Sanchez, Officer Zachary Lujan, Officer Lerry Esparza. Javan N. Rad, Michele Beal Bagneris, Pasadena City Attorney's Office, Pasadena, CA, for Defendant Pasadena Police Department. Jill Williams, Carpenter Rothans and Dumont LLP, Los Angeles, CA, for Defendant Corporal Timothy Bundy.
Matthew Sahak, John C. Burton, The Law Offices of John Burton, Pasadena, CA, for Plaintiff.
Steven J. Rothans, Jill Williams, Carpenter Rothans and Dumont LLP, Los Angeles, CA, Javan N. Rad, Michele Beal Bagneris, Pasadena City Attorney's Office, Pasadena, CA, for Defendants City of Pasadena, Chief of Police Phillip A. Sanchez, Officer Zachary Lujan, Officer Lerry Esparza.
Javan N. Rad, Michele Beal Bagneris, Pasadena City Attorney's Office, Pasadena, CA, for Defendant Pasadena Police Department.
Jill Williams, Carpenter Rothans and Dumont LLP, Los Angeles, CA, for Defendant Corporal Timothy Bundy.
ORDER RE: MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT
Fernando M. Olguin, United States District Judge
Having reviewed and considered all the briefing filed with respect to the Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment (Dkt. 137, "Motion") filed by the City of Pasadena ("City"), Chief Phillip Sanchez ("Sanchez"), Sergeant Timothy Bundy ("Bundy"), Officer Zachary Lujan ("Lujan"), and Officer Lerry Esparza ("Esparza") (collectively, "defendants"), the court finds that oral argument is not necessary to resolve the Motion, see Fed. R. Civ. P. 78(b); Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n.2 (9th Cir. 2001), and concludes as follows.
Defendants assert that plaintiff "erroneously sued" the Pasadena Police Department and that the City is the proper municipal defendant. (See Dkt. 137, Motion at 2). However, the Ninth Circuit has held that California law permits claims under 42 U.S.C. § 1983 to be asserted against municipal police departments. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 n. 2 (9th Cir. 1988) ("Municipal police departments are 'public entities' under California law and, hence, can be sued in federal court for alleged civil rights violations.); see, e.g., Streit v. Cnty. of Los Angeles, 236 F.3d 552, 555-56 (9th Cir. 2001) (holding "that both the LASD and the County are subject to liability under section 1983"). Thus, the court will refer to both entities where appropriate in this Order.
INTRODUCTION
In the operative Third Amended Complaint ("TAC"), Christopher A. Ballew ("plaintiff" or "Ballew") asserts claims under 42 U.S.C. § 1983 for: (1) racial discrimination in violation of the Fourteenth Amendment; (2) excessive force in violation of the Fourth Amendment; (3) unlawful seizure in violation of the Fourth Amendment; (4) false reports in violation of the Fourteenth Amendment; (5) excessive bail in violation of the Eighth Amendment; (6) municipal liability under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); and (7) supervisory liability. (See Dkt. 126, TAC at ¶¶ 70-90). Plaintiff also asserts state law claims for: (8) violation of the Ralph Act, Cal. Civ. Code § 51.7; (9) violation of the Bane Act, Cal. Civ. Code § 52.1; (10) battery; and (11) false imprisonment. ( See id. at ¶¶ 91-96). STATEMENT OF FACTS
Statutory references are to Title 42 of the United States Code unless otherwise indicated.
"Some of the evidence is undisputed. Where the evidence is in conflict, [the court] recount[s] it in the light most favorable to [plaintiff], the non-moving party." Tuuama-lemalo v. Greene, 946 F.3d 471, 474 (9th Cir. 2019) (per curiam). To the extent the court relies on evidence to which the parties have raised an objection, the parties' objections are overruled. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (holding that, on summary judgment, the court "do[es] not focus on the admissibility of the evidence's form" but rather "focus[es] on the admissibility of its contents"); Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (holding that a party "does not necessarily have to produce evidence in a form that would be admissible at trial" for that evidence to be considered at the summary judgment stage).
The Pasadena Police Department ("PPD") is authorized to provide law enforcement services in Altadena, an unincorporated area of Los Angeles County, pursuant to a jurisdictional consent agreement with the Los Angeles County Sheriff's Department. (See Dkt. 137-2, Joint Statement of Uncontroverted Facts ("SUF") at D5; Dkt. 137-5, Exhibit ("Exh.") D, Deposition of Chief Phillip Sanchez ("Sanchez Depo.") at 53-55; Dkt. 137-6, Exh. I, Declaration of Chief Phillip Sanchez ("Sanchez Decl.") at ¶ 8; Dkt. 137-7, Exh. V, Jurisdictional Consent Agreement). The PPD has a Special Enforcement Section ("SES") unit that investigates and documents gang activity, with a focus on street-level narcotics. (See Dkt. 137-2, SUF at D24 & D26; Dkt. 137-4, Exh. B, Deposition of Officer Lerry Esparza ("Esparza Depo.") at 56 & 71-72; id., Exh. C, Deposition of Officer Zachary Lujan ("Lujan Depo.") at 59; Dkt. 137-5, Exh. D, Sanchez Depo. at 27-28 & 50-51; id., Exh. F, Declaration of Sergeant Timothy Bundy ("Bundy Decl.") at ¶ 5).
On the evening of November 9, 2017, PPD Officers Esparza and Lujan (collectively, "the officers"), who were assigned to the SES unit under Bundy's supervision, were patrolling the area of Fair Oaks Avenue ("Fair Oaks") and Woodbury Road ("Woodbury") in Altadena. (See Dkt. 137-2, SUF at D37-D39 & D44; Dkt. 137-4, Exh. B, Esparza Depo. at 67, 71, 97 & 137-38; Dkt. 137-5, Exh. F, Bundy Decl. at ¶¶ 4, 9; Dkt. 137-9, Declaration of Jeffrey Noble [] ("Noble Decl.") at ¶ 3). Lujan was driving the patrol car with Esparza as the passenger. (See Dkt. 137-2, SUF at D48 & D57; Dkt. 137-4, Exh. B, Esparza Depo. at 108-09; id., Exh. C, Lujan Depo. at 112-13).
Ballew, a Black male with no prior convictions and no gang affiliation, was driving south on Fair Oaks. (See Dkt. 137-2, SUF at D48-D50, P48 & P51-P52; Dkt. 137-4, Exh. A, Deposition of Christopher Ballew ("Ballew Depo.") at 147-48, 178, 180 & 186; id., Exh. B, Esparza Depo. at 104; Dkt. 137-7, Exh. Q, Photograph 1 (Ballew Vehicle); id., Exh. R, Photograph 2 (Ballew Vehicle); Dkt. 137-8, Exh. 1, Declaration of Christopher A. Ballew [] ("Ballew Decl.") at ¶ 2). As Lujan drove north on Fair Oaks, Esparza aimed the patrol car's spotlight at Ballew's car as he approached in the oncoming southbound traffic lane. (See Dkt. 137-2, SUF at D55; Dkt. 137-4, Exh. B, Esparza Depo. at 104-05). According to Esparza, it was a "purely random" decision to point the spotlight at Ballew's car, which Esparza did before noticing any potential vehicle code infractions. (See Dkt. 137-2, SUF at P61-P62; Dkt. 137-10, Exh. 4A, Esparza Depo. at 107; Dkt. 137-11, Exh. 5A, File 5 (Dash Cam Clip)).
After Esparza aimed the spotlight at Ballew, Lujan made a U-turn and followed Ballew's car. (See Dkt. 137-2, SUF at D57 & D61; Dkt. 137-4, Exh. B, Esparza Depo. at 110-11; id., Exh. C, Lujan Depo. at 112-13). By the time Lujan caught up to Ballew's car, Ballew was already parked at a
Mobil gas station at the northwest corner of Woodbury and Fair Oaks. (See Dkt. 137-2, SUF at D61-D64; Dkt. 137-4, Exh. A, Ballew Depo. at 155, 172, 174-75 & 192-93; id., Exh. B, Esparza Depo. at 110-11; id., Exh. C, Lujan Depo. at 113). Ballew was walking to the gas station's convenience store with a cell phone in one hand, (see Dkt. 137-2, SUF at D80-D81, P9-P10; Dkt. 137-4, Exh. A, Ballew Depo. at 195, 197, 201; id., Exh. B, Esparza Depo. at 151; id., Exh. C, Lujan Depo. at 127; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 7-8; Dkt. 137-11, Exh. 5A, File 6 (Dash Cam Clip)), when Lujan pulled the patrol car behind Ballew's car and activated the lights on the front windshield. (See Dkt. 137-2, SUF at D66-D67; Dkt. 137-4, Exh. B, Esparza Depo. at 111 & 146; id., Exh. C, Lujan Depo. at 94; Dkt. 137-11, Exh. 5A, File 6 (Dash Cam Clip)). Esparza then got out of the patrol car, approached Ballew, and said, "Hey, come here, Man." (Dkt. 137-2, SUF at D81-D82, P9 & P11; Dkt. 137-4, Exh. A, Ballew Depo. at 195, 197 & 201-02; id., Exh. B, Esparza Depo. at 151; id., Exh. C, Lujan Depo. at 127; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 8; Dkt. 137-11, Exh. 5A, File 6 (Dash Cam Clip); id., Exh. 5A, File 7 (Lujan Body Cam Video)). Ballew stopped and turned to face Esparza with his hands at his side. (See Dkt. 137-2, SUF at P12; Dkt. 137-11, Exh. 5A, File 6 (Dash Cam Clip)). Esparza then told Ballew that he was being pulled over — even though Ballew had already parked at the gas station before the officers arrived — for tinted windows. (See Dkt. 137-2, SUF at D53 & P13; Dkt. 137-11, Exh. 5A, File 7 (Lujan Body Cam Clip)). Ballew's car was also missing a front license plate. (See Dkt. 137-2, SUF at D52). These infractions constituted violations of California Vehicle Code §§ 26708 and 5200(a), respectively. (See Dkt. 137-2, SUF at D52 & D54).
After telling Ballew that he had tinted windows, (Dkt. 137-2, SUF at P13; Dkt. 137-11, Exh. 5A, File 7 (Lujan Body Cam Clip)), Esparza immediately grabbed Ballew's left arm with both hands and began walking him back to the patrol car. (Dkt. 137-2, SUF at D88 & P13; Dkt. 137-4, Exh. A, Ballew Depo. at 220-21; Dkt. 137-11, Exh. 5A, File 7 (Lujan Body Cam Clip)); (Dkt. 137-6, Exh. M, Full Dash Cam Video at 1:02-1:20). Ballew responded, "I wasn't even driving my car, I was getting gas." (See Dkt. 137-2, SUF at P14, P66;
Esparza failed to turn on his body worn camera during the encounter — in violation of PPD Policy 450.6 — and the conversation between him and Ballew that occurs at this point in time is not fully audible on the video from Lujan's body worn camera. (See Dkt. 137-9, Noble Decl. at ¶ 14).
Defendants object to plaintiff's declaration under the sham affidavit rule. (See Dkt. 137-1, Joint Brief Re: Defendants' Motion for Summary Judgment [] ("Joint Br.") at 16 n. 3); (Dkt. 143, Defendants' Supplemental Brief Re: Motion for Summary Judgment [] ("Def. Supp. Br.") at 6-7). "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (internal quotation marks omitted). Under this rule, "the inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit." Id. at 998-99 (emphasis added). Also, not every inconsistency triggers application of the rule, because the non-moving party may "elaborat[e] upon, explain[,] or clarify[] prior testimony[,] ... and minor inconsistencies that result from an honest discrepancy[or] a mistake" will not result in exclusion of the affidavit. Id. at 999 (cleaned up).
Defendants cite three statements in plaintiff's declaration that they contend contradict his deposition testimony. (See Dkt. 143, Def. Supp. Br. at 7). First, defendants claim that plaintiff's deposition testimony that he made "a conscious decision to go about [his] business knowing that a police car was pulling in the gas station[,]" (Dkt. 137-4, Exh. A, Ballew Depo. at 199), contradicts his declaration statement that he "casually exit[ed]" his vehicle and "stroll[ed]" towards the gas station's convenience store. (See Dkt. 143, Def. Supp. Br. at 7). Second, defendants selectively quote deposition testimony to argue that plaintiff lied about obeying orders to spread his feet. (Compare id. ("Ballew claims that he 'obeyed' an order to spread his feet, whereas in deposition he testified that the officers had to spread his legs for him.") (emphasis in original); with Dkt. 137-4, Ex. A, Ballew Depo. at 231-32 (testifying that he initially spread his legs shoulder length apart, and the officers later spread them further)). Finally, defendants contend that plaintiff states in his declaration "that he was 'not trying to' get up; whereas in deposition, he stated that he 'jump(s) into a crouching position.'" (See Dkt. 143, Def. Supp. Br. at 7) (emphasis in original). Defendants' objections have neither clearly nor unambiguously established an inconsistency between plaintiff's deposition testimony and his subsequent affidavit. Indeed, defendants' objections appear to be a misleading use of the record, because the statements upon which they rely refer to different parts of the encounter between plaintiff and the officers. (Compare, e.g., Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 14 (testifying that he did not try to get up after the officers initially knocked him to the ground and yelled "[d]on't get up"); with Dkt. 137-4, Exh. A, Ballew Depo. at 259-60 (testifying that after Esparza struck him with the baton, "[t]he second time I kind of saw the baton coming so I jump[ed] into a crouching position")). Thus, defendants' objections are overruled.
Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 10-11; Dkt. 137-11, Exh. 5A, File 7 (Lujan Body Cam Clip)). From this point, the parties' versions of the incident vary in significant respects.
There are multiple videos of the incident from the patrol car's dash camera, (Dkt. 137-6, Exh. M (Full Dash Cam Video)), Lujan's body camera, (id., Exh. L (Full Lujan Body Cam Video)), and from a bystander, (Dkt. 137-11, Exh. 5A, File 21). (See Dkt. 137-2, SUF at P7; Dkt. 137-11, Exh. 5, Declaration of John Burton Re Video Evidence in Opposition [] ("Burton Decl.") ¶¶ 4-6). Plaintiff also put forth "brief video clips illustrating specific events," which are excerpts from the full dash cam and Lujan body cam videos. (See Dkt. 137-11, Exh. 5, Burton Decl. at ¶¶ 8-25); (id., Exh. 5A, Files 1-22 (Video Clips)). "The record is viewed in the light most favorable to [plaintiff] ..., so long as [his] version of the facts is not blatantly contradicted by the video evidence[.]" Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) (citation omitted).
The officers and Ballew returned to Ballew's car. (See Dkt. 137-2, SUF at D92 & P13; Dkt. 137-4, Exh. A, Ballew Depo. at 220-21; id., Exh. B, Esparza Depo. at 155; Dkt. 137-11, Exh. 5A, File 7 (Lujan Body Cam Clip)). Once back at his car, Ballew began to turn around to face Esparza because he thought the officers were going to discuss the vehicle code infractions with him. (See Dkt. 137-2, SUF at P15; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 12; Dkt. 137-11, Exh. 5A, File 8 (Dash Cam Clip)). Esparza, without any warning, then twisted Ballew's left arm behind his back and pushed him against his car. (See Dkt. 137-2, SUF at P16; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 12; Dkt. 137-11, Exh. 5A, File 8 (Dash Cam Clip)). Lujan also grabbed Ballew's sweatshirt from behind, applied pressure to ensure that he did not turn around, and told him to "stop acting like a dummy, dude." (Dkt. 137-2, SUF at D98, P17; Dkt. 137-4, Exh. C, Lujan Depo. at 126-27; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 12; Dkt. 137-11, Exh. 5A, File 8 (Dash Cam Clip)). When Lujan ordered Ballew to "give me your hand," Ballew said "alright," placed his free right hand on the roof of his car, and set his phone down. (See Dkt. 137-2, SUF at P18; Dkt. 137-11, Exh. 5A, File 9 (Lujan Body Cam Clip)). Lujan briefly took hold of Ballew's right wrist, but then let it go. (See Dkt. 137-2, SUF at P19; Dkt. 137-11, Exh. 5A, File 9 (Lujan Body Cam Clip)).
Esparza and Lujan later claimed that they had decided to conduct a pat-down search, (see Dkt. 137-2, SUF at D89 & D104-D105; Dkt. 137-4, Exh. B, Esparza
Depo. at 155, 161 & 189; id., Exh. C, Lujan Depo. at 129, 263), although neither officer informed Ballew that they intended to do so. (See Dkt. 137-2, SUF at P15; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 12; Dkt. 137-11, Exh. 5A, File 8 (Dash Cam Clip)). Ballew followed Esparza's order to spread his legs. (See Dkt. 137-2, SUF at D102-D103, P20 & P70(i); Dkt. 137-4, Exh. A, Ballew Depo. at 231; id., Exh. B, Esparza Depo. at 160; id., Exh. C, Lujan Depo. at 129; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 13). The officers then began kicking Ballew's ankles, causing him to fall onto a knee. (See Dkt. 137-2, SUF at P21 & P70(i); Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 13; Dkt. 137-11, Exh. 5A, File 10 (Lujan Body Cam Clip) & File 11 (Dash Cam Clip)). Esparza then held Ballew down, bent his head forward, and pinned his left arm behind his back. (See Dkt. 137-2, SUF at P22; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 14; Dkt. 137-11, Exh. 5A, File 12 (Lujan Body Cam Clip)). Both officers shouted at Ballew, "don't get up[,]" (see Dkt. 137-2, SUF at D124 & P22; Dkt. 137-4, Exh. A, Ballew Depo. at 242; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 14; Dkt. 137-11, Exh. 5A, File 12 (Lujan Body Cam Clip)), and Lujan then shouted, "give me your fucking hands!" (See Dkt. 137-2, SUF at D111 & P34; Dkt. 137-4, Exh. C, Lujan Depo. at 197-98 & 201; Dkt. 137-10, Exh. 4A, Esparza Depo. at 175-76; Dkt. 137-11, Exh. 5A, File 18 (Dash Cam Clip)). At about the same time, Esparza ordered Ballew to put his right hand on his head. (See Dkt. 137-2, SUF at P24; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 15; Dkt. 137-11, Exh. 5A, File 13 (Lujan Body Cam Clip)). Ballew complied with Esparza's order. (Id.).
