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Orr v. California Highway Patrol

United States District Court, E.D. California

February 26, 2015

HARRISON ORR, Individually, Plaintiff,


WILLIAM B. SHUBB, District Judge.

Plaintiff Harrison Orr brought this civil rights action against defendants California Highway Patrol (CHP), the State of California, and Officers Brame and Plumb, alleging that his arrest on August 6, 2013 violated state and federal law. (See First Am. Compl. ("FAC") (Docket No. 5).) Presently before the court are plaintiff and defendants' cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56.

I. Factual and Procedural Background

Plaintiff is a resident of Citrus Heights, California. (Orr Dep. at 12:15-13:2, 21:1-5 (Docket No. 54-1).) In September of 2006, plaintiff suffered a brain-stem stroke that forced him to retire from his job at a money-management firm. (Id. at 21:18-22:10.) Later, in June 2013, plaintiff suffered transient ischemic attacks or "mini strokes." (Orr Dep. at 39:19-22; Helm Decl. Ex. 6 ("June 2006 Discharge Summary") (Docket No. 54-6).) The strokes left plaintiff with facial droop, slurred speech, and balancing problems that require him to use a cane. (Orr Dep. at 26:11-25; Helm Decl. Exs. 11, 14 (Docket Nos. 54-10, 54-13).) At the time of his arrest in August 2013, plaintiff was 76 years old.

On August 6, 2013, plaintiff was driving his grey 2005 Toyota southbound on the Interstate 80 Business Loop ("I-80 Business") to his former home in South Sacramento. (Orr Dep. at 44:10-45:7; Helm Supp. Decl. Ex. 45.) At that time, Officer Brame was driving a marked patrol car southbound on I-80 Business to transport an arrestee to the Sacramento County Jail. (Brame Dep. at 63:13-64:5, 65:9-67:9.) Brame pulled up directly behind plaintiff in the left lane and noticed that plaintiff appeared to be driving too slowly. (Id. at 67:17-19; Orr Dep. at 62:11-63:23.) After observing plaintiff make what he believed were several erratic moves, Brame pulled plaintiff over. (See id. at 87:13-14.)

Brame collected plaintiff's license and registration and asked plaintiff to get out of the car. (Orr Dep. at 53:19-22.) When plaintiff asked what the matter was, Brame asked plaintiff if he had been drinking, and plaintiff replied that he had not. (Id. at 53:22-54:1.) Brame also asked plaintiff if he had taken any drugs or medications that day, and plaintiff responded that he had taken medication for his heart before he left home. (Orr Dep. at 56:15-21.) It is disputed whether plaintiff also informed Brame that he had suffered a stroke. While plaintiff states he repeatedly informed Brame about the stroke, (Orr Dep. at 56:18-57:6), Brame states plaintiff informed him that he had a neurological condition but does not recall whether plaintiff actually used the word "stroke, " (Brame Dep. at 103:15-21).

Brame became increasingly suspicious of plaintiff after performing two sobriety tests, both of which plaintiff failed.[1] (See Brame Dep. at 91:20-24, 101:3-102:18.) Brame also noticed that plaintiff's speech was slurred and his pupils were constricted. (Id. at 119:15-19.) Brame called CHP to request that they send someone with a breathalyzer test, and Officer Plumb soon arrived with the equipment at the scene. (Id. at 132:25-133:5.) The result of plaintiff's test was zero, ruling out alcohol. (Brame Dep. at 107:21-22, 108:1-4.)

Still suspicious that plaintiff could be under the influence of drugs, Brame and Plumb decided to place plaintiff under arrest for driving under the influence. (Id. at 118:23-119:1.) Brame made arrangements for a certified drug recognition expert to conduct a further evaluation of plaintiff at the CHP office to rule out whether or not drugs were the cause of his appearance and behavior. (Id. at 116:19-22.)

Plaintiff initially cooperated with the arrest. However, when Brame informed plaintiff that he would have to be handcuffed, plaintiff states he told the officers that he could not be handcuffed because he had problems balancing. (Orr Dep. at 63:3-4.) After some discussion, plaintiff and the officers reached an impasse. Plumb communicated to Brame that they would need to take plaintiff down, and in a matter of seconds Plumb punched plaintiff in his right ribs and knocked him to the ground. (Orr Dep. at 65:12-20; Plumb Dep. at 30:23-25.) The officers handcuffed plaintiff behind his back and lifted plaintiff off the ground. (Orr Dep. at 70:18-23; Brame Dep. at 152:22-153:2.)

Sargeant Kelly, who had arrived at the scene, transported plaintiff to the CHP office. (Kelly Dep. at 14:8-10 (Docket No. 54-4).) There, Officer Hannem performed an hour-long drug-recognition evaluation on plaintiff and ultimately determinaed plaintiff was a "medical rule-out, " meaning that in his opinion, plaintiff's condition was due to a medical condition as opposed to drug use or alcohol. (Id. at 54:14-17, 58:6-12.)

