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United States District Court, S.D. California

December 7, 2005.

JOHN PADILLA, Plaintiff,

The opinion of the court was delivered by: RUDI BREWSTER, Senior District Judge


For the reasons discussed below the Court finds, based on controlling precedent in this jurisdiction, that Officer Darryl Emerson ("Defendant") employed excessive force when he briefly leaned against Officer Padilla ("Plaintiff"), after completing a pat down search. However, Defendant's conduct was protected by qualified immunity because, at the time of the incident, it was not clearly established that a brief lean, such as the one at issue in this case, was a violation of a party's rights under the Fourth Amendment of the United States Constitution. Therefore the Court finds in favor of DEFENDANT. I. Factual Background

The conduct at issue in this matter took place on June 11, 2002. On that date Defendant was conducting traffic enforcement along the 6900 block of Otay Mesa Road. At approximately 1:45 p.m. Defendant determined, using his own judgment and a laser gun, that a red 1995 Ford pickup truck, traveling eastbound on Otay Mesa Road, was exceeding the posted speed limit. It was subsequently determined that Plaintiff was driving the truck in question.

  Defendant attempted to flag the vehicle down but the truck proceeded past the officer without stopping or slowing. Defendant then gave chase on his motorcycle, with the lights flashing and siren sounding. During the chase Defendant moved to the left edge of the lane in order to be clearly visible to the driver of the truck, but this apparently had no effect. The chase continued for approximately two miles, with speeds exceeding 80 miles per hour. Plaintiff eventually stopped outside Donovan Prison due to stopped traffic.

  Once Plaintiff stopped Defendant positioned his motorcycle at the front of Plaintiff's truck and ordered plaintiff to exit the vehicle. After several orders to exit the vehicle Plaintiff opened the driver's side door and Defendant guided him from the vehicle by taking hold of Plaintiff's left arm. Defendant then turned Plaintiff around and pushed him face forward against the side of the truck while conducting a pat down search of Plaintiff. During the pat down search Defendant held Plaintiff's arm behind his back. After the search was complete Defendant leaned against Plaintiff and spoke loudly into his ear. The incident, from the point where Plaintiff exited the vehicle to the termination of the leaning, took between five and fifteen seconds. Defendant subsequently issued Plaintiff a traffic citation for exceeding the speed limit.

  Plaintiff filed suit against Defendant, the City of San Diego, and the San Diego Police Department alleging that Defendant violated his rights under the Fourth Amendment by using excessive force, and committed the common law torts of battery, false arrest, and intentional infliction of emotional distress. The matter was tried to the court on September 27-29, 2005. After careful consideration of the evidence presented at trial as well as supplemental briefing provided by the parties the court enters the decision below.

  II. Discussion

  A. Legal Standard

  1. Excessive Force

  The Supreme Court has determined that the Fourth Amendment's "objective reasonableness" standard applies when analyzing claims of excessive force stemming from police conduct during arrests or investigatory stops. Graham v. Connor, 490 U.S. 386, 388 (1989). The Graham court noted that the right to make an arrest or investigatory stop necessarily carries with it a right to use some degree of force or threat of force. Id. at 396. In order to determine if the amount of force used is excessive, however, a court must balance the nature and quality of the intrusion on the individual's Fourth Amendment rights against the governmental interest at stake. Id. The Court noted that "the `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. The Court also cautioned that "not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment. Id. The reasonableness inquiry must make allowance for the fact that police officers are often forced to make split-second decisions, under adverse conditions, about the appropriate amount of force. Id. at 397. At its core, the inquiry must look at whether the officer's conduct was objectively reasonable given the facts and circumstances confronting him such as the severity of the crime, whether the suspect poses a threat to the safety of the officer or others, and whether the suspect is resisting arrest or attempting to evade arrest by flight. Id. at 396-397.

  While the Supreme Court has outlined the boundaries of the excessive force analysis it has not specifically addressed whether an actual injury is required to sustain an excessive force claim. The Ninth Circuit has held that a plaintiff may recover nominal damages for an excessive force claim if the defendant officer violated the plaintiff's constitutional rights without a privilege or immunity, even if the plaintiff suffered no actual damage. Wilks v. Reyes, 5 F.3d 412, 416 (9th Cir. 1993) (directing the district court to enter a nominal award of $1 where the jury found in favor of plaintiff but awarded no damages). Therefore the key inquiry when evaluating a 42 U.S.C. § 1983 claim for excessive force is not whether the plaintiff suffered an injury but whether the accused officer violated the plaintiffs Fourth Amendment rights.