Plaintiff erroneously labeled two different statements as P70. (See Dkt. 137-2, SUF at ECF 78). To avoid confusion, the court will refer to the first statement as P70(i) and the second as P70(ii).
After handcuffing Ballew's left wrist, Lujan moved Ballew's right hand from his head to behind his back. (Dkt. 137-2, SUF at D120 & P25; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 16; Dkt. 137-4, Exh. B, Esparza Depo. at 165; id., Exh. C, Lujan Depo. at 211-12; Dkt. 137-11, Exh. 5A, File 14 (Lujan Body Cam Clip)). Ballew complied and held his arms behind his back to be handcuffed. (See Dkt. 137-2, SUF at P26; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 16-17; Dkt. 137-11, Exh. 5A, File 14 (Lujan Body Cam Clip)). However, Lujan struggled for approximately ten seconds to close the handcuff around Ballew's right wrist. (See Dkt. 137-2, SUF at P27 & P71; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 16; Dkt. 137-11, Exh. 5A, File 14 (Lujan Body Cam Clip)); (see also Dkt. 137-9, Noble Decl. at ¶¶ 18-22). As Lujan attempted to handcuff Ballew's right wrist, Ballew asked "what are you doing this for?" and then repeatedly asked, "where is your commanding officer?" (Dkt. 137-11, Exh. 5A, File 14 (Lujan Body Cam Clip)). Lujan responded, "shut up! Shut the fuck up you! There's no point acting like this." ( See id. ). After having failed to handcuff Ballew's right hand, Lujan pushed Ballew to the pavement, where he fell onto his left side facing Esparza. (See Dkt. 137-2, SUF at P27, P72; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 17; Dkt. 137-11, Exh. 5A, File 14 (Lujan Body Cam Clip)). Lujan then told Esparza that Ballew had the handcuffs and would not give Lujan his hands. (See Dkt. 137-2, SUF at D132; Dkt. 137-4, Exh. C, Lujan Depo. at 143; Dkt. 137-6, Ex. L (Full Lujan Body Cam Video)).
Ballew sat up and held out his palms with his fingers spread. (See Dkt. 137-2, SUF at P28 & P77; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 19; Dkt. 137-11, Exh. 5A, File 15 (Lujan Body Cam Clip)). Without any warning, Esparza then struck Ballew
twice with his metal baton, causing deep gashes to his right shin. (See Dkt. 137-2, SUF at P29 & P77; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 19; id., Exh. 1B (Injury Photograph, Right Shin); Dkt. 137-11, Exh. 5A, File 15 (Lujan Body Cam Clip) & File 16 (Dash Cam Clip)). As the second blow landed, Ballew held onto the baton to avoid being hit again. (See Dkt. 137-2, SUF at P30-P31; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 19); (Dkt. 137-11, Exh. 5A, File 17 (Lujan Body Cam Clip)). Ballew stood up, at which point Lujan punched him from behind and forced him back down to the ground. (See Dkt. 137-2, SUF at P30-P32; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 20; Dkt. 137-11, Exh. 5A, File 18 (Dash Cam Clip)). As Lujan punched Ballew from behind, Esparza released the baton and drew his firearm. (See Dkt. 137-2, SUF at P32; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 20; Dkt. 137-11, Exh. 5A, File 18 (Dash Cam Clip)). Ballew quickly dropped the baton after Esparza released it — Ballew had "it in [his] sole possession for only a fraction of a second" — and he again held his hands up as Lujan dragged him to the ground. (See Dkt. 137-2, SUF at P33, P75 & P78; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 20; Dkt. 137-11, Exh. 5A, File 17 (Lujan Body Cam Clip)). Lujan continued punching Ballew with both fists as he yelled at Ballew — who was still on the ground — to give him his hands and turn around. (See Dkt. 137-2, SUF at D148, D149, P34 & P36; Dkt. 137-4, Exh. C, Lujan Depo. at 159; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 22; Dkt. 137-10, Exh. 4A, Esparza Depo. at 175-76; Dkt. 137-11, Exh. 5A, File 18 (Dash Cam Clip), File 19 (Lujan Body Cam Clip), File 20 (Dash Cam Clip) & File 21 (Bystander Video Clip)). After Ballew turned around and rolled onto his stomach, Lujan climbed on top of his back and slammed his face into the pavement, causing severe and bloody facial injuries. (See Dkt. 137-2, SUF at P36-P37 & P80; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 22; id., Exh. 1C (Injury Photograph, Facial); Dkt. 137-11, Exh. 5A, File 19 (Lujan Body Cam Clip), File 20 (Dash Cam Clip) & File 21 (Bystander Video Clip)). Meanwhile, Esparza picked up his baton and struck Ballew three more times — once on the back and twice on his right leg, fracturing his fibula. (See Dkt. 137-2, SUF at P38 & P80; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 21-23; id., Exh. 1D (Injury Photograph, Ankle); Dkt. 137-11, Exh. 5A, File 19 (Lujan Body Cam Clip), File 20 (Dash Cam Clip) & File 21 (Bystander Video Clip)).
Lujan and Esparza then arrested Ballew for assault with a deadly weapon on a peace officer in violation of California Penal Code ("Penal Code") § 245(c). (Dkt. 137-2, SUF at D165 & D174; Exh. B, Esparza Depo. at 112 & 130; Dkt. 137-4, Exh. C, Lujan Depo. at 261-63; Dkt. 137-5, Exh. F, Bundy Decl. at ¶ 18). Bundy, the supervising officer, arrived on the scene and approved the arrest. (Dkt. 137-2, SUF at D168, D174 & P45; Dkt. 137-4, Exh. B, Esparza Depo. at 112-13 & 130; id., Exh. C, Lujan Depo. at 261-62; Dkt. 137-5, Exh. F, Bundy Decl. at ¶¶ 9 & 18; Dkt. 137-10, Exh. 4C, Deposition of Sergeant Timothy Bundy ("Bundy Depo.") at 146). Bundy spoke with Ballew at the scene, (Dkt. 137-2, SUF at D170 & P39; Dkt. 137-5, Exh. F, Bundy Decl. at ¶ 12; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 26), and, at some point later that evening, Bundy reviewed the patrol car's dash cam video and Lujan's body cam video. (Dkt. 137-2, SUF at P43; Dkt. 137-10, Exh. 4C, Bundy Depo. at 142-43; Dkt. 137-5, Exh. F, Bundy Decl. at ¶¶ 54-55).
Ballew was initially transported to Huntington Hospital in Pasadena, where he received limited treatment and was interviewed again by Bundy. (See Dkt. 137-2, SUF at D177, D185, D190-D195 & P40; Dkt. 137-4, Exh. A, Ballew Depo. at 287-88
& 290; Dkt. 137-5, Exh. F, Bundy Decl. at ¶¶ 21 & 36; Dkt. 137-6, Exh. O, Body-Cam Footage of [] Bundy at Huntington Memorial Hospital; Dkt. 137-7, Exh. P, Bundy and Ballew Interview Transcript). Several hours later, Ballew was transferred to the Pasadena police station, where he was booked for violating Penal Code § 245(c). (See Dkt. 137-2, SUF at D196 & D198; Dkt. 137-4, Exh. A, Ballew Depo. at 288-89; Dkt. 137-5, Exh. F, Bundy Decl. at ¶ 45). Bundy approved the booking. (See Dkt. 137-2, SUF at P45; Dkt. 137-10, Exh. 4C, Bundy Depo. at 155).
From the Pasadena police station, Ballew was transferred during the early morning hours of November 10, 2017, to the Los Angeles County Jail, where he was held until his release the following day on $50,000 bail. (Dkt. 137-2, SUF at D206-D207 & P46; Dkt. 137-4, Exh. A, Ballew Depo. at 292 & 295; Dkt. 137-5, Exh. F, Ballew Decl. at ¶ 35; Exh. 4C, Bundy Depo. at 155). The Los Angeles District Attorney's Office ("District Attorney") refused to file criminal charges against Ballew. (See Dkt. 137-2, SUF at P47).
LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure authorizes the granting of summary judgment "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." The standard for granting a motion for summary judgment is essentially the same as for granting a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id.
The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party fails to carry its initial burden of production, "the non-moving party has no obligation to produce anything." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party has sustained its burden, the burden then shifts to the nonmovant to identify specific facts, drawn from materials in the file, that demonstrate that there is a dispute as to material facts on the elements that the moving party has contested. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 256, 106 S.Ct. at 2514 (A party opposing a properly supported motion for summary judgment "must set forth specific facts showing that there is a genuine issue for trial."). A factual dispute is material only if it affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth. SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). Summary judgment must be granted for the moving party if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at
"In determining any motion for summary judgment or partial summary judgment, the Court may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are (a) included in the 'Statement of Genuine Disputes' and (b) controverted by declaration or other written evidence filed in opposition to the motion." Local Rule 56-3.
2552; see also Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 (parties bear the same substantive burden of proof as would apply at a trial on the merits).
In determining whether a triable issue of material fact exists, the evidence must be considered in the light most favorable to the nonmoving party. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513 (In determining whether a triable issue of material fact exists, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.") (citation omitted); Barlow v. Ground, 943 F.2d 1132, 1134 (9th Cir. 1991). However, summary judgment cannot be avoided by relying solely on "conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (more than a "metaphysical doubt" is required to establish a genuine issue of material fact). "The mere existence of a scintilla of evidence in support of the plaintiff's position" is insufficient to survive summary judgment; "there must be evidence on which the [fact finder] could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.
Finally, "[t]he mere existence of video footage of the incident does not foreclose a genuine factual dispute as to the reasonable inferences that can be drawn from that footage." Vos, 892 F.3d at 1028 (citing Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). "The record is viewed in the light most favorable to the nonmovants..., so long as their version of the facts is not blatantly contradicted by the video evidence[.]" Id. (citation omitted); see Hughes v. Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022) ("[F]or purposes of ruling on a motion for summary judgment, a district court may properly view the facts in the light depicted by bodycam footage and its accompanying audio, to the extent the footage and audio blatantly contradict testimonial evidence.").
DISCUSSION
I. EQUAL PROTECTION.
The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)). Accordingly, "the [Equal Protection Clause] prohibits selective enforcement of the law based on considerations such as race." Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996); see Floyd v. City of New York, 959 F.Supp.2d 540, 667 (S.D.N.Y. 2013) ("The Equal Protection Clause's prohibition on selective enforcement means that suspicious blacks and Hispanics may not be treated differently by the police than equally suspicious whites."). "[A] law enforcement officer's discriminatory motivations can give rise to a constitutional violation even where the unequal treatment occurred during an otherwise lawful criminal detention." Melendres v. Arpaio, 598 F.Supp.2d 1025, 1036 (D. Ariz. 2009) (citing Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 533 (6th Cir. 2002)).
To establish an equal protection violation, a "plaintiff[] must show that actions of the defendants had a discriminatory impact, and that defendants acted with an intent or purpose to discriminate based upon plaintiff['s] membership in a protected class." Comm. Concerning Cmty. Improvement
v. City of Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009) ("CCCI"); see Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005) (same). However, even though "[t]he central inquiry in an Equal Protection Clause claim is whether a government action was motivated by a discriminatory purpose[,]" Ballou v. McElvain, 29 F.4th 413, 422 (9th Cir. 2022), a plaintiff is not required "to prove that the challenged action rested solely on [a] racially discriminatory purpose[.]" Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. ("Arlington Heights"), 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). It is sufficient if the "defendant acted at least in part because of a plaintiff's protected status." Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (internal quotation marks and emphasis omitted); see, e.g., Farm Lab. Org. Comm., 308 F.3d at 539 ("[E]ven if Trooper Kiefer is correct that the record reveals that he possessed some race-neutral basis for initiating the investigation of the plaintiffs, this fact alone would not entitle him to summary judgment ... as long as the plaintiffs can demonstrate that he was partly motivated by a discriminatory purpose.") (emphasis in original).
"[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [government action] bears more heavily on one race than another." Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2048-49, 48 L.Ed.2d 597 (1976). "In determining whether a discriminatory intent or purpose exists, [courts] may consider direct evidence of discrimination, statistical evidence showing a discriminatory impact, or other factors that could reveal a discriminatory purpose, like the historical background of the policy." Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1261 (9th Cir. 2016). "[P]roof of disproportionate impact on an identifiable group, such as evidence of gross statistical disparities, can satisfy the intent requirement where it tends to show that some invidious or discriminatory purpose underlies the policy." CCCI, 583 F.3d at 703 (internal quotation marks omitted); see Lee, 250 F.3d at 686 (same); Mendiola-Martinez, 836 F.3d at 1261 (same); Arlington Heights, 429 U.S. at 266, 97 S.Ct. at 564 ("Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action[.]").
Here, the totality of relevant facts — which include the traffic stop itself, the officers' testimony, and the expert testimony — support plaintiff's contention that Esparza and Lujan stopped him, at least in part, because of his race. (See Dkt. 137-1, Joint Br. at 9-12). When the officers encountered plaintiff after dark on the evening of November 9, 2017, (see Dkt. 137-11, Exh. 5A, File 5 (Dash Cam Clip)), they were in their patrol car driving north on Fair Oaks, working "gang suppression" as part of the SES unit. (See Dkt. 137-2, SUF at P1; Dkt. 137-10, Exh. 4B, Lujan Depo. at 63-64). Before the officers noticed any vehicle code infractions, Esparza aimed the patrol car's spotlight at plaintiff, who was driving south on Fair Oaks. (Dkt. 137-2, SUF at P61; Dkt. 137-10, Exh. 4A, Esparza Depo. at 107; Dkt. 137-11, Exh. 5A, File 5 (Dash Cam Clip)). Esparza testified that
Plaintiff also contends that the City and PPD are liable for maintaining an unconstitutional custom, policy, or practice of conducting race-based traffic stops. (See Dkt. 137-1, Joint Br. at 36) ("The core of Plaintiff's practice-and-custom based Monell claim is that the SES 'gang suppression' detail unconstitutionally targets black and Hispanic motorists for pretextual traffic stops, the assignment Officers Lujan and Esparza were working."). The court addresses plaintiff's Monell claim below.
his decision to aim the spotlight at plaintiff's car was "purely random[.]" (Dkt. 137-2, SUF at P62; Dkt. 137-10, Exh. 4A, Esparza Depo. at 107). Also, the officers testified that they did not discuss why Lujan made the U-turn after Esparza aimed the spotlight at plaintiff or why they had decided to follow plaintiff. (See Dkt. 137-2, SUF at P63-P64; Dkt. 137-10, Exh. 4A, Esparza Depo. at 109; id., Exh. 4B, Lujan Depo. at 110-12; Dkt. 137-9, Noble Decl. at ¶ 4; Dkt. 137-11, Exh. 5A, File 5 (Dash Cam Clip)).
According to Jeffrey Noble ("Noble"), plaintiff's expert and a former Deputy Chief of Police for the Irvine Police Department, the officers' "use of the spotlight to illuminate the driver of an oncoming vehicle was unsafe, designed to view the occupants of the vehicle, and inconsistent with generally accepted police practices." (Dkt. 137-9, Noble Decl. at ¶ 3). As for the decision to target plaintiff, Noble states that Esparza and Lujan "had nothing suggesting that Mr. Ballew or his vehicle was associated with a crime or gang activity, and Mr. Ballew did not display any of the factors that police officers are trained to consider when identifying an individual as a gang member (e.g., clothing, tattoos, crimes committed, admissions, associates, gang indicia, photographs, text messages, graffiti, or monikers)." (Id. at ¶ 8). Given the circumstances of the encounter, Noble opines that the officers "must have relied on the fact [that Ballew] is African American" in deciding to conduct the traffic stop. (Id.).
Defendants did not raise any evidentiary objections to Noble's declaration in their portion of the Joint Brief addressing plaintiff's equal protection claim. (See, generally, Dkt. 137-1, Joint Br. at 8-9). As the court's order regarding summary judgment motions states, "[a]ll necessary evidentiary objections shall be made in the relevant section(s) of the joint brief." (Dkt. 26, Court's Order of March 16, 2018, at 3). However, in their supplemental brief, defendants raised a hearsay objection with respect to the Field Interview card data, (see Dkt. 143, Def. Supp. Br. at 2), which is discussed below. Even assuming defendants had not waived their evidentiary objections to Noble's declaration, defendants' objection is overruled, as an expert may rely on hearsay under these circumstances. See Fed. R. Evid. 703 ("If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted."). Other than a hearsay objection to Noble's reliance on data that was collected and provided by the City and the PPD to plaintiff's counsel, defendants do not challenge the reliability of Noble's expert opinion or statistical analysis. (See, generally, Dkt. 137-1, Joint Br. at 8-9, 30-36); (Dkt. 143, Def. Supp. Br. at 1-3, 5-6).
In addition to the circumstances regarding the traffic stop itself, plaintiff put forth statistical evidence showing that the challenged stop may have been racially motivated. Through his expert, plaintiff relies on statistical evidence relating to traffic stops involving the PPD's SES unit. (See Dkt. 137-1, Joint Br. at 9-12); (see also Dkt. 137-9, Noble Decl. at ¶¶ 1, 51-60); see, e.g., Floyd v. City of New York, 813 F.Supp.2d 417, 446 (S.D.N.Y. 2011) (noting that a reasonable jury could find that a police stop of plaintiff was racially motivated in part due to "the context of citywide racial disparities in stop-and-frisk patterns"). During stops like the one involving plaintiff, SES officers documented their contacts with motorists on a Field Interview ("FI") card. (Dkt. 137-2, SUF at P4; Dkt. 137-4, Exh. 4A, Esparza Depo. at 84). Noble compiled and analyzed the FI cards that SES officers created between January 2016 and September 2018, which defendants produced to plaintiff's counsel. (See Dkt. 137-1, Joint Br. at 10). Noble compared the percentage of Black and Latino motorists stopped by SES officers with census data for Altadena and Pasadena. (See Dkt. 137-9, Noble Decl. at ¶ 53). Of
the 197 FI cards generated in connection with traffic stops, 44 percent of the FI cards recorded the race of the person stopped as Black, 55 percent as Latino, and one percent as White. (Dkt. 137-1, Joint Br. at 10) (citing Dkt. 137-2, SUF at P55; Dkt. 137-9, Noble Decl. at ¶ 54; Dkt. 137-10, Exh. 4, Declaration of Matt Sahak [] ("Sahak Decl.") at ¶ 7; id., Exh. 4F (FI Card Spreadsheet)).
