Savage v. City of Whittier

Full title: Jolie SAVAGE, Plaintiff, v. CITY OF WHITTIER et al., Defendant(s).

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

Date published: Aug 30, 2023

689 F. Supp. 3d 781 (C.D. Cal. 2023)

Opinion

Case No. 2:21-cv-08067-VAP-PDx

2023-08-30

Jolie SAVAGE, Plaintiff, v. CITY OF WHITTIER et al., Defendant(s).

Catherine Ellen Rogers, Law Office of Kath Rogers, Los Angeles, CA, Olu K. Orange, Orange Law Offices PC, Los Angeles, CA, Rebecca Brown, Dan Stormer, Hadsell Stormer Renick and Dai LLP, Pasadena, CA, Leslie Ivie, Restoration Law Center, Van Nuys, CA, for Plaintiff. Nathan A. Oyster, John Russell Horstmann, Burke Williams and Sorensen LLP, Los Angeles, CA, for Defendants City of Whittier, Paul Segura, Mark Goodman, John Draper, Michael Przybyl, Jason Zuhlke, Jeffrey Robert. Nathan A. Oyster, Burke Williams and Sorensen LLP, Los Angeles, CA, for Defendant Jeff Piper.

VIRGINIA A. PHILLIPS, Senior United States District Judge

Catherine Ellen Rogers, Law Office of Kath Rogers, Los Angeles, CA, Olu K. Orange, Orange Law Offices PC, Los Angeles, CA, Rebecca Brown, Dan Stormer, Hadsell Stormer Renick and Dai LLP, Pasadena, CA, Leslie Ivie, Restoration Law Center, Van Nuys, CA, for Plaintiff. Nathan A. Oyster, John Russell Horstmann, Burke Williams and Sorensen LLP, Los Angeles, CA, for Defendants City of Whittier, Paul Segura, Mark Goodman, John Draper, Michael Przybyl, Jason Zuhlke, Jeffrey Robert. Nathan A. Oyster, Burke Williams and Sorensen LLP, Los Angeles, CA, for Defendant Jeff Piper. Order GRANTING in part and DENYING in part Defendants' Motion for Summary Judgment VIRGINIA A. PHILLIPS, Senior United States District Judge

Before the Court is a Motion for Summary Judgment ("Motion") filed by Defendants City of Whittier ("the City"), Paul Segura, Mark Goodman, John Draper, Michael Przybyl, Jason Zuhlke, and Jeffrey Robert ("Individual Defendants") (collectively, "Defendants"). (Doc. No. 82.) Plaintiff Jolie Savage filed an Opposition on July 24, 2023. (Doc. No. 83.) Defendants filed a Reply on July 31, 2023. (Doc. No. 91.)

After considering all the papers filed in support of, and in opposition to, the Motion, the Court GRANTS IN PART and DENIES IN PART the Motion.

I. BACKGROUND

Savage filed this action on October 10, 2021, naming as Defendants City of Whitter, Jeff Piper, Paul Segura, Mark Goodman, John Draper, Michael Przybyl, Jason Zuhlke, Jeffrey Robert, and Does. (Compl., Doc. No. 1.) The Complaint alleges the following six claims under 42 U.S.C. § 1983: (1) violation of First Amendment free speech against all Defendants; (2) violation of Fourteenth Amendment due process and equal protection against all Defendants; (3) unlawful detention and excessive force in violation of the Fourth Amendment against all Defendants; (4) conspiracy to violate civil rights under § 1983 against all Defendants; (5) municipal liability for unconstitutional policy, custom, or procedure against the City; and (6) municipal and supervisory liability for failure to train, supervise, discipline, or correct against Piper and the City. (Compl. 10-16.) Savage has since dismissed Defendant Piper from the action. (Doc. No. 60.)

On July 17, 2023, Defendants filed a Motion for Summary Judgment (Doc. No. 82) as to all of Savage's claims, a Statement of Undisputed Facts ("Def. SUF," Doc. No. 82-12), a Compendium of Exhibits ("COE"), attaching Exhibits 1 through 10,¹ and the following nine declarations: Declaration of Nathan A. Oyster ("Oyster Decl.," Doc. No. 82-2), Declaration of Jason Zuhlke ("Zuhlke Decl.," Doc. No. 82-3), Declaration of Paul Segura ("Segura Decl.," Doc. No. 82-4), Declaration of Kevin Ramos ("Ramos Decl.," Doc. No. 82-5), Declaration of Jeffrey Robert ("Robert Decl.," Doc. No. 82-6), Declaration of Mark Goodman ("Goodman Decl.," Doc. No. 82-7), Declaration of Michael Przybyl ("Przybyl Decl.," Doc. No. 82-8), Declaration of John Draper ("Draper Decl.," Doc. No. 82-9), and Declaration of David Elizarraras ("Elizarraras Decl.," Doc. No. 82-10).

1 Exhibits 1 through 3 comprised three separate videos of the July 28, 2020, events at issue in this case and thus were lodged with the Court pursuant to Local Rules 5-4.2 and 11-5.1. (See Doc. No. 82-11.)

On July 24, 2023, Plaintiff Savage filed an Opposition to the Motion (Doc. No. 83), a Statement of Genuine Issues ("Pl. SGI," Doc. No. 83-1 at 1-16), and her own Statement of Undisputed Facts ("Pl. SUF," Doc No. 83-1 at 16-20).² Savage also filed Evidentiary Objections to Defendants' Evidence ("Pl. Objs.," Doc. No. 84) and a Declaration of Rebecca Brown ("Brown Decl.," Doc. No. 85), attaching Exhibits 1 through 18.³

2 Savage eventually filed a Notice of Errata and Corrected Opposition on July 25, 2023, which corrected two typographical errors in her originally filed Opposition. (See Doc. Nos. 87-88.) The Court relies on this Corrected Opposition in adjudicating the pending Motion.

3 Plaintiff Savage's Exhibits 5 through 9, 12, and 15 were also videos lodged with the Court pursuant to Local Rules 5-4.2 and 11-5.1.

On July 31, 2023, Defendants filed a Reply (Doc. No. 91), their own Statement of Genuine Issues ("Def. SGI," Doc. No. 91-1), a Response to Plaintiff's Statement of Genuine Issues ("Def. Resp.," Doc No. 91-2), and Evidentiary Objections ("Def. Objs.," Doc. No. 91-3).

II. LEGAL STANDARD

A motion for summary judgment or partial summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). "The moving party may produce evidence negating an essential element of the non-moving party's case, or . . . show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1106 (9th Cir. 2000) (reconciling Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The nonmoving party must then "do more than simply show that there is some metaphysical doubt as to the material facts" but must show specific facts which raise a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the nonmoving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). "[T]he judge's function is not [ ] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

III. EVIDENTARY RULINGS

A. Plaintiff Savage's Evidentiary Objections

Plaintiff Savage objects to various statements in all six Individual Defendants' declarations asserting that Whittier Police Department ("WPD"; "the Department") trained them on the Department's policies regarding First Amendment assemblies, prohibition on the use of excessive force, use of handcuffs, and prohibition on bias-based policing. (See Def. Resp. ¶¶ 60, 63, 65, 67.) Savage argues that all of these statements contradict the Individual Defendants' corresponding deposition testimony and thus should be disregarded under the "sham affidavit" rule. (See, e.g., id. ¶¶ 23, 60.)

"A party cannot create a genuine issue of material fact to survive summary judgment by contradicting his earlier version of the facts." Block v. City of Los Angeles, 253 F.3d 410, 419 n.2 (9th Cir. 2001). This is because "if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (quoting Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)).

The sham affidavit rule, however, "should be applied with caution," Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993), because "[the] rule is in tension with the principle that a court's role in deciding a summary judgment motion is not to make credibility determinations or weigh conflicting evidence," Van Asdale, 577 F.3d at 998. The Ninth Circuit thus "ha[s] fashioned two important limitations on a district court's discretion to invoke the sham affidavit rule." Id. First, the rule "does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony," Kennedy, 952 F.2d at 266-67; rather, "the district court must make a factual determination that the contradiction was actually a 'sham,' " i.e., "testimony that flatly contradicts earlier testimony in an attempt to 'create' an issue of fact and avoid summary judgment," id. at 267. Second, the Ninth Circuit "ha[s] emphasized that the inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit." Van Asdale, 577 F.3d at 998-99.

Here, Individual Defendants' declarations do not raise the specter of "creating" a genuine issue of material fact to avoid summary judgment because the declarations were submitted to demonstrate that no genuine issues of material fact exist to procure summary judgment in Defendants' favor. (See Mot. 17.) Savage, moreover, has not provided sufficient information for the Court to make a factual determination that the declarations present sham evidence. Savage has not cited any specific deposition excerpts that purportedly contradict the declaration statements she objects to. She instead argues that the declarations contradict prior testimony "by adding information" on topics that Individual Defendants had "made no statement about" at deposition. (See, e.g., Pl. Objs. ¶ 23.) It is unclear, however, how merely providing additional information via declaration creates "clear and unambiguous" inconsistencies that "flatly contradict" Individual Defendants' prior deposition testimony such that the sham affidavit rule would apply. See Van Asdale, 577 F.3d at 999 (concluding the sham affidavit rule did not apply where a declaration provided additional information clarifying the declarant's prior deposition testimony). To the extent Savage failed to question or obtain information from Individual Defendants on these topics at their depositions, she cannot now preclude Defendants from presenting more detailed information in connection with their Motion by asserting that the new statements are a "sham."

The Court accordingly OVERRULES Plaintiff Savage's objections to Individual Defendants' signed declarations.

B. Defendants' Evidentiary Objections

1. Rule 401 and 403 Objections

Defendants' Evidentiary Objections assert various objections to Savage's presented evidence under Federal Rules of Evidence 401 and 403. (See generally Def. Objs.) Since summary judgment can be granted "only when there is no genuine dispute of material fact. It cannot rely on irrelevant facts, and thus relevance objections [under Rule 401] are redundant." Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006); see Montoya v. Orange Cnty. Sheriff's Dep't, 987 F. Supp. 2d 981, 994 (C.D. Cal. 2013). For similar reasons, the Court need not exclude evidence on grounds outlined in Rule 403 at the summary judgment stage. See, e.g., Bafford v. Travelers Cas. Ins. Co. of Am., No. 2:11-cv-02474-LKK-JFMx, 2012 WL 5465851, at *8 (E.D. Cal. Nov. 8, 2012) (stating that Rule 403 objections are "inapt in the summary judgment context"). All of Defendants' Rule 401 and 403 objections articulated in their Evidentiary Objections, including those related to the Savage testimonies, are therefore inapplicable in adjudicating this Motion. They are more properly raised before trial, and Defendants may reraise them at that time. The Court accordingly OVERRULES all of Defendants' evidentiary objections that rely on Rules 401 and 403.