At 4:40 p.m. plaintiff was booked at the Sacramento County jail for willfully resisting an officer in violation of California Penal Code section 148(a). (Helm Decl. Ex. 19 at 8 (Docket No. 54-18) (noting plaintiff was transported to Sacramento County Jail and booked for a "148(a) PC at 1640 hours").) Plaintiff was released sometime between 12:30 and 1 a.m. (Orr Dep. at 89:18-21.)

As a result of his arrest, plaintiff asserts he sustained substantial bruising to his body, endured pain, and took six to seven weeks to heal. (Orr Dep. at 32:25-33:2, 92:23-102:4; Helm Decl. Ex. 33.) Plaintiff brought claims against Officers Brame and Plumb for (1) unreasonable search and seizure and excessive force in violation of the Fourth Amendment, 42 U.S.C. § 1983; (2) interference with plaintiff's enjoyment of his rights, Cal. Civ. Code § 52.1; (3) interference with plaintiff's right to be free from violence or intimidation, Cal. Civ. Code § 51.7; (4) assault and battery; (5) negligence; (6) Elder Abuse, Cal Welfare & Insts. Code § 15610.07; and (7) false arrest. (See First Am. Compl. (Docket No. 5).) Plaintiff also brought claims against the California Highway Patrol and the State of California under the American with Disabilities Act ("ADA") and Rehabilitation Act ("RA"). Both parties both move for summary judgment pursuant to Federal Rule of Civil Procedure 56.[2] Because plaintiff does not contest summary judgment on his claim under section 51.7, the court need not discuss it and will enter judgment in favor of defendants on that claim accordingly.

II. Defendants' Request for Judicial Notice

Federal Rule of Evidence 201 permits the court to take judicial notice of a fact not subject to reasonable dispute because either it "(1) is generally known within the [] court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).

Defendants request that the court take judicial notice of the "fact" that expert Roger Clark's opinions as a Police Procedures Consultant have been found to be ipse dixit in a number of cases decided in various federal district and appellate courts. (See Defs.' Req. for Judicial Notice at 1-3 (Docket No. 58).) Other courts' discussions of Clarks' opinions in other cases are not a proper subject for judicial notice. While a court may take judicial notice of another court's opinion, it may do so for the existence of the opinion only, and not for the truth of the facts recited therein. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001), impliedly overruled on other grounds as discussed in Gallardo v. Dicarlo, 203 F.Supp.2d 1160, 1162 n.2 (C.D. Cal. 2002). Furthermore, whether in other cases courts have found Clark's opinion to be ipse dixit has no bearing on the instant case with its particularized facts and circumstances.

III. Analysis

A. Summary Judgment Standard

Summary judgment is proper "if the movant shows 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). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.

Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence... will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.

In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge... ruling on a motion for summary judgment...." Id. On cross-motions for summary judgment, the court "must review the evidence submitted in support of each cross-motion [in a light most favorable to the non-moving party] and consider each party's motions on their own merits." Corbis Corp. v., Inc., 351 F.Supp.2d 1090, 1097 (W.D. Wash. 2004).

Both parties filed formulaic and conclusory objections to evidence submitted by the other party. "Objections to evidence on the ground that the evidence is irrelevant, speculative, argumentative, vague and ambiguous, or constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself." Century 21 Real Estate LLC v. All Prof'l Realty, Inc., 889 F.Supp.2d 1198, 1215 (E.D. Cal. 2012) (citing Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1119-20 (E. D. Cal. 2006)). "Similarly, statements based on speculation, improper legal conclusions, personal knowledge, or argumentative statements are not facts and can only be considered as arguments, not as facts, on a motion for summary judgment." Id.

In the interest of brevity, the court will not review the substance or grounds of the individual objections here. The parties' objections are all overruled.

B. Section 1983 Claims for Violation of the Fourth Amendment

Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by... the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Plaintiff's § 1983 claims against Brame and Plumb are based on their alleged unlawful arrest of plaintiff and their use of excessive force in violation of the Fourth Amendment. (See FAC ¶ 35.)

1. Unlawful Arrest

a. The Violation

The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits searches and arrests without probable cause. Beck v. Ohio, 379 U.S. 89, 90-91 (1964); McKenzie v. Lamb, 738 F.2d 1005, 1007-08 (9th Cir. 1984). "The long-prevailing standard of probable cause protects citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime.'" Maryland v. Pringle, 540 U.S. 366, 370 (2003) (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)).

