Re: ECF No. 60 62
LAUREL BEELER, Magistrate Judge.
This is a false-arrest and excessive-force case under 42 U.S.C. § 1983 and the Fourth Amendment. Plaintiff Richard Earl May was arrested after entering fenced-off private property, at night, while searching for his neighbor's cat. During the arrest, a San Mateo County police dog bit him.
1. The Incident
The material facts in this case are mostly undisputed. On January 1, 2015, at roughly 11:00 at night, plaintiff Richard Earl May entered a construction site in Half Moon Bay. The site was private property, was fenced off, and bore Keep Out signs. A video-surveillance system protected the site. Mr. May climbed over the seven- or eight-foot fence to enter the site. Then 62 years old, Mr. May was with his neighbor, a woman aged 73. They were looking for her cat.
The police dispatcher in turn radioed a possible commercial burglary in progress.
Seven deputies responded to the call, though they arrived at different times. Three deputies — including Deputy Laughlin, his canine partner, Riggs, and Deputy Michel — entered the site. While these deputies investigated inside the property, others spread out along the outside of the fence to form a loose perimeter around the site.
We now reach a disputed fact of some significance. Deputy Laughlin has explained that, when they were still roughly 100 yards away from Mr. May, after he gave the "Sheriff's canine" warning, he saw Mr. May "back into the shadows towards the fence."
By now Deputies Laughlin and Michel and a third, Deputy Sanchez, had closed the distance to Mr. May. Deputy Laughlin gave Mr. May one or two more warnings to get on the ground or Riggs would bite.
Apart from the dispute over whether he moved away from the police, and whether he moved in a way that suggested he was trying to flee, there has been no suggestion that Mr. May resisted the deputies. Indeed, Deputy Laughlin testified that, once Riggs had bitten him, Mr. May was not "resistive."
Deputy Laughlin took Mr. May to the emergency room roughly two hours later.
Deputy Laughlin cited Mr. May for two misdemeanors: trespass and "resisting, obstructing, or delaying" a law-enforcement officer.
2. The Claims and Motions
Mr. May brought this suit against Deputy Laughlin, Deputy Michel, and the County of San Mateo. He sues for false arrest and excessive force under the Fourth Amendment and 42 U.S.C. § 1983. He would impose municipal-entity liability on the County under Monell v. Dep't of Soc. Svcs., 436 U.S. 658 (1978). He brings claims under California law for false arrest and under the state's Bane Act (Cal. Civ. Code § 52.1). For the latter claims he would hold the County vicariously liable under Cal. Gov't Code § 815.2. He has moved for summary judgment on all these claims.
In their own Rule 56 motion, the defendants seek summary judgment on all Mr. May's federal claims. The defendants argue that they did not falsely arrest Mr. May, that they did not use excessive force in arresting him, and that they are qualifiedly immune from liability on both these theories. The County seeks summary judgment on the Monell claim.
The court must grant a motion for summary judgment if the movant shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49.
The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, "the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (quoting Celotex, 477 U.S. at 325) ("When the nonmoving party has the burden of proof at trial, the moving party need only point out `that there is an absence of evidence to support the nonmoving party's case.'").
If the moving party meets its initial burden, the burden then shifts to the non-moving party to produce evidence supporting its claims or defenses. Nissan Fire & Marine, 210 F.3d at 1103. The non-moving party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence that shows there is a genuine issue of material fact for trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not produce evidence to show a genuine issue of material fact, the moving party is entitled to summary judgment. See Celotex, 477 U.S. at 323.
In ruling on a motion for summary judgment, the court does not make credibility determinations or weigh conflicting evidence, and it draws all inferences in the light most favorable to the non-moving party. E.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).
1. False Arrest — Probable Cause
The court grants the defendants summary judgment on the false-arrest claim. Considering all that Deputy Laughlin knew, and taking into view the "totality of the circumstances," a prudent person could think that there was a "fair probability" that crime was afoot and that Mr. May was involved. Deputy Laughlin had probable cause to arrest Mr. May.
