United States District Court, N.D. California, San Jose Division
December 2, 2005.
DOMINGO ALVAREZ, et al., Plaintiffs,
CITY OF LOS ALTOS, et al., Defendants.
The opinion of the court was delivered by: JEREMY FOGEL, District Judge
ORDER*fn1 GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants City of Los Altos ("City"), Police Officer Scott
McCrossin ("McCrossin"), and Police Captain Tom Connelly
("Connelly") (collectively "Defendants") move for an order of
summary judgment pursuant to Rule 56(c) of the Federal Rules of
Civil Procedure. The Court has read the moving and responding
papers and has considered the arguments of counsel presented on
October 14, 2005, as well as supplemental briefing submitted
after the hearing. For the reasons set forth below, the Court
will grant Defendants' motion for summary judgment. I. BACKGROUND
On July 3, 2003, Los Altos Police Officers McCrossin and
Connelly*fn2 arrested, cited and released Domingo Alvarez,
Cruz Arenas, Willy Escobar, Joaquin Chavez, Miguel Estrada, Juan
Florez, Hector Ortiz, and Jose Rodriguez (collectively
"Plaintiffs") for trespassing on private property pursuant to
former California Penal Code § 602(1).*fn3 Connelly Dec., ¶
3; Opp. at 2. It is undisputed that the arrests were preceded by
the following events: At approximately 8:56 a.m. on July 3, 2003,
Connelly observed Plaintiffs "loitering" on private commercial
property located at 4898 El Camino Real (the "Gundunas
property"), on the corner of Jordan Avenue, in the City of Los
Altos.*fn4 Connelly Dec., ¶¶ 2, 3. Plaintiffs, who are day
laborers, were awaiting opportunities for employment. Connelly
Dec., ¶ 3; Opp. at 2. Upon initiating contact with Plaintiffs,
Connelly recorded their specific locations, noting that two of
the Plaintiffs were seated on a porch which accessed the building
and six of the Plaintiffs were standing on an asphalt driveway
near the rear of the building. Connelly Dec., ¶ 9, Exs. C1-C4.
Connelly also noted that Plaintiffs were not near one of the
surrounding public sidewalks, which were located at the front and
rear of the Gundunas property. Id. For purposes of the present
motion, Plaintiffs do not dispute that McCrossin and Connelly
reasonably believed that Plaintiffs were standing or sitting on
private property at the time the citations were issued.*fn5
Opp. at 3. At the time Connelly observed Plaintiffs on July 3, 2003, he
was aware that Louis Gundunas, the property owner at 4898 El
Camino Real, had complained to the City regarding prior
trespasses on his property on at least seven occasions during the
first half of 2003. Connelly Dec., ¶ 4. Mr. Gundunas previously
had informed the City that trespassers had caused damage to the
building and landscaping, had discarded trash on the property,
and had scared away customers. Id. On several occasions prior
to July 3, 2003, Mr. Gundunas had spoken personally with Connelly
and Officer Brent Butler regarding the ongoing trespassing issues
at his property. Id., ¶ 5. Connelly advised Mr. Gundunas to
post "No Trespassing" signs on the property and to contact the
police when individuals were loitering or causing problems on the
property. Id. On July 3, 2003, the Gundunas property was posted
with four "No Trespassing" or "Private Property" signs. Connelly
Dec., ¶ 5, Exs. C5-C6.
Connelly previously had encountered Plaintiff Juan Florez on
the Gundunas property and had issued him a warning about
trespassing. Connelly Dec., ¶ 6. In addition, Connelly had
observed at least three of the Plaintiffs "loitering" on the
Gundunas property in the past. Id., ¶ 8. On June 17, 2003, Los
Altos Police Officers Sweezy and Corkern encountered Plaintiff
Cruz Arenas on the Gundunas property and had issued him a warning
about trespassing. Id.
