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Londell Austin v. J. Bauer


July 23, 2012


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Plaintiff Londell Austin ("Plaintiff") initiated this action against Defendants J. Bauer and J. Huff ("Defendants"), officers of the City of Vallejo Police Department, for injuries sustained when, during an investigation arising out of a response to a 911 call, Plaintiff was tasered. Presently before the Court is Defendants' Motion for Summary Judgment ("Motion"). For the following reasons, Defendants' Motion is GRANTED.*fn1


On July 11, 2009, Defendants responded to a 911 call in which a woman, Barbara Austin, had reported that her estranged husband was breaking into her residence. Ms. Austin had advised the dispatcher that her husband "was trying to break inside, break the sliding door, and that he wasn't living there and so [she] didn't want him there." Deposition of Barbara Austin ("Austin Depo."), 40:20-24. Defendants arrived at the residence at 1:57 a.m. and found Plaintiff, who is six feet two inches tall, and who weighed approximately 260 pounds at the time, in the backyard attempting to pry open the sliding glass door with either a screw driver or a metal bar. Defendants thus treated the situation as falling "between a possible burglary and some type of domestic dispute." Deposition of Jeremy Huff ("Huff Depo."), 37:18-21.

Defendants asked Plaintiff to come to the front of the house, where they knocked on the door to contact Ms. Austin.

Ms. Austin inquired as to Plaintiff's location and informed Defendants she was concerned Plaintiff would get into the house, where her ten-year old grandson was located.

By this time, Plaintiff had left the backyard and joined Defendants in the driveway. Plaintiff indicated he needed to get some uniforms out of the house.

Defendants then began to conduct an investigation into whether Plaintiff was a resident in Ms. Austin's home.

Ms. Austin told Defendant Huff that Plaintiff did not keep any clothing in the house. Defendant Huff thereafter entered the house, and indeed found no clothing or toiletries where Plaintiff had indicated they would be. Plaintiff then informed Defendant Huff that Ms. Austin may have hidden his clothing in the garage, after which Defendant Huff continued his search there.*fn3

During the time Defendant Huff searched the residence, Defendant Bauer remained on the porch with Plaintiff. The officer asked Plaintiff about the truck he had driven to Ms. Austin's residence, and Plaintiff indicated the truck belonged to him. In fact, the truck was registered to a third party, Betty Augustina. Plaintiff, however, refused to respond to inquiries regarding the identity of Ms. Augustina, stating only that "[t]his doesn't concern Betty." Deposition of Londell Austin ("Plaintiff Depo."), 58:17-59:1.

After hearing that the license plate check had come back indicating Defendant was not the vehicle's registered owner, Defendant Huff then heard Defendant Bauer yelling or saying on the radio something to the effect, "He's coming in behind you, Huff," at which time Defendant Huff heard a commotion inside the house. Huff Depo., 47:6-8. Plaintiff entered the house and went straight up to the bedroom with Defendant Bauer following him.

When he reached the bedroom, Plaintiff advised Defendant Bauer he was going to go to bed, and he took off his clothes, down to his shorts. Plaintiff then attempted to show Defendant Bauer check stubs on his night stand. Defendant Bauer said "I don't need to see all that." Austin Depo., 76:12-15.

In the meantime, Defendant Huff, who had been trained and had learned through experience that "people often keep weapons, guns and the like in bedrooms, under beds, in dressers, and things like that," ran into the bedroom and tasered Plaintiff. According to Defendant Huff, it was a concern to him "that [Plaintiff] not only want[ed] to get into the house, but he want[ed] to rush up the stairs into the bedroom." Huff Depo., 60:1-5.

Ms. Austin further testified that, during the above events, she had temporarily left the bedroom to check on her grandson. She returned and twice asked the officers if they could make [Plaintiff] "get out of here." Austin Depo., 81:15-21. It was after her second request that Defendant Huff deployed the taser. Upon being tasered, Plaintiff fell onto his bed. He was then taken to a hospital for examination, and he was subsequently charged with violating California Penal Code § 148(a)(1) by resisting, delaying or obstructing an officer in the discharge of his official duty.

