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August 6, 1993

COMING UP, INC. and KIM CORSARO, Plaintiffs,

The opinion of the court was delivered by: D. LOWELL JENSEN

 This civil rights action has now reached the stage where the Court must determine whether the City of San Francisco is a proper defendant in plaintiffs' 42 U.S.C. § 1983 cause of action. On June 16, 1993, the Court heard plaintiffs' and the City's cross-motions for summary judgment on the discrete issue of Monell liability. William Bennett Turner of Rogers, Joseph, O'Donnell & Quinn appeared for plaintiffs. Linda M. Ross of the City Attorney's Office appeared for defendants City of San Francisco and Anthony Ribera. Vincent J. Courtney and Bruce T. Wilson of Davis, Reno & Courtney appeared for defendants Gary Delagnes, Jerry Golz, and Tom Yuen. Having considered the papers submitted, the arguments of counsel, the applicable law, and the entire record herein, the Court DENIES plaintiffs' motion and GRANTS defendant City's motion for the following reasons.


 A. Factual History

 This well-known civil rights lawsuit stems from the seizure of between 2,000 and 4,000 copies of the Bay Times, a free, biweekly newspaper distributed primarily within San Francisco. The Bay Times reports on topical issues and is directed toward the citizens of San Francisco, particularly the gay, lesbian, and bisexual communities.

 On May 7, 1992, the Bay Times published and distributed a critical account of how San Francisco police and then Police Chief Richard Hongisto handled the demonstrations that followed the verdict in the first Rodney King beating case. The May 7th Bay Times front page contained a picture of Hongisto's face superimposed on the body of someone dressed in a police uniform. The person depicted was holding a police baton, or nightstick, between his legs. The image plainly intended to deride and lampoon the police chief, conjuring up an image of Hongisto clutching an erect penis with both hands. The caption on the cover read, "Dick's Cool New Tool: Martial Law."

 Plaintiffs allege that Hongisto, apparently upset by the offensive publication, attempted to prevent circulation of the May 7th edition by ordering the papers removed from their distribution stands. Specifically, plaintiffs assert that Hongisto directed Sergeant Gary Delagnes to remove the papers who, in turn, instructed police inspector Jerry Golz and officer Tom Yuen to confiscate copies of the Bay Times. Plaintiffs further allege that Hongisto, Delagnes, Golz, and Yuen conspired to seize and remove the newspapers from the racks.

 Plaintiffs contend that Hongisto's plan was executed during the early morning hours of May 8, 1992, when Delagnes, Golz, and Yuen, while on duty, driving an undercover police vehicle, seized the newspapers from the Mission, Castro, and Upper Market districts of San Francisco. Plaintiffs aver that between 2,000 and 4,000 copies of the newspaper were seized and that about 2,000 of the seized newspapers were eventually returned to plaintiffs by members of the San Francisco Police Department.

 On May 15, 1992, after an investigation and a special meeting, the San Francisco Police Commission ("Commission") unanimously decided to discharge Hongisto for his involvement with the seizure of the Bay Times newspapers. On the same date, District Attorney Arlo Smith of the City and County of San Francisco announced that no criminal charges would be filed against Hongisto, reportedly explaining that the seizing of these newspapers does not violate state theft laws because the papers were given away for free.

 B. Procedural History

 On September 9, 1992, plaintiffs Coming Up, Inc., the corporation that publishes the Bay Times, and Kim Corsaro, editor and publisher of the Bay Times, commenced this lawsuit. The defendants in this action are the City and County of San Francisco ("City"); Richard Hongisto, then Police Chief of the San Francisco Police Department ("SFPD" or "Department"); Anthony Ribera, the current Chief of Police, who is sued only in his official capacity; *fn1" Gary Delagnes, a sergeant for the SFPD; Jerry Golz, an inspector for the SFPD; and Tom Yuen, a police officer for the SFPD.

 Plaintiffs plead four causes of action: (1) violation of 42 U.S.C. § 1983; (2) violation of California Civil Code § 52.1; (3) violation of the California Constitution; and (4) declaratory relief. Plaintiffs' first cause of action seeks injunctive relief and compensatory damages against all defendants, and punitive damages against Hongisto, Delagnes, Golz, and Yuen. Plaintiffs' second and third claims seek injunctive relief and damages. The fourth claim seeks declaratory relief.

 The City has asserted cross-claims against defendants Hongisto, Delagnes, Golz, and Yuen. Hongisto, in turn, has asserted his own cross-claims against all defendants. Similarly, defendants Delagnes, Golz, and Yuen have advanced cross-claims against both the City and Hongisto.

 On December 7, 1992, the Court denied the City's motion to dismiss the section 1983 cause of action. The Court concluded that because both the City and plaintiffs relied on the San Francisco Charter to support their positions, dismissing the action would be improper. As the determination of the City's so-called Monell liability turned on evidence outside the four corners of plaintiffs' pleading, the Court noted that a summary judgment motion would be the proper testing ground for considering the issue.

 Accordingly, on April 14, 1993, defendant City moved for summary judgment on plaintiffs' section 1983 cause of action. Plaintiffs have cross-moved on the same issue. Defendants Delagnes, Golz, and Yuen oppose the City's motion, and have submitted papers to support their position. The center of the storm, defendant Hongisto, has remained silent on the matter. After several stipulations postponing the hearing, the parties settled on the June 16, 1993 hearing date. The Court now resolves the cross-motions, which address only the question of whether or not the City can be held liable under the principle enunciated by the U.S. Supreme Court in Monell v. Department of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).


 Under Rule 56(c) of the Federal Rules of Civil Procedure, a district court may grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is 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(c).

 Recognizing that summary judgment motions can contribute significantly to the resolution of litigation when there are no factual issues, the Supreme Court and the Ninth Circuit have established the following standards for consideration of such motions: "If the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrates the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting Fed. R. Civ. P. 56(e) (emphasis added) and citing Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949, 107 S. Ct. 435, 93 L. Ed. 2d 384 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)). With respect to these specific facts offered by the non-moving party, the court does not make credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the non-moving party. T.W. Elec. Serv., 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348, 1356 (1986)).

 Rule 56(c) nevertheless requires this Court to enter summary judgment, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 106 S. Ct. at 2552. The mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient: "There must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). This Court thus applies to either a defendant's or plaintiff's motion for summary judgment the same standard as for a motion for directed verdict: "Whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id.


 The Court's sole task is to determine whether or not the City may be held liable under 42 U.S.C. § 1983 for plaintiffs' damages. Both the City and plaintiffs agree that the Court, and not a jury, must resolve this issue. See City's Moving Brief, Apr. 14, 1993, at 14; Plaintiffs' Opposition and Cross-Motion Brief, May 10, 1993, at 4; see also Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S. Ct. 2702, 2723, 105 L. Ed. 2d 598 (1989).

 A. Legal Standard for 42 U.S.C. § 1983

 To support a claim under 42 U.S.C. § 1983, plaintiffs must demonstrate two elements: (1) the violation of a right secured by the Constitution and laws of the United States; and (2) that the alleged violation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d 40 (1988).

 In this case, plaintiffs allege violation of their First, Fourteenth, and Fourth Amendment rights by Hongisto's direction to, or conspiracy with, Delagnes, Golz, and Yuen to seize newspapers in retaliation for plaintiffs' exercise of protected speech.

 B. The Concept of Monell Liability

 1. Legal Standard

 A municipality, such as the City, may not be found liable under section 1983 in respondeat superior for the acts of its employees. Monell, 98 S. Ct. at 2036. *fn2"

 However, the U.S. Supreme Court in Monell overruled its decision in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), which had immunized municipalities from suit under section 1983, by holding that municipal governments may be sued for section 1983 violations which were caused by their own unconstitutional or illegal policies. The Court's analysis of the legislative history of the "Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies." Monell, 98 S. Ct. at 2035 (emphasis in original).

 Municipalities can be sued directly for section 1983 violations caused by a "policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." Id. at 2036. In addition to "official policy," local governments may be sued for deprivations "pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. The custom, although not authorized by written law, must be "so permanent and well settled as to constitute a 'custom or usage' with the force of law." Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 1613, 26 L. Ed. 2d 142 (1970)).

 The concise rule, in sum, is that "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury [then] that the government as an entity is responsible under § 1983." Id. at 2037-38.

 The existence of an official municipal policy or custom may be established in several ways. First, actions by the municipal legislative body, even single acts, constitute official policies. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986) ("No one has ever doubted . . . that a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body -- whether or not that body had taken similar action in the past or intended to do so ...

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