2. Photographs and Medical Notes

Savage's Exhibit 16 purportedly provides sixteen photos and two X-ray images of Savage's various body parts. Savage's Exhibits 17 and 18 respectively appear to be medical progress notes regarding Savage dated June 8, 2020, by Raffy Mirzayan, M.D., and post-operation notes by David Oren De Witt, P.A. Defendants argue that these exhibits lack foundation and proper authentication. (Def. Objs. 4.) They also argue that the exhibits constitute inadmissible expert opinion from a lay witness under Federal Rule of Evidence 701 and contain inadmissible hearsay under Federal Rule of Evidence 801.

"To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56." Block, 253 F.3d at 419. "[W]hen evidence is not presented in an admissible form in the context of a motion for summary judgment, but it may be presented in an admissible form at trial, a court may still consider that evidence." Burch, 433 F. Supp. 2d at 1120.

Regarding the photographs Savage presents, though she attempts to authenticate these exhibits only via declaration of her attorney (Brown Decl. ¶ 17), she could establish a proper foundation for the photographs and authenticate them via their creator's testimony at trial. The photographs further are not hearsay, as they provide no assertive physical conduct. See United States v. Oaxaca, 569 F.2d 518, 525 (9th Cir. 1978) (stating that photographs were not inadmissible hearsay because "[i]n order to constitute hearsay, evidence must be assertive . . . .") Finally, regarding Defendants' objections to this evidence under Federal Rule of Evidence 701, Savage may rely on the photographs to establish "subjective perception of h[er] symptoms," namely that she had multiple cuts and bruising on her arms, wrists, and elbow after the events at issue, but not as evidence of "medical causation" that the events in question caused those symptoms. Stevenson v. Holland, 504 F. Supp. 3d 1107, 1121 (E.D. Cal. 2020); see Tobeler v. Colvin, 749 F.3d 830, 832-34 (9th Cir. 2014). The Court otherwise OVERRULES Defendants' objections to Exhibits 16.

As for the medical records, Savage would be able to lay a proper foundation for them and properly authenticate them at trial. Though the documents may contain hearsay statements if offered for the truth of the matters they assert, Savage could introduce these contents at trial via testimony from the medical professionals who authored them or, at the very least, use them to refresh the recollections of those practitioners. To the extent, however, Savage presents these records to support impermissible lay opinions beyond what the medical records reveal, such as her injuries "requir[ing] surgery" (Compare Def. SGI ¶ 63 (emphasis added), with Brown Decl. Ex. 17 ("Recommend surgery")), the Court SUSTAINS Defendants' objection to the Exhibits. The Court otherwise OVERRULES Defendants' objections to Exhibits 17 and 18. At summary judgment, the Court may evaluate these exhibits while bearing in mind the limitations of what they reveal.

The Court does not address any of the parties' other evidentiary objections, as they were not relied upon in adjudicating this Motion.

IV. FACTS

Both Defendants and Plaintiff Savage filed Statements of Undisputed Facts ("Def. SUF," Doc. No. 82-12; "Pl. SUF," Doc No. 83-1 at 16-20) and Statements of Genuine Issues ("Pl. SGI," Doc. No. 83-1 at 1-16; "Def. SGI," Doc. No. 91-1). Defendant also filed a Response to Plaintiff's Statement of Genuine Issues. ("Def. Resp.," Doc No. 91-2.)

To the extent certain facts or contentions are not mentioned in this Order, the Court has not found it necessary to consider them in adjudicated the pending Motion.

A. Uncontroverted Facts

The following material facts are supported adequately by admissible evidence and are uncontroverted. They are "admitted to exist without controversy" for the purposes of this Motion. See Local Rule 56-3.

On July 28, 2020, two competing groups of demonstrators assembled in front of WPD to express their opinions on policing. (Def. Resp. ¶¶ 1-2, 4-5, 8.) One group (the "pro-police demonstrators") demonstrated in support of the police and involved, in part, a caravan of cars driving south on Washington Avenue in front of WPD. (Id. ¶¶ 3, 4.) The other group (the "counterdemonstrators") voiced their opinions in response to the pro-police demonstrators on foot in the same area. (Id. ¶¶ 6, 7.)

Lieutenant Przybyl had created WPD's Operation Plan for the event. (Def. SGI ¶ 1.) On the day of the event, WPD blocked off Washington Avenue and some of the surrounding streets to allow the pro-police caravan to proceed along its route. (Def. Resp. ¶¶ 5, 8.) The caravan drove down Washington Avenue at an extremely slow speed and frequently stopped for long periods of time. (Def. SGI ¶¶ 24-25.) WPD allowed both pro-police demonstrators and the counterdemonstrators to walk through the streets where the caravan cars were driving,⁴ and numerous demonstrators stood in front of the cars. (Def. Resp. ¶ 9; Def. SGI ¶¶ 3, 15.) The Department also permitted the caravanners to drive in the opposing lane of traffic, make U-turns in the middle of the street, and block the intersection at the end of the avenue. (Def. SGI ¶¶ 7-8, 19.) Officers at times waved and cheered at the pro-police demonstrators. (Id. ¶¶ 9, 13.) On separate occasions, a WPD officer fist bumped a pro-police demonstrator, and another officer hugged a pro-police demonstrator. (Id. ¶¶ 12-13.) Pro-police demonstrators did, however, yell threats of violence at and physically push counterdemonstrators periodically. (Id. ¶¶ 17-18.) No pro-police demonstrators were arrested or cited during the event, nor did any WPD officer ever issue a dispersal order or declare an unlawful assembly. (Id. ¶¶ 20, 32.)

4 Plaintiff's Statement of Genuine Issues indicates that the parties dispute this fact (see Pl. SGI ¶ 4), but Defendants later concede the fact in their own Statement of Genuine Issues (see Def. SGI ¶ 3). The Court deems the fact undisputed. See Fed. R. Civ. P. 56(e)(2), L.R. 56-3.

Savage participated in the event as a counterdemonstrator. (Def. Resp. ¶ 10.) She expressed her criticism of law enforcement by yelling at officers and pro-police demonstrators, and blocking cars in the pro-police caravan. (Id. ¶ 16; Def. SGI ¶ 21.) During the event, two successive white caravan cars approached Savage at very low speeds while she walked through the street and stopped in front of her. (Def. SGI ¶¶ 27, 28.) Savage stood in front of each car in sequence and expressed her views, at times yelling obscenities at the occupants. (Def. Resp. ¶ 14; Def. SGI ¶ 30; COE Ex. 2 at 4:26-6:31.) While Savage stood in front of the cars, other vehicles and pedestrians also blocked the cars' ability to proceed. (Def. SGI ¶ 31; Brown Decl. Ex. 5 at 4:24-6:26.) Officer Robert and Sergeant Zuhlke observed Savage block these cars from WPD's roof. (Def. Resp. ¶ 13.) No WPD officer instructed Savage to move away from either of the two cars. (Def. SGI ¶ 33.)

After blocking the cars for two minutes, Savage walked away from the front of the second car to behind a police skirmish line, which allowed the pro-police caravan to proceed. (Def. Resp. ¶¶ 18-19; COE Ex. 2 at 6:32-6:44.) She began interacting with officers at the scene and, during this interaction, a push occurred between Savage and one of the officers. (Def. Resp. ¶ 19; Def. SGI ¶¶ 35-36.) Savage said to the officer, "Don't fucking touch me bitch."⁵ (Def. Resp. ¶ 19; Def. SGI ¶ 36.)

5 Aside from this push and calling the officer a "bitch," Defendants concede that Savage did not engage in any other acts of violence during the demonstrations. (See Def. SGI ¶ 22.) Whether Savage initiated the push is disputed. (See infra Section IV.B.)

At some point, Zuhlke radioed to Przybyl and Sergeant Segura that Savage should be arrested for blocking traffic. (Def. Resp. ¶¶ 21-22.) Przybyl then instructed Segura to arrest Savage (id. ¶ 28; Def. SGI ¶ 37), and Segura decided to form an arrest team (Def. Resp. ¶ 32; Def. SGI ¶ 38).⁶ Segura then ordered Officers Goodman and Draper to arrest Savage by approaching her while she stood on the other side of the police skirmish line and pulling her behind the line to handcuff her and place her under arrest. (Def. Resp. ¶¶ 35, 38, 40.)

6 Defendants' cited evidence does not support that Segura made this decision based on Segura's own observations as Defendants' Statement of Undisputed Fact asserts. (Compare Def. Resp. ¶ 32, with Segura Decl. ¶¶ 10-11.) The Court disregards this portion of Defendants' asserted undisputed fact. See Fed. R. Civ. P. 56(c)(1)(A) (requiring a party to "cit[e] to particular parts of materials in the record" to assert that a fact cannot be or is disputed).

Over a minute after the push between Savage and the officer (COE Ex. 2 at 6:48-7:52), Goodman and Draper approached Savage by surprise while she stood behind the skirmish line (Def. Resp. ¶ 39; Def. SGI ¶ 39). Goodman forcefully used one hand to grab the upper part of one of Savage's arms near her bicep, while Draper used at least one hand to grab one of Savage's arms forcefully. (Def. Resp. ¶ 41; Def. SGI ¶ 40.) As Goodman and Draper attempted to move Savage to the other side of the skirmish line, Savage fell to the ground on her back. (Id. ¶ 43; Def. SGI ¶ 45.) Goodman and Draper continued to hold Savage's arms and wrists to restrain her (Def. SGI ¶ 46), and officers formed a circle around Savage, Draper, and Goodman (Def. Resp. ¶ 45; Def. SGI ¶ 47). While on the ground, Savage sat up and attempted to bite Goodman's right forearm as he tried to gain control of her arms. (Def. Resp. ¶ 46; Def. SGI ¶ 52.) After the attempted bite, Goodman pushed Savage's face⁷ into the ground with his right forearm and eventually flipped her onto her stomach. (Def. Resp. ¶¶ 47, 48; Def. SGI ¶ 53.) Draper then put his knee on Savage's back, which caused Savage to struggle breathing. (Def. Resp. ¶ 49; Def. SGI ¶¶ 55-56.) Savage said, "I can't breathe," and Draper removed his knee. (Id. ¶ 50.) Goodman and Draper then pulled Savage's arms behind her back and handcuffed her. (Id. ¶¶ 53-54.) Savage was then walked to the WPD station. (Def. SGI ¶ 56.)

7 Defendants dispute this fact by stating that their Exhibit 3 shows Goodman "us[ing] his right forearm to move Savage's mouth away from his person." (See Def. SGI ¶ 53.) Defendants' cited evidence clearly shows Goodman pushing Savage's face into the ground using his forearm. The Court deems this fact undisputed.

After the incident, Savage had multiple cuts and bruises on her arms, wrists, and elbow, and sought medical attention for pain in her left elbow. (Def. SGI ¶ 64; Brown Decl. Ex. 17.) She eventually underwent recommended surgery to release nerve compression in her elbow. (Brown Decl. Ex. 17, 18.)

Savage was arrested for battery of a peace officer under California Penal Code section 243(b), resisting arrest under California Penal Code section 148(a), and a right-of-way violation under California Vehicle Code section 21954(a). (Def. Resp. ¶ 57.) WPD maintains policies on First Amendment assemblies, use of force, use of handcuffs, and bias-based policing. (Def. Resp. ¶¶ 59, 62, 64, 66.) All Individual Defendants were trained on these policies. (Id. ¶¶ 60, 63, 65, 67.)