"Probable cause exists when, under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the suspect] had committed a crime." United States v. Ortiz, 427 F.3d 567, 573 (9th Cir. 2004). "While conclusive evidence of guilt is of course not necessary under this standard to establish probable cause, [m]ere suspicion, common rumor, or even strong reason to suspect are not enough.'" United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (quoting McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984)). "The probable cause inquiry is an objective one, focusing on the facts known to the officer at the scene." Fowler v. Cal. Highway Patrol, Civ. No. 3:13-1026, 2014 WL 1665046, at *6 (N.D. Cal. Apr. 25, 2014) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). "The arresting officers' subjective intention... is immaterial in judging whether their actions were reasonable for Fourth Amendment purposes." Lopez, 482 F.3d at 1072.

Once there is probable cause for an arrest, it can dissipate:

If probable cause is established at any early stage of the investigation, it may be dissipated if the investigating officer later learns additional information that decreases the likelihood that the defendant has engaged, or is engaging, in criminal activity. A person may not be arrested, or must be released from arrest, if previously established probable cause has dissipated. "As a corollary... of the rule that the police may rely on the totality of facts available to them in establishing probable cause, they also may not disregard facts tending to dissipate probable cause."

Ortiz, 427 F.3d at 574 (quoting Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)).

The Ninth Circuit has distinguished between litigating probable cause in the criminal and civil contexts. See McKenzie, 738 F.2d at 1008. "[I]n a § 1983 action the factual matters underlying the judgment of reasonableness generally mean that probable cause is a question for the jury, and summary judgment is appropriate only if no reasonable jury could find that the officers did or did not have probable cause to arrest." Id.

Plumb and Brame arrested plaintiff for driving under the influence, which is a misdemeanor.[3] (Brame Dep. at 118:20-119:3.) Brame's suspicion of plaintiff arose from a number of known facts. Plaintiff was driving below the speed limit in the far left lane of traffic and was at one point straddling the lane divider as he attempted to move to the shoulder. (See Orr Dep. at 48:2-5; MVARS video; Brame Dep. 87:13-14.) Based on Brame's experience, driving at a slow speed is a key indicator that a driver is intoxicated. (Brame Dep. at 70:18-23.) Brame also states he observed plaintiff cutting off a vehicle while changing lanes. (Id. at 75:21-76:2.)

Plaintiff's appearance and behavior also led Brame to believe plaintiff had ingested a narcotic. The way plaintiff's eyes failed to track Brame's finger, plaintiff's slurred speech, and his poor balance could indicate drug use. (Id. at 109:4-24, 119:11-22.) Plaintiff's constricted pupils was also potentially a sign that plaintiff was under the influence of drugs; defendants' expert Kevin Craig, an instructor in the Impaired Driving Unit at the CHP Academy, states that most non-narcotic causes of abnormal pupil constriction such as eye injury or old age will cause only one eye to constrict. (Craig Decl. ¶ 12.) According to Brame, both of plaintiff's eyes were constricted. (See Brame Dep. at 119:16-19.)

Plaintiff's constricted pupils, however, were an equivocal sign that plaintiff had ingested drugs. The CHP manual states that a head injury could cause constricted pupils. (See Helm Decl. Ex. 36 at 2-13, 3-7.) It states, vaguely, that "most" non-narcotic analgesic conditions, including eye injury or old age, will cause only one eye to constrict. Id. Neither Craig's statement nor the manual indicate that a neurological condition such as a stroke should only result in unilateral, rather than bilateral constriction. (See id. at 3-7.) In discussing his examination of plaintiff at the CHP office, Officer Hannem stated that he had been trained that the kind of constriction plaintiff exhibited could be the result of either a stroke or drug use. (See Hannem Dep. at 56:4-11.)

In addition to these facts, there were a number of signs-some disputed-that plaintiff's condition resulted from a medical condition. It is disputed whether plaintiff told Brame he had previously suffered from a stroke.[4] (Orr Dep. at 56:15-21, 69:13-18.). At the time of the accident, plaintiff's stroke had left him with a facial droop. (See Helm Decl. Ex. 8 ("Plaintiff's Booking Photo"); Hannem Dep. at 42:23-24.) The Peace Officer Standards and Training ("POST") Academy teaches officers that indicators of stroke include "sagging facial muscles, " "poor balance, clumsiness, " and "impaired, slurred speech." (Helm Decl. Ex. 22 ("POST Manual on First Aid and CPR").) A jury could therefore conclude that a reasonable officer would know that plaintiff's "droopy" face, poor balance, and clumsiness could indicate that plaintiff had suffered a stroke. If it is true that plaintiff asserted that he informed the officers on multiple occasions about his stroke, then his physical symptoms would have corroborated his representations.

