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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. ยง 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 ...

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