IRMA E. GONZALEZ, Chief Judge.
Presently before the Court is Defendants' motion for summary judgment. [Doc. No. 41.] For the reasons set forth below, the Court
On Saturday, October 31, 2009, Plaintiff William Cody Carter ("Carter" or "Plaintiff"); his fiancée, Megan Damico ("Megan"); Megan's sister, Jalyn Damico ("Jalyn"); Virginia Mula, and Judah Stauffer planned to spend the evening at the Coyote Bar & Grill in Carlsbad (the "Coyote"). Before going to the Coyote, the group met at Carter's apartment, where Carter consumed approximately ten ounces of Jack Daniel's whiskey mixed with approximately twenty ounces of cola. [Defs.' MSJ, at 2; Carter Dep., at 10-12.]
Once they arrived at the Coyote, Carter was denied entrance to the bar. Still in the bar's parking lot, Carter complained loudly about not being allowed in and then left for his apartment, accompanied by Megan, Jalyn, and Mula. [Megan Damico Dep., at 63:11-64:23, 66:1-67:24, 69:1-24; Jalyn Damico Dep., at 53:2-9.] The group walked out of the parking lot along the western boundary of Rotary Park, cut through the grass, and headed east on Carlsbad Village Drive, toward the railroad tracks. [Pl.'s Opp'n, at 2; see Defs.' MSJ, at 2.]
As it was Halloween, the members of the group were all dressed in costumes. Carter, a former Marine, was dressed as a Marine and wore camouflage pants, a T-shirt, and a military "cover" on his head. At the time of the incident, Carter was twenty-five years old, six feet four inches tall, and weighed approximately 170 pounds. [Carter Decl., ¶ 1.]
Several independent witnesses observed the incident, though some of their recollections differ slightly. As Carter, Megan, and Jalyn walked, they cried and yelled at each other, and it appeared they were engaged in a verbal altercation. [See Sarah Maruccia Dep., at 15:4-12, 16:19-23, 17:6-14; Mark Maruccia Dep., at 28:16-29:15; 32:15-33-1; Varela Dep., at 41:22-42:10, 82:14-20; Cangiamilla Dep., at 38:11-16, 45:5-22.] Megan and Jalyn repeatedly tried to calm Carter, but he responded each time by yelling, flailing his arms about, and trying to pull away from his friends. [See Varela Dep., at 40:18-24, 46:7-17, 82:14-20; Mark Maruccia Dep., at 28:16-29:15; 32:15-33-1; Cangiamilla Dep., at 11:1-6, 17:1-15, 24:14-24. But see Doyle Dep., at 47:15-18 (rather than trying to leave, Carter was following his companions).] As he walked, Carter may have thrown the head cover he was wearing, a set of keys, or other items to the ground and picked some of the items back up. [See Mark Maruccia Dep., at 39:21-41:14; Sarah Maruccia Dep., at 24:17-26:1, 31:3-23.]
At approximately 10:15 p.m., two officers of the Carlsbad Police Department—Officer Scott Meritt ("Officer Meritt") and Corporal Richard Galanos ("Cpl. R. Galanos")—and one police explorer—Explorer Brendan Galanos ("Explorer B. Galanos"), Cpl. R. Galanos's son—were on foot patrol, walking the 3000 block of Washington Street when "their attention was drawn to an argument between an agitated male (plaintiff) and several others who were trying to calm him." [Defs.' MSJ, at 3; see Meritt Decl., ¶ 6; Cpl. R. Galanos Decl., ¶ 6.] Officer Meritt saw Carter yelling at a female and grabbing her hands; it appeared he was attempting to take an item from her.
The officers did not see Carter strike anyone. They nonetheless grew concerned that he might harm the female or continue to cause a disturbance, and they approached Carter. [Meritt Decl., ¶ 6; Cpl. R. Galanos Decl., ¶ 6.]
