TROY L. NUNLEY, District Judge.
This Court presided over a three-day bench trial in this matter from November 13, 2017, through November 15, 2017. "In bench trials, a court must `find the facts specially and state separately its conclusions of law thereon.'" Simeonoff v. Hiner, 249 F.3d 883, 891 (9th Cir. 2001) (quoting Fed. R. Civ. P. 52(a)). "The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court." Fed. R. Civ. P. 52(a)(1). "The findings should be explicit enough to give the appellate court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground on which the trial court reached its decision." Alpha Distrib. Co. of California v. Jack Daniel Distillery, 454 F.2d 442, 453 (9th Cir. 1972). After reflection, the Court believes that setting out its findings and conclusions in an opinion will best serve the purposes of Rule 52(a), including facilitating appellate review. To do this most effectively, the Court will briefly explain the organization of this Opinion.
The instant action is comprised of three Fourth Amendment claims, each brought pursuant 42 U.S.C. § 1983. However, in essence, Plaintiffs Jeneane Shellabarger and Kenneth Potter's ("Plaintiffs") lawsuit has two parts. The first relates to the fatal shooting of their dog Krizzy by former Defendant Darrin Dicharry ("Dicharry") during the course of entering Plaintiffs' home on March 24, 2011, to execute a search warrant ("the Warrant").
The Court will make two more preliminary points before proceeding. First, the parties waived closing arguments. They did so after being informed of this Court's standard practice of requiring parties to submit proposed findings of fact and conclusions of law after the close of evidence. In such circumstances, the proposed findings and conclusions serve the same function as closing arguments. Accordingly, the Court has drawn Plaintiffs' theories of liability primarily from Plaintiffs' proposed findings of fact and conclusions of law ("Plaintiffs' Proposed Findings," ECF No. 134). Where necessary and appropriate, the Court has considered Plaintiffs' trial brief (ECF No. 102), Plaintiffs' response to Defendants' trial brief (ECF No. 108), and Plaintiffs' oral opposition to Defendants' oral Rule 52(c) motion (ECF No. 124 at 26:5-44:8). In this opinion, the Court refers to those three sources, together with Plaintiffs' Proposed Findings, as "Plaintiffs' Submissions."
Second, Defendants' outstanding evidentiary objections are hereby denied without prejudice. Prior to resting their case, Plaintiffs' counsel indicated he would move to have certain portions of depositions admitted ("the Excerpts"). Defense counsel indicated she anticipated interposing evidentiary objections at that time. Plaintiffs' motion was formally docketed on November 29, 2017. (See ECF No. 117.) Defense counsel had already lodged her objections. (See ECF No. 116.) Plaintiffs filed a reply.
The Court will set out the primary (or evidentiary) facts as the Court finds them by a preponderance of the evidence.
The First and Third Causes of Action relate to the death of Krizzy. With respect to the First Cause of Action, Plaintiffs contend Defendants Martinez and Hale are liable for Krizzy's death. The Third Cause of Action is a Monell claim brought against the City, Defendant Hale's employer. The Court will begin its analysis with the First Cause of Action.
Plaintiffs contend that Defendants Martinez and Hale should be held liable for a Fourth Amendment violation that resulted in the death of Krizzy. In their trial brief, Plaintiffs argued "Hale and/or Martinez may be liable for the violation of plaintiffs' constitutional rights, if they were an integral participant [sic] in the conduct giving rise to the violation." (ECF No. 102 at 13.) Further, Plaintiffs argue that Defendant Martinez, as "team leader," was "a supervisor" and may be found liable if the Court determines as follows: Defendant Martinez was "personally involved in the constitutional deprivation or a sufficient causal connection exists between the supervisor's unlawful conduct and the constitutional violation." (ECF No. 102 at 15.)
Whether one is an integral participant, a supervisor, or both, there must be an underlying Fourth Amendment violation that resulted in the death of Krizzy. Clearly delineating what conduct a plaintiff is challenging as violative of the Fourth Amendment is of vital importance. The same is true of identifying why a plaintiff contends this conduct violates the Fourth Amendment. Unfortunately, to put it charitably, Plaintiffs' Submissions are somewhat imprecise on these points. In an effort to clarify things, the Court will begin with an examination of the Supreme Court's recent decision in County of Los Angeles v. Mendez, 137 S.Ct. 1539 (2017), which abrogated the Ninth Circuit's provocation rule.
Mendez arose out of a police shooting in a shack where one of the two occupants was holding a BB gun when the officers in question allegedly entered without announcing their presence. In Mendez, the plaintiffs had three distinct Fourth Amendment claims:
Id. at 1545.
