Opinion
Case No. 04-CV-1548 W (WMc).
September 20, 2005
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PARTIAL SUMMARY JUDGMENT
On August 2, 2004 Plaintiff Edward J. Sergott ("Plaintiff") commenced this suit alleging that Defendant Imperial County Deputy Sheriff Jose Romero ("Defendant Romero") violated his civil rights (and various state laws) during their February 14, 2004 encounter near Walter's Camp, Imperial County. Defendants County of Imperial, Imperial County Sheriff's Department, and Jose Romero ("Defendants") collectively move for summary judgment, or in the alternative for partial summary judgment.See Fed.R.Civ.P. 56. Plaintiff opposes. Both parties are represented by counsel. The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons set forth below, the Court denies Defendant's motion for summary judgment.
I. BACKGROUND
On February 14, 2004 Plaintiff, a San Diego District Attorney Investigator and retired San Diego Police Officer, and friend Timm Tesch ("Tesch") were "off-roading" on public unincorporated Imperial County property. While off-roading, Plaintiff and Tesch observed Defendant Jose Romero, an Imperial County Deputy Sheriff, approaching in his patrol vehicle. Defendant Romero was patrolling the area because of recent problems with individuals trespassing on nearby private property. He approached to discuss the property boundaries with Plaintiff and Tesch. At the same time, Plaintiff and Tesch decided to stop their vehicle and ask Defendant Romero about the new signs deliniating the nearby private property.
Plaintiff, a passenger in Tesch's Explorer, exited the vehicle. As Defendant Romero approached, he noticed that Plaintiff was holding a can of beer; Plaintiff drank from the can and then placed it on the Explorer's rear bumper. Defendant Romero noted that Plaintiff carried an item in a holster on his side. Defendant Romero initially thought that the item was a knife; he later learned that it was a gun. Upon contact, Plaintiff identified himself as a District Attorney Investigator in lawful possession of a gun.
After discussing the "private property" signs with Plaintiff and Tesch, Defendant Romero noticed that Tesch's registration tags were expired. He thus wrote Tesch a ticket for the violation. According to Plaintiff, Plaintiff then took his beer from the rear bumper and poured it out onto the ground in sight of Defendant Romero. Plaintiff put the empty beer into a plastic bag and placed the bag in the Explorer passenger compartment. Defendant Romero did not attempt to stop these actions.
Defendant Romero returned to his patrol car. Plaintiff asked him again to clarify the private property lines so that Plaintiff could avoid driving on private property. The parties exchanged words. Defendant Romero then demanded that Plaintiff produce identification. When Plaintiff refused, Defendant Romero grabbed Plaintiff's handgun to remove it. As the altercation escalated, Defendant Romero radioed Deputy Sheriff Argandona ("Argandona") for backup. Argandona arrived shortly thereafter with his firearm drawn. Plaintiff identified himself as an officer, and Argandana re-holstered his weapon.
At that point, Defendant Romero allegedly threw Plaintiff against the patrol car and further searched him, uncovering a second firearm concealed in Plaintiff's ankle holster. Defendant Romero seized Plaintiff's second firearm and wrote Plaintiff a citation for an open alcohol container in violation of California Vehicle Code 23226(b). After handing both Plaintiff's handguns to Tesch, Defendant Romero allowed Plaintiff and Tesch to drive away.
On May 11, 2004 despite Defendant Romero's testimony, Plaintiff and Tesch were found not guilty of possessing an open container. (Imperial County Superior Court Case Nos. BTR084030, BTR084031). Plaintiff alleges that Defendant Romero attempted to pursue false California Penal Code 148 charges (delaying an officer) against Plaintiff in conjunction with his California Vehicle Code 23226(b) charge, but that the District Attorney declined to prosecute.
On August 2, 2004 Plaintiff commenced this § 1983 civil rights action alleging numerous Constitutional violations. Plaintiff further alleged state law claims of false imprisonment, battery, assault, intentional infliction of emotional distress and negligent infliction of emotional distress. On October 28, 2004 this Court dismissed Plaintiff's First Amendment, Second Amendment, Fourteenth Amendment, and Negligent and Intentional Infliction of Emotional Distress claims with prejudice. The Court left intact Plaintiff's Fourth Amendment claims and all remaining state law claims, which now form the basis of Defendant's motion for summary judgment.
II. LEGAL STANDARD
Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c);Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. "The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress Co., 398 U.S. 144, 159-60 (1970).
If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 U.S. at 252) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by `the depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).
When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.
III. DISCUSSION
Plaintiff contends that Defendant Romero violated his Fourth Amendment rights as well as various state law prohibitions against assault, battery, negligence, and false imprisonment.
