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holding the plaintiff "sufficiently alleged retaliation in violation of the First Amendment" where "he was repeatedly arrested while attempting to videotape scenes of public interest that were open to the general public," and had "his cameras seized repeatedly"
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CASE NO. 12-CV-2186 BEN (KSC)
09-17-2014
AMERICAN NEWS AND INFORMATION SERVICES, INC.; et al., Plaintiffs, v. WILLIAM D. GORE; et al., Defendants.
ORDER:
• GRANTING IN PART AND DENYING IN PART COUNTY DEFENDANTS' MOTION TO DISMISS • GRANTING CITY'S MOTION TO DISMISS • DENYING CITY'S MOTION TO STRIKE AS MOOT [Docket Nos. 54, 55, 56]
Presently before the Court is: (1) a Motion to Dismiss filed by the City of San Diego and William Lansdowne (Docket No. 54); (2) a Motion to Strike filed by the City of San Diego and William Lansdowne (Docket No. 55); and (3) a Motion to Dismiss filed by the County of San Diego, William D. Gore, Jan Caldwell, Thomas Seiver, Brendan Cook, Jesse Allensworth, James Breneman, Michael Proctor, the San Diego County Sheriff's Department, and Bonnie Dumanis (Docket No. 56). For the reasons stated below, the County Defendants' motion to dismiss is GRANTED in part and DENIED in part, the City's motion to dismiss is GRANTED, and the City's motion to strike is DENIED as moot.
BACKGROUND
The following facts are drawn from the allegations of the Second Amended Complaint ("SAC")
Plaintiff James C. Playford is a local freelance photojournalist and has been an agent of Plaintiff American News and Information Services, Inc. ("American News") since February 2010. American News is a Connecticut news and information corporation wholly owned by Plaintiff Edward A. Peruta. Plaintiffs assert seven claims against San Diego law enforcement personnel arising from the non-renewal of Playford's San Diego Police Department ("SDPD") issued media credentials, Playford's February 28, 2010, March 9, 2010, December 1, 2011, and May 25, 2012 arrests, and the search and seizure of Playford's camera during three of his arrests.
"Defendants" is used to collectively refer to: (1) "City Defendants"— City of San Diego; San Diego Police Chief William Lansdowne: and (2) "County Defendants"— San Diego County; San Diego County Sheriff William Gore; San Diego County Sheriff's Dept. Public Affairs Director Jan Caldwell; San Diego County Sheriff's Deputies Thomas Seiver, Brendan Cook, Jesse Allensworth, James Breneman, and Michael Proctor; and San Diego County District Attorney Bonnie Dumanis.
Although Playford was not arrested on February 28, 2010, but later, after Playford filed a complaint against Deputy Seiver, the parties refer to it as the February 28/2010 arrest.
A. Media Credentials
Playford received media credentials from the SDPD in 2007. On July 25, 2008, Playford filmed San Diego County Sheriff's Deputies beating Allen Baker outside a bar in Ramona, California, which resulted in Playford and Baker filing a civil rights action against San Diego County. On August 24, 2009, the City warned Playford by letter that his media credentials were in danger of being revoked because of information it had received from the San Diego County Sheriff's Department about "complaints and court actions against deputies in which there had been apparent questionable recollections and accounting of the facts." The letter also stated that possessing a media credential was "a privilege and not a right."
In October 2009, Playford recorded and posted online video recordings of a makeshift brothel in McGonigle Canyon, the existence of which the SDPD had denied. Playford was notified by letter dated January 11, 2010 that his media credentials were not being renewed "because it was clear to the SDPD that Playford's pattern of behavior had not changed."
Sometime after January 1, 2009 and before May 25, 2012, the San Diego County Sheriff's Department ("SDCSD") Public Affairs Director Jan Caldwell distributed or directed the distribution of a captioned photograph of Playford, stating: "Per Jan Caldwell J.C. Playford is not a member of the media" to SDCSD deputies and other law enforcement agencies in San Diego County.
B. Playford Arrests
Playford alleges he was arrested four times in retaliation for his exercise of his First Amendment right to videotape and report on matters of public interest, including law enforcement activities occurring in public.
1. February 28,2010
On February 28, 2010, Playford was videotaping Deputy Seiver interviewing two individuals at a dispatch scene in Ramona in which law enforcement personnel were responding to an alleged assault with a deadly weapon. The scene was not closed to the public in any way. Another deputy observed that Playford was no closer than ten to fifteen feet from Deputy Seiver. Playford was not arrested at the scene although Playford filed a complaint with Internal Affairs against Deputy Seiver indicating he ran toward and pushed Playford in the street. After filing the Internal Affairs complaint, Playford was charged with obstructing or delaying an officer in violation of California Penal Code § 148(a)(1). In a trial consolidated with another § 148(a)(1) charge for the March 9, 2010 arrest, discussed below, the jury deadlocked. Playford then plead guilty to disturbing the peace.
2. March 9, 2010
On March 9, 2010, Playford arrived at a location where a mentally ill woman was reportedly making homicidal and suicidal threats. Playford was in an area open to the general public, i.e. a grocery store parking lot where members of the general public were parking and walking freely, approximately fifty feet away from the response scene. He was videotaping Deputy Seiver interviewing the woman. Playford was again arrested for obstructing or delaying a police officer in violation of § 148(a)(1). Law enforcement seized Playford's video camera during this incident. As noted above, this charge was consolidated for trial with the February 28, 2010 charge. The jury deadlocked, but Playford plead guilty to disturbing the peace.
3. December 1, 2011
On December 1, 2011, Playford responded to reports of a bomb threat at the Vista office of a Congressman. Playford stayed outside motor vehicle detour points and police tape boundaries. Playford observed other members of the public walking in the area. While using his cell phone, Playford was confronted, detained, and arrested by Deputy Cook for violation of § 148(a)(1). Law enforcement seized Playford's video camera and copied its contents. On May 18, 2012, Playford was convicted of violating § 148(a)(1).
4. May 25, 2012
On May 25, 2012, Playford approached a multiple fatality, highway motor vehicle accident scene. Playford was on a public street that was closed to traffic, but accesible to some members of the media. Deputies Breneman and Proctor advised Playford the America News credentials he presented did not allow him to be within the accident scene. Playford objected to his exclusion from the accident scene and refused to leave. He was then was arrested for violation of § 148(a)(1). Law enforcement seized Playford's video camera and American News credentials during this incident. Playford was found not guilty of violating § 148(a)(1).
C. Other Instances of Exclusion
On March 2, 2010, Playford and Peruta were denied access to an area overlooking Rancho Bernardo Community Park where San Diego law enforcement were recovering the remains of a missing child and murder victim.
On March 6, 2010, unidentified American News personnel were denied access to an area north of Pala Temecula Road where San Diego law enforcement were recovering the remains of another missing child and murder victim.
On March 15, 2012 Playford and Peruta responded to reports of a stolen motor vehicle shooting at a casino, but were excluded by the casino based on guidance from SDCSD because they lacked appropriate media credentials.
II. Procedural History
On March 25, 2013, the Court granted Defendants' motions to dismiss, but granted Plaintiffs leave to amend. Plaintiffs filed a First Amended Complaint on April 15, 2013. The City and County Defendants filed separate motions to dismiss Plaintiffs' amended claims pursuant to Federal Rule of Civil Procedure 12(b)(6) on various grounds raised in the present motions, including untimeliness, immunity, and failure to allege sufficient facts to support any civil rights violation. (Docket Nos. 35, 37.) The City Defendants also filed a motion to strike Plaintiffs' request for punitive damages pursuant to Federal Rule of Civil Procedure 12(f). (Docket No. 36.)
While these motions were pending, Plaintiffs filed a motion seeking leave to file a Second Amended Complaint ("SAC"). The Court granted the motion and Plaintiffs filed the SAC. (Docket No. 53.) Defendants again filed motions to dismiss and strike. These motions are fully briefed and before the Court. (Docket Nos. 54, 55, 56.)
DISCUSSION
I. Legal Standards
A. Motions to Dismiss
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) test the sufficiency of this required showing. KM. State Inv. Council v. Ernst & Young LLP, 641 F.3d 1089,1094 (9th Cir. 2011). "A claim is facially plausible 'when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."' Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).
B. Leave to Amend
"Although a district court should grant the plaintiff leave to amend if the complaint can possibly be cured by additional factual allegations, dismissal without leave to amend is proper if it is clear that the complaint could not be saved by amendment." Id. A "district court's discretion over amendments is especially broad where the court has already given a plaintiff one or more opportunities to amend his complaint." BCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987).
I. Claims
A. Section 1983 Claims
"To state a claim for relief under section 1983, [] Plaintiffs must plead two essential elements: 1) that the Defendants acted under color of state law; and 2) that the Defendants caused them to be deprived of a right secured by the Constitution and laws of the United States." Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997). Defendants do not dispute that they acted under the color of state law, but they contend that none of the conduct alleged establishes a deprivation of Plaintiffs' civil rights.
1. Claim One: First Amendment Retaliation
The County Defendants move to dismiss claim one based on: (a) failure to allege any First Amendment violation; (b) that the claims premised on the February 28, 2010 and March 9, 2010 incidents are barred by the statute of limitations; (c) that the claims premised on the February 28, 2010, March 9, 2010, and December 1, 2011 arrests are improper attempts to invalidate criminal judgments, and (d) qualified immunity.
a. The SAC Alleges a First Amendment Violation
County Defendants assert that Playford was not arrested in retaliation for exercising his First Amendment rights, but rather because he appeared at crime scenes and obstructed and interfered with law enforcement in the midst of investigations. This version of events might ultimately prove true, but as explained in more detail below, it contradicts the allegations of the SAC that the Court must accepts as true at the pleading stage.
"In this Circuit, an individual has a right 'to be free from police action motivated by retaliatory animus." Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013) (quoting Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1231-32 (9th Cir. 2006)). In general, the public enjoys a "First Amendment right to film matters of public interest." Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); see also Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) ("the First Amendment's aegis . . . encompasses a range of conduct related to the gathering and dissemination of information . . . The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles.").
"To demonstrate retaliation in violation of the First Amendment, [a plaintiff] must [show] that [Defendants] took action that would chill or silence a person of ordinary firmness from future First Amendment activities." Skoog, 469 F.3d at 1231-32. The Ninth Circuit has explicitly "recognized that a retaliatory police action such as an arrest or search and seizure would chill a person of ordinary firmness from engaging in future First Amendment activity." Ford, 706 F.3d at 1193.
The Court is mindful that only one side of this story is before the Court, as is often the case in considering a motion to dismiss, but, based on the allegations of the SAC, Playford has alleged the County Defendants took action that would chill or silence a person of ordinary firmness from future First Amendment activities.
Playford alleges that he was repeatedly arrested while attempting to videotape scenes of public interest that were open to the general public. (SAC ¶¶ 93-97 (" . . . in an Albertson's food store parking lot with members of the general public parking, walking freely, entering and exiting the store with groceries, in and around the immediate area . . ."), ¶ 109 ("Playford observed in his vicinity nonpublic safety civilians freely walking and using their cellphones . . ."). Playford alleges he was arrested and his cameras seized repeatedly for attempting to film matters of public interest. Additionally, Playford also alleges in detail an increasingly adversarial relationship with the County in which he appears to have been targeted by SDCSD deputies because of his prior unfavorable testimony concerning deputies' conduct toward him and others. Thus, accepting these allegations as true, it appears that Playford has sufficiently alleged retaliation in violation of the First Amendment. Skoog, 469 F.3d at 1231-32.
The Court's analysis focuses on the allegations as to Playford because, as the Court later explains, there is no basis for any oithe claims to be asserted by Peruta or American News.
Playford's May 25, 2012 arrest, on the other hand, cannot form the basis for his retaliation claim. Playford alleges he was in an accident scene closed to the public, he objected to being told he could not be there, refused to leave, and was arrested. As this Court previously ruled, individuals, including members of the media, can be excluded from accident or crime scenes without violating the First Amendment. Houchins v. KQED, 438 U.S. 1, 10-11 (1978) (finding "[t]he press has no First Amendment right to access accident or crime scenes if the general public is excluded."); accord Branzburg v. Hayes, 408 U.S. 665, 684-85 (1972) ("Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded."); Chavez v. City of Oakland, 2009 WL 1537875, at *3 ("The press has no First Amendment right to access accident or crime scenes if the general public is excluded"); Watson v. Cronin, 384 F. Supp. 652, 657 (D. Colo. 1974) ("A reporter does not have an absolute unqualified right of access to news."); L.A. Free Press, Inc. v. City of L.A., 9 Cal. App. 3d 448, 455 (2d Dist. 1970) (finding petitioner's "status as the publisher of a weekly paper did not give the petitioner a special right of access to crime or disaster scenes under the First Amendment"). Based on the allegations of the SAC, the May 25, 2012 arrest occurred within an accident scene closed to the general public that Playford had no First Amendment right to be within. The allegations of his SAC indicate he objected to being excluded from the accident scene, refused to leave the accident scene and was arrested for it. Playford's First Amendment retaliation claim cannot succeed based on the May 25, 2012 arrest.
b. Statute of Limitations as to the February 28,2010 and March 9,2010 Incidents
Notwithstanding the sufficiency of Plaintiffs' allegations, the County Defendants argue that Plaintiffs' claims premised on the February 28, 2010 and March 9, 2010 incidents are barred by the statute of limitations. Plaintiff responds that these claims are timely because the statute of limitations was tolled under California Government Code § 945.3 while related charges were pending in Superior Court.
"Claims under § 1983 are subject to the state statute of limitations for personal injury claims. In California, that state rule is two years." Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 701 n.3 (9th Cir. 2009) (identifying California's state rule as two years and acknowledging it was one year prior to 2003). A "claim accrues when the plaintiff knows or should know of the injury that is the basis of the cause of action." Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009). "Federal Rule of Civil Procedure 3 [] determine[s] when a § 1983 action commences for purposes of the statute of limitations," and "Rule 3 provides that '[a] civil action is commenced by filing a complaint with the court.'" Id, The initial complaint was filed on September 6, 2012, more than two years after the alleged February 28, 2010 and March 9, 2010 incidents took place; therefore, absent tolling, Playford's claims premised on those incidents would be barred by the statute of limitations. Id.
"State law also governs [the] application of tolling doctrines," and "[i]n California, the statute of limitations for section 1983 actions is tolled by Cal. Gov't Code § 945.3 while criminal charges are pending." Torres v. City of Santa Ana, 108 F.3d 224, 226 (9th Cir. 1997). California Government Code § 945.3 states as follows:
No person charged . . . [with] a criminal offense may bring a civil action for money or damages against a peace officer or nublic entity employing a peace officer based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigation or reporting the offense or arresting or detaining the accused, while the charges against the accused are pending before a superior court.Cal. Gov't Code § 945.3 (emphasis added). If § 945.3 applies, Playford's claim is timely. Criminal charges were filed against Playford arising from the February 28, 2010 and March 9, 2010 incidents and resolved through a plea bargain after trial on March 29, 2011, less than two years before this action was commenced on September 6, 2012.
Any applicable statute of limitations for filing these actions shall be tolled during the period that the charges are pending before a superior court.
The County Defendants argue that § 945.3 is inapplicable because Playford's claims do not relate to the "offense for which [he] was charged." As a result of the February 28, 2010 and March 9, 2010 incidents, Playford was charged with obstructing or delaying a police officer, and after a consolidated jury trial which resulted in a deadlocked jury, Playford accepted a plea bargain and pled guilty to disturbing the peace. Playford asserts that he was arrested in retaliation for his First Amendment activities.
Playford's claims need only "relat[e] to" the offense for which he was charged. Accepting the truth of the allegations of the SAC and drawing all reasonable inferences in favor of Playford, the statute of limitations may be tolled by § 945.3. See Harding v. Galcern, 889 F.2d 906, 907-909 (finding § 945.3 tolled the statute of limitations for § 1983 claims based on deputies interfering with the plaintiff's First Amendment rights for the period when charges for disturbing the peace and obstructing a peace officer were pending).
c. Heck v. Humphrey
County Defendants additionally argue Playford's First Amendment retaliation claim cannot proceed based on his February 28, 2010, March 9, 2010, and December 1, 2011 arrests under Heck v. Humphrey. 512 U.S. 477 (1994). County Defendants assert that Playford's guilty plea to resolve the prosecutions associated with the February 28, 2010 and March 9, 2010 incidents and his conviction for the December 1, 2011 incident bar Playford's First Amendment retaliation claim.
Under Heck, a plaintiff cannot "recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid" unless the conviction has been reversed, expunged, or declared invalid. 512 U.S. at 486-87. In short, the Court "must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction." Hooper v. Cnty. of San Diego, 629 F.3d 1127, 1130 (quoting Heck, 512 U.S. at 487). "If the answer is yes, the suit is barred." Id. As explained below, the Court does not have sufficient information to answer yes or no.
In moving to dismiss based on Heck, County Defendants do not discuss the provision to which Playford plead guilty for the February 28, 2010 and March 9, 2010 incidents or explain in any detail the factual basis for his conviction for the December 1, 2011 incident.
The SAC indicates Playford plead guilty to disturbing the peace, although his Opposition brief indicates he plead guilty to disorderly conduct.
Playford's convictions could be based on facts distinct from those giving rise to his First Amendment retaliation claim. In Hooper v. San Diego, the Ninth Circuit explained that multiple '"factual contexts' can exist during 'one continuous chain of events' — or in the words of Yount, during a 'continuous transaction.'" 629 F.3d 1127, 1131-32 (9th Cir. 2011) (discussing and applying the California Supreme Court's interpretation of § 148(a)(1) in Yount v. City of Sacramento, 43 Cal. 4th 885, 889 (2008)). Even if the course of interaction between Playford and SDCSD deputies was "one continuous chain of events" each time they encountered each other, there may be facts giving rise to Playford's claim that were not the basis for his plea or conviction. If this is the case, Heck does not bar his claim.
Yount v. City of Sacramento illustrates the significance of a factual basis for convictions in its Heck analysis. 43 Cal. 4th at 895. The court noted "the trial judge did not rely solely on the bare record of the criminal proceedings in analyzing the scope of [plaintiff's] criminal conviction, but considered also, the testimony of seven eye witnesses." Id. The court went on to distinguish cases in which courts lacked the factual basis for pleas necessary for the Heck analysis. Id. In applying Heck, the Yount court outlines in detail the course of events between the plaintiff and law enforcement and identifies which events were barred by Heck and which were not. Here, the Court lacks sufficient information at this stage of the proceedings to determine whether Playford's First Amendment retaliation claim is barred by Heck v. Humphrey.
d. Qualified Immunity
"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012). There are two prongs to the qualified immunity analysis: (1) "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" and (2) "whether the right was clearly established"? Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).
The Court has already found that Playford has sufficiently alleged a violation of a constitutional right. The Court now considers whether Playford's right to be free from retaliatory arrests for his First Amendment activities was clearly established at the time. "To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichle, 132 S. Ct. 2093 (internal quotation marks omitted). "[E]xisting precedent must have placed the statutory or constitutional question beyond debate." Id.
The parties focus on whether it was clearly established that a retaliatory arrest could occur in the presence of probable cause for the arrest because Playford only asserts the absence of probable cause for the May 25, 2012 arrest. Plaintiffs' rely on Skoog, 469 F.3d 1221, and Ford, 706 F.3d 1188, previously discussed. County Defendants rely on Reichle, 132 S.Ct. 2088, and Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013). County Defendants argue that it is not clearly established that an individual has a right to be free from retaliatory arrest even if probable cause exists for that action.
In Skoog, decided in 2006, the Ninth Circuit acknowledged that whether the absence of probable cause was necessary to plead a First Amendment retaliation claim was an open question in the Circuit and found "that a plaintiff need not plead the absence of probable cause in order to state a claim for retaliation." 469 F.3d at 1232. In Reichle, the Supreme Court found that the Supreme Court had never recognized the "right to be free from a retaliatory arrest that is otherwise supported by probable cause" and declined to reach the issue. 132 S. Ct. at 2094-95 (emphasis added). The court went on to analyze whether the Tenth Circuit's precedent clearly established the right, on the assumption that "Court of Appeals authority could be a dispositive source of clearly established law." Id. at 2094 (emphasis added). The court found that the right to be free from a retaliatory arrest that is supported by probable cause, previously clearly established in the Tenth Circuit, became uncertain following the Supreme Court's 2006 decision in Hartman v. Moore, 547 U.S. 250 (2006). Id. 2096-97. In Hartman, the Supreme Court found the absence of probable cause was a requirement for a retaliatory prosecution claim. Hartman, 547 U.S. at 265-66 (emphasis added). In finding sufficient uncertainty in the Tenth Circuit precedent to find defendants were entitled to qualified immunity, the court noted that "[a] reasonable official could have interpreted Hartman's rationale to apply to retaliatory arrests." Reichle, 132 S. Ct. at 2095.
After recognizing the "right of an individual to be free of police action motivated by retaliatory animus but for which there was probable cause" the court found the defendants were entitled to qualified immunity because the court only recognized the right for the first time in its decision. 469 F.3d at 1235.
In Skoog, the court was considering whether a plaintiff had to plead the absence of probable cause for a search and seizure, rather than an arrest, as part of plaintiff's retaliation claim, however, the parties do not suggest this distinction alters the Court's analysis of this issue.
A similar uncertainty did not happen in the Ninth Circuit, at least not for more than seven months, all of which preceded the conduct alleged here. Hartman was decided on April 26, 2006 and the Ninth Circuit not only discussed it, but also relied on it in Skoog, decided on November 20, 2006, in concluding that a plaintiff need not plead the absence of probable cause to state a claim for retaliation. The only question then is whether the law established in Skoog, that plaintiffs need not plead the absence of probable cause for a retaliation claim, has remained clear.
Reichle's statement that the Supreme Court has not previously recognized this right should not have created uncertainty because the Supreme Court also declined to reach the issue. Reichle, 132 S. Ct. at 2093 (electing to analyze the second prong and avoid the "more difficult question whether the purported right exists at all). Additionally, it is possible for a circuit court of appeals, like the Ninth Circuit, to recognize rights the Supreme Court has yet to address. This is increasingly likely when the Supreme Court has the option, exercised in Reichle, not to address the first prong of the qualified immunity analysis, i.e. whether a individual has the right to be free from a retaliatory arrest supported by probable cause. Id. The Supreme Court would not have spent the bulk of the Reichle decision analyzing the Tenth Circuit's precedent for purposes of the qualified immunity analysis if only rights recognized by the Supreme Court are clearly established.
The Reichle court does provide significant analysis of the similarities between retaliatory prosecution claims that, under Hartman, require the plaintiff to plead the absence of probable cause and retaliatory arrest claims. Id. at 2095-96. This analysis could be interpreted as undermining Skoog's analysis, however the court notes "we do not suggest that Hartman's rule in fact extends to arrests. Nor do we suggest that every aspect of Hartman's rationale could apply to retaliatory arrest." Id. at 2096.
Any uncertainty would appear to be resolved by Ford's statement, after Reichle that "this Court's 2006 decision in Skoog established that an individual has a right to be free from retaliatory police action, even if probable cause existed for that action." Ford, 706 F.3d at 1195-96. The Ford court went on to deny qualified immunity to officers for booking and jailing the plaintiff despite having probable cause to do so. Id. at 1196.
However, Acosta has created some uncertainty. In granting qualified immunity the Acosta court relies on Reichle and states that "the Supreme Court held that it had not recognized, nor was there a clearly established First Amendment right to be free from a retaliatory arrest that is otherwise supported by probable caused Acosta, 718 F.3d at 825. As discussed above, Reichle declined to address whether such a right existed, but rather found only that it was not clearly established in its own or the Tenth Circuit's precedent. This alone, does not alter the Ninth Circuit's rule recognized in Skoog and reaffirmed in Ford, post-Reichle. However, in light of Acosta's statement about Reichle, the Court cannot find "existing precedent [has] placed the statutory or constitutional question beyond debate." Reichle, 132 S. Ct. at 2093. Accordingly, claim one is DISMISSED without leave to amend based on qualified immunity as to deputies Seiver, Cook, Allensworth, Breneman, and Proctor.
County Defendants move to dismiss as to deputies Allensworth and Breneman arguing neither directly arrested Playford, however, to the extent Plaintiffs have alleged their involvement in Playford's arrest, they are entitled to qualified immunity.
2. Claim Two: Fourth Amendment Unlawful Search and Seizure
County Defendants move to dismiss Plaintiffs' second claim for illegal search and seizure in violation of the Fourth Amendment. As to each seizure, County Defendants argue the search and seizure of Playford's cameras were incident to a lawful arrest. Additionally, County Defendants argue the County Defendants are entitled to qualified immunity.
As explained above, the qualified immunity analysis has two prongs. See id. at 2093. Courts may analyze the second prong "without resolving the often more difficult question whether the purported right exists at all," i.e. the first prong. Id. The Court takes that approach here and finds it was not clearly established that the searches and seizures of Playford's high definition video cameras incident to his arrests violated the Fourth Amendment.
Plaintiffs SAC alleges that law enforcement seized and searched Playford's cameras without a warrant during and subsequent to his March 9, 2010, December 1, 2011, and May 25, 2012 arrests in violation of the Fourth Amendment. Based on the allegations of the SAC, Playford's cameras were seized incident to each of the three arrests.
"The Fourth Amendment protects the right to be free from 'unreasonable searches and seizures,'" Davis v. United States, 131 S. Ct. 2419, 2423 (2011), and "a warrantless search . . . is reasonable only if it falls within a recognized exception." Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013).
The Supreme Court has long recognized the reasonableness of a search incident to arrest without a warrant. Riley, 134 S. Ct. 2473, 2482-84 (2014). However, high definition video cameras do not have such a lengthy history and whether they are subject to search and seizure incident to a lawful arrest is unsettled. The Supreme Court's recent decision in Riley v. California provides some guidance, but leaves the law with regard to cameras unsettled. 134 S. Ct. 2473.
The Riley court found the search incident to arrest exception does not apply to cell phones. Id. at 2485. But, this does not settle the question as to cameras. There are qualities associated with cell phones, significant in the court's analysis, that are both similar to and different from cameras. The contents of a video camera lack the potential to "be used as a weapon," do have significant storage capacity, and also do have the potential to reconstruct "an individual's private life . . . through a thousand photographs labeled with dates [and] locations" like a cell phone. Id. at 2485, 2489-90. However, video cameras generally do not contain a log of phone calls made and received, text messages sent and received, applications reflecting political affiliations, prayer requests, pregnancy symptoms, hobbies, and budgets, or the "digital record of nearly every aspect of an individual's life. Id. at 2489-91, 2493. The cameras at issue here appear to fall somewhere between the physical search of a cigarette package found in a pocket during a search incident to arrest allowed under United States v. Robinson, 94 S. Ct. 467 (1973), and the data search of a cell phone under Riley that generally requires a warrant. Riley, 134 S. Ct. at 2485 ("A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson").
As with Plaintiffs' first claim, the Court cannot say that "existing precedent [has] placed the statutory or constitutional question beyond debate." Reichle, 132 S. Ct. at 2093. Accordingly, Plaintiffs' second claim is DISMISSED without leave to amend as to deputies Seiver, Cook, Allensworth, Breneman, and Proctor based on qualified immunity.
County Defendants move to dismiss as to deputies Allensworth and Breneman arguing neither directly seized Playford's cameras, however, to the extent Plaintiffs have alleged their involvement, they are entitled to qualified immunity.
3. Claim Three: Failure to Train
Plaintiffs allege the County failed to train deputies not to retaliate against individuals for engaging in First Amendment activities and trained deputies to exclude those lacking SDPD media credentials from crime or accident scenes. "A government entity may not be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving force behind a violation of constitutional rights." Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 694 (1978)) ("Monell claims"); see also A.E. ex rel Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637-38 (9th Cir. 2012).
"Failure to act, including failure to train, [alleged here], may give rise to a Monell claim when 'through its omissions the municipality is responsible for a constitutional violation committed by one of its employees.'" Waggy v. Spokane Cnty., 594 F.3d 707, 713 (9th Cir. 2010). However, "[a] municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). "[A] municipality's failure to train its employees in a relevant respect must amount to 'deliberate indifference to the rights of the persons with whom the untrained employees come into contact." Id. at 1360. Anything less "would result in de facto respondeat superior liability on municipalities." Id. Deliberate indifference may be shown by "actual or constructive notice that a particular omission in their training program cause[d] city employees to violate citizens' constitutional rights" and that training is maintained. Id. This can be established by allegations of "a pattern of similar constitutional violations by untrained employees." Id.
Plaintiffs allege that Playford was arrested three times at scenes of public interest open to the general public in retaliation for his First Amendment activities. As discussed above, Playford has sufficiently alleged First Amendment retaliation based on his first three arrests. Additionally, Playford alleges numerous deputies knew who he was in advance of contact with him. He alleges negative comments were made about him by Jan Caldwell, SDCSD Public Affairs Director. He alleges he was targeted, in part, because a captioned photograph of him was circulated to San Diego law enforcement that singled him out for attention. He alleges he filed an Internal Affairs complaint about Deputy Cook's conduct on February 28, 2010 that was followed by his own arrest. These allegations collectively suggest Playford may have been targeted in retaliation for his First Amendment activities as a result of the County's failure to train. Accordingly, accepting the truth of the allegations of the SAC and drawing all reasonable inferences in Playford's favor, as the Court must, Playford has stated a Monell failure-to-train claim.
Playford also alleges the County's exclusion of him from an accident scene, based on his lack of SDPD media credentials on May 25, 2012 and the search and seizure of Playford's cameras reflect the County's failure to train law enforcement personnel to interact with members of the press without violating the Fourth and Fourteenth Amendments. As the Court has previously explained, excluding Playford from an accident scene is not a violation of his First Amendment rights. Additionally, as previously discussed, it is unclear whether the search of Playford's cameras even constituted a Fourth Amendment violation. However, assuming the searches were Fourth Amendment violations, the three searches incident to arrest, alone, are not sufficient to show "deliberate indifference." Connick, 131 S. Ct. at 1360. Plaintiffs' have not alleged a Monell failure-to-train claim on this basis.
County Defendants additionally move to dismiss the third claim as to SDCSD Public Affairs Director Jan Caldwell. County Defendants indicate Sheriff Gore, elected to head the Sheriff's Department, is the policymaker for the Sheriff's Department, rather than Jan Caldwell, who does not make policy for the Sheriff's Department. Plaintiffs fail to address this argument or identify how any amendment might support a claim against Caldwell, but dismissal of Caldwell is consistent with Plaintiffs allegations that Sheriff Gore is responsible for practices of the SDCSD, including hiring, training, and supervision of SDCSD personnel, including Caldwell.
Plaintiffs' third claim is DISMISSED without leave to amend as to Caldwell.
4. Claim Four: First Amendment Limitations by City Defendants
The fourth claim of Playford's SAC, asserted against the City Defendants, alleges the City and Police Chief Lansdowne limited Playford's First Amendment activity by revoking Playford's media credentials. The City moves to dismiss this claim as barred by the statute of limitations.
As previously noted, the statute of limitations for bringing a § 1983 action is two years. Playford's media credentials were not renewed on January 11, 2010. This action was filed on September 6, 2012. Plaintiffs have not identified any basis for tolling the statute of limitations. Additionally, Plaintiffs have not indicated and the Court is not aware of any way this claim could be saved from the statute of limitations through amendment. Accordingly, Plaintiffs' fourth claim is DISMISSED without leave to amend.
5. Claim Five: Fourteenth Amendment Deprivation of Property Interest in Media Credentials Without Due Process
Playford alleges that the nonrenewal of Playford's media credentials constitutes a deprivation of property without due process of law in violation of the Fourteenth Amendment. Defendants argue that the claim is barred by the two-year statute of limitations and additionally argue Playford had no protected property interest in his media credentials.
As noted above as to Plaintiffs' fourth claim, Playford's credentials were not renewed on January 11, 2010. The initial complaint in this action was filed more than two years later on September 6, 2012. The claim is barred by the two-year statute of limitations. Plaintiffs have not addressed this issue, identified any basis for tolling under the allegations of the SAC, or identified how this claim could be saved from the statute of limitations through amendment. Playford's fifth claim is DISMISSED without leave to amend.
II. Other Claims
Playford asserts claims for violation of the Federal Privacy Protection Act ("FPPA") and a state law claim for false arrest.
A. Claim Six: Federal Privacy Protection Act
Playford alleges that the warrantless seizure of his cameras on March 9, 2010, December 1, 2011, and May 25,2012 constitute violations of the FPPA.
"The Privacy Protection Act, 42 U.S.C. section 2000aa et seq., 'generally prohibits government officials from searching for and seizing documentary materials possessed by a person in connection with a purpose to disseminate information to the public.'" Morse v. Regents of Univ. of Cal., Berkeley, 821 F. Supp. 2d 1112, 1120 (N.D. Cal. 2011) (quoting Citicasters v. McCaskill, 89 F.3d 1350, 1353 (8th Cir. 1996)). However, "[t]here are certain exceptions to the Act's prohibition of searches and seizures, including when 'there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.'" Id. (quoting 42 U.S.C. § 2000aa(a)(1), (b)(1)).
The FPPA does not protect individuals, like Playford, suspected of criminal activity when the materials seized, his cameras, relate to the offense. In each incidence of seizure of Playford's cameras, Playford alleges he was filming the activities occurring around him and leading to his arrest. Additionally, as previously discussed, Playford does not plead the absence of probable cause as to the March 9, 2010 or December 1, 2010 arrests and, as discussed below as to the May 25, 2012 arrest, the facts alleged in the SAC establish probable cause for his arrest.
Despite multiple opportunities to amend this claim, Playford has failed to state a FPPA claim. Accordingly, the claim is DISMISSED without leave to amend.
B. Claim Seven: False Arrest
County Defendants move to dismiss Playford's false arrest claim because the arrest was based on probable cause. "Under California law, * false arrest is not a different tort' but 'is merely one way of committing false imprisonment.'" Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919-20 (9th Cir. 2001). And, under California law "no cause of action shall arise against any peace officer .. acting within the scope of his or her authority, for false arrest or false imprisonment arising out of any arrest when ... the arrest was lawful." Accordingly, if the deputies had probable cause to arrest Playford, his false arrest claim fails.
Playford asserts the SDCSD deputies did not have probable cause to arrest him, but the Court is not required to accept as true allegations that are conclusory, legal conclusions, unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); Twombly, 550 U.S. at 555 (on motion to dismiss court is "not bound to accept as true a legal conclusion couched as a factual allegation").
Here, the facts alleged in the SAC reflect that deputies had probable cause to arrest Playford on May 25, 2012. Playford alleges he was in an accident scene closed to the public. Deputies informed him his credentials did not allow him to be there and that he could not be there. Playford also alleges that he stated his objection to being excluded and refused to move. He was then arrested. As previously discussed, Playford had no First Amendment right to be within a closed accident scene inaccessible to the general public.
His refusal to leave the closed accident scene when told to do so by deputies provided probable cause to arrest him for obstructing or delaying and officer. The elements of § 148(a)(1) are: "(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." Yount 43 Cal. 4th at 894-95 (citing In re Muhammed C, 95 Cal. App. 4th 1325, 1329 (6th Dist. 2002)). It is clear from the allegations of the SAC that Playford knew the deputies were peace officers engaged in the performance of their duties, meeting the second and third elements. Playford also met the first element because he alleges he objected and refused to move as directed by the deputies. In re Muhammed C. addressed a similar issue. 95 Cal. App. 4th 1325. The defendant defied a police officer's order to stop talking to another individual who had been arrested. Id. at 1330. The defendant acknowledged the officer's order, but did not follow it. Id. Here, Playford affirmatively objected to being excluded and affirmatively refused to move out of an area where he was not permitted. Playford has alleged probable cause for his arrest, negating a claim for false arrest.
Playford's false arrest claim is DISMISSED. It seems unlikely Playford can amend this claim to state a false arrest claim without contradicting the current allegations. However, unlike Playford's other claims where he has had numerous opportunities to amend, this was the first time Playford attempted to state a claim for false arrest. Accordingly, the Court GRANTS Playford leave to amend this claim.
Playford was unable to allege false arrest as to the May 25,2012 arrest until he was acquitted for the May 25, 2012 charge.
III. Specific Plaintiffs and Defendants
County Defendants also seek dismissal of claims asserted by Plaintiffs Peruta and American News and dismissal of claims asserted against District Attorney Bonnie Dumanis.
A. Plaintiffs Peruta and American News
The County moves to dismiss all claims asserted by Peruta (claims one, two, three, five, and six) and American News (claims one, two, three, four, five, and six) because the SAC fails to state claims on behalf of either. More specifically, County Defendants note that the only allegations specific to Peruta concern his exclusion, with Playford, from an area where a murder victim's remains were being recovered on March 2, 2010 and an area where there was a report of an incident involving a stolen motor vehicle suspect shooting on March 15, 2012.
County Defendants accurately note, and Plaintiffs' do not dispute, that a § 1983 claim based on events occurring on March 2, 2010 would be barred by the two-year statute of limitations and there is no basis for tolling the statute of limitations. And, the SAC does not allege that SDCSD deputies took any action against Peruta during the March 15, 2012 incident other than advising the casino that Playford and Peruta did not have SDPD issued media credentials. There are no other allegations specific to Peruta or American News and Plaintiffs fail to explain in opposing the motion to dismiss how County Defendants' conduct gives rise to any claim by Peruta or American News. Additionally, Plaintiffs have also failed to address how additional allegations might save these claims as to Peruta or American News. Claims one, two, three, five, and six are DISMISSED without leave to amend as to Peruta and claims one, two, three, four, five, and six are DISMISSED without leave to amend as to American News.
To the extent Peruta and American News are attempting to assert any claims based on the February 28, 2010 and March 9, 2010 arrest of Playford, those claims would also be barred by the statute of limitations because, unlike Playford, § 945.3 would not toll the statute of limitations because no criminal proceedings were pursued as to Peruta or American News.
B. District Attorney Bonnie Dumanis
1. Prosecutorial Immunity/Individual Capacity
County Defendants move to dismiss all claims against District Attorney Bonnie Dumanis. Plaintiffs allege Dumanis' prosecutions of Playford reflect retaliatory animus. However, "prosecutors enjoy absolute immunity for their decisions to prosecute." Reichle, 132 S. Ct. at 2095. Furthermore, "the prosecutor's intent plays no role in the immunity inquiry, so . . . absolute immunity extends [even] to prosecutorial acts that involve malice, bad faith, or conspiracy." Ismail v. Cnty. of Orange, 917 F. Supp. 2d 1060, 1068 (C.D. Cal. 2012) (citing Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc)). Because Plaintiffs' claims against Dumanis are premised on her decisions to prosecute, she is absolutely immune in her individual capacity from Plaintiffs' claims. Id.
The only additional basis for Plaintiffs' claims against Dumanis is Playford's exclusion from a press conference because he lacked credentials issued by SDPD. However, Plaintiffs have cited no authority requiring district attorneys to open press conferences to anyone claiming association with any news organization or recognizing a constitutional violation for precluding an individuals attendance at a press conference. At a minimum, any such right is certainly not clearly established. Reichle. 132 S. Ct. at 2093 (explaining that government officials are entitled to qualified immunity if "purported right was not clearly established by prior case law").
2. Eleventh Amendment /Official Capacity
Plaintiffs' retaliation claims against Dumanis in her official capacity fare no better. "California [district attorneys] serve both state and county function: They act as state officials, and so possess Eleventh Amendment immunity, when acting in their prosecutorial capacity." Del Campo v. Kennedy, 517 F.3d 1070, 1073 (9th Cir. 2008) (internal quotation omitted). Again, Plaintiffs' claims against Dumanis are premised on her decisions to prosecute. Thus, she is immune under the Eleventh Amendment in her official capacity from Plaintiffs' claims. Id.
As Dumanis is immune in both her individual and official capacities, Plaintiffs' claims against her are DISMISSED with prejudice.
IV. Motion to Strike
The City Defendants move to strike Plaintiff's request for punitive damages pursuant to Federal Rule of Civil Procedure 12(f) arguing Plaintiffs are not entitled to punitive damages against the City as a matter of law and that Plaintiffs have failed to state sufficient facts for punitive damages against Chief Lansdowne.
The two claims asserted against the City and Chief Lansdowne have been dismissed as barred by the statute of limitations. Accordingly, the City's motion to strike Plaintiffs' request for punitive damages is DENIED as moot.
The Court notes that "Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law." Whittlestone, Inc. v. Hanoi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010). Nor does Rule 12(f) "authorize a district court to dismiss a claim for damages on the basis that it is precluded as a matter of law." Id. at 976.
CONCLUSION
The City's motion to dismiss is GRANTED. Claims four and five are DISMISSED without leave to amend as to the City Defendants. The City's motion to strike is DENIED as moot.
County Defendants' motion to dismiss is GRANTED in part and DENIED in part as follows:
• All claims, as asserted by Plaintiffs Peruta (claims one, two, three, five, and six) and American News (claims one, two, three, four, five, and six) are DISMISSED without leave to amend.
• All claims asserted against Defendant Dumanis are DISMISSED with prejudice based on absolute immunity.
• Claim one is DISMISSED without leave to amend as to Defendants Seiver, Cook, Allensworth, Breneman, and Procter based on qualified immunity.
• Claim two is DISMISSED without leave to amend as to Defendants Seiver, Cook, Allensworth, Breneman, and Proctor based on qualified immunity.
• Claim three is DISMISSED without leave to amend as to Caldwell.
• Claims four, five, and six are DISMISSED without leave to amend.
• Claim seven is DISMISSED with leave to amend.
Playford may file an amended complaint amending his seventh claim by October 6, 2014. If he elects not to amend this claim, County Defendants shall file an Answer to the remaining claims by October 17, 2014.
IT IS SO ORDERED. DATED:9/17/2014
/s/_________
HON. ROGER T. BENITEZ
United States District Judge