The case was tried to the district court in a bench trial. In relevant part, the district court found as follows: (i) "[u]nbeknownst to the officers, [the plaintiffs] were in the shack and were napping on a futon," (ii) one of the plaintiffs "kept a BB rifle in the shack for use on rats and other pests," (iii) "[t]he BB gun `closely resembled a small caliber rifle,'" (iv) "when the deputies entered, [that plaintiff] was holding the BB gun, and it was `pointing somewhat south towards'" one of the deputies, (v) the officers shot 15 rounds, and (vi) the plaintiffs "`were shot multiple times and suffered severe injuries,' and [one plaintiff's] right leg was later amputated below the knee." Id. at 1544-45 (original alterations omitted). Further, the district court found one of the deputies "liable on the warrantless entry claim, and the court also found both deputies liable on the knock-and-announce claim." Id. at 1545. However, the district court "awarded nominal damages for these violations because `the act of pointing the BB gun' was a superseding cause `as far as damage [from the shooting was] concerned.'" Id. With respect to the excessive force claim, the district court held that, under Graham v. Connor, 490 U.S. 386 (1989), "the deputies' use of force was reasonable `given their belief that a man was holding a firearm rifle threatening their lives.'" Id. Nevertheless, the district court turned to the Ninth Circuit's provocation rule, "which holds that an officer's otherwise reasonable (and lawful) defensive use of force is unreasonable as a matter of law, if (1) the officer intentionally or recklessly provoked a violent response, and (2) that provocation is an independent constitutional violation." Id. at 1545 (internal quotation marks omitted).
The Supreme Court set out its Fourth Amendment precedent on excessive force claims as follows:
Id. at 1546-47.
The Supreme Court explained that the Ninth Circuit's provocation rule "mistakenly conflate[d] distinct Fourth Amendment claims." Id. at 1547. "Contrary to this approach, the objective reasonableness analysis must be conducted separately for each search or seizure that is alleged to be unconstitutional." Id. In Mendez, the district court had concluded "the use of force by the deputies was reasonable under Graham" but still allowed the recovery damages for that use of force "because the deputies committed a separate constitutional violation (the warrantless entry into the shack) that in some sense set the table for the use of force." Id. The Supreme Court explained that the district was wrong to do this. Id. However, the Supreme Court explained that if "a plaintiff has other Fourth Amendment claims, they should be analyzed separately." Id. Further, the Supreme Court explained that this did "not foreclose recovery for injuries proximately caused by" an earlier Fourth Amendment violation such as entering a dwelling in violation of the Fourth Amendment. Id. at 1548.
The Court returns to the fundamental point: in order for Plaintiffs' First Cause of Action to be successful, a Fourth Amendment violation must have caused Krizzy's death. Having carefully reviewed Plaintiffs' Submissions, it is apparent that Plaintiffs are pressing two (at least semi-discrete) legal theories of how the Fourth Amendment was violated.
The Court will set out Plaintiffs' theory, Defendants' position, and relevant Fourth Amendment principles before turning to the Court's analysis of Plaintiffs' theory.
Plaintiffs' first theory of liability for their First Cause of Action can be succinctly summarized as follows: (i) members of the Team violated the Fourth Amendment by failing to knock and announce properly — i.e., members of the Team made a so-called "no knock entry" — without the presence of exigent circumstances, and (ii) this Fourth Amendment violation proximately caused Krizzy's death.
Defendants' proposed findings and conclusions acknowledge that Dicharry "opened the door of [Plaintiffs' Residence] without knocking and announcing." ("Defendants' Proposed Findings," ECF No. 133 at 7.) However, Defendants make three arguments why the Remaining Individual Defendants are not liable for this. First, they argue an exigency arose during the Warrant Execution prior to any member of the Team entering Plaintiffs' Residence and, therefore, a no-knock entry did not violate the Fourth Amendment. Second, assuming there was a knock-and-announce violation, the plan called for there to be a "knock and announce" before any member of the Team entered Plaintiffs' Residence, Dicharry chose to enter without doing this, and neither of the Remaining Individual Defendants were in a position to stop Dicharry. Third, the Remaining Individual Defendants are entitled to qualified immunity.
In Wilson v. Arkansas, 514 U.S. 927 (1995), the Supreme Court "held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry." Richards v. Wisconsin, 520 U.S. 385, 387 (1997). However, the Supreme Court subsequently observed that "Wilson and cases following it have noted the many situations in which it is not necessary to knock and announce." Hudson v. Michigan, 547 U.S. 586, 589 (2006). The Court will discuss these exceptions in a moment. First, it will be helpful to clarify one more point for those cases where an exception does not apply. In a non-exceptional case, police are expected to provide an occupant in the place to be searched the opportunity to voluntarily open the door after the police have knocked on the door and announced their identity and purpose. Id. For avoidance of doubt, in this opinion, the Court refers to knocking, announcing, and waiting a reasonable time before entering the place to be searched as having given "knock notice" or performed a "knock and announce." Further, the Court reiterates the Team had the Warrant, which covered Plaintiffs' Residence, and which has not been challenged in this case.
The Court will now discuss when officers are not required to perform a knock and announce before entering. Ultimately, in Richards, the Supreme Court held that "in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement." Richards, 520 U.S. at 394. The Supreme Court further held: "In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Id. The Supreme Court explained that "[t]his standard — as opposed to a probable-cause requirement — strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries." Id. The Supreme Court observed that "[t]his showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged." Id. at 394-95.
