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United States District Court, N.D. California

April 27, 2004.

JASON MEGGS, RYAN SALSBURY, et al., Plaintiffs;
CITY OF BERKELEY, et al., Defendants

The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District

This action involves consolidated lawsuits against the City of Berkeley, the Berkeley Police Department, Captain William Pittman, Sergeant Cynthia Harris, Sergeant Wesley Hester, and Officers Bernard Allen, Matthew Meredith, Gary Romano, Roderick Roe, Kay Smith, Victoria Crews, and Jitendra Singh ("defendants") for actions taken during three Critical Mass bicycle protests in Berkeley on April 13, 2001, July 13, 2001, and August 10, 2001. The related complaints allege eight causes of action, including several federal civil rights claims under 42 U.S.C. § 1983 and a number of state claims. Defendants filed a motion for summary judgment on December 8, 2003. On December 16, 2003, at the request of plaintiffs' counsel, this court continued the hearing date for defendants' motion until February 23, 2004. On February 11, 2004, again at the request of plaintiffs' counsel, this court continued the hearing date a second time, setting a hearing date on March 15, 2004. According to the order granting this second continuance, plaintiffs were required to file their opposition papers no later than February 17, 2004, and there were to be "absolutely no further continuances." Despite these explicit instructions, plaintiffs filed their opposition not on February 17, 2004, but instead on February 23, 2004, Moreover, in contravention of Local Rule 7-4(b), plaintiffs filed an opposition brief that totaled 98 pages without seeking prior leave of the court. In light of these circumstances, the court struck plaintiffs' opposition, deeming the matter unopposed and submitted on the papers. After denying the plaintiff's motion for reconsideration, the court now grants defendants' motion in part as unopposed.

Although the court strikes plaintiffs' opposition, which may seem on its face to be a harsh sanction, nevertheless the court reviewed the moving papers and videotape exhibits.*fn1 These reveal that the defendants' motion would have succeeded even had the court considered plaintiffs' opposition papers. In fact, even construing the facts in the light most favorable to the plaintiffs,*fn2 the plaintiffs' claims would have failed on all but one count.


  Plaintiffs allege that the defendants violated their rights under the First, Fourth, Fifth, and Fourteenth Amendments. Defendants argue that they are entitled to qualified immunity on all counts. When assessing qualified immunity pursuant to a motion for summary judgment, courts first ask whether the facts demonstrate that the defendants violated the plaintiffs' constitutional rights. Valdez v. Rosenbaum. 302 F.3d 1039, 1043 (9th Cir. 2002); see also Saucier v. Katz. 533 U.S. 194, 201 (2001). If the plaintiffs' claims do not establish the violation of a constitutional right, a state public official is entitled to qualified immunity.*fn3 Nearly all of the plaintiffs' constitutional claims are meritless.

  Plaintiffs' excessive force claims arising out of the August 10, 2001, protest are entirely without merit.*fn4 "[N]ot every push or shove, even if it may later seem unnecessary in [the] peace of a judge's chambers, violates the Fourth Amendment." Saucier. 533 U.S. at 209. The court has reviewed the relevant videotape evidence and observed nothing unreasonable in the officers' behavior; the officer's conduct involves only "pushes and shoves" that would be expected in regulating traffic flow during a bicycle protest, clearing the path for police vehicles and protecting fellow officers during citation and arrest procedures.*fn5 Even resolving all factual disputes in favor of the plaintiff, nothing about the officers' conduct approaches the minimum standard of unreasonableness required for a Fourth Amendment violation.

  Plaintiffs' property damage claims are also meritless. Plaintiffs allege that a constitutional violation resulted from the disconnection of speaker wires from a loudspeaker and from the bending of a trailer hitch. Assuming that such damage occurred, plaintiffs fail to demonstrate a Fourteenth Amendment violation. Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). Plaintiffs were not deprived of their property interest(s) in the wires or the trailer hitch. "A seizure of property . . . occurs when `there is some meaningful interference with an individual's possessary interests in that property." Soldal v. Cook County, 506 U.S. 56, 72 (1992). Bending a bicycle trailer hitch and fraying the ends of speaker wires does not "meaningfully" interfere with plaintiffs' possessary interests in these items.

