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Peter Knowles v. City of Benicia

March 24, 2011

PETER KNOWLES,
PLAINTIFF,
v.
CITY OF BENICIA, POLICE CHIEF SANDRA SPAGNOLI, CITY MANAGER JIM ERICKSON, SERGEANT FRANK HARTIG, SERGEANT BOB OETTINGER, SERGEANT CHRIS BIDOU, SERGEANT SCOTT PRZEKURAT, OFFICER JOHN MCFADDEN, OFFICER MARK MENESINI, OFFICER JAMES LAUGHTER, OFFICER KEVIN ROSE, OFFICER JASON EAKIN, OFFICER, TED CRIADO, OFFICER JAKE HEINEMEYER, AND DOES 1 THROUGH XXX, INCLUSIVE, DEFENDANTS.



MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY ADJUDICATION

Plaintiff Peter Knowles brought this action against defendants City of Benecia, Police Chief Sandra Spagnoli, City Manager Jim Erickson, Sergeants Frank Hartig, Bob Oettinger, Chris Bidou, and Scott Przekurat, and Officers John McFadden, Mark Menesini, James Laughter, Kevin Rose, Jason Eakin, Ted Criado, and Jake Heinemeyer, arising out of a series of alleged civil rights violations. The Complaint alleges various claims pursuant to 42 U.S.C. § 1983 for violations of the First, Fourth, and Fourteenth Amendments.

Plaintiff now moves for summary adjudication on the issue of Frank Hartig's liability for violating plaintiff's Fourth Amendment rights by "arresting [plaintiff] in the attached garage at Plaintiff's residence without probable cause, consent, exigent circumstances, or a warrant" on December 23, 2007.*fn1

([Proposed] Order Granting Pl.'s Mot. for Summ. Adjudication (Docket No. 45).)

I. Factual and Procedural

Background

Plaintiff alleges that Benecia police officers violated his constitutional rights on six different occasions, the first of which is relevant to the instant motion. The first occasion resulted in a state criminal case against plaintiff. In the criminal case, plaintiff moved to suppress the evidence; the trial court denied the motion, but was reversed on appeal. See People v. Knowles, No. VCR200106 (Cal. App. Dep't Super. Ct. Apr. 6, 2009).

Plaintiff relies primarily on Hartig's testimony at the trial court's suppression hearing to support the instant motion. Hartig relies primarily on his deposition testimony in the instant action to oppose the motion. Hartig's testimony is substantially similar, although it does differ in some respects, which the court notes below. Where the testimony differs, the court views the evidence in the light most favorable to Hartig and draws all justifiable inferences in his favor because he is the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

A. Hartig Testimony at Suppression Hearing

On December 23, 2007,Hartig was citing another driver in a gas station parking lot at 10 Solano Square when he heard "the sound of a revving engine and tires breaking traction." (Mehta Decl. in Supp. of Pl.'s Mot. for Summ. Adjudication ("Mehta Decl.") Ex. A ("Hartig Test.") at 4:10-13, 4:24-27 (Docket No. 43).) Hartig believed that the sound was from a red Jeep vehicle exiting a Safeway parking lot adjacent to 10 Solano Square, coming out onto the 100 block of Military West. (Id. at 4:18-21.) The sound drew Hartig's attention because "[i]t was midnight, and it's illegal, and it was loud, and it's a moving infraction." (Id. at 5:1-2.)

The vehicle "continued to accelerate" and break traction and, as the driver passed Hartig, the driver "kind of let off the gas a little bit" and "kind of looked in [Hartig's] direction" and Hartig looked at the driver. (Id. at 5:7-12.) The vehicle then accelerated into the 300 block of Military West, reaching an estimated speed of "at least 60 miles an hour." (Id. at 5:10-16.) The speed limit is thirty-five miles per hour where Hartig first observed the vehicle; it then changes to forty miles per hour. (Id. at 5:17-19.) Hartig then told dispatch the description of the vehicle and driver and "advised them what was going on."*fn2 (Id. at 5:22-24.) After giving the driver in the parking lot "his stuff back," Hartig attempted to catch up to the vehicle. (Id. at 5:24-26.)

Hartig "continued westbound towards the west side of Miliary where [he] completely lost sight of the vehicle." (Id. at 6:13-15.) Another officer informed Hartig that he had observed taillights further down Military West, but Hartig later determined that it was not the vehicle that he had seen. (Id. at 6:15-18.) Hartig continued to drive and eventually took a right onto South Hampton Road. (Id. at 6:18-26.) Hartig then "observed the red Jeep coming, as if it had not stopped, at West 7th to South Hampton," and the vehicle drove past Hartig in the opposite direction. (Id. at 6:26-7:5.) Hartig looked at the driver and "assume[d] [the driver] saw [Hartig]," and the vehicle "accelerated and took off again out of [Hartig's] view." (Id. at 7:7-9.) When asked how fast the car was traveling, Hartig stated: "The speed limit is, I believe, 35 in that area. Maybe a little bit faster in that area." (Id. at 7:12-13.)

Hartig did not have his lights or sirens activated. (Id. at 7:14-16.) Hartig then told two officers at Military West and South Hampton that the vehicle "[was] coming right at [them]" and they "kind of stood by." (Id. at 7:18-21.) After finding a place where he could make a safe U-turn, Hartig then "gave chase, accelerated trying to catch up." (Id. at 7:21-23.) When one officer told him that the vehicle never showed up, Hartig "figured" the vehicle turned onto Devonshire, a side street off of South Hampton. (Id. at 7:23-26.)