Based on the July 3, 2003 incident, Plaintiffs filed suit
against the City, McCrossin, and Connelly under 42 U.S.C. § 1983
("Section 1983") for violation of Plaintiffs' rights under the
First, Fourth, and Fourteenth Amendments to the
U.S. Constitution. Plaintiffs contend that it was unreasonable for
McCrossin and Connelly to arrest and cite them for criminal
trespass under the facts presented. Opp. at 5. Defendants now
move for summary judgment.
II. LEGAL STANDARD
A motion for summary judgment should be granted if there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving
party bears the initial burden of informing the Court of the
basis for the motion and identifying the portions of the
pleadings, depositions, answers to interrogatories, admissions,
or affidavits that demonstrate the absence of a triable issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
"When the nonmoving party has the burden of proof at trial, the
moving party need only point out `that there is an absence of
evidence to support the nonmoving party's case.'" Devereaux v.
Abbey, 263 F.3d 1070, (9th Cir. 2001) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)). Once the moving party meets
this burden, the nonmoving party may not rest upon mere
allegations or denials, but must present evidence sufficient to
demonstrate that there is a genuine issue for trial. Id. A
genuine issue for trial exists if the non-moving party presents
evidence from which a reasonable jury, viewing the evidence in
the light most favorable to that party, could resolve the
material issue in his or her favor. Anderson, 477 U.S. 242,
248-49; Barlow v. Ground, 943 F.2d 1132, 1134-36 (9th Cir.
Defendants move for summary judgment on two grounds. First,
McCrossin and Connelly contend that they are insulated from
liability under the doctrine of qualified immunity. Second, the
City argues that it is not liable under 42 U.S.C. § 1983 for the
individual actions of McCrossin and Connelly because the officers
were not acting pursuant to any City policy or custom when they
A. Entitlement to Qualified Immunity
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." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).*fn6 The rule of qualified immunity "`provides ample
protection to all but the plainly incompetent or those who
knowingly violate the law.'" Saucier v. Katz, 533 U.S. 194, 202
(2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
"Therefore, regardless of whether the constitutional violation occurred, the [official]
should prevail if the right asserted by the plaintiff was not
`clearly established' or the [official] could have reasonably
believed that his particular conduct was lawful." Romero v.
Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).
A court considering a claim of qualified immunity first must
determine whether the facts as alleged, taken in the light most
favorable to the party asserting the injury, show that the
officer's conduct violated a constitutional right. See Saucier,
533 U.S. at 201; Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.
2002). "If no constitutional right would have been violated were
the allegations established, there is no necessity for further
inquiries concerning qualified immunity." Saucier,
533 U.S. at 201. On the other hand, if a violation could be made out on the
allegations, the next sequential step is to ask whether the right
was "clearly established."*fn7 Saucier, 533 U.S. at 202;
Sorrels, 290 F.3d at 969. "The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted." Saucier,
533 U.S. at 202. "If the law did not put the officer on notice that his
conduct would be clearly unlawful, summary judgment based on
qualified immunity is appropriate." Id. Moreover, even if the
violated right is clearly established, the officer is entitled to
the qualified immunity defense if "the officer's mistake as to
what the law requires [was] reasonable."*fn8 Id. at 205.
In the instant action, Plaintiffs argue that it was not
objectively reasonable for McCrossin and Connelly to arrest and
cite them under former California Penal Code § 602(1). Under that
statute, the following conduct is unlawful: "Entering and
occupying real property or structures of any kind without the
consent of the owner, the owner's agent, or the person in lawful
possession." Plaintiffs argue correctly that Section 602(1)
requires the occupation of real property, construed as a "non-transient, continuous type of
possession." See People v. Harper, 269 Cal. App. 2d 221, 222
(1969) (holding that a burglar establishes only transient
possession and therefore does not commit criminal trespass under
Section 602(1)); People v. Wilkinson, 248 Cal. App. 2d Supp.