1.1 Governing Law
"A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification." Lacey v. Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012) (quoting Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001)). "Probable cause exists when there is a fair probability or substantial chance of criminal activity." Id. (quoting United States v. Patayan Soriano, 361 F.3d 494, 505 (9th Cir. 2004) (quoting in turn United States v. Bishop, 264 F.3d 919, 924 (9th Cir. 2001)) (internal quotation omitted in Lacey) (emphasis added). "It is well-settled that `the determination of probable cause is based upon the totality of the circumstances known to the officers at the time of the search.'" Id. (quoting Bishop, 264 F.3d at 924).
"Probable cause exists when police have knowledge at the moment of arrest of facts and circumstances based on reasonably trustworthy information that would warrant a belief by a reasonably prudent person that the person arrested has committed a criminal offense." Franklin v. Fox, 312 F.3d 423, 438 (9th Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964); United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999)). "In general, we must ask whether `a prudent person would believe [that Mr. May] had committed a crime.'" Lacey, 693 F.3d at 918 (quoting Dubner, 266 F.3d at 966). "The evidence need support `only the probability, and not a prima facie showing, of criminal activity,' Illinois v. Gates, 462 U.S. 213, 235 (1983), and such evidence need not be admissible, but only legally sufficient and reliable. Franks v. Delaware, 438 U.S. 154, 165 (1978)." Franklin, 312 F.3d at 438 (parallel citations omitted).
The undisputed facts gave Deputy Laughlin probable cause to arrest Mr. May for either commercial burglary or criminal trespass. Consider everything that Deputy Laughlin knew at the time of the arrest. Deputy Laughlin found Mr. May inside the fenced perimeter of private commercial property. It was approximately 11:00 p.m. Dispatch had told Deputy Laughlin that there were two or maybe three people total on the property. These people had been seen stacking (unidentified) property near the fence. These facts would cause a "reasonably prudent person" to believe that there was at least a "fair probability" that crime was afoot and that Mr. May was involved. See Franklin, 312 F.3d at 438 ("prudent"); Lacey, 693 F.3d at 918 ("fair probability"); could use a cite for "was involved"
1.2.1 Probable cause does not require full
prima facie proof
The plaintiff's responses do not persuade otherwise. To refute the notion that Deputy Laughlin had probable cause to arrest him, Mr. May parses too finely and demands too much. Mr. May effectively argues that, based on what Deputy Laughlin knew, he lacked conclusive proof of every element of some relevant crime.
These arguments misapprehend the probable-cause standard. As the Supreme Court has explained: "The evidence need support `only the probability, and not a prima facie showing, of criminal activity. . . .'" Franklin, 312 F.3d at 438 (quoting Illinois v. Gates, 462 U.S. at 235) (emphasis added); accord, e.g., Chism v. Washington State, 661 F.3d 380, 389 (9th Cir. 2011). This indeed has long been the rule:
Illinois v. Gates, 462 U.S. at 235 (quoted in Maryland v. Pringle, 540 U.S. 366, 371 (2003)).
1.2.2 Pre-arrest investigation
Mr. May also argues that Deputy Laughlin did not adequately investigate matters before arresting him. On Mr. May's account, the information that Deputy Laughlin received from the security company, by way of the police dispatcher, was "insufficient" to support a constitutional arrest. "[C]learly established Ninth Circuit precedent," writes Mr. May, "requires law enforcement officers to investigate to establish probable cause before arresting — especially where insufficient details are relayed to the arresting officer."
The Ninth Circuit "has held that ``[i]n establishing probable cause, officers may not solely rely on the claim of a citizen witness that [s]he was a victim of a crime, but must independently investigate the basis of the witness' knowledge or interview other witnesses.'" Hopkins v. Bonvicino, 573 F.3d 752, 767 (9th Cir. 2009) (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (citing in turn Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991) (``[P]olice officers ha[ve] a duty to conduct an investigation into . . . [a] witness'[s] report. . . .")). This is true even where the arresting officer has learned information from other law-enforcement officials. Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1293 n. 16 (9th Cir. 1999) ("Although a police officer is entitled to rely on information obtained from fellow law enforcement officers, this in no way negates a police officer's duty to reasonably inquire or investigate these reported facts.") (citation omitted).
