ANTHONY W. ISHII, District Judge.
This case stems from a police encounter between Plaintiff Mike E. Barba ("Barba") and two police officers from the City of Shafter ("the City"), Defendants Randy Milligan ("Milligan") and Joshua Stephens ("Stephens"). The Complaint alleges nine causes of action, including claims under 42 U.S.C. § 1983 for violation of the Fourth and Fourteenth Amendments, and claims under California law for false arrest, battery, loss of consortium, and intentional and negligent infliction of emotional distress. Defendants now move for summary judgment. For the reasons that follow, Defendants' motion will be granted in part and denied in part.
Summary judgment is proper when it is demonstrated that there exists 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;
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant.
The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party.
During the evening of February 7, 2011, Barba had a strange telephone conversation with his wife in which he did not "make a lot of sense" and made statements such as "I am going to die tonight."
City police officers Milligan and Stephens then received a "be on the lookout" alert from dispatch.
Tye and his wife found Barba's truck in an oil drilling site outside the City.
Milligan and Stephens arrived at the oil drilling cite around 3 a.m.
Stephens used the PA system on his police cruiser to issue verbal commands to Barba to get out of the truck.
As Barba began walking backwards, Stephens dropped the PA microphone, moved towards Barba, and let Milligan give Barba all further instructions.
When Barba was about 8 feet from the officers, he was instructed to turn around slowly.
The taser caused Barba to fall forward and on his side, and he ultimately came to rest on his stomach.
Both officers then picked up Barba and carried him underneath his arms (one officer on either side of Barba) with his feet dragging to a police vehicle.
After taking Barba to the City police station, and later consulting with Barba's wife, Stephens admitted Barba to a hospital for psychiatric assessment and treatment under California Welfare & Institutions Code § 5150.
The officers argue that the undisputed facts demonstrate that no excessive force occurred. The officers were informed of a suicidal individual who was making suicidal threats, Barba was found largely nonresponsive in an isolated oil field, Barba refused to comply with instructions, later lunged towards his truck, and ignored a warning that he would be tased. The officers did not know what weapons may have been either on Barba or in the truck, and Milligan had to make a split second determination in using the taser. Further, after Barba was momentarily disabled from the first taser application, he attempted to get up and refused to produce one of his hands for cuffing, which necessitated the second use of the taser. Finally, Barba bears the lion share of responsibility for what occurred. It was Barba who acted in a bizarre fashion, who failed to comply with lawful orders, and who failed to cooperate with being handcuffed. Under the totality of the circumstances, the officers' actions were objectively reasonable.
Alternatively, the officers argue that they are entitled to qualified immunity. Settled law on taser use was not set by the Ninth Circuit until October 2011. Even if the use of the taser was excessive, the law was not sufficiently settled to put the officers on notice. Given the uncertain state of the law with respect to tasers, and the circumstances surrounding the incident, a reasonable officer could have concluded that acts of Milligan and Stephens were not unconstitutional.
Plaintiffs argue that Defendants' motion relies almost entirely on Milligan's testimony. However, the testimony of Stephens and Tye show that there are many material disputed facts. The quantum of force used was two taser applications, but the governmental interest at stake was low. Barba was not committing any crime, and he was not a threat to the officers or to anyone else, rather he was docile, uncommunicative, and suffering some form of mental condition. Barba did not try to evade arrest, and was not actively resisting arrest. Finally, contrary to Milligan's testimony, Barba was not running back towards his truck and no split second decisions were required. Under these circumstances, use of the taser was not reasonable.
All claims that law enforcement officers used excessive force, either deadly or non-deadly, in the course of an arrest, investigatory stop, or other seizure of a citizen are to be analyzed under the Fourth Amendment and its standard of objective reasonableness.
A court employs a tiered analysis for determining qualified immunity.
The quantum of force at issue is two taser cycles from a taser that was used in dart mode. In dart mode, a pair of metal barbed probes that are connected to wires are propelled/shot towards an individual.
Here, the taser was fired once, but cycled twice. The Court will examine the two taser cycles separately.
The officers do not argue that Barba was violating any provision of the Penal Code. The officers were at an oil drilling site investigating a possible suicidal man. Barba's behavior was severely abnormal and it appeared that he needed help. Barba was sweating, hunched over, verbally unresponsive, slow to react, and he was physically responded only after multiple commands were given over a PA system. Barba's conduct reasonably implicated Welfare & Institutions Code § 5150, which permits a peace officer to detain and admit an individual to a mental health facility for 72 hours if the individual is a threat to himself.