When the officers approached, Carter, Megan, and Jalyn were still yelling at one another. [Megan Damico Dep., at 79:19-20, 100:11-17, 128:14-129:5; Varela Dep., at 51:2-18 (noting that Carter was yelling "at the top of his lungs").] Megan heard one of the officers yell, "Stop." [Megan Damico Dep., at 71:13-25, 73:23-74:4, 77:12-25.] When the officers first came into her view, Megan saw they were wearing police uniforms and badges and recognized them as police officers. [See id. at 76:23-77:11.] Megan told the officers that Carter had been drinking and she was taking him home. [Id. 95:13-18, 126:8-16.]
There is some dispute as to exactly what occurred next. According to the officers, Cpl. R. Galanos shined his flashlight on Carter and ordered him to sit on the curb. [Cpl. R. Galanos Decl., ¶ 7; Officer Meritt Decl., ¶ 7; Explorer B. Galanos Dep., at 40:5-14.] Carter ignored the officers, and he, Megan, and Jalyn continued yelling at one another. [See Officer Meritt Decl., ¶¶ 6-7; Cpl. R. Galanos Decl., ¶¶ 6-7; Megan Damico Dep., at 98:1-100:25.] Plaintiff yelled, "Why?" several times. [Cpl. R. Galanos Dep., 56:8-57:2.] Based on Plaintiff's inability to follow instructions, his yelling, and his agitated behavior, Officer Meritt and Cpl. R. Galanos concluded that Plaintiff was very drunk. [Meritt Decl., ¶ 7; Cpl. R. Galanos Decl., ¶ 7.]
When Carter began to walk away from the officers, Cpl. R. Galanos yelled, "Hey, stupid!" [Explorer B. Galanos Dep., at 34:11-13, 39:5-25; see Cpl. R. Galanos Dep., at 102:8-18.] At that point, Carter turned to face the officers, cocked his right arm back, and took a "throwing stance." [Meritt Decl., ¶ 7. But see Doyle Dep., 33:22-34:24 (stating she did not see Carter "rear back like he was going to throw something"); Cangiamilla Dep., at 28:21-29:4 (same).] Officer Meritt and Cpl. R. Galanos observed an unidentified object in Carter's right hand (later determined to be a set of keys). [Meritt Decl., ¶ 7; Cpl. R. Galanos Decl., ¶¶ 7-8. But see also Explorer B. Galanos Dep., at 34:9-17 (stating he immediately recognized the object as keys); Meritt Dep., at 258:12-25 (stating he knew the object was not a gun).]
Carter then yelled, "What?" and took an offensive fighting stance, "raising his shoulders and enlarging his upper body while standing square with the officers."
Megan Damico, Carter's fiancée, recalls the incident somewhat differently.
Megan attempted to explain that she was taking Carter home. Oblivious to the officers' presence, Carter continued arguing with Jalyn. [Id. at 95:19-22.] Cpl. R. Galanos yelled, "Hey Stupid." The officers continued speaking in the group's direction, but what they said was unclear because several people spoke at once. [See id. at 98:1-25.] Carter turned around, raised his hands, and yelled, "What?" or "Why?" twice, and Officer Meritt tased Carter from a distance of ten or fifteen feet. [Cangiamilla Dep., at 30:14-16; Doyle Dep., at 21:11-14.] The entire incident, from the officers' first interaction with the group to the tasing of Carter, took approximately fifty seconds. [See Explorer B. Galanos Dep., at 58:5-11 (the time from the officer's initial radio call to dispatch to the call for paramedics was approximately fifty seconds). But see Sergeant Koran Dep., at 100:7-25 (the initial call-in time is not necessarily the time the officers first approached Carter).]
The remaining facts are undisputed. The taser darts contacted Carter's chest and abdomen. He stood straight and fell backward, striking his head on the sidewalk and fracturing his skull. When the taser's five-second cycle completed, Officer Meritt immediately requested paramedics. Carter spent three nights in intensive care and four more under a neurosurgeon's care. Carter claims to suffer from permanent hearing loss and balance problems as a result of the incident.