B. Disputed Facts

The parties dispute the following material facts:

- Whether Savage made any threats of violence during the event (Def. SGI ¶ 23.)

- Whether Savage or an officer initiated the push that occurred after Savage walked away from the second white car (Def. Resp. ¶ 19; Def. SGI ¶ 35.)

- Whether Draper gripped Savage's forearm with both of his hands or placed only one hand on Savage's upper arm when first approaching her (Def. Resp. ¶ 41.)

- Whether Savage immediately began resisting arrest and attempting to pull her arms away when Goodman and Draper first made physical contact with her (Id. ¶ 42; Def. SGI ¶ 41.)

- Whether Draper and Goodman dragged Savage a few feet thereafter (Def. SGI ¶ 42.)

- Whether Draper and Goodman pushed and pulled Savage to the ground or whether Savage intentionally fell as a result of her resisting arrest (Def. Resp. ¶ 43; Def. SGI ¶ 44.)

- Whether, prior to Savage's attempted bite, Goodman had moved his hand close to Savage's nose and mouth, causing her to fear that he was going to cover them (Def. SGI ¶ 50.)

- Whether Savage's attempted bite made contact with Goodman (Def. SGI ¶ 52.)

- Whether Draper held his knee on Savage's back for three to four seconds or approximately eight seconds (Def. Resp ¶ 49; Def. SGI ¶ 55.)

- Whether Draper and Goodman handcuffed Savage so tightly that her arm bled (Def. SGI ¶ 57.)

- Whether, after being handcuffed, Savage told officers that her handcuffs were painfully tight and whether Defendants

failed to respond to this complaint (Id. ¶ 61.)

V. DISCUSSION

Defendants move for summary judgment in their favor as to all of Plaintiff Savage's claims. The Court will consider whether triable issues exist for each claim.

A. Fourth Amendment Unlawful Search/Seizure and Excessive Force

Plaintiff Savage claims Defendants violated her Fourth Amendment rights by unlawfully arresting her without probable cause and using excessive force in effectuating her arrest. Defendants move for summary judgment in their favor as to both theories of liability.

As a threshold matter, Defendants contend that Przybyl, Segura, Robert, and Zuhlke cannot be held liable for any Fourth Amendment violations against Savage because they personally did not participate in Savage's arrest nor use any force against Savage on the day of the demonstrations. (Mot. 19, 22.) Savage responds that all six Individual Defendants may be held liable for such constitutional deprivations because they were integral to Draper's and Goodman's alleged unlawful arrest and use of excessive force against her. (Opp'n 28.)

"An officer's liability under section 1983 is predicated on his 'integral participation' in the alleged violation." Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (citing Chuman v. Wright, 76 F.3d 292, 294-95 (9th Cir. 1996)). " '[I]ntegral participation' does not require that each officer's actions themselves rise to the level of a constitutional violation," Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th Cir. 2004), "[b]ut it does require some fundamental involvement in the conduct that allegedly caused the violation," Blankenhorn, 485 F.3d at 481 n.12, that would make the official more than a " 'a mere bystander' who had 'no role in the unlawful conduct,' " Boyd, 374 F.3d at 780. The Ninth Circuit accordingly has "conclude[d] that an actor may be deemed to have 'cause[d] [a plaintiff] to be subjected' to a constitutional violation, and thus to be an integral participant in the violation, only if (1) the defendant knew about and acquiesced in the constitutionally defective conduct as part of a common plan with those whose conduct constituted the violation, or (2) the defendant set in motion a series of acts by others which the defendant knew or reasonably should have known would cause others to inflict the constitutional injury." Peck v. Montoya, 51 F.4th 877, 891 (9th Cir. 2022).

Given this guidance, a reasonable jury could conclude that all six Individual Defendants were integral to the unlawful arrest Savage alleges. The undisputed facts demonstrate that Zuhlke issued the initial arrest order to Przybyl, who then instructed Segura to do the same. Segura then formed an arrest team of Goodman and Draper, who both carried out the arrest. This conduct fulfills either standard of integral participation under Peck for these five officers in relation to Savage's arrest. See Lacey v. Maricopa County, 693 F.3d 896, 918 (9th Cir. 2012) (holding that a § 1983 action for unlawful arrest could be maintained against officials who "ordered or otherwise procured" the arrests); Nicholson v. City of Los Angeles, 935 F.3d 685, 692 (9th Cir. 2019) (affirming that an officer integrally participated in an unlawfully prolonged detention by "instruct[ing] . . . other officers to arrest [p]laintiffs or consult[ing] with [other officers] in that decision"). Though the facts regarding Robert's involvement are less substantial, they nevertheless establish that Robert was stationed on the roof with Zuhlke and, from that vantage point, observed Savage blocking vehicles during the demonstrations. A reasonable jury could infer from these facts that Robert was aware at least of Zuhlke's radioed order to Przybyl to arrest Savage and thus "knew about and acquiesced in the [alleged] constitutionally defective conduct." Peck, 51 F.4th at 890; see Boyd, 374 F.3d at 780 ("[E]very officer was aware of the decision . . . , did not object to it, and participated in the . . . operation knowing" about the decision.). All Individual Defendants therefore may be held liable under § 1983 for Plaintiff Savage's alleged unlawful arrest.

The same cannot be said of Savage's excessive force allegations. Viewing the facts in the light most favorable to Savage, the decision regarding how to arrest her—and thus, what level of force to use—did not form until Segura chose Goodman and Draper as an arrest team and directed them to approach Savage on the other side of the skirmish line, pull her behind the line, and arrest her. (See Def. Resp. ¶¶ 35, 38-40; Def. SGI ¶¶ 38, 39.) Savage has presented no facts demonstrating that Robert, Zuhlke, or Przybyl had any knowledge of Segura, Goodman, and Draper's specific tactical plan to secure Savage's arrest or any ability to intervene once these latter three began to execute their plan. Peck, 51 F.4th at 891 ("[T]here is no suggestion that [these officers] formed a plan whereby [the force-applying officers] would deploy excessive force. Nor did they have any reason to know that their actions . . . would enable the later use of excessive force."); Hughes v. Rodriguez, 31 F.4th 1211, 1223 (9th Cir. 2022) ("[The officers] cannot be held liable for fleeting acts which they did not commit, came without warning, and could not have prevented.").

Absent any such showing, no reasonable jury could conclude that Robert, Zuhlke, or Przybyl's mere involvement in deciding to arrest Savage made them integral participants in the alleged unconstitutional force used to arrest her. See Hughes, 31 F.4th at 1223 (holding that excessive force claims failed as a matter of law against officers who led a fugitive apprehension team and participated in a home entry resulting in allegedly unlawful dog bites); see also Sanders v. Rodriguez, No. 2:17-cv-08843-MCS-KSx, 2020 WL 5217155, at *10 (C.D. Cal.), report and recommendation adopted, 2020 WL 5211039 (C.D. Cal. Sept. 1, 2020); Hermosillo v. County of Orange, 562 F. Supp. 3d 802, 816 (C.D. Cal. 2021). The Court thus GRANTS summary judgment in favor of Robert, Zuhlke, and Przybyl as to Savage's Fourth Amendment claim of excessive force.

The Court now turns to each of Plaintiff Savage's theories on her Fourth Amendment claim.

1. Unlawful Arrest

Plaintiff Savage claims that Individual Defendants unlawfully arrested her without probable cause in violation of the Fourth Amendment. (See Compl. 12.) Defendants first argue that the officers needed only reasonable suspicion to detain Savage rather than probable cause to arrest her. (Mot. 18; Reply 10.) Ostensibly, Defendants' theory is that Savage's arrest did not begin when Goodman and Draper first grabbed her, but instead as some later time—perhaps when the officers applied physical force to her on the ground, handcuffed her, or walked her to WPD's station. (See id.) Savage responds that Defendants fail to define when such a purported detention took place and that, nevertheless, no reasonable jury could conclude that Savage was ever detained on the day of the demonstrations. (Opp'n 12.) The Court thus must address whether Savage has demonstrated a triable issue as to her arrest beginning when Goodman and Draper first grabbed her.

"[A] warrantless arrest satisfies the Constitution so long as the officer has 'probable cause to believe that the suspect has committed or is committing an offense.' " Virginia v. Moore, 553 U.S. 164, 173, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (citation omitted). "Under Terry[v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] and its progeny, [however], the Fourth Amendment [also] allows police to conduct a brief, investigatory search or seizure, so long as they have a reasonable, articulable suspicion that justifies their actions." Gallegos v. City of Los Angeles, 308 F.3d 987, 990 (9th Cir. 2002). The reasonable suspicion standard "is a less demanding standard than probable cause," id. (citation omitted), requiring only " 'a particularized and objective basis for suspecting the particular person stopped' of breaking the law," Heien v. North Carolina, 574 U.S. 54, 60, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) (citation omitted).

"There is no bright-line rule to determine when an investigatory stop becomes an arrest." Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996) (citing United States v. Parr, 843 F.2d 1228, 1231 (9th Cir. 1988)). Instead, "[c]ourts 'examine the "totality of the circumstances" in deciding "whether an investigative detention has ripened into an arrest,' " focusing 'on the perspective of the person seized, rather than the subjective beliefs of the law enforcement officers.' " Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1176 (9th Cir. 2013) (citations omitted). "In looking at the totality of the circumstances, we consider both the intrusiveness of the stop, i.e., the aggressiveness of the police methods and how much the plaintiff's liberty was restricted." Washington, 98 F.3d at 1185 (citing United States v. Robertson, 833 F.2d 777, 780 (9th Cir. 1987)).

Determining when an investigatory stop becomes an arrest "is a highly fact-specific inquiry that considers the intrusiveness of the methods used in light of whether these methods were 'reasonable given the specific circumstances.' " Green v. City & Cnty. of San Francisco, 751 F.3d 1039, 1047 (9th Cir. 2014) (citation omitted). Indeed, "[t]he relevant inquiry is always one of reasonableness under the circumstances," Allen v. City of Los Angeles, 66 F.3d 1052, 1057 (9th Cir. 1995) (emphasis added) (citation omitted), and "because th[e] inquiry is fact specific, it is often left to the determination of a jury," Green, 751 F.3d at 1047.

Savage has raised a triable issue as to whether her arrest began when Goodman and Draper first grabbed her. It is undisputed that once Savage stopped blocking the second white car in the pro-police caravan, she walked behind the police skirmish line, which allowed the caravan to proceed. Accepting Savage's version of subsequent events, an officer next pushed her as she interacted with nearby officers. Savage then stood behind the skirmish line for more than a minute until Goodman and Draper—flanked by a line of many fellow officers—surprised Savage by grabbing her arms forcefully. See Washington, 98 F.3d at 1189 ("[W]hether the police physically restrict the suspect's liberty is an important factor in analyzing the degree of intrusion . . . ."); Centeno v. City of Carlsbad, No. 3:19-cv-02098-RSH-DEBx, 2021 WL 6064383, at *6 (S.D. Cal. Dec. 22, 2021) ("[G]rabbing [plaintiff]'s arms to handcuff him without any warning or explanation . . . significantly increased the intrusiveness of the detention . . . . It is uncommon to use restraints like that during routine investigative detention."); Green, 751 F.3d at 1047 (9th Cir. 2014) (stating that the "number of police officers present is also highly relevant" in analyzing whether an arrest has occurred). Savage contends the two officers then dragged her a few feet before pushing and pulling her to the ground. Given the circumstances, it seems plain that these tactics were significantly intrusive and restrictive enough of Savage's liberty such that she would not have felt free to leave.⁸ See Johnson, 724 F.3d at 1176 ("The question is . . . whether a reasonable innocent person in [the same] circumstances would not have felt free to leave . . . ." (citation omitted)).