  In Graham the Supreme Court held that the excessive force inquiry must be evaluated based on the facts as they appeared to the officer at the time. 490 U.S. at 396. The Court further cautioned that not all uses of force which might seem objectionable in hindsight are necessarily Fourth Amendment violations. Id. However, the Ninth Circuit has taken a more rigid approach to this analysis. The Ninth Circuit has held that use of any force greater than that necessary to accomplish legitimate police purposes is objectively unreasonable and therefore by definition excessive. See Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (holding that where minimal or no force was necessary, grabbing a person, throwing the person to the ground, and twisting the person's arm while handcuffing the person was unreasonable); P.B. v. Koch, 96 F.3d 1298, 1303-4 n. 4 (9th Cir. 1996) (finding that where there was no need for force any use of force was objectively unreasonable). Thus, in this jurisdiction, any use of force beyond that strictly necessary to accomplish legitimate police activities is necessarily excessive and a violation of a party's rights under the Fourth Amendment.

  2. Qualified Immunity

  In Saucier v. Katz the Supreme Court explored the application of qualified immunity in light of its decision about excessive force in Graham. 533 U.S. 194 (2001). In general an officer is entitled to qualified immunity when acting within the scope of the office. Only when an officer exceeds that authority is this immunity forfeited. The Court held that the determination of whether qualified immunity is lost proceeds in two steps: 1) the court must determine whether the officer's conduct violated a constitutional right; and 2) the court must decide if that right was clearly established at the time. Id. at 201. If the answer to either of these questions is no, then qualified immunity applies.

  The Court was careful to note that in the context of excessive force claims the objective reasonableness analysis and qualified immunity analysis are distinct inquiries. The objective reasonableness analysis looks at whether the officer's conduct was objectively reasonable given the facts and circumstances of the specific situation. Id. at 204-5. The qualified immunity analysis, however, includes a further dimension. The Court noted that:

The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.
Id. at 205. The Court went on to note that, given the highly fact specific nature of the Graham analysis, it is not always clear when a given level of force will be found excessive by a court. Id. Qualified immunity exists to protect officers from liability when their conduct falls along the border between excessive and permissible levels of force. Id. at 206. Essentially, qualified immunity protects officers in situations where the level of force used is found by a court to be unreasonable, but the officer had no reason to expect such a finding.

  The Supreme Court also noted that the second prong of the Saucier analysis requires careful consideration. The Court observed that "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violated that right." 533 U.S. at 202 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Therefore the inquiry is not simply whether the constitutional right has been established in broad strokes, but whether reasonable officials would understand that the accused conduct is objectionable. The Ninth Circuit has held that, in the absence of binding precedent, a court should look to all available decisional law, including decisions of state courts and courts in other circuits, to determine if a right is clearly established. Ward v. County of San Diego, 791 F.2d 1329, 1332 (9t Cir. 1986). However, while it is the responsibility of law enforcement officials to stay informed about constitutional developments, these officials are not required to become legal scholars to satisfy the requirements of qualified immunity. Id. Thus, when determining whether an official should understand that a right was clearly established, the court must employ a reasonable person standard and not expect officials to know the minute details, or implications, of the law. Id.

  B. Analysis

  In this case there are two courses of conduct at issue. First is Defendant's conduct in extracting Plaintiff from his vehicle, placing him against the vehicle, and searching him. The second course of conduct involved Defendant's leaning against Plaintiff and speaking into his ear. As to the first course of conduct, Defendant acted reasonably when he took hold of Plaintiff to control and guide him from the truck. At the time, Defendant had already attempted to flag Plaintiff down for a speeding violation, had chased Plaintiff for roughly two miles with lights flashing and the siren sounding, and, once Plaintiff had finally stopped, had ordered Plaintiff from the vehicle multiple times. Given these circumstances the Defendant had a legitimate concern about the individual he was dealing with and acted reasonably in using some force to remove Plaintiff from the vehicle, place him against the side of the vehicle, and then conduct a pat down search of Plaintiff. The amount of force used by Defendant in these acts was minor, reasonable, and entirely warranted by the circumstances. Therefore these actions did not constitute excessive force in violation of Plaintiff's Fourth Amendment rights and Defendant is entitled to qualified immunity under the first prong of the Saucier analysis. See Martin v. City of Oceanside, 360 F.3d 1078, 1081-82 (9th Cir. 2004) (holding that where there was no constitutional violation officer was entitled to qualified immunity and there was no need to reach the second prong of Saucier).

  However, Defendant's conduct did not end with the search of Plaintiff. After completing the search Defendant leaned against Plaintiff and spoke into his ear, apparently in a loud voice. At that point Defendant had already completed the actions strictly necessary to ensure his safety and fulfill the legitimate police purpose, the leaning went beyond the amount of force strictly necessary. While the leaning did not apparently cause any injury,*fn1 under binding Ninth Circuit precedent a plaintiff may recover in a § 1983 suit for any invasion of a constitutional right which is not protected by a privilege or immunity, even if no injury results. See, e.g., Wilks, 5 F.3d at 416. Therefore, if the leaning was excessive and Defendant had no privilege or immunity then Plaintiff may recover.

