Opinion
No. 2:17-cv-01157-KJM-AC
08-14-2020
TRINIDAD BROWN, Plaintiff, v. EDDIE DIAZ, et al., Defendants.
ORDER
In this civil rights case arising out of an altercation between defendant police officers and plaintiff Trinidad Brown, defendants move for summary judgment of all claims. For the reasons below, the court DENIES the motion.
I. BACKGROUND
A. Factual Background
The following facts derive from both parties' statements of undisputed facts, the parties' responses to those statements, evidence cited in those statements, and the court's review of the record. See Def.'s Reply re: Undisputed Facts ("UF"), ECF No. 62-1; Piccuta Decl., ECF No. 59-2. Where the court cites directly to defendants' statement of undisputed facts, the facts are undisputed, except where noted.
Brown's claims against defendant Officer Howard arise from a June 3, 2015 altercation, which began when Officers Villalobos and Moraitis stopped Brown for making an unsafe lane change. UF 2, 6. Villalobos approached Brown's vehicle and asked him to produce his license, registration and proof of insurance. UF 10. Brown provided his license and proof of insurance, but could not find his registration. UF 11. Officer Villalobos returned to his patrol unit to run a warrant check; Brown searched in his center console, glovebox and back seat. UF 13, 21. During this time, Officer Moraitis was standing at the rear passenger side of Brown's vehicle in a "cover" position to observe for officer safety. UF 12. According to Officer Villalobos' testimony, Brown was calm when he spoke with him, Superior Court Trial Tr. ("Trial Tr."), ECF No. 59-2, Ex. C. at 13:14-17, and Villalobos perceived he had the situation completely under control while he was running the identification check, Villalobos Dep., ECF No. 59-2, Ex. A at 60:13-16.
Only defendant Howard moves for summary judgment. Plaintiff represents he has agreed to dismiss the remaining defendants "as discovery did not reveal they were complicit in the violations committed by Howard." Opp'n, ECF No. 59, at 6 n.1. Accordingly, the court focuses only on defendant Howard's actions.
All citations to page numbers of depositions refer to the internal pagination of the document, but citations to all other filings refer to the pagination assigned by the court's ECF system and not to the internal pagination of the original document.
Though Officer Villalobos never expressly called for backup, Villalobos Dep. at 11:5-10, a second patrol unit consisting of Officers Howard and Diaz arrived, UF 14. Officer Howard got out of his patrol vehicle, passing Officer Villalobos, and approached the area where Officer Moraitis was standing. UF 15, 16. Brown was conversing with Officer Moraitis regarding the reason for the stop; Brown stated to Officer Moraitis, "this is some bullshit why I'm getting pulled over." UF 18, 19. Officer Moraitis testified that, if he had perceived a safety threat, he would have had his firearm out at that time, but he did not have his firearm out. Moraitis Dep., ECF No. 59-2, Ex. F at 31:13-18. At some point, Officer Howard observed Brown reaching into his center console, and, soon afterwards, Howard drew his firearm. UF 25 (undisputed as relevant). Officer Howard approached the driver's side of Brown's vehicle, with his gun drawn, UF 27 (disputed as to how Howard approached the vehicle and as described below), and attempted to open the driver's side door, but the door was locked, UF 28. Brown contends Officer Howard pointed his firearm at Brown's head and told Brown he was "under arrest for fidgeting." Brown Dep., ECF No. 59-2, Ex. B at 48:10-24, 51:19-52:9; Howard Dep., ECF No. 51-3, Ex. 2 at 46:18-22 (testifying he did not point the firearm at Brown). According to Brown's testimony, Brown then volunteered he did not think he should have to exit the vehicle. Brown Dep. at 54:5-10. Brown then slammed his hands on the steering wheel and began rolling up his car window. UF 33-35 (undisputed in relevant part). Seeing that plaintiff did not have anything in his hands, Officer Howard holstered his gun and drew his taser. UF 38, 52-53 (disputed only as to whether Howard ever had reason to believe plaintiff had a weapon); Howard Dep. at 120:10-121:5. He put the taser through the opening of the driver's side window as Brown was rolling the window up, causing the taser, with Officer Howard's finger on the trigger, to become stuck in the window of Brown's vehicle. UF 38-39.
With his taser pointed at Brown through the window, Officer Howard told Brown at least once to get out of the vehicle or he was going to taser him. UF 40 (undisputed as relevant). According to Brown, this was the first time Officer Howard ordered him to get out of the car. Brown Dep. at 54:20-22. Officer Howard disputes this. See Howard Dep. at 66:13-23 (testifying he asked Brown to exit his vehicle a couple of times before the taser was through the window). Officer Howard says Brown then "dove" towards the passenger seat of his vehicle, UF 41 (disputed) (citing Brown Dep. at 64:11-24; Howard Dep. at 65:13-66:6, 77:5-9) ; Brown states that, once he saw the taser light "get activated," he "dove" to try and "get away from it," Brown Dep. at 64:11-24. Officer Howard discharged the taser onto Brown and "cycled" it once, meaning current ran through the taser's probes one time, while attached to Brown's body. UF 47 (undisputed in relevant part). Brown maintains that when he was tasered, he was "sitting in the driver seat facing the driver window, looking at the taser." Brown Dep. at 65:13-25. Officer Moraitis also testified that Brown was "sitting in the driver seat" prior to being tasered. Moraitis Dep. at 38:12-14.
After Brown was tasered, Moraitis commanded Brown to unlock the door and exit the vehicle, and Brown complied. UF 48. Brown exited the vehicle and was placed under arrest for violating California Penal Code section 148(a)(1) (resisting arrest). UF 49. Brown was prosecuted for conduct arising out of this arrest, including a violation of section 148(a)(1) and possession of cocaine; at trial a jury acquitted him. UF 57-58.
California Penal Code section 148(a)(1) provides as follows:
Every person who willfully resists, delays, or obstructs any public officer . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
Brown contends Officer Howard made false allegations in the police report that led to the criminal charges against Brown, including in alleging that cocaine was found in Brown's vehicle. UF 61.
B. Procedural Background
Brown filed the operative first amended complaint on October 2, 2018, alleging violations of his civil rights by Officers Diaz, Howard, Moraitis and Villalobos. Brown's claims against Officer Howard include a claim for malicious prosecution and the following claims under 42 U.S.C. § 1983: (1) unlawful arrest in violation of the Fourth Amendment, (2) excessive force in violation of the Fourth Amendment, and (3) retaliation in violation of the First Amendment. First Am. Compl. ("FAC") ¶¶ 20-32, ECF No. 45. Defendant Howard moves for summary judgment on all of Brown's claims against him. Mot., ECF No. 51. Brown opposes, ECF No. 59, and Howard has responded, ECF No. 62. The court held a hearing on the motion on February 8, 2019 and resolves it here.
