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Patrick Howard v. County of San Diego

September 9, 2011


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


Presently before the Court is Defendants' motion for summary judgment. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' motion.


This case arises out of an incident at the South Bay (Chula Vista) Courthouse of the San Diego County Superior Court. On November 12, 2008, Deputy Sheriff Mark Profeta arrested and issued a citation to Plaintiff Patrick Howard for interfering with the business of a public agency in violation of California Penal Code § 602.1(b). According to Defendants, Howard was cited on November 12 for his actions at the courthouse two days earlier. According to Howard, he was cited and arrested in retaliation for filing a complaint with the internal affairs department of the San Diego County Sheriff's Office following his interaction with Defendant Elizabeth Palmer on November 10, 2008.

Defendant Elizabeth Palmer has worked as a San Diego County Deputy Sheriff for twenty-five years, and has been a Sergeant for eighteen years. At the time of the incident giving rise to this action, Defendant Greg Barnett was also a Sheriff's Deputy-a Lieutenant and Sergeant Palmer's supervisor, but he has since retired.

Plaintiff Patrick Howard has worked in San Diego as an independent attorney service and process server for approximately twenty years. His duties include making daily trips to Superior Courts throughout San Diego County to file and retrieve documents from the civil and sheriff's offices for the firm. Before the incidents giving rise to this case, Howard made daily trips to the El Cajon and South Bay (Chula Vista) courthouses.

November 10, 2008: The Interaction Between Howard and Sgt. Palmer

On November 10, 2008, there were two magnetometers (metal detectors) at the front entrance of the South Bay courthouse. On the right stood a metal detector for members of the general public seeking to enter the courthouse. Directly beside the public metal detector stood a metal detector designated exclusively for courthouse employees and law enforcement personnel. Signage posted on the employee metal detector identified it as for employees and law enforcement only. Although designated for use by different groups, the two metal detectors were functionally identical.

At approximately 12:10 p.m., Howard arrived at the courthouse carrying a folder containing his car keys and various documents to be filed with the court.*fn1 He placed his folder on the conveyer belt and waited behind two people to enter the public metal detector. One of the people in front of him was stopped as she passed through the metal detector, causing a delay. Seeing this, Howard moved to the employee metal detector and walked through it. Howard had done this on multiple previous occasions, in full view of the deputies on duty and without incident. [Howard Decl. ¶ 6.]

Sgt. Palmer was stationed at the entrance to the courthouse that day. She and Howard had never before interacted with one another and did not recognize each other. As Howard passed through the metal detector without activating any alarm, Sgt. Palmer extended her hand to stop him from walking past her and instructed him to go back through the employee metal detector and return through the public metal detector. Howard complied and was back in line for the public metal detector within a few seconds.*fn2

As Howard walked through the public metal detector, Sgt. Palmer asked him to stop and speak with her. Howard walked past Sgt. Palmer and retrieved his belongings from the conveyer belt, and then walked past her again before stopping near a chair a few steps away. The two spoke briefly. Howard then proceeded to the sheriff's office to conduct his business.

At some point during their interaction, Sgt. Palmer asked Howard whether he "worked [at the courthouse]," and Howard replied that he did. Howard claims he initially misunderstood the question: Howard answered in the affirmative because his business brought him to the courthouse every day, but it eventually became clear that Sgt. Palmer actually wanted to know whether he was a courthouse employee. [Howard Dep., at 162:21-166:21.] According to Sgt. Palmer, this exchange occurred while Howard walked through the employee metal detector and before he returned through that detector and re-entered the courthouse through the public metal detector. [Palmer Dep., at 107:15-25.] According to Howard, however, this exchange occurred during his brief conversation with Sgt. Palmer immediately after he passed through the public metal detector. [See Howard Dep., at 162:21-166:21; see also id. at 144:5-10 (Howard does not recall Sgt. Palmer saying anything to him as he passed through the employee metal detector).]

In any event, after Howard entered the sheriff's office, Sgt. Palmer instructed another deputy to cover her position, and then she entered the sheriff's office. She asked Howard to hand her his driver license, and he complied. Sgt. Palmer took his license into a back office, where Howard observed her speaking on the telephone. [Howard Decl., ¶ 11.]

After concluding her conversation on the telephone, Sgt. Palmer returned to the main area of the sheriff's office and began photocopying Howard's license. Howard asked why she was doing so and informed Sgt. Palmer that he had been working at the South Bay courthouse for twenty years. According to Howard, Sgt. Palmer angrily responded that she "was going to see [that Howard would not] work here for a twenty-first year," and that he would be "kicked out of every court in San Diego." , ¶ 13.] Sgt. Palmer asked for whom Howard worked, and Howard replied that he is self-employed. According to Howard, Sgt. Palmer responded, "I should have taken you to the ground." [Id., ¶ 14.] Howard asked to speak with Sgt. Palmer's supervisor, but she told Howard that her supervisor was not at the courthouse and that Howard "wouldn't want to meet him anyway." [Id.]

At this point, Howard stated that he was leaving, and walked out of the sheriff's office and back through the courthouse entryway, toward the courthouse exit. [Id., ¶ 15.] Sgt. Palmer followed him; ordered him to leave the courthouse-which, Howard claims, he was already doing; asked another deputy to escort Howard out of the building; and told Howard that he would not be allowed to enter the courthouse in the future. [See id., ¶¶ 15-16; Howard Dep., 181:2-182:1; Barnett Dep., at 20:12-19 (stating that Sgt. Palmer told Lt. Barnett that she had instructed Howard not to return to the courthouse unless under subpoena). But see Palmer Dep., at 134:18-24 (stating that Howard initially refused her instruction to leave).] Howard left the courthouse without further incident; he was neither arrested nor cited for any offense at that time.

November 12, 2008: Howard's Internal Affairs Complaint and His Arrest

On the morning of November 12, 2008, before making his usual courthouse runs, Howard filed a complaint against Sgt. Palmer with the internal affairs division of the sheriff's department. Howard explained to the person processing his complaint that his employment required him to visit the South Bay courthouse daily, and he expressed a concern that the conflict with Sgt. Palmer might continue upon his return. [Howard Decl., ¶ 19.] The internal affairs employee told Howard she would contact the South Bay courthouse to inquire of Howard's status there and would telephone Howard's cell phone after she did. She further advised him to go to the El Cajon courthouse first so that she would have time to reach someone at the South Bay courthouse.

Howard followed that advice and did not arrive at the South Bay courthouse until approximately 2:00 p.m. Although Howard had not received a telephone call from anyone in internal affairs, Sgt. Palmer and Lt. Barnett had been informed that Howard filed a complaint. [Palmer Dep., at 150:17-25, 159:14-160:15, 171:16-20; Barnett Dep., at 18:21-22:19.]

Howard entered the South Bay courthouse through the public metal detector without incident. He did not see Sgt. Palmer, and none of the deputies spoke to him or otherwise indicated he was not permitted to enter. While waiting in the business office to file documents, a sheriff's deputy asked if he was Patrick Howard, and then stated that a Sgt. Barrett wanted see him in the sheriff's office after he finished filing documents. Approximately thirty minutes later, Howard finished his filing and went downstairs as requested. [Howard Decl., ¶ 22.]

Howard entered the sheriff's office and informed the clerk that he was there to see Sgt. Barrett. Sgt. Palmer was present, but she did not acknowledge Howard as he entered the office. Two other deputies were nearby, including Deputy Mark Profeta, whom Howard recognized from previous visits to the courthouse. Deputy Profeta advised Howard that he was under arrest for entering the courthouse after being ordered not to return, handcuffed him, and took him into a back office. [Howard Decl.,¶ 24; Profeta Dep., at 59:11-22.] After searching Howard, Deputy Profeta went into a neighboring room to consult with Sgt. Palmer. Howard claims to have overheard part of their conversation: reviewing a code book, they were trying to decide what charge to file against Howard. [Howard Decl.,¶ 24.] Approximately ten minutes later, Sgt. Barrett entered and told Howard that he was never permitted to return to the South Bay courthouse.*fn3

Deputy Profeta issued Howard a citation listing a violation of California Penal Code § 602.1(b), interference with a business establishment. The citation lists the date of Howard's violation as November 12, 2008, and provided a court date of January 28, 2009. After Howard signed the citation, he was released and instructed to leave the building, which he did. [Howard Decl., ¶ 26.]

Inconsistent Justifications for Howard's Arrest

According to Defendants, Howard was arrested and cited on November 12 for his actions on November 10. On November 12, before Howard arrived at the courthouse, Sgt. Palmer informed Lt. Barnett of her November 10 interaction with Howard, and Peggi Lorenz, a secretary in internal affairs, telephoned Lt. Barnett to inform him of Howard's complaint. [See Barnett Dep., at 18:1-7, 20:14-22:13; Palmer Dep., at 159:1-160:3.] Later that day, Lt. Barnett learned that Howard had entered the building, and, based on Sgt. Palmer's description of the November 10 incident, he instructed her to arrest Howard for "the crime" committed on November 10. [See Palmer Dep., at 159:1-160:3; Barnett Dep., at 65:1-7 (stating he instructed Sgt. Palmer to arrest Howard for his actions on November 10, and that Howard committed no crime at the courthouse on November 12).] Sgt. Palmer expressed concern to ...

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