When Milligan fired the taser, Barba was not an immediate threat to the officers or to others. Barba was in the process of complying with the officers' commands and slowly walking backwards toward the officers with his hands on his head. Barba was less than 10 feet away from the officers when he stumbled, and he did not stumble toward his truck. Barba did not appear to be armed, was not charging the officers, and made no furtive or suspicious movements or gestures of any kind. There is no testimony that the stumbling action was perceived as hostile or that it could have been reasonably perceived as hostile.
Barba was not actively resisting arrest or attempting to evade arrest. Barba was complying with the officers' commands, albeit very slowly. Barba did stumble, but merely stumbling is hardly resistive behavior. Tye's testimony shows that Barba did not run and was not attempting to evade or get back to his truck.
Barba appeared to be emotionally unstable.
No warning was given to Barba. Although Stephens said he heard Milligan say "taser" three times, Tye did not. Assuming that Milligan did say "taser" three times, that is not necessarily the same as warning someone that a taser will actually be used against them. Further, Barba's stumbling appears to have been the event that triggered the use of the taser. Stumbling is not resisting or fleeing, and it is an action that generally does not last long. It is unknown why a warning to the effect of "do not move or else I will use the taser" could not have been given. Under Plaintiffs' version of events, this was not a quickly evolving situation that required split second decision making. It was feasible to give Barba a warning.
In terms of less intrusive methods available to the officers, the parties have not addressed this consideration. However, it appears that Milligan could have simply waited until Barba had recovered his footing. Prior to stumbling, Barba had been slowly complying with orders. Under Plaintiffs' version of events, there is nothing to suggest that Barba would not keep complying.
Finally, in terms of relative culpability, there appears to be more culpability with Milligan. Plaintiffs' evidence shows that Barba was obeying the officers' orders. He had been moving slowly backwards with his hands behind his head over uneven terrain. Barba was in the process of turning, at the officers' instruction, when he lost his footing. It is unclear what Barba could have done differently to avoid being shot by the taser.
Under these circumstances, a reasonable jury could find excessive force. Plaintiffs' evidence shows that Barba was complying, lost his footing, and then was tased without warning, even though he was not an immediate threat to the officers and was not resisting or evading detention. It is true that there was a substantial interest in detaining Barba under § 5150, but the purpose of § 5150 is to obtain help, not stop crime, and none of the other relevant considerations support Milligan's use of the taser. Summary judgment on this issue is inappropriate.
At the time of the second taser cycle, Barba was not an immediate threat to the officers. Barba was on the ground and had already been shot with the taser darts and experienced one electrical cycle. Barba's left wrist was cuffed, Stephens had his weight on Barba's upper thigh, and Barba was not moving.
Barba was not fleeing, but he may have been resisting Stephens. Barba's right wrist was under his body, and Stephens was unable to get to that wrist. However, Barba was not attempting to get up or actively fighting Stephens; he was simply lying on the ground and clinching his hand underneath his body. Importantly, the resistance lasted only seconds. Stephens testified that he was able to fully cuff Barba in less than 10 seconds from the time that he put on the first cuff. Barba's resistance occurred after the first cuff was placed. Therefore, Barba had been resisting Stephens for less than 10 seconds before Milligan cycled the taser a second time.
Milligan gave no warning before he again cycled the taser. There is no reason why a warning could not have been given. As indicated, Barba was lying on the ground. Barba was not attempting to get up and he was in no way attempting to overpower or physically fight Stephens. Barba was lying on the ground and not moving, and the evidence suggests that he was generally under Stephens's control. Under Plaintiffs' version of events, Milligan did not need to make a split second decision.
There has been no discussion about alternative methods to gain Barba's compliance. However, it is unknown why warnings about using the taser again, or commands for Barba to let his hand up from underneath him, could not have been given. There is no evidence that the officers ordered Barba to move his arm so that Stephens could finish cuffing. Such a simple command would be a less intrusive option to a second taser cycle.
In terms of relative culpability, it appears that Milligan is more culpable. The Court will assume that Barba would not have been tased a second time if he had not been clinching his right hand underneath him. However, Barba had been complying with the officers and had just been tased when Milligan tased him a second time without warning. The time between taser cycles was very short, and Milligan gave no warning or additional commands. It is not clear that Barba knew or should have known that he was going to be tased a second time so quickly.
