JEFFREY S. WHITE, District Judge.
This matter comes before the Court upon consideration of the motion for partial summary judgment filed by Defendants City of Antioch, City of Antioch Police Department, Police Chief James Hyde, Officer Santiago Martinez, Jr., Officer Jason Vanderpool, Officer Jason Joannindes, Sgt. Thomas Fuhrmann and Does 1-100, inclusive (collectively "Defendants") and the cross motion for partial summary judgment filed by Plaintiffs Marvetia Lynn Richardson, Latoya Norman, Samonia Nelson-Calip and Lamona Nelson, as guardian ad litem for "KC," a minor (collectively "Plaintiffs"). Having considered the parties' pleadings, relevant legal authority, the Court HEREBY DENIES Defendants' motion for partial summary judgment and GRANTS Plaintiffs' cross motion for partial summary judgment.
On July 18, 2008, Plaintiffs filed their complaint alleging violations of 42 U.S.C. § 1983 against the City of Antioch, the Antioch Police Department and individual officers. Plaintiffs claim that Defendants violated their rights, specifically: (1) Fourth Amendment rights to be secure from unreasonable search and seizure, not to be subjected to excessive force during the course of an arrest, and the right not to be retaliated against for asserting Fourth Amendment rights; (2) Fourteenth Amendment rights not to be deprived of
Plaintiffs' claims arise from an incident that occurred in the early morning of June 7, 2007. On that date just before 1:00 a.m., the tenants living at 1947 Mokelumne Drive in Antioch, California, called the police department to complain about noise in the house. (Declaration of James V. Fitzgerald ("Fitzgerald Decl."), Ex. S (Declaration of Jason Vanderpool) at ¶ 2.) Several guests, including children, were staying with Plaintiff Marvetia Lynn Richardson ("Richardson"), an inspector with the San Francisco Police Department. (Declaration of Marvetia Lynn Richardson ("Richardson Decl.") at ¶¶ 2, 10; Declaration of Samonia Nelson ("Nelson Decl.") at ¶ 4; Declaration of KC ("KC Decl.") at ¶ 5; Declaration of Latoya Norman ("Norman Decl.") at ¶ 2; Declaration of Nolan Satterfield ("Satterfield Decl.") at ¶ 3.) Richardson, an African-American woman, owned the home in a predominantly White neighborhood in Antioch. (Richardson Decl. at ¶ 3.) On March 31, 2007, Richardson had served her upstairs tenants with a 30-day notice to quit and the tenants had contacted the police numerous times complaining about their alleged treatment in the house. (Id. at ¶¶ 5-9.) None of the previous visits had resulted in any further action. However, on June 7, 2010, the Antioch police responded to the tenants' 911 call to find the house filled with Richardson's guests: Latoya Norman, Ms. Norman's three young children who were three, five and eight, a family friend named Nolan Satterfield, Samonia Nelson, Richardson's girlfriend and her two daughters, who were six and fourteen, as well as a teenage cousin. The children and adults, with the exception of Richardson, were planning to go to Six Flags/Marine World the next morning. (Richardson Decl. at ¶ 11; Nelson Decl. at ¶¶ 4, 5; Norman Decl. at ¶¶ 2, 3; Satterfield Decl. at ¶ 3.)
Responding to the 911 call citing a fight or disturbance, the police arrived at the house at approximately 1:09 a.m. (Fitzgerald Decl., Ex. C; Ex. D (Declaration of Santiago Martinez) at ¶ 3.) The officers knocked on the door, were let in by one of the house guests, and witnessed the hostility between the house guests and the tenants. (Id., Ex. D at ¶ 3; Declaration of Quinton B. Cutlip ("Cutlip Decl."), Ex. 5 (Deposition of Jason Vanderpool) at 55:17-57:18.) Richardson was asleep in her bedroom at the time. (Richardson Decl. at ¶¶ 10-13; Norman Decl. at ¶¶ 5, 7.) The tenants complained that the guests, who were strangers to them, were making loud noises, preventing them from going to sleep, and threatening them. (Cutlip Decl., Ex. 5 at 58:14-25; 65:13-23.) At that point, one of the guests woke up Richardson who confirmed that the people in her home were indeed her invited guests. (Richardson Decl. at ¶ 13.) She also indicated that Nelson was her girlfriend. After an unpleasant exchange of words with the officers, Richardson requested that the officers leave her home and not return without a warrant. (Cutlip Decl., Ex. 5 at 68:21-69:17.)
