Opinion
No. C 03-02169 WHA.
August 17, 2004
INTRODUCTION
This civil-rights case was brought by plaintiff Erris Edgerly against the City and County of San Francisco, two San Francisco police officers David Goff and John Conefrey, and a San Francisco police sergeant Frederick Schiff, after plaintiff was arrested for trespassing. Each party has moved for summary judgment and this order addresses all parties' motions. All parties in this matter are represented by counsel. For the reasons set forth below, Schiff's motion for summary judgment is GRANTED, the City and County of San Francisco's motion for summary judgment is GRANTED as to Section 1983 claim, and the officers' motion for summary judgment is DENIED, and plaintiff's motion for partial summary judgment is DENIED.
STATEMENT
On August 29, 2000, plaintiff Erris Edgerly was at the Martin Luther King/Marcus Garvey housing co-op, located at 1651 Eddy Street in San Francisco, California (Edgerly Dep. 25:13-25). While on patrol, Officers John Conefrey and David Goff of the San Francisco Police Department drove by the co-op and saw plaintiff standing around the co-op's playground in the daytime (Conefrey Dep. 21:3-22:5; 21:22-23; Edgerly Dep. 25:18-19). They continued on their patrol and returned within minutes to find plaintiff still standing in the same location (Conefrey Dep. 22:6-11). The officers stopped the car and approached plaintiff ( id. at 22:15-17).During the ensuing conversation between plaintiff and the officers, there is a dispute as what plaintiff told the officers. Plaintiff recalls answering "no" to the officers' question of whether he lived at the co-op and telling the officers that he was waiting for his friend, a co-op resident (Edgerly Dep. 28:16-24; 44:1-4). According to the officers' version of the facts, however, Conefrey asked plaintiff what he was doing and plaintiff said he was "just chilling" (Goff Dep. 11:1-3). Conefrey then asked plaintiff if "he was visiting anybody, if he was waiting for anyone. And he didn't respond or give an answer to any of that, just that he was chilling" (Conefrey Dep. 22:25-23:3). Conefrey had encountered plaintiff in the past and knew he did not live at the co-op ( id. at 18:1-15; 22:14). The main discrepancy is that plaintiff alleges he told the officers that he was waiting for a co-op resident whereas the officers claim he did not.
The officers arrested plaintiff for trespassing, in violation of California Penal Code Section 602( l) (Goff Dep. 11:5; 12:3-6). The following was Goff's basis, during a later deposition, for arresting plaintiff: "the fact that he was loitering there, the fact that he did not live there, the fact that [no trespassing] signs were posted, and the fact that with recent meetings with management, we had been requested to enforce the 602(L) [sic] signs that are posted" ( id. at 41:4-10). The signs that Goff referenced said, "No trespassing. Violators are subject to arrest per 602(L)PC [sic]" ( id. at 15-17). Goff further indicated that the co-op management had requested that the officers arrest people who did not live in the co-op ( id. at 62:21-24). Accordingly, the officers arrested plaintiff "because he [didn't] live there" ( id. at 62:20).
After the arrest, plaintiff was pat searched, where he was checked for weapons and contraband (Conefrey Dep. 24:12-23). Officers then drove plaintiff to the police station, where plaintiff was held in the detainment area for approximately ten minutes (Edgerly Dep. 50:7-9). He was then strip searched by Goff for five to ten minutes (Conefrey Dep. 34:13-22; Edgerly Dep. 55:11-13). According to the officers, Goff "checked [plaintiff's] shirt, his arms, around his waistband, his pockets, down his legs, and he felt around his ankles" (Conefrey Dep. 34:19-22). Plaintiff provides even greater detail. According to plaintiff, Goff asked plaintiff to remove his shoes and socks, and to "pull down [his] pants" down to his ankles (Edgerly Dep. 53:14-24). Then, plaintiff recalled that Goff "just kind of looked in" as he was checking plaintiff's boxers ( id. at 54:8-10). Finally, plaintiff said he was "asked to bend over and cough" before he was told he could get dressed ( id. at 54:16-17; 55:6-10).
After the search, plaintiff was placed in the holding area while Conefrey checked plaintiff's arrest record (Conefrey Dep. 34:24-25; 35:3-17). Conefrey then talked to Sergeant Frederick Schiff, a named defendant and supervisor, about plaintiff's violation of California Penal Code Section 612( l) ( id. at 35:22-23). Schiff authorized the officers to issue plaintiff a citation and plaintiff was released on the same day ( id. at 35:24-36:3). Approximately ten minutes elapsed between Goff's search and plaintiff receiving the citation (Edgerly Dep. 56:25-57:1).