The court need not decide whether the information that Deputy Laughlin received was alone "sufficiently detailed," Fuller, 950 F.2d at 1443, to yield probable cause without further investigation or other corroboration. The court holds only that, under the "totality of the circumstances," Deputy Laughlin acted reasonably and constitutionally in arresting Mr. May. Deputy Laughlin had circumstantial corroboration that yielded probable cause. In his "pre-arrest investigation" argument, Mr. May loses sight of the broader rule that probable cause is assessed under all the circumstances known to the arresting officer. He focuses too narrowly on whatever of Deputy Laughlin's conduct can be described as explicitly investigative while disregarding the surrounding context. The latter, too, can "corroborate" witness reports to support probable cause. Cf. Peng v. Hu, 335 F.3d 970, 979 (9th Cir. 2003) (quoted at ECF No. 71 at 13-14).
The cases that the plaintiff cites on pre-arrest investigations are too factually different to offer more than general guidance. They confirm the important principle that the Fourth Amendment does not allow the police to "arrest now, and investigate later." See Kanekoa v. City & Cnty. of Honolulu, 879 F.2d 607, 612 (1989). But none of these cases suggests that, in this situation, Deputy Laughlin lacked probable cause to arrest Mr. May because he failed to more fully investigate the situation. The "strange circumstances" of Lacey, supra, for example, involved a sheriff carrying out a personal vendetta against two newspaper reporters. See Lacey, 693 F.3d at 907-10, 923-24. On a witness's "bare claim that a misdemeanor ha[d] been committed earlier in the day, without any information about exigent circumstances," and without further inquiring, the sheriff had had the reporters arrested "at their homes in the middle of the night." Id. at 923-24. The Ninth Circuit found this "objectively unreasonable." Id. at 924. The appeals court refused to dismiss the false-arrest claim and held that the sheriff was "not entitled to qualified immunity" on that claim. Id. at 924.
The Ninth Circuit's opening summary in Hopkins, supra, suggests how different that case is from this one. The Hopkins court wrote:
Hopkins, 573 F.3d at 759. More fully,
Id. at 767. In that situation, the Ninth Circuit held that the defendant officers' merely accepting the witness's unelaborated report was "insufficient to support probable cause." Id.
The decision in Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005) does not translate into our case. Motley confirms the general rule that, "officers have an ongoing duty to make appropriate inquiries regarding the facts received or to further investigate if insufficient details are relayed." Id. at 1081. But Motley applies this rule in the context of parolee-residential searches. Motley asked whether the police had adequate information that a parolee lived at a given address to warrant searching that place in connection with parole. See id. at 1080-82. (The Motley court held that the police did have probable cause so that their conduct was, to this extent, "objectively reasonable." Id.) It is hard to say how well Motley speaks to the present context. Rules governing how the police may constitutionally search a parolee's residence depart somewhat from standard Fourth Amendment analysis. See id. at 1078-80 ("Generally, a condition of parole that permits warrantless searches provides officers with the limited authority to enter and search a house where the parolee resides. . . ."). At all lengths, nothing in Motley indicates that, in the situation that confronted him, Deputy Laughlin had to conduct a fuller investigation before he could reasonably conclude that there was a "fair probability" that criminal activity was underway.
Furthermore, in the cases that Mr. May cites in this area, the investigation (or the need to investigate) came after the alleged wrong was complete. After the events in question were over, a witness reported the crime to the police, who then conducted some form of overt investigation. This was the case in Fuller, for example, where a jewelry-store clerk told the police that two women (who had been in his store earlier in the day) had stolen a ring. The police did not immediately arrest the women. They first spoke with the women, with a second store employee, and with other witnesses. Id. at 1439-40. The Ninth Circuit held that, given this investigation, the police "reasonably believed that there was probable cause to arrest" the plaintiffs without a warrant and were thus immune from the § 1983 claim. Id. at 1443-45. So, too, in Hopkins, the police responded to a witness's report about a traffic incident that had happened earlier — and from which the suspect (the § 1983 plaintiff) had already returned home. Hopkins, 573 F.3d at 760-62.
Here, by contrast, Deputy Laughlin walked into a situation that was in progress. He was not rebuilding a sequence of events from witness reports — as in Hopkins or Fuller. He was instead immersed in the situation. Based on what he had learned from the security company and dispatcher, and given the facts that he witnessed, the court holds as a matter of law that Deputy Laughlin had probable cause to arrest Mr. May.
2. False Arrest — Qualified Immunity
Even if the court had reached the opposite conclusion, holding summarily that Deputy Laughlin lacked probable cause to arrest Mr. May, the court would still find the defendants immune from the false-arrest claim as a matter of law.
2.1 Governing Law
"The doctrine of qualified immunity assumes that police officers do not knowingly violate the law." Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994). "An officer thus is presumed to be immune from any damages caused by his constitutional violation." Id. "Qualified immunity shields public officials from civil damages for performance of discretionary functions." Mueller v. Auker, 576 F.3d 979, 992 (9th Cir. 2009). "It is `an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)) (emphasis in original). Qualified immunity protects an officer from suit "when he or she `makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances.'" Mueller, 576 F.3d at 992 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). "Qualified immunity protects `all but the plainly incompetent or those who knowingly violate the law.'" Mueller, 576 F.3d at 992 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). "The standard is an objective one that leaves `ample room for mistaken judgments.'" Mueller, 576 F.3d at 992 (quoting Malley, 475 U.S. at 343). The Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991)).
To determine whether Deputy Laughlin is immune from suit, the court must answer two questions. The court must consider "whether the official's conduct violated a constitutional right, and if so, whether that right was clearly established at the time of the event in question." Mueller, 576 F.3d at 993 (citing Saucier v. Katz, 533 U.S. 194, 206 (2001)); accord, e.g., Pearson v. Callahan, 555 U.S. 223, 232 (2009). It is not "mandatory" to address these two prongs in this order. Pearson, 555 U.S. at 232-36. Courts are to "exercise their sound discretion in deciding which prong . . . should be addressed first in light of the particular circumstances of the case at hand." Id. at 236; accord Mueller, 576 F.3d at 993-94.
Facing "competing motions for summary judgment" on qualified immunity, moreover, the court reads disputed facts in the light most favorable to Mr. May. See, e.g., Mueller, 576 F.3d at 982, 994; Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) ("Where [material factual] disputes exist, summary judgment is appropriate only if Defendants are entitled to qualified immunity on the facts as alleged by the nonmoving party.") (citing Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. 1991)).
For present purposes, we may assume that there was a false arrest and proceed to the second, "clearly established" prong of the qualified-immunity test. Cf. Mueller, 576 F.3d at 994 (finding a jury question on constitutional violation and skipping to "clearly established" issue). "The dispositive question in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. Put differently, "[f]or a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1092-93 (9th Cir. 2013) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). "This inquiry `must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Mueller, 576 F.3d at 994 (quoting Saucier, 533 U.S. at 201); accord, e.g., Deorle v. Rutherford, 272 F.3d 1272, 1278-79 (9th Cir. 2001) ("[T]he court must . . . determine whether the right violated was clearly established in a `particularized . . . sense. . . .'").
The plaintiff argues that, at the time of his arrest, "[t]he Fourth Amendment right to be free from a warrantless arrest without probable cause was clearly established." (ECF No. 60 at 31) (quoting Gasho, 39 F.3d at 1438). That is plainly true. It is not, however, dispositive. Though this case is not factually complicated, the court does not think that the "clearly established" inquiry can be resolved with so broad a stroke. The court is especially disinclined to treat the issue so broadly in light of the recent decision in White v. Pauly, 137 S.Ct. 548 (2017). The Court there drove home the "longstanding principle" that, in analyzing qualified immunity, "`clearly established law' should not be defined `at a high level of generality.'" Id. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). If the courts deal too abstractly in this area, White explained, "[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Even reading the factual record in the light most favorable to Mr. May — meaning, specifically, those facts pertinent to the false-arrest claim — Deputy Laughlin's conduct was not so obviously outside the constitutional pale that only the "plainly incompetent or those who knowingly violate the law" would have done the same. See Mueller, 576 F.3d at 992 (quoting Malley, 475 U.S. at 341). The worst that can be said, even giving Mr. May the benefit of the doubt, is that by arresting Mr. May, Deputy Laughlin showed bad judgment. But the doctrine of qualified immunity protects such mistakes. See id. (quoting Malley, 475 U.S. at 343).