Carter's blood alcohol level was measured at the hospital. Approximately one hour after the incident, at 11:15 p.m., his BAC measured .15. [Megan Damico Dep., at 42:20.] Carter was later charged with violations of California Penal Code Sections 148(a)(1) (resisting, delaying, or obstructing a police officer) and 647(f) (public intoxication). The charge under section 148(a) was later dropped, but Carter pleaded guilty to public intoxication under section 647(f).
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir.2006).
In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party's claim, or to a defense on which the nonmoving party will bear the burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos. Inc., 210 F.3d 1099, 1102 (9th Cir.2000). When the nonmoving party would bear the burden of proof at trial, the moving party may satisfy its burden on summary judgment by simply pointing out to the Court an absence of evidence from the nonmoving party. Miller, 454 F.3d at 987. "The moving party need not disprove the other party's case." Id.
Once the movant has made that showing, the burden shifts to the opposing party to produce "evidence that is significantly probative or more than `merely colorable' that a genuine issue of material fact exists for trial." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.2009) (citing FTC v. Gill, 265 F.3d 944, 954 (9th Cir.2001)); see also Miller, 454 F.3d at 988 ("[T]he non-moving party must come forward with more than `the mere existence of a scintilla of evidence.'") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The Court must review the record as a whole and draw all reasonable inferences in favor of the nonmoving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir.2000). However, unsupported conjecture or conclusory statements are insufficient to defeat summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir.2008). "Thus, `[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Miller, 454 F.3d at 988 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
Defendants move for summary judgment on Carter's § 1983 claim against Meritt for excessive force, arguing that Carter's constitutional rights were not violated because Officer Meritt's use of the taser was reasonable under the circumstances. Defendants further argue that, even if Carter did suffer a constitutional deprivation, Officer Meritt is entitled to qualified immunity because the state of the law surrounding the appropriate use of tasers was sufficiently unclear that a reasonable officer would not have known his
In evaluating a police officer's assertion of qualified immunity, the Court makes two determinations. The Court decides, first, whether, "taking the facts in the light most favorable to the non-moving party, the officer's conduct violated a constitutional right; and second, if a violation occurred, whether the right was clearly established in light of the specific context of the case." Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir.2010) (internal quotation marks omitted). The Court has discretion to address either prong of the qualified immunity analysis first. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).
The Court examines allegations of excessive force under the Fourth Amendment's prohibition on unreasonable seizures. Bryan, 630 F.3d at 823. The Court inquires "whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them." Id. (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The Court "must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. (internal quotation marks omitted); see also Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir.2001). "Stated another way, [the Court] must `balance the amount of force applied against the need for that force.'" Bryan, 630 F.3d at 823-24 (quoting Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir.2003)). "This balance must be `judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Boyd v. Benton Cnty., 374 F.3d 773, 779 (9th Cir.2004) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). "The need for such balancing means that `summary judgment . . . in excessive force cases should be granted sparingly.'" Id. (quoting Santos v. Gates, 287 F.3d 846 853 (9th Cir.2002)); see Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir.1994) ("Because questions of reasonableness are not well-suited to precise legal determination, the propriety of a particular use of force is generally an issue for the jury.").
Officer Meritt shot Plaintiff from between eight and fifteen feet away with an X26 Taser deployed in "dart mode." In Bryan v. MacPherson, the Ninth Circuit recently described the nature of force imposed by using a taser in dart mode:
630 F.3d at 824 (internal footnotes and citations omitted). This constitutes an "intermediate, significant level of force that must be justified by the governmental interest involved." Id. at 826.
The Court considers three core factors to evaluate the government's interest
The most important factor is whether the suspect posed an immediate threat to the safety of the officers or others. Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir.2005) (en banc) (quoting Chew, 27 F.3d at 1441). However, "`[a] desire to resolve quickly a potentially dangerous situation is not the type of governmental interest that, standing alone, justifies the use of force that may cause serious injury.'" Bryan, 630 F.3d at 826 (quoting Deorle, 272 F.3d at 1281).