Based on this arrest and search, on September 17, 2001, plaintiff filed a complaint against defendants in San Francisco Superior Court. The complaint stated five claims: (1) a 42 U.S.C. 1983 violation of plaintiff's constitutional rights based on the San Francisco Police Department's policy and custom of making unlawful arrests and searches; (2) negligence; (3) negligent infliction of emotional distress; (4) intentional infliction of emotional distress; and (5) unlawful arrest and search. On May 8, 2003, defendants removed this action to federal court alleging that plaintiff's complaint asserted a federal question.
Now, all parties seek summary judgment in their favor. Officers Goff and Conefrey seek summary judgment on all five of plaintiffs' claims, both the federal and state law claims. Sergeant Schiff also seeks summary judgment on all of plaintiff's claims. In contrast, the City and County of San Francisco only argue for summary judgment on the Section 1983 claim. Though the City mentioned in the introduction section of its opening brief that it desires summary judgment on all of plaintiff's claims, the City has only argued for dismissal of the Section 1983 claim. Plaintiff seeks partial summary judgment on the sole issue of whether plaintiff's arrest was lawful.
ANALYSIS
1. LEGAL STANDARD.
Summary judgment is appropriate where no genuine issue of material fact exists and a party is entitled to prevail in the case as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court must construe all facts in favor of the nonmoving party. Id. at 255. The moving party does not necessarily need to put on evidence to negate the opponent's claim; it may simply point to portions of the pleadings, admissions, answers to interrogatories and depositions which, along with any affidavits, show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies this initial burden, the nonmoving party may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show a dispute exists. FRCP 56(e). In addition, the dispute must be genuine. The "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the nonmoving party fails to show that there is a genuine issue for trial, "the moving party is entitled to judgment as a matter of law." Celotex, 477 U.S. at 323.
2. GOFF AND CONEFREY'S MOTION FOR SUMMARY JUDGMENT.
Officers Conefrey and Goff assert that they are entitled to summary judgment on all five of plaintiff's claims because (1) they had probable cause to arrest plaintiff and (2) they have immunity from plaintiff's federal and state claims (Conefrey/Goff's Br. 2). Plaintiff opposes the officers' motion for summary judgment. He alleges that he has raised genuine issues of material fact and, therefore, summary judgment is not appropriate, except on one issue. The single issue for which plaintiff seeks summary judgment is that the officers had no probable cause when they arrested him for trespassing.
A. Unlawful Arrest and Search Section 1983 Claims (And Plaintiff's Cross-Motion).
The officers seek summary judgment on plaintiff's claim alleging unlawful arrest and search. The officers contend that summary judgment is appropriate because they had probable cause for plaintiff's arrest under California Penal Code Section 602( l). Plaintiff disagrees and instead seek his own summary judgment that no probable cause existed for his arrest. When determining whether probable cause existed at the time of the arrest, a court must consider "whether at that moment the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964) (emphasis added). On the other hand, "[b]ecause probable cause must be evaluated from the perspective of prudent men, not legal technicians, an officer need not have probable cause for every element of the offense." Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994) (internal quotations omitted). Nevertheless, probable cause must be determined from looking at the evidence that was available at the time of the arrest. See Allen v. City of Portland, 73 F.3d 232, 236-37 (9th Cir. 1995) ("Facts learned or evidence obtained as a result of a stop or arrest cannot be used to support probable cause unless they were known to the officers at the moment the arrest was made").
At the time of plaintiff's arrest, Section 602( l) defined trespassing as: "Entering and occupying real property or structures of any kind without the consent of the owner, the owner's agent, or the person in lawful possession." Cal. Penal Code 602( l) (1999).
A key issue in dispute is what plaintiff actually said to the officers at the co-op. Plaintiff maintains he told the officers that he was waiting for a friend, a co-op resident. If this was so, then the circumstances would not have amounted to probable cause. The officers, however, allege that plaintiff told them he was "just chilling."
Although counsel for the officers acknowledged this disputed issue in their opposition to plaintiff's motion for partial summary judgment, they also offered the following as a rebuttal (Opp. 4):
Plaintiff conceded that he and the friend had no prior arrangement to meet, they had not previously spoken about meeting each other at the complex, the friend was not expecting him to visit, he had no reason to wait for her, he had no specific reasons for waiting for her, and that he had waited inside the complex for 15-20 minutes before the police arrested him.
This same point was made in the officers' motion (Br. 3-4). The point, however, was unfair and misleading. These statements were presented by counsel as what the officers purportedly knew at the time of plaintiff's arrest. This was not accurate. Based on this record, the officers could not have known the information at the critical time. Instead, counsel learned the information at plaintiff's deposition on November 12, 2003. As stated, arguments in support of probable cause should be based only on what the officers knew at the time of the arrest, not at any later point, i.e. plaintiff's deposition. Perhaps, this will undermine plaintiff's case before the jury but counsel should not have tried to pass off the after-acquired information as information known at the time to the officers.
In the alternative, the officers allege that they deserve qualified immunity and state statutory immunity. For federal claims, "qualified immunity shields officers who reasonably but mistakenly conclude that their conduct is lawful." Desales v. Woo, 860 F.Supp. 1436, 1447 (9th Cir. 1994); see Hunter v. Bryant, 502 U.S. 224, 227 (1991). "This standard requires a two-part analysis: "Was the law governing the official's conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?" Act Up!/Portland, 988 F.2d 868, 871 (9th Cir. 1993). "The plaintiff bears the burden of proving a clearly established right at the time of the allegedly impermissible conduct." Sepatis v. City and County of San Francisco, 217 F.Supp. 2d. 992, 997 (2002) (internal quotations omitted). Because qualified immunity is "an immunity from suit rather than a mere defense to liability, we have repeatedly stressed the importance of resolving immunity questions at the earliest stage in litigation." Ibid (internal quotations omitted). "Where the underlying facts are undisputed, a district court must determine the issue on motion for summary judgment." Act Up!/Portland v. Bagley, 988 F.2d at 873. Under state law, the California Penal Code offers similar immunity to police officers for false arrest or false imprisonment. Police officers can avoid civil liability if "at the time of the arrest, [the peace officer] had reasonable cause to believe the arrest was lawful." Cal. Penal Code § 847.
Again, since there is a key fact issue, it would be premature to confer immunity. If plaintiff's fact version prevails, immunity would be out of order. Similarly, since the validity of plaintiff's search depends on whether plaintiff's arrest was proper, plaintiff's unlawful search claim should be considered at the same time as plaintiff's arrest. The officers' motion for summary judgment on the unlawful arrest and search claim is DENIED. Plaintiff's motion for summary judgment on this claim is also DENIED. For the same reason, Officer Goff and Conefrey's motion for summary judgment on the Section 1983 claim is DENIED.
B. State Tort Claims.
The officers also seek summary judgment on plaintiff's three state tort claims: (1) negligence, (2) negligent infliction of emotional distress, and (3) intentional infliction of emotional distress. All three tort claims are grounded in part on the unlawful arrest and search claim. Because of the material fact issue described above, the motion is likewise DENIED.
3. THE CITY AND COUNTY OF SAN FRANCISCO'S MOTION.
The City and County of San Francisco moves for summary judgment. Despite alleging summarily that it is moving on all of plaintiff's claims in the introduction, the City only argued for summary judgment on the Section 1983 claim. The City contends that plaintiff has failed to provide sufficient evidence of the City having a policy and custom of making such unlawful arrest and searches under California Penal Code Section 602( l). Under Monell v. Department of Social Services, 436 U.S. 658 (1978), a municipality may be liable under Section 1983 if the plaintiff can prove that a constitutional violation occurred through the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Id. at 694. On its own, plaintiff's claim against the City is conclusory. Plaintiff has not made an adequate Monell showing to implicate the City. Summary judgment in favor of the City, therefore, is GRANTED as to the Section 1983 claim.
4. SCHIFF'S MOTION FOR SUMMARY JUDGMENT.
Sergeant Schiff has independently filed for summary judgment on all plaintiff's claims. Schiff asserts that he should not be a party to this matter because he was not involved with plaintiff's arrest and search, which is not disputed by plaintiff (Schiff's Br. 1). Schiff merely authorized the officers to issue plaintiff a citation for trespassing ( ibid.). Accordingly, Schiff's motion for summary judgment on all plaintiff's claims is GRANTED.
CONCLUSION
For the foregoing reasons, the City and County of San Francisco's motion for summary judgment is GRANTED as to the Section 1983 claim, Sergeant Schiff's motion for summary judgment of all claims is GRANTED, the officers' motion for summary judgment is DENIED, and plaintiff's motion for partial summary judgment is DENIED. The case will proceed to trial as scheduled as to the officers only.IT IS SO ORDERED.