The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION REGARDING JUDGMENT (Doc. 28) DEFENDANTS' MOTION FOR SUMMARY
Plaintiff John Bernat brings this action pursuant to 42 U.S.C. § 1983 against the California City Police Department ("the Department"), Officer Standish Knowlton ("Knowlton"), Officer Eric Hurtado ("Hurtado"), and California City ("the City") (collectively "Defendants").
Defendants filed a motion for summary judgment on January 10, 2011. (Doc. 28). Plaintiff filed opposition on January 27, 2010. (Doc. 34). Defendants filed a reply on February 7, 2011. (Doc. 38).
At approximately 2:30 p.m. on August 8, 2009, Plaintiff was at Central park in the City of California feeding geese and observing the pool area. After standing by a fence adjacent to the pool for a few minutes, a lifeguard approached Plaintiff and asked him if he knew anyone in the pool. Plaintiff responded "no" and asked the lifeguard "why do you ask?" The lifeguard stated that "some people here...are wondering why you are here." Plaintiff responded that he was "just here to enjoy the park and all its facilities." Three or four minutes after his encounter with the lifeguard, Plaintiff walked back to his truck and sat inside the cab. Five minutes later, Plaintiff saw the police in his mirror.
Officer Knowlton was dispatched to Central Park at 2:46 p.m. in response to a call regarding a suspicious male looking at children in the pool. When Knowlton arrived at Central Park, he exited his vehicle and began a foot patrol of the area. The parties dispute how Knowlton came to locate Plaintiff, but it is undisputed that Knowlton walked up to Plaintiff's truck and saw Plaintiff moving his head in a fast motion looking at subjects in numerous areas of the park.
The parties dispute what happened when Knowlton engaged Plaintiff. According to Plaintiff, upon seeing Knowlton, Plaintiff rolled down his window and asked Knowlton if he was parked in the wrong place. Plaintiff then asked why the officer was at Central Park, and Knowlton responded that there was a report of a suspicious person. At some point, Plaintiff made the following statements: "this is a public park," "can't I sit here," and "this is a free country isn't it."
According to Defendants, Knowlton contacted Plaintiff by knocking on the driver's side window and gestured to him to roll the window down. Knowlton asked Plaintiff what was going on, and Plaintiff immediately became agitated and asked the officer what he wanted. Plaintiff began yelling and said "this is a public park," "can't I sit here," and "this is a free country isn't it." Plaintiff then pointed his left index finger close to Knowlton's face. Knowlton advised Plaintiff to be aware of where he waived his hand, at which point Plaintiff got extremely upset and swung his closed left fist in a backward motion towards Knowlton. Knowlton made a radio broadcast of 148, a common term used when an officer needs assistance. Plaintiff concedes he made some hand gestures when speaking to Knowlton but denies ever waiving his hand toward Knowlton with a closed fist.
The parties agree that Knowlton grabbed Plaintiff's left wrist and attempted to place him in a control hold, and that Plaintiff pulled his arm away into the vehicle and rolled the window up. Knowlton attempted to open the driver's side door of Plaintiff's truck about two or three times in order to remove Plaintiff from the truck, but Plaintiff locked the door. Plaintiff placed his truck in reverse and moved his vehicle approximately 6 to 7 feet away from Knowlton's patrol vehicle. As Plaintiff was reversing the truck, he rolled his window down half way and began yelling that he was going to the police station to talk to Knowlton's supervisor. Knowlton made a radio broadcast of a vehicle attempting to leave.
Officer Hurtado arrived at the scene as Plaintiff was attempting to leave. Hurtado saw Plaintiff reversing his truck towards Knowlton's patrol car. The parties dispute Knowlton's location when Hurtado arrived. Hurtado blocked Plaintiff's truck by parking his patrol car in front of it, pointed his duty weapon at Plaintiff, and ordered Plaintiff to stop. Knowlton and Hurtado ordered Plaintiff to exit his vehicle numerous times. Hurtado ran to the front driver's side of the truck.
The parties dispute what happened in the moments before and after Plaintiff exited his truck. Plaintiff contends he did not hear any orders to get out of his truck. Plaintiff states that he stopped reversing and exited his vehicle after seeing Hurtado pointing his gun at him. According to Plaintiff, he exited the truck, turned, and placed his hands on the truck without being instructed to do so.
According to Defendants, Knowlton repeatedly ordered Plaintiff to open his locked door before Plaintiff complied. Knowlton opened the driver's side door and Plaintiff exited the vehicle. When Plaintiff exited his vehicle, Hurtado ran to the back of the truck because he could not get a good visual of the driver. Knowlton ordered Plaintiff to put his hands up, turn around, interlock his fingers, and begin walking backwards towards Knowlton. Plaintiff did not comply and continued yelling at Knowlton. Plaintiff raised his hands to near his shoulder area. Knowlton warned Plaintiff that he would be tased for failure to comply with his orders.
Knowlton pointed his taser at Plaintiff and repeated his orders three to five times. Plaintiff continued to ask why he was being stopped. Hurtado also ordered Plaintiff to turn around and put his hands on his head. Plaintiff partially turned towards the side of his truck. Plaintiff began to put his hands up towards his head but did not put his hands all the way up. Hurtado then attempted to place a control hold on Plaintiff in order to place handcuffs on him. Plaintiff turned around, causing Hurtado to lose his grip. A second or two later, Knowlton deployed his taser with a single five second electronic burst. Plaintiff fell to the ground and was placed in handcuffs by Hurtado. Hurtado arrested Plaintiff for violation of California Penal Code section 148.
Summary judgment/adjudication is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (internal quotation marks omitted).
Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). With respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984.
When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "A non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in his favor." Id. (emphasis in original). "[S]ummary judgment will not lie if [a] dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, ...