3. Excessive Force 1 — Basic Claim
3.1 Governing Law
"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 481 n.12 (citing Tennessee v. Garner, 471 U.S. 1, 7-8 (1985)); accord, e.g., Arpin, 261 F.3d at 921 ("A claim against law enforcement officers for excessive force is analyzed under the Fourth Amendment's `objective reasonableness' standard."). Section 1983 provides a private right of action for those whose federal constitutional or statutory rights are deprived under color of law. See 42 U.S.C. § 1983; see generally, e.g., Monteilh v. Cnty. of Los Angeles, 820 F.Supp.2d 1081, 1089 (C.D. Cal. 2011).
"Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396 (1989) (internal citations and quotations omitted). "Stated another way, we must `balance the amount of force applied against the need for that force.'" Bryan v. MacPherson, 630 F.3d 805, 823-24 (9th Cir. 2010) (quoting Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003)). To do so, a court must evaluate the facts and circumstances of each particular case, including: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether she is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396. "The `most important' factor under Graham is whether the suspect posed an `immediate threat to the safety of the officers or others.'" Bryan, 630 F.3d at 826 (quoting Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc)). "A simple statement by an officer that he fears for his safety or the safety others is not enough; there must be objective factors to justify such a concern." Id. (quoting Deorle, 272 F.3d at 1281). "These factors, however, are not exclusive. Rather, [the court must] examine the totality of the circumstances and consider `whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.'" Id. (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). "In some cases," for example, "the availability of alternative methods of . . . subduing a suspect may be a factor to consider." Smith, 349 F.3d at 701 (citing Chew v. Gates, 27 F.3d 1432, 1441 n. 5 (9th Cir. 1994)).
"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 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). "`Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' Johnson v. Glick, [481 F.2d 1028, 1033 (2nd Cir. 1973], violates the Fourth Amendment." Graham, 490 U.S. at 396. This is because "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Id.
A jury must resolve the excessive-force claim. The court can grant neither party summary judgment on this claim. Though the key facts are mostly undisputed, they are not entirely, and a jury could reasonably draw different conclusions from them. A jury might look at the facts and decide that using Riggs was excessive; equally, the same jury could view those facts and find that deploying Riggs to "bite and hold" Mr. May was permissible. From the undisputed material facts the court cannot say that only one conclusion follows. The excessive-force claim thus cannot be decided as a matter of law.
The use of a police dog is certainly subject to Fourth Amendment excessive-force analysis. E.g., Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093 (9th Cir. 1998) ("We . . . hold that the . . . use of the police dog is subject to excessive force analysis. . . .") (quoting Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994)). "Use of a trained police dog may be regarded as `intermediate force' or `deadly force,' depending on the factual circumstances in the case." Ledesma v. Kern Cnty., 2016 WL 6666900, *10 (E.D. Cal. Nov. 10, 2016); see Maney v. Garrison, 2017 WL 937460, *8 (4th Cir. Mar. 9, 2017) ("[A] bite from a police canine is a significant use of force."). The use may or may not be constitutional. See Watkins, 145 F.3d at 1092-93 (in qualified-immunity analysis; "Oakland's `bite and hold' policy did not violate clearly established law concerning the use of excessive force . . .") (discussing Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994)).
The court cannot decide as a matter of law whether deploying Riggs was excessive. The key facts here are mostly undisputed. Different juries could review those facts, run them through the Graham analysis, and reach different, basically reasonable conclusions. The principal disputed fact — maybe the only key disputed fact — involves Mr. May's movement while the police officers stood before him. Did Mr. May move? Did he remain still? Did he move toward the fence? Did his movement suggest that he was trying to flee? A jury must hear testimony to resolve this point. How they view this fact will almost surely affect how they view Deputy Laughlin's decision to deploy Riggs. The court thus denies both parties summary judgment on the excessive-force claim.