Noble's analysis of the data provided by the PPD and the City shows "gross statistical disparities[,]" see Mendiola-Martinez, 836 F.3d at 1261, in the number of Black and Latino drivers stopped by SES officers compared to White drivers, who account for just one percent of the traffic stops, even though Whites account for the majority of the population in both Altadena and Pasadena. (See Dkt. 137-9, Noble
Other than perhaps the stark statistical disparities — where only one percent of drivers stopped pursuant to the SES program were White — the findings in this case are not surprising. "Years of data bear out what many have long known from experience: police stop drivers of color disproportionately more often than Caucasian drivers for insignificant violations (or provide no reason at all)." Commonwealth v. Buckley, 478 Mass. 861, 876-77, 90 N.E.3d 767 (2018) (Budd, J., concurring); see United States v. Sellers, 906 F.3d 848, 860 (9th Cir. 2018) (Nguyen, J., concurring) (noting that researchers have found "that black drivers are stopped more often than white drivers relative to their share of the driving-age population, that blacks and Hispanics are more likely to be ticketed, searched, and arrested than similarly situated white drivers, and that blacks and Hispanics are searched on the basis of less evidence than whites"); Emma Pierson, et al., "A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States," 4 Nature Human Behavior 736, 737 (2020) (finding, based on analysis of approximately 95 million stops nationwide, that "[r]elative to their share of the residential population, ... black drivers were, on average, stopped more often than white drivers"); Elizabeth Kai Hinton, et al., "An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System," Vera Institute of Justice 7 (May 2018) ("Studies have found that police are more likely to pull over and search black drivers despite lower contraband hit rates."); Libor Jany & Ben Poston, "Minor Police Encounters Plummet After LAPD Put Limits on Stopping Drivers and Pedestrians," L.A. Times (Nov. 14, 2022), https://www.latimes.com/california/story/2022-11-14/minor-traffic-stops-plummet-in-months-after-lapd-policy-change (noting that the Los Angeles Police Department ("LAPD") reformed its practices surrounding pretextual traffic stops after an investigation "found that specialized crime suppression units from the [LAPD's] Metropolitan Division had been stopping Black drivers at a rate that was significantly higher than the size of their population, and that across the department Black and Latino motorists were searched more often than white drivers despite being less likely to have contraband on them").
In California, data collected pursuant to the state's Racial and Identity Profiling Act has revealed "significant disparities in stop rates along racial/ethnic lines, especially of African Americans." Public Policy Institute of California, "African Americans Are Notably Overrepresented in Police Stops," (Aug. 13, 2020), https://www.ppic.org/blog/african-americans-are-notably-overrepresented-in-police-stops/; see Public Policy Institute of California, "Racial Disparities in California Law Enforcement Stops," (Dec. 3, 2020), https://www.ppic.org/blog/racial-disparities-in-california-law-enforcement-stops/; California RIPA Board, "Annual Report 2022," at 131-144 (exploring race/ethnicity demographic data relating to traffic stops in California), https://oag.ca.gov/system/files/media/ripa-board-report-2022.pdf. In addition, Black and Latino drivers who are stopped by police are disproportionately cited for insignificant violations or provided no reason for their stop, and are more likely than White drivers to have their cars searched during a traffic stop. See Dep't of Just., "Police Behavior during Traffic and Street Stops, 2011," (Sept. 2013), at 4 & 9, https://bjs.ojp.gov/content/pub/pdf/pbtss11.pdf. For example, a Department of Justice study found that 6.3% of Black drivers and 6.6% of Latino drivers were searched during traffic stops, as compared to just 2.3% of White drivers. Id. at 9; see also Kevin Rector & Cindy Chang, "Racial Disparities in LAPD Stops Fueled by Failed Crime-Fighting Strategy, Audit Finds," L.A. Times (Oct. 24, 2020), https://www.latimes.com/california/story/2020-10-24/racial-disparities-in-lapd-stops-fueled-by-failed-crime-fighting-strategy-audit-finds (report found that the LAPD "subjected Black and Latino drivers to far more stops than white drivers, even though Black and Latino people were less likely to be caught with contraband," and that the stops "were of limited effectiveness in identifying evidence of illegal firearms or other serious crimes") (internal quotation marks omitted).
"In balancing the interests in freedom from arbitrary government intrusion and the legitimate needs of law enforcement officers, we cannot help but be aware that the burden of aggressive and intrusive police action falls disproportionately on African-American, and sometimes Latino, males." Washington v. Lambert, 98 F.3d 1181, 1187 (9th Cir. 1996). These encounters can often lead to severe consequences, as in this case. As the California Racial and Identity Profiling Advisory Board has observed, "[i]n California and throughout the nation, traffic stops are the number one reason people come into contact with the police, and they can have serious — sometimes even fatal — consequences for those who are stopped." California RIPA Board, Annual Report 2022, at 141; Hinton, "An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System," Vera Institute of Justice at 7 ("Studies on police use of force reveal that black people are more likely than white people to experience use of force by police."); David D. Kirkpatrick, et al., "Why Many Police Traffic Stops Turn Deadly," N.Y. Times (Oct. 31, 2021), https://www.nytimes.com/2021/10/31/us/police-traffic-stops-killings.html (surveying traffic stops that resulted in fatal police shootings and noting that "[m]any stops began with common traffic violations" and that "relative to the population, Black drivers were overrepresented among those killed").
Decl. at ¶¶ 52-54). In addition, most traffic stops conducted by the SES unit did not result in citations or arrests, (see Dkt. 137-2, SUF at P3; Dkt. 137-10, Exh. 4B, Lujan Depo. at 67); (Dkt. 137-9, Noble Decl. at ¶¶ 55-58), suggesting that officers in the SES unit used pretextual traffic stops for discriminatory reasons unrelated to vehicle code enforcement. (See Dkt. 137-9, Noble Decl. at ¶¶ 57-58). For the subset of 127 FI cards for which defendants provided arrest and citation data, 15 people were arrested, mostly for reasons unrelated to the traffic stop. ( See id. at ¶ 56). And for traffic stops that were not followed by an arrest, only two resulted in citations. ( See id. at ¶ 57). According to plaintiff's expert, this data shows "that the SES 'gang enforcement' detail ... deliberately used pretext stops for reasons other than to enforce the Vehicle Code." (Id.); see Atwater v. City of Lago Vista, 532 U.S. 318, 372, 121 S.Ct. 1536, 1567, 149 L.Ed.2d 549 (2001) (O'Connor, J., dissenting) ("Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual.").
Under the circumstances, plaintiff has put forth sufficient evidence to establish a reasonable inference that the officers' stop of plaintiff was racially motivated. See Serrano, 345 F.3d at 1082. Defendants' attempt to rebut plaintiff's evidence and all the reasonable inferences in support of plaintiff's equal protection claim is woefully deficient. Indeed, in many respects, plaintiff's evidence in support of his equal protection claim is undisputed.
For example, it appears to be undisputed that the officers were not aware of any vehicle code infractions when Esparza aimed the spotlight at Ballew. (See Dkt. 137-2, SUF at P61-P62; Dkt. 137-10, Exh. 4A, Esparza Depo. at 107; Dkt. 137-11, Exh. 5A, File 5 (Dash Cam Clip)).
In any event, the essence of defendants' three-paragraph argument is that "plaintiff admitted to violations of the Vehicle Code for illegally tinted windows and no front license plate. Therefore, the stop was based on reasonable suspicion, not race." (Dkt. 137-1, Joint Br. at 9)
Since plaintiff was already parked at a gas station, and a traffic stop begins "when a vehicle is pulled over for investigation of a traffic violation[,]" Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 788, 172 L.Ed.2d 694 (2009), there is some question as to whether the incident here constituted a true "traffic stop," i.e., a "seizure for a traffic violation." Rodriguez v. United States, 575 U.S. 348, 354, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015).
(citation omitted). However, as the court previously explained, (see Dkt. 125, Court's Order of March 29, 2019, at 8) ("[R]egardless of whether the vehicle equipment violations establish a basis for the stop, that does not defeat plaintiff's equal protection claim."), a traffic stop motivated, at least in part, by race still constitutes an equal protection violation, even if the officers also had a legitimate basis for the stop. See Whren, 517 U.S. at 813, 116 S.Ct. at 1774 (plaintiff may assert race-based selective enforcement claim under the equal protection clause even if a traffic stop was reasonable under the Fourth Amendment); Farm Lab. Org. Comm., 308 F.3d at 538 ("The selective enforcement framework does not require a plaintiff to show that the defendant had no race-neutral reasons for the challenged enforcement decision. Instead, it is enough to show that the challenged action was taken at least in part because of its adverse effects upon an identifiable group.") (cleaned up); Melendres, 598 F.Supp.2d at 1036 (explaining that "a law enforcement officer's discriminatory motivations can give rise to a constitutional violation even where the unequal treatment occurred during an otherwise lawful criminal detention").
Moreover, as to the stop itself, a jury could reasonably find, given the totality of circumstances surrounding the stop as well as the opinion of plaintiff's expert, that plaintiff's race was a motivating factor in the officers' decision to stop plaintiff. For example, a jury could find that Esparza's "random" decision to aim the spotlight at Ballew's car on the evening of November 9, 2017, was in fact done to determine the race of the driver. See, e.g., Commonwealth v. Long, 485 Mass. 711, 724 n. 9, 152 N.E.3d 725 (2020) (In assessing sequence of events prior to the stop, "a judge also might consider whether the circumstances would have allowed the officer to note the defendant's race[.]"); see also Emma Pierson, et al., "A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States," 4 Nature Human Behavior 736, 737 (finding that Black drivers comprised a smaller share of drivers stopped at night when it is harder for officers to detect race, which "suggests [B]lack drivers were stopped during daylight hours in part because of their race"); California Racial & Identity Profiling Advisory ("RIPA") Board, "Annual Report 2022," at 56 (noting that researchers investigating racial disparities in traffic stops sometimes use a "veil of darkness" approach, which "presumes that it may be more difficult for police to perceive the race/ethnicity of an individual prior to stopping them after dark than during daylight"). With respect to the statistical analysis provided by plaintiff's expert, defendants offer no explanation for the race-based disparities in the traffic stops. Nor do they, as noted above, offer any rebuttal to plaintiff's other evidence supporting his equal protection claim. Indeed, defendants did not put forth an expert to rebut plaintiff's expert's statistical analysis and opinions. (See, generally, Dkt. 137-1, Joint Br. 8-9). Instead, relying on Mendiola-Martinez, defendants contend that plaintiff's statistical evidence — which, again, is based on data generated and produced by defendants — is "deficient" and ultimately "insufficient to establish disparate treatment." (Dkt. 143, Def. Supp. Br. at 2-3). Defendants' contention is unpersuasive.
Also, given that plaintiff was stopped for minor vehicle code infractions, a jury could consider whether the regular duties of SES officers include the enforcement of vehicle code infractions such as the ones involved in this case. See, e.g., Long, 485 Mass. at 724 n. 8, 152 N.E.3d 725 ("Traffic stops initiated by officers whose primary assignment does not involve enforcement of traffic laws might warrant particular scrutiny. For example, an officer working routine patrol might write many tickets as part of ordinary duties, as compared to an officer working a specialized assignment such as drug enforcement task force, hostage rescue, or a domestic violence unit."). For example, given that SES officers issued only two citations during 112 documented traffic stops, (see Dkt. 137-2, SUF at P59), (Dkt. 137-9, Noble Decl. at ¶ 57), a jury could conclude that the primary duties of SES officers did not involve the enforcement of traffic laws, thus calling into question the basis for the stop.
In Mendiola-Martinez, the plaintiff alleged that her constitutional rights were violated when "she was shackled and restrained during labor and postpartum recovery" while incarcerated in a county jail. 836 F.3d at 1242. The plaintiff asserted an equal protection claim based on allegations that the county's restraint policy "disparately impacts pregnant women born outside of the United States because they are more likely to be detained under the Arizona Bailable Offenses Act than similarly-situated United States citizens." Id. at 1260 (citation omitted). As evidence of the allegedly discriminatory purpose behind the restraint policy, the plaintiff presented evidence regarding the percentage of county residents who were Latino, the percentage of undocumented immigrants in the county who were from Mexico, and census data on Latinos in the county. See id. at 1261. While recognizing that "proof of disproportionate impact on an identifiable group, such as evidence of gross statistical disparities, can satisfy the intent requirement" for an equal protection claim, the Ninth Circuit determined that the plaintiff's evidence was inadequate because the "general population statistics" did "not establish that Mexican nationals are disproportionately impacted by the Restraint Policy, and [the plaintiff] simply fail[ed] to present any comparative figures to attempt to show disparate impact." Id. The plaintiff also had "not identified any other proof of discriminatory intent." Id.
Here, the expert's statistical analysis relies on FI card data for the "comparative figures," which provide a more precise measure of disparate impact than the statistical evidence in Mendiola-Martinez. Moreover, the data put forth by plaintiff reflects "gross statistical disparities" that, at a minimum, constitutes circumstantial evidence of discriminatory intent. See Pac. Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1166 (9th Cir. 2013) (noting that statistical evidence can help establish both disparate impact and discriminatory intent) (collecting cases); Mendiola-Martinez, 836 F.3d at 1261. But even if plaintiff's statistical evidence was insufficient "to permit a reasonable trier of fact to find by a preponderance of the evidence that the decision was racially motivated[,]" Serrano, 345 F.3d at 1082 (internal quotation marks omitted),
In other words, given that the data shows that the stops conducted by officers in the SES unit are grossly racially skewed, it is a reasonable inference that the rate at which the officers in this case executed stops of drivers of a particular race is similarly disproportionate to the stops of other drivers. See, e.g., Long, 485 Mass. at 733, 152 N.E.3d 725 ("If, as here, the data on the officers' citations and motor vehicle FIOs [field interrogation and observations] show that these interactions are racially skewed, it is a reasonable inference that the rate at which those officers' stops of drivers of a particular race is similarly disproportionate to stops of other drivers.").
plaintiff has, as discussed above, also put forth "other proof of discriminatory intent[.]" Mendiola-Martinez, 836 F.3d at 1261.
Finally, defendants assert, in a conclusory manner, that "the class of similarly situated individuals to the plaintiff necessarily would include motorists that were (a) present in the area when Officers Lujan and Esparza were patrolling the area of Fair Oaks Ave. and Woodbury Road in Altadena; and (b) subject to the possibility of a traffic stop for similar driving infractions as Ballew." (Dkt. 143, Def. Supp. Br. at 3). As an initial matter, defendants provide no authority or evidence to support their conclusory assertions. (See, generally, id.); see United States v. Aguilar, 782 F.3d 1101, 1108 (9th Cir. 2015) (declining to "manufacture" argument for defendants where they failed to cite any statutes or cases supporting their position); United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) ("Arguments made in passing and not supported by citations to the record or to case authority are generally deemed waived."); Beasley v. Astrue, 2011 WL 1327130, *2 (W.D. Wash. 2011) ("It is not enough merely to present an argument in the skimpiest way, and leave the Court to do counsel's work — framing the argument, and putting flesh on its bones through a discussion of the applicable law and facts."). For example, defendants do not explain why it matters or undermines the expert's statistical analysis that there were "similarly situated individuals to the plaintiff" who were present in the area being patrolled by Lujan and Esparza and subject to a traffic stop for similar driving infractions. (See, generally, Dkt. 143, Def. Supp. Br. at 3). Moreover, given that it was already dark when the officers were patrolling the subject area — and indeed that may be why the officers aimed the spotlight at plaintiff — there is no way to tell whether there were other drivers who were "similarly situated" to plaintiff in the area. And defendants provide no authority supporting a requirement that plaintiff must identify individuals who were not stopped on the evening in question to prevail on his equal protection claim. (See, generally, id.). "[B]ecause of the ubiquity of traffic violations, only a tiny percentage of these violations ultimately result in motor vehicle stops, warnings or citations. Thus, it virtually always will be the case that a broader class of persons violated the law than those against whom the law was enforced." Long, 485 Mass. at 722, 152 N.E.3d 725 (internal quotation marks omitted).
Indeed, such a requirement would make these types of equal protection claims virtually impossible to prove. See United States v. Johnson, 122 F.Supp.3d 272, 356 (M.D.N.C. 2015) (In the context of equal protection claims arising from allegedly biased traffic stops, "courts have noted[that] requiring the identification of specific, similarly situated individuals is sometimes impractical in selective law enforcement cases.").
This is not a situation where the driver and the officers were on a major interstate highway where it is likely that the majority of drivers on the highway are not residents of the town that borders the highway. Fair Oaks and Woodbury — an area north of the City of Pasadena and fairly close to the base of the San Gabriel Mountains in the Angeles National Forest — are urban residential roads as opposed to interstate highways. Where, as here, "the relevant roadways are urban residential roads, as opposed to an interstate highway, we have much greater confidence in the accuracy of residential demographics from United States Census data as representative of those making use of the residential roads." Long, 485 Mass. at 733, 152 N.E.3d 725. The statistical analysis put forth by plaintiff's expert — which, as noted earlier,
is undisputed — shows that SES officers, such as Esparza and Lujan, almost exclusively targeted Black and Latino motorists for traffic stops, and very rarely, if ever, stopped similarly situated White motorists. What's more, we cannot lose sight of the fact that in stopping plaintiff's vehicle but not another, the officers made a deliberate choice. See id. at 722, 152 N.E.3d 725.