With this in mind, the Court will make four additional points before continuing. First, the Fourth Amendment permits magistrates "to authorize a `no-knock' entry" if a "warrant applicant gives reasonable grounds to expect futility or to suspect that one or another such exigency already exists or will arise instantly upon knocking." United States v. Banks, 540 U.S. 31, 36 (2003). Second, "even when executing a warrant silent about that, if circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in." Id. at 36-37. That is, "[e]xigent circumstances [may] ar[i]se during staging for the entry" sufficient to permit a no-knock entry. United States v. Peterson, 353 F.3d 1045, 1049 (9th Cir. 2003). Third, Supreme Court precedent "require[s] only that police `have a reasonable suspicion . . . under the particular circumstances' that one of [the three] grounds for failing to knock and announce [set out in Richards] exists, and [that precedent] acknowledge[s] that `this showing is not high.'" Hudson, 547 U.S. at 589 (quoting Richards, 520 U.S. at 394) (original alterations omitted). Fourth, under the futility exception, officers are not required to knock and announce prior to entering a residence where there is reasonable suspicion that an occupant has ascertained that the police are outside that residence. Peterson, 353 F.3d at 1049.
The Court will discuss Plaintiffs' knock-and-announce theory for the Remaining Individual Defendants separately, starting with Defendant Hale.
As set out in the Court's finding of primary facts, the Court has found by a preponderance of the evidence that Dicharry began to open the door to Plaintiffs' Residence without knocking while simultaneously saying "Sheriff's Office." This is obviously not a knock-and-announce entry of the sort the Fourth Amendment ordinarily requires. However, for purposes of discussing Defendant Hale, there is no need to decide whether Dicharry was excused from making a no-knock entry due to one of the three grounds set out in Richards. Even assuming that Dicharry's entry violated the Fourth Amendment — and irrespective of whether Defendant Martinez might be held liable for a knock-and-announce violation, Defendant Hale may not be held liable for such a violation (under Plaintiffs' theory) unless he integrally participated in it.
Under Ninth Circuit precedent, "[i]ntegral participation . . . . require[s] some fundamental involvement in the conduct that allegedly caused the violation," although "each officer's actions [need not] themselves rise to the level of a constitutional violation." Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (internal quotation marks and original alterations omitted). It is Plaintiffs' burden to prove Defendant Hale's integral participation in the no-knock entry. See Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002); see also Dubner v. City & Cty. of San Francisco, 266 F.3d 959, 965 (9th Cir. 2001) (explaining, in the context of a Fourth Amendment claim brought pursuant to § 1983, "[t]he plaintiff still has the ultimate burden of proof," even if in some circumstances a burden of producing evidence is imposed on the defendant).
The Court can only speculate whether Defendant Hale — to this day — has personal knowledge that any member of the Stack entered Plaintiffs' Residence without performing a satisfactory knock and announce. The Court has found that Defendant Hale was present at some or all of the Briefing; he was to deploy a flash-bang to the rear of Plaintiffs' Residence; the Stack entered Plaintiffs' Residence through the front door; and Defendant Hale did not see this entry. However, (i) Plaintiffs have introduced no evidence Defendant Hale agreed to participate in a plan that called for making a no-knock entry, and (ii) Plaintiffs have identified no evidence from which the Court can find that Defendant Hale had advance (or even contemporaneous) knowledge of Dicharry's method of entry, let alone that Defendant Hale had any opportunity to physically stop Dicharry or verbally object. For the avoidance of doubt, the Court finds it is clear that Plaintiffs have failed to show that Defendant Hale integrally participated in a knock-and-announce violation in connection with the entry into Plaintiffs' Residence.
It is unclear from Plaintiffs' Proposed Findings whether they seek to impose liability on Defendant Martinez for entering Plaintiffs' Residence without knocking and announcing, for failing to stop Dicharry from doing so, or both. The Court does not understand Plaintiffs to argue that Defendant Martinez caused Dicharry to make a no-knock entry by saying "compromised" during the approach. However, even if Plaintiffs had made such an argument, no matter how you slice it, in order for Defendant Martinez to be held liable for a no-knock entry, he must not have had reasonable suspicion that any of the three Richards grounds were present. The Court finds that Defendant Martinez had reasonable suspicion that a knock-and-announce entry would be futile.
It will be helpful to review some specific testimony relating to the approximately twenty second period between the deployment of the flash-bang and the shooting of Krizzy. Defendant Martinez testified as follows: "When we were walking up, this was one part I vividly remember. I remember seeing a body quickly go from the east to the west across an oval glass that's affixed to the door, that's part of the door. I remember seeing a body quickly go from one side to the other." (ECF No. 122 at 87:16-20.) This is consistent with the following testimony from Plaintiff Potter: after Plaintiff Potter heard a "loud boom," but before his "door swung open" and "police officers in tactical uniforms with guns drawn" entered his home, Plaintiff Potter "got up and was walking through the front room." (ECF No. 123 at 148:18-149:25.) After seeing a body through the oval glass, Defendant Martinez said "compromised" and explained that
(ECF No. 122 at 88:18-25.) To avoid any doubt, the Court credits the testimony of Defendant Martinez and Plaintiff Potter set out above in this paragraph.
