Smith v. Cnty. of Orange

Full title: Melanie SMITH, Plaintiff, v. COUNTY OF ORANGE; Orange County Sheriff's…

Court: United States District Court, C.D. California

Date published: Jun 23, 2023

678 F. Supp. 3d 1182 (C.D. Cal. 2023)

Opinion

Case No. 8:21-cv-00265-SPG-KES

2023-06-23

Melanie SMITH, Plaintiff, v. COUNTY OF ORANGE; Orange County Sheriff's Department; Deputy Patrick Baek #3313; Deputy D. Packham #4758; Deputy Investigator C. Davis #08146; Deputy D. French #8378, and Does 1 through 10, Inclusive, Defendants.

John Robert Cogorno, John R. Cogorno Law Offices, Westminster, CA, for Plaintiff. Nicholas Robert Graham, Rada Feldman, Michael L. Wroniak, Collins and Collins LLP, Orange, CA, for Defendants.

SHERILYN PEACE GARNETT, UNITED STATES DISTRICT JUDGE

John Robert Cogorno, John R. Cogorno Law Offices, Westminster, CA, for Plaintiff. Nicholas Robert Graham, Rada Feldman, Michael L. Wroniak, Collins and Collins LLP, Orange, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF NO. 79]

SHERILYN PEACE GARNETT, UNITED STATES DISTRICT JUDGE

Before the Court is a motion for summary judgment from Defendants County of Orange, Orange County Sheriff's Department, and Deputies Patrick Baek, Daniel Packham, Chad Davis, and Denise French. (ECF No. 79). Plaintiff opposes. (Id.). The Court heard oral argument on May 24, 2023. Having considered the parties' submissions, the relevant law, the record in this case, and the arguments of counsel during the hearing on the motions, the Court GRANTS-IN-PART and DENIES-IN-PART Defendants' motion.

I. BACKGROUND

The following summarized facts are uncontroverted, unless otherwise stated. See (ECF No. 79-2 (Joint Appendix of Evidence ("JAE")); ECF No. 79-3 (Joint Appendix of Facts ("JAF"))).¹

1 When deciding a motion for summary judgment, the Court only considers evidence admissible at trial, though the form may differ at the summary judgment stage. Godinez v. Alta-Dena Certified Dairy LLC, No. CV 15-01652 RSWL, 2016 WL 6915509, at *3 C.D. Cal. Jan. 29, 2016. The Court has reviewed the entire record, including the parties' JAF, objections, and evidence. The Court discusses only the facts that are relevant to its decision. In those instances where a party has failed to properly address the other party's assertion of fact, as is required by Rule 56(c), the Court considers those facts undisputed for purposes of the motions. See Fed. R. Civ. P. 56(e)(2); L.R. 56-3. In those instances where a party has failed to properly support an asserted fact with evidence, as is required by Rule 56(c)(1), the Court considers those facts disputed for purposes of the motions. Further, it is not the Court's practice to rule on each objection individually, nor is it required to do so. To the extent that the Court relies on evidence that is the subject of an objection, the Court overrules the objection. To the extent the Court does not rely on evidence objected to by the parties, the objections are overruled as moot.

On June 3, 2019, Deputies Baek, Packham, French, and Davis (together, the "Deputies")² conducted a probationary search³ on Zachary Chanoski. (JAF 1). At the time, Zachary resided with his mother, Plaintiff Melanie Smith, who was 67 years old. (JAF 2; JAE Ex. 19 ("Pls. Dep.") at 10:16-17). Deputies Baek, Packham, and French first arrived at Plaintiff's residence around 4:00 p.m. (JAF 5). Upon arrival, Plaintiff answered the door and allowed the Deputies inside. (JAF 6). Deputies Baek, Packham, French, and Lopez went upstairs to search Zachary's room according to the terms of his probation. (JAF 3, 6; JAE Ex. 23 ("Packham Dep.") at 78:11-15). Zachary was on his bed when the Deputies entered. (JAF 6). Deputy French observed signs and behaviors indicating that Zachary was under the influence of narcotics, so Deputy Baek handcuffed and escorted Zachary out of the bedroom. (JAF 7, 8). While Deputy Baek was bringing Zachary out of the residence, Deputy Davis arrived at the scene. (JAF 9).

2 Deputy Eustacio Lopez was also present and involved with the search but was not named as a defendant in this action. See (JAE Exs. 1-5).

3 Zachary was on informal probation with terms that allowed for search and seizure. (JAF 3).

A few minutes after Deputies Packham, Lopez, and French began searching Zachary's room, Plaintiff walked upstairs to videotape the Deputies who had already begun the search of Zachary's room. (Pls. Dep. at 27:1-11). When she arrived, Deputies Packham, French, and Lopez were in Zachary's room searching. (Packham Dep. at 78:11-15). While the Deputies searched Zachary's room, Plaintiff stood at the room's doorframe and began video recording the search on her cellphone. (JAF 10). Plaintiff was never told that she could not video record the search. (JAF 11).

Only one door of the double-door doorframe was left open. Plaintiff was told repeatedly to "step back" and that she was "in the way" of their search. (Pls. Dep. at 32:14-33:9, 35:1-5). According to Deputy Packham, Plaintiff "continually entered the room," so Deputies Packham, French, and Lopez "repeatedly had to tell her to exit the room and stay out, to stay out of our way and to stop interfering with us." (Packham Dep. at 78:17-21; JAF 12; JAE Ex. 20 ("Chanoski Dep.") at 22:15-21, 34:8-14; JAE Ex. 40 ("Plaintiff admits that the words 'stay out of the room' were used.")). Deputy Packham testified that it got to the point where he "had to stop searching" so that he could focus "solely on standing outside with [Plaintiff] and watching her, just to provide that safety for my partners who continued to search." (Packham Dep. at 79:1-7).

Plaintiff, on the other hand, denies that she ever entered the room. (Pls. Dep. at 32:12-13). Regardless of whether Plaintiff disobeyed the Deputies' orders by entering the room, it is undisputed that Deputy Packham felt as though he "had to stop searching" so that he could focus "solely on standing outside with [Plaintiff] and watching her, just to provide that safety for my partners who continued to search." (Packham Dep. at 79:1-7). When Plaintiff began her video recording, Deputy Packham had already stopped assisting Deputies French and Lopez with the probation check to stand by Plaintiff outside of Zachary's bedroom. (Id. at 79:7-11; JAE Ex. 6). Approximately 22 seconds into the recording, Deputy Davis, who was standing behind Plaintiff in the hallway, can be heard asking, "was that recording when the son was going apeshit?" (JAE Ex. 22 ("Davis Dep.") at 48:20-22; JAE Ex. 6). One of the deputies responded, "probably." (JAE Ex. 6).

From the Court's review of Plaintiff's video recording, it appears that while Plaintiff was recording Deputies French and Lopez searching Zachary's room, at approximately 57 seconds into the video, Plaintiff may have taken a small step into the room. (JAE Ex. 6). In response, one of the deputies told Plaintiff, "Ma'am, you need to stay out of the room." Plaintiff appears to have then taken a step back when she responded, "I'm not in the room." One of the deputies again asked Plaintiff to "back out of the room, there you go, you're in the way." Plaintiff was not told on the video, however, that she could not stand at the doorframe or that her standing at the doorframe interfered with their search.

The video further shows that Deputy French exited the room and was able to walk by Plaintiff by turning sideways and sliding by Plaintiff while Plaintiff stood at the doorframe. After Deputy French exited, Deputy Packham entered the room. As Deputy Packham entered the room, he can be heard saying, "can you just watch mom." (JAE Ex. 6). Then, near the end of the video, Deputy Davis, who was still standing behind Plaintiff outside the doorframe, reached his hand in front of Plaintiff to pull the door shut. Plaintiff immediately stated, "excuse me, you're not doing that." Davis replied, "oh yeah," as he continued to shut the door. Then, although from the Court's review of the video it does not capture Plaintiff allegedly resisting Deputy Davis's attempt to close the door by pushing the door back open, Plaintiff admitted in her deposition that she put her hands up and "pushed it back open." See (Pls. Dep. at 55:18-22, 80:20-81:7, 81:24-82:13). She also admitted in her personnel complaint that she "pushed the door open a little." (JAE Ex. 9). The camera then appears to fall out of Plaintiff's hands while both Deputy Davis and Plaintiff can be heard saying, "no, no, no, no." Then the video recording ends. The video lasted one minute and thirty-seven seconds. (JAE Ex. 6).

After the video ends, the Deputies and Plaintiff provide starkly different accounts of the incident. According to Deputy Davis, after the video, Deputy Davis grabbed Plaintiff's arm to prevent her from entering the room.⁴ (Pls. Dep. at 41:24-42:1; JAE Ex. 2). According to Deputy Davis, Plaintiff resisted his attempt to grab her arm. (JAF 18; JAE Ex. 2). Then, Deputy Packham assisted Deputy Davis to grab and control each of Plaintiff's arms to "keep them under control and to place her into a handcuffing position." (Packham Dep. at 47:7-18; Ex. 1; Ex. 2). Deputy Packham testified that Plaintiff "was trying to pull away" from them while they were attempting to place her in handcuffs. (Packham Dep. at 49:11-19). While Deputies Packham and Davis were controlling Plaintiff's arms, Deputy French came back upstairs, grabbed Deputy Packham's handcuffs, and handcuffed plaintiff. (JAE Ex. 21 ("French Dep.") at 78:17-25; JAE Ex. 1).

