PHYLLIS J. HAMILTON, District Judge.
The parties' cross-motions for summary judgment came on for hearing before this court on September 10, 2014. Plaintiff Marlon Whitmore ("plaintiff") appeared through his counsel, Benjamin Nisenbaum. Defendants Timothy Wilhelm, Chris Peters, Jesus Avina, Thomas Bohanon, and Michael Clark (together, the "Santa Rosa defendants") appeared through their counsel, Robert Jackson. Defendants Charles Blount and Joseph Horsman (together, the "Sonoma defendants") appeared through their counsel, Robert Henkels. Having read the papers filed in conjunction with the motions and carefully considered the arguments and relevant legal authority, and good cause appearing, the court hereby rules as follows.
This is a section 1983 case, arising out of plaintiff's arrest by various officers employed by the Santa Rosa Police Department and the Sonoma County Sheriff's Department. The facts, as alleged in the operative second amended complaint ("SAC") and in plaintiff's motion for summary judgment, are as follows:
On March 19, 2011, plaintiff (who was 17 years old at the time) was reported missing by his grandparents, who were his legal guardians. Plaintiff returned home at some point, but two weeks later, on March 31, 2011, plaintiff's grandparents again reported him missing. Specifically, at 1:30 am on March 31, plaintiff's grandmother (Kathy Jones) spoke to defendant Deputy Joseph Horsman with the Sonoma County Sheriff's Department, and told him that plaintiff had been "acting weird" and saying that "people were after him" before he went missing. Mrs. Jones also told Horsman that plaintiff had been seeing a mental health professional for years, though he had not been diagnosed with a specific mental health condition.
At approximately 4:00 am on March 31, plaintiff was "confused, disoriented, and wanted to go home," and because his phone was not working, he "went to use the phone at a friend's house near his school." SAC, ¶ 16. Plaintiff knocked on the wrong door, and the people at that house called the Santa Rosa Police Department to report suspicious behavior.
At approximately 4:45am, defendant Christopher Peters (with the Santa Rosa Police Department) responded to the call, and observed plaintiff pacing back and forth and waving his arms back and forth, in a "go away" type of gesture. Plaintiff did not respond to Peters' questions.
Soon after Peters' arrival, defendant Timothy Wilhelm (also with the Santa Rosa Police Department) arrived on the scene. Defendant Wilhelm asked plaintiff for his identification, and plaintiff reached for his wallet, but then kept both of his hands in his back pockets. Peters and Wilhelm each grabbed one of plaintiff's arms, and when Peters pulled plaintiff's left arm out of his pocket, he saw that plaintiff was holding a pocketknife in his hand (though plaintiff emphasizes that the knife was closed, such that the blade was not exposed). Peters performed a pain compliance wrist lock and forced the knife out of plaintiff's hand, and then kicked it away. Wilhelm then felt plaintiff "tense up" and performed a pain compliance rear wrist lock hold.
Peters and Wilhelm then attempted to place plaintiff in handcuffs, but plaintiff pulled away and began walking away. Wilhelm and Peters then used their Tasers on plaintiff, but they appeared to have no effect. Peters then struck plaintiff, using his baton, on the left knee and thigh and on the left forearm, and Wilhelm struck plaintiff with his baton on plaintiff's upper body, but plaintiff again seemed unaffected. Peters then called for a "Code 20" for other officers to respond immediately.
Peters then used an entire can of pepper spray on plaintiff's face, but again, plaintiff appeared to have no reaction. Peters and Wilhelm then attempted to wrestle plaintiff to the ground, and Wilhelm applied a "carotid hold" for "a 34 to 35 count." Plaintiff wiggled free, so Wilhelm held him "in a bear hug position." Peters then attempted to control plaintiff's legs using a "figure four" hold. Plaintiff flailed his legs, and at some point, he heard a pop from Peters being kicked in the knee.
Defendant Jesus Avina (also from the Santa Rosa Police Department) then arrived on the scene, saw plaintiff, Wilhelm, and Peters on the ground, and kicked plaintiff in the stomach. SAC, ¶ 19. Avina then used his Taser, which appeared to have no effect.