The tenants left the house at 1:24 a.m. and were visibly upset. After calming them down, Officer Martinez started the audio recorder in his shirt pocket which recorded the rest of the incident. (Cutlip Decl., Ex. 6 at 134:16-21.) The tenants stated that the house guests had entered their room and threatened them and that they were scared. (Fitzgerald Decl., Ex. D at ¶ 9.) After the tenants left the home, it was relatively quiet from inside the house. (Cutlip Decl., Ex. 1; Ex. 11 at 16.) The officers asked the tenants for their version of events and inquired whether there might be firearms in the house due to Richardson's position as a police officer. (Fitzgerald Decl., Ex. I at 1-7.) The officers began to knock at the door to gain entry, but heard the house guests inside deny them access. (Cutlip Decl., Ex. 11 at 16; Fitzgerald Decl., Ex. G at 3.) The police thought they heard a vacuum cleaner start running in the house. (Cutlip Decl., Ex. 1; Fitzgerald Decl., Ex. G at 3.)
After the officers investigated whether there was another way into the house, spoke with the tenants, and knocked and announced several times, did they decide to enter the home without a warrant. (Cutlip Decl., Ex. 1.) The entry was made at 1:50 a.m., approximately 26 minutes after the tenants left the home. (Id.) Upon entry, the police tried to gather the house guests in one room. The audio tape of the incident reveals that the officers yelled at KC to wake up three times and to get up four times in rapid succession. (Id.) After 25 seconds, during which time KC was unresponsive, Officer Martinez ordered her arrested for "pretending to be asleep." (Id.; Ex. 6 at 163:14-164:15; 221:15-222:18.) There is evidence that Latoya Norman complained about being handled roughly by the officers and Richardson was tased in her home. (Fitzgerald Decl., Ex. G; Norman Decl. at ¶ 25; Richardson Decl. at ¶¶ 15-18.)
The Court shall address additional facts as necessary in the remainder of this order.
Summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). An issue is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if the fact may affect the outcome of the
A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Id. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir.1995)) (stating that it is not a district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
Both parties move for summary judgment regarding whether the Officer Defendants' second, warrantless entry was lawful. The Fourth Amendment guarantees citizens the right "to be secure in their persons ... against unreasonable ... seizures" of the person. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); U.S. Const. amend. IV. The ultimate test of reasonableness requires the court to balance the governmental interest that justifies the intrusion and the level of intrusion into the privacy of the individual. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1496 (9th Cir.1996). Overnight guests are afforded the same protections under the Fourth Amendment as owners of the home. Minnesota v. Olson, 495 U.S. 91, 98-100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). It is well established that "`searches and seizures inside a home without a warrant are presumptively unreasonable.'" LaLonde v. County of Riverside, 204 F.3d 947, 954 (9th Cir.2000) (quoting Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). The presumption, however, is not irrebuttable. Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir.2009). Exceptions are "narrow and their boundaries are rigorously guarded to prevent any expansion that would unduly interfere with the sanctity of the home." United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir.2005).
"There are two general exceptions to the warrant requirement for home searches: exigency and emergency." United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir.2005). The "`emergency' exception stems from the police officers' `community caretaking function' and allows them `to respond to emergency situations' that threaten life or limb; this exception does `not [derive from] police officers' function as criminal investigators.'" Hopkins, 573 F.3d at 763 (citing United States v. Cervantes, 219 F.3d 882, 889 (9th Cir. 2000) (emphasis added).) "By contrast,
Because it is undisputed that the Defendant Officers entered Richardson's home for the second time without a warrant, unless a recognized exception to that requirement justifies their entry, Plaintiffs can establish the violation of a constitutional right.
It is clear that an individual may waive his Fourth Amendment rights by giving voluntary and intelligent consent to a warrantless search. See id.; see also Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). In Georgia v. Randolph, the Supreme Court reiterated this rule: "The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained." 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (citations omitted). The Court, however, also held that, as between a wife's consent to a search of the family residence and her husband's refusal to consent, "a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him." Id. The cooperation of one occupant "adds nothing ... to counter the force of an objecting individual's claim to security against the government's intrusion into his dwelling place." Id. at 115, 126 S.Ct. 1515.