8 This conclusion seems even more plain when taking into account the subjective views of officers at the scene, though this is not part of the relevant inquiry. Defendants' submissions for the pending Motion are rife with factual assertions and affidavit statements suggesting that officers thought they were arresting—rather than detaining—Savage from as early as Zuhlke's radioed order to Przybyl. (See, e.g., Def. SUF ¶¶ 24, 21, 28, 32, 38; Przybyl Decl. ¶¶ 23-24; Segura Decl. ¶¶ 10-12, 14.)

None of the factors from Washington permitting officers to use more intrusive tactics were present here either. See 98 F.3d at 1189. There is no evidence that Savage was armed or about to commit a violent crime, nor does Savage's version of the facts suggest that she posed a flight risk, had just finished committing a violent crime, or was uncooperative with officer orders as Goodman and Draper approached. On these facts, a reasonable jury certainly could conclude that Savage was arrested once Goodman and Draper forcefully grabbed her. The Court accordingly finds that Savage has presented a triable issue as to the entire sequence with Goodman and Draper constituting an arrest.

Given this finding, Plaintiff Savage's unlawful arrest claim thus hinges on whether Individual Defendants had probable cause to arrest her.

Again, the Fourth Amendment generally requires that a warrantless arrest be supported by probable cause. See Michigan v. Summers, 452 U.S. 692, 700, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Probable cause for an arrest exists when "under the totality of circumstances known to the arresting officer, a prudent person would have concluded that there was a fair probability that [the suspect] had committed a crime." United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986); see Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "While conclusive evidence of guilt is of course not necessary under this standard," United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007), "[m]ere suspicion, common rumor, or even strong reason to suspect are not enough," McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984). "Probable cause [further] must be determined at the time the arrest is made." Allen v. City of Portland, 73 F.3d 232, 236 (9th Cir. 1995). Indeed, "[f]acts learned or evidence obtained as a result of a[n] . . . arrest cannot be used to support probable cause unless they were known to the officer at the moment [of] the arrest . . . ." Id.; see Wong Sun v. United States, 371 U.S. 471, 482, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

"Probable cause is an objective standard," therefore "[t]he arresting officers' subjective intention . . . is immaterial in judging whether their actions were reasonable . . . ." Lopez, 482 F.3d 1067 at 1072. "Because the . . . standard is objective, probable cause supports an arrest so long as the arresting officers had probable cause to arrest the suspect for any criminal offense, regardless of their stated reason for the arrest." Edgerly v. City & Cnty. of San Francisco, 599 F.3d 946, 954 (9th Cir. 2010) (emphasis added) (citing Devenpeck v. Alford, 543 U.S. 146, 153-55, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)). "Probable cause, however, must still exist under some specific criminal statute." Id.; see Alford v. Haner, 446 F.3d 935, 937 (9th Cir. 2006).

Citing only evidence that Savage blocked cars during the demonstrations, Defendants proffer ten provisions under either the California Penal Code or California Vehicle Code that purportedly established probable cause to arrest Savage. Since probable cause must be determined at the time arrest is made, and since Savage has presented a triable issue as to her arrest beginning when Goodman and Draper first grabbed her, the Court analyzes whether probable cause existed based on the facts known to Individual Defendants at that specific time. See United States v. Collins, 427 F.3d 688, 691 (9th Cir. 2005) ("[T]he relevant inquiry is what the agents knew, collectively, at the time they arrested [the suspect]."); Allen, 73 F.3d at 236 ("Facts learned or evidence obtained as a result of a stop or arrest cannot be used to support probable cause unless they were known to the officer at the moment the arrest was made.").

Analyzing probable cause within this timeframe makes clear that summary judgment cannot be granted in Defendants' favor on whether probable cause existed to arrest Savage for assault or battery. See Cal. Penal Code § 240 ("An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."); id. § 242 ("A battery is any willful and unlawful use of force or violence upon the person of another."); id. § 241(c). When Goodman and Draper first grabbed Savage, the only evidence that potentially could have formed a basis for probable cause under these provisions was the push that occurred between Savage and an officer. The parties, however, dispute whether Savage or the officer initiated this push, and no facts suggest that Individual Defendants saw this push occur before Savage was arrested.⁹ See United States v. Martin, 509 F.2d 1211, 1213 (9th Cir. 1975) ("Arresting officers have probable cause if, at the moment of arrest, 'the facts and circumstances within their knowledge . . . were sufficient to warrant a . . . belie[f] that the (arrested person) had committed or was committing an offense.' " (emphasis added) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964))).

9 Defendants similarly argue in their Reply that probable cause existed to arrest Savage for violating California Penal Code section 148(a)(1), which penalizes "willfully resist[ing], delay[ing], or obstruct[ing] any . . . officer . . . in the discharge or attempt to discharge any duty of his or her office or employment." (Reply 12.) Though the Court need not consider this argument, see Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) ("The district court need not consider arguments raised for the first time in a reply brief."), section 148(a)(1) alone cannot be used to demonstrate probable cause for an arrest where, as here, Savage has demonstrated triable issues as to whether Individual Defendants lacked probable cause to arrest her under any of Defendants' other cited provisions. See Johnson, 724 F.3d at 1178 ("A suspect cannot be arrested for violating section 148 because he evaded an officer's attempt to arrest him unlawfully."); Velazquez v. City of Long Beach, 793 F.3d 1010, 1018-20 (9th Cir. 2015).

Savage adequately rebuts liability under many of the other provisions Defendants proffer. For example, Defendants argue that Individual Defendants had probable cause to arrest Savage for violating California Vehicle Code section 2800, which penalizes "willfully fail[ing] or refus[ing] to comply with a lawful order, signal, or direction of a peace officer," but no facts in the record suggest that officers ever ordered Savage to step away from the two white cars she blocked during the demonstrations. Likewise, Defendants cite California Vehicle Code section 21953, but that provision necessarily involves "a pedestrian tunnel or overhead crossing serv[ing] the place where the pedestrian is crossing the roadway," a condition not present here at all. See Cal. Veh. Code § 21953(a).

Defendants next proffer California Vehicle Code section 21950(b), which prohibits pedestrians from "suddenly leav[ing] a curb or other place of safety and walk[ing] or run[nning] into the path of a vehicle that is so close as to constitute an immediate hazard," and section 21954(a), which requires pedestrians in roadways to "yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard." The parties, however, do not dispute that WPD had blocked off Washington Avenue to non-caravan traffic, that both pro-police demonstrators and counterdemonstrators walked through the streets where caravan cars were driving, and that the caravan cars traveled at extremely slow speeds and frequently stopped. On these facts, a reasonable jury could determine that Savage did not "suddenly leav[e] a curb or other place of safety" or that the caravan cars did not constitute "immediate hazards" for purposes of establishing probable cause under these provisions. See United States v. Pennington, No. 21-50193, 2022 WL 2452303 at *1, 2022 U.S. App. LEXIS 18598 at *3-4 (9th Cir. July 6, 2022) (citing Spann v. Ballesty, 276 Cal. App. 2d 754, 761-62, 81 Cal.Rptr. 229 (1969)) (holding that reasonable suspicion could not exist for a section 21950(b) violation based on a suspect walking in the middle of a street because the provision was intended to apply "when [a] vehicle is so close that it is virtually impossible to avoid an accident"); People v. Ramirez, 140 Cal. App. 4th 849, 851-54, 44 Cal. Rptr.3d 813 (2006) (concluding that probable cause could not exist for a section 21954(a) violation where the car purported to be an "immediate hazard" merely approached an intersection and stopped as a suspect crossed diagonally in front of it).

Similar rationale applies to Defendants' cited provisions regarding riot and unlawful assembly under the California Penal Code. Defendants claim that probable cause existed to arrest Savage under California Penal Code section 404 for participating in a riot.¹⁰ Section 404(a) defines a riot as "[a]ny use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law . . . ." Defendants fail to point to any particular use or threat of force or violence by Savage that would fit this definition, and, even if they did, they do not address how such activity was "accompanied by immediate power of execution" as the provision requires.

10 Presumably, Defendants also believe that probable cause existed to arrest Savage under California Penal Code section 405, which is the specific provision that imposes penalties for participating in any riot.

Defendants' citation to section 416, which penalizes assembly participants who "do not disperse on being desired or commanded so to do by a public officer," fares no better. It is undisputed that no officer ever issued a dispersal order or declared an unlawful assembly, and that no officer told Savage to move away from the two cars she blocked during the demonstration. Sections 407 and 408, which define and criminalize participating in an unlawful assembly, similarly are unavailing because these provisions only apply "to assemblies which are violent or which pose a clear and present danger of imminent violence," In re Brown, 9 Cal. 3d 612, 623, 108 Cal.Rptr. 465, 510 P.2d 1017 (1973), and require an officer to "go among the persons assembled . . . and command them . . . immediately to disperse," see Cal. Penal Code § 726. See Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996); Bidwell v. County of San Diego, 607 F. Supp. 3d 1084, 1094 (S.D. Cal. 2022). Again, the parties agree that no officer issued a dispersal order during the demonstrations, and a reasonable jury could otherwise determine that the assemblies on that day did not pose a clear and present danger of imminent violence prior to Savage's arrest based on the demeanor of the participants and the video evidence provided by the parties. Finally, Penal Code section 647(c) penalizes those "[w]ho accost[ ] other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms," which appears wholly inapplicable to the facts presented in this case.¹¹

11 Defendants' Reply states that their Motion inadvertently cited Penal Code section 647(c) rather than section 647c. (Reply 10.) Though this error may have been inadvertent, "[t]he district court need not consider arguments raised for the first time in a reply brief." Zamani, 491 F.3d at 997. The Court declines to do so here. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996); see also Zkey Invest., LLC v. Facebook, Inc., 225 F. Supp. 3d 1147, 1158 (C.D. Cal. 2016).

The Court accordingly concludes that Plaintiff Savage has raised genuine disputes of material fact as to whether Individual Defendants had probable cause to arrest her.

2. Excessive Force

Plaintiff Savage also claims that Individual Defendants violated her Fourth Amendment rights by using excessive force to arrest her. (Compl. 12.)

Courts analyze excessive force claims under the Fourth Amendment's "objective reasonableness" standard. Brooks v. City of Seattle, 599 F.3d 1018, 1025 (9th Cir. 2010) (citing Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). "The Fourth Amendment requires police officers making an arrest to use only an amount of force that is objectively reasonable in light of the circumstances facing them." Blankenhorn, 485 F.3d at 477 (citing Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). "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, 109 S.Ct. 1865; Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 921 (9th Cir. 2001).