  Plaintiffs' "false arrest" claims are equally unpersuasive. To prevail on a section 1983 claim for false arrest, plaintiffs must demonstrate that there was no probable cause to arrest them. Cabrera v. City of Huntington Park. 159 F.3d 374, 380 (9th Cir. 1998). The videotaped evidence submitted by the defendants demonstrates that officers had probable cause to arrest both relevant plaintiffs. Plaintiffs' allegations that their constitutional rights were violated by the officers' issuance of traffic citations for various traffic violations likewise do not state a constitutional violation.*fn6 Officers have authority to issue citations for behavior for which they would have had probable cause to arrest.*fn7 The videotape exhibits and the plaintiffs' own deposition testimony establish that the plaintiffs engaged in the behavior for which they were cited during the April 13 and July 13 demonstrations.*fn8

  Plaintiffs' First Amendment claims are likewise unavailing because all allegations are entirely conclusory. To establish a violation of the First Amendment, plaintiffs must show that "by [their] actions [the defendants] deterred or chilled [the plaintiffs'] political speech and such deterrence was a substantial or motivating factor in [the defendants'] conduct." Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). Plaintiffs allege nothing to create a genuine issue for trial that demonstrates deterrence of their First Amendment activities. Nor can they demonstrate a genuine issue of material fact that the defendants' motivation for their conduct was to deter exercise of the plaintiffs' First Amendment rights.

  Finally, the plaintiffs' equal protection claims regarding supposed selective enforcement are unconvincing. To establish a constitutional claim of selective enforcement, the challenged police action must have "had a discriminatory effect and [been] motivated by a discriminatory purpose." Wayte v. United States. 470 U.S. 598, 608 (1985); United States v. Dumas. 64 F.3d 1427, 1431 (9th Cir. 1995) ("Equal protection is violated when the decision to prosecute is based upon impermissible factors such as race."). The evidence must show that an official chose to prosecute "at least in part `because of not merely `in spite of,' its adverse effects upon an identifiable group." Wayte, 470 U.S. at 610.*fn9 The decision to mail citations to plaintiffs was not based on discriminatory purpose, but on the availability of information at the time the officers reviewed their videotapes of the April 13 protest. Plaintiffs' equal protection claim is therefore untenable.

  By contrast, one plaintiff states a single colorable claim of constitutional violation. Plaintiff Payne was cited by Officer Meredith during the July 13, 2001, ride for running a stop sign. After pulling Payne over, Meredith handcuffed him and asked for identification. Payne refused to give Meredith his name, so Meredith, instead of arresting Payne for failing to identify himself under California Penal Code section 853.5, removed Payne's wallet from his pocket to obtain the information he needed to issue the citation. See Defs.' Mot. for Summ. J., at 6. While the citation itself was supported by probable cause, the conduct of the officer may give rise to a constitutional claim for which Officer Meredith is not entitled to qualified immunity. By searching Payne's person for his identification in the absence of reasonable suspicion of danger,*fn10 Meredith may have exceeded the scope of a permissible search. Accordingly, Payne states a cognizable claim that Meredith may have violated Payne's rights under the Fourth Amendment.*fn11 Although Meredith would be entitled to qualified immunity for a reasonable mistake as to the legality of his actions, the court cannot conclude as a matter of law that this officer's mistake was a reasonable one.*fn12 Saucier, 533 U.S. at 206. CONCLUSION

  With the exception of Payne's claim for violation of his Fourth Amendment rights under 42 U.S.C. § 1983 against Sergeant Meredith, defendants' motion for summary judgment is GRANTED as to all claims. Payne's Fourth Amendment claim is DISMISSED.*fn13


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