Defendants, relying almost entirely on the officers' version of the facts, argue that Officer Meritt reasonably believed Carter posed a danger to the officers and to Carter's companions. Defendants claim: Carter was drunk; Carter roughly snatched items from and pushed one of his companions; Carter yelled threateningly at his companions and at the officers; Carter held an unknown item in his hands and made motions suggesting he would throw the item at the officers; Carter adopted an aggressive, fighting posture and made threatening movements toward the officers
Carter paints a very different picture. The officers approached the group with little warning, yelling only "Stop" from across the street. Far from afraid that Carter would harm them, one of his companions attempted to inform the officers that Carter was intoxicated, but that they were taking him home. While the officers may have continued speaking during the encounter, no one other than the officers claims to have heard any instructions or warnings to Carter that he may be tased. Carter had keys in his hand, which Explorer B. Galanos immediately recognized as keys. Officer Meritt could not immediately identify the object in Carter's hand as keys, but he did recognize that Carter was not holding a gun. Carter yelled, but he was not aggressive or belligerent toward the officers. Furthermore, Carter was ten to fifteen feet away from the officers when Officer Meritt tased him. [See Pl.'s Opp'n, at 9.]
Genuine issues of fact regarding Carter's behavior preclude summary judgment on the reasonableness of Officer Meritt's use of force. Viewing the facts in
The officers detained Carter on suspicion that he had violated California Penal Code Sections 148(a)(1) (resisting, delaying, or obstructing a police officer) and 647(f) (public intoxication), both misdemeanors. Misdemeanors are relatively minor and generally will not support the use of intermediate force. Id. at 828-29 & n. 12. Neither of the offenses for which Carter was cited is inherently dangerous or violent. Thus, this factor militates against finding Officer Meritt's use of intermediate force reasonable. See id.
Defendants have not alleged that Carter attempted to flee. To the extent it can be said he "resisted" the officers at all, Carter offered only "passive" resistance. While resistance "should not be understood as a binary state," the Ninth Circuit has "drawn a distinction between passive and active resistance." Bryan, 630 F.3d at 829-30. Where a suspect's resistance is not particularly bellicose, it "provide[s] little support for a use of significant force." Id. at 830.
For example, the plaintiff in Bryan exited his vehicle, shouted gibberish, and repeatedly hit himself in the quadriceps during a routine traffic stop. The court characterized the plaintiff's behavior as "bizarre," but "a far cry from actively struggling with an officer attempting to restrain and arrest an individual." Id. Similarly, the Ninth Circuit has classified as passive resistance a suspect continuously ignoring an officer's commands to remove his hands from his pockets and not to re-enter his home, even where the plaintiff "physically resisted . . . for only a brief period of time." Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir.2005) (en banc); see also Forrester v. City of San Diego, 25 F.3d 804, 805 (9th Cir.1994) (a protestor's "remaining seated, refusing to move, and refusing to bear weight" despite contrary orders from police constituted "passive resistance").
Viewing the facts of this case in Carter's favor, the officers yelled, "Stop," as they approached his group from across the street. Once they reached the group, Cpl. R. Galanos yelled, "Hey Stupid." Carter turned around, raised his hands, and yelled, "What?" or "Why?" twice. Without providing clear additional instructions, Officer Meritt tased Carter. [See Megan Damico Dep., at 72:15-18, 95:2-12; Varela Dep., at 54:9-22, 75:18-25 (stating that he could not hear whether the officers gave any additional instructions prior to tasing Plaintiff).] The entire interaction between the officers and Carter lasted approximately fifty seconds before Carter was tased. [See Explorer B. Galanos Dep., at 58:5-11.]