In light of the above, a reasonable jury could conclude that excessive force was used. Plaintiffs' evidence shows that Barba was not moving, was not an immediate threat, and was not fleeing. No additional orders or warnings were given to Barba, even though it was feasible to do so. Although Barba was resisting Stephens, the resistance did not endanger anyone, was not aggressive, did not last long, and was not contrary to any verbal orders. A reasonable jury could conclude that Barba's light resistance and the interest in detaining Barba under § 5150 were not sufficient to justify the second taser cycle. Summary judgment on this issue is not appropriate.
In November 2010, the Ninth Circuit decided Bryan v. MacPherson. In that case, the Ninth Circuit held that a taser was an intermediate or medium, though not insignificant, quantum of force.
In this case, Barba appeared to be mentally disturbed, he was not actively evading the officers, he posed no immediate threat to the officers, and he did not have the benefit of any warnings before being tased. It is true that Barba was not particularly responsive, and his compliance was slow and only followed after the orders were repeated. However, Barba ultimately complied with what he was ordered to do. Further, at the time of the second taser cycle, Barba was lying on the ground, was not moving, was not an immediate threat, and was not fleeing, and Milligan could have, but did not, give a warning. Barba may have been resisting Stephens's efforts to handcuff him, but as discussed above, the resistance displayed by Barba was minor and lasted only seconds.
The key excessive force considerations in Bryan are very similar to the excessive force considerations in this case. Bryan was decided in November 2010, and the events of this case took place in February 2011. In light of Bryan, and viewing the evidence in the light most favorable to Plaintiffs, a reasonable officer in Milligan's position would have known that both taser cycles against Barba were unconstitutional.
Defendants argue that they had probable cause to detain Barba and take him into custody pursuant to Welfare & Institutions Code § 5150. The evidence shows that the officers had been told that Barba was suicidal, and Barba's strange behavior towards the officers reinforced the possibility that he was suicidal. Barba's detention was therefore objectively reasonable.
Plaintiffs do not address whether there was probable cause to detain Barba under Welfare & Institutions Code § 5150.
Section 5150 provides that "when any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer . . . may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care. . . ." Cal. Welf. & Inst. Code § 5150(a). The lawfulness of a detention under § 5150 is measured by Fourth Amendment standards.
The undisputed evidence shows that the officers had probable cause to detain Barba for treatment/intervention under § 5150. The officers were aware that Barba was reported as being suicidal and making suicidal statements. The officers found Barba sitting alone in his truck at a remote location in the early morning hours. Barba never spoke to the officers. For Barba to perform any task, he generally had to be told multiple times over a PA system before he would comply. Barba was sweaty, had an odd look on his face during the encounter, and moved very slowly. Barba's behavior, appearance, and location appear entirely consistent with the reports of suicidal ideation and of psychiatric distress. Indeed, Plaintiffs acknowledge that Barba was "uncommunicative and obviously suffering from some sort of mental condition." Doc. No. 44 at 7:18-22 (emphasis added). Given the totality of the circumstances, a person of ordinary care and prudence would have believed that Barba had a mental disorder and was a danger to himself.
Alternatively, the information known to the officers about Barba being suicidal and making suicidal threats, combined with Barba's appearance, location, and largely unresponsive behavior, is sufficient for a reasonable officer in Stephens's and Milligan's position to conclude that a 72-hour psychiatric detention/assessment under § 5150 was authorized.
Defendants argue that Tye and Barbra Barba have no individual Fourteenth Amendment claims. Courts recognize a Fourteenth Amendment loss of familial relations claim in death cases, but such a right has not been recognized in situations where family members have been briefly separated from a detainee. Recognition of such a right would open the floodgates to federal litigation. As recognized by the District of Idaho, the Ninth Circuit has never been called upon to examine the type of overreaching claims made by Plaintiffs in this case, and other circuits are at best split on the issue.
Plaintiffs argue that they have viable Fourteenth Amendment claims. Ninth Circuit case law does not require a death before a person can bring suit for interference with familial relations. The extent of any interference is only a damages issue.
The Fourteenth Amendment protects the liberty interest in familial companionship and association against unwarranted governmental interference.
As the Court understands Defendants' arguments, the focus is on the extent of any interference with a familial relationship. In particular, it appears that Defendants are arguing that because Barba was not killed, there is no Fourteenth Amendment violation. The Court cannot agree with this argument.
The Ninth Circuit has recognized Fourteenth Amendment familial companionship claims in situations where no death occurred.
Defendants' reliance on Bach v. Idaho State Bd. of Med., 2011 U.S. Dist. LEXIS 80481 (D. Idaho July 22, 2011) is misplaced. The issue in that opinion was whether the plaintiff had pled a cause of action under the Iqbal standard of pleading; there was no mention whatsoever of the Fourteenth Amendment. To the extent that Defendants intended to cite the Court to Bach v. Idaho State Bd. of Med., 2012 U.S. Dist. Lexis 7043 (D. Idaho Jan. 20, 2012), that case does mention the Fourteenth Amendment and familial companionship. However, the discussion in Bach relates to whether a surviving husband had a Fourteenth Amendment familial companionship claim based on the death of his wife.
In their reply memorandum, Defendants argue that Plaintiffs are pursuing a novel theory — that an adult son and spouse could state a familial association claim when they call the police for help, but then complain because the police detain Barba for the very psychiatric evaluation that they were unable to achieve on their own.
Nevertheless, the Court does not believe that Defendants' argument was fairly presented as part of the initial motion. The Court will not grant summary judgment at this time because Plaintiffs have not had a fair opportunity to address the issue. Instead, the Court will order Plaintiffs to show cause why summary judgment should not be granted on their Fourteenth Amendment familial association claims.
Defendants state that Plaintiffs have agreed to voluntarily dismiss their Monell claims against the City.
Defendants argue that the state law claims mirror or stem from the federal claims. Because the federal law claims fail, the corresponding state law claims fail as well. Plaintiffs do not respond to this argument.
Plaintiffs' fifth cause of action alleges state law false arrest. As discussed above, the officers had probable cause to detain and involuntarily admit Barba under Welfare & Institutions Code § 5150. If probable cause exists to arrest, there can be no "false arrest."
As for the other state law claims, they all appear to stem from Milligan's use of a taser. As discussed above, the Court has determined that there are genuine disputed issues of material fact with respect to Barba's Fourth Amendment claims regarding Milligan's use of the taser. Because summary judgment is improper as to the Fourth Amendment claims, summary judgment is improper as to the related state law claims.
Plaintiffs Complaint alleges the same causes of action against Stephens as it does against Milligan. Of particular note, the Complaint alleges that Stephens actually used a taser against Barba.
The Court is ordering Plaintiffs to show cause why summary judgment should not be granted on their Fourteenth Amendment claims. As part of the show cause response, Plaintiffs are to show cause why summary judgment should not be granted in favor of Stephens on all remaining claims alleged against him.
Defendants move for summary judgment on all clams alleged against them. With respect to the Fourth Amendment excessive force claim, there are genuine disputed issues of material fact. Plaintiffs' evidence is sufficient to indicate that excessive force was used when Milligan twice used his taser against Barba, and that a reasonable officer would have known that use of the taser was unconstitutional. Thus, summary judgment and qualified immunity will be denied.
As to the Fourth Amendment false arrest claim, the evidence shows that the officers had probable cause to detain Barba under Welfare & Institutions Code § 5150. Alternatively, the facts indicate that even if probable cause was absent, the facts are such that the officers are entitled to qualified immunity. Thus, summary judgment will be granted.
As to the Fourteenth Amendment familial interference claims, Defendants have not shown that Barba's adult son and wife are precluded from pursuing such claims as a matter of law. Thus, summary judgment will be denied.
As to the Monell claims, Plaintiffs do not dispute that they have agreed to dismiss all such claims. Thus, the Court will dismiss all Monell claims against the City.
As to the state law claims, the claims appear to be tied and relate to the Fourth Amendment claims. Because summary judgment is being granted with respect to the Fourth Amendment false arrest claim, summary judgment will be granted as to the state false arrest claim. Because summary judgment is otherwise being denied, summary judgment on all other state law claims also will be denied.
Finally, the evidence shows that probable cause existed to detain Barba under § 5150 and that Stephens did not use a taser against Barba. These facts call into question the viability of both Plaintiffs' Fourteenth Amendment claims and the claims against Stephens. Plaintiffs will be required to show cause in writing, including the submission of additional evidence, as to why summary judgment on the Fourteenth Amendment claims and on all claims against Stephens should not be granted. Defendants will be given the opportunity to file a reply, which may include submission of additional evidence, to Plaintiffs' response.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiffs' Monell claims are DISMISSED;
2. Defendants' motion for summary judgment with respect to Plaintiffs' federal and state law false arrest claims is GRANTED;
3. Defendants' motion for summary judgment is otherwise DENIED;
4. By March 13, 2015, Plaintiff shall submit evidence and show cause in writing why the Court should not grant summary judgment in favor of Defendants on Plaintiffs' Fourteenth Amendment claims and on all claims alleged against Stephens;
5. By March 24, 2015, Defendants may file a reply to Plaintiffs' response.