The Court is mindful of three other points. First, it is undisputed that Plaintiffs' Residence does have oval shaped glass in its front door. Second, Plaintiff Potter described the glass's appearance as "clouded, etched, I guess you would say." (ECF No. 123 at 163:2). This is consistent with Defendant Martinez's own ambivalent response, when asked if "that oval is . . . a frosted glass . . . not a clear glass." (ECF No. 122 at 105:20-21.) Defendant Martinez's response was as follows: "I don't know if it's frosted, but I know it wasn't see-through, completely transparent, yeah." (ECF No. 122 at 105:22-23.) Third, from his vantage point, Defendant Martinez could not tell whether the person he saw was male or female and could not see that person's face.
The reality is this: if it were absolutely certain that an occupant of Plaintiffs' Residence saw the Stack approaching in tactical uniforms, and if it were also absolutely certain that that occupant recognized the Stack as law enforcement officers, it would be absolutely certain that one of the three exigent circumstances described in Richards would be present: futility. In explaining the futility standard, the Ninth Circuit put it this way: "Just as one cannot close a door that is already closed, one cannot `announce' a presence that is already known." Peterson, 353 F.3d at 1049. Announcement in such circumstances is "futile" within the meaning of Richards regardless of whether the person who has detected the officers is suspected of any wrongdoing. See id. at 1047-49 (finding futility where officers staging to execute a warrant for Mr. Peterson's home were recognized by Mr. Edwards, the boyfriend of Mr. Peterson's housemate).
However, as the Supreme Court has made repeatedly clear, the Fourth Amendment "require[s] only that police `have a reasonable suspicion . . . under the particular circumstances' that one of these grounds for failing to knock and announce exists, and [the Supreme Court] ha[s] acknowledged that `[t]his showing is not high.'" Hudson, 547 U.S. at 590 (emphasis added) (quoting Richards, 520 U.S. at 394). The Court finds this standard is easily met here. Plaintiff Potter was able to recognize the Stack members entering his home as police officers by their appearance. Sure, it is possible that the person on the other side of the glass did not look through it, just as it is possible that the person did look through it but — for any number of reasons — did not see the Stack.
For the sake of completeness, the Court will address two additional points before proceeding. In Plaintiffs' Proposed Findings, Plaintiffs suggest this Court should find as follows: "Defendants created a situation where they alerted Plaintiff Potter that they were at the house, acknowledged their actions would cause the dogs to bark, but then claimed that they cannot comply with the knock and announce requirement because their presence was detected." (ECF No. 134 at 24.) First, the implication seems to be that, under Fourth Amendment precedent, Defendant Martinez is barred from arguing there is reasonable suspicion that there were exigent circumstances sufficient to excuse a no-knock entry if the exigent circumstances were somehow the result of bad tactics.
The broader plan called for the Stack to make it to the front door of Plaintiffs' Residence undetected. Plaintiffs liken the use of a flash-bang to accomplish this goal to another case where a police officer decided to shoot multiple shotgun blasts outside a residence to stop dogs from barking for fear the sounds of barking would alert the occupants of the residence to the search team's presence. The Court will discuss this case, San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose ("Hells Angels"), 402 F.3d 962 (2005), later in this Opinion. It is sufficient to say that, if a police officer is worried that loud sounds outside a home will give him away, substituting shotgun blasts for dog barking makes little sense. However, Plaintiffs' criticism is too facile.
Here, Defendant Martinez's plan called for reducing the chance the Stack would be seen while making their way from the street to the front door of Plaintiffs' Residence over what has been described (without contradiction) as a long drive way. Indeed, it seems to have taken the Stack approximately 20 seconds to do this. The plan called for diverting the attention of persons inside Plaintiffs' Residence to the opposite side of Plaintiffs' Residence (away from the Stack's approach) by making an unexpected, loud sound on that side of the home using a flash-bang grenade set off by an officer trained in its use. Having heard the explanation for why and how this was to be done, the Court simply does not agree that this was an irrational, unreasonable, or dangerous thing to do.
The parties disagree whether the dog management plan ultimately devised by Defendant Martinez is sufficient under Hells Angels. The Court agrees with Defendants that it is sufficient. While there may be other ways to find that neither of the Remaining Individual Defendants may be held liable under Plaintiffs' second theory of liability for their First Cause of Action, the Court concludes this is the most efficient way to address this theory of liability. To understand why this is so, the Court will discuss a few preliminary points. After this discussion, the Court will examine Hells Angels. The Court will then explain its conclusion regarding the adequacy of Defendant Martinez's plan.
The Court will make four preliminary points before examining the Ninth Circuit's opinion in Hells Angels. First, Plaintiffs' Proposed Findings contains the following recommended language:
(ECF No. 134 at 26 (original alterations omitted).) This suggests Plaintiffs believe that Krizzy would have died irrespective of whether Defendant Martinez developed a dog management plan that (in their view) satisfied the lessons of Hells Angels. If this is what Plaintiffs are driving at, it is hard to see how Krizzy's death could be caused by a Fourth Amendment violation arising from the supposed failure to develop a Hell Angels-compliant plan, as this conduct would not be the cause of the complained-about seizure.
Second, "[i]n a civil case under 42 U.S.C. § 1983 . . . the plaintiff carries the ultimate burden of establishing each element of his or her claim[.]". See Pavao, 307 F.3d at 919. It seems Plaintiffs did not anticipate the Court might conclude — as it has — a no-knock entry took place but, nevertheless, conclude that neither of the Remaining Individual Defendants could be held liable for this. Unfortunately, this leaves the Court to wonder whether Plaintiffs believe their own dog management theory of liability is viable at this point. However, "[a] federal district court judge `has a limited and neutral role in the adversarial process, and must be wary of becoming advocates who comb the record of previously available evidence and make a party's case for it.'" Breining v. Ocwen Loan Servicing, LLC, No. 2:13-cv-02441-TLN-DB, 2018 WL 1535532, at *8 (E.D. Cal. Mar. 29, 2018) (original alterations omitted) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998)). "Instead, the burden is on the parties, through their attorneys, to advance their case by developing legal arguments and martialing evidence at the appropriate times." Id. (citing Greenlaw v. United States, 554 U.S. 237, 243-44 (2008)); see Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005) ("Perhaps the broadest and most accepted idea is that the person who seeks court action should justify the request, which means that the plaintiffs bear the burdens on the elements in their claims.") (emphasis added) (quoting C. Mueller & L. Kirkpatrick, Evidence § 3.1, p. 104 (3d ed. 2003)). From these principles, the Court holds that a plaintiff in a civil bench trial in federal district court cannot succeed on a § 1983 claim where that plaintiff has failed to coherently articulate a theory of liability that would require judgment be entered in his favor on the facts as the district court finds them. Accordingly, the Court independently concludes that Plaintiffs have failed to meet this burden with respect to this theory of liability, irrespective of whether Defendant Martinez's plan satisfies Hells Angels.
Third, for the sake of completeness and finality, the Court sees no point in being coy about its conclusion that Defendant Martinez's plan satisfied Hells Angels. Here, however, the Court emphasizes that it is making a finding with respect to the Modified Dog Management Plan. Plaintiffs have not argued that the Original Dog Management Plan runs afoul of Hells Angels. Accordingly, following the principles set out in the preceding paragraph, Plaintiffs have conceded the point for purposes of this trial.
Fourth, resolving the Hells Angels question with respect to the Modified Dog Management Plan has the added benefit of efficiently resolving Plaintiffs' second theory of liability.
The Hells Angels litigation arose "out of the simultaneous execution of search warrants at the residences of members of the Hells Angels, and at the Hells Angels clubhouse on January 21, 1998." Hell Angels, 402 F.3d at 965. As relevant here, the plaintiffs brought Fourth Amendment claims pursuant to 42 U.S.C. § 1983 in connection with the killing of three dogs at two of the searched residences — the Vieira residence and the Souza residence. Id. The case came to the Ninth Circuit on an appeal from an order of the district court denying their motions for qualified immunity. Id. at 966. Viewing the facts through the familiar summary judgment lens, the Ninth Circuit affirmed the district court concluding that the relevant officers were not entitled to qualified immunity in connection with the shooting of the dogs. See id.
Ultimately, the Ninth Circuit's teachings as to dog management plans can be succinctly set out as follows: The officers in question "created an entry plan designed to bring them into proximity of the dogs without providing themselves with any non-lethal means for controlling the dogs." Id. at 977 (internal quotation marks omitted). "The officers, in effect, left themselves without any option but to kill the dogs in the event they — quite predictably — attempted to guard the home from invasion." Id. (internal quotation marks omitted). However, "[a] reasonable officer should have known that to create a plan to enter the perimeter of a person's property, knowing all the while about the presence of dogs on the property, without considering a method for subduing the dogs besides killing them, would violate the Fourth Amendment." Id. at 978. Consequently, "the failure to develop any realistic non-lethal plan for dealing with the dogs is simply not the type of reasonable mistake in judgment to which a court should give deference in determining whether the officers are entitled to qualified immunity." Id.
Plaintiffs suggest that "[t]he present case is eerily similar to Hells Angels in that in both cases the officers knew of dogs at both search locations and failed to plan for any non-lethal methods of incapacitation." (ECF No. 134 at 36:18-19.) Having carefully reviewed Hells Angels and the evidence submitted at trial in this case, the Court finds this suggestion to be a gross mischaracterization. Rather, in Hells Angels, as in the instant case, at least some members of the search teams knew they were likely to encounter dogs during the course of executing a warrant, a plan of some sort was devised with respect to handling the dogs, and, ultimately, dogs were shot. The similarities end there. It is unnecessary to recite the underlying facts of Hells Angels here to understand the takeaway from that case as it relates to dog management plans. In short, as relevant here, Hells Angels stands for the proposition that where officers have sufficient advance notice to expect dogs may be present during the execution of a search warrant, non-lethal means for controlling the dogs should not only be considered, they should be available to an officer tasked with controlling them, who should have a plan where it is realistic a non-lethal option might be effectively employed.
The Court concludes that Defendant Martinez's Modified Dog Management Plan is Hells Angels-compliant. Specifically, the Court finds (i) Defendant Martinez considered non-lethal means for controlling the dogs at Plaintiffs' Residence, (ii) Defendant Martinez had non-lethal means available to him, and (iii) the Modified Dog Management Plan was a plan under which it was realistic that Defendant Martinez might have employed one of these non-lethal options if appropriate to do so. The Court will address these in order, examining the first two together.