To determine whether a specific use of force was reasonable, the Court must balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake." Graham, 490 U.S. at 396, 109 S.Ct. 1865; see Blankenhorn, 485 F.3d 463 at 477. Relevant factors in evaluating the state's interests include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. 1865. "These factors, however, are not exclusive." Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2009). Courts may also consider the availability of alternative methods to effectuate an arrest or overcome resistance. Smith v. City of Hemet, 394 F.3d 689, 701-02 (9th Cir. 2005) (en banc), disapproved of on other grounds by Lemos v. Cnty. of Sonoma, 40 F.4th 1002 (9th Cir. 2022); Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994).

Here, resolving factual ambiguities in Savage's favor, the reasonableness of the force Goodman and Draper used against Savage is a question for a jury to resolve. By Savage's account of the facts, Goodman and Draper approached her by surprise as she stood behind an officer skirmish line, forcefully grabbed her by the arms, and dragged her a few feet before pushing and pulling her to the ground. From there, as Goodman and Draper continued to restrain her, Goodman's hand moved close to Savage's nose and mouth, leading to Savage's failed attempt to bite Goodman. Goodman then responded by pushing Savage's face into the ground with his forearm. Savage was then flipped onto her stomach, and Draper put his knee on Savage's back for approximately eight seconds, which caused her to struggle breathing.

The nature and type of force used here was at least non-trivial and potentially substantial and aggressive. Goodman and Draper's alleged approach of surprising Savage and dragging her by the arms essentially constituted a take-down maneuver that eventually brought Savage to the ground and subjected her to further significant uses of force. See Santos v. Gates, 287 F.3d 846, 848-49, 856 (9th Cir. 2002) (grabbing a plaintiff's arms and "guiding" him to the ground created triable issue of fact as to excessive force); Rice v. Morehouse, 989 F.3d 1112, 1121 (9th Cir. 2021) (tripping plaintiff while holding his arms so that he would fall to the ground involved a "substantial" and "aggressive use" of force). Savage had cuts and bruises on her arms, wrists, and elbow after the incident, eventually sought medical attention for pain in her left elbow, and received surgery to release nerve compression in the elbow. See Rice, 989 F.3d at 1121 (considering that a plaintiff experienced "long-term physical pain for which he received medical treatment" in assessing type and amount of force used). Once on the ground, Savage was subjected to Goodman pressing her face into the ground with his elbow and Draper placing his knee on her back hard enough to affect her breathing. See LaLonde v. Cnty. of Riverside, 204 F.3d 947, 958-59 & n.17, 962 (9th Cir. 2000) (reversing district court finding that officer digging knee into plaintiff's back could not constitute excessive force); Serrato v. City of Long Beach, No. 2:04-cv-08634-ABC-AJWx, 2009 WL 1212833, at *7 (C.D. Cal. Mar. 25, 2009) (finding a genuine factual dispute regarding excessive force where officer pressed a plaintiff's face into the ground with his elbow and placed his knee on the plaintiff's back). Such force could give rise to a reasonable jury's finding of excessive force.

Though Defendants point out Savage attempted to bite Goodman and purportedly resisted arrest, Savage claims the bite was to prevent her nose and mouth from being covered and otherwise disputes that she resisted officers. Even assuming this alleged resistance, a reasonable jury would not be prevented from nevertheless concluding that the force used against Savage was excessive. See LaLonde, 204 F.3d at 959 ("[A] jury could conclude that [an officer] used force in excess of what was reasonable, even if [the plaintiff] had been resisting at the time."); Hammer v. Gross, 932 F.2d 842, 846 (9th Cir. 1991) (holding that relevant inquiry was not whether force was "no greater than that required to overcome [a plaintiff]'s resistance" but rather "whether the force used was reasonable in light of all the relevant circumstances").

Defendants argue that the video evidence submitted by the parties contradicts many facts in Savage's alleged version of events. Defendants contend the videos make certain that Savage immediately resisted when first grabbed; that she intentionally fell to the ground; that Goodman did not move his hand towards Savage's nose and mouth; that her attempted bite made contact with Goodman; and that Draper's knee was only on Savage's back for three to four seconds. Though the Court must not adopt a nonmovant's version of an alleged excessive force incident when it is contradicted by video recordings, see Scott v. Harris, 550 U.S. 372, 382, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the submitted videos do not reveal as much as Defendants assert. As to Defendants' first two assertions, a reasonable jury could determine after watching the videos that Savage neither immediately resisted nor intentionally fell to the ground. Further, though Defendants may be correct that Goodman's hands were on Savage's wrists when Savage attempted to bite him (COE Ex. 3 at 0:17-0:19), the view of Savage in the seconds before the bite is obstructed in the submitted videos, permitting a reasonable jury to credit Savage's claim that Goodman moved his hand towards her nose and mouth at some point during the fracas. The videos similarly are ambiguous as to Savage's bite making contact with Goodman and how long Draper's knee remained on Savage's back. Such factual discrepancies are resolved properly by a jury rather than at summary judgment.

Turning now to the countervailing government interests at stake, the severity of Savage's alleged crimes was relatively minimal. Viewing the facts in the light most favorable to Savage, Defendants' most pertinent reason for arresting Savage was her potential violation of misdemeanor pedestrian- and traffic-related provisions. See Young v. County of Los Angeles, 655 F.3d 1156, 1165 (9th Cir. 2011) ("[N]on-violent misdemeanor offense[s] will tend to justify force in far fewer circumstances . . . ."); Blankenhorn, 485 F.3d at 478 ("[T]he severity of the alleged crime, misdemeanor trespass, was minimal . . . .").

Though Savage also was arrested for potential battery of a police officer under California Penal Code section 243(b) and resisting arrest under section 148(a), there remain genuine disputes of material fact as to the underlying facts constituting these violations. If these disputes were resolved in Savage's favor, the severity of her alleged crimes would remain minimal. A section 148(a) violation further constitutes a misdemeanor that is not "inherently dangerous or violent," so the purported significance of this additional crime is diminished. See Young, 655 F.3d at 1164; Bryan, 630 F.3d at 828-29 (noting that resisting a police officer was not "inherently dangerous or violent").

Savage also posed little to no immediate threat to officers or those around her at the time of her arrest. As Goodman and Draper approached Savage to arrest her, Savage had been standing behind the police skirmish line away from the pro-police caravan for over a minute, and she had ceased blocking cars, which is the main conduct Defendants cite to justify her arrest (see Mot. 19). Andrews v. City of Henderson, 35 F.4th 710, 717 (9th Cir. 2022) ("Our precedent requires that we focus on the immediate threat of harm. That is, we consider the 'danger a suspect poses at the time force is applied.' " (citation omitted)). Defendants concede that Savage did not engage in any acts of violence while demonstrating aside from the push that occurred between her and an officer, which Savage disputes initiating. See Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1091 (9th Cir. 2013) ("[T]here was no reason to believe, based on [plaintiff]'s behavior [or] demeanor . . . that he posed an immediate threat to anyone's safety."); Fortson v. City of Los Angeles, 628 F. Supp. 3d 976, 989 (C.D. Cal. 2022) ("[T]he video footage does not show any violent behavior by the protestors before [force was applied]."). No facts further suggest that Savage was armed, see Smith, 394 F.3d at 702, or that she intended to do anything more than continue standing behind the police skirmish line voicing her opinions. This factor thus weighs in Savage's favor.

As for whether Savage actively resisted or attempted to flee, this factor presents genuine issues that are best resolved at trial. The video evidence does not appear to show Savage attempting to flee at any time, but Defendants nonetheless argue that Savage immediately resisted arrest, intentionally fell to the ground, and continued resisting thereafter, including biting at Goodman. Savage disputes all of these assertions, save for the bite, which she argues did not make contact and was justified because Goodman moved his hand toward her nose and mouth. As discussed above, a reasonable jury could interpret the video evidence and Savage's statements as demonstrating that she did not resist until her attempted bite, which was comparatively minimal resistance given the force Goodman and Draper were exerting on her. See Lowry v. City of San Diego, 858 F.3d 1248, 1258 (9th Cir. 2017) ("[T]he level of force an individual's resistance will support is dependent on the factual circumstances underlying that resistance." (quoting Bryan, 630 F.3d at 830)). Savage's resistance is thus at best a disputed issue of fact not resolvable at summary judgment. See S.R. Nehad v. Browder, 929 F.3d 1125, 1137 (9th Cir. 2019).

Another factor is noteworthy here. This circuit's "cases demonstrate that officers provide warnings, where feasible, even when the force used is less than deadly." Deorle v. Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001); see S.R. Nehad, 929 F.3d at 1137. Indeed, "[a]ppropriate warnings comport with actual police practice," and "giving of a warning or the failure to do so is a factor to be considered in applying the Graham balancing test." Deorle, 272 F.3d at 1284; see Nelson v. City of Davis, 685 F.3d 867, 882 (9th Cir. 2012). Here, it is undisputed that Goodman and Draper aimed to and did surprise Savage when they initially grabbed her arms, and no evidence suggests that Goodman, Draper, or any other officer warned Savage that momentarily blocking cars would lead to her forceful arrest, or that officers intended to arrest her for conduct that had taken place at least a minute earlier. Here, such warnings could have gained Savage's compliance in not blocking caravan cars and potentially avoided the relatively intense nature of Savage's arrest. See Deorle, 272 F.3d at 1284 (reasoning that a plaintiff could have complied with an officer-issued warning and thus avoided use of any force). Defendants' apparent failure to use these alternative means of addressing Savage's conduct additionally weigh in favor of finding a triable issue as to excessive force. See Bryan, 630 F.3d at 831 ("[W]e have held that police are 'required to consider "[w]hat other tactics if any were available" to effect the arrest.' " (citations omitted)); Glenn v. Washington County, 673 F.3d 864, 876-77 (9th Cir. 2011).

The question of whether the force used to effect an arrest is reasonable "is ordinarily a question of fact for the jury," Liston v. County of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997), and summary judgment in excessive force cases should be granted "sparingly," Santos, 287 F.3d at 853. Here, genuine issues of fact remain regarding whether the force used in arresting Savage was excessive.

3. Qualified Immunity

Defendants argue that even if the Court concludes that Savage has raised triable issues of material fact as to the Fourth Amendment violations she alleges, summary judgment nonetheless should be granted in their favor because Individual Defendants are entitled to qualified immunity.

"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Officers thus will not be entitled to qualified immunity when the facts, viewed in the light most favorable to the plaintiff, show (1) the officers' conduct violated a constitutional right; and (2) the right clearly was established under preexisting law. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). The Court has discretion to determine which condition to evaluate first. Pearson, 555 U.S. at 818, 129 S.Ct. 808.