Defendants Charles Blount and Joseph Horsman (with the Sonoma County Sheriff's Department) then arrived on the scene. Blount saw plaintiff and Wilhelm rolling around on the ground, and used his Taser on plaintiff multiple times. Avina also used his Taser again. Blount then began using his flashlight to strike plaintiff, and hit plaintiff "at least a dozen times." Horsman then got on top of plaintiff and struck him with his fists about 20 times.
Defendant Michael Clark (with the Santa Rosa Police Department) then arrived, and began to get control of plaintiff by grabbing his left arm. Blount then hit plaintiff on the head with his flashlight, which appeared to daze plaintiff, and allowed the officers to handcuff him.
However, plaintiff began to struggle again, and defendant Thomas Bohanon (with the Santa Rosa Police Department) attempted to use leg restraints on plaintiff's legs. Avina then kicked plaintiff's legs, which allowed Bohanon to gain control of them. Bohanon held on to plaintiff's legs and Blount placed leg restraints on him. After plaintiff was placed in full restraints, paramedics came and took plaintiff to the hospital.
Plaintiff was in kidney failure at the time he was taken to the hospital, and also suffered contusions, scrapes, cuts, and abrasions to his elbows, arms, hands, legs, and face. Plaintiff also suffered burns and punctures from the Taser applications. Plaintiff was sedated for two days, and remained in kidney failure for three weeks, being diagnosed with acute renal failure and rhabdomyolysis, causing him to need daily dialysis. Plaintiff also suffered from compartment syndrome to his left arm and forearm, which required several surgeries.
Plaintiff filed suit on March 29, 2013, and filed the operative SAC on September 19, 2013, naming as defendants Wilhelm, Peters, Avina, Bohanon, and Clark from the Santa Rosa Police Department, and Blount and Horsman from the Sonoma County Sheriff's Department. In the SAC, plaintiff asserts one cause of action, under 42 U.S.C. § 1983, against all defendants, for deprivation of his Fourth Amendment right to be free from unreasonable searches and seizures and his Fourth Amendment right to be free from the use of excessive force.
Plaintiff now moves for summary judgment as to all defendants. However, his motion is based solely on his excessive force claim, not his search/seizure claim.
Some, but not all, of the Santa Rosa defendants have also moved for summary judgment. Specifically, defendants Bohanon and Clark have moved for summary judgment. The remaining Santa Rosa defendants (Wilhelm, Peters, and Avina) have not moved for summary judgment.
Finally, the Sonoma defendants (Horsman and Blount) filed an untimely motion for summary judgment. The court previously stated that it will consider the Sonoma defendants' filing, but only as part of their opposition to plaintiff's motion for summary judgment.
Thus, there are two motions currently before the court: (1) plaintiff's motion for summary judgment as to all defendants, and (2) defendants Bohanon and Clark's motion for summary judgment.
A party may move for summary judgment on a "claim or defense" or "part of . . . a claim or defense." Fed. R. Civ. P. 56(a). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.
Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.
When the moving party has carried its burden, the nonmoving party must respond with specific facts, supported by admissible evidence, showing a genuine issue for trial. Fed. R. Civ. P. 56(c), (e). But allegedly disputed facts must be material — the existence of only "some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."
When deciding a summary judgment motion, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor.
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.
The pertinent question in an excessive force case is whether the use of force was "objectively reasonable in light of the facts and circumstances confronting [the officers], without regard to their underlying intent or motivation."
The Supreme Court has unambiguously held that allegations of the use of excessive force in the course of making an arrest or other such seizure of a person are properly analyzed under the Fourth Amendment and its "objective reasonableness" standard, not as an Eighth Amendment violation and not as a violation of due process under the Fourteenth Amendment.
The analysis of whether a specific use of force was objectively reasonable "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake."
Factors that are considered in assessing the government interests at stake include, but are not limited to, "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."
As an initial matter, the court notes that plaintiff's motion repeatedly refers to defendants in the aggregate, even though the officers arrived at different times, used different levels of force, and were exposed to different types of resistance by plaintiff. Accordingly, the court will separately analyze plaintiff's motion as to (1) Santa Rosa defendants Peters, Wilhelm, and Avina, the first three officers to arrive on the scene, (2) Sonoma defendants Blount and Horsman, the next two officers to arrive on the scene, and (3) Santa Rosa defendants Bohanon and Clark, the last two officers to arrive on the scene.
As explained above, plaintiff alleges that Peters arrived on the scene at approximately 4:45am, and that Wilhelm arrived soon after. Wilhelm asked plaintiff for his identification, and plaintiff reached for his wallet, but then kept both of his hands in his back pockets. Peters and Wilhelm each grabbed one of plaintiff's arms, pulled them out of his pockets, and saw that plaintiff was holding a closed pocketknife. Peters then used a wrist lock and forced the knife out of plaintiff's hand, and Wilhelm used a wrist lock after feeling plaintiff "tense up." Both Peters and Wilhelm used their Tasers and their batons, Peters used his pepper spray, and Wilhelm performed a carotid hold for 30 seconds. Avina then arrived on the scene, kicked plaintiff in the stomach, and used his Taser. In total, plaintiff alleges that (1) Peters struck him ten times with a baton, used his Taser four times for a total of 16 seconds, performed a wrist lock hold and a figure four leg hold, and used an entire can of pepper spray, (2) Wilhelm struck him twelve times with a baton, used his Taser five times for a total of 24 seconds, performed a wrist lock hold and a 30-second carotid hold, tackled him to the ground, and held him in a "bear hug" for a "couple of minutes," (3) Avina kicked him five times, and used his Taser seven times for a total of one minute and 18 seconds.
Defendants challenge a number of these allegations, and separately argue that plaintiff "omits several pertinent facts about the knife," including that plaintiff "became enamored of knives" in the weeks leading up to the subject incident, and that plaintiff's family hid knives from him out of concern for their own safety. But because none of the defendants had any knowledge about plaintiff's alleged relationship with knives at the time of the subject incident, these allegations are irrelevant to the excessive force analysis.
However, defendants also dispute the facts regarding the actual force used by Peters, Wilhelm, and Avina. They claim that Peters "testified he did not know" how many times he struck plaintiff with his baton, but that his "best estimate" is three times. Defendants further claim that Wilhelm "testified he did not know" how many times he struck plaintiff with a baton, and that he struck him in the leg only once. Defendants claim that Avina testified that he kicked plaintiff once in the stomach and twice in the thigh. Defendants also claim that plaintiff was subjected to "no more than 35 seconds of effective Taser application," and that Wilhelm's carotid hold did not result in any injury or difficulty breathing. However, it does appear undisputed that Peters, Wilhelm, and Avina each used Tasers on plaintiff.
As explained above, under
The court also finds that there remain factual disputes regarding the second step of the
The parties dispute both the level of threat posed by plaintiff and the level of resistance exhibited by plaintiff. Plaintiff argues that he merely "passively" resisted arrest by failing to obey commands and holding his arms underneath him — though he admits that he kicked Peters in the knee. Defendants argue that plaintiff grasped a knife in his pocket, attempted to gain access to a patrol car in which weapons were stored, "pushed off the ground, wiggled, squirmed, flailed with legs when taken to the ground," and kicked and injured defendant Peters.
Overall, the court finds that the material factual disputes as to both prongs of the
After Peters, Wilhelm, and Avina, the next officers to arrive on the scene of plaintiff's arrest were defendants Blount and Horsman, both officers with the Sonoma County Sheriff's Department.
Plaintiff alleges that Blount used his Taser on him, and then struck plaintiff with his flashlight, including on the head. Plaintiff alleges that Horsman got on top of him, pinned his arm, and hit him 20 times with his fists. In total, plaintiff alleges that (1) Blount struck him twelve times with a flashlight and used his Taser three or four times, and that (2) Horsman struck him 20 times with his fists, and pressed his knee into plaintiff's shoulder.
In their opposition, Blount and Horsman do not dispute that they used "intermediate or medium non-lethal force," though Blount argues that any flashlight strike to plaintiff's head was an accidental "glancing strike" that occurred after he "accidentally struck another officer."
However, in addition to the specific allegations of force as to Blount and Horsman, plaintiff also argues that these defendants are liable for acts of force in which they were "integral participants." The "integral participation" theory allows liability for officers whose individual actions may not have risen to the level of a constitutional violation, but who had some "fundamental involvement" in the conduct that allegedly caused the violation.
Defendants argue that, in order to trigger the "integral participant" doctrine, plaintiff must show the existence of some before-the-fact plan to commit the alleged violation. The court finds no support in the case law for any such limitation, and instead finds that the determinative inquiry is whether defendants had a "fundamental involvement" in the alleged violation.
The court finds that there remain disputed issues of fact regarding whether defendants Blount and Horsman were "fundamentally involved" in, and thus were "integral participants" in, any alleged excessive force used by other officers (including Avina's alleged Taser use after Blount and Horsman arrived on the scene). Thus, the court cannot fully assess the quantum of force used by Blount and Horsman, as required by the first step in the
The last officers to arrive on the scene of plaintiff's arrest were defendants Bohanon and Clark, both with the Santa Rosa Police Department. Plaintiff alleges only that Clark pulled his left arm and assisted in handcuffing, and that Bohanon used a figure four leg hold and placed leg restraints on him.
Defendant Bohanon admits that he held plaintiff's legs, but disputes that it was a figure four hold. Bohanon and Clark do not appear to challenge the remainder of plaintiff's allegations.
However, to apply the first step of the
Overall, the court finds that there remain disputed issues of fact regarding whether defendants Bohanon and Clark were "fundamentally involved" in, and thus were "integral participants" in, any alleged excessive force used by other officers. Thus, the court cannot fully assess the quantum of force used by Bohanon and Clark, as required by the first step in the
Defendants Bohanon and Clark move for summary judgment in their favor, arguing that they did not use excessive force against plaintiff and that they are entitled to qualified immunity.
As to Bohanon and Clark's argument that they did not use excessive force against plaintiff, the court incorporates its previous analysis, and finds that there remain material factual disputes regarding both prongs of the
The court further finds that plaintiff has raised a disputed issue of material fact as to whether Bohanon and Clark failed to intercede despite having the opportunity to do so.
These material factual disputes preclude summary judgment in favor of Bohanon and Clark, just as they preclude summary judgment in favor of plaintiff, and Bohanon and Clark's motion is DENIED on the merits. However, the court will separately address Bohanon and Clark's qualified immunity argument.
The defense of qualified immunity protects "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."
A court considering a claim of qualified immunity must determine whether the plaintiff has alleged the deprivation of an actual constitutional right and whether such right was clearly established such that it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.
Regarding the first prong, the threshold question must be: Taken in the light most favorable to the party asserting the injury, do the facts alleged show that the defendant's conduct violated a constitutional right?
The inquiry of whether a constitutional right was clearly established must be undertaken in light of the specific context of the case, not as a broad general proposition.
"If there are genuine issues of material fact in issue relating to the historical facts of what the official knew or what he did, it is clear that these are questions of fact for the jury to determine."
The court finds that Bohanon and Clark's qualified immunity argument must be rejected under either prong. As explained above, the court has found that there remain material disputed issues of fact regarding whether plaintiff was subjected to the use of excessive force. If those disputed facts are viewed in a light most favorable to plaintiff, they show that Blount and Horsman violated a clearly established constitutional right. Thus, the court DENIES Bohanon and Clark's request for qualified immunity, and DENIES their motion for summary judgment.
For the foregoing reasons, the court DENIES plaintiff's motion for summary judgment as to all defendants, and DENIES defendants Bohanon and Clark's motion for summary judgment.
Finally, pursuant to Local Rule 72-1, this matter is referred to a Magistrate Judge to conduct a settlement conference by