4. Excessive Force 2 — Qualified Immunity
Much the same holds for the related qualified-immunity analysis. It is not possible to look at the undisputed material facts of this case and conclude that only one answer must follow. The dispute over Mr. May's behavior in the officers' presence increases the indeterminacy. The court thus denies both parties summary judgment on qualified immunity.
Again, in assessing qualified immunity the court reads disputed facts favorably to Mr. May. See, e.g., Mueller, 576 F.3d at 982, 994; Blankenhorn, 485 F.3d at 477 ("Where [material factual] disputes exist, summary judgment is appropriate only if Defendants are entitled to qualified immunity on the facts as alleged by the nonmoving party.") (citing Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. 1991)). So, "assuming without deciding" that Mr. May's constitutional rights were violated, the court must "determine whether those rights were clearly established." Id. at 994-95. Put differently, assuming for the sake of analysis that the force used was excessive, the court "must determine whether . . . made a `reasonable mistake as to the legality of [his] actions.'" Deorle, 272 F.3d at 1285 (quoting Saucier, 533 U.S. at 206). On "the defense of qualified immunity . . ., the [c]ourt considers only the facts that were knowable to the defendant officers." White, 137 S.Ct. at 550.
Viewed in this light, the issue almost goes to Mr. May as a matter of law. Well before the events in question, Ninth Circuit precedent had established that police officers cannot constitutionally meet passive or mild resistance with "non-trivial" force. See, e.g., Gravelet-Blondin, 728 F.3d at 1093 ("The right to be free from the application of non-trivial force for engaging in mere passive resistance was clearly established prior to 2008.") (discussing cases). The established constitutional framework embodies a principle of proportionate response. See Blankenhorn, 485 F.3d at 477 ("Even where some force is justified, the amount actually used may be excessive.") (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)). Given the situation that Deputy Laughlin confronted, and what he knew about that situation, and assuming (in Mr. May's favor) that the plaintiff was not trying to flee, one almost concludes that Mr. May should gain summary judgment against the assertion of qualified immunity. On the other hand, this is not a case in which the police set their dog "on a handcuffed arrestee who has fully surrendered and is completely under control." See Watkins, 145 F.3d at 1093 (quoting Mendoza, 27 F.3d at 1362).
Ultimately, the court thinks that this case remains on the bubble and that the qualified-immunity issue, too, must be given to a jury. The court cannot say as a matter of law that it was "sufficiently clear [to] a reasonable official" that he could not use a bite-and-hold police dog to arrest Mr. May. In other words, using Riggs in this way, in these circumstances, was not "`so patently violative of the constitutional right that reasonable officials would know without guidance from the courts' that the action was unconstitutional." See Mendoza, 27 F.3d at 1361 (quoting Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993)).
5. Excessive Force 3 — Deputy Michel & Ancillary Liability
The plaintiff also contends that Deputy Michel is liable for excessive force because he did not intervene to stop, and was himself an "integral participant" in, Deputy Laughlin's use of force.
First, Deputy Michel was not an integral participant in deploying Riggs. The only evidence is that Deputy Laughlin had control of the police dog, that he set Riggs on Mr. May, and that he then called him off. There is no proof, there is no suggestion, that Deputy Michel had any input into Deputy Laughlin's decision to deploy Riggs; nor is there any indication that Deputy Michel controlled Riggs before, during, or after the dog's deployment.
Second, this is not a case in which Deputy Michel can be held liable for not intervening in Deputy Laughlin's use of Riggs. On a close and extended review of a relatively developed record, this court has concluded that a jury question exists on whether Deputy Laughlin used excessive force. Even on such a record and such a review, the court could not decide that he had used improper force as a matter of law. The court has also held that, even if he did use excessive force, a jury may decide that Deputy Laughlin is immune from liability because his actions fall into the realm of poor judgment and mistake. It seems impracticable at best to expect that, in the heat of the situation, Deputy Michel should have reached a different and surer conclusion (that deploying Riggs would be excessive) than this court has made given more time and a detached perspective. Expecting Deputy Michel to reach that decision — and holding him liable for not having done so — would also abrade the leniency inherent in the rules of qualified immunity. In some situations it will be obvious that police conduct is unconstitutional, and an officer can rightly be expected to intervene to stop a colleague from persisting in malfeasance. The law contemplates such situations. E.g., United States v. Koon, 34 f.3d 1416, 1447 n.25 (9th Cir. 1994). But this is not such a case. To hold Deputy Michel responsible for not intervening in a case like this would invite frank dysfunction into day-to-day policing.
6. Municipal Liability —
6.1 Governing Law
The plaintiff's sole federal claim against the County of San Mateo is for liability under Monell v. Dep't of Soc. Svcs., 436 U.S. 658 (1978).
Liability against a government entity starts from the premise that there is no respondeat superior liability under § 1983; i.e., no entity is liable simply because it employs a person who has violated a plaintiff's rights. See, e.g., Monell, 436 U.S. at 691; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Local governments can be sued directly under § 1983 only if the public entity maintains a policy or custom that results in a violation of plaintiff's constitutional rights. Monell, 436 U.S. at 690-91. To impose Monell entity liability under § 1983 for a violation of constitutional rights, a plaintiff must show that: (1) the plaintiff possessed a constitutional right of which he or she was deprived; (2) the municipality had a policy; (3) this policy amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) the policy is the moving force behind the constitutional violation. See Plumeau v. School Dist. # 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). The Ninth Circuit has explained how a policy may be proved:
delegated that authority to, or ratified the decision of, a subordinate." Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (quoting Ulrich v. City and Cnty. of San Francisco, 308 F.3d 968, 984-85 (9th Cir. 2002)). The practice or custom must consist of more than "random acts or isolated events" and instead, must be the result of a "permanent and well-settled practice." Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir. 1988) overruled on other grounds by Bull v. City and Cnty. of San Francisco, 595 F.3d 964 (9th Cir. 2010); see City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Thus, "a single incident of unconstitutional activity is not sufficient to impose liability under Monell unless" there is proof that the incident "was caused by an existing, unconstitutional municipal policy. . . ." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
The plaintiff has not raised a triable Monell claim. Mr. May offers two grounds for such liability. First, he argues that the County "does not keep bite-ratio statistics — the percentage of how many times a dog is deployed versus how many times he is deployed and bites."
6.2.1 Bite ratios
The record evidence is undisputed on the issue of "bite ratios" and whether the County maintains them. The record shows that the County does keep the relevant information, the component data that can yield any dog's bite ratio. The County records whenever a dog is deployed. It also records whenever a dog bites. What the County does not do is combine those data points into a "bite ratio." Nor does the County actively track this information — meaning that the County does not regularly review its deployment and bite statistics. (And, of course, because it does not derive bite ratios, it does not track those.) If a given dog began to bite more frequently, someone would have to notice that that animal was appearing more regularly in use-of-force reports. It is undisputed, though, that the County does maintain the component data (deployments and bites) and that an interested person could retrieve that information and calculate any police dog's bite ratio.
On this record the plaintiff has not raised a triable Monell claim. The fatal lapse in Mr. May's Monell case is one of causation. The plaintiff has not calculated Riggs's bite ratio. (Though, again, it is undisputed that the necessary information is available.) Nor has he gone the logically necessary next step: showing that that ratio exceeds some threshold that indicates a problem. That indicates, more exactly, that the County should have taken corrective action, whether by revising its policy or by retraining this dog. Without such mediate information, it is merely speculative to say that the County's not tracking bite ratios caused Mr. May's injury. And causation is requisite to a prima facie Monell theory. See, e.g., Plumeau, 130 F.3d at 438 (policy must be "moving force" behind constitutional violation); cf. Kerr v. City of West Palm Beach, 875 F.2d 1546, 1550-51 (11th Cir. 1989) (reversing judgment for municipal defendant where, among other things, evidence showed that department's "overall bite-ratio" was about 50% and that 85% of bites involved "non-violent felony or misdemeanor" arrests).