906, 909-910 (1967) (holding that an unauthorized overnight stay
on a private beach by a group of campers did not amount to a
criminal trespass under Section 602(1)). Applying this principle
to the facts at hand, Plaintiffs contend that an objectively
reasonable police officer could not believe that they were
"occupying" the Gundunas property as required by Section 602(1).
Accordingly, Plaintiffs argue that McCrossin and Connelly are not
entitled to qualified immunity.
Although Section 602(1) has been judicially construed to
require non-transient and continuous possession in order to
establish a trespass, the Court concludes that a reasonable
police officer could have believed that Section 602(1) was
applicable to Plaintiffs' conduct. "The concern of the immunity
inquiry is to acknowledge that reasonable mistakes can be made as
to the legal constraints on particular police conduct."
Saucier, 533 U.S. at 205. "It is sometimes difficult for an
officer to determine how the relevant legal doctrine . . . will
apply to the factual situation the officer confronts." Id.
Here, the decision to arrest Plaintiffs was made with full
knowledge of the property owner's numerous prior complaints and
the officers' own prior observation of certain Plaintiffs on the
Gundunas property. There is no indication that a reasonable
police officer necessarily would have been aware of the judicial
construction of "occupying" as used in Section 602(1).
Accordingly, the Court concludes that it was not objectively
unreasonable for McCrossin and Connelly to arrest and cite
Plaintiffs for criminal trespass in violation of Section
602(1).*fn9 The Court will grant summary judgment in favor
of McCrossin and Connelly.
B. Applicability of Respondeat Superior or Vicarious
"[A] local government may not be sued under § 1983 for an
injury inflicted solely by its employees or agents." Monell v.
New York City Dept. of Social Services, 436 U.S. 658, 694
(1978). "Instead, it is 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 that the government as an entity is responsible under
§ 1983." Id. In examining municipal liability under Section
1983, a court must determine "whether there is a direct causal
link between a municipal policy or custom and the alleged
constitutional deprivation." Canton v. Harris, 489 U.S. 378,
Plaintiffs' allegation that the City has a policy aimed at
curbing the ability of day workers to pursue employment is based
entirely upon the fact that the City enacted an
"anti-solicitation" ordinance several years prior to the events
at issue in this litigation.*fn10 Plaintiffs note that in
August 2002, this Court issued a preliminary injunction
precluding enforcement of the "anti-solicitation" ordinance.
Plaintiffs therefore conclude that the connection between the
arrests prompting this litigation and the unconstitutional
ordinance is "readily manifest." Opp. at 10. However, by merely
directing the Court's attention to the former "anti-solicitation"
ordinance, Plaintiffs have not produced sufficient evidence to establish a
direct causal link between the alleged unlawful arrests and a
City policy or custom directed at curbing the ability of day
workers to pursue employment. As Defendants convincingly point
out, the "anti-solicitation" ordinance no longer was in effect
when Plaintiffs were arrested on July 3, 2003, and there is no
evidence that the City was enforcing the ordinance in violation
of this Court's August 2002 injunction.*fn11 Moreover, to
the extent that Plaintiffs argue that the ordinance is indicative
of a broader informal policy or custom aimed at prohibiting
loitering by day laborers, the Court concludes that Plaintiffs'
allegation is unsupported by any evidence in the record. Indeed,
the undisputed facts demonstrate that McCrossin and Connelly
arrested Plaintiffs under the reasonable belief that Plaintiffs
were trespassing, only after receiving complaints from Louis
Gundunas on at least seven occasions and after issuing personal
warnings to individuals loitering on the Gundunas property,
including at least two of the Plaintiffs. The facts do not
suggest that Plaintiffs' status as day laborers motivated
McCrossin and Connelly to make the arrests. Accordingly,
Plaintiffs have failed to demonstrate that there is a genuine
issue of material fact for trial as to the City's liability under
Section 1983.*fn12 The Court will grant summary judgment in
favor of the City.
Defendants' motion for summary judgment is GRANTED.
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