In short, given the officers' conduct and the overall circumstances involving their decision to stop Ballew's vehicle, coupled with the undisputed statistical evidence showing that it occurred in the context of unexplained gross statistical disparities in traffic stops by officers from the SES unit, a reasonable jury could easily find that the officers' "stop" of plaintiff was racially motivated. Determining whether the officers impermissibly relied on plaintiff's race in targeting him for the stop "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Heights, 429 U.S. at 266, 97 S.Ct. at 564. "Such an inquiry is best conducted by a finder of fact at trial, not by the court at summary judgment." Ortega-Melendres v. Arpaio, 836 F.Supp.2d 959, 988 (D. Ariz. 2011); see, e.g., Farm Lab. Org. Comm., 308 F.3d at 539 (whether a state trooper's "allegedly discriminatory motive played a determinative role in the decision to investigate the plaintiffs ... is a factual dispute best suited for resolution at trial"). Accordingly, defendants' motion for summary judgment is denied as to plaintiff's equal protection claim.
II. EXCESSIVE FORCE.
Defendants seek summary judgment on plaintiff's Fourth Amendment excessive force claim, arguing that: (1) the officers' use of force was objectively reasonable under the balancing test in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), (see Dkt. 137-1, Joint Br. at 12-15); and (2) the officers are entitled to qualified immunity because "it was not clearly established that the use of a baton and compliance strikes ... would be considered unconstitutional" under these circumstances. (Dkt. 137-1, Joint Br. at 15, 45). To determine whether a police officer is entitled to qualified immunity under § 1983, courts engage in a two-step inquiry. "First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, ... the court must decide whether the right at issue was clearly established at the time of defendant's alleged misconduct." Capp v. Cnty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (quoting Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009)); Tuuamalemalo, 946 F.3d at 476 (same). The court will address both inquiries in turn.
Defendants did not raise qualified immunity with respect to plaintiff's equal protection claim, (see, generally, Dkt. 137-1, Joint Br. 43-47); (Dkt. 143, Def. Supp. Br. at 9-10), presumably because it would require them to make the untenable assertion that it was not clearly established that race-based traffic stops are prohibited under the Constitution. See, e.g., Whren, 517 U.S. at 813, 116 S.Ct. at 1774 ("[T]he Constitution prohibits selective enforcement of the law based on considerations such as race."); Yoshikawa v. Seguirant, 41 F.4th 1109, 1119 (9th Cir. 2022) (recognizing "clearly established right ... to be free from racial animus in public decisions [] under the Fourteenth Amendment"); Farm Lab. Org. Comm., 308 F.3d at 539 ("[E]ven if Trooper Kiefer is correct that the record reveals that he possessed some race-neutral basis for initiating the investigation of the plaintiffs, this fact alone would not entitle him to summary judgment on qualified immunity as long as the plaintiffs can demonstrate that he was partly motivated by a discriminatory purpose.") (emphasis omitted). However, even if qualified immunity protected the individual officers from plaintiff's equal protection claim, the City and the PPD could still be found liable under Monell. See Owen v. City of Indep., 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980) (municipalities may not assert qualified immunity as a defense to § 1983 claims); Pauluk v. Savage, 836 F.3d 1117, 1126 (9th Cir. 2016) ("A county agency is not entitled to qualified immunity and may be held liable for constitutional violations by its employees under Monell [] and related cases."); Richards v. Cnty. of San Bernardino, 39 F.4th 562, 574 (9th Cir. 2022) ("If a plaintiff established he suffered constitutional injury by the County, the fact that individual officers are exonerated is immaterial to liability under § 1983.") (cleaned up). Moreover, a finding that the officers are entitled to qualified immunity on plaintiff's excessive force claim would not foreclose his equal protection claim, as the claims involve distinct issues and allegations. See supra at § I.; see, e.g., Andrews v. City of Henderson, 35 F.4th 710, 720-21 (9th Cir. 2022) ("We conclude that the City's § 1983 municipal liability is not inextricably intertwined with the detectives' claim of qualified immunity. The detectives' qualified immunity defense turns on whether they violated clearly established federal law, but the City's liability turns on whether an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it."). Finally, because summary judgment is granted as to plaintiff's false reports, unlawful seizure, excessive bail claims, see infra at §§ III., IV. & V., as well as his supervisory liability claim arising from unlawful seizure, see infra at § VII., the court need not address qualified immunity as to those claims.
A. Constitutional Violation.
"In evaluating a Fourth Amendment claim of excessive force, [courts] ask 'whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them.'" Rice v. Morehouse, 989 F.3d 1112, 1121 (9th Cir. 2021) (quoting Graham, 490 U.S. at 397, 109 S.Ct. at 1872). "In assessing the objective reasonableness of a particular use of force, [courts] consider: (1) the severity of the intrusion on the individual's Fourth Amendment rights by evaluating the type and amount of force inflicted, (2) the government's interest in the use of force, and (3) the balance between the gravity of the intrusion on the individual and the government's need for that intrusion." Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (en banc) (internal quotation marks omitted). This standard requires the court to "judge the reasonableness of a particular use of force 'from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Rice, 989 F.3d at 1121 (quoting Graham, 490 U.S. at 396, 109 S.Ct. at 1872). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872.
"Because [the excessive force inquiry] nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly." Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc) (first alteration in original); see Seidner v. de Vries, 39 F.4th 591, 601 (9th Cir. 2022) (same); Green v. City & Cty. of San Francisco, 751 F.3d 1039, 1046 (9th Cir. 2014) ("[T]he reasonableness of officer conduct should be decided by a jury where the inquiry turns on disputed issues of material fact.").
1. Type and Amount of Force.
"The first step of the excessive force inquiry requires [courts] to assess the severity of the intrusion on the individual's Fourth Amendment rights by evaluating
the type and amount of force inflicted." Lowry, 858 F.3d at 1256 (internal quotation marks omitted). The court "consider[s] the specific factual circumstances of the case in classifying the force used." Williamson v. City of Nat'l City, 23 F.4th 1146, 1151-52 (9th Cir. 2022) (internal quotation marks omitted). In addition, the court must consider the "actual harm" and "the risk of harm" created by "the type and amount of force used[.]" Id. at 1152-53.
Defendants concede that "the nature and quality of the intrusion here, i.e., punches and baton strikes, involves 'intermediate' and 'significant' force[.]" (Dkt. 137-1, Joint Br. at 13) (citations omitted). "[I]ntermediate force is the most severe force authorized short of deadly force." Smith, 394 F.3d at 702. Also, "baton blows are [a] form[] of force capable of inflicting significant pain and causing serious injury[,]" and are therefore regarded as "'intermediate force.'" Young v. Cty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011); Felarca v. Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018) (recognizing that "baton blows are a type of force capable of causing serious injury"); see, e.g., Garlick v. Cnty. of Kern, 167 F.Supp.3d 1117, 1147 (E.D. Cal. 2016) ("Generally, impact blows by punching or kicking are considered 'significant force.'") (citing Blankenhorn v. City of Orange, 485 F.3d 463, 480 (9th Cir. 2007)).
In addition to the baton blows Esparza inflicted on Ballew, Lujan "smashed his face into the asphalt[.]" (Dkt. 137-1, Joint Br. at 17); (see Dkt. 137-2, SUF at P37; Dkt. 137-8, Exh. 1, Ballew Decl. ¶ 22; id., Ex. 1C (injury photo); Dkt. 137-11, Exh. 5A, File 19 (Lujan Body Cam Clip), File 20 (Dash Cam Clip) & File 21 (Bystander Video Clip)). Lujan's conduct constitutes a substantial and aggressive use of force that is "capable of inflicting significant pain and causing serious injury." Young, 655 F.3d at 1161; see, e.g., Rice, 989 F.3d at 1121 (officers' "take-down" of the plaintiff that resulted in the plaintiff falling face-first onto the pavement was "a 'substantial' and 'aggressive use' of force" where the plaintiff suffered "extreme pain immediately following his arrest and long-term physical pain for which he received medical treatment").
As to the amount of force used, which defendants do not dispute, (see Dkt. 143, Def. Supp. Br. at 3) ("The quantum of force is undisputed[.]"), plaintiff states, among other things, that Esparza struck him with the baton five times and that Lujan punched him several times and slammed his face into the pavement. (See Dkt. 137-2, SUF at P29, P32, P34, P38 & P80; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 19-22; id., Exh, 1B, Injury Photograph (Right Shin); Dkt. 137-10, Exh. 4A, Esparza Depo. at 175; Dkt. 137-11, Exh. 5A, Files 15 & 19 (Lujan Body Cam Clips), Files 16, 18, 20 (Dash Cam Clips) & File 21 (Bystander Video Clip)). Plaintiff suffered a broken fibula, bloody facial injuries, and deep gashes on his right shin as a result of the force used by Esparza and Lujan. (See Dkt. 137-2, SUF at P29, P37-P38 & D167; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 19 & 21-23; id., Exh, 1B, Injury Photograph (Right Shin); id., Exh, 1C, Injury Photograph (Facial); id., Exh, 1D, Injury Photograph (Ankle); Dkt. 137-11, Exh. 5A, File 15 & 19 (Lujan Body Cam Clips), Files 16 & 20 (Dash Cam Clips) & File 21 (Bystander Video Clip)). Thus, the "actual harm" Ballew suffered is undoubtedly significant. See Williamson, 23 F.4th at 1152-53.
Further, the "risk of harm" created by the officers' use of force — which included
baton strikes, punches, and slamming plaintiff's face into the pavement — was even greater than the actual harm that resulted. See Williamson, 23 F.4th at 1152 ("Consideration of both the actual harm and the risk of harm is important as the Fourth Amendment is concerned with reasonableness."); Lowry, 858 F.3d at 1256 (assessing a particular use of force requires consideration of the "specific factual circumstances" surrounding the event); Nelson v. City of Davis, 685 F.3d 867, 879 (9th Cir. 2012). For example, plaintiff alleges that one of Esparza's baton strikes was "square on his spine[.]" (See Dkt. 137-2, SUF at P38; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 21; Dkt. 137-11, Exh. 5A, File 17 (Lujan Body Cam Clip)). Given that "baton blows" are a "form[] of force capable of inflicting significant pain and causing serious injury," Young, 655 F.3d at 1161, there is no doubt that the risk of harm created by the officers' use of force was greater than the actual harm that resulted.
Indeed, the officers apparently viewed the baton as a deadly weapon in deciding to arrest plaintiff for allegedly violating Penal Code 245(c). (See, e.g., Dkt. 137-1, Joint Br. at 15); (Dkt. 137-2, SUF at D165).
"[A]ll force — lethal and non-lethal — must be justified by the need for the specific level of force employed." Bryan v. MacPherson, 630 F.3d 805, 825 (9th Cir. 2010). Under the circumstances here, the court finds that Esparza and Lujan used substantial and aggressive force "known to cause serious pain and to lead in some cases to serious physiological consequences[,]" Young, 655 F.3d at 1162, and thus, their use of force "must be justified by the need for the specific level of force employed." Rice, 989 F.3d at 1121 (internal quotation marks omitted).
2. Government's Interest in the Use of Force.
The second step of the excessive force analysis involves "evaluat[ing] the government's interest in the use of force[,]" and requires the court to assess "three primary factors: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight." Lowry, 858 F.3d at 1257 (internal quotation marks omitted). "These factors ... are not exclusive, however, and we examine the totality of the circumstances, considering other factors when appropriate." Id. These other factors "include whether proper warnings were given and the availability of less intrusive alternatives to the force employed." Id. at 1259 (internal quotation marks omitted); see Andrews, 35 F.4th at 716 (same); Smith, 394 F.3d at 703 ("As we have previously explained, an additional factor that we may consider in our Graham analysis is the availability of alternative methods of capturing or subduing a suspect.").
a. Severity of the Crime.
With respect to "the severity of the crime at issue[,]" the Ninth Circuit has "applied this factor in two slightly different ways." S.R. Nehad v. Browder, 929 F.3d 1125, 1136 (9th Cir. 2019) ("Nehad"). Under one approach, "a particular use of force would be more reasonable, all other things being equal, when applied against a felony suspect than when applied against a person suspected of only a misdemeanor." Id. Under the other approach, which overlaps with the second Graham factor, courts "use[] the severity of the crime at issue as a proxy for the danger a suspect poses at the time force is applied[.]" Id. However, there are circumstances where an alleged serious crime "does not necessarily give
rise to a strong governmental interest in the use of significant physical force." Andrews, 35 F.4th at 717 (emphasis in original). For example, where a suspect had recently physically assaulted another person "but was standing alone on his porch when officers arrived, the nature of the crime at issue provided little, if any, basis for the use of force." Nehad, 929 F.3d at 1136 (internal quotation marks omitted).
Here, defendants acknowledge that the crimes at issue "involved Vehicle Code infractions (no front license plate and tinted windows)[.]" (Dkt. 137-1, Joint Br. at 13). It is well-settled that "run-of-the-mill traffic violation[s] ... provide[] little, if any, support for the use of force." Young, 655 F.3d at 1164; see Bryan, 630 F.3d at 828 ("Traffic violations generally will not support the use of a significant level of force."). Indeed, where, as here, the crimes at issue appear to be non-jailable offenses, see Cal. Penal Code § 19.6 ("An infraction is not punishable by imprisonment."); Cal. Penal Code § 19.8 (authorizing fines for infractions), the need for force is even lower than for regular run-of-the-mill traffic violations.
The officers contend, however, that in addition to the minor vehicle code infractions, plaintiff committed two crimes after he was detained that justified their use of force. (See Dkt. 137-1, Joint Br. at 13-15). First, the officers allege that plaintiff violated Penal Code § 148(a)(1), by "resisting" them in carrying out their duties. ( See id. at 13-14). However, as discussed below, there are genuine disputes of material fact as to whether plaintiff actively resisted arrest during the incident. See infra at § II.A.2.c.
Penal Code § 148 provides, in relevant part, that "[e]very person who willfully resists, delays, or obstructs any public officer, peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment." Cal. Penal Code § 148(a)(1).
Moreover, other than citing a few state cases that appear to deal with whether "resistance, hiding, or running away" constitutes a violation of what is now Penal Code § 148(a)(1), (see Dkt. 137-1, Joint Br. at 14), defendants present "no argument for why this provision should be considered a serious crime for purposes of the Graham analysis." Briceno v. Williams, 2022 WL 1599254, *2 (9th Cir. 2022); (see, generally, Dkt. 137-1, Joint Br. at 12-15). In any event, Penal Code § 148(a)(1) is a misdemeanor that is not an inherently dangerous or violent offense. See Bryan, 630 F.3d at 829 (noting that resisting a police officer and failing to comply with a lawful order are not "inherently dangerous or violent" offenses); Davis v. City of Las Vegas, 478 F.3d 1048, 1055-56 (9th Cir. 2007) (obstructing a police officer is a minor offense). And while resisting an officer's ability to carry out his duties may "provide[] more justification for force than does a minor traffic offense, such conduct still constitutes only a non-violent misdemeanor offense that will tend to justify force in far fewer circumstances than more serious offenses, such as violent felonies." Young, 655 F.3d at 1164-65 (collecting cases); see Smith, 394 F.3d at 696 ("A conviction for resisting arrest under § 148(a)(1) may be lawfully obtained only if the officers do not use excessive force in the course of making the arrest."); Cunningham v. Gates, 312 F.3d 1148, 1155 (9th
In 1998, after defendants' cited cases were decided, the California legislature amended Penal Code § 148 and added subsections that are not at issue in this action. See 1989 Cal. Legis. Serv. 1005.
Cir. 2002) (recognizing prior holding that "a conviction for resisting arrest and rejection of a self-defense claim did not foreclose the possibility that the police still used excessive force in carrying out the arrest"). Indeed, "[i]t is well established under California law that even 'an outright refusal to cooperate with police officers cannot create adequate grounds for [police] intrusion' without more." Mackinney v. Nielsen, 69 F.3d 1002, 1006 (9th Cir. 1995) (quoting People v. Bower, 24 Cal.3d 638, 649, 156 Cal.Rptr. 856, 597 P.2d 115 (1979)); see Velazquez v. City of Long Beach, 793 F.3d 1010, 1023 (9th Cir. 2015) (same). Nor does Penal Code § 148(a)(1) "criminalize a person's failure to respond with alacrity to police orders." Velazquez, 793 F.3d at 1019 (cleaned up).
Second, defendants contend that plaintiff assaulted a police officer with a deadly weapon, in violation of Penal Code § 245(c), (see Dkt. 137-1, Joint Br. at 15), when plaintiff held onto one end of the baton to protect himself after Esparza began striking him with it. (See Dkt. 137-2, SUF at P30-P31; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 19); (Dkt. 137-11, Exh. 5A, File 17 (Lujan Body Cam Clip)). Depending on the "specific factual circumstances" surrounding the incident, see Lowry, 858 F.3d at 1256, a Penal Code § 245(c) violation may be a serious offense that justifies a higher degree of force. See Nehad, 929 F.3d at 1136 (felony justifies a higher degree of force). Nevertheless, with respect to both Penal Code §§ 245(c) and 148(a)(1), "[a]n essential element ... is the officer at the time of the arrest must be engaged in the performance of his duties." People v. White, 101 Cal.App.3d 161, 166, 161 Cal. Rptr. 541 (1980). And "California courts have held that an officer who uses excessive force is acting unlawfully and therefore is not engaged in the performance of his or her duties." Lemos v. Cnty. of Sonoma, 40 F.4th 1002, 1006 (9th Cir. 2022) (en banc); Smith, 394 F.3d at 695 (same); see also Velazquez, 793 F.3d at 1024 ("Graham counsels that the facts that gave rise to an unlawful detention or arrest can factor into the determination whether the force used to make the arrest was excessive."). Indeed, under California law, "where the officer uses excessive force, the defendant cannot be guilty of [violating Penal Code §§ 245(c) and 148(a)(1),] and where the jury finds reasonable force was properly used in self-defense, the defendant may not be convicted of any crime." White, 101 Cal.App.3d at 168, 161 Cal.Rptr. 541; see id. at 164, 161 Cal.Rptr. 541 (holding that jury should have been instructed "that where excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties") (citation omitted); Beets v. Cnty. of Los Angeles, 200 Cal.App.4th 916, 927, 133 Cal. Rptr.3d 58 (2011) (noting that "the jury had to determine whether [the police officer] was engaged in the performance of his duties during the assault (Pen. Code, § 245, subd. (c)), and the court properly instructed the jury that an officer who uses unreasonable or excessive force is not lawfully performing his duties"); CALCRIM 2670 (stating that "[a] peace officer is not lawfully performing his or her duties if he or she is []unlawfully arresting or detaining someone[] [or] using unreasonable
Penal Code § 245(c) provides that "[a]ny person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer ... when the peace officer ... is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years."
or excessive force when making or attempting to make an otherwise lawful arrest"); Franklin v. Cty. of Riverside, 971 F.Supp. 1332, 1336 (C.D. Cal. 1997) (explaining that "if a peace officer uses excessive force to make an arrest, that arrest is unlawful and the arrestee cannot be convicted of" resisting arrest or assaulting a police officer).
The Ninth Circuit has made "it clear that ... officers must reassess use of force in an evolving situation as the circumstances change." Hyde v. City of Willcox, 23 F.4th 863, 872 (9th Cir. 2022); see, e.g., Jones v. Las Vegas Metro. Police Dep't, 873 F.3d 1123, 1130 (9th Cir. 2017) (noting that "[a]s the situation evolved, ... the justification for the use of force waned" when a suspect was subdued and on the ground after being tased). Here, given that plaintiff immediately dropped the baton after Esparza released it, (see Dkt. 137-2, SUF at P33, P75 & P78; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 20; Dkt. 137-11, Exh. 5A, File 17 (Lujan Body Cam Clip)), a reasonable jury could find that the officers should have reassessed their use of force in light of the fact that plaintiff no longer held onto the baton. See, e.g., Hopkins v. Andaya, 958 F.2d 881, 883-84, 887 (9th Cir. 1992) (per curiam), overruled on other grounds by Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (concluding that even though the suspect had struck the officer with the officer's baton, a reasonable jury could find that the officer's use of deadly force was not justified when the suspect no longer wielded the baton because "[t]he baton — the one that had caused [the officer] to fear for his life — was gone"); Smith, 394 F.3d at 703 (suspected domestic violence crime provided minimal justification for the officers' use of force where the suspect "was standing on his porch alone and separated from his wife" and "had no guns or weapons in his possession"); see Nehad, 929 F.3d at 1136 ("A jury could ... conclude that the severity of [plaintiff's] crimes, whether characterized as a misdemeanor or an already completed felony, did not render [the officer's] use of ... force reasonable.").
Further, plaintiff clearly was not holding onto the baton when Esparza used it to strike him on his back and his leg. (See Dkt. 137-2, SUF at P38 & P80; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 21-23; id., Exh. 1D, Injury Photograph (Ankle); Dkt. 137-11, Exh. 5A, File 19 (Lujan Body Cam Clip), File 20 (Dash Cam Clip) & File 21 (Bystander Video Clip)). Nor was plaintiff holding onto the baton when Lujan repeatedly punched him and then pushed his face into the asphalt while sitting on top of him. (See Dkt. 137-2, SUF at P36-P37 & P80; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 22; id., Exh. 1C Injury Photograph (Facial); Dkt. 137-11, Exh. 5A, File 19 (Lujan Body Cam Clip), File 20 (Dash Cam Clip) & File 21 (Bystander Video Clip)). Indeed, even assuming, as defendants argue, that plaintiff violated Penal Code § 245(c) by holding onto the baton, (see Dkt. 137-1, Joint Br. at 15), Esparza had already struck plaintiff twice with the baton by that point. (See Dkt. 137-2, SUF at P30; Dkt. 137-8, Exh. 1, Ballew Decl. ¶¶ 19-20); (Dkt. 137-11, Exh. 5A, File 17 (Lujan Body Cam Clip)). Thus, the assault allegedly committed by plaintiff cannot justify the officers' use of force before plaintiff briefly held onto the baton to protect himself from being hit again by Esparza. See Andrews, 35 F.4th at 717 ("Our precedent requires that we focus on the immediate threat of harm. That is, we consider the danger a suspect poses at the time force is applied.").
In sum, viewing the evidence in the light most favorable to plaintiff, a reasonable jury could find that plaintiff had committed no crime beyond the minor vehicle
code infractions, a factor that weighs heavily in plaintiff's favor. However, even if defendants' version of the events were credited, which of course is not the standard at summary judgment, "[a] jury could ... conclude that the severity of [plaintiff's] crimes, whether characterized as [non-jailable vehicle code infractions,] misdemeanor[s] or an already completed felony, did not render [the officers'] use of ... force reasonable." Nehad, 929 F.3d at 1136.
As discussed below and in the section concerning plaintiff's equal protection claim, taking the facts in the light most favorable to plaintiff, it is questionable whether violations of Penal Code §§ 148(a)(1) or 245(c) were truly "at issue" in this case. See supra at § I. & infra at § II.A.2.
b. Whether Plaintiff Posed an Immediate Threat.
"The second Graham factor, whether the suspect pose[d] an immediate threat to the safety of the officers or others, is the most important single element of the three specified factors." Lowry, 858 F.3d at 1258 (internal quotation marks omitted). Courts "focus on the immediate threat of harm" — "[t]hat is, we consider the danger a suspect poses at the time force is applied." Andrews, 35 F.4th at 717 (internal quotation marks omitted) (emphasis in original). A statement by an officer that he feared for his safety is not enough to establish an immediate threat of harm. See Young, 655 F.3d at 1163 ("[A] simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.") (internal quotation marks omitted).
According to defendants, "Ballew's conduct escalated into an unpredictable situation, posing an immediate threat[.]" (Dkt. 137-1, Joint Br. at 13). Specifically, the officers assert that Ballew posed a threat to their safety because he "immediately exited his vehicle, walked away from the officers, and distanced himself." (See Dkt. 137-1, Joint Br. at 13-14).
Defendants also claim they were aware "of a shooting that had occurred a week prior" and that plaintiff "parked on the wrong side of the gas pump." (Dkt. 137-1, Joint Br. at 13-14). However, defendants fail to explain why the officers' alleged awareness "of a shooting that had occurred a week prior" in the same area is relevant to the analysis here. (See, generally, id.). In any event, "[t]here is a significant difference between using aggressive tactics to make a stop because a specific violent crime has occurred in the vicinity within the past hour or less and using such tactics because crimes were committed in a neighboring community a week or so earlier." Washington, 98 F.3d at 1193. Further, the Ninth Circuit has cautioned that "[t]he citing of an area as 'high-crime' requires careful examination by the court, because such a description, unless properly limited and factually based, can easily serve as a proxy for race or ethnicity[,]" and thus courts "must be particularly careful to ensure that a 'high crime' area factor is not used with respect to entire neighborhoods or communities in which members of minority groups regularly go about their daily business, but is limited to specific, circumscribed locations where particular crimes occur with unusual regularity." United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000). Given that the court must focus on "the danger a suspect poses at the time force is applied[,]" Andrews, 35 F.4th at 717 (internal quotation marks omitted) (emphasis in original), and that defendants provided no evidence that Ballew had any known or suspected connection to the shooting, (see, generally, Dkt. 137-1, Joint Br. at 13), there is no basis to conclude that a recent shooting near the Fair Oaks and Woodbury area has any relevance to whether plaintiff posed an immediate threat to the officers. Nor do defendants explain why the position of plaintiff's car in relation to the gas pump represented "an escalating concern for officer safety." (Id. at 14). As plaintiff explained during his deposition, he was able to pump gas in his car even though the gas tank was on the other side of the car. (See Dkt. 137-4, Exh. A, Ballew Depo. at 173).
Also, the officers claim that plaintiff "denied driving his vehicle, despite the officers witnessing him drive into the gas station." (Id. at 13).
Defendants' assertions are based on their characterization of the facts, which is not how the court views the record at summary judgment. Here, a reasonable jury could easily find — after considering, for example, the video recordings offering multiple perspectives of the encounter — that Ballew's behavior was rather innocuous, and that there was nothing about his conduct that was unpredictable or would cause any reasonable officer to believe there was an immediate threat to his or her safety. As an initial matter, there is no suggestion or any evidence in the record that plaintiff had a weapon on his person or in his vehicle. (See, generally, Dkt. 137-1, Joint Br.); (Dkt. 137-2, SUF). Further, viewing the facts in the light most favorable to plaintiff, Ballew was walking at a normal pace from his car to the convenience store, (see Dkt. 137-2, SUF at P9; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 8; Dkt. 137-11, Exh. 5A, File 6 (Dash Cam Clip)), when Esparza walked up to him, grabbed his arm, and walked him to his car. (Dkt. 137-2, SUF at P12; Dkt. 137-11, Exh. 5A, File 6 (Dash Cam Clip)); (Dkt. 137-6, Exh. M, Full Dash Cam Video at 1:02-1:20). And although Esparza may not have been satisfied with plaintiff's comment that he (plaintiff) was not driving his car, the statement was accurate at the time plaintiff made it, i.e., while standing outside the convenience store. (See Dkt. 137-4, Exh. A, Ballew Depo. at 222) ("I said I wasn't even driving my car, but when I said that, I meant like I wasn't driving my car, my keys weren't in the ignition. So I didn't see how I could be getting pulled over for a traffic stop without currently being in traffic."); see supra at § I. n.13 (citing Rodriguez, 575 U.S. at 354, 135 S.Ct. at 1614). Thus, even based on defendants' characterization of the incident, a jury could conclude that reasonable officers on the scene would not have believed plaintiff posed a threat to them or others.
The jury will, of course, be aided by the video evidence in deciding whether to accept defendants' characterizations of the encounter. Some statements by the officers are plainly contradicted by the video. For example, Lujan told another officer immediately after the incident that Ballew "jumped out on us" from his car. (See Dkt. 137-6, Exh. L, Full Lujan Body Cam Video at 5:28-5:33). However, the video plainly shows that Ballew was walking at a normal pace from his car to the convenience store when Esparza approached him. (See Dkt. 137-2, SUF at P9 & P12; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 8; Dkt. 137-11, Exh. 5A, File 6 (Dash Cam Clip)); (Dkt. 137-6, Exh. M, Full Dash Cam Video at 1:02-1:20).
Defendants claim that plaintiff engaged in "unpredictable conduct [that] was an escalating concern for officer safety" in other respects as well, (see Dkt. 137-1, Joint Br. at 14), but, again, their claim is based on their version of the facts, which are clearly disputed. As discussed further below, see infra at § II.A.2., defendants' assertions that plaintiff "dropped to the ground[,]" "was physically moving away and not remaining still" while Lujan tried to handcuff him, and that plaintiff "pulled at Esparza's leg[,]" (id. at 14), are all disputes of material facts.
This is true even with respect to the officers' attempt to justify their use of force based on plaintiff's reaction to Esparza's baton blows by holding onto the baton in self-defense. (See Dkt. 137-1, Joint Br. at 15). That is, viewing the evidence in the light most favorable to plaintiff, he complied with the officers' orders and held his hands up before Esparza struck him with the baton without any
warning. (See, e.g., Dkt. 137-2, SUF at P24-P26, P28 & P77; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 15-17 & 19; Dkt. 137-11, Exh. 5A, File 13 (Lujan Body Cam Clip), File 14 (Lujan Body Cam Clip), & File 15 (Lujan Body Cam Clip)). It was only after Esparza struck plaintiff twice with the baton — causing deep gashes in his leg — that plaintiff held onto the baton to prevent further blows; plaintiff did not try to pull the baton out of Esparza's hands, much less use it to assault the officers. (See Dkt. 137-2, SUF at P29-P31; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 19-20; id., Exh. 1B, Injury Photograph (Right Shin); Dkt. 137-11, Exh. 5A, File 14 (Lujan Body Cam Clip), File 15 (Lujan Body Cam Clip) & File 16 (Dash Cam Clip)); (Dkt. 137-8, Ballew Decl. at ¶ 20) ("At this point I was all instinct and self-preservation. I held on to the baton for dear life, and stood up to prevent Officer Esparza from pulling the baton away from me so he could continue hitting me. I was not trying to pull the baton out of his hands. Officer Esparza let go of the baton deliberately."); (see Dkt. 137-2, SUF at P29-P33; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 19-20; id., Exh. 1B, Injury Photograph (Right Shin); Dkt. 137-11, Exh. 5A, File 14 (Lujan Body Cam Clip), File 15 (Lujan Body Cam Clip) & File 16 (Dash Cam Clip)). Indeed, neither Esparza nor Lujan saw plaintiff attempt to hit them with the baton, and nor did Bundy when he reviewed video of the incident. (See Dkt. 137-1, Joint Br. at 24-25) (citing Dkt. 137-10, Exh. 4A, Esparza Depo. at 176; id., Exh. 4B, Lujan Depo. at 154; id., Exh. 4C, Bundy Depo. at 146).
Further, defendants did not identify any threat plaintiff posed after he dropped the baton, (see, generally, Dkt. 137-1, Joint Br. at 12-15), which plaintiff did immediately after Esparza released it. (See Dkt. 137-2, SUF at P33, P75 & P78; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 20; Dkt. 137-11, Exh. 5A, File 17 (Lujan Body Cam Clip)); Andrews, 35 F.4th at 717 (court must "consider the danger a suspect poses at the time force is applied") (internal quotation marks omitted); see, e.g., Hopkins, 958 F.2d at 883-84 & 887 (concluding that a reasonable jury could find an officer's use of deadly force was not justified when the suspect no longer held a baton, even though the suspect had hit the officer with the baton multiple times earlier in the encounter). It was also during this time — i.e., after plaintiff let go of the baton — that defendants caused the most severe injuries to Ballew by breaking his leg and smashing his face into the pavement. (See Dkt. 137-2, SUF at P38 & P80; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 20-21 & 23; id., Exh, 1D, Injury Photograph (Ankle); Dkt. 137-11, Exh. 5A, File 19 (Lujan Body Cam Clip), File 20 (Dash Cam Clip) & File 21 (Bystander Video Clip)).
Finally, the incident, viewed in plaintiff's favor, indicates that, to the extent Esparza and Lujan believed plaintiff's conduct was "unpredictable," (see, e.g., Dkt. 137-1, Joint Br. at 13-14), the officers themselves "unnecessarily creat[ed] their own sense of urgency." Nehad, 929 F.3d at 1135; see Porter v. Osborn, 546 F.3d 1131, 1141 (9th Cir. 2008) ("When an officer creates the very emergency he then resorts to deadly force to resolve, he is not simply responding to a preexisting situation."). Here, "[r]easonable triers of fact can, taking the totality of the circumstances into account, conclude that an officer's poor judgment or lack of preparedness caused him or her to act unreasonably, with undue haste." Nehad, 929 F.3d at 1135 (internal quotation marks omitted).
Under the circumstances, taking the facts in plaintiff's favor, a reasonable jury could find that plaintiff was not resisting but, rather, complying with the officers' orders when Esparza began hitting him with the baton, and that Ballew held onto
the baton to avoid being hit again. In other words, a reasonable jury could conclude that Ballew did not pose an immediate threat to the officers at any stage during the incident, or, to the extent that any such threat did exist, that it did not justify the officers' use of significant and aggressive physical force against plaintiff. See, e.g., Blankenhorn, 485 F.3d at 478 (misdemeanor trespass suspect "did not pose a serious threat to the officers' or others' safety" at the time officers used force even though the suspect had "pulled free" after one officer "grabbed his arm[,]" "threw his driver's license on the ground[,]" and "struggled for several moments before the officers brought him to the ground" with a "gang tackle"); Young, 655 F.3d at 1164 (a jury could find that an officer's baton strike while a suspect "lay face-first on the ground ... was far in excess of any safety concerns, reasonable or otherwise, that might have motivated [the officer's] alleged conduct"); Smith, 394 F.3d at 702 (domestic violence suspect did not pose an immediate threat to officers at the time they applied force even though the plaintiff had "initially refused to comply with [the officer's] instruction to remove his hands from his pajama pockets" and "continued to shield one arm from the officers ... and to shout expletives" at them until they handcuffed both of his arms). Finally, as noted earlier, plaintiff's act of holding onto the baton cannot be used to justify the force that preceded it, as Esparza had already struck him twice with the baton by that point. See, e.g., Young, 655 F.3d at 1163 (analyzing the officer's initial use of pepper spray while the plaintiff "was sitting on the curb" separately from the officer's subsequent baton blows that occurred "after [plaintiff] stood up" and allegedly sought "to gain a position of advantage" over the officer).
c. Whether Plaintiff Was Actively Resisting.
The third factor, whether plaintiff was actively resisting or attempting to evade arrest, "can be important when an officer is facing a suspect and can observe whether that suspect is complying or resisting." Lowry, 858 F.3d at 1258. The Ninth Circuit has "explained that the level of force an individual's resistance will support is dependent on the factual circumstances underlying that resistance." Id. (cleaned up). In general, "where the suspect passively resists arrest, a lesser degree of force is justified compared to situations in which the suspect actively resists arrest." Id.
Here, the officers make impermissible factual contentions based on their version of the incident, claiming, for example, that plaintiff used his body weight to push back, "flailed his left elbow" against Esparza, and "actively resisted a pat down and struggled throughout, including ... getting up after being told not to get up." (Dkt. 137-1, Joint Br. at 14-15). However, taking the facts in the light most favorable to Ballew, a reasonable jury could find that plaintiff was not resisting in any manner, and certainly not in any manner that justified the type and amount of force inflicted upon him by the officers.