The Court first analyzes Plaintiff's Fourth Amendment claims because they provide a threshold issue. A finding that Defendant Romero unlawfully detained or arrested Plaintiff could potentially expose Defendant Romero to liability for Plaintiff's battery and false imprisonment claims (among others). Conversely, if Defendant Romero lawfully detained Plaintiff, he would be authorized to use at least some force during the detention and could be protected against Plaintiff's state law claims.
After examining the parties' moving papers, exhibits, and depositions, the Court concludes that material, factual issues remain which preclude summary judgment. The parties still dispute a number of facts including Defendant Romero's justification for the detention, the amount of time Plaintiff was detained, and whether Plaintiff's actions posed a reasonable threat to Defendant Romero. These facts are material because they form the basis of Defendant Romero's justification for detaining and touching Plaintiff. The Court cannot weigh credibility and must view all inferences drawn from the underlying facts in the light most favorable to Plaintiff. See Anderson, 477 U.S. at 255;Matsushita, 475 U.S. at 587. Accordingly, the Court must deny Defendant's motion for summary judgment.
A. FOURTH AMENDMENT CLAIMS
Plaintiff alleges that Defendant Romero violated his Fourth Amendment rights when Defendant Romero "unlawfully searched Plaintiff, unlawfully seized him, seized his private property without good cause, forced him to stay at their location, and forced him against the patrol car using excessive force." (Compl. at 6). Defendants respond that Deputy Romero lawfully detained Plaintiff and used appropriate force during this detention. The parties dispute significant facts surrounding this detention. Consequently, summary judgment is inappropriate.
The Fourth Amendment prohibits a peace officer from arresting a citizen without probable cause. United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999). In Caballero v. Concord the Ninth Circuit held "arrests by police officers without probable cause violates the Fourth Amendment's guarantee of security from unreasonable searches and seizures giving rise to a claim of false arrest under 1983."956 F.2d 204, 206 (9th Cir. 1992). When an arrest is based on probable cause, the Fourth Amendment is not violated. See Graham v. Connor, 490 U.S. 386, 396 (1989).
Officers may also restrain an individual's liberty in the presence of reasonable suspicion. U.S. v. Arias-Villanueva, 990 F.2d 1491, 1501 (9th Cir. 1993). "The concept of reasonable suspicion, like probable cause, is not `readily, or even usefully, reduced to a neat set of legal rules.'" U.S. v. Sokolow, 490 I.S. 1, 7-8 (1989) (citations omitted). In determining whether or not reasonable suspicion exists, a consideration of the totality of the circumstances — "the whole picture" — is required. Id.
There can be little question that Defendant Romero initially possessed a valid basis to detain Plaintiff and Tesch. Defendant Romero had been assigned to patrol the area specifically because of the recent problems with trespassing on nearby private property. Regardless of whether Plaintiff and Tesch were actually trespassing, they admit that they were driving extremely close to this property — making it difficult for Defendant Romero to determine their exact position from his location nearly a half mile away. Sergott Depo., p. 157:14-158:8, p. 275:4-8, p. 155:8-10. Accordingly, Defendant Romero could reasonably stop them to determine if they were trespassing, and inform them of the area's boundaries. Plaintiff, a former officer himself, admits he would have done the same. Sergott Depo., p. 159:13-16, p. 160:22-162:9.
It was also proper for Deputy Romero, once there, to detain and cite Tesch for his plainly visible expired registration. Romero Depo., p. 75:10-15. As a passenger during this encounter, Plaintiff could be lawfully detained as well. See People v. McGaughran, 25 Ca.13d 577, 584 (1977) (permitting officers who stop motorists for a violation of the California Vehicle Code to detain passengers in the vehicle "for the period of time necessary to discharge the duties incurred by virtue of the traffic stop.")
However, the record strongly diverges from this point on, as the parties dispute the length of the detention. Plaintiff asserts that there were essentially two encounters, the first of which ended after Defendant Romero indicated that Plaintiff and Tesch were free to go. Defendants respond that the entire encounter was a single detention, begun by the citation and then "prolonged" because Plaintiff returned to discuss the private property's boundaries. (Def.'s Reply at 5). This dispute is significant because many of the alleged violations occurred after Plaintiff was purportedly released; if there were two detentions, each would require its own justification. At this point, conflicting evidence puts the detention's end point in dispute.