There were several other indicators beyond plaintiff's physical condition suggesting that plaintiff had disabilities. Plaintiff's car had a license plate for people with disabilities, (see Helm Decl. Ex. 4), and Brame saw the plate when he ran it with the dispatcher.[5] (Brame Dep. at 106:23-25) Brame found plaintiff's cane in the trunk of his car while he was looking for drugs. (See id. at 180:3-9.) Although Brame states that found the cane after his arrest of plaintiff, where probable cause has dissipated after an arrest due to newly discovered facts, the arrestee must be released, see Ortiz, 427 F.3d at 574.

Despite these additional facts that a jury could find would have suggested to a reasonable officer that several of plaintiff's symptoms were attributable to a medical condition, Brame states he believed he could not take plaintiff's word about his neurological issues. When asked if he doubted plaintiff when plaintiff told him he had a previous neurological condition, Brame testified, "I couldn't take [plaintiff's] word as gospel; I had to obviously do my investigation to figure that out." (Brame Dep. at 113:2-5.) Brame, however, failed to do any investigation to determine whether plaintiff had a medical condition, including asking plaintiff any questions about his neurological condition. Instead Brame merely "[went] through the field sobriety test, " (see Brame Dep. at 113:6-20), the purpose of which was to detect drug use.

"Probable cause means fair probability, " but it does not mean "certainty or even a preponderance of the evidence.'" United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 246 (1983)). "Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." See Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (9th Cir. 1997) (holding that where there was evidence that plaintiff had attacked a police officer, the arresting officer was not required to believe plaintiff, rather than the officer, that plaintiff had acted in self-defense); see also Fowler, 2014 WL 1665046, at *9 (holding that officer was not required to take into account plaintiff's representation that her stroke-related disabilities made it difficult for her to comply with his instructions, where those disabilities "were not readily verifiable" at the moment she resisted arrest).

Here, however, a reasonable jury could conclude that plaintiff's medical condition was not a "theoretical" claim of innocence. There were facts known to Brame at the time of plaintiff's arrest that made plaintiff's stroke readily verifiable. Plaintiff's facial droop, his cane, [6] his license plate for disabled persons could have "overcome" or "chipped away" at the fair probability that plaintiff's condition was the result of disabilities associated with stroke, and not drug use. See Ortiz, 427 F.3d at 574; Fowler, 2014 WL 1665046, at *9. Under Ortiz, a reasonable jury could find that Brame was not entitled to disregard these facts which dissipated probable cause that plaintiff was under the influence of drugs. See Ortiz, 427 F.3d at 574.

Moreover, it is telling that Officer Hannem, after conducting a nearly identical investigation to Brame's at the CHP office, with the same known facts available to him, concluded that under the totality of the circumstances plaintiff's symptoms were consistent with plaintiff's reported history of having been a stroke victim. (Hannem Dep. at 57:24-58:12.) Plaintiff, Hannem concluded, was a "medical rule-out." (Id.) On the other hand, Hannem was a certified drug recognition expert, (Hannem Dep. at 64:7-19), and although Brame had also been certified in that role, he permitted his certification to lapse, (Brame Dep. at 121:1-16). CHP policy also provides that DRE evaluations should be conducted in a controlled environment with minimal distractions and controllable lighting conditions. (See Craig Decl. ¶ 12.) A reasonable jury could find that Hannem's current certification and the controlled environment of the CHP office either did or did not make a difference in Hannem's classification of plaintiff as a medical rule-out.

From the totality of the known facts, a reasonable jury could find that probable cause was lacking when the officers informed plaintiff he was being placed under arrest.[7] See McKenzie, 738 F.2d at 1008 (noting that in § 1983 cases the judgment of reasonableness generally means that a probable cause is a question for the jury). Because a number of material facts are in dispute, granting summary judgment to either party on plaintiff's unlawful arrest claim against the officers is inappropriate at this time. See id.

b. Qualified Immunity

Defendants raise the defense of qualified immunity. (See Defs.' Mot. at 27.) In suits under § 1983, "qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.'" Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, (1982)). "In resolving the claim of qualified immunity, the court must determine whether, taken in the light most favorable to plaintiff, defendants' conduct violated a constitutional right, and if so, whether the right was clearly established." Kinnamon v. Latia, Civ. No. 1:12-1325 AWI DLB, 2015 WL 590617, at *6 (E.D. Cal. Feb. 12, 2015) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Defendants bear the burden of establishing qualified immunity. See Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005). The Supreme Court has held that a court may assume the existence of a constitutional violation under the first inquiry for purposes of the qualified immunity analysis. Pearson, 555 U.S. at 236. The court has already found that disputed issues of fact exist regarding whether defendants Brame and Plumb arrested plaintiff without probable cause in violation of the Fourth Amendment.