After turning onto Devonshire, Hartig went down the first court on a "hunch," and he then "observed the taillights pulling into a residence on Stuart Court." (Id. at 7:27-8:1.) When Hartig first observed the vehicle, it was pulling into the garage or into the driveway, and eventually the vehicle stopped in the garage. (Id. at 8:2-10, 9:25-10:4.) Hartig then parked his vehicle probably in the street or partially in the street and the driveway. (Id. at 10:15-17.) Without a warrant, Hartig ran up the driveway and into the garage. (Id. at 8:13.) Hartig "made contact with the driver, pulled him out of the vehicle and handcuffed him." (Id. at 8:15-16.) Hartig stated that he also turned the ignition off. (Id. at 10:10-11.) The driver was the plaintiff.

Hartig stated that his reasons for arresting plaintiff were that "[h]e had already evaded [him] and what [he] considered the exhibition of speed, or breaking traction, down Military West." (Id. at 8:18-20.) Hartig observed "[w]ithin just a couple of minutes of taking [plaintiff] out of his vehicle" an odor of alcohol on his breath, bloodshot eyes, and balance that "wasn't real great." (Id. at 8:24-27, 16:8-11.) Hartig also later observed slurred speech. (Id. at 8:27-28.) Hartig later determined that plaintiff was intoxicated beyond the legal limit. (Id. at 9:4-10, 16:15-16, 17:3.)

While plaintiff was charged with driving under the influence, "he was originally arrested for reckless driving and the exhibition of speed." (Id. at 9:12-14.) Hartig agreed that his "obligation" when he entered the garage was to arrest the driver for speeding (id. at 10:25-27), but he "suspected" driving under the influence. (Id. at 11:10-16.)

When Hartig searched plaintiff's wallet, he found a Safeway receipt in it. (Id. at 13:2-11.) Hartig also had the vehicle searched and towed from the garage. (Id. at 13:28-14:1.)

B. Hartig Deposition Testimony in Instant Action

Hartig testified at his deposition that he heard breaking traction, which means "burning rubber." (Full Hartig Dep. at 148:10-13.*fn3 ) The loss of traction is "an acceleration where the friction of the tires cannot grab the asphalt, because the tires are spinning so fast." (Id. at 148:16-19.) Hartig estimated that the loss of traction lasted three to five seconds. (Id. at 148:22.) Hartig assumed that the breaking of traction started as the vehicle turned out of the parking lot. (Thornton Decl. in Supp. of Defs.' Opp'n to Pl.'s Mot. for Summ. Adjudication ("Thornton Decl.") Ex. A ("Hartig Dep."), at 153:23-154:4 (Docket No. 72).)

Hartig stated that he had his strobe lights on at the time and that he and the driver "looked at each other" and that Hartig "got a good visual look at him."*fn4 (Thornton Decl. Hartig Dep. at 158:25, 156:9, 156:19-20.) Hartig "felt" that they "made eye contact." (Id. at 158:16-17.) Hartig then told dispatch that "there was a white male in a lifted red Jeep with big tires, wearing a--either cap or hat--black cap or hat--that was breaking traction, all over the road." (Id. at 157:1-4.) Hartig described the vehicle as "all over the road" because it was breaking traction: "You don't have control of the vehicle when your rear tires are spinning. In my opinion, you are all over the road; you have no control." (Id. at 157:7-10.)

Hartig made clear that his opinion that the driver was not in control was based on what he heard, not what he saw: "I could hear it. I didn't see it lose control, but I could hear the tires accelerating. They weren't grabbing traction, and the vehicle was in a turning movement." (Id. at 158:9-12.)

Hartig decided to pursue the vehicle and to not continue to cite the other driver in the gas station parking lot for the following reasons: "He actually had a couple of things combined. You've got the speed, the breaking of the traction-- which is exhibition of speed. And taking off after we made eye contact. There was no doubt he didn't want to be there." (Id. at 161:8-12.) Hartig supplemented his answer when asked again: "That [other citation] was probably just a mechanical ticket, in all probabilities. Here I have a moving violation, and I have someone that potentially could be under the influence." (Full Hartig Dep. at 162:8-11.)

Hartig also stated: "And I ran up there and gave him his stuff back, because that breaking traction, the erratic driving coming out of that short time, and then followed up by 'I don't want to be here anymore'--that was my perception--was potentially it could be a drunk driver." (Thornton Decl. Hartig Dep. at 163:10-14.) Hartig did not think that the driver actually saw him return the paperwork to the other driver: "I was probably eight, ten feet off the car. I think he saw me walking--potentially he could have seen me walking towards the car [to return the paperwork], but there is no way he saw me return the stuff, because he took off." (Full Hartig Dep. at 161:23-162:2.)

Hartig stated that it took him "[m]aybe a couple of minutes" between the time that he last saw the vehicle and when he turned onto South Hampton.*fn5 (Thornton Decl. Hartig Dep. at 168:18-22.) Hartig then stated: "So we passed, and I saw the driver--you know, like that--I saw a white male, the truck, as we go by. And he just floored it again and took off from me." (Id. at 169:25-170:2.)

On his decision to turn onto Devonshire when he heard from the officers ahead of him that the vehicle had not reached them, Hartig stated: "And right then I knew if he hadn't gotten to them, he had to have--you know, he could have turned up Hastings, but--I might have seen that. But I couldn't have seen him turn up Devonshire, so that was the only way he could have gone." (Id. at 170:11-15.)

On his decision to turn onto Stuart, Hartig stated: "[W]hether it is instinct, good police work, luck--whatever you want to call it--I thought, 'Well, he had to have gone left on Stuart.'" (Full Hartig Dep. at 173:11-14.) Hartig stated that at no point did he activate his emergency lights or siren (id. at 174:14-17, 179:13-16), and he does not recall whether he turned on his strobe lights when he parked in front of the residence. (Id. at 179:22-24.)

While Hartig testified at the suppression hearing that he turned off the ignition of plaintiff's vehicle, when asked at the deposition if the ...


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