In Plaintiff's view, the receipt of Tesch's ticket reasonably appeared to end the first detention. Sergott Depo., p. 205:5-12. As Defendant Romero returned to his car, Plaintiff said something similar to "I presume this is concluded," and Romero responded with "some gesture" that Sergott and Tesch interpreted as indicating that the encounter was over. Id. Defendant denies ever telling Plaintiff and Tesch to leave. Romero Depo., p. 93:11-12. Under Plaintiff's version, Plaintiff returned to Tesch's car to pour out the open beer can, and only then approached Defendant Romero to further discuss the private area's boundaries. Sergott Depo, p. 205:15-25. (Plaintiff then sarcastically asked how Niles — the private property owner — was lucky enough to have his own "private" police force patrolling this property. Tesch Depo., p. 120:3-10. It is at this point, Plaintiff asserts, that Defendant Romero demanded Plaintiff's identification and the situation deteriorated.).
Based on Plaintiff's version of events, a reasonable person might have concluded that Defendant Romero's gesture signaled the end of the detention. Viewing the facts in the light most favorable to Plaintiff (as the Court must for this motion), the Court must thus assume that the detention had ended. See Matsushita, 475 U.S. at 587.
Further detention might still be reasonably justified if (as Defendants argue) Plaintiff had an open container of alcohol in the car or Defendant Romero was acting in self-defense based on concern for his safety. Yet both of these bases rely on facts that are still reasonably in dispute.
I. OPEN CONTAINER
Deputy Romero cited both Tesch and Plaintiff for allegedly having an open container of alcohol in the vehicle. However, the facts surrounding this violation remain disputed. According to Deputy Romero, Tesch explicitly admitted that he and Plaintiff had driven from Walter's Camp with an open container of alcohol in the truck. Romero Depo., p. 135:12-17. However, Tesch denies this and asserts that Plaintiff never had an open container until they stopped. Tesch Depo. p. 94:7-9. Defendant Romero also contends that as he arrived, he saw Plaintiff drink from an open container. Romero Depo., p. 11:6-12. Plaintiff responds that he never had an open container in the truck, but simply retrieved a beer from the vehicle after stopping and opened it after he exited the vehicle. Sergott Depo., p. 170:5-10. (Both parties agree that it would have been difficult for Deputy Romero to determine, from his angle on approach, whether the can was opened while Plaintiff was in the truck or after he exited. Sergott Depo., p. 173:2-p. 174:12. In Plaintiff's subsequent criminal trial for possession of an open container, he was acquitted.) Insofar as Deputy Romero's detention and citation rests on disputed facts that go to the very heart of the detention's validity, that dispute precludes summary judgment. II. SAFETY CONCERNS
The parties also disagree about when Deputy Romero issued the citation. Sergott and Tesch claim that it was much later in the encounter. They assert that Romero asked Tesch to return his registration ticket, then reinserted it into the original ticket and added the open container violation. Sergott Depo., p. 245:7-p. 246:18; Tesch Depo., p. 169:1-p. 170:7. Defendant Romero does not recall doing this. Romero Depo., p. 15:17 — p. 16:1.
Defendant Romero also contends that he acted out of concern for his safety. However, the parties' accounts of Plaintiff's behavior vary significantly and create a triable issue of fact on this issue. Defendant Romero argues that Plaintiff became increasingly threatening throughout the encounter. When Plaintiff returned to discuss the property boundaries, Defendant Romero demanded Plaintiff's license and Plaintiff refused. Sergott Depo., p. 218:12-13. At some point, Defendant Romero realized that the item on Plaintiff's side was a gun rather than a knife. Romero Depo., p. 51:19-20; p. 110:1-7. Defendant Romero requested backup, and, when Plaintiff refused to surrender his weapon, Defendant Romero disarmed him.
Plaintiff's version differs. Plaintiff claims that he remained relatively calm throughout the encounter and that he made Defendant Romero aware of the gun at the outset. Pl.'s Opp. at 18, 22; Sergott Depo., p. 206:11-20; p. 209:13 — p. 210:11; p. 218:4-17; p. 220:22-p. 221:1. According to Plaintiff, he returned to discuss the private property boundaries once Defendant Romero indicated that they were free to go. Sergott Depo., p. 206:14-19. Plaintiff asked Deputy Romero how to avoid driving on private property, but made a comment similar to "how is Niles so lucky as to have his own private police force?" Sergott Depo., p. 211:24 — p. 212:4. Defendant Romero became angry and demanded Plaintiff's license, refusing to say what this was for despite Plaintiff's request. Sergott Depo., p. 218:12-13. Plaintiff contends that Defendant Romero then concoted the open container violation later to help justify his assault on Plaintiff. Plaintiff also contends that although he told Romero about the gun early in the encounter, Romero used the later "discovery" of the gun to help justify his actions. Sergott Depo. 149:18-20, p. 176:20-25, p. 184:1-2; Tesch Depo. p. 103:8-10; p. 107:5-16.
Neither party disputes that the situation soon deteriorated. However, the relevant question is not whether Plaintiff's later actions made him a threat but rather whether Plaintiff's actions at the time the detention was initiated created a reasonable threat. On this issue, the record remains unclear.
The facts adduced at trial may very well prove that Defendant Romero's safety concerns were reasonable. But Plaintiff has introduced sufficient deposition testimony to make his actions that day a triable issue of fact. Without being able to weigh credibility, the Court cannot discount Plaintiff's testimony at this point and must credit it for purposes of this summary judgment motion. Accordingly, the Court must deny Defendants' motion for summary judgment on this issue.
B. FALSE IMPRISONMENT, BATTERY, ASSAULT, AND NEGLIGENCE
Plaintiff alleges he was falsely imprisoned when "Defendant Romero intentionally and unlawfully restrained, confined and/or detained Plaintiff without his consent by compelling him to stay with Defendant Romero and by moving Plaintiff against his will." (Complaint at 7). Plaintiff further alleges he was battered when "Romero grabbed Plaintiff and forced him against the patrol car," and assaulted when Defendant Romero radioed for backup, causing an officer to arrive with a firearm pointed at Plaintiff. Finally, Plaintiff alleges that Defendant Romero's actions during and after the February 14, 2004 incident constitute negligence.
To assert false imprisonment, Plaintiff must allege the non-consensual, intentional confinement of a person without lawful privilege for an appreciable length of time. Blaxland v. Commonwealth Dir. Of Pub. Prosecutions, 323 F.3d 1198 (9th Cir. 2003) (emphasis added). To assert battery against a police officer, Plaintiff must allege the unreasonableness of the force used. Susag v. City of Lake Forest, 94 Cal.App.4th 1401 (2002). To assert assault, Plaintiff must allege an " unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Cal. Penal Code 240 (emphasis added). To assert negligence, Plaintiff must show (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury. Johnstone v. Panama Pac. Int. Exposition Co., 187 Cal. 323, 326, (1921).
Like Plaintiff's Fourth Amendment claims, the merits of Plaintiff's false imprisonment, battery, assault, and negligence claims turn on whether Plaintiff was lawfully detained. As already noted, the lawfulness of Defendant Romero's actions is still a contested issue of fact. Therefore, construing the record's facts in a light favorable to Plaintiff, the state law claims of false imprisonment, battery, and assault cannot be dismissed at summary judgment.
C. § 1983 CLAIMS
Section 1983 claimants must ultimately prove two elements: (1) that a person acting under the color of state law committed the conduct at issue; and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. 1983.
Defendants initially allege that Plaintiff's 1983 claims should be dismissed because Defendant Romero had qualified immunity, precluding a civil lawsuit against him. The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Under the qualified immunity doctrine, a law enforcement official such as Defendant Romero should prevail in a civil suit if the right asserted by the Plaintiff was not "clearly established," or the officer could have reasonably believed his conduct was lawful. See Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).
The Court cannot make this determination at present. Plaintiff has alleged violations of several "clearly established" statutory and constitutional rights. As a trained and experienced officer, Defendant Romero was most certainly aware of the established constitutional rights involved in routine arrest procedures. Although both the "clearly established right" and "reasonableness" inquiries are questions of law, where there are factual disputes as to the parties' conduct or motives, the case cannot be resolved at summary judgment on qualified immunity grounds. See Liston v. County of Riverside, 120 F.3d 965, 975 (9th Cir. 1997); Collins v. Jordan, 110 F.3d 1363, 1369-70 (9th Cir. 1996); Alexander v. City County of San Francisco, 29 F.3d 1355, 1364 (9th Cir. 1994); ACT UP!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993).
Here, such disputes remain. Plaintiff contends that Romero unlawfully detained him in violation of his Fourth Amendment rights. He further argues that Deputy Romero did so intentionally to show Plaintiff who the "real cop" was, and bases this allegation on Deputy Romero's earlier statement that District Attorneys were not "real cops." Romero Depo., p. 58:15-17. The Court need not determine at this point what actually occurred; the Court simply concludes that for purposes of surviving this summary judgment motion, Plaintiff has sufficiently plead, and factually supported, his claim that Deputy Romero knowingly violated these clearly established rights. Whether Defendant Romero actually (and/or knowingly) violated these rights remains a disputed factual issue that lies at the very heart of this case. Accordingly, the defense of qualified immunity is not available at this time.
IV. CONCLUSION AND ORDER
In light of the foregoing, the Court DENIES Defendants' motions for summary judgment and partial summary judgment.
IT IS SO ORDERED.