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Malcolm L. Landry v. Mike Berry

September 30, 2011


The opinion of the court was delivered by: Richard Seeborg United States District Judge

*E-Filed 9/30/11*




Plaintiff Malcolm Landry challenges the constitutionality of his involuntary commitment to 21 a county mental hospital by defendant Mike Berry, a California Highway Patrol (CHP) officer. 22

After several motorists called 911 to report that Landry was driving erratically, Berry responded to a 23 "be on the lookout" (BOL) broadcast from CHP dispatch. After stopping Landry in Humboldt 24 County in the town of Orick, California, Berry determined that Landry was suffering from a mental 25 disorder that rendered him a danger to himself or to others. Berry ultimately left Landry at the 26 county mental health hospital pursuant to California Welfare and Institutions Code section 5150. 27 Based on the involuntary hold, Berry brings two claims under 42 U.S.C. § 1983 for: (1) unlawful 28 seizure in violation of the Fourth Amendment; and (2) civil commitment without due process in violation of the Fourteenth Amendment. The parties bring cross-motions for summary judgment on 2 the question of probable cause for the seizure. Berry alternatively contends that, even if no probable 3 cause supported his actions, he is nonetheless entitled to qualified immunity as any mistake was 4 reasonable under the circumstances. Based on the parties' briefing and oral argument, and for the 5 reasons stated below, the motions for summary judgment by Landry and by Berry are each denied.*fn1 6


Landry is a sixty-nine year old resident of Sparks, Nevada. He suffers from Chronic Obstructive Pulmonary Disease (COP), which requires that he breathe oxygen through a nasal 9 cannula attached to a tank. On the evening of June 2, 2010, Landry left Sparks intending to drive to 10 Manzanita, Oregon to visit a friend for a week or two. His planned route involved taking Highway 101 to Cemetery Road at that destination.

Landry, driving a blue Chevrolet Lumina, began his trip overnight and arrived in San Francisco on the morning of June 3, 2010. After taking a nap on the side of the road, he continued driving along Highway 101. At approximately 2:40 p.m., outside of Laytonville, California, Landry 15 ran over an obstruction in the road. It caused him to swerve, hit a boulder, and dent his right front fender. As a result of this incident, his car suffered a flat tire. Landry flagged down a motorist who contacted the CHP. The officers arranged to have a repairman come to the site and fix the flat. The 18 repair was completed by about 3:15 p.m. Landry thanked the officers and continued driving. He 19 was not warned or cited for any offense as a result of this incident. 20 At 3:54 p.m., CHP dispatch received the first of several 911 phone calls regarding Landry's 21 driving. The caller, who identified Landry's vehicle by its license plate and described it as a blue 22 Chevrolet sedan, reported that the car was "all over the roadway." According to standard CHP 23 procedure, the dispatcher entered this report in the tracking system as a suspected reckless driver. 24

The dispatcher broadcast a BOL radio call at 3:55 p.m. in order that officers in the area could 25 attempt to locate Landry's vehicle and investigate.

2 twenty miles south of Garberville, California. One officer relayed a description to dispatch that 3 Landry was "severely disabled" and "possibly off his medications." The officers subjected Landry 4 to a field sobriety test and informed dispatch that he was not driving under the influence. According 5 to Landry, the officers also searched his car without his permission. In the process, they opened his 6 suitcase, left the tumbled contents in view, and emptied his wallet onto the front passenger seat. 7

They left Landry at the motel at 5:14 p.m. and told him to wait in the lobby until he could be picked 9 up by family or friends. After waiting about forty-five minutes, Landry spoke to the motel manager 10 who informed him that she could not require him to stay and that his keys were in the car parked at the motel. Landry resumed his trip and, as he was anxious to leave quickly, he did not attempt to straighten up the disarray in his vehicle caused by the officers' prior search.

At 6:42 p.m., another caller reported to CHP that a car was weaving in and out of lanes and that the driver was possibly sleepy. The party provided a vehicle description matching Landry's car, 15 including that it had Nevada license plates. Dispatch broadcast another BOL, but no CHP officer located Landry at that time. As Landry continued driving north, two additional motorists called 911. At 8:18 p.m., a caller reported seeing a blue "Lincoln type" car near the town of Orick, 18 California, driving only 5 to 10 miles per hour, without headings, and partially on the right-hand 19 shoulder. Two minutes later, another driver called from the same location to report a vehicle 20 repeatedly driving onto the shoulder of the road. That person called back shortly afterwards to 21 provide the license plate number of Landry's vehicle. CHP again issued a BOL at 8:24 p.m. for 22 officers to find Landry.

24 was in the vicinity, he responded to the BOL and began looking for Landry's car. During the day, 25 Chevrolet with an erratic driver. In responding to this third BOL, Berry had a phone conversation 27 with the dispatcher and learned that Landry had been stopped earlier for erratic driving and taken to 28 a motel. As Berry drove north, he saw muddy tire tracks on the road, which he attributed to a car Shortly thereafter, two CHP officers in separate vehicles made contact with Landry about The officers ultimately decided to transport Landry and his car to a motel in Garberville.

At this time, Berry had been on duty since early morning and was on his way home. As he Barry had heard portions of the radio traffic with respect to the two prior BOLs involving the blue being driven into the ditch on the right hand side of the highway and then back onto it. Nearby, he 2 saw a damaged guardrail. Based on the reports from dispatch of Landry's erratic driving, Berry 3 concluded that Landry had hit the guardrail. 4

Berry located Landry in Orick at approximately 8:35 p.m. According to Berry, Landry was 5 driving north in the southbound lane at around five to ten miles per hour. Berry observed Landry 6 driving for a few seconds, identified the car, and then activated his lights to stop him. Barry 7 contends that Landry at first attempted to drive around him, but stopped in response to Berry's 8 command over the patrol car's loudspeaker. Landry disputes that he was driving on the highway at 9 that time. Instead, he contends that he had turned ...

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