The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff Timothy C. Nelson ("Plaintiff") seeks damages as result of injuries he sustained during law enforcement activities arising from a disturbance at an apartment complex in Davis, California. Defendants include the City of Davis, Davis Chief of Police James Hyde, and Davis Police Sergeant John Wilson.
In addition, because University of California, Davis ("U.C. Davis" or "University") police personnel assisted the City of Davis Police Department in quelling the disturbance, Plaintiff has sued U.C. Davis Officers Calvin Handy, Javier Barragan, and Mary Garcia. Plaintiff alleges that Defendants violated his constitutional rights by subjecting him to unreasonable seizure in violation of both the United States and California Constitutions. Plaintiff further asserts constitutional equal protection claims, as well as additional common law and statutory claims sounding under California law.
By Memorandum and Order dated September 19, 2007, this Court granted summary judgment in favor of Defendants on the basis of Plaintiff's own version of events. Plaintiff appealed that decision and the Ninth Circuit reversed, citing potentially conflicting evidence from other witnesses. Following remand of the matter back to this Court for further proceedings, Defendants have filed three renewed Motions for Summary judgment, which alternatively request partial summary judgment of certain issues. The motions are brought on behalf of 1) the City of Davis Defendants (Davis, Hyde and Wilson); 2) the U.C. Davis Defendants with the exception of Calvin Chang (Handy, Barragan and Garcia) and 3) Defendant Calvin Chang, individually.
For the reasons set forth below, Defendants' Motions will be granted in part and denied in part.*fn1
On the evening of April 16, 2004, following the annual Picnic Day festivities held at U.C. Davis, as many as a thousand young people gathered at the Sterling Apartment complex on Cantrill Drive in Davis. One resident of the complex described the gathering as "the biggest party in history". Plaintiff, a twenty-year old college student, was in attendance.
The City of Davis police became aware of the party after noticing virtually gridlocked traffic along Cantrill Drive, and upon observation of illegally parked cars on both sides of the street for almost its entire length. The police station itself was located near the apartments at the corner of Cantrill and Fifth Street, and the sergeant on duty, Defendant Wilson, dispatched police officers to begin issuing parking citations to clear the improperly parked vehicles. The police also checked the party itself, which Sergeant Wilson described as both unusually large and loud.
Underage alcohol violations were observed, and Wilson claims he observed individuals trying to vandalize vehicles by rocking them back and forth. One resident described a chair being thrown from an upper story window. After apprising an agent for the complex owner of the situation, Sergeant Wilson was asked shortly before midnight to request that all non-residents leave the premises under penalty of trespass.
The crowd did not respond to the police's initial request to disperse. Sergeant Wilson ordered two of the officers, who had been on foot, to go back to the nearby station and return with their patrol vehicles for an additional police presence. As one of the vehicles drove through the complex, a group of three to four-story buildings situated on a rectangular lot, Wilson observed partygoers surround the vehicle and begin throwing bottles. Although the patrol vehicle activated its emergency lights and siren, Wilson states that it was unable to exit the complex absent rescue intervention from both himself and other officers. Wilson then called for backup as both he and the officers retreated back to the driveway at entrance to the complex.
About forty officers arrived at the Davis Police station in response to Defendant Wilson's request, including Lieutenant Darren Patel, who upon arrival assumed the role of incident commander. U.C. Davis police officers, including Defendants Chang, Barragan and Garcia, were among those who responded. Unlike their City counterparts, the U.C. Davis officers had pepperball launchers in their arsenal for crowd dispersal.
Pepperball launchers are dual purpose weapons that shoot round plastic balls filled with Oleoresin Capsicum ("OC") powder, a substance similar to pepperspray. Such launchers combine the shock of kinetic impact (similar to paintballs) with the sensory discomfort associated with pepperspray. They are designed to break apart and disperse the OC powder upon impact.
Pepperball launchers can be aimed reliably to subdue a target suspect at distances up to thirty feet. After that point, however, it is undisputed that their trajectory becomes less reliable. (See Pl.'s Undisputed Fact ("PUF") No. 16). According to Plaintiff's expert, Roger Clark, pepperballs should not be fired into occupied areas at distances of more than thirty feet because of the risk of striking unintended targets in vulnerable body areas. Pl.'s Ex. 25, Clark Dep., 24:11-27:5.*fn2 Pepperball launchers may, however, be launched at hard building surfaces like walls, ceilings, doors and windows within a hundred-foot radius for effective dispersal, or "area saturation", of the OC to the surrounding vicinity. Within these parameters, pepperball use in crowd control and riot situations meets Peace Officer Standards Training ("POST") guidelines, and further was authorized by U.C. Davis Police Department policy.