II. LEGAL STANDARD
A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
As a general matter, the moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . . ; or show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts."). Moreover, "the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).
In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88 (citation omitted); Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). Where a genuine dispute exists, the court draws inferences in the plaintiff's favor. Tolan v. Cotton, 572 U.S. 650, 660 (2014).
The Supreme Court has taken care to note that district courts should act "with caution in granting summary judgment," and have authority to "deny summary judgment in a case where there is reason to believe the better course would be to proceed to a full trial." Anderson, 477 U.S. at 255. A trial may be necessary "if the judge has doubt as to the wisdom of terminating the case before trial." Gen. Signal Corp. v. MCI Telecomm. Corp., 66 F.3d 1500, 1507 (9th Cir. 1995) (quoting Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir. 1994)). This may be the case "even in the absence of a factual dispute." Rheumatology Diagnostics Lab., Inc v. Aetna, Inc., No. 12-05847, 2015 WL 3826713, at *4 (N.D. Cal. June 19, 2015) (quoting Black, 22 F.3d at 572); accord Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1285 (11th Cir. 2001).
III. ANALYSIS
A. Excessive Force Claim - Fourth Amendment
Officer Howard seeks summary judgment on Brown's claim for excessive force in violation of the Fourth Amendment, based on Officer Howard's use of his firearm and his use of a taser on Brown. Mot. at 13-22. Officer Howard asserts Brown's claim fails as a matter of law and that he is entitled to qualified immunity. Id. The court first analyzes the merits of the claim and then addresses the second qualified immunity prong in a separate section below. Pearson v. Callahan, 555 U.S. 223, 236 (2009) (it is "often beneficial" to begin with first part of test because it "promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable").
1. Merits of Excessive Force Claim
The guarantees of the Fourth Amendment include protection from the use of excessive force by law enforcement officials "in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen[.]" Graham v. Connor, 490 U.S. 386, 395 (1989). "All claims of excessive force, whether deadly or not, are analyzed under the objective reasonableness standard of the Fourth Amendment as enunciated in Graham and Garner." Blanford v. Sacramento Cty., 406 F.3d 1110, 1115 (9th Cir. 2005). This standard requires the court to "balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Tennessee v. Garner, 471 U.S. 1, 8 (1985) (citation omitted). In striking this balance here, the court "must consider the risk of bodily harm that [defendant's] actions posed to [Brown] in light of the threat to the public that [defendant] was trying to eliminate." Scott v. Harris, 550 U.S. 372, 383 (2007). The court pays "careful attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. "Because this inquiry is inherently fact specific, the 'determination whether the force used to effect an arrest was reasonable under the Fourth Amendment should only be taken from the jury in rare cases.'" Green v. City and Cty. of San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014) (quoting Headwaters Forest Def. v. Cty. of Humboldt, 240 F.3d 1185, 1205-06 (9th Cir. 2000) vacated on other grounds by Cty. of Humboldt v. Headwaters Forest Def., 534 U.S. 801 (2001)).
"The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396 (citation omitted). Further, "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." Id. at 396-97. "Therefore, courts 'are free to consider issues outside the three enumerated [in Graham] when additional facts are necessary to account for the totality of circumstances in a given case.'" Velazquez v. City of Long Beach, 793 F.3d 1010, 1024 (9th Cir. 2015) (alteration in original) (quoting Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc)).
a. Nature of Intrusion on Brown's Fourth Amendment Interests
i. Firearm Use
According to Brown, Officer Howard pointed his firearm at Brown's head while Brown was seated in his vehicle during a routine traffic stop. See UF 51; Brown Dep. at 48:10-24. Officer Howard concedes that "brandishing a firearm, with its attendant threat of bodily harm and death, is considered a high level of force[.]" Mot. at 15; see Espinosa v. City & Cty. of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010) (affirming denial of summary judgment on excessive force claim, in part because "pointing a loaded gun at a suspect, employing the threat of deadly force, is use of a high level of force"), abrogated on other grounds by Cty. of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539 (2017). By pointing a gun at Brown's head, Officer Howard effected a severe intrusion upon Brown's Fourth Amendment rights.
ii. Taser Use
Additionally, it is undisputed that Officer Howard deployed his taser on Brown, and that the taser cycled one time. UF 47. The parties agree that the taser was deployed in "dart-mode." Mot. at 9; Opp'n at 9 (citing UF 47). The parties agree the use of the Taser in dart-mode, cycled once, is a "significant" or "intermediate" level of force. Mot. at 17 (citing Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1168 (E.D. Cal. 2008)); Opp'n at 20 (citing Bryan v. MacPherson, 630 F.3d 805, 825-26 (9th Cir. 2010) (Tasers "used in dart-mode constitute an intermediate, significant level of force that must be justified by the governmental interest involved.")). Officer Howard's use of the taser on dart mode was an intermediate, significant intrusion upon Brown's Fourth Amendment interests.
For the remainder of this order, where the court cites to Undisputed Facts without reference to the underlying evidence, the fact is undisputed in relevant part.
b. Governmental Interests
The court analyzes the governmental interests at stake in this case with reference to the Graham factors. As explained below, genuine disputes of material fact prevent the court from finding, as a matter of law, that Officer Howard's use of the firearm and his use of the taser were reasonable.
i. Severity of Crime
Officer Howard concedes that, to his knowledge, the severity of any crimes Brown may have committed at the times Officer Howard used his gun and his taser were "not serious in nature." Mot. at 17 ("At the time Officer Howard deployed his taser, Plaintiff had committed two crimes—a traffic infraction and a misdemeanor violation of Penal Code 148(a)(1)," but "[t]hese crimes are not serious in nature."); see also Young v. Cty. of Los Angeles, 655 F.3d 1156, 1165 (9th Cir. 2011) ("[W]hile disobeying a peace officer's order certainly provides 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.").
ii. Threat to Safety
"The second factor—whether the suspect posed an immediate threat—is the most important." Newmaker v. City of Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016). Here, there is a factual dispute that prevents the court from finding as a matter of law at this stage that Brown's actions would have made a reasonable officer believe Brown was a threat to the officer's safety.
(A) Firearm Use
Construing the record in Brown's favor as required, a reasonable jury could conclude that a reasonable officer would not have perceived a threat to safety preceding his use of his firearm. According to Brown's deposition, "right after Villalobos walked off" to run a license check, Brown reached into the back seat "[b]ecause when I pulled out my registration out of the center console, there was a lot of papers. So I was trying to pick the papers that fell behind there because I was trying to find my registration that he asked me to retrieve." Brown. Dep. at 86:2-12. Brown states he was conversing with Officer Moraitis about why he had been pulled over immediately before Officer Howard confronted Brown with his gun. Brown Dep. at 48:10-24. Officer Howard testified that, because of Brown's demeanor and the fact that he was reaching into his center console, he suspected Brown was reaching for a weapon and was a threat to officer safety. Howard Dep. at 46:8-17. However, based on the scene plaintiff describes, a jury could conclude a reasonable officer would not perceive a threat to safety.
(B) Taser Use
Additionally, if plaintiff's evidence is credited, the evidence could support the conclusion Brown posed little or no threat to Officer Howard once the officer holstered his firearm and drew his taser. Officer Howard argues Brown's actions were threatening because he ignored the officer's command to exit the vehicle, he had caused Officer Howard's weapon and hand to be caught in the window, and most importantly, he "lunged towards the passenger seat of the vehicle causing Officer Howard to reasonably conclude he may be diving to retrieve a weapon." Mot. at 18.
As to the first argument, Officer Howard does not adequately explain how noncompliance with an order, alone, would necessarily constitute a threat to officer safety. See Bryan v. MacPherson, 630 F.3d 805, 830 (9th Cir. 2010) (analyzing the third Graham factor as part of balancing test, in addressing whether suspect was resisting arrest; distinguishing between "active" and "passive" resistance and noting that passive noncompliance with an order is not a strong justification for use of force).
As to the second argument, it is technically undisputed that Officer Howard's taser "and his finger" became stuck in the window of Brown's vehicle. See UF 39 (undisputed). However, at hearing, the parties clarified that, here, the officer's finger was not at risk of being severed, but was "stuck" only insofar as his hand was around the taser, and the taser was wedged between the top of the window and the frame of the car. Similarly, in his deposition, Officer Howard does not state any part of his body was actually trapped by the window. Howard Dep. at 58:25-59:14 (testifying the "fore-portion" of the taser, akin to the barrel of a handgun, "got pinched between the window and the window frame"). Therefore, it appears there is at least a dispute of material fact as to whether any part of the officer's body was stuck in the window. The most closely analogous cases available finding an officer reasonably felt threatened involve situations in which an officer's hand or arm was actually stuck in a window, rendering the officer somewhat incapacitated. See Lawyer v. City of Council Bluffs, 361 F.3d 1099, 1105 (8th Cir. 2004) (objectively reasonable for officer to perceive immediate safety threat where his arm was "trapped in the window" of plaintiff's car); Mazoch v. Carrizales, 733 F. App'x 179, 183 (5th Cir. 2018) (analyzing threat to officer safety when plaintiff rolled car window up, trapping officer's arm, and causing officer to be dragged alongside moving vehicle). Defendants do not offer a sufficient explanation for why the taser getting stuck in the window justifies the use of force here.
Finally, as to Officer Howard's third argument, there is also a genuine dispute as to whether plaintiff "lunged" to the passenger side of the vehicle before being tasered in such a way as to cause a reasonable officer to feel a safety threat, or whether he dove away from the taser as it was being deployed. See Howard Dep. at 65:13-66:6 (stating Brown dove or leaned over the center console and reached under the front seat of the passenger side, causing Officer Howard to believe he was searching for a weapon), 77:5-9 (confirming that he deployed his taser as a result of Brown "going to the passenger floorboard"); Brown Dep. at 64:11-24 (stating that, once he saw the taser light "get activated," he "dove" to try and "get away from it"). This conflicting testimony creates a genuine dispute of material fact over whether Brown's actions immediately preceding the taser deployment would have caused a reasonable officer to perceive a safety threat.
Accordingly, as to both instances of Officer Howard's use of force, the disputes of material fact preclude the court's finding that, as a matter of law, Brown posed a threat to safety sufficient to justify the force used.
iii. Active Resistance
Resistance is not "a binary state, with resistance being either completely passive or active. Rather, it runs the gamut from the purely passive protestor who simply refuses to stand, to the individual who is physically assaulting the officer." Bryan, 630 F.3d at 830. "While 'purely passive resistance can support the use of some force, [] the level of force an individual's resistance will support is dependent on the factual circumstances underlying that resistance.'" Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1091 (9th Cir. 2013) (quoting Bryan, 630 F.3d at 830) (alteration in original). The parties dispute Brown's level of resistance to Officer Howard. These factual disputes, all of which require a trier of fact to make credibility determinations, also preclude a dispositive finding at summary judgment about Brown's level of "active resistance."
(A) Firearm Use
Plaintiff has offered evidence that Officer Howard did not command Brown to do anything before pointing a gun at his head. Brown Dep. 54:20-22 (testifying that Officer Howard did not ask him to get out of the car at any time prior to plaintiff seeing the taser). According to the operative complaint, while Officer Howard still had his gun out, "Howard told Plaintiff to get out of the vehicle because he was under arrest," and Brown told him "he was not going to get out of his vehicle with a gun in his face." FAC ¶ 12. However, in his deposition, Brown was asked if Officer Howard ever asked him to exit the vehicle prior to pulling out the taser, which occurred after Officer Howard had already re-holstered his gun, and he replied "no." Brown Dep. at 54:20-22. Defendant correctly points out that plaintiff's factual assertions in the complaint are generally binding unless he amends the pleading. Reply at 5 n.1 (citing Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988)). At hearing, counsel for plaintiff admitted that when he drafted the complaint, he made an error in paragraph 12, and argued that his client should not be prejudiced by his counsel's drafting error. The court finds it would be inequitable and unduly prejudicial to Brown's interests to hold him to the exact factual assertions made in paragraph 12 of his complaint for the purpose of resolving summary judgment. Therefore, the court assumes, for the purpose of this motion, that Howard first gave Brown an order after he drew his taser. See Brown Dep. 54:20-22.
Viewing the evidence in the light most favorable to the plaintiff, plaintiff was not resisting anything at the time Officer Howard pointed his firearm, because he had not been ordered to do anything.
(B) Deploying Taser
According to plaintiff's evidence, once Officer Howard pulled out hist taser but before he deployed it, Brown only resisted an officer's order in that he did not comply with Officer Howard's commands to exit the vehicle and he expressed his disagreement with the idea that he had to exit the vehicle. Brown Dep. at 54:5-10, 54:20-22, 63:13-64:1. Expressing disagreement with an officer's order and not immediately complying qualifies as only minimal resistance. "[A] failure to fully or immediately comply with an officer's orders neither rises to the level of active resistance nor justifies the application of a non-trivial amount of force." Lopez v. City of Imperial, No. 13-CV-00597-BAS WVG, 2015 WL 4077635, at *15 (S.D. Cal. July 2, 2015); Young, 655 F.3d at 1165 (arrestee's repeated refusal to reenter vehicle at officer's command not active resistance). According to Brown, Officer Howard had not made a command at the time he rolled up the car window, Brown Dep. at 54:20-22 (testifying Officer Howard told him to exit the vehicle for the first time while the taser was stuck through the car window), 56:11-14 (testifying he began rolling the window up when Officer Howard put down his gun and removed his taser), therefore the act of rolling up the window does not appear to be in resistance to any command or attempted arrest, drawing all reasonable inferences in plaintiff's favor.
In sum, viewing the evidence in the light most favorable to Brown, he was likely passively resisting arrest, but not actively resisting, which is not a strong justification for a significant use of force. Bryan, 630 F.3d at 830 (finding more passive resistance is less justification for the use of force); Lopez, 2015 WL 4077635, at *15.
iv. Other Factors
As noted above, "the Graham factors are not exclusive." Vos v. City of Newport Beach, 892 F.3d 1024, 1033-34 (9th Cir. 2018). Courts may consider other factors, including, as relevant here, "the availability of less intrusive force" and "whether proper warnings were given." Id. (citing Bryan, 630 F.3d at 831; Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th Cir. 2001)).
First, a reasonable jury could conclude that less intrusive force was available at the time Officer Howard drew his gun, because he later holstered the gun and used his taser. See White v. Cty. of San Diego, No. 13-CV-1166-MMA RBB, 2014 WL 9859196, at *8 (S.D. Cal. Dec. 12, 2014) (genuine issue of material fact existed regarding whether less intrusive means of force were available where one defendant had access to taser and drew it briefly before switching to his gun).
Second, according to Brown, Officer Howard warned him at least once that he might be tasered if he did not exit the vehicle. Brown Dep. 63:16-64:1 (testifying that Officer Howard told him to get out of the car or he was going to tase him). Officer Howard's warning counsels against a finding of excessive force. See Lowry v. City of San Diego, 858 F.3d 1248, 1259 (9th Cir. 2017) (noting "an important consideration in evaluating the City's interest in the use of force is "whether officers gave a warning before employing the force" and finding issuance of multiple warnings weighed against finding excessive force).
On balance, the other Graham factors relevant here do not so strongly tip the scales as to provide justification for Officer Howard's uses of force.
c. Summary
For the foregoing reasons, multiple genuine disputes of material fact, including over the extent of Brown's resistance, whether he reached over into the passenger seat before being tased, and when and how many times Officer Howard issued any commands, preclude this court's ruling as a matter of law in Howard's favor on Brown's excessive force claim.
2. Qualified Immunity from Excessive Force Claim
Defendant Howard also contends he is entitled to qualified immunity on plaintiff's Fourth Amendment excessive force claim because (1) "the state of the law as of June, 2015 did not clearly establish that briefly pointing a gun at a suspect during a nighttime encounter wherein the suspect is making furtive movements within his vehicle and is agitated was unconstitutional," Mot. at 21, and (2) "tasing Brown once to neutralize the potential threat and effect his exit from the vehicle did not violate a clearly established right," id. at 22. To the contrary, plaintiff contends it was clearly established that (1) there exists a "right to be free from arrest at gunpoint absent probable cause," Opp'n at 33, and (2) "an unarmed traffic detainee who presents no imminent safety concern has a right to be free from non-trivial force, e.g., a taser in dart-mode, even if he engages in minor resistance," id. at 35.
a. Background and Two-Pronged Test
"Qualified immunity is a judge-made doctrine designed to 'balance[ ] two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.'" Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The doctrine is intended to "give[] government officials breathing room to make reasonable but mistaken judgments about open legal questions." Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
The two-pronged test currently used for assessing whether qualified immunity applies was first articulated in Saucier v. Katz, 533 U.S. 194 (2001). Pearson, 555 U.S. at 232 (citing Saucier, 533 U.S. at 201). Under that test, the court first "decide[d] whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right." Id. (citing, inter alia, Saucier, 533 U.S. at 201 and Fed. R. Civ. P. 12, 50, 56). Then, "if the plaintiff [] satisfied this first step, the court [] decide[d] whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Id. (citing Saucier, 533 U.S. at 201).
"[U]nder either prong, courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment." Tolan, 572 U.S. at 656 (citations omitted) (per curiam). "This is not a rule specific to qualified immunity; it is simply an application of the more general rule that a 'judge's function' at summary judgment is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Id. (quoting Anderson, 477 U.S. at 249); see also Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005) ("'[T]he ordinary framework for deciding motions for summary judgment' applies to motions for summary judgment based on official immunity.") (citation omitted) (alteration in original). In particular, in determining the established law, the court must take care not to define either the right at issue, or the defendant's conduct for that matter, in a manner that impermissibly resolves factual disputes. Tolan, 572 U.S. at 657 ("[C]ourts must take care not to define a case's 'context' in a manner that imports genuinely disputed factual propositions.") (citing Brosseau v. Haugen, 543 U.S. 194, 195 (2004)).
Since Pearson, courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." 555 U.S. at 236. Here, the court has exercised its discretion and analyzed the first merits prong above as to the excessive force claim, finding plaintiff has satisfied its burden on the first prong of the qualified immunity analysis.
Turning to the second prong, the court notes that clearly established law must be defined with a "high 'degree of specificity.'" District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (per curiam)); see also City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019) ("Specificity is especially important in the Fourth Amendment context" (citation omitted)). This standard is "demanding." Wesby, 138 S. Ct. at 589. The "legal principle [at issue] must have a sufficiently clear foundation in then-existing precedent." Id. It "must be 'settled law,' . . . , which means it is dictated by 'controlling authority' or 'a robust consensus of cases of persuasive authority,'" rather than merely "suggested by then-existing precedent." Id. at 589-90 (some internal quotation marks and citations omitted).
"[A] court must ask whether it would have been clear to a reasonable officer that the alleged conduct 'was unlawful in the situation he confronted.'" Ziglar, 137 S. Ct. at 1867 (quoting Saucier, 533 U.S. at 202). While "a case directly on point" is not required "for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate," Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)), and must "'squarely govern[]' the specific facts at issue," id. at 1153 (citing Mullenix, 136 S. Ct. at 309). See also Pike v. Hester, 891 F.3d 1131, 1141 (9th Cir. 2018) ("An exact factual match is not required . . . ."). "The rule's contours must be so well defined that it is 'clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Wesby, 138 S. Ct. at 590 (quoting Saucier, 533 U.S. at 202). Thus, "[t]he dispositive question is 'whether the violative nature of particular conduct is clearly established.'" Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (quoting Mullenix, 136 S. Ct. at 308) (emphasis, alteration in original).
Where the existing cases are "too factually dissimilar to clearly establish a constitutional violation" by an officer's actions, the officer is entitled to qualified immunity. Nicholson v. City of Los Angeles, 935 F.3d 685, 695 (9th Cir. 2019). However, "[p]recedent involving similar facts can help move a case beyond the otherwise 'hazy border between excessive and acceptable force' and thereby provide an officer notice that a specific use of force is unlawful." Kisela, 138 S. Ct. at 1153 (quoting Mullenix, 136 S. Ct. at 312). Although "general statements of the law are not inherently incapable of giving fair and clear warning to officers," White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal quotation marks and citation omitted), in some circumstances "a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though 'the very action in question has [not] previously been held unlawful,'" Bonivert v. City of Clarkston, 883 F.3d 865, 872 (9th Cir. 2018) (alteration in original) (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)).
Because resolving whether the asserted federal right was clearly established presents a pure question of law, the court draws on its "full knowledge" of relevant precedent rather than restricting its review to cases identified by plaintiff. See Elder v. Holloway, 510 U.S. 510, 514-16 (1994). Ultimately, "the prior precedent must be 'controlling'—from the Ninth Circuit or Supreme Court—or otherwise be embraced by a 'consensus' of courts outside the relevant jurisdiction." Sharp v. Cty. Of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (citing Wilson, 526 U.S. at 617); see also Carroll v. Carman, 574 U.S. 13, 17 (2014) (assuming without deciding that controlling circuit precedent could constitute clearly established federal law).
b. Clearly Established Law as of June 2015
The Supreme Court has assumed without deciding that the law as determined by a Circuit court may constitute clearly established law. See, e.g., Kisela, 138 S. Ct. at 1153 ("[E]ven if a controlling circuit precedent could constitute clearly established law in these circumstances, it does not do so here.") (quoting City & Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1776 (2015)); City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019) (per curium) (assuming without deciding that a court of appeals decision may constitute clearly established law for purposes of qualified immunity) (citing Sheehan, 135 S. Ct. at 1776). The Ninth Circuit has stated, "the precedent must be 'controlling—from the Ninth Circuit or Supreme Court—or otherwise be embraced by a consensus of courts outside the relevant jurisdiction.'" Martinez v. City of Clovis, 943 F.3d 1260, 1275 (9th Cir. 2019) (some internal quotation marks omitted) (quoting Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017)).
"The dispositive question is 'whether the violative nature of [the officer's] particular conduct [was] clearly established" in June of 2015. Isayeva v. Sacramento Sheriff's Department, 872 F.3d 938, 947 (9th Cir. 2017) (quoting Mullenix, 136 S. Ct. at 308) (emphasis in original). As explained below, the violative nature of Officer Howard's conduct was clearly established as of June 2015.
i. Firearm Use
The first question the court must answer is whether it was clearly established at the time of the incident that pointing a gun at a suspect of a minor traffic offense, while the suspect is only passively resisting and is not posing an apparent threat to officer safety, was a violation of the Fourth Amendment.
Defendant offers only distinguishable authority involving suspects who were not compliant with an officer's order or who were evading arrest, which is not the case here, construing the record in plaintiff's favor. Mot. at 15 (citing Navarro v. Sterkel, No. 5:11-CV-01700-LHK, 2012 WL 3249487, at *3 (N.D. Cal. Aug. 7, 2012) (plaintiff's arrest reasonable where undisputed plaintiff "removed his hands from the steering wheel, in direct disobedience of repeated police orders"); Anderson v. City of Bainbridge Island, 472 F. App'x 538, 540 (9th Cir. 2012) (affirming constitutionality of training gun on suspect for long enough to determine suspect was unarmed after suspect "created a dangerous situation by attempting to evade police in a late-night, high-speed chase")).
However, as noted above, the burden is on the plaintiff and ultimately the court, not the defendant, to show the right at issue was clearly established. Moran v. State of Wash., 147 F.3d 839, 844 (9th Cir. 1998) (plaintiff bears burden of showing clearly established right); Elder v. Holloway, 510 U.S. 510, 514-16 (1994) (holding appellate court must review qualified immunity judgment de novo and resolve whether federal right was clearly established in light of its "full knowledge of its own [and other relevant] precedents" (alteration in original) (citation omitted)). Plaintiff relies primarily on Green v. City and County of San Francisco, in which plaintiff was pulled over on suspicion she was driving a stolen vehicle, and several officers pointed their guns at plaintiff, even though she was compliant with the officers' orders. 751 F.3d at 1043, 1052. Reversing the district court's dismissal on qualified immunity grounds, the Ninth Circuit held "[i]t was established at the time of the incident that individuals may not be subjected to seizure or arrest without reasonable suspicion or probable cause, especially when the stop includes detention and interrogation at gunpoint, and that highly intrusive measures may not be used absent extraordinary circumstances." Id. at 1052. The Ninth Circuit further addressed the circumstances present here in Cordeiro v. United States, 638 F. App'x 634, 636 (9th Cir. 2016), holding "[t]he principle that it is unreasonable to use significant force against a suspect who was suspected of a minor crime, posed no apparent threat to officer safety, and could be found not to have resisted arrest, was . . . well-established in 2001 . . . ." Id.; see also Robinson v. Solano Cty., 278 F.3d 1007, 1015 (9th Cir. 2002) (holding that "[a]s a general principle . . . pointing a gun to the head of an apparently unarmed suspect during an investigation can be a violation of the Fourth Amendment, especially where the individual poses no particular danger").
The Ninth Circuit has approved of the use of unpublished decisions, in conjunction with published decisions, to inform qualified immunity analysis. Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002) ("We have held that unpublished decisions of district courts may inform our qualified immunity analysis.").
It also was established at the time that pointing a loaded gun at an individual is highly intrusive, and therefore more than just significant force. See Espinosa v. City & Cty. of San Francisco, 598 F.3d at 537 (affirming denial of summary judgment on excessive force claim, in part because "pointing a loaded gun at a suspect, employing the threat of deadly force, is use of a high level of force"); see also Robinson v. Solano Cty., 278 F.3d 1007, 1015 (9th Cir. 2002) ("[A] police officer who terrorizes a civilian by brandishing a cocked gun in front of that civilian's face may not cause physical injury, but he has certainly laid the building blocks for a section 1983 claim against him.") (emphasis in original) (quoting Petta v. Rivera, 143 F.3d 895, 905 (5th Cir.1998)).
Genuine disputes of material fact prevent the court from finding, as a matter of law, Officer Howard's actions did not violate the clearly established right described above. Officer Howard pointed a gun at an unarmed suspect, who was stopped only for a minor traffic violation, and who was not resisting arrest. Given the scene Brown and Officers Villalobos and Moraitis describe, a reasonably jury could conclude Brown was complying with another officer's order to search for his registration and did not present a safety threat: Brown was calmly conversing with Officer Villalobos from the passenger window while Brown searched for his registration, Superior Court Suppression Hearing Tr., ECF No. 59-2, Ex. D at 13:14-17, and Officer Villalobos, who had walked away from the vehicle to run a license check, UF 13, perceived the situation as under control, Villalobos Dep. at 60:13-16. Moreover, Officer Moraitis, who was standing in a cover position, UF 12, did not appear to perceive a safety threat, as he did not draw his firearm. Moraitis Dep. at 31:13-18. The court cannot find that Officer Howard is protected by qualified immunity as a matter of law on this record. Newmaker, 842 F.3d at 1116 ("Qualified immunity should not be granted when other evidence in the record . . . is inconsistent with material evidence proffered by the defendant." (citations omitted)). /////
ii. Taser Use
The second pertinent question is whether it was clearly established at the time of the incident that discharging a taser at a suspect of a minor traffic offense, after he exhibited at most passive, non-physical resistance, is a violation of the Fourth Amendment.