Assuming there was a Fourth Amendment violation, the court proceeds to the clearly established inquiry. This inquiry "serves the aim of refining the legal standard and is solely a question of law for the judge." Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1085 (9th Cir. 2009). As the Supreme Court has recognized, whether the unlawfulness of certain conduct is clearly established "depends largely upon the level of generality at which the relevant legal rule is to be identified.'" Wilson v. Layne, 526 U.S. 603, 614 (1999) (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). The right must be defined in a "particularized, and hence more relevant, sense, " requiring a court to strike a balance between defining a right too generally so that the definition necessarily leads to the conclusion that the right is clearly established and defining the right too narrowly so that prior precedent must mirror the facts of the case in order to conclude that the right has been clearly established. Saucier, 533 U.S. at 202-03. If the court concludes a right is not clearly established, the officer is entitled to qualified immunity. Id. at 202.

Here, the issue is whether it is clearly established that an officer lacks probable cause to arrest someone for driving under the influence where there is a readily verifiable innocent explanation for symptoms of drug use. It is well established that "[t]he effect of evidence which may support, or incline toward, a finding of probable cause can, of course, be vitiated by countervailing evidence." Lopez, 482 F.3d at 1074 (citing Ortiz, 427 F.3d at 527). It was thus clearly established that even if the officers believed plaintiff was driving under the influence, they were not entitled to ignore countervailing facts that overcame this belief, including plaintiff's assertion that he had suffered from a stroke, was on medication, and the aforementioned facts suggesting plaintiff was disabled.

In addition to circuit precedent, a court may also consider police policy to determine whether a police officer was on notice that his behavior violated the constitution. See Drummond v. City of Anaheim, 343 F.3d 1052, 1061-62 (9th Cir. 2003) (holding that officers were not entitled to qualified immunity even absent Ninth Circuit precedent squarely on point where "the officers received training from their own police department explaining specifically" that the force they applied could cause death).

The California Highway Patrol training manual anticipates the danger that certain medical conditions could risk subjecting an innocent person to arrest. The training manual states,

(f) Many times a subject may appear obviously impaired. There are other circumstances, such as medical conditions, that may cause a person to show signs and symptoms that are consistent with alcohol and/or drug impairment. Some of these conditions include... (3) Injuries or diseases of the nervous system; (4) head injuries....
(g) It is imperative that the possibilities of such conditions be explored and ruled out to prevent the arrest of innocent, sober persons, and to prevent a person who is injured from being subjected to further aggravation and/or lack of medical attention.
(h) While the presence, or alleged presence, of any of the above conditions does not negate the giving of a further and more complete examination by the officer, the subject's condition may require immediate medical attention. If the officer suspects a medical condition exists and treatment may be needed, the officer should immediately arrange for medical treatment.

(Helm Decl. Ex. 24 at 2-7 ("CHP Training Manual").) This policy places officers on notice that some medical conditions could put individuals at risk of being arrested for driving under the influence of drugs when there was an entirely innocent explanation for his appearance and behavior. It is unclear whether plaintiff's stroke constitutes an "injur[y] to the nervous system" or a "head injury, " both of which the manual single out as conditions needing immediate assistance. In any case, the policy teaches the importance of being perceptive to countervailing facts indicating a medical condition, and not drug use, is the cause of a person's behavior and appearance. As previously discussed, a jury could find that, once aware that plaintiff's symptoms could be stroke-, and not drug-induced, the officers asked no further questions and even ignored other evidence that plaintiff was disabled. (See Brame Dep. at 113:6-20, 156:14-15; 180:5-9.)

Together, Lopez and CHP policy clearly establish that an officer lacks probable cause to arrest someone for driving under the influence where there is a readily verifiable innocent explanation for symptoms of drug use. Because it remains a disputed issue of fact whether plaintiff's medical condition was readily verifiable, defendants are not entitled to qualified immunity at this stage. See Lopez, 482 F.3d at 1074.

Defendants rely on Fowler, a case also involving the arrest of a stroke victim, to argue that because there a district court judge ruled the officers did not violate the Fourth Amendment, then it is not clearly established that a claim of a previous stroke immunizes a plaintiff from an arrest. (See Defs.' Reply at 12); 2014 WL 1665046. Fowler applied Ortiz to facts similar to those here. See id.

Fowler is distinguishable in key respects. In Fowler, police attempted to arrest plaintiff for public intoxication, but she refused to stay in her vehicle when the officers asked her to do so. Id. at *1-*2. Plaintiff states she yelled at the officers that her disability stemming from a stroke made it difficult for her to understand directions and her surroundings. Id. at *9. No other facts suggested the plaintiff had a disability. The court found that this was not an Ortiz "dissipation" situation because plaintiff's statements alone could not overcome the fair probability that plaintiff had willingly refused to comply with the instructions. See id.

Here, however, a reasonable jury could find that the officers had facts in addition to plaintiff's statement that he had had a stroke-his physical appearance, including his facial droop, his disabled persons license plate, and his cane, which Brame discovered post-arrest while searching plaintiff's car on the scene for drugs. A reasonable jury could find that plaintiff's condition, unlike Fowler's, was "readily verifiable" and facts indicating plaintiff's medical condition should have overcome the fair probability that plaintiff was acting under the influence of drugs. There are thus factual disputes that prevent the court from deciding qualified immunity at this stage.