6.2.2 Failure to supervise — Delegation to Sergeant Ramos
The plaintiff's "failure to supervise" theory suggests that the County has wrongly delegated relevant policymaking authority to Sergeant Gary Ramos. According to Mr. May, Sergeant Ramos has been in "charge of the canine unit since 2009." His official title is, again, Training and Compliance Sergeant for the K-9 unit. During Sergeant Ramos's tenure, Mr. May argues, Riggs has bitten seven times (including this incident). Sergeant Ramos "investigated Riggs' seven bites . . . and found all but one lawful — despite Defendant Laughlin generally only describing facing a potential threat" in these encounters. Furthermore, the sergeant's apprehension reports "are not counter-signed by anyone else, and he has never had one rejected" by higher command. This amounts to a "lack of supervision of the canine unit," in the opinion of Mr. May's expert. The implication for Monell purposes is that Sergeant Ramos has effectively been given policymaking authority and that his policy has been to rubber-stamp police-dog bites.
The plaintiff gets the record wrong. First, to be accurate, the record shows that Riggs bit not six but three times before he bit Mr. May.
Finally in this vein, the plaintiff's discussion about Sergeant Ramos suffers from a partly factual, partly logical weakness. Mr. May argues that the County "cannot escape liability for the consequences of its established and ongoing departmental policy regarding the use of force simply by permitting such basic policy decisions to be made by lower level officials who are not ordinarily considered policymakers."
For these reasons, the court grants the Court summary judgment against the plaintiff's Monell claim. That claim is dismissed with prejudice.
7. Bane Act — Cal. Civ. Code § 52.1
Because a jury question exists on Mr. May's excessive-force claim under § 1983, a jury question also exists on his claim under California's Bane Act (Cal. Civ. Code § 52.1) and the related claim for vicarious liability against the County under Cal. Gov't Code § 815.2. The court denies the plaintiff an affirmative summary judgment on these claims. But, again, both claims will go to trial.
The Bane Act prohibits interference or attempted interference with a person's rights under federal or California law by "threats, intimidation, or coercion." See Cal. Civ. Code § 52.1.
Simmons v. Superior Court of San Diego Cnty., 7 Cal. App. 5th 1113, 1126 (2016) (citations omitted) (final emphasis added). The Ninth Circuit has similarly said:
Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105-06 (9th Cir. 2014) (emphases added); see also Brown v. City and Cnty. of San Francisco, 2014 WL 1364931, at *17 (N.D. Cal. Apr. 7, 2014) ("[The court finds persuasive the line of cases permitting Bane Act claims based on the same conduct as an underlying constitutional violation.").
The court is not awarding the plaintiff an affirmative summary judgment on his § 1983 excessive-force claim. That claim does raise a jury issue, however. The Bane Act claim, to the extent that it rests on the underlying excessive-force allegation, and the associated vicarious-liability claim under Cal. Gov't Code § 815.2, will thus both go to the jury as well.
8. False Arrest — California Law
The court denies Mr. May summary judgment on his California-law false-arrest claim.
Like the Bane Act claim — though even more clearly — the state-law arrest claim tracks the fate of its federal counterpart. See Levin v. United Airlines, 158 Cal.App.4th 1002, 1017-19 (2008), as modified (Jan. 14, 2008) (applying Fourth Amendment probable-cause standards to California false-arrest claim); Blankenhom, 485 F.3d at 486-87 (same). Because the court granted the defendants summary judgment on the federal false-arrest claim, it denies the plaintiff summary judgment on the California false-arrest claim and, of course, on the related vicarious-liability claim under Cal. Gov't Code § 815.2.
The court grants the defendants summary judgment on and dismisses with prejudice the false-arrest claim. The court denies the motion for summary judgment on the excessive-force claim as it relates to Deputy Laughlin, including on the related qualified-immunity defense. The court grants summary judgment to Deputy Michel on the excessive-force claim. The court dismisses the Monell claim with prejudice. The court denies the plaintiff's motion for summary judgment on the Bane Act, false-arrest, and associated vicarious-liability claims under California law.
This disposes of ECF Nos. 60 and 62.
Cal. Civ. Code § 52.1(a)-(b).