As of June 2015, it was clearly established that discharging a taser in dart-mode constitutes an intermediate level of force. Bryan, 630 F.3d at 826. And "the right to be free from the application of non-trivial force for engaging in mere passive resistance was clearly established prior to 2008." Gravelet-Blondin, 728 F.3d at 1093 (citing Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012)). Though the Ninth Circuit has not addressed the exact factual scenario here, the court has made it clear that taser use is excessive in several scenarios in which the plaintiff was resisting officers to a higher degree than Brown. For example, in Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011), the Ninth Circuit analyzed two cases in which tasers were used against resistant suspects and held that both instances of taser use were constitutionally excessive. In one case, officers tasered a pregnant woman three times when she refused to get out of her car and "actively resisted arrest" by "physically frustrat[ing] officers' efforts to remove" her from the vehicle by stiffening her arms and clutching the steering wheel. Mattos, 661 F.3d at 446. The officer's taser use was deemed excessive, in part because plaintiff's resistance, though "active," "did not involve any violent actions towards the officers" and there were no other exigent circumstances present. Id. at 445-46. In the second case, the court held that the use of a taser, cycled just once, in dart-mode, without warning, was excessive when the plaintiff stood in an officer's way as he attempted to arrest another suspect and physically extended her arm to prevent the officer from pushing against her as he went past. Id. at 448-452. The taser use was deemed excessive, in part because plaintiff "posed no threat to officers." Id. at 451 (citing Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009) (denying qualified immunity to officers who tasered the passenger of a driver who evaded their initial attempts to pull him over when the passenger refused to hang up the 911 call she made)); Bryan, 630 F.3d at 832 (finding use of force excessive where officer tasered plaintiff in dart-mode even though he "was neither a flight risk, a dangerous felon, nor an immediate threat").
It was clearly established in 2016 that, when resistance does not involve threats or violence against officers, it is not active enough to warrant the use of intermediate or significant force. See Bryan, 630 F.3d at 832. Therefore, a reasonable officer would know he was violating the Fourth Amendment by tasering Brown, given that, according to Brown's evidence, Officer Howard had no reason to think Brown was armed, see Howard Dep. at 69:5-25, and Brown had only passively resisted his command to exit the vehicle.
As such, genuine issues of material facts exist that preclude the court from deciding whether Officer Howard is protected by qualified immunity, and the issue is inappropriate for resolution as a matter of law. See Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) (explaining that the court may grant summary judgment "only if Defendants are entitled to qualified immunity on the facts as alleged by the non-moving party" (citation omitted)). Defendant's motion for summary judgement of plaintiff's excessive force claim is DENIED.
B. Unlawful Arrest Claim - Fourth Amendment
Officer Howard also moves for summary judgment on Brown's § 1983 claim for a violation of his Fourth Amendment right against unlawful arrests. Brown does not dispute that the initial traffic stop was supported by reasonable suspicion that Brown had committed a traffic violation. See United States v. Miranda-Guerena, 445 F.3d 1233, 1236 (9th Cir. 2006) ("An investigatory stop of a vehicle is reasonable under the Fourth Amendment if the officer reasonably suspects that a traffic violation has occurred." (citation omitted)). Rather, Brown alleges that Officer Howard engaged in a de facto arrest once he held Brown at gunpoint and stated that Brown was under arrest, and again when he deployed his taser, and that both arrests were not supported by probable cause. See Opp'n at 11-15. He also alleges that his formal arrest for violation of Penal Code 148(a)(1) was unlawful because it was not supported by probable cause. Id. at 13-15.
The operative question at this juncture is whether and at what point Officer Howard had probable cause to arrest Brown. As soon as Brown refused to comply with a lawful officer order, a reasonable officer would have probable cause to arrest him for a violation of California Penal Code § 148(a)(1). See Young, 655 F.3d at 1169 (Penal Code § 148(a)(1) "prohibits only refusal to comply with a peace officer's lawful orders" (emphasis in original)); Hunter v. Bryant, 502 U.S. 224, 228 (1991) ("Probable cause exist[s] if at the moment the arrest was made . . . the facts and circumstances within [the officer's] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [the suspected violated the law]." (internal quotation marks and citation omitted)). According to Brown, Officer Howard's first order did not come until after he had re-holstered his gun and pulled out his taser. Brown Dep. 54:20-22. Officer Howard told Brown to exit the vehicle, which is lawful in the context of an otherwise lawful traffic stop. Arizona v. Johnson, 555 U.S. 323, 331 (2009) ("[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures.") (quoting Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (per curiam)). Plaintiff argues he did not have time to comply with the order before Officer Howard deployed his taser. Opp'n at 14 (citing Pl.'s Response to UF 32, ECF No. 59-1). The evidence plaintiff cites for this proposition suggests Officer Howard and Brown had a verbal exchange before Officer Howard deployed his taser, and about 20 seconds passed between Officer Howard's trying to open the vehicle and when he stuck his taser through the window of the vehicle. Pl.'s Response to UF 32 (citing Brown Dep. 48:15-24, 51:19-52:9, 54:5-10 & 20-22, 61:3-5, 63:13-64:1 & 11-14, 86:2-12; Howard Dep. 48:6-17, 59:22-60:2, 66:3-12, 74:1-5). This is not sufficient to create a genuine dispute of material fact over whether Brown had adequate time to comply with Officer Howard's order to exit the vehicle, such that the officer did not have probable cause to arrest plaintiff when he deployed his taser. Accordingly, there is no dispute of material fact over whether Officer Howard had probable cause to arrest Brown at the moment he deployed his taser and when the officers formally arrested Brown.
1. De Facto Arrest
As an initial matter, Officer Howard's holding Brown at gunpoint and stating he was "under arrest for fidgeting," constitutes a de facto arrest, drawing all reasonable inferences in Brown's favor. There is no bright line rule for determining when an investigatory detention is converted into a de facto arrest. United States v. Parr, 843 F.2d 1228, 1231 (9th Cir. 1988); see also United States v. Sharpe, 470 U.S. 675, 685 (1985). The determination of whether a stop has been converted into a full-fledged arrest requires an examination of the totality of the circumstances surrounding the encounter, and each case must be decided on its own facts. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995) (citing Parr, 843 F.2d at 1231). Holding a suspect at gunpoint does not automatically turn an investigatory stop into an arrest. See Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002). However, the use of the gun combined with Officer Howard's alleged statement that Brown was "under arrest for fidgeting" was sufficient to turn the stop into an arrest, because a reasonable person in Brown's shoes "would not have felt free to leave after a brief questioning," Allen v. City of Portland, 73 F.3d 232, 236 (9th Cir. 1995) (citation omitted) (holding that a police officer following a suspect into the restroom and telling her she was "under arrest" constituted an arrest because a reasonable person would not feel free to leave after a brief questioning). See United States v. Robertson, 833 F.2d 777, 781 (9th Cir. 1987) (arrest was effectuated once police encircled the suspect and one officer gave her an order at gunpoint); United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1295 (9th Cir. 1988) (arrest occurred based on detention at gunpoint by police officers who stated they were making an arrest and gave Miranda rights).
2. Probable Cause
In order for Officer Howard's de facto arrest to be lawful, he needed to have probable cause to suspect Brown had committed a crime. See Delgadillo-Velasquez, 856 F.2d at 1296. Officer Howard argues that probable cause existed because Brown had failed to comply with an officer's order. Mot. at 12-13. However, if plaintiff's evidence is believed, Brown had not failed to comply with any officer's order when Officer Howard effectuated the de facto arrest. Brown Dep. at 54:5-22 (stating that Officer Howard did not order him to exit the vehicle until after he pulled out his taser); FAC ¶ 12 ("Officer Howard stuck his gun over the top of the halfway open window. Holding the muzzle inches from Plaintiff's forehead, Officer Howard told Plaintiff to get out of the vehicle because he was under arrest.").
Moreover, reading the record in Brown's favor, no reasonable officer would have feared for his safety if he observed the scene Brown describes. According to Brown's deposition, "right after Villalobos walked off" to run a license check, Brown reached into the back seat "[b]ecause when I pulled out my registration out of the center console, there was a lot of papers. So I was trying to pick the papers that fell behind there because I was trying to find my registration that he asked me to retrieve." Brown. Dep. at 86:2-12. Brown also states that, right before Officer Howard confronted him with the gun, Brown was conversing calmly with Officer Moraitis about why he had been pulled over. Brown Dep. at 48:10-24. Therefore, the court cannot find that, as a matter of law, Officer Howard's holding Brown at gunpoint and telling him he was under arrest was justified by a concern for officer safety, nor that it was supported by probable cause.
Officer Howard's motion for summary judgment on Brown's unlawful arrest claim, as it pertains to the incident described above, is DENIED. The motion is GRANTED with respect to Brown's unlawful arrest claims for Officer Howard's taser use and for Brown's formal arrest.
C. First Amendment Retaliation
"The First Amendment forbids government officials from retaliating against individuals for speaking out." Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010) (citing Hartman v. Moore, 547 U.S. 250, 256 (2006)). To make a claim for retaliation in violation of the First Amendment, a plaintiff must establish: (1) he engaged in constitutionally protected activity; (2) he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. Ariz. Students' Ass'n v. Ariz. Bd. Of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (citation omitted). As plaintiff points out, a "significant amount of verbal criticism and challenge directed at police officers" is protected by the First Amendment. City of Houston, Tex. v. Hill, 482 U.S. 451, 460 (1987) (hereinafter Houston)]. Critical comments made toward police officers are protected speech "unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Id. at 462 (citation omitted).
Plaintiff brings a First Amendment retaliation claim for Officer Howard's use of the taser after Brown stated that he did not believe he should have to exit the vehicle. FAC ¶¶ 13-16. Defendant argues that plaintiff's First Amendment claim fails as a matter of law because (1) plaintiff's statement was not protected activity and (2) Brown cannot show a causal relationship between that statement and Officer Howard's deploying his taser. See Mot. at 23.
1. Protected Speech
The crux of defendant's argument that Brown's statement was not protected activity is the notion that "complete non-compliance with a lawful order" is not protected by the First Amendment. Mot. at 23 (citing Young, 655 F.3d at 1170; Navarro v. Sterkel, No. 5:11-cv-01700-LHK, 2012 WL 3249487 *7 (N.D. Cal. 2012)). Defendant's reliance on Young is misplaced. Young held that the defendant officer did not violate the First Amendment for arresting plaintiff, because he was arresting him for "his failure to reenter his truck" which "was not an act of expression protected by the First Amendment, but rather a simple failure to obey a police officer's lawful instructions." Young, 655 F.3d at 1170. Young was "not arrested for protesting" but for his actual noncompliance with the officer's order. Id. Similarly, in defendant's other case, Navarro, plaintiff was arrested for disobeying police instructions by taking his hands off his steering wheel during a traffic stop, not in retaliation for stating he would not take his hands off the steering wheel. Navarro, 2012 WL 3249487, at *7. Brown does not claim that his arrest was in retaliation for any expressive conduct, nor does he claim that his act of not complying with Officer Howard's order to exit the vehicle was protected speech.
Rather, according to his first amended complaint, Brown claims that his statement that he thought he did not need to exit the vehicle was protected speech, and Officer Howard's use of the taser against him was retaliation for that speech. FAC ¶¶ 13-16. According to Brown's deposition, this statement was not made in response to an order from Officer Howard, but was volunteered after Officer Howard told him he was "under arrest for fidgeting." Brown Dep. at 51:19-52:9, 54:5-10. Thus, Brown's statement was not "a simple failure to obey a police officer's lawful instructions," but an expression of Brown's opinion regarding the officer's actions, which is protected speech under Houston. See Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1378 (9th Cir. 1990) (holding plaintiff's shouting insults at police officer "represented an expression of disapproval toward a police officer" and "as such, it fell squarely within the protective umbrella of the First Amendment"); Clark v. Cty. of Sacramento, No. 2:15-cv-1211-JAM-EFB PS (TEMP), 2016 WL 3996333, at *2 (E.D. Cal. July 26, 2016) (finding plaintiff stated a claim for First Amendment retaliation based on her statement that she objected to an officer's illegal search and seizure), report and recommendation adopted, No. 2:15-cv-1211-JAM-DB PS, 2016 WL 4541029 (E.D. Cal. Aug. 31, 2016).
"Plaintiff's right to express his opinion and right to free speech in saying that he believed he should not have to get out of the vehicle, upset Howard which then set in motion the following course of events. . . ."
Officer Howard does not argue that this statement is "likely to produce a clear and present danger of a serious substantive evil" such that it would fall outside the definition of protected speech set forth in Houston. See Houston, 482 U.S. at 461. As such, defendant has not met his burden of showing that this statement was not protected speech as a matter of law. See Duran, 904 F.2d at 1378.
2. Nexus
Regarding the nexus between Brown's speech and Officer Howard's use of his taser, Brown introduces evidence to show that Officer Howard discharged his taser at Brown for some reason other than officer safety. See Howard Dep. at 50:5-25 (testifying he did not feel his life was threatened at the time he had the taser out, because otherwise he would have drawn his firearm). Drawing all inferences in Brown's favor, a reasonable jury could conclude that Officer Howard's use of the taser was proximately caused by Brown's statement, therefore summary judgment is inappropriate.
Notably, the Supreme Court has recently held that "probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment." Nieves v. Bartlett, 139 S. Ct. 1715, 1721 (2019). Because this claim is not one for a retaliatory arrest, but rather for a retaliatory use of force, the court declines to grant summary judgment on the basis that Officer Howard likely had probable cause for an arrest at the moment he deployed his taser. See Am. News & Info. Servs., Inc. v. Gore, 778 F. App'x 429, 432 (9th Cir. 2019) (applying Nieves to a First Amendment retaliation claim "to the extent [plaintiff's] arrests are the relevant 'adverse action' at issue).
3. Claim Raised in Opposition
Brown also raises a second claim for First Amendment retaliation in his opposition to defendant's motion for summary judgment, stating "Officer Howard appears to have wrongly assumed that the only conduct at issue was his tasing [sic] of Brown. However, pointing his gun at Brown also constituted a violation of Brown's First Amendment rights." Opp'n at 37-38. However, this claim was not in Brown's first amended complaint, which clearly stated only a claim for conduct that occurred after Officer Howard had already pointed his gun at Brown. FAC ¶¶ 12-14 ("Holding the muzzle [of his gun] inches from Plaintiff's forehead, Officer Howard told Plaintiff to get out of the vehicle . . . . Plaintiff nervously told Officer Howard he was not going to get out of his vehicle . . . . Plaintiff's right to express his opinion . . . in saying that he believed he should not have to get out of the vehicle, upset Officer Howard which then set in motion to following course of events. . . . [describing Officer Howard's taser use]). Brown was previously given leave to amend for the express purpose of adding the First Amendment claim after discovery revealed new facts, see ECF No. 44, yet he did not use the opportunity to give defendants adequate notice of this claim in his amended complaint. Brown cannot add new claims in his opposition that were not stated in his complaint. Silva v. Idaho, No. CV 08-531-S-REB, 2010 WL 529495, at *5 (D. Idaho Feb. 8, 2010) ("It is improper to attempt to raise entirely new claims in a responsive brief to a dispositive motion."); Wormuth v. Lammersville Union Sch. Dist., 305 F. Supp. 3d 1108, 1119 (E.D. Cal. 2018) (a party may not defeat a motion for summary judgment "by raising theories that lie outside the scope of their pleadings" (citation omitted)); cf. Morgan v. Brown, No. 1:17-cv-00425-LJO-JLT, 2018 WL 4385842, at *4 (E.D. Cal. Sept. 14, 2018) (allowing plaintiff to raise new facts on summary judgment that had been newly discovered, because they were "not so different from those in the FAC to lie outside the scope of the pleadings" and it was clear that "Defendant was aware of the discovered facts").
The court notes that, later in the complaint, plaintiff states: "The force applied by Officer Howard, and the use of the taser on Plaintiff, was in retaliation for Plaintiff exercising his First Amendment rights." FAC ¶ 21. While this allegation could be read to encompass Officer Howard's use of force when he points his gun at Brown, such a reading would be a stretch and the context implies otherwise. Rather, it does appear plaintiff is now attempting to introduce a new claim through his opposition.
Therefore, the court only addresses the First Amendment claim as it is outlined in the first amended complaint.
D. Malicious Prosecution Claim
"To maintain a § 1983 action for malicious prosecution, a plaintiff must show that 'the defendants prosecuted her with malice and without probable cause, and that they did so for the purpose of denying her [a] specific constitutional right.'" Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011) (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)). A plaintiff can bring a malicious prosecution claim not only against prosecutors but also against police officers who wrongfully caused his prosecution. Id. (citation omitted). To succeed, a plaintiff must show a "retaliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor's decision." Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008).
In his complaint, Brown brings a claim for "Malicious Prosecution in Derogation of Plaintiff's Constitutional Rights Under the U.S. Constitution." FAC at 6. Though the complaint does not reference § 1983 specifically, for the purpose of this motion, the court assumes based on the claim's wording that the malicious prosecution claim is brought under § 1983. --------
Brown's claim is based on his allegation that Officer Howard omitted from his police report that he held Brown at gunpoint, Howard falsely stated in his report that he tasered Brown only after Brown "reached down with his right arm toward the floorboard and appeared to be reaching toward the bottom of the passenger seat," Opp'n at 41, and that Howard falsely stated in his report that he found cocaine in Brown's car, UF 58.
Brown does not defend his malicious prosecution claim with respect to Officer Howard's falsely stating he found cocaine in Brown's car, see Opp'n at 40-41, and Brown does not offer any evidence supporting his claim that the statement was false other than his own deposition testimony, which is generally insufficient to support a claim for malicious prosecution, Sloman v. Tadlock, 21 F.3d 1462, 1474 (9th Cir. 1994).
As for Howard's alleged omission of the use of his firearm, Blankenhorn suggests such an omission of possibly excessive force in a police report may negate any probable cause to charge the victim of resisting arrest. 485 F.3d at 484. On this basis, plaintiff's malicious prosecution claim survives summary judgment, and the court need not inquire into whether the remaining omission is grounds for a malicious prosecution claim.
Officer Howard's motion for summary judgment on Brown's malicious prosecution claim is GRANTED.
IV. CONCLUSION
Plaintiff has not provided sufficient evidence to support a malicious prosecution claim. As to this claim, defendant Officer Howard's motion for summary judgment is GRANTED.
Plaintiff has pointed to sufficient evidence to defeat summary judgment on his § 1983 claims for violation of his Fourth Amendment rights and for First Amendment retaliation. Having demanded a jury trial, plaintiff is entitled to have a jury, not this court, decide the critical questions of fact underlying his claims. See U.S. Const. Amend. VII; see also Tolan, 572 U.S. at 660 ("The witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system."). Plaintiff may proceed with his claim for excessive force based on both Officer Howard's firearm use and his taser use, his claim for unlawful arrest based on Officer Howard's firearm use, his claim for First Amendment retaliation based on Officer Howard's taser use, and his claim for malicious prosecution. As to these claims, defendant's motion for summary judgment is DENIED.
Based on plaintiff's representations, he wishes to dismiss his claims against the remaining defendants, and intends to file a stipulation of dismissal "once a formal release agreement has been finalized." Opp'n at 6 n.1. Within 14 days of this order, the parties SHALL either file said stipulation or file a joint status report explaining why they choose not to.
Plaintiffs' request for a status conference, ECF No. 64, is DENIED as moot.
IT IS SO ORDERED. DATED: August 14, 2020.
/s/_________
CHIEF UNITED STATES DISTRICT JUDGE