4 Plaintiff disputes this fact in the Joint Appendix of Facts. See (Pls. Response to JAF 17). However, Plaintiff testified in her deposition that a deputy grabbed her after she tried to push the door open. (Pls. Dep. at 41:24-42:1). Thus, the Court finds this fact undisputed for purposes of this motion.

Then, according to Plaintiff, while she was already in handcuffs, she was forcefully taken to the ground. (Pls. Dep. at 19:42:2-43:2). In her words, "somebody jumped on top of me or pushed me very hard and I ended up on the floor." (Id. at 40:1-16); see also (Id. at 59:1-2 ("The officer jumped on me forcefully, and it resulted in me being thrown to the ground.")). According to each of the Deputies who witnessed the arrest—French, Baek, Davis, and Packham—Plaintiff's body purposely went limp, and she fell to the floor after she was placed in handcuffs. See (French Dep. at 80:1-3; Packham Dep. at 49:2-4; JAE Ex. 1; Ex. 2; Ex. 4). While Plaintiff was seated in handcuffs, the Deputies asked her to stand up so they could escort her out of the home and conclude their search. (Pls. Dep. at 43:3-7). Plaintiff refused to stand up. (JAE Ex. 24 at 19:25; French Dep. at 90:2-5). Plaintiff recounts that she could not stand because of the "excruciating pain" in her hip, pelvis, and back. (Pls. Dep. at 43:3-7). Plaintiff said she told the Deputies "several times" that she could not stand up, but they ignored her and were acting like she "was just not cooperating or something." (Id. at 43:3-15; French Dep. at 79:20-25). Plaintiff testified that she "tried" to stand up but "couldn't." (Pls. Dep. at 43:16-20). Plaintiff admitted that she was effectively "dead weight" as she was on the ground in handcuffs. (Id. at 43:21-25). Because she would not stand, Deputies Packham and French held onto Plaintiff from underneath each of her arms to carry her down the stairs. (Davis Dep. at 69:12-14). According to Plaintiff, the Deputies "dragged" her down the stairs and bumped her spine "several times as [she] went down the wooden stairs." (Pls. Dep. at 44:17-21). Later in her deposition, Plaintiff said the Deputies were "carrying"—not dragging—her down the stairs when her spine was bumped because it was not properly lifted. (Id. at 44:14-45:4). Plaintiff's other son, Luke, witnessed Plaintiff being carried down the stairs. According to Luke, he did not see Plaintiff's back hit the stairs as she was being carried down. (Chanoski Dep. at 43:8-13). The only body part Luke saw hit the ground was Plaintiff's feet. (Id. at 43:14-16).

Once Plaintiff was brought outside, she was arrested for allegedly resisting, delaying, and obstructing the Deputies during their probation search pursuant to California Penal Code § 148(a)(1). (JAF 4). Plaintiff testified that her handcuffs were "really tight" and "cutting into" her wrists, causing her to bleed. (Pls. Dep. at 65:10-17). However, Plaintiff could not recall if she had told anyone that the handcuffs were too tight. (Id. at 66:4-11). When the paramedics from the Orange County Fire Authority arrived at the scene to assess Plaintiff, they reported that she did not have any visible injuries. (Id. at 66:22-24; JAE Ex. 2; Ex. 7A; Ex. 7B). The paramedics also "determined she was uninjured and did not need any further medical treatment." (JAE Ex. 7). Plaintiff testified that she had cuts on her wrists that had turned to scabs by the time her medical provider assessed her the following day. (JAE. Ex. 19 at 138:5-139:7; JAE Ex. 44). The day after the incident, on June 4, 2019, Plaintiff went to visit an urgent care doctor to treat her sinus infection and to examine her injuries from the incident. (Pls. Dep. at 133:18-23). According to her medical records, Plaintiff's "chief complaint" was of her "sinus congestion." (JAE Ex. 45). The medical records indicate Plaintiff's diagnoses as "acute sinusitis," "wheezing," "cough," and contusions on her right wrist, left wrist, left elbow, and left forearm. (Id.). The doctor did not note any lacerations or scabs. (Id.). According to Plaintiff, the bruises on her wrists lasted about three weeks. (Pls. Dep. at 139:12-16).

On June 24, 2019, Plaintiff visited an orthopedic surgeon. (JAE Ex. 45). According to the medical records from her visit, Plaintiff reported that she had pain around her right hip at a level of "6 out of 10" and that she is "able to ambulate." (Id.). An exam of her right hip demonstrated that she could raise her leg "without any apparent discomfort," she was "angling without a limp," external rotation did not cause discomfort," she had "full knee range of motion," and her motor and sensory exam was "normal." (Id.). The report concluded by noting that, "[c]linically her exam is quite benign," and that, "her x-rays show no fracture and a well fixed and well placed total hip arthroplasty." The orthopedic doctor noted it was "[u]nclear exactly what is causing her symptoms although she has a known extremely arthritic low back." The doctor found no "evidence of problem with her right hip implant." The doctor recommended continuing with "unrestricted activities and giving this more time to heal" and scheduled an appointment for the following month. At the follow-up appointment, on July 25, 2019, Plaintiff reported her pain was a "5 out of 10" and that she was not in physical therapy at that time. (Id.). The doctor noted it was "possible [Plaintiff] has a lateral compression pelvic injury which would account for groin pain and posterior pelvic pain" and that should "heal over time." The doctor recommended physical therapy. Plaintiff then began physical therapy for her pain, which she continued through December of 2019. (Pls. Dep. at 136:19-137:18). On September 4, 2019, Plaintiff reported to the doctor that her pain was at "4 out of 10" and "varies in severity." (JAE Ex. 45). The x-rays did not show any fracture, and her clinical exam was "completely benign," but she still reported significant pain. The doctor therefore recommended a CT scan for further evaluation of a potential fracture. The CT scan revealed no evidence of fracture.

Plaintiff commenced this case on February 9, 2021, (ECF No. 1), and filed the operative first amended complaint ("FAC") on June 7, 2021. (ECF No. 42). The FAC alleges six claims under 42 U.S.C. § 1983 for: (1) First Amendment retaliation, (2) Fourth Amendment excessive force, (3) Fourth Amendment unlawful arrest, (4) Monell liability for failure to properly screen and hire, (5) Monell liability for failure to properly train, and (6) Monell liability for unconstitutional customs and policies. On October 19, 2022, the Defendants filed the instant motion for summary judgment. (ECF No. 79 ("MSJ")). The Court held a hearing on May 24, 2023.

II. LEGAL STANDARD

Summary judgment is appropriate when the moving party demonstrates there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if the substantive law identifies the fact as critical such that the resolution of the fact under governing law might affect the outcome of the case, and a dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

"[T]o carry its burden of production, the moving party must produce either evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000) (citing High Tech Gays v. Def. Indus. Sec. Clearance Off., 895 F.2d 563, 574 (9th Cir. 1990)). If the moving party satisfies its initial burden, the burden then shifts to the opposing party, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. A genuine issue requires evidence, not speculation or guesswork. Guidroz-Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir. 2001). The opposing party may not simply rely upon the allegations or denials in its pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 n.3, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Nor can it rely on testimony that is conclusory, speculative, or "uncorroborated and self-serving" to raise genuine issues of fact and defeat summary judgment. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (citations and internal quotations omitted). Instead, the opposing party, by citing to documents, depositions, declarations, admissions, interrogatory answers, or other material, must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505. "This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505).

In resolving a summary judgment motion, the court does not weigh the evidence, determine the truth, or make credibility determinations. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The court construes the evidence and draws reasonable inferences in the light most favorable to the opposing party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citations omitted). Thus, summary judgment for the moving party is proper when a "rational trier of fact" would not be able to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. DISCUSSION

Defendants maintain that they have not violated any of Plaintiff's constitutional rights. But even if they had, they are entitled to qualified immunity.⁵

5 The Court GRANTS Defendants' motion for summary judgment as to Deputy Back because it is undisputed that he did not physically participate or assist the other deputies in arresting Plaintiff or using any force against Plaintiff. See (JAF 21; JAE Ex. 24 at 10-23; JAE Ex. 1).

"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "[A]n officer will be denied qualified immunity 'only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show that the officer's conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood her conduct to be unlawful in that situation.' " Green v. City and Cnty. of San Francisco, 751 F.3d 1039, 1051-52 (9th Cir. 2014) (quoting Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011)). A court may address either prong of the qualified immunity analysis first. Pearson, 555 U.S. at 236, 129 S.Ct. 808.

For purposes of this Order, the Court will first address whether the facts support a constitutional violation, then turn to whether the right was clearly established.

A. Unlawful Arrest

Defendants argue that Plaintiff's third claim of unlawful arrest fails because there was probable cause to arrest Plaintiff for a violation of California Penal Code § 148(a)(1). (MSJ at 29-31). Plaintiff responds that there is at least a triable issue of fact as to whether there was probable cause because there is no evidence that Plaintiff resisted the Deputies' lawful orders or otherwise delayed or obstructed them from carrying out their duties.