Following the officers' initial retreat, the evidence shows that the Sterling party careened further out of control. Sergeant Wilson could hear individuals shouting "fuck the police" as the officers regrouped at the station. At about 1:00 a.m., after meeting together to form a dispersal plan, between thirty and forty officers proceeded on foot to the southwest corner of the apartment complex in full riot gear (helmets, shields and batons). Four U.C. Davis officers, including Defendants Chang, Garcia and Barragan, as well as another individual, Officer Jones, carried pepperball launchers. Defendants claim that crowd dispersal orders were given, although it appears undisputed that the party was loud the police had no means with which to mechanically amplify any such verbal commands. See PUF No. 6.
After observing the police, Plaintiff testified that he retreated inside one of the complex buildings to a friend's apartment. Both officers and partygoers attest to the fact that bottles and other objects were being thrown at the police from various vantage points at this juncture, including upper story balconies. At least one officer was injured by a thrown bottle, and several others reported only narrowly being missed on numerous occasions.
There is no dispute that the officer's initial sweep through the complex in riot gear failed to adequately disperse the partygoers. Bottles and other debris continued to be thrown at the police. A second sweep was thereafter ordered and began from the southwest corner of the complex in front of a breezeway.
During that second sweep, officers observed a group of between fifteen and twenty individuals congregated at the back of that southwest breezeway. While Officer Chang claims that bottles were being thrown from the rear of that group, (see Chang Decl., ¶ 14) two of the other officers present, Defendants Garcia and Barragan, testified that they observed no one in the breezeway throw anything at the police. See Pl.'s Ex. 16, Garcia Dep., 103:10-12; Ex. 17, Barragan Dep., 58:2-18, 66: 2-4 (did not throw bottles, did not come at police; just stood there). Garcia and Barragan's testimony in this regard is corroborated by one of the individuals present in the breezeway, Lee Lauduski. See Pl.'s Ex. 6, Lauduski Dep., 26-3-12. In addition, it is undisputed that Plaintiff himself threw nothing at the police. Def. Chang's Undisputed Fact ("UF") No. 38.
According to Officer Wilson, after twice ordering those present in the breezeway to disperse without success,*fn3 he ordered the three U.C. Davis officers with operable pepperball launchers (Chang, Barragan, and Garcia) to fire.*fn4 Estimates of the distance between the officers, at the time they began firing, and the crowd in the breezeway range from 45 to 150 feet. Pl's Ex. 8, Dep. of Alicia Vittitoe, 42:6-19 (50 feet); Pl.'s Ex. 19; Dep. of Lopamudra Sengupta, 38:17-25 (100 to 150 feet); Pl's Ex. 10, Dep. of Defendant Wilson, 70:4-13 (45 feet).
It is undisputed that Chang, Garcia and Barragan all fired pepperballs into the breezeway. The officers aimed both at hard surfaces adjacent to the breezeway (the doors, ceiling and walls) and at individuals who they observed throwing bottles (from below the shoulders).
While Plaintiff testified that he remained inside in an interior hallway until just before he was hit by a pepperball as he attempted to exit the building, other witnesses place Plaintiff as being outside in the breezeway for a significant period of time before any pepperballs were launched. Bridget Collins testified, for example, that she was outside with Plaintiff in different parts of the breezeway area for close to thirty minutes before he was shot. Pl.'s Ex. 2, Collins Dep., 43:13-52:15. Bryan Lee-Lauduski and Alicia Vittitoe appear to concur with that assessment. Pl.'s Ex. 6, Lee-Lauduski Dep. 13:5-19:22; Pl.'s Ex. 8, Vittitoe Dep., 24:15-25:9.
As a result of being struck in the left eye by one of the pepperballs, Plaintiff experienced temporary blindness in that eye and alleges a permanent loss of visual acuity. He had to undergo multiple surgeries to repair the ocular injury he sustained.
Despite complaints lodged on Plaintiff's behalf against both the City of Davis and the University, no independent investigation of the incident was undertaken. Defendant Hyde, as Chief of Police for the City of Davis, approved of the decision not to accept Plaintiff's complaint and relied solely on the assurances of his staff in not ordering that a Use of Force Report be prepared. Pl.'s Ex. 14, Dep. of Chief Hyde, pp. 52-57.
In addition, the University's Use of Force Review was based solely on the officers' written reports made in conjunction with the incident. Pl.'s Ex. 21, Handy Dep., 34:7-42:14, 95:17-24.
The Federal Rules of Civil Procedure provide for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Rule 56 also allows a court to grant summary adjudication on part of a claim or defense. See Fed. R. Civ. P. 56(a) ("A party seeking to recover upon a claim...may...move...for a summary judgment in the party's favor upon all or any part thereof."); see also Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).
The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v. ChemTronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).
In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Once the moving party meets the requirements of Rule 56 by showing that there is an absence of evidence to support the non-moving party's case, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Genuine factual issues must exist that "can be resolved only by a finder of fact, because they may reasonably be resolved in favor of either party." Id. at 250. In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh ...