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December 16, 2005.

SAM MORGAN, Plaintiff,
CITY OF PLEASANT HILL, et al., Defendants.

The opinion of the court was delivered by: CHARLES BREYER, District Judge


This section 1983 action arises out of the defendant police officers' 10 minute detention of plaintiff Sam Morgan, a California Highway Patrol Officer. Plaintiff alleges that there was no probable cause to detain him; the officers used excessive force; the detention was racially motivated; and the City of Pleasant Hill had a policy that led to these constitutional violations. Now pending before the Court is defendants' motion for summary judgment on all claims. After carefully considering the evidence and argument submitted by the parties, and having had the benefit of oral argument, defendants' motion is GRANTED in part and DENIED in part.


  At approximately 8:30 p.m. on December 19, 2003, a man called the Pleasant Hill police dispatcher. The caller reported that he had been in Einstein Entertainment in Pleasant Hill when two gentlemen came into the store. He reported further that the store employees then suddenly announced that the store was closing and that all the customers should leave, as there was an emergency. The caller left the store and a few minutes later drove by the store. He reported that when he drove by he saw the guys who had entered the store behind the register, and they had a phone up to their ear. The caller explained that the store was supposed to be open until 10:00 p.m. He told the dispatcher: "I don't know it just felt funny, and I wasn't really sure if I should call, I mean, but it just was really weird." The caller then described the two men: a 6'3" African-American man, and a shorter, dark-skinned Asian man. He reported that the men had a big case with them, "like one of those large suitcases."

  The dispatcher called Pleasant Hill police officer defendant Drew Sanchez and his partner. The dispatcher ordered the officers to respond to the store and stated that a caller reported that "two subjects came into the store, spoke to the employees, the employees then told all the customers they needed to leave that they had an emergency, and locked the doors behind them." Defendant police officer Steve Dexheimer also responded to the call. The dispatcher described the subjects as a tall black male and a shorter Asian male carrying a large suitcase.

  The responding officers asked the dispatcher to call the video store. She did, and a person identifying himself as "Joseph" answered the phone. The dispatcher relayed to Joseph what the caller had reported and said, "he was a little concerned for your guys' safety. . . . So we wanted to call and make sure." Joseph responded, "the subjects are still here." He explained further that the two men had police identification, but no uniforms, that they came with state papers, and that it looks like official business. The dispatcher then asked Joseph to send someone outside to talk with the officers. The dispatcher reported to the defendant officers that the store employee had said "that the subjects that are there, still there. And that they are not uniforms, but have badges, and state papers, and say that they're police officers."

  Joseph came out of the store and talked to the defendant officers. He reported that the men were taking money out of the register. Officer Dexheimer then reported to the dispatcher about the money being taken from the register, and explained that the officers still did not know what was going on. Officer Dexheimer asked the dispatcher to place another call to the store. He also asked the dispatcher to send another officer to cover the rear of the store. A store employee, "Bill," answered the dispatcher's call to the store. The dispatcher told Bill to meet the officers outside and to bring the phone with him. He did so. Neither Joseph nor Bill could tell the officers anything more about why the men were taking money out of the register.

  According to the defendant officers, they believed a night-time robbery was in progress so they entered the store with their weapons drawn. Before they did so, they radioed the dispatcher that they were "code 4." Code 4 means no further assistance required. At that time there were two other officers on the scene. The defendant officers then entered the store with their weapons targeted at the two "suspects." According to plaintiff, he and his partner identified themselves as police officers, but defendants ordered them to the ground and handcuffed them. Officer Dexheimer saw a badge around plaintiff's neck.

  The two men identified themselves as plainclothes California Highway Patrol ("CHP") investigators who were in the process of serving a tax warrant at the business. The defendant officers searched plaintiff and his partner and removed their weapons and identification, while they were still handcuffed and on the ground. Officer Dexheimer then asked his partner to search plaintiff again, "to make sure I didn't miss anything." The two "suspects" provided law enforcement identification, badges and other corroborating identification showing that they were CHP Officers Sam Morgan and Edward Dela Cruz. The defendant officers then removed the handcuffs, released them, and apologized.

  Plaintiff asked the defendant officers why they responded as they had. Officer Dexheimer responded something to the effect that "this is Pleasant Hill, this town is lily white . . . you guys are two minorities . . . what do you expect us to do?"

  According to plaintiff, the detention lasted approximately 10 minutes. The evidence also demonstrates that the CHP has a policy that requires tax warrants to be served by uniformed officers, although plaintiff claims that he was given permission to serve this particular warrant in plainclothes. PROCEDURAL HISTORY

  CHP Officer Morgan filed this section 1983 suit seeking damages and injunctive relief. He claims he was detained without probable cause; defendants used excessive force; they detained him because of his race; and a City of Pleasant Hill policy led to the violations (Monell claim). Defendants move for summary judgment on all claims on the ground that no reasonable trier of fact could find any constitutional violations. In the alternative, they argue that at a minimum they are entitled to qualified immunity.


  A. Summary judgment

  A principle purpose of the summary judgment procedure is to isolate and dispose of factually unsupported claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). A party moving for summary judgment that does not have the ultimate burden of persuasion at trial (usually the defendant) has the initial burden of producing evidence negating an essential element of the non-moving party's claims or showing that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

  If the moving party does not satisfy its initial burden, the non-moving party has no obligation to produce anything and summary judgment must be denied. If, on the other hand, the moving party has satisfied its initial burden of production, then the non-moving party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence that shows there is a genuine issue of material fact for trial. See Nissan Fire & Marine Ins. Co., 210 F.3d at 1102. A genuine issue of fact is one that could reasonably be resolved in favor of either party. A dispute is "material" ...

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