Under this version of the facts, the officers gave one command—"Stop"—and yelled, "Hey Stupid" before Officer Meritt tased Carter. Carter may have disregarded the order to stop, but he did not receive, and thus did not ignore, other commands. Carter's raising his arms and yelling "What?" or "Why?" at the officers, while perhaps odd, constitutes at most passive resistance, and it likely does not
Taking the facts in the light most favorable to Carter, a reasonable fact-finder could find that the officers had only a minimal reason to use force against him. This does not justify the use of an intermediate level of force, such as a taser in dart mode. Where facts are disputed, their resolution and related determinations of credibility are "manifestly in the province of a jury." Wall v. Cnty. of Orange, 364 F.3d 1107, 1110 (9th Cir.2004) (quoting Santos, 287 F.3d at 852). Accordingly, the Court
Qualified immunity shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Even where an officer has violated a citizen's constitutional rights, the officer is entitled to qualified immunity if his "use force was `premised on a reasonable belief that such force was lawful.'" Bryan, 630 F.3d at 832 (quoting Deorle, 272 F.3d at 1285) (emphasis in original). Qualified immunity insulates from liability "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see also Pearson, 129 S.Ct. at 818 (noting that qualified immunity protects officials' reasonable mistakes, whether "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact"). To decide whether Officer Meritt reasonably could have believed tasing Carter would not violate his constitutional rights, the Court must examine the state of the law at the time of the incident. Carter bears the burden of showing that the right in question was clearly established at that time. Robinson v. York, 566 F.3d 817, 826 (9th Cir.2009).
Before the Ninth Circuit decided Bryan, it was unclear whether the use of a taser in dart mode constituted an intermediate level of force or something less. Because
Carter's FAC makes two arguments against the City for Meritt's alleged use of excessive force—failure to train and failure to supervise. [FAC, ¶¶ 26-30 (failure to train), ¶¶ 31-36 (failure to supervise).] Defendants move for summary judgment on both.
Carter's Opposition makes no arguments in defense of his failure to supervise claim. At oral argument, Carter's counsel confirmed that Carter does not oppose summary judgment on this claim. Accordingly, the Court
Carter's failure to train claim rests on two theories: First, contrary to its stated policy, the City customarily issued tasers to officers who were not trained in the appropriate use of tasers. Second, the Internal Affairs Division of the Carlsbad Police Department had a practice of exonerating officers accused of excessive force without sufficient analysis of the allegations and evidence. As a result, Carter argues, the City failed to identify the need for training within the Police Department.
Municipalities are "persons" under § 1983 and may therefore face liability for constitutional deprivations. See Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Where, as here, an individual officer is entitled to qualified immunity even though a constitutional violation occurred, the officer's immunity will not protect a municipality from liability under § 1983. Burke v. County of Alameda, 586 F.3d 725, 734 (9th Cir.2009) ("[L]ocal governments are not entitled to the qualified-immunity defense . . . .") (citing Hervey v. Estes, 65 F.3d 784, 791 (9th Cir.1995)). But municipalities may not be sued under a theory of respondeat superior for injuries inflicted solely by their employees. Connick v. Thompson, ___ U.S. ___, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011);
"In limited circumstances, a local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for purposes of § 1983." Connick, 131 S.Ct. at 1359; see Long, 442 F.3d at 1185-86 (a policy of "inaction" or "omission," such as a failure to train, can result in municipal liability). For the City to face liability under § 1983 for a failure to train its police officers, Carter must show: "(1) he was deprived of a constitutional right; (2) the City had a training policy that amounts to deliberate indifference to the constitutional rights of the persons with whom its police officers are likely to come into contact; and (3) his constitutional injury would have been avoided had the City properly trained those officers." Blankenhorn, 485 F.3d at 484 (internal quotation marks and alterations omitted); see also Connick, 131 S.Ct. at 1359-60 (a municipality's policy of not training its employees is only actionable where it "amount[s] to `deliberate indifference to the rights of persons with whom the [untrained employees] come into contact'" (quoting Canton, 489 U.S. at 388, 109 S.Ct. 1197)).
As discussed above, a material issue of fact exists as to whether Carter suffered a constitutional deprivation. Thus, Carter has satisfied the first prong for establishing municipal liability.