Defendant Martinez originally tasked a Stack member behind him with carrying a fire extinguisher. Ultimately, he changed his mind when approached by that Stack member (and possibly another person). On direct examination Defendant Martinez was specifically asked: "Since you declined the fire extinguisher, what was your specific plan in how to manage the dogs when you executed the search warrant?" (ECF No. 122 at 62:11-13.) He responded: "Since I was second in the stack, if appropriate and safe, I would have deployed some type of less-than-lethal option." (ECF No. 122 at 62:14-16.) Likewise, on cross-examination Defendant Martinez was specifically asked: "When you were told that the officers didn't want — did not want to carry [the fire extinguisher], did you consider other less than lethal options to use if you were to encounter the dogs?" (ECF No. 122 at 85:24-86:1.) Defendant Martinez answered in the affirmative and stated: "I carry pepper spray, a collapsible baton, and a Taser on my person, and I would have used one of those if appropriate and timely." (ECF No. 122 at 86:2, 4-6.) The Court credits Defendant Martinez's testimony set out in this paragraph. Consequently, the Court does not find Defendant Martinez's plan failed to consider "a method for subduing the dogs besides killing them[.]" Hells Angels, 402 F.3d at 978. Likewise, the Court does not find that Defendant Martinez's plan "provid[ed the entry team with no] non-lethal means for controlling the dogs." Id. at 977. Thus, two of the three components of Hells Angels dog management planning are satisfied.
With this in mind, the Court turns to the question whether, under the Modified Dog Management Plan, it was realistic that dogs present at Plaintiffs' Residence would not be shot or killed. The Court concludes the answer here is plainly "yes." Everyone knows now that Krizzy died during the episode in question. That is not the question under the Fourth Amendment. The question is was the plan realistic before it was executed. The Court determines that it was. The word "realistic" as used in Hells Angels is not drawn from a case. Accordingly, the Court understands it to be used in the ordinary sense. Merriam-Webster gives the pertinent definition of the adjective "realistic" as follows: "based on what is real rather than on what is wanted or hoped for: not impractical or visionary." Merriam-Webster, http://www.merriamwebster.com/dictionary/realistic (last visited August 14, 2018) (giving as an example "a realistic plan") (emphasis retained).
The Court finds it realistic that the first two officers in the Stack (including Defendant Martinez) would make it into Plaintiffs' Residence with sufficient time for Defendant Martinez to deploy one of his non-lethal options before either is set upon by a dog.
The Court's determination that Defendant Martinez's plan is realistic is also not changed by the facts that: (i) Defendant Martinez did not announce the change of plans to the entire Stack, (ii) Defendant Martinez opted for non-lethal means besides a fire extinguisher, or (iii) the plan called for the use of the flash-bang. There is nothing in Hells Angels that suggests a team-wide announcement must be made. As stated earlier, the Court finds the question, under Hells Angels, is whether the person tasked with dog management devised a plan giving him a realistic opportunity to control the dogs without shooting or killing them, viewed ex ante. The Court concludes that the answer in this case is "yes" for the reasons already stated in the preceding paragraph. Likewise, there is nothing in Hells Angels that mandates the use of a fire extinguisher or suggests that the non-lethal options Defendant Martinez had on his person were unrealistic options. Indeed, quite to the contrary, Hells Angels strongly implies that non-lethal options like a taser or pepper spray are precisely what the Ninth Circuit envisioned as appropriate. See Hells Angels, 402 F.3d at 969 & n.8. Finally, the Court doubts there is a right answer about how dogs as a species will react to a loud bang in the backyard. As it happens, within 20 seconds after the loud sound was made, Krizzy set upon a person who entered Plaintiffs' Residence without knocking before that person could get through the door. Is it realistic that a dog might behave otherwise? Certainly, the answer is "yes." Some dogs might continue on as if nothing happened, others might go towards the sound, others might find a preferred hiding place, still others may remain by their master's side, etc. Suffice it to say, the Court is not persuaded that what did happen was the only thing that could realistically have happened.
Lastly, the Court would note that all of the foregoing analysis has put to the side that the Court has found an exigent circumstance developed after the plan was made and in the progress of being executed. Nothing in Hells Angels suggests that a realistic plan can never go awry and that officers who have developed a realistic dog management plan are barred from making decisions in the heat of the moment to respond to exigencies.
Consequently, for the reasons set forth above, the Court concludes that the Modified Dog Management Plan was consistent with the teachings of Hells Angels. Accordingly, neither of the Remaining Individual Defendants may be held liable under this theory of liability.
For the reasons set forth above, the Court makes the following ultimate conclusions with respect to Plaintiffs' First Cause of Action:
Plaintiffs' Third Cause of Action is a Fourth Amendment claim seeking to impose liability on the City for the shooting death of Krizzy under Monell. Before proceeding, the Court will first briefly give an overview of Monell liability, which the Court will cross-reference in connection with Part II of this opinion relating to the seizure of the Items.
42 U.S.C. § 1983 provides in pertinent part:
In Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), the Supreme Court held that "[l]ocal government entities are considered `persons' for purposes of § 1983[.]" Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006). Consequently, "[a] municipality or other local government may be liable under this section if the governmental body itself `subjects' a person to a deprivation of rights or `causes' a person `to be subjected' to such deprivation." Connick v. Thompson, 563 U.S. 51, 60 (2011). However, in Monell, the Supreme Court also "made clear that the municipality itself must cause the constitutional deprivation and that a city may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior." Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992). That is, "under § 1983, local governments are responsible only for `their own illegal acts.'" Connick, 563 U.S. at 60 (emphasis retained) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)).
Accordingly, under Monell, "[p]laintiffs who seek to impose liability on local governments under § 1983 must prove that `action pursuant to official municipal policy' caused their injury." Id.; see also Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016) (en banc) ("The first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.") (internal quotation marks omitted). "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Connick, 563 U.S. at 61. "These are `action[s] for which the municipality is actually responsible.'" Id. (quoting Pembaur, 475 U.S. at 479-480).
In sum, a plaintiff may establish municipal liability under section 1983 in the following three ways:
Gillette, 979 F.2d at 1346-47 (citations and internal quotation marks omitted).
The Court will now turn briefly to Plaintiffs' theories of liability for their Third Cause of Action. In Plaintiffs' Proposed Findings, Plaintiffs seem to be advancing two (semi-discreet) theories of liability. However, there is simply no need to discuss them in detail or determine the full extent of the overlap between these theories. Simply put, it is pellucidly clear that each theory turns on the Court concluding that Defendant Martinez did not develop a Hell Angels-compliant dog management plan. (See ECF No. 134 at 44-45.) The Court has already concluded the Modified Dog Management Plan satisfies Hells Angels. Plaintiffs' theories of liability fail for this reason.
For the reasons set forth above, the Court makes the following ultimate conclusions with respect to Plaintiffs' Third Cause of Action:
As stated at the outset, the second part of this action deals with the Items seized from Plaintiffs' Residence on March 24, 2011. Plaintiffs' First Amended Complaint contains a single cause of action relating to the Items — the Second Cause of Action. ("the FAC", ECF No. 22.) The Second Cause of Action is a Fourth Amendment Monell claim brought against the City. (ECF No. 22 at 6-7.) The FAC contained the following factual allegations:
(ECF No. 22 at ¶ 34 (emphasis retained).) Furthermore, the FAC asserted that the City's "policy that they will not release property seized, unless the person arrested with the property can prove that it is lawfully their property" caused a Fourth Amendment violation — the non-return of the Items by the City, despite Plaintiff Potter never being criminally charged in connection with the Items. (ECF No. 22 at ¶ 56.)
So what does the Fourth Amendment have to say about this policy? Both Plaintiffs' trial brief and Plaintiffs' Proposed Findings contain the following language:
(ECF Nos. 134 at 38; ECF No. 102 at 18-19.)
Defendants' position is rather straightforward: the sole issue tried with respect to the Items was whether "[t]he City of Red Bluff's policy regarding release of the property applicable to this case" caused the destruction or non-return of the Items seized from Plaintiffs' Residence. (ECF No. 133 at 9-10.) In Defendants' view, "Plaintiffs failed to show that this policy is unconstitutional on its face," and have not otherwise shown the existence of a practice or custom relating to return (or non-return) of property held by the City that caused the destruction or non-return of the Items. (ECF No. 133 at 10.) Moreover, even assuming the City had a custom or policy regarding non-return or destruction of seized items that was problematic in the abstract, Defendants' argue Plaintiffs have not shown they actually sought to prove their ownership, let alone that they were "denied return of the items due to a refusal on the part of the police department." (ECF No. 133 at 11.)
It proves unnecessary for the Court to make primary (or evidentiary) factual findings as the Court did in connection with the shooting of Krizzy for two reasons which, together, require judgment be entered against Plaintiffs on their Second Cause of Action. First, having reviewed the authorities pin-cited by Plaintiffs, it is immediately obvious that "the law" that is being discussed in the relevant portions of those cases is not the Fourth Amendment. Second, there is no other theory of liability or cause of action relating to the Items properly before the Court besides the one described in Section III.A. of this opinion. The Court will discuss these reasons in order.
Plaintiffs contend the government has abandoned its investigation into the Items without bringing charges against Plaintiff Potter relating to the Items. This is not in dispute. Further, Plaintiffs argue that in this circumstance, "[t]he law states . . . the person from whom the property is seized is presumed to have a right to its return, and the government has the burden of demonstrating that it has a legitimate reason to retain the property." (ECF No. 134 at 38; ECF No. 102 at 18-19.) Moreover, Plaintiffs state that at this stage, irrespective of the legality of the search and seizure, "the government must justify its continued possession of the property by demonstrating that it is contraband or subject to forfeiture." (ECF No. 134 at 38; ECF No. 102 at 18-19.)
Although the four cases pin-cited by Plaintiffs make such statements, there is, nevertheless, a fundamental problem with Plaintiffs' argument: "the law" being discussed in the pin-citations is not the Fourth Amendment. None of the pin-citations mention the Fourth Amendment. Indeed, the Fourth Amendment is never mentioned at all in three of the four cases. Rather, as the Court will explain, "the law" at issue is the law governing motions to return under Rule 41(g) of the Federal Rules of Criminal Procedure and an analogous equitable cause of action under the equitable or supervisory power of federal district courts over searches and seizures that are "federal" in nature.
A leading treatise explained as follows:
3A Charles A. Wright et al., Federal Practice and Procedure § 690 (4th ed. 2010). This is, of course, true in the Ninth Circuit. For example, United States v. Martinson, 809 F.2d 1364, 1369-70 (9th Cir. 1987), contains precisely the language that Plaintiffs quote as "the law" citing the same four cases (among others). Moreover, Martinson explained that "[a] district court has jurisdiction to entertain motions to return property seized by the government when there are no criminal proceedings pending against the movant." Martinson, 809 F.2d at 1366-67. However, "[s]uch motions are treated as civil equitable proceedings even if styled as being pursuant to" Rule 41. Id. at 1367.
Plaintiffs cannot obtain relief under their Fourth Amendment Monell claim arguing the City has not complied with law other than the Fourth Amendment. As noted earlier, it is a bedrock principle of civil litigation in federal courts that plaintiffs must show legal entitlement to the relief they request, unless Congress otherwise specifies. See Schaffer, 546 U.S. at 56-58. Congress has not displaced this default rule for claims brought pursuant to § 1983. See Pavao, 307 F.3d at 919. Consequently, Plaintiffs' failure to show their theory is a Fourth Amendment theory is a fatal flaw.
However, the problem with Plaintiffs' theory does not end there. Rule 41 motions to return, and their equitable analogs, are not available to every person who wants his alleged property returned irrespective of the circumstances of this search for and seizure of that property. Rather, the Ninth Circuit has made clear relief under the line of cases is only available for "federal searches leading to federal prosecutions and extends in its furthest reach to searches conducted by state law enforcement agencies with direct federal authorization." United States v. Huffhines, 986 F.2d 306, 308 (9th Cir. 1993). Plaintiffs have neither introduced evidence nor made an argument that there was any federal involvement in the search for or seizure of the Items.
As alluded to earlier, Plaintiffs' Submissions are not a model of clarity. It brings the Court no pleasure in pointing out these deficiencies. Indeed, the Court has gone out of its way to not discuss them unless it is material. However, there are prudential limits to shielding the feelings of attorneys. Unfortunately, they are reached here. It is clear the FAC's Second Cause of Action is a Monell claim that only names the City as a defendant. Equally clear, the FAC's Second Cause of Action challenges a specific city policy as it relates to the non-return or destruction of Items. For the Court to reach another theory of liability relating to the Items, Plaintiffs would have to amend the operative complaint under Rule 15 of the Federal Rules of Civil Procedure. Rule 15(a) allows an amendment prior to trial. This simply was not done. Similarly, a party may move to amend the pleading pursuant to Rule 15(b). However, this too "requires that one of the parties request an amendment." Crawford v. Gould, 56 F.3d 1162, 1169 (9th Cir. 1995). No such request has been made.
Nor is this a case where "an issue not raised by the pleadings is tried by the parties' express or implied consent[.]" Fed. R. Civ. P. 15(b)(2). This is abundantly clear from the parties' arguments in connection to Defendants' oral Rule 52(c) motion. Defense counsel's argument with respect to the Items clearly was addressing a Fourth Amendment Monell claim that challenged the non-return or destruction of the Items pursuant to policy. (See ECF No. 124 at 23:9-24:24.) Plaintiffs' counsel's somewhat meandering oral opposition with respect to the Items took more than eight pages of the trial transcript. (ECF No. 124 at 36:1-44:5.) However, having carefully re-reviewed this portion of the transcript, Plaintiffs' counsel seems to believe himself to be defending the theory of liability the Court has rejected rather than expounding on a new one.
It is true that Plaintiffs' counsel's opposition digresses into statements about whether Defendant Hale had probable cause to seize the Items in the first place. However, Plaintiffs' counsel seems to be attempting to parry an argument he believes Defense counsel has made, as this digression begins with the following sentence: "So let's talk about that because that's part of their motion here that they had probable cause to seize the items."
(ECF No. 124 at 41:20-42:3.)
In any event, Defense counsel's oral reply left nothing to chance:
(ECF No. 124 at 47:1-19.)
Accordingly, the only theory of liability before the Court relating the Items is the one the Court has rejected as not being a Fourth Amendment theory at all. Consequently, the Court cannot impose liability on Defendant Hale for allegedly seizing the Items without probable cause as Plaintiffs' suggest. Certainly, the Court cannot impose liability on the City for Hale allegedly seizing the Items without probable cause. To do either would violate "the well-established rule that a court may not, without the consent of all persons affected, enter a judgment which goes beyond the claim asserted in the pleadings." Crawford, 56 F.3d at 1168 (internal quotation marks and alterations omitted).
For the reasons set forth above, the Court makes the following ultimate conclusions with respect to Plaintiffs' Second Cause of Action:
For the foregoing reasons, the Court enters judgment as follows:
