to further a legitimate state interest in maintaining prison security. Defendants argue that Milpitas' policy authorizes the use of tasers for a similar legitimate state interest: maintaining the personal safety of officers and others while conducting arrests and investigatory stops. The Court finds that there is clearly a distinction between threatening use of a taser to control a violent prisoner, and tasing a free citizen who does not cooperate with a police investigation.
The Court, however, need not reach the question of whether the use of a taser is a per se violation of the Fourth Amendment. Rather, the relevant inquiry in this § 1983 action is whether the City's taser policy foreseeably resulted in the deprivation of plaintiffs' constitutional rights.
2. The City's Taser Policy
Because the individual officers are not defendants in this action, plaintiffs may recover under § 1983 only if there is a direct causal link between the allegedly unconstitutional acts they complain of and a policy or custom established by the City or Chief Acosta. Monell, 436 U.S. at 690-91; City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 1203, 103 L. Ed. 2d 412 (1989). Defendants can only be found liable under § 1983 if the City's policy regarding the use of tasers caused the violation of plaintiffs' Fourth Amendment rights.
Defendants argue that the City's taser policy is reasonable as a matter of law since Milpitas police officers are authorized to use tasers only when reasonably necessary to control a subject who could not be controlled by less intrusive methods and/or who posed a threat to officers, and because the officers receive training in the use of tasers. The reasonableness of the use of force (and of the City's taser policy pursuant to which the officers were acting) "requires careful attention to the facts and circumstances of each particular case, including 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 [or she] is actively resisting arrest or attempting to evade arrest by flight." Graham, 109 S. Ct. at 1871; see also McKenzie v. Lamb, 738 F.2d 1005, 1011 (9th Cir. 1984) (reasonableness of use of force should be analyzed in light of such factors as officer safety, motivation for arrest and extent of injury inflicted).
The question of whether excessive force was used under the circumstances is usually one for the jury. McKenzie, 738 F.2d at 1008. There is considerable factual controversy as to whether the officers' use of tasers was objectively reasonable under the circumstances when tested against the Fourth Amendment standard. The McKenzies have alleged a constitutional deprivation of their Fourth Amendment rights.
D. Municipal Liability: The "Failure to Train" Theory
"The inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton, 109 S. Ct. at 1204. According to defendants, the Milpitas taser policy is constitutional, and plaintiffs cannot show any training inadequacies which amount to a "deliberate indifference" for plaintiffs' rights. Defendants argue, in effect, that the City trained the officers as to how to follow the City's taser policy, so it simply cannot be held accountable for failure to train. The provision of training does not end the inquiry: a policy which is constitutional on its face may give rise to violations of constitutional rights. Id. A particular officer's inadequate training is not enough to subject a municipality to liability for failure to train, but rather municipal liability is predicated on a close causal link between the identified deficiency in training and plaintiffs' constitutional violation. Id. Plaintiffs herein must prove that their injuries would have been avoided had the officers been trained under a sufficient program. Id.
It may happen that "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." City of Canton, 109 S. Ct. at 1205 (footnote omitted); see Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985) (the need to train officers in the constitutional limitations of the use of deadly force is "so obvious," that failure to do so could properly be characterized as "deliberate indifference" to constitutional rights). Milpitas' policy includes: supplying tasers to officers with limited experience; allowing officers to carry tasers when making investigatory stops; not requiring officers to holster their tasers; allowing officers to resort to the use of tasers immediately after verbal warnings; and, inadequately training officers in the constitutional ramifications and health hazards of using tasers. The City's taser policy is absolutely silent on arrest policy. Plaintiffs must prove that the City failed to train its officers, and that there is a causal connection between this failure and violation of their constitutional rights. Although this is a heavy burden, plaintiffs are entitled to present their case to a jury.
II. False Arrest
The McKenzies and Alverta Bradford allege that they were falsely arrested without probable cause. Plaintiffs have failed to allege that their arrests were the result of an improper City policy regarding arrest procedures, since plaintiffs only challenge the City's taser policy. Plaintiffs do not dispute this fatal defect, but extensively cite from a factually similar § 1983 case in which plaintiffs prevailed against individual officers on their claims that they were battered in violation of their due process rights. See Lewis v. Downs, 774 F.2d 711 (6th Cir. 1985). Because plaintiffs have failed to allege a municipal policy which caused their false arrest, plaintiffs' false arrest claims are dismissed. See Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988) (identifying an offending policy is an essential element of plaintiffs' § 1983 claims).
III. The Section 1981 Claims
Plaintiffs allege that the City and Chief Acosta violated their constitutional rights under 42 U.S.C. § 1981. Section 1981 guarantees that no person shall be denied equal rights under the law on account of race. An essential element of a valid § 1981 action is that defendants must have acted with the intent to discriminate on the basis of race. General Building Contractors Assoc., Inc. v. Pennsylvania, 458 U.S. 375, 391, 73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982); Stones v. Los Angeles Community College District, 796 F.2d 270, 272 (9th Cir 1986).
Defendants state that plaintiffs' § 1981 claims must be dismissed because plaintiffs fail to allege that defendants were motivated by racial animus, or, alternatively, that defendants are entitled to summary judgment because plaintiffs' own testimony negates any possible conclusion of racial animus. Plaintiffs, in deposition testimony, state that the officers did not use racially derogatory language or otherwise show racial bias in the course of the March 19, 1988 incident.
Plaintiffs counter that even though the officers were careful in their depositions not to mention race, the situation "indicates" a racial animus: The McKenzies are Black, the officers were scared of Lucille McKenzie and other female family members, and the officers "immediately resorted to the use of force in a situation whose objective context did not call for this force . . . ." Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss, or Alternatively, for Summary Judgment at 25. Discovery is closed, and plaintiffs offer only conjecture in support of their claims that they were falsely arrested and subjected to excessive use of force based upon the impermissible criterion of race. Stones, 796 F.2d at 273. Because plaintiffs have failed to allege a racially discriminatory motive, or to present any evidence of defendants' intent to discriminate, plaintiffs' § 1981 claim fails.
The Court grants in part and denies in part defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. Defendants' motion as to the "excessive force" claims is denied; there remains a triable issue of fact as to whether the City's taser policy and practice caused a violation of plaintiffs' civil rights. Defendants' motion to dismiss the "false arrest" claims and the "battery" claims is granted because plaintiffs failed to allege municipal liability. Defendants' motion to dismiss the § 1981 claims is granted because plaintiffs failed to allege racial animus. Plaintiffs' Motion for Leave to Amend is granted.
IT IS SO ORDERED.