Regarding the second prong, Carter claims the City had a practice of distributing X26 tasers to police officers, including Officer Meritt, without training them on the appropriate use of tasers. This raises two issues: whether this was, in fact, the City's policy, and, if so, whether such a policy satisfies the "deliberate indifference" standard.
Viewing the evidence in the light most favorable to Carter, a material factual dispute exists as to whether the City customarily issued tasers to untrained officers. The City's official policy states that no officer may be issued a taser unless he has been trained to use it properly. [Pl.'s Opp'n, Ex. 29 (Carlsbad Police Department's policy 309.2, stating that "[p]ersonnel who have completed department approved training may be issued a TASER for use during their current assignment"); see also Meadows Dep., at 57:24-58:1 ("[N]o tasers are issued until after [officers] have had the training.").] However, the City has failed to provide evidence that any but a small minority of its officers were actually trained to use the X26 taser: though it is standard issue equipment, the City's records list only fifteen of its 115 officers as being trained and certified to
A practice of issuing tasers to untrained officers would demonstrate a "deliberate indifference to the rights of persons with whom the [City's police officers] come into contact." Canton, 489 U.S. at 388, 109 S.Ct. 1197. Deliberate indifference requires a "`conscious' or `deliberate' choice by the City to risk a `likely' violation of constitutional rights." Price v. Sery, 513 F.3d 962, 973 (9th Cir.2008) (citing Canton, 489 U.S. at 389, 109 S.Ct. 1197). Failure to train demonstrates deliberate indifference when "in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Canton, 489 U.S. at 390, 109 S.Ct. 1197; see also Connick, 131 S.Ct. at 1360 ("[W]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program." citing Bd. of Comm'rs of Bryan County. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)).
The alleged practice in this case mirrors the paradigmatic example provided by the Supreme Court in Canton of a practice so obviously likely to result in constitutional deprivations that the municipality's policymakers must have been aware of, and deliberately indifferent to, that risk:
Canton, 489 U.S. at 390 n. 10, 109 S.Ct. 1197. The City provides tasers to its officers for the very purpose of inflicting force upon criminal suspects when necessary to effect an arrest. To issue weapons without
To establish municipal liability, however, Carter must also show that the City's practice caused his constitutional deprivation. Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir.2006) ("There also must be a `direct causal link' between the policy or custom and the injury . . . .") (quoting McDade v. West, 223 F.3d 1135, 1141 (9th Cir.2000)); see Blankenhorn, 485 F.3d at 484 (a plaintiff must show proper training would have prevented his injury). For Carter to show the City's alleged practice of issuing tasers to untrained officers caused his injury, he must establish that the officer who tased him was untrained. Carter's claim fails on this third prong.
Carter argues that, as a result of the City's practice related to the issuance of tasers, Officer Meritt was not trained prior to the City issuing him an X26 taser. Had Meritt been properly trained, the argument goes, he would not have tased Carter.
Like the majority of officers employed by the Carlsbad Police Department, Officer Meritt was issued an X26 taser, but Defendants cannot provide documentary evidence that Meritt was ever trained to use it appropriately. The City has provided documentary records showing that Officer Meritt was trained to use a taser in 2004—more than five years before and with an older model taser than the one used in the incident with Carter.
However, Officer Meritt testified repeatedly during his deposition that he attended a training that addressed the policies for use of tasers, as well as technical issues related to the X26 model, in 2006. [Meritt Dep., at 159:6-163:19; see also Meritt Decl., ¶ 5.] He also testified that, to the best of his recollection, the taser training was part of a broader training on "arrest and control," which Meritt's training records indicate he attended in March 2006. [Meritt Dep., at 159:6-163:19; Pl.'s Ex. 23 (Meritt's Individual Training Activity Log).] Moreover, Sergeant Christopher Boyd, who conducted trainings for the City's police officers on the use of tasers, testified at his deposition that he had a "general recollection of having trained [Officer Meritt] on the X26 [taser] . . . sometime in 2006." [Boyd Dep., at 5:23-8:17.]
Thus, the evidence supports Officer Meritt's argument that he was in fact trained on the X26 taser, despite the lack of specific documentation on this issue. Carter has thus failed to establish "`that [his] injury would have been avoided' had the City implemented proper policies." Long, 442 F.3d at 1190 (quoting Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1196 (9th Cir.2002)). Accordingly, to the extent
Carter's second theory for his § 1983 claim against the City relates to its handling of internal affairs investigations into allegations of excessive force by police officers. One of the purposes of the City's internal affairs investigations is to reveal areas where more training is needed. [See Koran Dep., at 26:2-6.] But, Carter argues, instead of providing objective inquiry and analysis, the City's internal affairs investigations simply serve to exonerate the City's police officers of any alleged wrongdoing. As a result, the investigations fail to identify training needs in the City's police department. [Pl.'s Opp'n, at 20-21 (arguing the City has a "custom of whitewashing" [internal affairs] investigations and reports).]
More specifically, Carter points to two investigations into allegations of excessive force against Officer Meritt: one related to an incident in 2008, in which Officer Meritt used force, including his taser, to subdue a fleeing suspect; the second being the investigation into the incident giving rise to this action. Carter argues both investigations inadequately dealt with discrepancies between various witnesses' statements and failed to identify Officer Meritt's need for additional training—especially related to taser use. This is insufficient to establish a municipal policy or custom for the purpose of a § 1983 claim.
A municipality may only face liability under § 1983 when "its deliberate policy caused the constitutional violation alleged." Blankenhorn, 485 F.3d at 484. Carter points to just two internal affairs investigations, both of which focused on Officer Meritt.
Carter has simply not provided evidence of a City practice of "whitewashing" internal affairs investigations and reports. Moreover, even assuming this was a City policy, Carter has not provided evidence demonstrating such a practice would satisfy
Defendants also move for summary judgment on Carter's claims under state law: battery, negligence, and California Civil Code § 52.1. The question of whether Officer Meritt used excessive force underpins each of those claims. [See FAC ¶¶ 37-53.]
Battery claims brought under California law are analyzed under the reasonableness standard used to evaluate Fourth Amendment claims. Atkinson v. Cnty. of Tulare, 790 F.Supp.2d 1188, 1211, 2011 WL 1885769, at *17 (E.D.Cal. May 18, 2011) (negligence and battery "are measured by the same reasonableness standard of the Fourth Amendment"); Munoz v. City of Union City, 120 Cal.App.4th 1077, 1102 n. 6, 16 Cal.Rptr.3d 521 (2004) ("Federal civil rights claims of excessive force are the federal counterpart to state battery . . . claims; in both, the plaintiff must prove the unreasonableness of the officer's conduct."). Unlike § 1983 claims, however, qualified immunity does not insulate a police officer from suit for claims under California law. Robinson v. Solano Cnty., 278 F.3d 1007, 1016 (9th Cir.2002) (en banc) ("California denies immunity to police officers who use excessive force in arresting a suspect."); Garcia v. City of Imperial, 2010 WL 3834020, at *14 (S.D.Cal. Sept. 28, 2010) (same). California law "`has [also] rejected the Monell rule and imposes liability on [cities] under the doctrine of respondeat superior for acts of [city] employees.'" Edgerly v. City and Cnty. of San Francisco, 599 F.3d 946, 961 (9th Cir.2010) (quoting Robinson, 278 F.3d at 1016) (alterations in original).
As discussed above, Defendants are not entitled to summary judgment that Officer Meritt's use of force was objectively reasonable. Thus, the motion for summary judgment on Carter's battery claim is
Negligence claims stemming from allegations of excessive force by a police officer are also analyzed under the Fourth Amendment's reasonableness standard. Atkinson, 790 F.Supp.2d at 1211, 2011 WL 1885769, at *17 (negligence and battery "are measured by the same reasonableness standard of the Fourth Amendment"). Like state law claims for battery, § 1983 qualified immunity does not protect police officers from suits for negligence under state law. Robinson, 278 F.3d at 1016. Thus, Officer Meritt is not entitled to summary judgment on Carter's negligence claim.