First, Ballew denies that he used his body weight to push back against Esparza when Esparza escorted him back to his car. (See Dkt. 137-2, SUF at P67; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 10; Dkt. 137-11, Exh. 5A, File 7 (Lujan Body Cam Clip)). Second, Ballew denies that he "flailed his left elbow at Esparza," because at the time Esparza had both hands on his left arm. (Dkt. 137-1, Joint Br. at 16); (Dkt. 137-2, SUF at P69; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 12; Dkt. 137-9, Noble Decl. at ¶ 12). Third, Ballew states that he fell to his knee while spreading his legs
because the officers kicked his ankles, (Dkt. 137-2, SUF at P70(i); Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 13; Dkt. 137-11, Exh. 5A, File 10 (Lujan Body Cam Clip)), and not, as defendants claim, because he "threw himself to the ground." (Dkt. 137-2, SUF at D112; Dkt. 137-4, Exh. C, Lujan Depo. at 197-98). Fourth, Ballew states that he complied with the officers' orders while on the ground, including offering his wrists to be handcuffed. (See Dkt. 137-2, SUF at P25-P26 & P70(ii); Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 16-17; Dkt. 137-11, Exh. 5A, File 14 (Lujan Body Cam Clip)). Fifth, Ballew states that although he "wanted to be cuffed" at that point and was not resisting, (see Dkt. 137-2, SUF at P26; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 16-17; Dkt. 137-11, Exh. 5A, File 14 (Lujan Body Cam Clip)), Lujan pushed him to the ground after "fumbling with the right cuff for ten seconds next to [his] wrist without closing it." (Dkt. 137-2, SUF at P27 & P71; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 16; Dkt. 137-11, Exh. 5A, File 14 (Lujan Body Cam Clip)). In other words, Ballew contends that he never resisted being handcuffed or maneuvered his body in an attempt to prevent Lujan from handcuffing him. See, e.g., Blankenhorn, 485 F.3d at 478-80 (noting that a reasonable jury could conclude from plaintiff's testimony and the video that plaintiff "did not actively resist being handcuffed[] before [the officers] gang-tackled him" and that, to the extent the plaintiff did resist, it was "reasonable under the circumstances" given "the rapidity of the officers' actions and the restrained nature of [the plaintiff's] own response"). Sixth, Ballew asserts that before Esparza began hitting him with the baton, he "sat up and held his palms out, fingers spread, to show the officer he did not want to fight." (Dkt. 137-2, SUF at P28 & P77; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 19; Dkt. 137-11, Exh. 5A, File 15 (Lujan Body Cam Clip)). Seventh, Ballew claims he did not try to take the baton away from Esparza, but instead held onto it to avoid being hit again. (Dkt. 137-2, SUF at P31; Ballew Decl. at ¶ 20). Indeed, after Esparza let go of the baton, Ballew "immediately tossed the baton and again held out his palms, fingers spread[.]" (Dkt. 137-2, SUF at P33; Dkt. 137-11, Exh. 5A, File 17 (Lujan Body Cam Clip)). Finally, the available video tends to support plaintiff's version of these events, including his assertions that he did not resist the officers' commands. See Scott, 550 U.S. at 381, 127 S.Ct. at 1776 (court may "view[] the facts in the light depicted by the videotape").
Plaintiff's expert explains why Lujan's own fumbling prevented him from closing the second handcuff: "The video shows that Mr. Ballew was not pulling his right arm away to prevent being handcuffed. Instead, the officers were working against one another, as Officer Esparza kept pushing Mr. Ballew's head forcefully toward the ground causing Mr. Ballew's right arm to pull away from Officer Lujan while Officer Lujan pulled on Mr. Ballew's left arm canting his body. Police officers are trained to 'load' the handcuff in the ratchet, place the back of the handcuff against the wrist and apply slight force, causing the handcuff to flip around and self-close on the wrist. Here, Officer Lujan's own fumbling caused the right handcuff to unload." (Dkt. 137-9, Noble Decl. ¶ 21).
To the extent Ballew's act of holding onto the baton — which Ballew contends he did in self-defense — supports defendants' claim that he was resisting, the Ninth Circuit has recognized that "a person has the limited right to offer reasonable resistance to an arrest that is the product of an officer's personal frolic. That right is not triggered by the absence of probable cause, but rather by the officer's bad faith or provocative conduct." Blankenhorn,
California law likewise recognizes that "if a peace officer uses unreasonable or excessive force while ... arresting or attempting to arrest ... a person, that person may lawfully use reasonable force to defend himself or herself." Flynn v. City of Santa Clara, 388 F.Supp.3d 1158, 1173-74 (N.D. Cal. 2019) (quoting CALCRIM 2670); see People v. Olguin, 119 Cal.App.3d 39, 46-47, 173 Cal.Rptr. 663 (1981) ("[I]t has long been established that a police officer is not permitted to use unreasonable or excessive force in making an otherwise lawful arrest, and if the officer does use such force the arrestee may use reasonable force to protect himself in accordance with the principles of self-defense.").
485 F.3d at 479 (internal quotation marks omitted); see, e.g., Young, 655 F.3d at 1164 (recognizing "that an officer's provocative conduct can trigger an individual's limited right to offer reasonable resistance" where an officer unexpectedly pepper sprayed a suspect as he sat on a curb) (internal quotation marks omitted); Gonzalez v. City of El Monte, 2019 WL 4918095, *7 (C.D. Cal. 2019) (since "there [was] no allegation that Plaintiff struck or attempted to strike either officer," a reasonable jury could find that the plaintiff acted within his limited right to resist where the plaintiff stiffened his muscles in anticipation of punches and tucked his hands beneath his body).
In short, viewing the facts in the light most favorable to plaintiff, Esparza struck Ballew with the baton even though Ballew had been complying with the officers' orders. Under these circumstances, a reasonable jury could find that Esparza's initial baton strikes and/or the other force used by the officers, were "provocative" such that they gave rise to plaintiff's "limited right to offer reasonable resistance." Young, 655 F.3d at 1164. In other words, the officers themselves "may [have] unnecessarily creat[ed] [their] own sense of urgency." Nehad, 929 F.3d at 1135; see, e.g., Blankenhorn, 485 F.3d at 478-80 (reasonable jury could find that the plaintiff acted within his "limited right to offer reasonable resistance to an arrest" when he "struggled" with officers after being gang-tackled and "tried to stay on his feet while [the] officers wrestled with him"); Clark v. Cnty. of Los Angeles, 2021 WL 6882325, *6 (C.D. Cal. 2021) (reasonable jury could find that the plaintiff exercised reasonable resistance when he "arched his back and thrashed his legs in an attempt to get out from under" the officer after the officer "pushed him to the ground swiftly").
d. Additional Factors.
As noted earlier, "[i]n assessing the [government's] interest in the use of force, other relevant factors [the Ninth Circuit] ha[s] identified include whether proper warnings were given and the availability of less intrusive alternatives to the force employed." Lowry, 858 F.3d at 1259 (internal quotation marks omitted). "In assessing alternatives, however, [courts] must not forget that officers are not required to use the least intrusive degree of force possible." Id. (cleaned up). With respect to warnings, "an important consideration in evaluating the [government's] interest in the use of force is whether officers gave a warning before employing the force." Id. (internal quotation marks omitted).
Applying the additional factors identified by the Ninth Circuit, a reasonable jury could find that the government's interest in using significant force was, at best, minimal. With respect to a warning, there is no dispute that the officers did not give plaintiff any warning before they broke his leg with the baton and smashed his face into the pavement. (See, generally, Dkt. 137-6, Exh. L, (Full Lujan Body Cam Video)). "[I]t is rarely necessary, if ever, for a police officer to employ substantial force without warning against an individual who is suspected only of minor offenses, is not resisting arrest, and, most important,
does not pose any apparent threat to officer or public safety." Young, 655 F.3d at 1166-67; see, e.g., Blankenhorn, 485 F.3d at 479-80 (noting the "lack of forewarning, the swiftness, and the violence with which the defendant officers threw themselves upon [plaintiff] could reasonably be considered 'provocative,' triggering [the plaintiff's] limited right to reasonable resistance"). Indeed, within seconds of the officers making contact with Ballew, they pinned him against his vehicle, attempted a patdown, and attempted to handcuff him without warning. (See Dkt. 137-2, SUF at P16; Dkt. 137-8, Exh., 1, Ballew Decl. at ¶ 12; Dkt. 137-11, Exh. 5A, File 8 (Dash Cam Clip)). As to whether less intrusive alternatives were available, no force was needed to confront an individual who was, under plaintiff's version of events, suspected of committing only two non-jailable vehicle code infractions. However, even if Ballew had resisted, as the officers assert, the officers had "a variety of less intrusive options at [their] disposal[.]" Young, 655 F.3d at 1165. For example, the officers "could have warned [Ballew] that he would be placed under arrest if he did not comply with the order[,]" "warned [Ballew] that disobedience would lead [the officers] to use force against him[,]" or "called for assistance[.]" Id. at 1165-66; see also id. at 1166 ("That [the defendant employed intermediate force] given the availability of other, less intrusive measures makes clear just how limited was the government's interest in the use of significant force.").
In short, viewing the evidence in the light most favorable to Ballew, a jury could find that he was not engaged in any violent or nonviolent criminal conduct — and did not pose any threat to the officers — when they proceeded to hit him with a baton with such force that they broke his leg, and smashed his face into the pavement. In other words, because any immediate threat to safety was either minimal or non-existent, the nature of the crimes at issue — vehicle code infractions — "provide[d] little, if any, basis for the officers' use of physical force[,]" Smith, 394 F.3d at 703, let alone the substantial and aggressive amount of force the officers inflicted upon Ballew.
3. The Balance of Interests.
"The final step of the excessive force inquiry requires [courts] to balance the gravity of the intrusion on [the individual's] Fourth Amendment rights against the City's need for that intrusion." Lowry, 858 F.3d at 1260. Here, viewing the facts in the light most favorable to plaintiff, the court concludes that the officers' use of force — which included multiple baton strikes, pushing plaintiff to the ground, and punching and smashing his face into the pavement — "involved a substantial and aggressive use of force." Rice, 989 F.3d at 1121. "In assessing the countervailing governmental interest that we must balance against that intrusion," the court finds that "all three factors traditionally used to assess the government's interest weigh against a finding that the force used in this case was reasonable." Young, 655 F.3d at 1166.
"First, the immediate threat to safety of the officer or others was negligible[.]" Young, 655 F.3d at 1166 (internal quotation marks and citation omitted). Viewing the evidence in the light most favorable to Ballew, he did not pose a threat before Esparza's initial baton blows. Moreover, "to the extent that [defendants] argue[] ... that [Esparza's] baton blows were justified by fears for [the officers'] safety, such arguments would, at most, suffice to raise a jury question as to whether it was reasonable for [the officers] to fear an assault" from a person suspected of non-jailable minor vehicle code infractions, and who held onto the baton only to avoid
being hit again. See id. ; (see Dkt. 137-2, SUF at P30-P31; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶ 19); (Dkt. 137-11, Exh. 5A, File 17 (Lujan Body Cam Clip)).
As for defendants' contentions that plaintiff violated Penal Code §§ 148(a)(1) and 245(c), plaintiff raises genuine factual disputes as to whether he was resisting arrest or intending to assault the officers. See supra at § II.A.2. Also, viewing the facts in Ballew's favor, this was a situation where the officers "creat[ed] [their] own sense of urgency" rather than "respond to a preexisting situation[,]" Nehad, 929 F.3d at 1135 (internal quotation marks omitted), and thus, it was the officers who escalated the situation unnecessarily.
"Second, the crimes involved in [plaintiff's] traffic stop were non-violent [vehicle code infractions] committed in a manner that gave no indication of dangerousness to [the officers] or others, and thus [were] not sufficiently 'severe' to justify the use of significant force." Young, 655 F.3d at 1166. "Finally, [plaintiff] was not actively resisting arrest or attempting to flee." Id. In addition, the fact that Esparza and Lujan "could have feasibly employed less intrusive measures prior to [their] use of force suggests that the government's interest" in the substantial and aggressive force inflicted upon Ballew "was extremely limited, if not altogether non-existent." Id.
In short, viewing the evidence in the light most favorable to plaintiff, a reasonable jury could find that the force used by Esparza and Lujan against Ballew — which resulted in a broken fibula, bloody facial injuries, and several deep gashes on his leg during an encounter that began as a result of suspected minor vehicle code infractions — violated Ballew's Fourth Amendment right against excessive force.
B. Clearly Established Law.
Having determined that there are disputed factual issues as to whether a constitutional right was violated, the court next turns to the second prong of the qualified immunity analysis.
"Even if a government official violates a constitutional right, the official is entitled to qualified immunity unless the right was clearly established at the time of the incident." Andrews, 35 F.4th at 718. "It is not enough that a rule be suggested by then-existing precedent; the rule's contours must be so well-defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted." City of Tahlequah, Oklahoma v. Bond ("Tahlequah"), 595 U.S. 9, 142 S.Ct. 9, 11, 211 L.Ed.2d 170 (2021) (per curiam) (internal quotation marks omitted); see District of Columbia v. Wesby, 583 U.S. 48, 138 S.Ct. 577, 590, 199 L.Ed.2d 453 (2018) (same). In determining whether a right is clearly established, there does not need to be 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, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011); Rivas-Villegas v. Cortesluna, 595 U.S. 1, 142 S.Ct. 4, 7-8, 211 L.Ed.2d 164 (2021) (same). "[T]he dispositive question is whether the violative nature of particular conduct is clearly established." Mullenix v. Luna, 577 U.S. 7, 12, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (internal quotation marks omitted); see J.K.J. v. City of San Diego, 42 F.4th 990, 1000 (9th Cir. 2021) (Rather than "take the extreme ... approach[of] requiring a prior case on all fours[,]" the qualified immunity "inquiry, instead, is whether the violative nature of the defendant's particular conduct is clearly established in light of the specific context of the case.") (cleaned up).
The Supreme Court has "repeatedly told courts not to define clearly established law at too high a level of generality."
Tahlequah, 142 S.Ct. at 11 (2021). "[S]pecificity is especially important in the Fourth Amendment context, where ... it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts." Mullenix, 577 U.S. at 12, 136 S.Ct. at 308. However, "[g]eneral statements of the law are not inherently incapable of giving fair and clear warning to officers[.]" White v. Pauly, 580 U.S. 73, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per curiam) (internal quotation marks omitted). That is, in some circumstances, "a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful." United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997) (internal quotation marks omitted); see Wesby, 138 S.Ct. at 590 ("[T]here can be the rare obvious case, where the unlawfulness of the officer's conduct is sufficiently clear even though existing precedent does not address similar circumstances.") (internal quotation marks omitted). In other words, "in an obvious case, the[] standards [set forth in Graham and Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)] can clearly establish the answer, even without a body of relevant case law." Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004) (per curiam) (internal quotation marks omitted).
Arguably, this is an obvious case, at least when viewing the facts in the light most favorable to plaintiff. Esparza and Lujan approached Ballew on the basis of non-jailable vehicle code infractions after Ballew had parked at a gas station. Ballew had already exited his car and was walking to the gas station's convenience store when Esparza and Lujan pulled their patrol car into the gas station behind Ballew's car. When Esparza approached and spoke to Ballew, he stopped, responded, and complied when Esparza walked him back to his car. It was at this point that the officers forced Ballew to the ground while Lujan struggled to handcuff him. After Ballew sat up and raised his hands in the air with his palms open and his fingers spread, Esparza suddenly struck him twice with a baton. Under these circumstances, no reasonable officer would believe that it was lawful to: apply significant aggressive force without warning against a person who was suspected of only non-jailable vehicle code infractions when he was approached outside of a gas station's convenience store, and who did not threaten or actively resist the officers when they restrained and handcuffed him. See, e.g., Rice, 989 F.3d at 1124 (The suspect's "behavior did not constitute an immediate threat to the officers; his traffic violation did not support the use of a significant level of force; [the suspect's] refusal to get out of his car did not constitute active resistance; and officers failed to attempt a less intrusive alternative."). Thus, viewing the evidence in the light most favorable to plaintiff, the standard under Graham clearly establishes that the force deployed during the first phase of the encounter was constitutionally excessive. See Rice, 989 F.3d at 1126 (citing a "body of relevant case law that together place[d] [the officers'] use of substantial force against a passively resisting person beyond debate") (internal quotation marks omitted); Brosseau, 543 U.S. at 199, 125 S.Ct. at 599; Hope v. Pelzer, 536 U.S. 730, 738, 122 S.Ct. 2508, 2514-15, 153 L.Ed.2d 666 (2002) ("As the facts are alleged by [plaintiff], the [Fourth] Amendment violation is obvious.").
In any event, it is clear that Lujan's and Esparza's alleged conduct under these circumstances was unlawful, as there is a
body of relevant case law sufficient to "put a prudent officer on notice[,]" Young, 655 F.3d at 1168 (internal quotation marks omitted), that baton strikes, punches, and other such uses of force against a person who is suspected of minor non-jailable infractions, poses little or no risk to others or police officers, and offers minimal or no resistance, violates that person's Fourth Amendment right to be free of excessive force, especially when no warning is given and less intrusive forms of force are available. For example, in Blankenhorn, the Ninth Circuit analyzed whether officers used excessive force when they "gang tackle[d]" a person who initially resisted arrest after being stopped for suspected misdemeanor trespass at a shopping mall. See 485 F.3d at 477-80. The plaintiff had a "known gang association" and had previously been banned from the mall. Id. at 478. At the beginning of the encounter, one officer "grabbed" the plaintiff's arm, but the plaintiff "pulled free" and "threw his driver's license on the ground[.]" Id. When the officer "asked [the plaintiff] to kneel down so he could be handcuffed," he "refused" to comply. Id. Three officers then responded by tackling the plaintiff, who "tried to stay on his feet while [the] officers wrestled with him" and "struggled for several moments before the officers brought him to the ground." Id. at 478, 480. Although the plaintiff "did not attempt to prevent the officers from handcuffing him" once he was on the ground, the officers "punched him several times[,]" "pushed his face into the pavement by shoving a knee into the back of his neck[,]" and "placed hobble restraints on his ankles[.]" Id. at 478.
The Ninth Circuit has defined a "gang tackle" in this context as "an incident where more than one officer uses bodily force to bring an individual to the ground[.]" Andrews, 35 F.4th at 718 n. 4 (internal quotation marks omitted).
The Blankenhorn court concluded that even though the plaintiff in that case, unlike Ballew, refused to comply with the officer's request that he kneel down, "a rational jury — drawing all reasonable inferences from the facts alleged — could conclude the [officers'] gang tackle [of the plaintiff] was unreasonable[,]" where "the severity of the alleged crime ... was minimal," the plaintiff "did not pose a serious threat to the officers' or others' safety[,]" and the plaintiff "did not actively resist being handcuffed[.]" See 485 F.3d at 478-79. The court also concluded that a rational jury could find that punches by one of the officers were unjustified, noting that, although the plaintiff had "initially resisted being arrested" and the officer had testified that his punches were an effort "to get [the plaintiff's] arms out from underneath him and secure the handcuffs[,]" the plaintiff had testified that "he never pinned his arms underneath his body[.]" Id. at 480 (internal quotation marks omitted). As for the plaintiff's resistance when officers tackled him, the court found that "[t]he lack of forewarning, the swiftness, and the violence with which the defendant officers threw themselves upon [the plaintiff] could reasonably be considered 'provocative,' triggering [the plaintiff's] limited right to reasonable resistance and thus making their later use of the hobble restraints unreasonable." Id. at 479-80.
Blankenhorn, which was decided in 2007, clearly established "that an officer violates the Fourth Amendment by tackling and piling on top of a 'relatively calm,' non-resisting suspect who posed little threat of safety without any prior warning and without attempting a less violent means of effecting an arrest." Andrews, 35 F.4th at 719; see, e.g., Davis, 478 F.3d at 1052 & 1057 (holding that an officer's conduct violated clearly established law where the
officer pushed a handcuffed suspect into a wall multiple times and punched him in the face while on the ground, noting that the suspect — although he had trespassed and obstructed the officer — was unarmed, in handcuffs, and never attempted to harm the officer). Here, Ballew, like the plaintiff in Blankenhorn, was suspected of only a minor offense. Indeed, Ballew's offenses — non-jailable vehicle code infractions for tinted windows and a missing front license plate — were even less serious than the trespass offense in Blankenhorn. "And other than the nature of the suspected crime, the facts of this case are either analogous to or more favorable to [Ballew] than the facts in Blankenhorn." Andrews, 35 F.4th at 719. Ballew posed no safety threat and was not actively resisting when Esparza and Lujan forced him to the ground and struck him with a baton — a much more substantial type of force than the force utilized by the officers in Blankenhorn. Moreover, the significant force that Esparza and Lujan inflicted upon Ballew was done without prior warning or any attempt to use a lesser means of force. As for Ballew's reaction to Esparza's initial blows by holding onto the baton in self-defense, the "swiftness" and "violence" of "the officers' precipitate actions ... could reasonably be considered 'provocative,'" thus triggering plaintiff's "limited right to reasonable resistance" and making the officers' subsequent use of force unreasonable. See Blankenhorn, 485 F.3d at 479-80.
Similarly, in Young, the Ninth Circuit explained that, as of 2007, "well-established principles of Fourth Amendment law sufficed to put [an officer] on notice that the force used was excessive — that to pepper spray an individual and strike him with a baton for disobeying a traffic officer's order to get back in his car ... constituted a violation of the Fourth Amendment[.]" 655 F.3d at 1168. In Young, the plaintiff was stopped for not wearing a seatbelt. Id. at 1159. The plaintiff exited his vehicle to provide the officer with his registration, but refused to comply when the officer ordered him to return to his vehicle. See id. Instead, the plaintiff "verbally protest[ed]" the officer's orders and sat on the sidewalk curb. See id. at 1159 & 1170. Soon thereafter, the officer, without warning, "approached [the plaintiff] from behind and pepper sprayed him." Id. at 1159 (footnote omitted). As the plaintiff "rose to his feet and attempted to back away[,]" the officer struck him with his baton and "order[ed] him to get on the ground." Id. at 1160. The plaintiff refused to comply and continued objecting to the officer's use of force. See id. After a second officer arrived on the scene, the plaintiff laid down on the ground and was handcuffed, and the first officer struck him again with the baton while he was on the ground. See id.
The Young court noted that, "to the extent that [the officer who struck plaintiff with his baton] argued in the district court that his baton blows were justified by fears for his safety, such arguments would, at most, suffice to raise a jury question as to whether it was reasonable for him to fear an assault from a man who had failed to wear his seatbelt and was armed only with broccoli and a tomato — a man who had not in any way threatened him or indicated any propensity for violent behavior." 655 F.3d at 1166. The court held that "baton blows" are a type of force "capable of inflicting significant pain and causing serious injury." Id. at 1161; see id. at 1162 (noting that baton strikes are "known to cause serious pain and to lead in some cases to serious physiological consequences"). The Young court noted evidence "show[ing] that California law enforcement officers are taught that a baton is a deadly weapon that can cause deep bruising as well as blood clots capable of
precipitating deadly strokes, and that batons should therefore be used only as a response to aggressive or combative acts." Id. at 1162 (internal quotation marks omitted). As in this case, the plaintiff in Young "assert[ed] that one of [the officer's] baton blows against him took place as [he] lay face-first on the ground." Id. at 1164. "Were a jury to deem this assertion credible[,]" the Young court stated, "it could readily conclude that the force used was far in excess of any safety concerns, reasonable or otherwise, that might have motivated [the officer's] alleged conduct." Id.
With respect to the severity of the crime at issue, the Young court determined that the plaintiff's "failure to obey a police officer's lawful instructions" in violation of Penal Code § 148(a)(1) provided probable cause to arrest him, 655 F.3d at 1170, but neither that violation nor plaintiff's initial "run-of-the-mill traffic violation" justified the baton strikes. See id. at 1164-65. The court explained that "[w]hen a suspect's disobedience of a police officer takes the form of passive noncompliance that creates a minimal disturbance and indicates no threat, immediate or otherwise, to the officer or others, it will not, without more, give rise to a governmental interest in the use of significant force." Id. at 1165. Further, to the extent the defendants in Young may have portrayed the plaintiff's behavior — after the plaintiff was pepper sprayed — as a threat to the officers, the court explained that under Ninth Circuit law, "police conduct similar to [that of the officer who pepper sprayed the plaintiff] qualifies as sufficiently provocative to trigger this limited right of resistance, and a jury could easily conclude that [the plaintiff's] alleged conduct of 'moving' and 'circling' — far from indicating any objective safety threat to [the officer] — was simply a reasonable response from an individual who was pepper sprayed from behind without warning while sitting on the sidewalk." 655 F.3d at 1164 (citing Blankenhorn, 485 F.3d at 479-80).
The Young court ultimately held that it was "unreasonable to use significant force against a suspect who was suspected of a minor crime, posed no apparent threat to officer safety, and could be found not to have resisted arrest[.]" 655 F.3d at 1168; see Rice, 989 F.3d at 1127 (recognizing that "the right to be free from the application of non-trivial force for engaging in mere passive resistance was clearly established before December 2011") (internal quotation marks omitted); Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) ("Every police officer should know that it is objectively unreasonable to [use significant force on] ... an unarmed man who: has committed no serious offense, ... has been given no warning of the imminent use of such a significant degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officer or other individuals."); see, e.g., Redmond v. San Jose Police Dep't, 2017 WL 5495977, *21 (N.D. Cal. 2017) ("Long before 2013, [Graham, Blankenhorn, and Young] made clear to a reasonable officer that using force (including punching) against a suspect who did not commit a serious crime, did not pose a threat, and did not resist arrest or attempt to flee is objectively unreasonable under the Fourth Amendment."); Santiago v. Hawaii, 2018 WL 340027, *5 (D. Haw. 2018) (denying qualified immunity in excessive force case where officer "employed more than minimal force where even minimal force was not required").
As another example, in Winterrowd v. Nelson, 480 F.3d 1181 (9th Cir. 2007), the Ninth Circuit held that "[n]o reasonable officer could conclude that an individual suspected of a license plate violation posed a threat that would justify slamming him against the hood of a car." Id. at 1184.
There, the plaintiff failed to produce a valid registration after officers "suspected his plates were invalid" and pulled him over during "an ordinary traffic stop." Id. at 1182-83. The plaintiff was "belligerent" and took the position that "he was not required to register his vehicle." Id. at 1185. The officers then "ordered [the plaintiff] out of his vehicle" and "attempted to perform a routine pat-down for officer safety." Id. at 1182. As the plaintiff faced the police car, one of the officers ordered him to put his hands behind his back. In response, the plaintiff explained that a shoulder injury prevented him from doing so. See id. at 1182-83. The officers then forced the plaintiff onto the hood of his car, grabbed his right arm, and "pump[ed] his arm up and down[.]" Id. at 1183. Although the plaintiff was not "physically abusive" towards the officers, he was "verbally abusive" and called them "jackbooted thugs," "armed mercenaries" and "[c]owards." Id. at 1185 (internal quotation marks omitted) (brackets in original).
Again, Ballew was not stopped or otherwise pulled over, as he was already parked at a gas station and was walking towards the station's convenience store by the time Lujan and Esparza approached him. (See Dkt. 137-2, SUF at P9-P10; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 7-8; Dkt. 137-11, Exh. 5A, File 6 (Dash Cam Clip)).
Thus, the law was also clearly established at the time of the incident in this case that plaintiff had a right to verbally challenge the officers. See Velazquez, 793 F.3d at 1019 ("Ninth Circuit law ... clearly establishes the right verbally to challenge the police[.]") (internal quotation marks omitted). As in this case, the plaintiff in Winterrowd maintained that he was not resisting the officers and that any "objections were entirely verbal." See 480 F.3d at 1183 & 1185. And while Ballew does not claim that he had an injury that prevented him from putting his arm behind his back, he does state — which the video tends to support — that he complied with the officers' commands by offering his hands to be handcuffed before Lujan pushed him to the ground and Esparza struck him with the baton for the first time. (See Dkt. 137-2, SUF at P26; Dkt. 137-8, Exh. 1, Ballew Decl. at ¶¶ 16-17; Dkt. 137-11, Exh. 5A, File 14 (Lujan Body Cam Clip)); see, e.g., Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (law was clearly established that a federal agent investigating "nonviolent offenses" used excessive force when he "grabbed [the plaintiff] by her arms, forcibly threw her to the ground, and, twisting her arms, handcuffed her" after she "objected vociferously to the search" and "passively resisted the handcuffing," but "did not pose a safety risk and made no attempt to leave") (internal quotation marks omitted).
Although defendants maintain that plaintiff "actively resisted a pat-down[,]" "struggled throughout, including ... getting up after being told not to get up[,]" and "grabbed" the baton from Esparza, (Dkt. 137-1, Joint Br. at 15), these are factual disputes for the jury to decide.
Inevitably, there are factual differences between the foregoing cases and the instant case, but a plaintiff need not identify "a case directly on point" for a right to be clearly established. See White, 137 S.Ct. at 551. Here, the precedent set forth in Blankenhorn, Winterrowd and Young is sufficient to "move [this] case beyond the otherwise hazy borders between excessive and acceptable force[.]" Rivas-Villegas, 142 S.Ct. at 9. In other words, existing precedent "placed the statutory or constitutional question beyond debate[.]" Mullenix, 577 U.S. at 12, 136 S.Ct. at 308 (internal quotation marks omitted). "This conclusion is further buttressed by [Ninth Circuit] precedent clearly establishing that a suspect's
previous violent conduct does not justify non-trivial force where the suspect poses no immediate safety threat." Andrews, 35 F.4th at 719 (emphasis in original). Thus, even under defendants' version of events — which is not the applicable standard — plaintiff's alleged act of "stripping a baton" from Esparza, (see Dkt. 137-1, Joint Br. at 45) (emphasis omitted), does not justify the force the officers applied after plaintiff was subdued and no longer holding the baton. See, e.g., Hopkins, 958 F.2d at 883-84, 887 (concluding that even though the suspect had struck the officer with the officer's baton, a reasonable jury could find that the officer's use of deadly force was not justified when the suspect no longer wielded the baton because "[t]he baton — the one that had caused [the officer] to fear for his life — was gone").
In sum, it was clearly established before the events of this case that the Fourth Amendment prohibits officers from using significant force, including baton strikes, against a person suspected of minor vehicle code infractions "without providing any warning where the suspect is not posing an immediate danger to anyone, resisting arrest, or trying to flee unless the officers first attempt a less intrusive means of arrest." Andrews, 35 F.4th at 720. In addition, as for the force applied after plaintiff let go of the baton, the law was also clearly established at the time of the incident that striking a suspect with a baton or slamming his face into the pavement when he is subdued and not resisting is unlawful. See Young, 655 F.3d at 1160, 1164 (concluding that a reasonable jury could find an officer used excessive force when he struck the plaintiff with a baton while the plaintiff "lay face-first on the ground" and did not pose a safety threat); Zion v. Cty. of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017) (explaining that the Ninth Circuit has "held that continued force against a suspect who has been brought to the ground can violate the Fourth Amendment" and collecting cases); Motley v. Parks, 432 F.3d 1072, 1088 (9th Cir. 2005) (en banc) ("The use of [] force against a person who is helpless or has been subdued is constitutionally prohibited."), overruled on other grounds by United States v. King, 687 F.3d 1189 (9th Cir. 2012) (en banc); Hyde, 23 F.4th at 872 ("Our cases clearly establish that the use of intermediate force ... on a restrained and non-resisting suspect is unreasonable.").
In short, after considering the totality of the circumstances, see Bryan, 630 F.3d at 826, the court concludes there is more than sufficient clearly established law that prohibits the officers' actions in this case. Defendants are therefore not entitled to qualified immunity on plaintiff's excessive force claim. For the foregoing reasons, summary judgment is denied as to plaintiff's excessive force claim.
III. UNLAWFUL SEIZURE.
Defendants argue that plaintiff's unlawful seizure claim should be dismissed because plaintiff "affirmatively admits that he was in violation of the Vehicle Code prior to being stopped by Officers Lujan and Esparza." (Dkt. 137-1, Joint Br. at 19). Because plaintiff acknowledges that the vehicle code infractions provided a lawful
Plaintiff's Fourth Amendment claim for unlawful seizure, which is evaluated based on whether the officers had probable cause, see Whren, 517 U.S. 806, 810-13, 116 S.Ct. 1769, 1772-74, is distinct from his equal protection claim. As the Supreme Court explained in Whren, "the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment." Id. at 813, 116 S.Ct. at 1774.
basis for the seizure, (see, e.g., Dkt. 126, TAC at ¶ 74) ("Defendants had probable cause to detain Plaintiff for driving a car with two equipment violations."), the court agrees with defendants. Accordingly, summary judgment is granted in defendants' favor as to plaintiff's unlawful seizure claim.
IV. FALSIFICATION OF REPORTS.
Defendants seek summary judgment on plaintiff's claim "that he was deprived of his 'right to be free from falsified police reports.'" (Dkt. 137-1, Joint Br. at 25) (quoting Dkt. 126, TAC at ¶ 77).
"The Fourteenth Amendment prohibits the deliberate fabrication of evidence by a state official." Spencer v. Peters, 857 F.3d 789, 793 (9th Cir. 2017); see Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc) ("[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government."). To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that
(1) the defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the plaintiff's deprivation of liberty. To establish the second element of causation, the plaintiff must show that (a) the act was the cause in fact of the deprivation of liberty, meaning that the injury would not have occurred in the absence of the conduct; and (b) the act was the proximate cause or legal cause of the injury, meaning that the injury is of a type that a reasonable person would see as a likely result of the conduct in question.
Spencer, 857 F.3d at 798 (internal quotation marks and citations omitted); see Caldwell v. City & Cty. of San Francisco, 889 F.3d 1105, 1115 (9th Cir. 2018) (same); Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) ("In a § 1983 action, the plaintiff must [] demonstrate that the defendant's conduct was the actionable cause of the claimed injury.").
Plaintiff points to two allegedly false statements in the officers' post-incident reports that he claims were required to book him for a violent felony he did not commit, and that "result[ed] in his transport to the Los Angeles County Jail on $50,000 bail and an additional 30 hours in custody." (Dkt. 137-1, Joint Br. at 27). However, those statements, on their own, are insufficient, and plaintiff has not otherwise put forth sufficient evidence to raise an issue of fact as to whether the two allegedly false statements were the "cause in fact" of his detention. See Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 ("The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to survive summary judgment.). Accordingly, summary judgment is granted in defendants' favor as to plaintiff's false reports claim.
V. EXCESSIVE BAIL.
The Eighth Amendment provides that "[e]xcessive bail shall not be required[.]" U.S. Const. amend. VIII. "To determine whether the Excessive Bail Clause has been violated, [courts] look to the valid state interests bail is intended to serve for a particular individual and judge whether bail conditions are excessive for the purpose of achieving those interests." Galen v. Cnty. of Los Angeles, 477 F.3d 652, 660 (9th Cir. 2007). "The state may not set bail to achieve invalid interests, nor in an amount that is excessive in relation to the valid interests it seeks to achieve." Id. (citations omitted).
A police officer may be liable under the excessive bail clause if he or she
was "the actual and proximate cause" of the allegedly excessive bail. See Galen, 477 F.3d at 663-64. However, "a judicial officer's exercise of independent judgment in the course of his official duties is a superseding cause that breaks the chain of causation linking law enforcement personnel to the officer's decision[.]" Id. at 663 (citations omitted). To overcome this causation hurdle, a plaintiff "must show that [the officers] deliberately or recklessly misled the" judicial officer setting bail, "and that his bail would not have been unconstitutionally excessive but for the officers' misrepresentations." Id. at 663-64.
Here, plaintiff's claim appears to be that because he was falsely arrested for violating Penal Code § 245(c), the imposition of any bail violated his rights under the Eighth Amendment. (See, e.g., Dkt. 137-1, Joint Br. at 30) ("The booking on false felony charges caused Mr. Ballew's bail to be set at $50,000 and delayed his release from custody for about 30 hours."). However, this assertion is insufficient to raise an issue of fact as to causation. See Harris v. Cnty. of Orange, 17 F.4th 849, 856 (9th Cir. 2021) (noting that a "conclusory assertion is not sufficient to raise a genuine issue of material fact, as is required to survive a summary judgment motion."). In other words, plaintiff has not put forth sufficient evidence to establish that the officers "deliberately or recklessly misled the" judicial officer that set bail, or "that [plaintiff's] bail would not have been unconstitutionally excessive but for the officers' misrepresentations." See Galen, 477 F.3d at 663-64; (see, generally, Dkt. 137-1, Joint Br. at 29-30). Also, it is worth noting that the subject bail amount corresponds to the "presumptive bail" for a violation of Penal Code § 245(c). (See Dkt. 137-2, SUF at D208; Dkt. 137-7, Exh. Y, 2017 Felony Bail Schedule, Superior Court of California, County of Los Angeles at 7). In short, summary judgment is granted in defendants' favor as to plaintiff's excessive bail claim.
VI. MONELL LIABILITY.
The court hereby incorporates the equal protection and excessive force discussions set forth above. See supra at §§ I. & II.
"While local governments may be sued under § 1983, they cannot be held vicariously liable for their employees' constitutional violations." Gravelet-Blondin, 728 F.3d at 1096 (citing Monell, 436 U.S. at 690 & 694, 98 S.Ct. at 2035 & 2037); see Velazquez, 793 F.3d at 1027 ("[A municipality] cannot be held liable ... on a respondeat superior theory.") (internal quotation marks omitted) (emphasis in original). However, a local government may be liable under Monell even if the individual officers "are exonerated on the basis of qualified immunity, because they were merely negligent, or for other failure of proof." Richards, 39 F.4th at 574 (internal quotation marks omitted).
"Under Monell, a local government body can be held liable under § 1983 for policies of inaction as well as policies of action." Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014). "A policy of action is one in which the governmental body itself violates someone's constitutional rights, or instructs its employees to do so; a policy of inaction is based on a government body's failure to implement procedural safeguards to prevent constitutional violations." Id. (internal quotation marks omitted); see Waggy v. Spokane Cty., 594 F.3d 707, 713 (9th Cir. 2010).
To challenge a policy of action, a plaintiff must "identify a municipal 'policy' or 'custom' that caused the plaintiff's injury."
Bd. of Cty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997). The policy must be an "official policy[,]" meaning an "act[] which the municipality has officially sanctioned or ordered" or a "deliberate choice to follow a course of action ... made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. Cincinnati, 475 U.S. 469, 480 & 483, 106 S.Ct. 1292, 1298 & 1300, 89 L.Ed.2d 452 (1986). Under this approach, "[t]he existence of a constitutional injury ... is not dependent on the lawfulness of [the officer's] conduct, but instead turns on the reasonableness of the city's general policy[.]" Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994); see, e.g., id. at 1445 ("[M]unicipal liability need not be predicated on an 'unreasonable' action on [the officer's] part. A jury could conceivably decide ... that although the officer's on-the-scene decision to use canine force was reasonable under the circumstances, the city was nevertheless at fault for providing its officers with dogs trained to bite and seize all concealed suspects regardless of their efforts to surrender."); see Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1185 (9th Cir. 2002), overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (en banc) (describing and listing examples of this "direct path to municipal liability").
In inaction cases, "the plaintiff must show, first, that the policy amounts to deliberate indifference to the plaintiff's constitutional right. This requires showing that the defendant was on actual or constructive notice that its omission would likely result in a constitutional violation." Jackson, 749 F.3d at 763 (internal quotation marks, citations, and alterations omitted). "Second, the plaintiff must show that the policy caused the violation in the sense that the municipality could have prevented the violation with an appropriate policy." Id. (internal quotation marks omitted); see Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (same).
Here, plaintiff asserts two theories of Monell liability: (1) maintenance of an unconstitutional custom, policy, or practice with respect to race-based traffic stops; and (2) ratification of Esparza's and Lujan's use of force. (See Dkt. 126, TAC at ¶¶ 82-90); (Dkt. 137-1, Joint Br. at 36-39).
A. Custom, Policy, or Practice.
"As an initial matter, [plaintiff] need not show evidence of a policy or deficient training; evidence of an informal practice or custom will suffice." Nehad, 929 F.3d at 1141; Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). If a plaintiff proves the existence of an unconstitutional policy or custom, the municipality may be liable, "irrespective of whether official policy-makers had actual knowledge of the practice at issue." Navarro v. Block, 72 F.3d 712, 714-15 (9th Cir. 1995) (internal quotation marks omitted). "Normally, the question of whether a policy or custom exists would be a jury question." Trevino, 99 F.3d at 920.
Here, plaintiff has put forth evidence, which defendants made no effort to rebut, (see, generally, Dkt. 137-1, Joint Br. at 8-9 & 30); (Dkt. 143, Def. Supp. Br. at 1-3), that the City and the PPD have a custom, policy or practice of pretextual, racially discriminatory traffic stops. As noted earlier, the expert testimony and statistical evidence derived from the FI cards produced by the City and the PPD in discovery, (see Dkt. 137-9, Noble Decl. at ¶¶ 52-60), indicate that the SES unit almost exclusively targeted Black and Latino motorists for traffic stops, which supports an inference of purposeful discrimination.
See supra at § I. And with respect to causation, the officers were assigned to the SES unit and were conducting gang suppression patrol on the night in question. (See Dkt. 137-2, SUF at P1; Dkt. 137-10, Exh. 4B, Lujan Depo. at 63); Waggy, 594 F.3d at 713 (noting that under an inaction policy claim, "a plaintiff can allege that through its omissions the municipality is responsible for a constitutional violation committed by one of its employees") (internal quotation and alteration marks omitted); see also Brown, 520 U.S. at 405, 117 S.Ct. at 1389 ("[T]he conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the [plaintiff's] injury[.]").
Plaintiff is not, as defendants suggest, attempting to impose Monell liability "predicated on isolated or sporadic incidents." (Dkt. 137-1, Joint Br. at 31) (quoting Trevino, 99 F.3d at 918). Here, nearly all of the traffic stops conducted by the SES unit were executed against Black and Latino individuals. (See Dkt. 137-9, Noble Decl. at ¶ 54) (noting that 98.9% of traffic stops by the SES unit involved Black or Latino motorists). A reasonable jury could therefore find that the SES unit's practices were "persistent and widespread," and amounted to the "deliberate indifference" necessary to trigger municipal liability. See Connick v. Thompson, 563 U.S. 51, 62, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011) ("Policymakers' continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action — the deliberate indifference — necessary to trigger municipal liability.") (internal quotation marks omitted). In short, viewing the evidence in the light most favorable to plaintiff, a reasonable jury could conclude that the City and the PPD had an informal policy or practice of pretextual traffic stops motivated by race. See, e.g., Nehad, 929 F.3d at 1141-42 (evidence that created a triable issue of fact "as to the existence of an informal practice or policy" precluded summary judgment on Monell claim); see Gibson, 290 F.3d at 1194-95 ("Whether a local government has displayed a policy of deliberate indifference to the constitutional rights of its citizens is generally a jury question."). Accordingly, summary judgment is denied as to plaintiff's Monell claim based on a policy, practice, or custom of pretextual stops.
B. Ratification.
"[A] local government may be held liable under [§] 1983 when the individual who committed the constitutional tort was an official with final policy-making authority or such an official ratified a subordinate's unconstitutional decision or action and the basis for it." Gordon v. Cnty. of Orange, 6 F.4th 961, 974 (9th Cir. 2021) (internal quotation marks omitted). "If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final." Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010), overruled on other grounds by Castro, 833 F.3d 1060, (internal quotation marks omitted). However, a policymaker's "fail[ure] to overrule the unconstitutional discretionary acts of subordinates" does not give rise to Monell liability. See Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992); Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014) ("Ratification ... generally requires more than acquiescence."), rev'd in part on other grounds, City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015). "There must ... be evidence of a conscious, affirmative choice
on the part of the authorized policymaker." Clouthier, 591 F.3d at 1250 (internal quotation marks omitted). In other words, "[a] local government can be held liable under § 1983 only where a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Id. (internal quotation marks omitted).
Here, it is undisputed that Sanchez was a final policymaker for purposes of plaintiff's ratification-based Monell claim. (See, e.g., Dkt. 137-1, Joint Br. at 37) ("Defendant Chief Phillip Sanchez had the power to hire and fire PPD officers."). Also, as the court previously found, "the City has [] admitted that the officers' conduct was pursuant to municipal policy[.]" (Dkt. 158, Court's Order of November 12, 2020, at 13); (see id. at 8) ("[T]he City has now taken the position that the officers complied with municipal policy[.]").
Plaintiff asserts that Sanchez permitted the officers to continue patrolling after the incident, called the District Attorney's office to complain after prosecutors declined to file criminal charges against Ballew, and allowed Esparza and Lujan to continue accruing overtime and participating in field assignments even after Sanchez transferred them to desk duty. (See Dkt. 137-1, Joint Br. at 37-38). Plaintiff also asserts that the PPD did not interview the officers about the incident or conduct a formal review for at least a year and a half after it occurred. ( See id. at 38).
In April 2021, the PPD completed its internal affairs investigation and concluded that, except for Esparza's failure to turn on his body camera, the officers did not violate the PPD's policies. See "Pasadena Police Officers Who Beat Christopher Ballew Cleared By Investigation, Return to Work," Pasadena Star News (April 5, 2021), https://www.pasadena star news.com/2021/04/05/pasadena-police-officers-who-beat-christopher-ballew-cleared-by-investigation-return-to-work (quoting from PPD statement regarding the investigation); see also Ritter v. Hughes Aircraft Co., 58 F.3d 454, 458 (9th Cir. 1995) (district court did not abuse its discretion by taking judicial notice of newspaper article); Beeman v. TDI Managed Care Servs., Inc., 2016 WL 11637594, *12 n. 6 (C.D. Cal. 2016) ("A court may take judicial notice of information in newspaper articles.") (cleaned up).
Although much of the evidence relevant to this claim appears to be undisputed, (see Dkt. 137-2, SUF at P87-P90), the parties disagree about what inferences to draw from the circumstances surrounding Sanchez's involvement, especially his phone call to the District Attorney regarding the District Attorney's decision not to charge plaintiff with a crime. ( See id. at SUF at P88); (Dkt. 137-10, Exh. 4D, Sanchez Depo. at 122). Here, taking the evidence and drawing all reasonable inferences therefrom in the light most favorable to plaintiff, as the court must do, a reasonable jury could find that Sanchez ratified the officers' misconduct. See, e.g., Hernandez v. City of San Jose, 241 F.Supp.3d 959, 979 (N.D. Cal. 2017) (denying motion to dismiss where plaintiff sufficiently alleged that the police chief "made statements ... tending to show that he endorsed or approved the unconstitutional conduct of individual officers[,]" which "evinces ratification") (cleaned up). Accordingly, summary judgment is denied as to plaintiff's Monell claim based on a ratification theory of liability.
VII. SUPERVISORY LIABILITY.
"A supervisory official is liable under § 1983 so long as there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional
violation." Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 798 (9th Cir. 2018) (internal quotation marks omitted); Nehad, 929 F.3d at 1141 n. 14 (same). "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." Rodriguez, 891 F.3d at 798 (cleaned up). Accordingly, a supervisor may be liable in his individual capacity "for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others." Id. (internal quotation marks omitted).
Plaintiff argues that defendants Sanchez and Bundy were "deliberate[ly] indifferen[t] based upon [their] knowledge of and acquiescence in unconstitutional conduct by [their] subordinates." (Dkt. 137-1, Joint Br. at 39) (internal quotation marks omitted). First, plaintiff asserts that the "FI card data demonstrates PPD supervisors directed Officers Lujan and Esparza and other SES 'gang' officers to use pretexts for traffic stops with the purpose of detaining, searching and cataloguing African American and Hispanic motorists." (Id.). According to plaintiff, this constitutes "a classic example of 'setting in motion' a series of acts that will lead to constitutional deprivations." (Id.). Second, plaintiff argues that Bundy should have terminated plaintiff's arrest and released him from custody given that there was no basis for the arrest. ( See id. at 40).
With respect to Bundy, a jury could find, given his role as a supervisor in the SES unit, (see Dkt. 137-2, SUF at D38; Dkt. 137-5, Exh. F, Bundy Decl. at ¶ 4), that he knew and refused to terminate "a series of acts by [the SES unit, i.e. pretextual traffic stops], which [he] knew or reasonably should have known would cause [the SES unit] to inflict ... constitutional injur[ies.]" See Rodriguez, 891 F.3d at 798. As to Sanchez, plaintiff has not put forth sufficient evidence to raise an issue of fact as to whether he was personally involved in the alleged constitutional violations. (See, generally, Dkt. 137-1, Joint Br. at 39-40). Accordingly, summary judgment as to plaintiff's claim for supervisory liability is granted in defendants' favor as to Sanchez and denied as to Bundy. See, e.g., Sebastian Int'l, Inc. v. Russolillo, 151 F.Supp.2d 1215, 1217 (C.D. Cal. 2001) ("A court may grant summary adjudication on specific issues without granting summary judgment as to the entire cause of action so as to narrow the issues for trial.") (citation omitted).
Because summary judgment is granted in defendants' favor on plaintiff's unlawful seizure claim, see supra at § III., plaintiff's supervisory liability claim against Bundy is limited to the equal protection claim. As noted above, defendants did not assert qualified immunity with respect to plaintiff's equal protection claim. See supra at § II. n. 17.
VIII. CALIFORNIA CIVIL CODE §§ 51.7 AND 52.1.
A. Ralph Act Claim.
The Ralph Act provides, in relevant part, that "[a]ll persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race[.]" Cal. Civ. Code § 51.7(a). Defendants contend that "there is no evidence that race played any role in the encounter" with plaintiff. (Dkt. 137-1, Joint Br. at 40). As discussed above, however, Ballew has put forth sufficient evidence to support a
finding that the officers "stopped" him because of his race. See supra at §§ I. & VI.A. Accordingly, summary judgment on plaintiff's Ralph Act claim is denied.
B. Bane Act Claim.
The Bane Act authorizes a claim against those who interfere with an individual's constitutional rights "by threat, intimidation, or coercion[.]" Cal. Civ. Code § 52.1(b). "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.'" Roberson v. City of Hawthorne, 516 F.Supp.3d 1033, 1046 (C.D. Cal. 2021) (quoting Reese v. Cnty of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018)); Rodriguez, 891 F.3d at 802 (Bane Act violation requires "a showing of the defendant's specific intent to violate the plaintiff's constitutional rights"). "The specific intent requirement can be satisfied by 'a reckless disregard for a person's constitutional rights.'" Roberson, 516 F.Supp.3d at 1046 (quoting Reese, 888 F.3d at 1045). Other than specific intent, "the elements of the excessive force claim under § 52.1 are the same as under § 1983[.]" Reese, 888 F.3d at 1044 (internal quotation marks omitted).
Although plaintiff's Bane Act claim is predicated on multiple constitutional violations, (see Dkt. 126, TAC at ¶ 91), defendants' Motion focuses on plaintiff's excessive force claim. (See Dkt. 137-1, Joint Br. at 40-41). Specifically, defendants contend "[t]here is no evidence that the officers had specific intent to use unreasonable force[,]" and "the officers attested that [force] was used in order to overcome resistance." (Id. at 41).
However, as discussed above, see supra at § II.A.2.c., there are triable issues of fact as to whether plaintiff was resisting when the officers used force, which included baton strikes and slamming Ballew's face onto the pavement. See, e.g., Roberson, 516 F.Supp.3d at 1047 (finding that "a reasonable jury could conclude that [the officers'] violent arrest was so excessive and unnecessary that it amounted to a reckless disregard of [plaintiff's] rights" for purposes of satisfying specific intent requirement for Bane Act claim). Accordingly, summary judgment on plaintiff's Bane Act claim is denied.
IX. BATTERY AND FALSE IMPRISONMENT.
The same standards apply to state law battery and false arrest claims and § 1983 claims premised on excessive force and false arrest. See Brown v. Ransweiler, 171 Cal.App.4th 516, 527, 89 Cal.Rptr.3d 801 (2009) ("A state law battery claim is a counterpart to a federal claim of excessive use of force."); Roberson, 516 F.Supp.3d at 1047 ("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.") (internal quotation marks omitted); Dragna v. White, 45 Cal.2d 469, 471, 289 P.2d 428 (1955) ("A police officer who makes an arrest without a warrant and without justification may be held civilly liable for false arrest and imprisonment.").
Given that the court has already determined that there are triable issues of fact as to whether the force used against plaintiff was unreasonable, see supra at § II., summary judgment is denied as to plaintiff's battery claim. See, e.g., Nelson v. City of Davis, 709 F.Supp.2d 978, 992 (E.D. Cal. 2010) ("Because the same standards apply to both state law assault and battery and Section 1983 claims premised on constitutionally prohibited excessive
force, the fact that Plaintiff's 1983 claims under the Fourth Amendment survive summary judgment also mandates that the assault and battery claims similarly survive."). And because the court has granted summary judgment as to plaintiff's Fourth Amendment unlawful seizure claim, see supra at § III., summary judgment is granted in defendants' favor on plaintiff's false imprisonment claim.
CONCLUSION
Based on the foregoing, IT IS ORDERED THAT:
1. Defendants' Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment (Document No. 137) is granted in part and denied in part.
2. Summary judgment is granted in favor of defendants with respect to the following claims: (a) unlawful seizure, in violation of the Fourth Amendment; (b) falsification of records, in violation of the Fourteenth Amendment; (c) excessive bail, in violation of the Eighth Amendment; (d) supervisory liability as to Sanchez; and (e) false imprisonment.
3. Defendants' Motion is denied in all other respects.