1. Whether Plaintiff's Right was Violated

"A claim for unlawful arrest is cognizable under section 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification." Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015). "Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested." United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). In other words, an officer has probable cause "when under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the suspect] had committed a crime." Id. "Because probable cause deals with probabilities and depends on the totality of the circumstances, it is a fluid concept that is not readily, or even usefully, reduced to a neat set of legal rules. It requires only a probability or a substantial chance of criminal activity, not an actual showing of such activity." See District of Columbia v. Wesby, 583 U.S. 48, 138 S. Ct. 577, 586, 199 L.Ed.2d 453 (2018) (internal quotations and citations omitted). "Probable cause 'is not a high bar.' " Id. (quoting Kaley v. United States, 571 U.S. 320, 338, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014)). "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). When the facts are undisputed, "the existence of probable cause is a question of law." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012).

Here, Plaintiff was arrested for violation of California Penal Code § 148(a)(1). (JAF 4). That penal code section makes it unlawful for a person to "willfully resist[ ], delay[ ], or obstruct[ ] any public officer . . . in the discharge or attempt to discharge any duty of his or her office of employment." Cal. Penal Code § 148(a)(1). An arrest under § 148(a)(1) requires probable cause to believe the following: "(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties." In re Muhammed C., 95 Cal. App. 4th 1325, 1329, 116 Cal. Rptr.2d 21 (2002). An individual cannot, however, "be arrested for violating section 148 because he evaded an officer's attempt to arrest him unlawfully." Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1178 (9th Cir. 2013). In other words, "a criminal defendant must have 'resisted, delayed, or obstructed' a police officer in the lawful exercise of his duties" for a § 148 conviction to be valid. Velazquez, 793 F.3d at 1018-19 (quoting Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (en banc) (emphasis in original). Thus, "for the purposes of Section 148(a), 'an officer is not lawfully performing her duties when she detains an individual without reasonable suspicion or arrests an individual without probable cause.' " Id. at 1019 (quoting Garcia v. Superior Court, 177 Cal. App. 4th 803, 815, 99 Cal.Rptr.3d 488 (2009)). Moreover, Penal Code § 148(g) provides that "[t]he fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person." Cal. Penal Code § 148(g).

Defendants argue there was probable cause to arrest Plaintiff for violating § 148(a)(1) based on Plaintiff's refusal to comply with their orders to get out of their way, which delayed their search, and Plaintiff's use of force against Deputy Davis in attempting to push the door open. (MSJ at 24). Specifically, Defendants argue that the evidence demonstrates that "Plaintiff refused multiple orders not to enter the room, and ignored commands not to interfere and stay out of the room, and pushed open the door to the room, lunging at Deputy Davis and hitting, pushing, and physically striking Davis to access the room." (Id.).

The Court disagrees with Defendants' characterization of the evidence. See Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) ("The 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." (citing Scott, 550 U.S. at 378-379, 127 S.Ct. 1769)). Based on the Court's review of the record and short video recording—viewed in a light most favorable to Plaintiff—the following facts are undisputed for purposes of this motion: Plaintiff walked upstairs to videotape the Deputies who had already begun their search of Zachary's room. When she arrived, Deputies Packham, French, and Lopez were in Zachary's room searching. (Packham Dep. at 78:11-15). Plaintiff stood at the doorframe of the bedroom. Only one door of the double-door doorframe was left open. Plaintiff was told repeatedly "step back" and that she was "in the way" of their search. (Pls. Dep. at 32:14-33:9, 35:1-5). Plaintiff denies that she ever entered the room. (Id. at 32:12-13). Even if Plaintiff did not disobey the Deputies' orders by entering the room, it is not disputed that Deputy Packham felt as though he "had to stop searching" so that he could focus "solely on standing outside with [Plaintiff] and watching her, just to provide that safety for [his] partners who continued to search." (Packham Dep. at 79:1-7). When Plaintiff began her video recording, Deputy Packham had already stopped assisting Deputies French and Lopez with the probation check to stand by Plaintiff outside of Zachary's bedroom. (Id. at 79:7-11). This is further evidenced by the video recording showing that Deputy Packham was standing beside Plaintiff outside of Zachary's bedroom approximately halfway through the video. (JAE Ex. 6).

While Plaintiff was recording Deputies French and Lopez searching Zachary's room, Plaintiff appears as though she may have taken a small step into the room. In response, one of the deputies told Plaintiff, "Ma'am, you need to stay out of the room." Plaintiff appears to have then taken a step back when she responded, "I'm not in the room." One of the deputies again asked Plaintiff to "back out of the room, there you go, you're in the way." The Deputies did not, however, tell Plaintiff that she could not stand at the doorframe or that her standing at the doorframe interfered with their search. The video further shows that Deputy French exited the room and was able to sidestep Plaintiff while Plaintiff stood at the doorframe. After Deputy French exited, Deputy Packham entered the room. As Deputy Packham entered the room, he can be heard saying, "can you just watch mom." Then, near the end of the video, Deputy Davis, who was standing behind Plaintiff outside the doorframe, reached his hand in front of Plaintiff to pull the door shut. Plaintiff immediately stated, "excuse me, you're not doing that." Davis replied, "oh yeah," as he continued to shut the door. The camera then appears to fall out of Plaintiff's hands while both Deputy Davis and Plaintiff can be heard saying, "no, no, no, no." Then the video recording ends.

From the Court's review of the video, it does not show Plaintiff striking Davis or making any physical contact with Davis. The video also does not show Plaintiff lunging forward to force the door open or attempting to open the door at all. Notwithstanding, Plaintiff admitted in her deposition that she put her hands up and "pushed it back open." See (Pls. Dep. at 55:18-22, 80:20-81:7, 81:24-82:13). She also admitted in her personnel complaint that she "pushed the door open a little." (JAE Ex. 9). Thus, the Court accepts Plaintiff's admission, which is further substantiated by the reports from Deputies Davis, French, and Packham, (JAE Exs. 11, 12, 13), and finds it is undisputed that Plaintiff attempted to push the door back open.

Based on these undisputed facts, the Court cannot find at the summary judgment stage that Plaintiff standing at the doorframe throughout the search amounts to disobeying the Deputies' orders. Defendants cite a "long line of California cases" holding that an arrest like Plaintiff's is not actionable where deputies had probable cause to arrest for a violation of § 148(a)(1) based on failure to comply with an officer's command to "get back" or "leave" the area. (MSJ at 30). However, the cases Defendants cite are distinguishable. In each case, it was undisputed that the plaintiff failed to comply. See, e.g., Fisher v. Cnty. of Orange, No. SACV 16-01866-CJC(KESx), 2018 WL 1036847, at *9 (C.D. Cal. Feb. 14, 2018) (finding probable cause to arrest for § 148(a)(1) violation where the plaintiff "willfully delayed" the deputies "in their investigation of a large fight by interjecting himself and refusing the deputies' repeated requests that he go home or leave. Plaintiff understood that he was being asked to leave, but refused to step away."); Veth Mam v. City of Fullerton, No. 8:11-cv-1242-JST (MLGx), 2013 WL 951401, at *4 (C.D. Cal. Mar. 12, 2013) (video clearly showed that plaintiff "ignored multiple orders to get back, and he never complied"); Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1170 (9th Cir. 2011) ("Young was not arrested for protesting prior to complying with [the deputy's] order to reenter his truck, but for failing altogether to comply with the order."). Here, in contrast, the evidence does not show that Plaintiff failed to comply with the Deputies' commands to "stay out of the room." In fact, a reasonable juror could conclude that Plaintiff complied with the Deputies' demands by standing at the doorframe. This is bolstered by one of the deputy's statements, "there you go," made right after Plaintiff appeared to step back towards the doorframe, which suggests that Plaintiff's step backwards was sufficient from the deputy's perspective. Accordingly, because the Court must view the facts in the light most favorable to Plaintiff and the video footage does not blatantly contradict Plaintiff's account of the incident, the Court assumes for Defendants' Motion that Plaintiff did not fail to comply with the Deputies' orders. Thus, having complied with the Deputies' orders, a reasonable jury may conclude that Plaintiff was improperly arrested for making a video recording, which does not constitute probable cause to arrest her. See Cal. Penal Code § 148(g).

Moreover, the Court also cannot find that Plaintiff's benign act of attempting to open the door to continue filming the Deputies' search from the same vantage point as she had been permitted to film throughout the duration of the search—without more—amounted to resisting, delaying, or obstructing the Deputies from carrying out their search. For example, in Lassiter v. City of Bremerton, 556 F.3d 1049 (9th Cir. 2009), the Ninth Circuit held that there was probable cause to arrest the plaintiff for obstruction after the plaintiff grabbed a police officer's arm because the plaintiff's conduct had the practical effect of precluding the officers from securing the scene and investigating a possible assault. See id. at 1053. The court found that plaintiff's "conduct made it impossible for the police to carry out their duty." Id. Here, in contrast, other than perhaps Deputy Packham deciding to watch Plaintiff's actions, there is no evidence that Plaintiff precluded the Deputies from carrying out their search. In fact, the video shows the Deputies were able to wrap up much of their search all while being able to walk in and out of Zachary's bedroom despite Plaintiff standing at the doorframe. See also Quintero v. City of Escondido, No. 15-cv-2638-BTM-BLM, 2017 WL 4005345, at *9 (S.D. Cal. Sept. 11, 2017) (finding no probable cause where the plaintiff did not forcibly resist the officer's attempt to remove him from the doorway of his apartment in order to conduct a search); McCormick v. Cnty. of San Diego, No. 20cv1753 JM (AGS), 2021 WL 913906, at *6 (S.D. Cal. Mar. 10, 2021) (finding plaintiff sufficiently pleaded a lack of probable cause for violating § 148(a)(1) in part because there was "no indication that [p]laintiff delayed the other deputies in entering the home by intentionally or unintentionally blocking the deputies' entrance through the open door"); Hernandez v. Cnty. of San Bernardino, No. EDCV 20-1144 JGB (SPx), 2021 WL 4497934, at *4 (C.D. Cal. Aug. 13, 2021).

Also, the fact that Deputy Packham felt the need to stop assisting in the search so he could stand outside with Plaintiff and ensure one of the deputies would be watching her does not absolve the genuine dispute as to whether the Deputies had probable cause to arrest for violating § 148(a)(1). "[P]robable cause is measured by an objective standard based on the information known to the arresting officer, rather than a subjective standard that would take into account the arresting officer's actual motivations or beliefs." Myers v. City & Cnty. of San Francisco, No. C 08-1163 MEJ, 2012 WL 5199382, at *2 (N.D. Cal. Oct. 22, 2012) (citing Davis v. Cnty. of San Bernardino, No. EDCV 08-1262 SVW (SSx), 2009 WL 3838287, at *5 (C.D. Cal. Nov. 13, 2009)); see also Lopez, 482 F.3d at 1072.

In sum, after reviewing all the evidence in the record, the Court concludes that there is a genuine issue of material fact as to whether the defendant officers had probable cause to arrest Plaintiff for violation of California Penal Code § 148(a)(1). A reasonable jury could conclude that Plaintiff was improperly arrested in violation of her Fourth Amendment rights.

2. Whether the Right was Clearly Established

To succeed on her § 1983 claim, Plaintiff must show that the Deputies violated a clearly established right at the time of her arrest. Wesby, 138 S. Ct. at 589. "A right is clearly established when it is 'sufficiently clear that every reasonable official would have understood that what he is doing violates that right.' " Rivas-Villegas v. Cortesluna, 595 U.S. 1, 142 S. Ct. 4, 7, 211 L.Ed.2d 164 (2021) (quoting Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015)). "This is a forgiving standard: it 'protects all but the plainly incompetent.' " Vanegas v. City of Pasadena, 46 F.4th 1159, 1166 (9th Cir. 2022) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).

"Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions." Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017). "So, it's not enough that the legal answer be 'suggested by then-existing precedent'; the answer must be 'so well defined' that 'the legal principle clearly prohibit[s] the officer's conduct in the particular circumstances before him.' " Vanegas, 46 F.4th at 1166 (quoting Wesby, 138 S. Ct. at 590)). "The rule must be settled law, which means it is dictated by controlling authority or a robust consensus of cases of persuasive authority." Wesby, 138 S. Ct. at 589-90 (internal citations omitted). While a case need not be "directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate." Kisela v. Hughes, 584 U.S. 100, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (citation omitted). The Supreme Court "has 'repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.' " Id. (quoting City & Cnty. Of San Francisco v. Sheehan, 575 U.S. 600, 135 S. Ct. 1765, 1775-76, 191 L.Ed.2d 856 (2015)). It is the plaintiff who "bears the burden of showing that the rights allegedly violated were 'clearly established.' " See Shafer v. Cnty. Of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (internal citations omitted).

Here, it was clearly established that Plaintiff could not be arrested without probable cause. See Beckum v. City of E. Palo Alto, No. C09-03301 HRL, 2010 WL 3516105, at *5 (N.D. Cal. Sept. 8, 2010) ("[T]he Fourth Amendment right to be free from seizure without reasonable suspicion and arrest without probable cause is clearly established." (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989))); Gough v. Cnty. Of San Diego, No. 05cv288 BTM (RBB), 2006 WL 8455244, at *5 (S.D. Cal. Aug. 10, 2006) ("There is little question that the right to be free from an arrest without probable cause is clearly established." (citing Palmer v. Sanderson, 9 F.3d 1433, 1436-37 (9th Cir. 1993)).

Even though "qualified immunity still attaches when officers 'reasonably but mistakenly concluded that probable cause [wa]s present,' " see Vanegas, 46 F.4th at 1166 (citing Wesby, 138 S. Ct. at 591), that is not the case here. Even under that forgiving standard, viewing the facts in the light most favorable to Plaintiff, a reasonable juror could conclude that it was not reasonable to arrest Plaintiff for standing at the doorframe while the Deputies were able to navigate in and out of the room, filming the Deputies searching Zachary's room having not been told that she could not video, and attempting to keep open the door after Deputy Davis attempted to close it for an unknown reason. Thus, "genuine issues of fact prevent a determination of qualified immunity at summary judgment such that the case must proceed to trial." Bonivert v. City of Clarkston, 883 F.3d 865, 881 (9th Cir. 2018) (internal quotation marks and alterations omitted). Accordingly, the Court DENIES Defendants' motion for summary judgment as to Plaintiff's claim of unlawful arrest.

B. First Amendment Retaliation

1. Whether Plaintiff's Right was Violated

In general, the "First Amendment prohibits government officials from subjecting an individual to retaliatory actions" for engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). "If an official takes adverse action against someone based on that forbidden motive, and 'non-retaliatory grounds are in fact insufficient to provoke the adverse consequences,' the injured person may generally seek relief by bringing a First Amendment claim." Nieves v. Bartlett, — U.S. —, 139 S. Ct. 1715, 1722, 204 L.Ed.2d 1 (2019) (quoting Hartman, 547 U.S. at 256, 126 S.Ct. 1695). To state a First Amendment retaliation claim, a plaintiff must show "that (1) he was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity and (3) the protected activity was a substantial or motivating factor in the defendant's conduct." O'Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016) (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006)); Capp v. Cnty. Of San Diego, 940 F.3d 1046, 1054 (9th Cir. 2019). To ultimately "prevail on such a claim, a plaintiff must establish a 'causal connection' between the government defendant's 'retaliatory animus' and the plaintiff's 'subsequent injury.' " Nieves, 139 S. Ct. at 1722 (quoting Hartman, 547 U.S. at 259, 126 S.Ct. 1695). "It is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury. Specifically, it must be a 'but-for' cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive." Id. (citing Hartman, 547 U.S. at 260, 126 S.Ct. 1695).

In Nieves, the Supreme Court held that plaintiffs bringing First Amendment retaliatory arrest claims must generally "plead and prove the absence of probable cause," because the presence of probable cause generally "speaks to the objective reasonableness of an arrest" and "suggests that the "officer's animus" is not what caused the arrest." Id. at 1723-24.

Defendants argue that Plaintiff's First Amendment retaliation claim fails because there was probable cause to arrest Plaintiff and there was no retaliation for engaging in a protected activity. However, for the reasons discussed above in the Court's discussion of Plaintiff's claim of unlawful arrest, Plaintiff has met her burden to establish a genuine dispute as to whether the Deputies had probable cause for Plaintiff's arrest. The Court therefore turns to whether there is sufficient evidence to suggest the Deputies harbored a retaliatory animus against Plaintiff and arrested her because of that animus, given that probable cause was arguably lacking.

"A plaintiff may establish motive using direct or circumstantial evidence." Ariz. Students' Ass'n v. Ariz. Bd. Of Regents, 824 F.3d 858, 870 (9th Cir. 2016). Defendants argue that Plaintiff offers no facts to suggest she was arrested because she attempted to exercise her First Amendment rights to videotape the Deputies. In support of their argument, Defendants have presented evidence to refute causation. Deputy Davis testified that he arrested Plaintiff because she was disrupting the Deputies' search, not because Plaintiff was recording their search. It is also undisputed that the Deputies never told Plaintiff she could not record. (JAF 10). Instead, the Deputies only told Plaintiff that she needed to stay out of Zachary's room. (JAF 11-12).

Plaintiff argues that the video recording demonstrates that Deputy Davis closed the one open door and, when he did this, Plaintiff stated, "excuse me, you're not doing that," to which Davis responded, "oh yeah." Plaintiff contends that her "verbal protest" cannot support a non-retaliatory arrest. (MSJ at 27). However, as stated above, it is undisputed that Plaintiff did more than verbally protest the door being shut; she tried to push it back open. It was only then that Deputy Davis arrested her. Nevertheless, viewing the evidence in a light most favorable to Plaintiff, given the alleged lack of probable cause to arrest for a violation of § 148, a reasonable juror could find that Deputy Davis attempted to close the door only to block Plaintiff from recording the Deputies, and Plaintiff was then arrested out of a retaliatory animus for engaging in that protected activity.⁶ See Hartman, 547 U.S. at 256, 126 S.Ct. 1695 ("[W]hen nonretaliatory grounds are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to recovery as the but-for cause of official action offending the Constitution."); Duran v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir. 1990) (observing that "[m]issing from the record here is any legitimate, articulate reason for [the officer] to have detained [plaintiff]," that there was "no evidence of a danger to public safety," and that "making obscene gestures" and "yelling profanities" was not illegal).

6 The parties do not dispute that Plaintiff's video recording of the Deputies qualifies as a protected activity under the First Amendment. While it is certainly true that filming the police engaged in matters of public interest in public is protected activity, see Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995), neither party addresses whether that First Amendment right extends to filming police inside one's home. For purposes of deciding whether Plaintiff's right was violated, the Court assumes but does not decide that filming police in the privacy of one's own home is constitutionally protected activity.

The facts here resemble those in Johnson v. Cnty. of San Bernardino, No. EDCV 18-2523-GW-AFMx, 2020 WL 5224350, at *16 (C.D. Cal. June 24, 2020). Like here, the deputy in Johnson did not instruct the plaintiff to stop recording. The court found that fact alone "does not conclusively resolve the question of whether there was any connection between [p]laintiff's recording activities and [the deputy]'s subsequent behavior." Id. at *17. The court found significant that the deputy's interactions with plaintiff "unquestionably did escalate" in close proximity to when plaintiff began recording. Id. The court concluded that a "factfinder could determine that there was no other justifiable reason for [the deputy] escalating the situation" with plaintiff other than the fact plaintiff started to record the event. Id. The court also found the fact that a reasonable juror could find there was no probable cause to arrest for violating § 148(a)(1) could "bridge the causal gap on the substantial/motivating factor and but-for causation issues." Id. at *18.

Here, like in Johnson, a reasonable juror could conclude the Deputies lacked probable cause to arrest Plaintiff. See also Hernandez, 2021 WL 4497934, at *5 (denying summary judgment on First Amendment retaliation claim because there was "limited evidence to conclude that there was probable cause" and a reasonable juror could have found the officer "acted in retaliation for [p]laintiff's protected activity of filming and criticizing the police"). Moreover, the record shows that Plaintiff was arrested less than two minutes after she began filming the Deputies' search. Thus, like in Johnson, the proximity provides circumstantial evidence that Plaintiff's filming was the but-for cause of Deputy Davis's decision to close the door and arrest Plaintiff. See also Naveed v. City of San Jose, No. 15-cv-05298-PSG, 2016 WL 2957147, at *5 (N.D. Cal. May 23, 2016) (finding that plaintiffs had shown enough facts to state a First Amendment retaliation claim based on evidence that "the officers intentionally interfered with the video recording, indicating at least that they were unhappy with [p]laintiffs for recording the arrests," despite the fact that the officers had probable cause). Lastly, Deputy Davis's question of whether Plaintiff was "recording when the son was going apeshit" after he came back upstairs further demonstrates that he would not have arrested Plaintiff but for her videotaping the search. See (Davis Dep. at 48:20-22; JAE Ex. 6).

"[W]hen there are disputed factual issues that are necessary to a qualified immunity decision, these issues must first be determined by the jury before the court can rule on qualified immunity." Morales v. Fry, 873 F.3d 817, 824 (9th Cir. 2017). Here, the Court finds that disputed material facts preclude a grant of summary judgment on Plaintiff's First Amendment retaliation claim, at least based on the first prong of the test for qualified immunity.

2. Whether the Right was Clearly Established

The Ninth Circuit has held that a court "must locate a controlling case that 'squarely governs the specific facts at issue,' except in the 'rare obvious case' in which a general legal principle makes the unlawfulness of the officer's conduct clear despite a lack of precedent addressing similar circumstances." West v. City of Caldwell, 931 F.3d 978, 983 (9th Cir. 2019) (quoting City of Escondido v. Emmons, — U.S. —, 139 S. Ct. 500, 503-04, 202 L.Ed.2d 455 (2019)). Plaintiff bears the burden to demonstrate the existence of a clearly established right at the time of an alleged violation. Olivier v. Baca, 913 F.3d 852, 860 (9th Cir. 2019).

As of June 3, 2019, the date of the incident in question, the "constitutional right to be free from retaliation while recording police activity in a public place was clearly established in the Ninth Circuit." Redmond v. San Jose Police Dep't, No. 14-cv-02345-BLF, 2017 WL 5495977, at *11 (N.D. Cal. Nov. 16, 2017). "It has been clear in this circuit since at least 1995 that the First Amendment protects a 'right to film matters of public interest.' " Baca v. Anderson, No. 22-cv-02461-WHO, 2022 WL 7094267, at *5 (N.D. Cal. Oct. 12, 2022) (citing Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995)). See also Askins v. U.S. Dep't of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018) ("The First Amendment protects the right to photograph and record matters of public interest."); Reed v. Lieurance, 863 F.3d 1196, 1211 (9th Cir. 2017) (referencing "the First Amendment-protected activity of observing a government operation" and citing Fordyce as "recognizing a 'First Amendment right to film matters of public interest' - in that case, police actions during a public demonstration" (quoting Fordyce, 55 F.3d at 439)). "This includes the right to record law enforcement officers engaged in the exercise of their official duties in public places." Id. Indeed, "since Fordyce came down, district courts in this circuit have continuously recognized a clearly established right to peacefully film police officers carrying out their duties in public." Baca, 2022 WL 7094267, at *6 (collecting cases).

The question remains, however, whether that clearly established constitutional right to film police officers carrying out their duties in public extends to a person's private home. Because Fordyce and its progeny are not "directly on point" to the facts here, the Court must determine whether Plaintiff has met her burden to show that existing precedent has placed the constitutional question "beyond debate" such that this is a "rare obvious case where the unlawfulness of the officer's conduct is sufficiently clear even though existing precedent does not address similar circumstances." Wesby, 138 S. Ct. at 590 (internal citations omitted).

Based on the present record, the Court finds it is "beyond debate" that Plaintiff could not be arrested for exercising her clearly established First Amendment right to record police officers conducting a lawful search of her residence while she posed no threat to their safety and there was no probable cause for an arrest. While there is not much law addressing the distinction between the First Amendment right to record in public versus in private, the Court finds that such a distinction is "one lacking any meaningful difference here." Crago v. Leonard, K No. 0877, No. 2:13-cv-531-TLN-EFB PS, 2014 WL 3849954, at *4 (E.D. Cal. Aug. 5, 2014), report and recommendation adopted, No. 2:13-cv-531-TLN-EFB PS, 2014 WL 4435954 (E.D. Cal. Sept. 9, 2014). Importantly, this Court is not the first to reach this conclusion. In Crago, like here, the plaintiff was recording police officers while they conducted a probationary search of her residence. The court found that, "[i]f a plaintiff has a clearly established constitutional right to record from a public place where the plaintiff has the lawful right to be, a plaintiff surely has such a right in his or her home." Id. "There simply is no principled bases upon which to find that although the right to record officers conducting their official duties only extends to duties performed in public, the right does not extend to those performed in a private residence." Id. The court explained that the "public's interest in ensuring that police officers properly carry out their duties and do not abuse the authority bestowed on them by society does not cease once they enter the private residence of a citizen." Id. In fact, the contrary is true. The court found "there appears to be an even greater interest for such recordings when a police officer's actions are shielded from the public's view." Id.

This Court agrees with the analysis in Crago and adopts it here. The right to not be arrested for filming police inside one's home is such a clearly logical extension from the right to be free from arrest for filming police in public, even the plainly incompetent would recognize it as such. Plaintiff was simply "engaging in the First Amendment protected activity of observing a government operation" by video recording the Deputies while they searched her son's bedroom in the privacy of her own residence. It is more than obvious that if Plaintiff had the First Amendment right to not be arrested for recording the Deputies if they were on a public street under Fordyce and its progeny, then Plaintiff has that same right to record Deputies in her own home. Of course, though, the First Amendment does not afford the right to record if Plaintiff were to have posed a threat to the Deputies' safety, or if there was probable cause to arrest Plaintiff. See, e.g., Talib v. Nicholas, No. CV 14-05871-JAK (DFM), 2019 WL 4546937, at *3 (C.D. Cal. Aug. 21, 2019) (finding that post-Nieves, "[t]he existence of probable cause for Plaintiff's arrest [ ] defeats his retaliatory arrest claim as a matter of law"). Accordingly, having found that genuine disputes preclude granting summary judgment as to whether Plaintiff's First Amendment right to be free from retaliatory arrests was violated, the Court DENIES Defendants' motion for summary judgment as to Plaintiff's claim of First Amendment retaliation because her right to be free from a retaliatory arrest for filming police inside her home has been clearly established at least as of June 2019. See Crago, 2014 WL 3849954, at *4.

C. Excessive Force

Plaintiff claims that the Deputies used excessive force because they shoved and pushed her down to the floor, dragged her down a wooden staircase, and handcuffed her too tightly. Defendants argue their use of force was reasonable under the Graham factors, and therefore summary judgment should be granted in their favor.

1. Whether Plaintiff's Right was Violated

As an initial matter, the Ninth Circuit has recognized that "the excess force and false arrest factual inquiries are distinct." Velazquez, 793 F.3d at 1024 (quoting Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004)). In other words, an officer may use force to make an arrest "regardless of whether the officer had probable cause to make the arrest." Id. (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921-22 (9th Cir. 2001)). Thus, "establishing a lack of probable cause to make an arrest does not establish an excessive force claim, and vice-versa." Id. (quoting Beier, 354 F.3d at 1064).

"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 v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). "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 courts 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. 1865). In doing so, courts should be mindful that "there are no per se rules in the Fourth Amendment excessive force context; rather, courts 'must still slosh [their] way through the factbound morass of 'reasonableness.' " Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (quoting Scott, 550 U.S. at 383, 127 S.Ct. 1769). "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. 1865. "Whether officers hypothetically could have used less painful, less injurious, or more effective force in executing an arrest is simply not the issue." Forrester v. City of San Diego, 25 F.3d 804, 808 (9th Cir. 1994).

"If the evidence, reviewed in the light most favorable to [Plaintiff], could support a finding of excessive force, then the defendants are not entitled to summary judgment." Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). "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." Id.; see also Seidner v. de Vries, 39 F.4th 591, 601 (9th Cir. 2022) (same). However, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott, 550 U.S. at 380, 127 S.Ct. 1769.

a) 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 both the "actual harm" and "the risk of harm" created by "the type and amount of force used." Id. at 1152-53.

Here, the Deputies and Plaintiff provide starkly different accounts of the incident. In viewing the record in the light most favorable to Plaintiff, the Court finds there was a non-trivial, minimal use of force used against her. After Plaintiff attempted to open the door, the video recording ended. At that point, Deputy Davis grabbed Plaintiff's arm to prevent her from entering the room.⁷ (Pls. Dep. at 41:24-42:1; JAE Ex. 2). According to Deputy Davis, Plaintiff resisted his attempt to grab her arm. (JAF 18; JAE Ex. 2). Then, Deputy Packham assisted Deputy Davis to grab and control each of Plaintiff's arms to "keep them under control and to place her into a handcuffing position." (Packham Dep. at 47:7-18; Ex. 1; Ex. 2). Deputy Packham testified that Plaintiff "was trying to pull away" from them while they were attempting to place her in handcuffs. (Packham Dep. at 49:11-19). While Deputies Packham and Davis were controlling Plaintiff's arms, Deputy French came back upstairs, grabbed Deputy Packham's handcuffs, and handcuffed Plaintiff. (French Dep. at 78:17-25; JAE Ex. 1).

7 Plaintiff disputes this fact in the Joint Appendix of Facts. See (Pls. Response to JAF 17). However, Plaintiff testified in her deposition that a deputy grabbed her after she tried to push the door open. (Pls. Dep. at 41:24-42:1). Thus, the Court finds this fact undisputed for purposes of this motion.

Then, according to Plaintiff, while she was already in handcuffs, she was forcefully taken to the ground. (Pls. Dep. at 19:42:2-43:2). In her words, "somebody jumped on top of me or pushed me very hard and I ended up on the floor." (Id. at 40:1-16); see also (Id. at 59:1-2 ("The officer jumped on me forcefully, and it resulted in me being thrown to the ground.")). According to each of the Deputies who witnessed the arrest—French, Baek, Davis, and Packham—Plaintiff's body went limp, and she fell to the floor after she was placed in handcuffs. See (French Dep. at 80:1-3; Packham Dep. at 49:2-4; JAE Ex. 1; Ex. 2; Ex. 4). In deciding a summary judgment motion, the Court cannot weigh the evidence or make credibility determinations. Thus, viewing the evidence in a light most favorable to Plaintiff as the nonmoving party, the Court finds there is a genuine dispute as to whether the Deputies forcefully took Plaintiff to the ground or if she went to the ground on her own.

While Plaintiff was seated in handcuffs, the Deputies asked her to stand up so they could escort her out of the home and conclude their search. (Pls. Dep. at 43:3-7). Plaintiff refused to stand up. (JAE Ex. 24 at 19:25). Plaintiff recounts that she could not stand because of the "excruciating pain" in her hip, pelvis, and back. (Pls. Dep. at 43:3-7). Plaintiff said she told the Deputies "several times" that she could not stand up, but they ignored her and were acting like she "was just not cooperating or something." (Id. at 43:3-15; French Dep. at 79:20-25). Plaintiff testified that she "tried" to stand up but "couldn't." (Pls. Dep. at 43:16-20). Plaintiff admitted that she was effectively "dead weight" as she was on the ground in handcuffs. (Id. at 43:21-25). Because she would not stand, Deputies French and Packham held onto Plaintiff from underneath each of her arms to carry her down the stairs. According to Plaintiff, the Deputies "dragged" her down the stairs and bumped her spine "several times as [she] went down the wooden stairs." (Id. at 44:17-21). Later in her deposition, Plaintiff said the Deputies were "carrying"—not dragging—her down the stairs when her spine was bumped because it was not properly lifted. (Id. at 44:14-45:4). Plaintiff's other son, Luke, witnessed Plaintiff being carried down the stairs. According to Luke, he did not see Plaintiff's back hit the stairs as she was being carried down. (Chanoski Dep. at 43:8-13). The only body part Luke saw hit the ground was Plaintiff's feet. (Id. at 43:14-16).

With respect to Plaintiff's handcuffs being too tight, there is no evidence that she suffered serious injuries or that her handcuffs were not loosened as soon as Plaintiff complained of pain. Once Plaintiff was brought outside, she was seen by paramedics. Plaintiff testified that her handcuffs were "really tight," that they were "cutting into" her wrists causing her to bleed. (Pls. Dep. at 65:10-17). However, Plaintiff could not recall if she had told anyone that the handcuffs were too tight. (Id. at 66:4-11). When paramedics from the Orange County Fire Authority arrived at the scene to assess Plaintiff, they reported that she did not have any visible injuries. (Id. at 66:22-24; JAE Ex. 2; Ex. 7A; Ex. 7B). The paramedics also "determined she was uninjured and did not need any further medical treatment." (JAE Ex. 7). Plaintiff testified that she had cuts on her wrists that had turned to scabs by the time her medical provider assessed her the following day. (JAE. Ex. 19 at 138:5-139:7; JAE Ex. 44). The day after the incident, on June 4, 2019, Plaintiff went to visit an urgent care doctor to treat her sinus infection and to examine her injuries from the incident. (Pls. Dep. at 133:18-23). According to her medical records, Plaintiff's "chief complaint" was of her "sinus congestion." (JAE Ex. 45). The medical records indicate Plaintiff's diagnoses as "acute sinusitis," "wheezing," "cough," and contusions on her right wrist, left wrist, left elbow, and left forearm. (Id.). The doctor did not note any lacerations or scabs. (Id.). According to Plaintiff, the bruises on her wrists lasted about three weeks. (Pls. Dep. at 139:12-16).

On June 24, 2019, Plaintiff visited an orthopedic surgeon. (JAE Ex. 45). According to the medical records from her visit, Plaintiff reported that she had pain around her right hip at a level of "6 out of 10" and that she is "able to ambulate." (Id.). An exam of her right hip demonstrated that she could raise her leg "without any apparent discomfort," she was "angling without a limp," external rotation did not cause discomfort," she had "full knee range of motion," and her motor and sensory exam was "normal." (Id.). The report concluded by noting that, "[c]linically her exam is quite benign," and that, "her x-rays show no fracture and a well fixed and well placed total hip arthroplasty." The orthopedic doctor noted it was "[u]nclear exactly what is causing her symptoms although she has a known extremely arthritic low back." The doctor found no "evidence of problem with her right hip implant." The doctor recommended continuing with "unrestricted activities and giving this more time to heal" and scheduled an appointment for the following month. At the follow-up appointment, on July 25, 2019, Plaintiff reported her pain was a "5 out of 10" and was not in physical therapy at that time. (Id.). The doctor noted it was "possible she has a lateral compression pelvic injury which would account for groin pain and posterior pelvic pain" that should "heal over time." Although her x-rays did not show a fracture, the doctor noted "that does not mean there is any bone contusion or bone marrow edema." The doctor recommended physical therapy. Plaintiff then began physical therapy for her pain, which she continued through December of 2019. (Pls. Dep. at 136:19-137:18). On September 4, 2019, Plaintiff reported to the doctor that her pain was at "4 out of 10" and "varies in severity." (JAE Ex. 45). The x-rays did not show any fracture, and her clinical exam was "completely benign," but she still reported significant pain. The doctor therefore recommended a CT scan for further evaluation of a potential fracture. The CT scan revealed no evidence of fracture.

Accordingly, considering the totality of the circumstances, the Court finds that Deputies Packham, Davis, and French used a minimal, non-trivial amount of force against Plaintiff related to their purported take-down of Plaintiff, carrying her down the stairs, and placing handcuffs on her too tightly.

b) Government 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). "Among these considerations, the 'most important' is the second factor—whether the suspect posed an immediate threat to others." Williamson, 23 F.4th at 1153 (quoting Rice, 989 F.3d at 1121).

First, "Penal Code § 148(a)(1) is a misdemeanor that is not an inherently dangerous or violent offense." Ballew v. City of Pasadena, No. CV 18-0712 FMO (ASx), 642 F.Supp.3d 1146, 1175 (C.D. Cal. Nov. 23, 2022). See Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir. 2010) (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). "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." Ballew, 642 F.Supp.3d at 1175 (quoting Young, 655 F.3d at 1164-65). This factor therefore weighs in Plaintiff's favor.

Second, a reasonable jury could not find that Plaintiff posed a threat to the safety of the officers, "the most important factor under Graham." See Rice, 989 F.3d at 1123. The Deputies never gave any indication that they believed Plaintiff posed a threat to their safety. Before Plaintiff was handcuffed, neither Deputy French nor Deputy Lopez—the two deputies searching Zachary's room—told Deputy Davis they were concerned about their safety. (Davis Dep. at 42:19-22, 62:19-63:7). Plaintiff never made any verbal threats towards any of the deputies. Further, even if a jury could conclude that Plaintiff posed some degree of a safety threat, such a threat was not "immediate" or "significant enough" to justify a takedown of a 67-year-old unarmed woman in her home under these circumstances. See Shafer, 868 F.3d at 1116. This factor thus weighs strongly in Plaintiff's favor.

Third, there is minimal evidence of resistance. At most, Plaintiff attempted to pull her arm away from Deputies Davis and Packham while they were trying to handcuff her. Once handcuffed, it is undisputed that Plaintiff stayed on the ground and refused to walk down the stairs. However, according to Plaintiff, she was unable to walk because she was in "excruciating pain." (Pls. Dep. at 40:1-12). Thus, while going limp may constitute passive resistance in some circumstances, the same cannot be said of being unable to walk because the 67-year-old person is in too much pain after being forcefully taken down and handcuffed. Accordingly, on balance, Defendants' interest in using force against Plaintiff is at its lowest in this case.

c) Balance of the 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.

Viewing the evidence most favorable to Plaintiff, a reasonable jury could find that Deputies Packham's and Davis's take-down of Plaintiff—who was already in handcuffs—was excessive. If a jury were to accept Plaintiff's version of the facts as true, there is nothing in the record to suggest that any degree of force was warranted for three deputies to arrest Plaintiff, a 67-year-old woman who at most committed a nonviolent offense, minimally resisted the Deputies' efforts, and posed no safety threat to them. See Riggs v. City of Anaheim, No. 8:21-cv-00749-JVS (ADSx), 2022 WL 17327319, at *6 (C.D. Cal. Aug. 17, 2022) (denying summary judgment as to an officer's qualified immunity where "the use of force was grabbing [plaintiff] by both shoulders and pushing her to the ground, which caused her injury and aggravated her existing condition" because, "[w]hile not lethal, the force described and shown on the camera footage demonstrates that this was a non-trivial use of force"). Looking at the totality of the circumstances, there is a triable issue as to whether forcefully taking Plaintiff down to the ground such that she continued to experience non-trivial pain for several months after the incident constituted excessive force. Defendants have provided no articulable reason for using such force against Plaintiff. Perhaps this is because Defendants deny having forcefully taken Plaintiff to the ground. Nevertheless, given the disputed facts, summary judgment would be inappropriate on this claim.

Next, the Court finds that the Deputies' act of carrying Plaintiff down the stairs was not excessive. "Even passive resistance may support the use of some degree of governmental force if necessary to attain compliance, however the level of force an individual's resistance will support is dependent on the factual circumstances underlying that resistance." Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012) (citation omitted).

The Ninth Circuit's recent decision in Williamson, 23 F.4th at 1152 is instructive on this point. There, the Ninth Circuit reversed the district court's finding that an officer used excessive force, holding that the type and amount of force used was "minimal" where the officers "did not strike [plaintiff], throw her to the ground, or use any compliance techniques or weapons for the purpose of inflicting pain on her." The plaintiff took part in a protest at a city council meeting where she laid down on the ground and refused to get up until she was arrested. Id. at 1149-50. The officers "held her by her arms and lifted her so they could pull her out of the meeting room after she went limp and refused to leave on her own or cooperate in being removed." Id. at 1152. The plaintiff alleged she suffered wrist and shoulder injuries from being forcibly removed. Id. at 1149. The court then compared the plaintiff's injuries to those in similar cases. The court found that the plaintiff's "injuries—a sprained wrist, mild swelling, and a torn rotator cuff—though not trivial, are roughly equivalent to those in Forrester (bruises, pinched nerve, broken wrist) and much less severe than those in Johnson (rendered a paraplegic)." Id. (citing Forrester, 25 F.3d at 807 and Johnson v. Cnty. of Los Angeles, 340 F.3d 787, 793 (9th Cir. 2003)). The Ninth Circuit concluded that, as in both Forrester and Johnson, the "intrusion at issue was minimal despite the injuries that occurred." In reversing the district court's decision because it focused exclusively on the plaintiff's injuries, the Ninth Circuit held that courts must consider "the type and amount of force used and the risk of harm it created." Id. (emphasis in original). "There can be situations in which the risk of harm presented is objectively less significant than the actual harm that results." Id. The court explained that, just because a person "reacts more adversely to a use of force than would be expected objectively, that does not itself establish that a reasonable officer on the scene failed to appreciate the risks presented and act accordingly." Id. (internal quotation marks omitted). The Ninth Circuit went on to hold that the officers did not use excessive force when balanced against the government's interest in removing plaintiff from "prevent[ing] duly installed government from performing its lawful functions." Id. at 1154.

Here, given that Plaintiff either refused to stand up or was unable to stand up due to her pain, there was no less intrusive option for the Deputies to remove Plaintiff from the scene so they could finish executing their probation search of Zachary's room. Although Plaintiff experienced pain in the months following the incident, her medical records reveal that her injuries were near non-existent. Thus, like in Williamson, the Court finds the Deputies did not use excessive force by carrying Plaintiff down the steps.

Lastly, the Deputies' handcuffing Plaintiff in a manner where the handcuffs gave her bruises for three weeks and potentially a small laceration was not excessive. There is no question that "handcuffing is a difficult exercise, often requiring some use of force." Fargo v. City of San Juan Bautista, 857 F.2d 638, 642 (9th Cir. 1988), abrogated on other grounds by Lewis v. Sacramento Cnty., 98 F.3d 434, 440 (9th Cir. 1996); see Stevenson v. Jones, 254 F. Supp. 3d 1080, 1092 (N.D. Cal. 2017) (while courts in this Circuit have held tight handcuffs could amount to excessive force, "no specific rule had been articulated as to what amount of tightness makes handcuffs too tight, and the facts of the Ninth Circuit's cases suggest[ ] that too-tight handcuffing usually involved significant injury to the hand and/or a refusal to loosen the handcuffs once the cuffed person complained of the tightness"). Here, at most, Plaintiff suffered bruises and a scab that healed within three weeks, which demonstrates the minimal force used. See Williamson, 23 F.4th at 1152 (holding that the "intrusion at issue was minimal" despite the plaintiff suffering a torn rotator cuff, a sprained wrist, and mild swelling). Moreover, the paramedics loosened Plaintiff's handcuffs as soon as the paramedics observed the handcuffs may have been too tight. See Echevarria v. City of Santa Monica, No. 2:21-cv-05603-SVW-AGR, 2022 WL 2903123, at *9 (C.D. Cal. May 26, 2022) (finding it was it was not excessive to handcuff the plaintiff where she "suffered no pain or injury, and made no request for officers to loosen the cuffs"); Kuhlken v. Cnty. of San Diego, 764 F. App'x 612, 614 (9th Cir. 2019) (finding the "minimal nature of the intrusion" from tight handcuffs that caused pain and "multiple minor abrasions" "weigh toward a conclusion that the amount of force Deputy Smith used was reasonable and not excessive").

In sum, viewing the evidence most favorably to Plaintiff, a reasonable jury could conclude that the Deputies used excessive force when they took Plaintiff down to the ground to effectuate her arrest. However, the Deputies did not use excessive force in carrying her down the stairs or using handcuffs. Therefore, Defendants' motion is DENIED with respect to the objective reasonableness of the force used insofar as it relates to Deputies Packham and Davis forcefully taking Plaintiff down to the ground.

2. Whether the Right was Clearly Established

Although the Court finds there was a genuine dispute as to whether the use of force to take down Plaintiff was unreasonable, "to deny qualified immunity to the officers in this case [the court] must also determine that at the time of the incident it was clearly established that such conduct would violate [Plaintiff's] Fourth Amendment rights." Nelson, 685 F.3d at 883. "The dispositive question is whether the violative nature of particular conduct is clearly established." Mullenix, 577 U.S. at 12, 136 S.Ct. 305 (internal quotation omitted). "This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. (internal quotation omitted). "Such specificity is especially important in the Fourth Amendment context, where the [Supreme] Court has recognized that 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." Id. (internal quotation and alteration omitted). "Use of excessive force is an area of the law 'in which the result depends very much on the facts of each case,' and thus police officers are entitled to qualified immunity unless existing precedent 'squarely governs' the specific facts at issue." Kisela, 138 S. Ct. at 1153 (quoting Mullenix, 577 U.S. at 12, 136 S.Ct. 305). Moreover, "where the officers' entitlement to qualified immunity depends on the resolution of disputed issues of fact in their favor, and against the non-moving party, summary judgment is not appropriate." Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003); see also Orn v. City of Tacoma, 949 F.3d 1167, 1181 (9th Cir. 2020) (denying qualified immunity because "[w]hat [the defendant] most forcefully contests is whether his alternative account of the shooting should be accepted as true" and explaining that "actual disputes of that order must be resolved by a jury, not by a court adjudicating a motion for summary judgment").

Here, the law was clearly established that individuals had a right to be "free from the application of non-trivial force for engaging in mere passive resistance." Rice, 989 F.3d at 1126 (citing Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013)). This right "was clearly established before December 2011." Id. at 1127; see also Smith v. City & Cnty. of Los Angeles, No. 2:20-cv-03118-RGK-E, 2021 WL 4812320, at *8 (C.D. Cal. May 25, 2021). Moreover, in Meredith v. Erath, the Ninth Circuit found that officers were not entitled to qualified immunity on an excessive force claim where the officer "grabbed [plaintiff] by her arms" and "forcibly threw her to the ground." 342 F.3d 1057, 1061 (9th Cir. 2003). "If there was no need for force, then the use of force violates a plaintiff's constitutional rights." Riggs, 2022 WL 17327319, at *8; P.B. v. Koch, 96 F.3d 1298, 1303 n.4 (9th Cir. 1996) ("[S]ince there was no need for force, [the official's] use of force was objectively unreasonable."). Having found that the law clearly established that officers may not use non-trivial force on Plaintiff who posed no threat to the officers and engaged in passive resistance and found that a reasonable jury could conclude that the Deputies used excessive force when they took Plaintiff down to the ground to effectuate her arrest, the Deputies are not entitled to qualified immunity. Thus, Defendants' motion for summary judgment as to Plaintiff's claim of excessive force is DENIED.

D. Monell Liability

A local governing body may be liable under Section 1983 only when "action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipalities can be held liable only for their own illegal acts but may not be held liable based on respondeat superior. Id. "Rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee." Bryan Cnty. v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Thus, "a plaintiff seeking to impose liability on a municipality under § 1983 [must] identify a municipal policy or custom that caused the plaintiff's injury." Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1232-33 (9th Cir.2011) (internal quotation marks omitted); Rivera v. Cnty. of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014) ("[M]unicipalities, including counties and their sheriff's departments, can only be liable under § 1983 if an unconstitutional action 'implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.' " (quoting Monell, 436 U.S. at 690, 98 S.Ct. 2018)). "The Supreme Court has made clear that policies can include written policies, unwritten customs and practices, failure to train municipal employees on avoiding certain obvious constitutional violations, and, in rare instances, single constitutional violations are so inconsistent with constitutional rights that even such a single instance indicates at least deliberate indifference of the municipality." Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021) (internal citations omitted).

Plaintiff alleges two⁸ theories of Monell liability: a failure to train and unconstitutional customs and policies. First, "Monell liability can turn on a municipality's failure to train its officers, but the failure must amount to a 'deliberate indifference to the rights of persons with whom the police come into contact.' " Vanegas, 46 F.4th at 1167 (quoting Flores v. Cnty. of Los Angeles, 758 F.3d 1154, 1158 (9th Cir. 2014)). "To allege such a failure, the plaintiff must establish 'sufficient facts to support a reasonable inference (1) of a constitutional violation; (2) of a municipal training policy that amounts to a deliberate indifference to constitutional rights; and (3) that the constitutional injury would not have resulted if the municipality properly trained their employees.' " Id. (quoting Benavidez, 993 F.3d at 1153-54). "Monell liability is 'at its most tenuous where a claim turns on a failure to train.' " Id. (quoting Benavidez, 993 F.3d. at 1154).

8 Plaintiff voluntarily dismissed her claim for Monell liability based on the County's failure to adequately screen and hire. (MSJ at 55). Accordingly, the Court GRANTS Defendants' motion for summary judgment as to Plaintiff's claim four. (Although the Motion references Plaintiff's failure to screen and hire claim as Plaintiff's fifth cause of action, the First Amended Complaint makes clear that Plaintiff's failure to screen and hire claim is Plaintiff's fourth claim, not her fifth claim. See (FAC ¶¶ 97-109)).

Proving Monell liability under a failure-to-train theory "usually requires a pattern of similar constitutional violations by untrained employees." Id. (internal quotation marks omitted). Here, like in Vanegas, Plaintiff fails to establish such a pattern. In opposing Defendants' motion, Plaintiff fails to offer any evidence of a pattern of similar constitutional violations. Plaintiff also fails to articulate which of the County's training policies amount to "deliberate indifference" of a constitutional right. Thus, the Court GRANTS Defendants' motion for summary judgment as to Plaintiff's fifth claim of Monell liability based on the County's failure to train.

Plaintiff's second theory for Monell liability—unconstitutional policies and customs—fails for the same reason as Plaintiff's failure to train theory: Plaintiff offers no evidence of an unconstitutional policy or custom. To the contrary, Plaintiff identifies customs that demonstrate the opposite. (MSJ at 54). The County had policies and procedures in place in 2019 addressing the use of force, searches and seizures, and arrest techniques, and the citizen's right to record policy activity and arrest under Penal Code § 148. See (JAF 33-35; JAE Exs. 15, 16, 17). Even assuming that Plaintiff had cited evidence sufficient to establish a policy, custom, or practice, Plaintiff must also demonstrate that the County's policy "reflects deliberate indifference to the constitutional rights of its inhabitants." Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (en banc) (citing City of Canton v. Harris, 489 U.S. 378, 392, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Plaintiff has made no such showing. Accordingly, the Court GRANTS Defendants' motion for summary judgment as to Plaintiff's sixth claim of Monell liability based on the County's unconstitutional customs and policies.

E. Orange County Sheriff's Department

Defendants argue that Orange County Sheriff's Department's ("OCSD") must be dismissed as an improper duplicate defendant. (MSJ at 55). Defendants claim that OCSD is an administrative governmental department that is part of the County and that Plaintiff cannot distinguish between the two; thus, it is redundant to name both the County and OCSD.

"A city police department is an entity separate from the city and subject to suit." Mann v. City of Chula Vista, No. 18-cv-2525-WQH-MDD, 2020 WL 5759749, at *3 (S.D. Cal. Sept. 28, 2020). "A city and its police department are both proper defendants where a plaintiff alleges distinct conduct by the entities." Id. "However, courts routinely dismiss police departments as duplicative defendants where the claims against a city and its police department arise from the same facts." See id.; Grant v. City of Long Beach, No. CV 21-06666 JVS (JEMx), 2022 WL 17403068, at *9 (C.D. Cal. Nov. 28, 2022) (granting summary judgment as to claims brought against the Long Beach Police Department where the plaintiffs failed to address whether the defendant was duplicative of the City of Long Beach); Bhandari v. Nat'l City, No. 3:21-cv-01652-BTM-MDD, 2022 WL 1308034, at *6 (S.D. Cal. May 2, 2022) (dismissing police department because the plaintiff alleged the same claims premised on the same facts against both the department and the city and described both entities conjunctively).

Other than citing back to Plaintiff's FAC, Plaintiff provides no facts distinguishing between the County and OCSD. As such, Plaintiff appears to acknowledge that the claims against the County and OCSD arise from the same facts, and therefore dismissal of OCSD is proper. Accordingly, the Court GRANTS Defendants' summary judgment as to all claims against OCSD.

F. Punitive Damages

Defendants also move for summary judgment on Plaintiff's request for punitive damages. To recover for punitive damages against an individual officer in a Section 1983 case, a plaintiff must show that the officers' conduct is "motivated by evil motive or intent" or "involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). The Ninth Circuit has also explained that "[t]he standard for punitive damages under § 1983 mirrors the standard for punitive damages under common law tort cases," which extends to "malicious, wanton, or oppressive acts or omissions." Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005).

As discussed above, there is a dispute of material fact as to whether the Deputies unlawfully arrested Plaintiff without probable cause, whether the Deputies retaliated against her for video recording the Deputies in violation of her clearly established First Amendment right, and whether Deputies Packham and Davis used excessive force when they forcefully took Plaintiff to the ground. For similar reasons, there are genuine disputes of material fact regarding whether these unlawful acts were carried out with evil motive or intent or with malice. This Court "is not inclined to take the question of punitive damages out of the factfinder's hands where there are still viable claims for, among other things, an unreasonable seizure and excessive force, not to mention an intentional effort to chill/retaliate against Plaintiff's exercise of [her] rights under the First Amendment." See Johnson, 2020 WL 5224350, at *30; Fortson v. City of Los Angeles, 628 F.Supp.3d 976, 995-96 (C.D. Cal. 2022) (denying summary judgment on the issue of punitive damages where there was a genuine dispute as to the plaintiff's claims of excessive force and retaliation). Accordingly, the Court DENIES Defendants' motion for summary judgment as to Plaintiff's request for punitive damages.

IV. CONCLUSION

For the reasons stated above, the Court GRANTS-IN-PART and DENIES-IN-PART Defendants' Motion for Summary Judgment as follows:

• DENIED as to Plaintiff's first claim of First Amendment retaliation against Deputies French, Davis, and Packham, but GRANTED as to Deputy Baek;

• DENIED as to Plaintiff's second claim of Fourth Amendment excessive force against Deputies French, Davis, and Packham, but GRANTED as to Deputy Baek;

• DENIED as to Plaintiff's third claim of Fourth Amendment unlawful arrest against Deputies French, Davis, and Packham, but GRANTED as to Deputy Baek;

• GRANTED as to Plaintiff's fourth claim of Monell liability for failure to properly screen and hire;

• GRANTED as to Plaintiff's fifth claim of Monell liability for failure to properly train;

• GRANTED as to Plaintiff's sixth claim of Monell liability for unconstitutional customs and policies;

• GRANTED as to Plaintiff's claims against OCSD;

• DENIED as to Plaintiff's request for punitive damages.

IT IS SO ORDERED.