Here, there is no dispute that the tenants gave their consent to enter the house, but the guests and the homeowner herself refused to give their consent. Richardson had previously informed the Officers that they should not enter her home without a warrant. There is no dispute that her house guests reiterated that position when the Officers began to knock and announce their presence. There is no dispute that the Officers heard the occupants deny them admission and reiterate the need for a warrant to enter.
The Defendant Officers rely primarily on the emergency and/or exigency exceptions to the warrant requirement to assert they were justified in entering Richardson's home. Defendants argue that they were confronted by a "series of grave issues" and an "alarming situation" which "led them to objectively and reasonably believe that they needed to enter Richardson's home (1) to arrest certain felony suspects inside Richardson's home based on probable cause, consent and exigent circumstances, and (2) to prevent violence and restore order based on an emergency situation that required their immediate response." (Motion at 10.) Accordingly, without valid consent from the occupants of the home, the Defendant Officers rely on the need to prevent violence based on the emergency exception to the warrant requirement and the need to arrest and prevent escape of the felony suspects and to prevent the destruction of evidence based on the exigency exception to the warrant requirement.
Under the emergency doctrine, "law enforcement must have an objectively reasonable basis for concluding that there is an immediate need to protect others or themselves from serious harm." United States v. Snipe, 515 F.3d 947, 951-52 (9th Cir.2008). An action is considered reasonable under the Fourth Amendment, "regardless of the individual officer's state of mind, `as long as the circumstances, viewed objectively, justify [the] action.'" Brigham City, Utah v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) (emphasis added)). The officer's subjective motivation is irrelevant. Id. (citations omitted). The court is tasked with making the determination "whether or not the emergency exception applies in any given situation based on the totality of the circumstances, and, as with other exceptions to the warrant requirement, the Government bears the burden of demonstrating that the search at issue meets those parameters." Stafford, 416 F.3d at 1074.
Here, the Defendant Officers contend that they were faced with a set of circumstances that, taken all together, created an objectively reasonable basis for concluding there was an immediate need to protect others from serious harm. (See Fitzgerald Decl., Ex. D (Martinez Decl.) at ¶¶ 13, 14; Ex. I (Fuhrmann Decl.) at ¶¶ 7, 10; Ex. L (Fuhrmann Depo.) at 132:14-22; Ex. S (Vanderpool Decl.) at ¶¶ 9, 11.
In Brigham City, the Court found that the police made a lawful entry when they could see the forceful restraint of a minor, violence perpetrated against someone who was spitting up blood, and the officers' efforts to knock and announce could not be heard due to the loud party going on at the residence. 547 U.S. at 403, 126 S.Ct. 1943. However, in this matter, the only alleged victims were safely outside with the police and the officers took an additional 26 minutes to kick in the door of an otherwise silent home. Here, the Court finds that the Defendant Officers have failed to meet their burden of demonstrating, based on the facts viewed in the light most favorable to them, that the emergency exception applies based on the totality of the circumstances. See Stafford, 416 F.3d at 1074.
In the alternative, the Defendant Officers contend that the entry was justified in order to investigate a crime under the "exigent circumstances" exception to the warrant rule. Exigent circumstances obviating the requirement of a warrant can include "the need to assist persons who are seriously injured or threatened with such injury." Brigham City, 547 U.S. at 403, 126 S.Ct. 1943. "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Accordingly, "law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." Brigham City, 547 U.S. at 403, 126 S.Ct. 1943 (citing Mincey, 437 U.S. at 392, 98 S.Ct. 2408).
The exigency exception applies where police have probable cause and where "a reasonable person [would] believe that the entry ... was necessary to prevent physical harm to the officers or other persons.'" See LaLonde, 204 F.3d at 956 (citing McConney, 728 F.2d at 1199) (holding that a warrantless entry may be justified when "the officers have probable cause and are presented with exigent circumstances."); see also United States v. Prescott, 581 F.2d 1343, 1350 (9th Cir. 1978) ("[A]bsent exigent circumstances, police who have probable cause to arrest a felony suspect must obtain a warrant before entering a dwelling to carry out the arrest."). Exigent circumstances have been defined as an emergency situation requiring swift action to prevent physical harm to persons, serious property damage, the escape of a suspect, or destruction of evidence. People v. Ramey, 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333 (1976); see also McConney, 728 F.2d at 1199 (holding that exigent circumstances can also include "the destruction of relevant evidence."). "There is no litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers." Id. Again, the subjective motivations of the individual officers have no bearing on whether a particular seizure is considered reasonable under the Fourth Amendment. See Brigham City, 547 U.S. at 404, 126 S.Ct. 1943.