2. Excessive Force

a. The Violation

The Fourth Amendment also governs plaintiff's excessive force claim, but unlawful arrest and excessive force claims require different inquiries. Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004); see also id. ("Because the excessive force and false arrest factual inquiries are distinct, establishing a lack of probable cause to make an arrest does not establish an excessive force claim, and vice-versa."). A court must determine whether "the officers' actions are objectively unreasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397. In Graham the Supreme Court articulated three factors that courts should typically consider in an excessive force analysis: "(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight." Cameron v. Craig, 713 F.3d 1012, 1021 (9th Cir. 2013) (citing Graham, 490 U.S. at 396). In addition to these factors, "a court (or jury) may look to whatever specific factors may be appropriate in a particular case.'" (Id.) (quoting Franklin v. Foxworth, 31 F.3d 873, 875-76 (9th Cir. 1994)).

Ultimately, "[d]etermining whether a police officer's use of force was reasonable or excessive therefore requires careful attention to the facts and circumstances of each particular case and a careful balancing of an individual's liberty with the government's interest in the application of force." Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (internal quotation marks and citation omitted). Whether an officer used excessive force under the Fourth Amendment is a question for the jury, which "almost always turn[s] on a jury's credibility determinations." See id. "Because [the excessive force balancing test] requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment... in excessive force cases should be granted sparingly." Id.

Plaintiff's excessive force claim against the officers centers on Plumb's punch of plaintiff in his right rib-what defendants call a "distraction punch, " (see Defs.' Mot. at 34)- and the officers' forceful takedown of plaintiff to the ground. The occurrence of both actions is undisputed.[8] (See Orr Dep. at 65:12; Plumb Dep. at 30:23-25, 148:24-147:4.)

However, the parties characterize differently the degree of force used. Plumb states that he "struck" plaintiff in the lower ribs with a closed fist but not in a forceful manner, choosing not to hit plaintiff harshly because of his age. (Plumb Dep. at 32:13-33:18.) During the takedown, Plumb says the officers "placed" plaintiff on the ground in order to lessen the impact. (Id. at 36:6-16.) Plaintiff, on the other hand, describes the officers' acts much more violently, testifying that Plumb punched him in the ribs, and Brame kicked his feet out from under him and forced him to the ground in a matter of seconds, such that he had trouble breathing. (Orr Dep. at 69:3-18.) The officers called the fire department, and paramedics found plaintiff's condition to be stable, (Pass Decl. Ex. Q at 1 (Docket No. 57-4)), although photos taken of plaintiff at booking show substantial bruising on his legs and buttocks, (Helm Decl. Ex. 33). Based on this equivocal evidence, the degree of force used on plaintiff is genuinely in dispute.

The officers used force in the course of arresting plaintiff for driving under the influence, and the severity of that crime, a misdemeanor, is generally low. See Bowman v. Reilly, Civ. No. 2:09-1322, 2010 WL 831412, at *6 (E.D. Pa. Mar. 4, 2010) (concluding the severity of a DUI was low in an excessive force analysis); Walker v. City of Post Falls, Civ. No. 1:07-264, 2008 WL 4997056, at *8 (D. Idaho May 21, 2008) (noting under Graham the severity of a DUI and the threat arrestee posed were not overwhelming although ultimately concluding officers' use of force was reasonable where arrestee had not cooperated). Although driving under the influence poses a risk to public safety, that risk, at least in this situation, was not immediate.

In examining the second two Graham factors, the court notes a number of material facts in dispute, including whether plaintiff actively resisted arrest. Plaintiff admits that when Officer Brame grabbed him to handcuff him, he struggled a bit, but he states he did so while saying, "I am going to cooperate with you. I will go. Just you cannot handcuff me." (Orr Dep. at 67.) When the officers continued to grab him, plaintiff also continued to struggle, repeating, "You can't do that. You can't do that." (Id. at 67:11-14.) From plaintiff's version of the facts, a reasonable jury could conclude that plaintiff's conduct did not amount to resistance to arrest, instead concluding that plaintiff was avoiding complying with the officers' attempt to handcuff him.

Even if plaintiff failed to immediately submit to the handcuffs, a jury could find that that alone is insufficient to justify the use of force. "[A] statement that a suspect is physically unable to comply with a request does not, by itself, justify the use of force. Instead, the police may use force only when the intrusion on the individual's liberty interest is outweighed by the governmental interests at stake." Winterrowd v. Nelson, 480 F.3d 1181, 1185 (9th Cir. 2007). In Winterrowd, the Ninth Circuit concluded that even when plaintiff was "adamant" that he was not required to hand over his registration to the officers, a mistake of law, "that attitude would not justify the deliberate infliction of pain." Id.

Defendants tell a different story, stating plaintiff was shouting and even used expletives to communicate to the officers that he would not submit to handcuffs. (See Plumb Dep. at 29.) Defendants assert that plaintiff was "physically fighting" the officers when they attempted to handcuff him. (See Defs.' Mot. at 26; Brame Dep. at 140:1-3, 143:23.) As these disputes demonstrate, whether plaintiff was actively resisting arrest is the kind of factual inquiry that almost always turns on a jury's credibility determination. See Santos, 287 F.3d at 853.

Whether there was an immediate threat to the officers' safety is also disputed. Plaintiff had been cooperative up to the point at which the officers attempted to handcuff him, which is undisputed, (see Brame Dep. at 137:3-12 (describing plaintiff as a "model citizen" up until the handcuffing)). The officers stated that plaintiff clenched his fists like a boxer, (Brame Dep. at 140:1-3, 143:23), and Plumb stated that it "appeared to [him] that [plaintiff] was going to strike either [him] or Officer Brame, " (Plumb Dep. at 31:24-32:4). Plaintiff, however, insists that he never assumed this menacing position with his fists clenched. (See Orr Dep. at 66:22-67:14.) Additionally, plaintiff was at the time a 76-year-old man with poor balance.[9] Plaintiff is not of slight build-his weight at the time was somewhere between 190 to 210 pounds, (see Pass Decl. Ex. M-1 (Docket No. 57-3); Helm Opp'n Decl. Ex 42 (Docket No. 66-8)-but he was matched by two officers, each of whom weighed 200 pounds or over, (see Brame Dep. at 34:19-21; Plumb Dep. at 11:21-23). A jury could reasonably infer that plaintiff might have come around and agreed to the handcuffs had the officers spent more time conversing with him.

On the other hand, a threat to the officers could be inferred from several other facts. This event took place on the side of the highway, which arguably exposed the officers to a risk of being hit by a car. If the officers reasonably believed plaintiff was under the influence of drugs, which is contested, then a jury could also conclude it was reasonable for them to believe plaintiff posed a greater threat to them than if he was sober. See Paramo v. City of Morgan Hill, Civ. No. 3:01-825, 2002 WL 1497521, at *4 (N.D. Cal. Jul. 9, 2002) ("It was reasonable for an uncooperative suspect in custody and under the influence of alcohol could pose a threat to the safety of medical personnel."). Altogether, a determination on whether plaintiff reasonably posed a threat to the officers requires a jury to sift through a number of disputed factual contentions and draw inferences therefrom. See Santos, 287 F.3d at 853.

Ultimately, although the government generally may have a substantial interest in reducing DUI violations, see Killian v. City of Monterey, Civ. No. 5:12-5418, 2013 WL 6577064, at *9 (N.D. Cal. Dec. 13, 2013), and ensuring officer safety during investigations, a reasonable jury could find either way that both of those interests did or did not compel the kind of force used here. Because plaintiff's behavior leading up to the use of force, and thus the risk to the officer's safety, is in dispute, summary judgment is appropriate for neither party at this time.

b. Qualified Immunity

Assuming Brame and Plumb's conduct constituted excessive force in violation of the Fourth Amendment, the officers cannot be held liable unless at the time of the arrest it was clearly established that their use of force was unreasonable.

"The Supreme Court has made clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances." Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). The Ninth Circuit has noted the importance of that principle "in the context of Fourth Amendment cases, where the constitutional standard-reasonableness-is always a very fact-specific inquiry." Id. On the other hand, courts must "apply the clearly established' rule in such a way that faithfully guards the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.'" Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)).

In Winterrowd, police pulled over the plaintiff suspecting that his license plates were invalid. See Winterrowd, 480 F.3d 1182. When plaintiff did not produce a valid registration, police ordered him to get out of the car and put his hands behind his back. Id. The plaintiff explained to the officers that he could not put his hands behind his back because he had a shoulder injury. Id. The officers responded by forcing plaintiff onto the hood of the car, grabbing plaintiff's right arm, and forcing it up, until the plaintiff screamed in pain. Id. The Ninth Circuit held that absent a threat to officer safety, officers are not entitled to use force just because an arrestee refuses to comply with an officer's request. Similar to the facts here, there was a dispute over whether the plaintiff was threatening. The officers stated the plaintiff was "belligerent" but the plaintiff stated he was neither threatening nor physically abusive. Id. at 1184.

Viewing the facts in the light most favorable to plaintiff, in Winterrowd the Ninth Circuit held that no reasonable officer would believe he could constitutionally force a harmless motorist against the hood of a car and cause him unnecessary pain. Id. at 1186. The court found that even where the plaintiff was "verbally abusive" to the officers, "[a]n officer may not use force solely because a suspect tells him he is incapable of complying with a request during the course of an ordinary pat-down." Id.