Accordingly, Plaintiff initiated this action and now proceeds on his First Amendment Complaint ("FAC"), which brings one cause of action against both Defendants arising under

42 U.S.C. § 1983 for violation of the Fourth and Fourteenth Amendments on the separate theories that Defendants' use of the taser constituted excessive force and that Defendants unreasonably detained Plaintiff, in violation of the Fourth Amendment. Defendants now move for summary judgment on the basis that: 1) Plaintiff is not entitled to judgment on his excessive force claim; 2) even if Plaintiff could be entitled to judgment, his excessive force claim fails because Defendants are entitled to qualified immunity; 3) Defendants had probable cause to draw their tasers and to take Plaintiff into custody; and 4) even if Defendants lacked probable cause to have seized Plaintiff, they are protected by qualified immunity. For the following reasons, Defendants' Motion is GRANTED.


The Federal Rules of Civil Procedure provide for summary judgment when "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions interrogatory answers, or other materials" "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (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, 323-324 (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 may move for summary judgment, identifying each claim or defense or the part of each claim or defense--on which summary judgment is sought."); 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), (c); Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).

[A] party seeking summary judgment 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, 477 U.S. at 323 (quoting Rule 56(c)).

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).

In attempting to establish the existence of this factual dispute, the opposing party must tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists.

Fed. R. Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). Stated another way, "before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 251 (quoting Schuylkill and Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)). As the Supreme Court explained, "[w]hen the moving party has carried its burden under Rule 56(c)), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586-87.

In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).


A. Plaintiff's Excessive Force Claim. Defendants' Motion for Summary Judgment as to Plaintiff claims that Defendants' "deployment of a Taser on the person of [Plaintiff], who was, at the time, located nonthreateningly in his bedroom wearing his boxer shorts, having not leveled any threat of any kind upon the Defendants or the party calling for the Defendants' assistance" constituted a use of unconstitutionally excessive force. Opposition, 1:21-24. Defendants, to the contrary, argue that the force used was not excessive and, alternatively, that they are entitled to qualified immunity. Because, based on the undisputed facts in the record, the Court agrees that Defendants are entitled to qualified immunity, Defendants' Motion is GRANTED.

"[G]overnment officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether qualified immunity applies, the Court should consider: 1) whether the facts, as alleged by Plaintiff, "make out a violation of a constitutional right"; and 2) whether Plaintiff's right was "clearly established" at the time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts can exercise discretion in deciding which of the two prongs should be addressed first. Id. at 236. In this case, the Court determines the right alleged by Plaintiff was not "clearly established" at the time of the incident alleged in the Complaint. Accordingly, the Court need not address the first prong above.

In determining whether Plaintiff's right was clearly established, this Court considers Supreme Court and Ninth Circuit precedent existing at the time of the alleged act. Community House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 967 (9th Cir. 2010). "In the absence of binding precedent, courts should look at available decisions of other circuits and district courts to ascertain whether the law is clearly established." Id. The Court asks whether the contours of the right "were sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (internal citations and quotations omitted).

"The plaintiff bears the burden to show that the contours of the right were clearly established." Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011). The Supreme Court does "not require a case directly on point' to define any underlying constitutional right, but 'existing precedent must have placed the statutory or constitutional question beyond debate.'" Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011).