To meet the "clearly established" requirement, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). This requires defining the right allegedly violated in a "particularized" sense that is "relevant" to the actual facts alleged. Id. To make this determination, district courts must first look to any binding, on-point Supreme Court or Ninth Circuit case law, but "[i]n the absence of [any] binding precedent clearly establishing the constitutional right, 'we look to whatever decisional law is available . . . including decisions of state courts, other circuits, and district courts.' " Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014) (quoting Boyd, 374 F.3d at 781). "While there does not have to be 'a case directly on point,' existing precedent must place the lawfulness of the particular [action] 'beyond debate.' " D.C. v. Wesby, 583 U.S. 48, 63, 138 S.Ct. 577, 199 L.Ed.2d 453, (2018) (citation omitted); Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Plaintiffs ultimately "bear[ ] the burden of showing that the rights allegedly violated were 'clearly established.' " Shafer v. County of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (citation omitted).

Regarding Savage's alleged unlawful arrest, it has long been established that a warrantless arrest is justified only where probable cause exists to believe a criminal offense has been committed. See, e.g., Devenpeck, 543 U.S. at 152-53, 125 S.Ct. 588. "[Since] the standard for probable cause is well settled, [however], the question with respect to whether an unlawful arrest violated clearly established law is 'whether it is reasonably arguable that there was probable cause for arrest—that is, whether reasonable officers could disagree as to the legality of the arrest such that the arresting officer is entitled to qualified immunity.' " Sialoi v. City of San Diego, 823 F.3d 1223, 1233 (9th Cir. 2016) (quoting Rosenbaum v. Washoe County, 663 F.3d 1071, 1076 (9th Cir. 2011)).

Here, Defendants argue that Individual Defendants reasonably could have relied on their collective knowledge of Savage committing crimes to believe that probable cause existed to arrest her, but this logic is circular. Savage committed crimes on the day of the event only to the extent her conduct fulfilled the elements of a criminal statute, yet the facts presented here substantially fail to meet the strictures of the statutory violations Defendants proffer. Instead, "[c]onsidering the facts in the light most favorable to [Savage], all reasonably competent officers would have agreed that [she] was not committing a crime." Rosenbaum, 663 F.3d at 1079. Savage was voicing her opinions to drivers in a caravan at a police-sanctioned demonstration, and she momentarily stood in front of two stopped cars to do so. She then moved away from the cars to behind a police skirmish line, where she stood and continued to express her opinions. The statutes Defendants present appear unambiguous, and Defendants have provided no authority or argument suggesting that any reading of them would have led a reasonable officer to believe on these facts that Savage had committed a crime at the time of her arrest. See Nicholson v. City of Los Angeles, 935 F.3d 685, 691 (9th Cir. 2019) (finding clearly established right to be free from unlawful arrest where plaintiffs were "unarmed, posed no threat to anyone, and were not engaged in any criminal activity"); Dunn v. Hyra, 676 F. Supp. 2d 1172, 1188-89 (W.D. Wash. 2009) (providing a similar outcome regarding demonstrators who alleged unlawful arrest against police officers); Adams v. Kraft, 828 F. Supp. 2d 1090, 1116 (N.D. Cal. 2011) (denying qualified immunity for unlawful arrest claim where a plaintiff's version of the facts did not support reasonable belief of probable cause under defendants' cited statutes); see also Rosenbaum, 663 F.3d at 1079. The Court therefore DENIES summary judgment for Defendants on Plaintiff Savage's claim of unlawful arrest.

Regarding Savage's excessive force theory, the contours of her right to be free from excessive force under the circumstances presented in this case were well established before her arrest. The Ninth Circuit clearly has established that force similar to the kind alleged here—forcefully grabbing Savage's arms by surprise, dragging her a few feet, pushing and pulling her to the ground, and subjecting her to further force thereafter—may be unconstitutional when applied to a plaintiff who poses little to no immediate threat and is suspected of committing crimes of minimal severity. Young, 655 F.3d at 1168 ("The 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 thus well-established in 2001 . . . ."); Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (reaching a similar conclusion as Young where an agent grabbed a plaintiff by her arms and forcibly threw her to the ground); Santos, 287 F.3d at 854 (establishing that grabbing a plaintiff's arm and bringing them to the ground raises a triable issue as to excessive force). Binding case law further establishes "forcefully put[ting] a knee into [a plaintiff]'s back" potentially violates a person's constitutional rights even in the face of resistance, LaLonde, 204 F.3d at 958-59, and affirms that excessive force may exist even when a person uses their "limited right to offer reasonable resistance to an arrest that is the product of an officer's personal frolic," Blankenhorn, 485 F.3d at 479-81 (citation omitted). Applying significant force without warning also may support a finding of excessive force. Deorle, 272 F.3d at 1282; Blankenhorn, 485 F.3d at 479.

These cases, taken together, would put a reasonable officer on notice that the force alleged in this case could violate a person's Fourth Amendment right. See Young, 655 F.3d at 1167 ("[T]he relevant inquiry is whether the state of the law at the time of the official conduct . . . was such as to give the defendants 'fair warning' that their conduct was unconstitutional—that a fair application of well-established legal principles would warrant such a conclusion"); White v. Pauly, 580 U.S. 73, 79, 137 S.Ct. 548, 196 L.Ed.2d 463, (2017) (stating that qualified immunity analysis "do[es] not require a case directly on point" (citation omitted)). The Court accordingly DENIES summary judgment for Defendants Segura, Goodman, and Draper as to their alleged use of excessive force against Savage.

B. First Amendment Retaliation

Defendants next move for summary judgment in their favor on Plaintiff Savage's First Amendment retaliation claim. Savage generally claims that Defendants unlawfully retaliated against her constitutionally protected speech by arresting her on the day of the demonstrations. (Compl. 10-11; Opp'n 28.)

"[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out." Lacey, 693 F.3d at 916 (internal citation and quotation marks omitted). To demonstrate a First Amendment violation, Plaintiff Savage must show (1) she was engaged in a constitutionally protected activity; (2) that Defendants' actions would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) her protected activity was a substantial or motivating factor in Defendants' conduct. Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 827 (9th Cir. 2020); Lacey, 693 F.3d at 916.

As a threshold matter, Defendants argue that Savage's First Amendment rights cannot be violated where probable cause existed for her arrest. The Court, however, has determined above that Savage has demonstrated genuine issues of material fact regarding whether probable cause existed to arrest her during the demonstrations. See Nieves v. Bartlett, 587 U.S. 391, 139 S. Ct. 1715, 1725, 204 L.Ed.2d 1 (2019) ("[I]f the plaintiff establishes the absence of probable cause, 'then the [standard First Amendment retaliation] test governs.' " (citation omitted)). Defendants' argument is thus inapposite, and the Court moves forward in analyzing the elements of Savage's claim.

Savage has demonstrated a triable issue regarding her participation in constitutionally protected activity. "[E]xpression[s] of disapproval toward . . . police . . . . f[a]ll squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech . . . is categorically prohibited by the Constitution." Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990). Further, "[p]ublic demonstrations . . . are clearly protected by the First Amendment," Index Newspapers, 977 F.3d at 830, and this principle "applies with particular force" to "march[es] and other protest activities," United States v. Baugh, 187 F.3d 1037, 1042 (9th Cir. 1999), especially "where the march takes place in the streets," Seattle Affiliate of Oct. 22nd Coal. to Stop Police Brutality, Repression & Criminalization of a Generation v. City of Seattle, 550 F.3d 788, 797 (9th Cir. 2008). It is undisputed that Savage participated as a counterdemonstrator on the day of the events at issue by yelling periodically profane criticisms at WPD officers and pro-police demonstrators before her arrest. The First Amendment clearly protects this conduct. "That [Savage] was not in [a] crosswalk" and momentarily stood in front of slow-moving cars "does not change that she was engaged in constitutionally protected activity at the time of the incident." Fortson, 628 F. Supp. 3d at 988.

Defendants argue that Savage's speech was not entitled to First Amendment protection because it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest." City of Houston v. Hill, 482 U.S. 451, 461-63, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). Defendants fail to show how Savage's speech rose to this level, and this circuit's on-point case law suggests that it did not. See United States v. Poocha, 259 F.3d 1077, 1081-82 (9th Cir. 2001) (holding that expletives yelled at law enforcement were neither fighting words "nor likely to incite [a] crowd at the scene to riot"); Gulliford v. Pierce County, 136 F.3d 1345, 1350 (9th Cir. 1998); Duran, 904 F.2d at 1374-78.

The next element is also resolved easily. "[T]o state that '[a]rresting someone in retaliation for their exercise of free speech rights' is sufficient to chill speech is an understatement." Lacey, 693 F.3d at 917; see Beck v. City of Upland, 527 F.3d 853, 870 (9th Cir. 2008). Here, there is no dispute that Individual Defendants arrested Savage after she voiced sentiments against the police and pro-police demonstrators. Being arrested in such circumstances would chill a person of ordinary firmness from continuing to speak out against the police.

The third element of Savage's claim is whether "[her] protected activity was a substantial or motivating factor in . . . Defendants' conduct." Index Newspapers, 977 F.3d at 827. "[T]his element . . . may be met with either direct or circumstantial evidence . . . and involves questions of fact that normally should be left for trial." Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 979 (9th Cir. 2002). It is undisputed that WPD officers waved and cheered at those who demonstrated in favor of the police on the day of the demonstrations. One officer, moreover, fist bumped a pro-police demonstrator and another officer hugged one. See Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003) (considering a defendant's expressed opposition to a plaintiff's speech in assessing causation for retaliation); Rueda Vidal v. U.S. Dep't of Homeland Sec., 536 F. Supp. 3d 604, 622 (C.D. Cal. 2021) (validating similar considerations in the context of a retaliatory arrest). A reasonable jury could infer that Individual Defendants observed this conduct and allowed it to inform their decision to arrest Savage, who was expressing opposing views. Indeed, Savage presents evidence that no pro-police demonstrators were arrested or cited at the event, though they physically pushed counterdemonstrators, blocked the roadway, and yelled threats of violence. See Capp v. County of San Diego, 940 F.3d 1046, 1056-57 (9th Cir. 2019) (crediting evidence of differential treatment in assessing First Amendment retaliatory animus); Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir. 2022). Goodman and Draper's surprise arrest of Savage also came within minutes of her voicing her views to officers and counterdemonstrators, further bolstering her showing on this element. See Ulrich, 308 F.3d at 968 (considering "proximity in time between the protected speech and the alleged retaliation" in assessing third element of First Amendment retaliation claim); Rueda Vidal, 536 F. Supp. 3d at 622 (applying similar analysis where a plaintiff alleged retaliatory arrest). Viewing the facts in the light most favorable to Savage, a reasonable jury could conclude that her speech against the police and pro-police demonstrators was a substantial or motivating factor for her arrest. Defendants' argument that Savage was arrested for blocking cars rather than her speech (Mot. 26-27) does not alter this outcome because "there is a right to be free from retaliation even if a non-retaliatory justification exists for the defendants' action." O'Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016); cf. Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) ("[W]hen nonretaliatory grounds are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to recovery as the but-for cause of official action offending the Constitution.").

As for whether Individual Defendants are entitled to qualified immunity on Savage's First Amendment claim, the answer is no. Ninth Circuit case law clearly establishes the right to challenge the police verbally without being subject to retaliatory acts. As Mackinney v. Nielsen explains, "[i]n Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990), [the Ninth Circuit] stated that police may not exercise 'the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.' " 69 F.3d 1002, 1007 (9th Cir. 1995) (stating further that this right is established clearly for purposes of qualified immunity analysis); see Ford v. City of Yakima, 706 F.3d 1188, 1195 (9th Cir. 2013), abrogated on other grounds by Nieves, 139 S. Ct. at 1723-25. Even if more specific case law is required, there are sufficiently analogous cases that clearly establish Savage's right to be free from retaliatory arrest given the circumstances of her case. See Mackinney, 69 F.3d at 1004, 1006-07 (denying qualified immunity where officers arrested a verbally resisting plaintiff for suspected misdemeanor offense); Duran, 904 F.2d at 1374-75, 1377-78 (denying qualified immunity where a plaintiff yelled profanities at officers, verbally resisted their orders, and engaged in a "scuffle" with them). Defendants are not entitled to qualified immunity on this claim.

The Court accordingly DENIES summary judgment for Defendants on Plaintiff Savage's First Amendment retaliation claim.

C. Fourteenth Amendment Equal Protection ¹²

12 The second claim in Savage's Complaint also appears to allege a violation of her Fourteenth Amendment substantive due process rights. See Compl. 11 (providing the heading "Fourteenth Amendment (Due Process & Equal Protection)" and claiming that Defendants' acts "were shocking to the conscience"); see also, e.g., Gantt v. City of Los Angeles, 717 F.3d 702, 707-08 (9th Cir. 2013) (analyzing an alleged Fourteenth Amendment due process violation under the "shocks the conscience" standard). Since the parties do not raise this theory in their submissions, the Court's order does not address it.

Defendants next challenges Savage's Fourteenth Amendment equal protection claim that she was subjected to arrest and excessive force because of her race. (Mot. 27; Opp'n 25-26; Compl. 11.)

"[T]o prevail on [a] claim under the equal protection clause of the Fourteenth Amendment, a plaintiff must demonstrate that enforcement had a discriminatory effect and the police were motivated by a discriminatory purpose." Rosenbaum v. City & Cnty. of San Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007) (citing Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)). To establish a discriminatory effect, there must be evidence that members of a protected class were subjected to the conduct of which a plaintiff complains while others outside the protected class were not. Id. (citing United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)). A plaintiff may establish discriminatory purpose by " 'produc[ing] direct or circumstantial evidence demonstrating that a discriminatory reason more likely tha[n] not motivated' the defendant and that the defendant's actions adversely affected the plaintiff in some way." Ballou v. McElvain, 29 F.4th 413, 422 (9th Cir. 2022) (citations omitted).

"The central inquiry in an Equal Protection Clause claim is whether a government action was motivated by a discriminatory purpose." Ballou, 29 F.4th at 422. "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Whether the impact of the official action " 'bears more heavily on one race than another,' may provide an important starting point [in this analysis] . . . . [because] [s]ometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action . . . ." Id. (citing Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). "[I]t is, [however], the rare case where impact alone will be sufficient to invalidate a challenged government action." The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 2009). Thus, "[a]bsent a [stark] pattern . . . , impact alone is not determinative . . . ." Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555; United States v. Carrillo-Lopez, 68 F.4th 1133, 1141 (9th Cir. 2023).

Defendants argue that Savage's equal protection claim must fail because she was arrested for blocking cars during the demonstration rather than any race-based reason. (Mot. 27.) Similar analysis to that performed for Savage's First Amendment claim applies here. Savage has demonstrated a triable issue that Individual Defendants lacked probable cause to arrest her, so her equal protection claim still may survive. See Farm Lab. Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 533 (6th Cir. 2002) (citing Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)) ("[A]n officer's discriminatory motivations for pursuing a course of action can give rise to an Equal Protection claim, even where there are sufficient objective indicia of suspicion to justify the officer's actions under the Fourth Amendment.").

Defendants also contend Savage cannot show Individual Defendants were motivated by a discriminatory purpose in arresting her. (Mot. 27.) Savage cites two facts in response: (1) non-Black demonstrators also walked through the streets on the day of the protests and were not arrested or subjected to the same force used on Savage; and (2) the three Black demonstrators were the only people pulled into the barricade police formed during Savage's arrest. (Opp'n 25-26.)

Though Savage's showing may create a triable issue as to the discriminatory impact of Individual Defendants' conduct, it is insufficient to demonstrate a genuine issue regarding any discriminatory purpose underlying their behavior. First, the Court cannot credit Savage's assertion that the three Black demonstrators were "pulled" into the police barricade, since the video evidence Savage provides depicts the exact opposite, namely officers pushing the demonstrators away from Savage as Goodman and Draper attempt to arrest her. (Brown Decl. Ex. 15 at 0:07-0:25; see Def. SGI ¶ 49.) Though deposition testimony from Savage's sister suggests otherwise (Brown Decl. Ex. 1 at 22:6-24; see Def. SGI ¶ 49), again "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott, 550 U.S. at 380-81, 127 S.Ct. 1769 (holding that a lower court should have discredited a plaintiff's evidence at summary judgment where video evidence flatly contradicted his version of events).

Second, even accepting Savage's cited evidence as true, her claim fails because she has not presented " 'specific' and 'substantial' " evidence of discriminatory intent. Carrasco v. City of Glendora, No. 2:21-cv-05965-MWF-ASx, 2022 WL 17216579, at *7 (C.D. Cal. Aug. 3, 2022) (citing Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1152 (9th Cir. 2006)). Savage provides no additional evidence demonstrating, for example, that WPD had a pattern or practice of racially motivated arrests, see Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Benson v. City of San Jose, 583 F. App'x 604, 606 (9th Cir. 2014), that the Department statistically discriminated against certain races in their arrests, see, e.g., Burke v. City of Santa Monica, No. 2:09-cv-02259-MMM-PLAx, 2011 WL 13213593, at *17 (C.D. Cal. Jan. 10, 2011); Ballew v. City of Pasadena, 642 F.Supp.3d 1146. 1165-66 (C.D. Cal. 2022), or that Individual Defendants previously had arrested people based on race, see Orellana v. County of Los Angeles, No. 2:12-cv-01944-MMM-CWx, 2013 WL 12122692, at *15 (C.D. Cal. Apr. 29, 2013), aff'd, 630 F. App'x 730 (9th Cir. 2016); Carrasco, 2022 WL 17216579, at *7. Indeed, Savage's cited facts do not even address the specific motivations of Individual Defendants in deciding to arrest her. See McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) ("[T]o prevail under the Equal Protection Clause, [a plaintiff] must prove that the decisionmakers in his case acted with discriminatory purpose.").

In essence, Savage merely presents evidence that she was arrested while other non-Black demonstrators were not. This is not enough to survive summary judgment. See Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005) ("Mere indifference to the effects of a decision . . . does not give rise to an equal protection claim . . . , and conclusory statements of bias do not carry the nonmoving party's burden in opposition to a motion for summary judgment." (citation omitted)); Bingham v. City of Manhattan Beach, 341 F.3d 939, 948-49 (9th Cir. 2003), overruled on other grounds by Edgerly, 599 F.3d at 956 n.14 (9th Cir. 2010). The Court accordingly GRANTS summary judgment in favor of Defendants on Savage's equal protection claim.

D. Conspiracy under 42 U.S.C. § 1983

Defendants also move for summary judgment in their favor on Savage's claim under § 1983 that Individual Defendants conspired to violate her First, Fourth, and Fourteenth Amendment rights. (Mot. 29; see Compl. 13.) The Court limits its analysis here only to Savage's claims that have survived summary judgment, i.e., her First and Fourth Amendment claims.

"To establish the defendants' liability for a conspiracy, a plaintiff must demonstrate the existence of an agreement or meeting of the minds to violate constitutional rights." Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999) (internal quotation marks and citations omitted). "[E]ach participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy." United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir. 1989) (citing Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983)). "Such an agreement need not be overt," Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010), and a meeting of the minds may be inferred from circumstantial evidence, such as the defendants' actions, Mendocino, 192 F.3d at 1301; Steel v. City of San Diego, 726 F. Supp. 2d 1172, 1179 (S.D. Cal. 2010). A conspiracy to violate constitutional rights also must be predicated on a viable underlying constitutional claim. See Thornton, 425 F.3d at 1168.

Defendants devote three sentences in their Motion and four more in their Reply to contest the viability of Savage's conspiracy claim. In these excerpts, Defendants merely argue that Savage has not proved any underlying violation of her constitutional rights (Mot. 29), does not establish the requisite meeting of the minds amongst Individual Defendants (Reply 17), and fails to provide sufficient case law to support her claim (id.).

Defendants' first argument is dismissed easily, as the Court has found that Savage has demonstrated genuine issues of material fact regarding her First Amendment and Fourth Amendment claims. Defendants' two other cursory statements—that Savage fails to demonstrate a meetings of the minds or cite enough authority—are not sufficient to meet the burden at summary judgment of " 'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Indeed, this Court need not "manufacture arguments for a[ ] [party]." Birdsong v. Apple, Inc., 590 F.3d 955, 959 (9th Cir. 2009); see Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929-30 (9th Cir. 2003) ("However much we may importune lawyers to be brief and to get to the point, we have never suggested that they skip the substance of their argument in order to do so . . . . We require contentions to be accompanied by reasons."); Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009) ("Perfunctory, undeveloped arguments without discussion or citation to pertinent legal authority are waived.").

That issue aside, Savage has provided sufficient evidence to avoid summary judgment on her conspiracy claim. The record demonstrates that after WPD officers waved to, cheered at, fist bumped, and hugged pro-police demonstrators, Zuhlke and Robert observed Savage stand in front of two cars and express opposing views to their occupants. Zuhlke radioed to Przybyl and Segura to arrest Savage, and Segura, Goodman, and Draper then agreed to an arrest plan that led to Savage being grabbed and dragged by surprise. No evidence suggests that any Individual Defendant attempted to intervene in these decisions, though Savage had stopped blocking cars and had been standing behind the skirmish line for over a minute by the time Goodman and Draper first grabbed her. These facts could lead a reasonable jury to conclude that Individual Defendants had a meeting of the minds to violate Savage's First and Fourth Amendment rights. See Gilbrook v. City of Westminster, 177 F.3d 839, 857 (9th Cir. 1999) ("To varying degrees, each defendant participated in the events surrounding the . . . actions taken against plaintiffs. From that participation, the jury could have inferred that defendants reached a 'unity of purpose or a common design' to retaliate against plaintiffs for exercising their constitutionally protected rights."); Crowe, 608 F.3d at 440 (holding that meeting of the minds could exist where potential conspirator "formulate[d] a 'tactical plan' " which was "pretty much" followed by detectives); Nazarian v. City of Beverly Hills, No. 2:19-cv-04391-DSF-Ex, 2020 WL 11027732, at *11 (C.D. Cal. Nov. 18, 2020) ("The failure to intervene could be considered circumstantial evidence that the Officer Defendants " 'reached a unity of purpose or a common design and understanding, or a meeting of the minds in an unlawful arrangement' " to violate [plaintiff]'s Fourth Amendment rights.")

