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May 18, 1990

LUCILLE A. McKENZIE, et al., Plaintiffs,
THE CITY OF MILPITAS, et al., Defendants

The opinion of the court was delivered by: AGUILAR



 Defendants, the City of Milpitas ("the City") and Milpitas Police Chief Frank Acosta ("Chief Acosta") bring this motion to dismiss, or, alternatively, for summary judgment, based on their allegations that plaintiffs have not stated actionable claims under 42 U.S.C. §§ 1981 and 1983, and that the evidence demonstrates that neither the City nor Chief Acosta violated plaintiffs' constitutional rights. City police officers were dispatched to plaintiffs' residence following a citizen's report of a possible domestic disturbance. A confrontation ensued, and Milpitas police officers used taser guns to subdue plaintiffs Lucille McKenzie and Cecil McKenzie, Jr. The McKenzies claim that the police officers' use of tasers constitutes unconstitutionally excessive force, and plaintiff Alverta Bradford joins the McKenzies in claiming that they were arrested without cause in violation of their constitutional rights. Plaintiffs do not allege that the individual officers are liable, but instead seek recovery from the City and the Chief pursuant to Monell v. Dept. of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).

 The complaint also alleges a violation of plaintiffs' rights under § 1981. Defendants state that the § 1981 claim must fail because there is no pleading or proof that the complained-of acts were motivated by racial animus. Plaintiffs seek leave to file a second amended complaint to allege a violation of their Fourth Amendment rights. Defendants oppose this amendment as futile.


 I. The Incident

 On March 19, 1988, Officer Pangelinan of the Milpitas Police Department was dispatched to the McKenzie residence following a citizen's report of a possible father-son dispute occurring in front of the residence. The twenty-two year old officer had no information about the disputants or the nature of the dispute other than that he was responding to a possible domestic conflict. Officer Pangelinan arrived at the scene, saw plaintiff Lucille McKenzie and her son Anthony arguing across the street from the residence, stepped out of his car and approached the pair with his taser in his hand.

 Officer Pangelinan approached to within six feet of the pair, and asked Mrs. McKenzie what was happening. She responded that it was a family matter and had been taken care of. The McKenzies started walking toward their house, and Pangelinan followed them in very close range, insisting that he had to know what was going on in order to make a report. Mrs. McKenzie turned around (Pangelinan followed so closely that when she turned, the two nearly collided), waved her finger at the officer, and told him again (in not very polite language) that the matter was family business. The officer walked across the street and called for emergency backup because he "was dealing with [Lucille McKenzie] a very irate person."

 Officer Comfort arrived shortly, observed Mrs. McKenzie talking to her sister, plaintiff Alverta Bradford, and was directed by Pangelinan to watch the front porch. By this time, Cecil McKenzie, Jr., Mrs. McKenzie's son, had joined three female McKenzie relatives on the porch. Officer Comfort observed that Cecil had his fists tightly clenched and was "about ready to explode." Officer Pangelinan radioed for additional backup. Officer Ferguson arrived and, at Officer Pangelinan's instruction, took up a position on the lawn, keeping a special watch on Cecil.

 Defendants state that Anthony McKenzie approached Officer Pangelinan to explain the situation to him, and that Lucille rushed out to stop her son from speaking to the officer. Alverta Bradford tried to restrain her, and newly-arrived Officer Ferguson stepped between the sisters to end their fight. Plaintiffs, on the other hand, explain that Alverta was just trying to comfort the visibly upset Lucille, and that Officer Ferguson physically pulled the sisters apart.

 According to defendants, a clench-fisted Cecil bolted across the front yard toward Officer Ferguson, ignored Officer Comfort's command to halt, and began to jump over a low fence that separated him from where Officer Ferguson stood between his mother and his aunt. Plaintiffs' version is that Cecil came to the porch, saw his mother crying on Alverta's shoulder, left the porch and ran towards her. As Cecil was about to jump over a low fence which separated the lawn from the sidewalk, he was tased in the back by Officer Comfort. Cecil "crumpled in midair, kind of went into a fetal position, came down on the sidewalk, just landed, and then rolled over on his stomach." Deposition of Officer Mark Ferguson at 71:6-15. Officer Ferguson immediately handcuffed Cecil.

 Lucille thought that the police had shot her son with a handgun, and started running toward Cecil and Officer Ferguson. Officer Pangelinan shouted for her to stop and shot Lucille with his taser twice in the back. Lucille shouted that the officers "shot her baby," and attempted to crawl toward her wounded son, but was restrained by Pangelinan, Comfort and Ferguson. While Lucille was on the ground, her head was pulled back, she was hit in the face, kicked in the stomach, and kicked in the back.

 Cecil, Lucille, Anthony and Alverta were subsequently arrested. Alverta, who allegedly interfered with the McKenzies' arrest, was placed on the ground, arrested, handcuffed and taken to the Milpitas police station. She was held for at least four hours before being released; charges were subsequently dismissed. Cecil and Lucille were taken to the Valley Medical Center *fn1" emergency room for clearance and citation; they later pled no contest to charges of violating California Penal Code § 148. Mrs. McKenzie states that while being arrested, she was hit in the back of the ...

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