Defendants in this case are entitled to qualified immunity as to Plaintiff's excessive force claims because Plaintiff has failed to show that, under the facts of this case, the law regarding the use of tasers was clearly established in July of 2009. If fact, it was not until 2010 and 2011 that the Ninth Circuit definitively spoke on the issue at all. See Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010) (concluding the law pertaining to the use tasers was not clearly established in 2005); Mattos, 661 F.3d 433 (concluding the same as to the law in 2004 and 2006); see also Burns v. Barreto, 2012 WL 2258555, *13 (compiling cases holding that the law pertaining to the use of Tasers was not clearly established in 2008 or 2009). Accordingly, this Court now concludes that, at the time of the incident in this case, reasonable officers would not have known that tasering a 260-pound man suspected of either burglary or domestic violence as he attempts to access an unsecured night stand within a residence during the course of a late-night police investigation triggered by an emergency 911 call, was unconstitutional. See id. Accordingly, Defendants' Motion for Summary Judgment as to Plaintiff's excessive force claim is GRANTED.

B. Defendants' Motion for Summary Judgment as to Plaintiff's Unreasonable Seizure Claim.

According to Plaintiff, he was unreasonably detained in violation of the Fourth Amendment when officers initially drew their tasers on him in the bedroom. According to Defendants, however, they had probable cause to arrest Plaintiff at that time, and Plaintiff's detention was thus reasonable. The Court agrees with Defendants.

"An arrest must be supported by probable cause." United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990). The test for probable cause is whether 'facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person, or one of reasonable caution, [to believe], in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense.'" United States v. Greene, 783 F.2d 1364, 1367 (9th Cir. 1986) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)).

Under the circumstances at issue here, at the time officers drew their tasers, they had developed probable cause to arrest Plaintiff for either trespass or violation of California Penal Code § 148(a)(1). Notably, Plaintiff does not contest that officers had probable cause to arrest him for trespass and argues only that the officers failed to develop probable cause pertaining to any violation of Penal Code § 148(a)(1). Plaintiff thus effectively concedes a reasonable officer could have believed Plaintiff was trespassing and therefore had committed and was continuing to commit a crime.

First, officers were dispatched to Ms. Austin's residence in response to an emergency 911 call in which Ms. Austin had indicated that her estranged husband was trying to break into her house through a sliding glass door. When those officers arrived on the scene just shy of 2:00 a.m., they found Plaintiff in the backyard of Ms. Austin's residence trying to pry open the slider with a screw driver or a metal bar. When officers searched the residence, they found no objective indication that Plaintiff had any right to be on Ms. Austin's property. Accordingly, by the time Plaintiff entered the house and made his way to the bedroom, at which time Ms. Austin twice asked officers if they could make Plaintiff "get out of here," probable cause existed to believe Plaintiff had committed or was committing a trespass. See, e.g., Cal. Pen. Code § 602(o) (trespass occurs when a person refuses or fails "to leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by...the owner, the owner's agent, or the person in lawful possession"); see also Blankenhorn v. City of Orange, 485 F.3d 463, 475 (9th Cir. 2007) ("inquiry is not whether [Plaintiff] was trespassing," but "whether a reasonable officer had probable cause to think he could have been").

In addition, in light of Plaintiff lying to officers and walking away from officers and into the house during an ongoing investigation, sufficient probable cause also existed to arrest Plaintiff for violation of Penal Code § 148(a)(1), which makes it a crime to willfully resist, delay or obstruct a peace officer.

See, e.g., Benas v. Baca, 159 F. App'x 762, *2 (9th Cir. 2005) (probable cause existed to arrest individual for violating Penal Code § 148 when person "obstruct[ed] the defendant officers' efforts to investigate [an] earlier disturbance and to defuse the situation"). It would be reasonable for any officer to believe that each of the aforementioned acts, undertaken by Plaintiff while officers continued to investigate Ms. Austin's claim that Plaintiff was breaking into her house, would be sufficient to justify Plaintiff's arrest for delaying or obstructing an officer. Accordingly, based on the undisputed facts before the Court, Defendants had probable cause to arrest Plaintiff, and they therefore cannot be liable for violating Plaintiff's Fourth Amendment right to be free from an unreasonable seizure. Defendants' Motion for Summary Judgment is thus GRANTED.


For the reasons stated above, Defendants' Motion for Summary Judgment is GRANTED. The Clerk of the Court is directed to enter judgment in favor of Defendants to close this case.


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