As the Court has already found, there was no exigency based on an imminent emergency as any imminency had dissipated by the passage of time, the security
Based on the record of undisputed facts, the Court finds that there was no reasonable or objective apprehension of exigency. Without consent, emergency or exigency, there no cognizable exception to the warrant requirement permitting the Defendant Officers access to the home without a valid warrant. Accordingly, the Court DENIES the Defendants' motion for summary adjudication on the Fourth Amendment claim to be free from unreasonable search and seizure and GRANTS Plaintiffs' motion for summary adjudication on the same claim.
Defendants assert that they are qualifiedly immune from suit on Plaintiffs' Section 1983 claims. The doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate any clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009).
Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The privilege is an immunity from suit rather than a mere defense to liability. Id. Accordingly, courts have repeatedly stressed "the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam). Because qualified immunity is an affirmative defense, the burden of proof initially lies with the official asserting the defense. Harlow, 457 U.S. at 812, 102 S.Ct. 2727.
In Saucier v. Katz, the Supreme Court stated that a court called upon to rule on the issue of qualified immunity must ask the following threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,
A constitutional right is clearly established for purposes of qualified immunity if "[t]he contours of the right [are] sufficiently clear that [at the time the alleged unlawful action is taken] a reasonable official would understand that what he is doing violates that right." Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful...; but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640, 107 S.Ct. 3034. However, government officials are not "charged with predicting the future course of constitutional law." Ostlund v. Bobb, 825 F.2d 1371, 1374 (9th Cir.1987).
A court should then address the question "whether, under that clearly established law, a reasonable [official] could have believed the conduct was lawful." Id. This inquiry must be undertaken in the light of the specific context of the case. Saucier, 533 U.S. at 194, 121 S.Ct. 2151. In deciding whether the plaintiff's rights were clearly established, "[t]he proper inquiry focuses on whether `it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted' ... or whether the state of the law [at the time] gave `fair warning' to the officials that their conduct was unconstitutional." Clement v. Gomez, 298 F.3d 898, 906 (9th Cir.2002) (quoting Saucier, 533 U.S. at 202, 121 S.Ct. 2151). Although the inquiry is undertaken in the specific context of the case, the fact that no case has found a constitutional violation under the exact facts alleged does not imply that the law is not clearly established. Phillips v. Hust, 477 F.3d 1070, 1079-1080 (9th Cir.2007). When there is no specific, binding precedent on the exact question, the Ninth Circuit looks "to all available decisional law, including the law of other circuits and district courts." Inouye v. Kemna, 504 F.3d 705, 714 (9th Cir.2007).
Here, the Court has found that the Defendant Officers violated Plaintiffs' constitutional rights to be secure in their persons and effects against unreasonable search and seizure under the Fourth Amendment. There is no question that the "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton, 445 U.S. at 590, 100 S.Ct. 1371. Although the presumption is not irrebuttable, the exceptions are "narrow and their boundaries are rigorously guarded to prevent any expansion that
Defendants move for summary adjudication on Plaintiffs' tenth cause of action for false arrest for the arrests of Latoya Norman and Lamona Nelson. Defendants contend that the arrests based on the Penal Code for terrorist threats, vandalism and possession of stolen property were valid and that Plaintiffs' claim for false arrest should be dismissed. Plaintiffs argue that the tenants' version of events was inherently unbelievable due to the numerous previous complaints about which the police officers were aware. Because the Court cannot weigh the credibility of witnesses at summary judgment and finds the material facts are reasonably disputed, the Court DENIES the motion as to this claim. See Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997) ("In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party.").
Defendants contend that there is no evidence that the police officers discriminated against Plaintiffs based on race or sexual orientation. Plaintiffs contend that the police officers became discernably more rude after Richardson indicated that Samonia Nelson was her girlfriend. Richardson also testified that the officers made racist comments, particularly about her ownership of the home, and behaved in a racist manner. Again, because the Court cannot weigh the credibility of witnesses at summary judgment and finds the material facts are reasonably disputed, the Court DENIES the motion as to this claim. See id.
Defendants contend that there is no evidence in the record to support the allegation that they retaliated against Plaintiff Richardson because of her speech or that the officers reacted to Richardson's previous admonitions to them to retrieve a warrant before entering her home. Plaintiff contends that the officers reacted to her admonitions negatively and retaliated against based on her speech. Once again, because the Court cannot weigh the credibility of witnesses at summary judgment and finds the material facts are reasonably disputed, the Court DENIES the motion as to this claim. See id.
Defendants argue that the claims against Officer Jason Joannindes should be dismissed because there is no evidence that he directly participated in any of the alleged unlawful activity. However, Plaintiffs allege that Officer Joannindes was at the residence, unlawfully entered the home without a warrant, and was an "integral participant" in the alleged violations. See Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir.2004). Plaintiffs further contend that Officer Joannindes was involved in the treatment of Latoya Norman who pleaded for Defendants to be careful with her previously injured arm. Due to the presence of disputed material facts, the Court DENIES Defendants' motion as to Officer Joannindes.
Plaintiffs contend that KC was arrested without probable cause in violation of the Fourth Amendment. "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." Dubner v. City and County of San Francisco, 266 F.3d 959, 965 (9th Cir.2001) (citing Larson v. Neimi, 9 F.3d 1397, 1400 (9th Cir.1993)). The test for whether probable cause exists is whether "at the moment of arrest the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." United States v. Bernard, 623 F.2d 551, 559 (1980) (internal quotation and citations omitted). A determination as to whether probable cause exists requires a "practical, commonsense" decision based on the totality of the circumstances, including the veracity, basis of knowledge and reliability of the information provided by informants. See United States v. Jensen, 425 F.3d 698, 704 (9th Cir.2005) (citing Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
The Court finds that the undisputed circumstances of KC's arrest fail to provide sufficient facts to establish probable cause for a reasonable officer to order her arrest. In Mackinney v. Nielsen, the Ninth Circuit found that an arrest for a momentary refusal to cooperate with police officers was insufficient to create adequate grounds for police intrusion. 69 F.3d 1002, 1006 (9th Cir.1995). In Mackinney, the plaintiff was only momentarily noncompliant with the police officers' order to refrain from drawing on the sidewalk with chalk. Id. Similarly here, upon the police officers' entry into an otherwise quiet home, at nearly 2:00 in the morning, after children had been put to sleep at least thirty minutes earlier, the officers arrested KC for "pretending to be asleep." No more than 25 seconds elapsed from the time the officers announced their presence in KC's bedroom and the time she was arrested for failing to comply with their demands. Just as the court found in Mackinney, although "people must obey the police in most situations, ... the police overreacted to [plaintiff's] momentary disobedience." 69 F.3d at 1006. Accordingly, the Court finds the arrest of KC was objectively unreasonable and GRANTS Plaintiffs' motion for partial summary judgment on this claim. Based on clearly established precedent, the Court also finds that Defendants are not entitled to qualified immunity for the arrest of KC. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151.
California Civil Code Section 52.1 provides a private right of action for damages against any person who "interferes [or] attempts to interfere by threats, intimidation, or coercion" with the exercise or enjoyment of a legal right. Section 52.1 requires "an attempted or completed act of interference with a legal right, accompanied by a form of coercion." Jones v. Kmart Corp., 17 Cal.4th 329, 334, 70 Cal.Rptr.2d 844, 949 P.2d 941 (1998).
The Court has found that the entry into the house as well as the arrest of KC were unconstitutional, the only issue is whether the entry and arrest were made attendant with threats, intimidation or coercion. The test is whether a reasonable person, standing in the shoes of the plaintiff, would have been intimidated by the actions of the defendants and have perceived a threat of violence. See Winarto v. Toshiba America Electronics Components, Inc., 274 F.3d 1276, 1289-1290 (9th Cir.2001) (citing Judge Donna J. Hitchens & Robert D. Links, California Civil Procedure: Civil Rights Litigation § 3:4). From a review of the contemporaneous tape recording of the incident, including the police officers' kicking in the front door, screaming at KC, roughly handling Plaintiff Latoya Norman and using a taser
For the foregoing reasons, the Court DENIES Defendants' motion for partial summary judgment and GRANTS Plaintiffs' cross-motion for partial summary judgment.