Regarding the City, however, Defendants argue California Government Code § 815(a) insulates the City from liability for Officer Meritt's negligence. Section 815(a) provides that, except as provided by statute, "A public entity is not liable for an injury, whether such injury arises out of
Accordingly, the motion for summary judgment on Carter's negligence claim is
California Civil Code § 52.1 permits an individual to bring civil action for interference with his rights under the United States or California Constitutions by threats, intimidation, or coercion. Venegas v. Cnty. of Los Angeles, 153 Cal.App.4th 1230, 1239, 63 Cal.Rptr.3d 741 (2007). "Section 52.1 does not provide any substantive protections; instead, it enables individuals to sue for damages as a result of constitutional violations." Reynolds v. Cnty. of San Diego, 84 F.3d 1162, 1170 (9th Cir.1996), overruled on other grounds, Acri v. Varian Assocs., Inc., 114 F.3d 999, 999-1000 (1997).
Carter's claim under California Civil Code § 52.1 stems from his excessive force claim under the Federal Constitution. Thus, it is also evaluated under the reasonableness standard of the Fourth Amendment. See Jones v. Kmart Corp., 17 Cal.4th 329, 331, 70 Cal.Rptr.2d 844, 949 P.2d 941 (1998) (the elements of claims under Cal. Civ.Code § 52.1 are essentially identical to claims under § 1983). Defendants argue, however, that, unlike other claims under state law, if Officer Meritt is entitled to qualified immunity under federal law, then both he and the City are also immune from suit under § 52.1. [Defs.' MSJ, at 23.]
To support this argument, Defendants rely entirely on M.L. ex rel. Autry v. City & Cnty. of San Francisco, 2006 WL 335386, at *7 (N.D.Cal. Feb. 13, 2006). The Court is aware of just one other decision supporting Defendant's position: Briley v. City of Hermosa Beach, 2008 WL 4443894, at *6 (C.D.Cal. Sept. 29, 2008). Both the Ninth Circuit and the California Court of Appeal, however, have expressly held that qualified immunity under federal law does not apply to claims under California Civil Code § 52.1. Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir.2009) (holding that "California law is clear" that qualified immunity is a federal doctrine that does not apply to tort or civil rights claims under state law); Venegas, 153 Cal. App.4th at 1246, 63 Cal.Rptr.3d 741 ("[Q]ualified immunity of the kind applied to actions brought under 42 [U.S.C. § 1983] does not apply to actions brought under section 52.1.").
For the reasons stated above, Defendants' motion for summary judgment is
Defendants' motion for summary judgment that Defendant Scott Meritt's use of force was objectively reasonable is
Defendants' motion for summary judgment that Meritt is entitled to qualified immunity from Plaintiff's claim of excessive force under 42 U.S.C. § 1983 is
Defendants' motion for summary judgment on Plaintiff's claim against the City of Carlsbad for failure to supervise under 42 U.S.C. § 1983 is
Defendants' motion for summary judgment on Plaintiff's claim against the City of Carlsbad for failure to train under 42 U.S.C. § 1983 is
Defendants' motion for summary judgment on Plaintiff's claim under California law for battery is
Defendants' motion for summary judgment on Plaintiff's claim under California law for negligence is
Defendants' motion for summary judgment on Plaintiff's claim under California Government Code § 52.1 is
In all three decisions, the Ninth Circuit agreed with the district court that the use of the taser in that case was excessive. The decisions go back and forth, however, on the second prong of the qualified immunity inquiry—whether the law was clearly established at the time of the incident. Ultimately, Bryan III held that the defendant officer was entitled to qualified immunity because, prior to Bryan I, it was not clearly established that the use of a taser in dart mode constitutes an intermediate use of force.
The incident that gave rise to this action occurred on October 31, 2009—nearly two months before the Ninth Circuit issued Bryan I.