"Whether defendants were involved in an unlawful conspiracy is generally a factual issue and should be resolved by the jury, 'so long as there is a possibility that the jury can "infer from the circumstances (that the alleged conspirators) had a 'meeting of the minds' and thus reached an understanding" to achieve the conspiracy's objectives.' " Mendocino, 192 F.3d at 1301-02 (citations omitted). Though Individual Defendants insist that the conduct in this case cannot demonstrate a conspiracy, a reasonable jury could infer otherwise from the totality of circumstances that occurred on the day of the demonstrations. Summary judgment on this claim therefore is not appropriate. See id. at 1303 ("The possibility that other inferences could be drawn that would provide an alternate explanation for the [defendants'] actions does not entitle them to summary judgment."); Phelps Dodge, 865 F.2d at 1542 (stating that an inference of a conspiracy agreement need not be the most likely but merely "rational" or "reasonable").

The Court accordingly DENIES Defendants Summary Judgment on Savage's conspiracy claim.¹³

13 As discussed previously, Savage's conspiracy claim only applies to the alleged constitutional violations that have survived summary judgment, i.e., her First and Fourth Amendment claims.

E. Monell and City of Canton Municipal Liability ¹⁴

14 Though Savage named the City of Whittier as a defendant in all six claims in her Complaint (see Compl. 10-15), the parties agree that the City of Whittier may be held liable for the constitutional violations Savage asserts in this action only to the extent that such violations resulted from the City's polices or customs under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and its progeny. (See Mot. 24, 26, 29; Opp'n 26.) Indeed, Monell dictates this approach. 436 U.S. at 694, 98 S.Ct. 2018 ("[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983."); accord City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The Court accordingly GRANTS summary judgment in favor of the City of Whittier on claims one through four of Plaintiff Savage's Complaint.

Plaintiff Savage's fifth and sixth claims are brought against the City of Whittier and assert municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).¹⁵

15 Savage's sixth claim fails to the extent she seeks to hold the City liable under § 1983 based on the individual capacity theory articulated in Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991). In Larez, the Ninth Circuit held that a jury could find a police chief liable in his individual capacity for his "own culpable action or inaction in the training, supervision, or control of his subordinates," if he "set[ ] in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he kn[e]w or reasonably should [have] know[n], would cause others to inflict the constitutional injury." Id. (citations and internal quotation marks omitted). Though Savage's Complaint initially presented its sixth claim against both WPD Police Chief Piper and the City (Compl. 15-16), Savage has since dismissed Piper from this action (see Doc. No. 60). As Larez liability is reserved for holding only supervisors liable in their individual capacity for their role in inflicting constitutional injuries, the theory is inapposite to Savage's current failure to train claim brought only against the City and, thus, cannot be invoked to support Savage's claim.

Although a local government body "cannot be held liable under § 1983 on a respondeat superior theory," it can be held directly liable for an action that "executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690, 98 S.Ct. 2018. "A section 1983 plaintiff may establish municipal liability [under Monell] in one of three ways." Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992). "First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a 'longstanding practice or custom which constitutes the "standard operating procedure" of the local governmental entity.' " Id. (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)). "Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with 'final policy-making authority' and that the challenged action itself thus constituted an act of official governmental policy." Id. "Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it." Id. at 1346-47.

"In limited circumstances, a local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights [also] may rise to the level of an official government policy for purposes of § 1983." Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). Liability in this context may arise if a municipality's policy of inaction in failing to train its officials "amounts to deliberate indifference to the rights of persons with whom the police come into contact." Flores v. County of Los Angeles, 758 F.3d 1154, 1158 (9th Cir. 2014) (quoting City of Canton, 489 U.S. at 388, 109 S.Ct. 1197); see Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). City of Canton provides two separate theories by which plaintiffs can prove a municipality's deliberate indifference. First, a plaintiff can show deliberate indifference if the municipality "disregarded the known or obvious consequences that a particular omission in their training program would cause [municipal] employees to violate citizens' constitutional rights," which usually requires proof of a "pattern of similar constitutional violations by untrained employees." Id. at 1159. Alternatively, a plaintiff may seek to impose so-called "single-incident" failure to train liability under a "narrow range of circumstances" where "the unconstitutional consequences of failing to train [are] so obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations." Connick, 563 U.S. at 64, 131 S.Ct. 1350.

Plaintiff Savage argues that the City may be held liable under the theories above because it (1) did not provide its Operation Plan for the July 28, 2020, event to each officer who might have been called to respond to the event, nor did it require their familiarity with it; and (2) did not require each officer to be familiar with the elements of offenses demonstrators might commit at the demonstrations.

This evidence fails to create a triable issue under any of the three standard forms of a Monell claim. Other than evidence supporting her failure to train theory, Savage does not point to any formal WPD policy as the source of her alleged constitutional violations. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (" '[O]fficial policy' often refers to formal rules or understandings—often but not always committed to writing—that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time." (emphasis added)); Nadell v. Las Vegas Metro. Police Dep't, 268 F.3d 924, 930 (9th Cir. 2001) ("There was no evidence . . . to establish that the use of excessive force was a formal policy or widespread practice of the [police department] or that previous constitutional violations had occurred . . . ."). "Liability for improper custom [also] . . . must be founded upon practices of sufficient duration, frequency and consistency [such] that the conduct has become a traditional method of carrying out policy," Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), holding modified on other grounds by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001); see McDade v. West, 223 F.3d 1135, 1141 (9th Cir. 2000), yet Savage only presents evidence regarding the one specific event during which her constitutional rights allegedly were violated. Nor has Savage provided any evidence that an official with final policymaking authority either committed or ratified the constitutional violations allegedly inflicted on her, see Fogel v. Collins, 531 F.3d 824, 835 (9th Cir. 2008); Ulrich, 308 F.3d at 985, or demonstrated that the City's conduct was both the cause in fact and the proximate cause of her constitutional deprivations. See Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008); Trevino, 99 F.3d at 918. These deficiencies prove fatal to her claim.

Savage's evidence fares no better under either of City of Canton's failure to train theories. As to the first theory based on "the known or obvious consequences [of] a particular omission in [WPD's] training program," Savage provides no evidence that the Department had faced a pattern of prior similar constitutional violations such that it would have been on notice that their training of officers was inadequate and would lead to tortious conduct. See Flores, 758 F.3d at 1159 ("A 'pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train . . . .' " (quoting Connick, 563 U.S. at 62, 131 S.Ct. 1350 (2011))); see id. ("[I]solated incidents of . . . wrongdoing . . . do not suffice to put the County . . . on 'notice' . . . ."); Booke v. County of Fresno, 98 F. Supp. 3d 1103, 1128 (E.D. Cal. 2015) ("At most, [p]laintiff has shown an isolated incident of one aspect of [a policy] not being enforced. This is insufficient to show inadequate training.") Absent such evidence, Savage's failure to train claim cannot survive summary judgment on this theory. See, e.g., Perez v. City of Fresno, 591 F. Supp. 3d 725, 767 (E.D. Cal. 2022).

Savage's claim also does not "fall within the 'narrow range of circumstances [in which] a pattern of similar violations might not be necessary to show deliberate indifference.' " Flores, 758 F.3d at 1159. "Such a situation is 'rare'—'the unconstitutional consequences of failing to train' must be 'patently obvious' and the violation of a protected right must be a 'highly predictable consequence' of the decision not to train." Kirkpatrick v. County of Washoe, 843 F.3d 784, 794 (9th Cir. 2016). As an example, "the Supreme Court has opined that a single incident of excessive force, coupled with evidence that a city had neglected to train its armed officers on the constitutional limitations on using force . . . , might establish that the city manifested deliberate indifference . . . ." Id. (emphasis added) (citing City of Canton, 489 U.S. at 390, 109 S.Ct. 1197). Here, although Savage raises certain perceived inadequacies in WPD training prior to the demonstrations, there is no evidence that the City failed to train its officers on the constitutional limitations of the conduct that allegedly violated Savage's rights. Indeed, there is no genuine dispute that WPD maintains polices on First Amendment assemblies and use of force, and that all Individual Defendants were trained on these polices. In light of this training, the inadequacies Savage references cannot support failure to train liability based on a single incident. See, e.g., Rose v. County of Sacramento, 163 F. Supp. 3d 787, 794 (E.D. Cal. 2016) (granting summary judgment in favor of defendants where officer received relevant training despite not receiving more specific training related to the constitutional violation alleged); Palacios v. City of Oakland, 970 F. Supp. 732, 743-44 (N.D. Cal. 1997) (holding similarly), aff'd, 152 F.3d 928 (9th Cir. 1998); Johnson v. City of San Jose, 591 F. Supp. 3d 649, 667 (N.D. Cal. 2022) (finding similarly on motion to dismiss).

Savage's cited evidence also does not prove as much as she claims. To demonstrate WPD's failure to disseminate the Operation Plan or further train officers for the event, Savage cites only deposition testimony from Draper stating that he did not see the Operation Plan before the demonstrations and did not know what offense Savage was being arrested for. Evidence of one officer's lack of event-specific training, however, is insufficient to meet the deliberate indifference standard for City of Canton's single-incident theory. 489 U.S. at 390-91, 109 S.Ct. 1197 ("That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program."); Perez, 591 F. Supp. 3d at 767 ("[T]his is the testimony of a single deputy, it still is part of only a single incident . . . . Plaintiffs do not cite authority that shows how this particular testimony from a single deputy is sufficient to demonstrate a training program that is deliberately indifferent to the rights of . . . residents."). Such scant evidence also does not show that the City's failure to train actually caused Savage's surviving First and Fourth Amendment constitutional violations—violations that were initiated and formulated by officers other than Draper at the scene. See Merritt v. County of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989) ("[I]nadequate training that manifests a deliberate indifference on the part of a municipality must be shown to have 'actually caused' the constitutional deprivation at issue."); Booke, 98 F. Supp. 3d at 1127-28 (granting summary judgment where simultaneous and concerted officer action obfuscated whether one officer's training deficiency actually caused the alleged constitutionally violative conduct).

"It will [not] suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury . . . ." City of Canton, 489 U.S. at 390-91, 109 S.Ct. 1197; see Rose, 163 F. Supp. 3d at 794 ("Neither negligent nor even grossly negligent training by itself gives rise to a § 1983 municipal liability claim.") What remains beyond Savage's two criticisms of the City's training is the conduct of Individual Defendants on the day at issue, but these actions show "little about the training program or the legal basis for holding" the City liable. City of Canton, 489 U.S. at 391, 109 S.Ct. 1197. Savage's showing is thus insufficient to survive summary judgment on her failure to train claim.

The Court thus GRANTS summary judgment in favor of Defendants on Savage's fifth and sixth claims for municipal liability under Monell and City of Canton.

VI. CONCLUSION

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

(1) Summary judgment is GRANTED in Defendants' favor on Plaintiff Savage's Fourteenth Amendment equal protection claim and her municipal liability claims.

(2) Summary judgment in favor of Defendants is DENIED on Savage's First Amendment, Fourth Amendment, and conspiracy claims.

IT IS SO ORDERED.