  Defendant's brief leaning was exactly the sort of "push or shove" the Supreme Court observed would likely not violate a plaintiffs' rights under the Fourth Amendment. See Graham, 490 U.S. at 397. The Court noted that police officers are often faced with highly charged and rapidly evolving situations where they must make split second decisions about the use of force. Id. The Court cautioned that it would be inappropriate for courts reviewing such actions to view them in the calm of the court room, the reviewing court must consider the evolving situation facing the officer when determining if a use of force was appropriate. Id. However, the Ninth Circuit has adopted a more rigid analysis. In cases such as Erath and Koch the Ninth Circuit has held that any use of force greater than that necessary to accomplish legitimate police purposes is necessarily unreasonable and therefore excessive. See Erath, 342 F.3d at 1061; Koch, 96 F.3d at 1303-4 n. 4 (finding that where there was no need for force any use of force is objectively unreasonable). In this case once Defendant had extracted Plaintiff from the vehicle and searched him the legitimate police purpose of securing the Plaintiff was complete. The further action of leaning against Plaintiff and speaking loudly into his ear involved more force than was strictly necessary under the circumstances. While this minor, incidental application of force would not, according to the dicta of Graham, offend the Fourth Amendment, under the binding precedent in this jurisdiction, as articulated in Koch and Erath, Defendant's leaning constituted a use of excessive force. Therefore, if this use of force was not privileged or excused by an immunity Plaintiff is entitled to a nominal recovery under Wilks.

  In Saucier the Supreme Court noted that there are situations where it may be difficult for a reasonable officer to determine how a legal doctrine, such as excessive force, applies to a given factual situation. 530 U.S. at 205. According to the Court, qualified immunity exists to shield officers who attempt to act reasonably but are later found to have used an unacceptable level of force in performing their duties. In the words of the Court "[q]ualified immunity operates . . . to protect officers from the sometimes `hazy border between excessive and acceptable force.'" Id. at 206 (citing Priester v. Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000)).

  In this case, as discussed, Defendant's conduct violated Plaintiff's rights under the Fourth Amendment according to Ninth Circuit precedent. Therefore the first step of the qualified immunity analysis is satisfied. The only question then remaining is whether Defendant's conduct infringed a clearly established right. See Martin, 360 F.3d at 1082. The Ninth Circuit has held that, in the absence of binding precedent in this circuit, courts may look to all available decisional law to determine if a right is clearly established. Ward, 791 F.2d at 1332. While it is clearly established that the use of excessive force is a violation of a party's rights under the Fourth Amendment, and that specific kinds of conduct are objectionable, this court can find no decision clearly stating that the sort of conduct engaged in by Defendant, a brief lean incident to a lawful and appropriate search, constitutes excessive force. As discussed, this court is compelled by precedent to hold that Defendant's conduct was an unnecessary application of force and therefore a violation of Plaintiff's Fourth Amendment rights. However, Defendant was not on notice, and had no way of knowing, that such a brief application of force, which apparently caused no injury, violated the Plaintiff's Fourth Amendment rights. Therefore Defendant's reasonable mistake about the propriety of this application of force is shielded by qualified immunity under the second prong of the Saucier test.

  III. Conclusion

  As discussed above the incident in question proceeded in two phases. First, Defendant used a minimal amount of force to extract Plaintiff from his vehicle, place him against the side of the vehicle, and then search him. Plaintiff alleged that Defendant's conduct during this process represented excessive force leading to injury and should therefore serve as a basis for recovery on federal and state law grounds. The Court finds that, given the circumstances, which included a prolonged high speed chase and Plaintiff's repeated refusals to obey Defendant's orders to stop and to exit the vehicle, Defendant acted reasonably in using a minimal amount of force to remove Plaintiff from the vehicle. Since there was no infringement of a constitutional right Defendant's actions were shielded by qualified immunity and there is no liability.

  The second course of conduct involved the brief leaning of Defendant against Plaintiff after completing the search. While under the Supreme Court's guidance in Graham this sort of minor, incidental, force would likely not be a Fourth Amendment violation, under the Ninth Circuit's much more strict interpretation this application of force was objectively unreasonable and therefore, by definition, excessive. However, at the time Defendant was faced with this situation, he acted as a reasonable officer would have acted who desired to comply with the law. Therefore, under the second prong of the Saucier test, Defendant is entitled to qualified immunity. Given these findings, the court DECIDES in favor of DEFENDANT. Defendant shall prepare and submit Findings of Fact and Conclusions of Law consistent with this decision by January 9, 2006. Plaintiff shall file any objections or requested additions to these Findings of Fact and Conclusions of Law by January 29, 2006.



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