According to plaintiff, he calmly stated to the officers he could not wear handcuffs because of his balance. (See Orr Dep. at 63:3-4.) Based on plaintiff's version of the facts, which are disputed, the only factual difference between Winterrowd and the instant case is that here plaintiff's underlying alleged crime, a D.U.I., was arguably more severe than driving with an invalid license. While not a case on all fours, Winterrowd sufficiently placed Brame and Plumb on notice that their actions constituted unreasonable force. Because there remains a genuine dispute of material fact as to whether plaintiff behaved in a non-threatening manner in informing the officers that he could not comply with their instructions that he needed to be handcuffed, the court may not grant qualified immunity to the officers at this stage.

C. State law claims

a. California Civil Code Section 52.1

Section 52.1, the "Bane Act, " permits "any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States... has been interfered with, or attempted to be interfered with, as described in subsection (a)... may institute... a civil action for damages...." Cal. Civ. Code § 52.1(b). Subsection (a) permits the Attorney General to bring a civil action when "a person... whether or not acting under the color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion" with a right secured by federal or state law. Id. § 52.1(a). Section 52.1 was originally adopted in response to a rise in hate crimes, but it is not limited to such crimes, nor does it require plaintiffs to demonstrate discriminatory intent. Venegas v. County of Los Angeles, 32 Cal.4th 820, 843 (2004) (holding that "plaintiffs need not allege that defendants acted with discriminatory animus or intent, so long as those acts were accompanied by the requisite threats, intimidation, or coercion.").

Generally, establishing an excessive force claim under the Fourth Amendment also satisfies the elements of section 52.1. See Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014) ("The City defendants concede in their briefs to us that a successful claim for excessive force under the Fourth Amendment provides the basis for a successful claim under Section 52.1."); Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013) ("Cameron asserts no California right different from the rights guaranteed under the Fourth Amendment, so the elements of the excessive force claim under Section 52.1 are the same as under § 1983."); Bender v. County of Los Angeles, 217 Cal.App.4th 968, 978 (2d Dist. 2013) (holding that where an arrest is unlawful and excessive force is applied in making the arrest, there has been coercion in violation of the Bane Act); cf. Venegas, 32 Cal.4th at 843 ("We need not decide here whether section 52.1 affords protections to every tort claimant, for plaintiffs in this case have alleged unconstitutional search and seizure violations extending far beyond ordinary tort claims."). Accordingly, because granting summary judgment to either party is inappropriate with respect to plaintiff's unlawful arrest and excessive force claims, so too will the court deny those motions with respect to plaintiff's section 52.1 claim.

Defendants contend that even if the officers used excessive force in violation of the Fourth Amendment, they are immune from a Bane Act claim because their use of force was privileged pursuant to California Penal Code sections 835 and 835a. Section 835 provides that "[t]he person arrested may be subjected to such restraint as is reasonable for his arrest and detention." Cal. Pen. Code § 835. Section 835a provides that an officer may use reasonable force to effect an arrest, to prevent escape, or to overcome resistance. Id. § 835a. The court has already determined that genuine issues of material fact remain as to the reasonableness of force used by the officers. Therefore, at this stage the officers are not entitled to immunity under sections 835 and 835a.

b. Assault, Battery, False Arrest, and Negligence Claims

For his assault and battery claims under California law, plaintiff must prove that the force used by the police officers was unreasonable. See Bowoto v. Chevron Corp., 621 F.3d 1116, 1129 (9th Cir. 2010) ("Under California law, a plaintiff bringing a battery claim against a law enforcement official has the burden of proving the officer used unreasonable force."). The court finds no difference between this reasonable analysis and that which it previously performed in the Fourth Amendment context. See Hayes v. County of San Diego, 57 Cal.4th 622, 632 (2013) (holding reasonableness must be determined under the totality of the circumstances and quoting the § 1983 case Graham, 490 U.S. at 396, for the proposition that the use of force must be judged from the perspective of a reasonable officer at the scene).

Similarly, plaintiff's false arrest[10] and negligence claims[11] turn on the reasonableness of the officers' decision to arrest plaintiff for driving under the influence. Because genuine issues of material fact remain as to the reasonableness of the arrest, the court will deny both parties' motions for summary judgment with respect to plaintiff's state-law claims for assault, battery, false arrest, and negligence.

c. Elder Abuse

The Elder and Dependent Adult Civil Protection Act ("EDACPA") proscribes "[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering" of an individual over the age of 65. Cal. Welf. & Inst. Code §§ 15610.07, 15610.27. The California legislature's express intent in enacting the EDACPA was to protect elders and dependent adults from abuse, because it recognized that the vulnerability of that segment of the population places it at great risk of abuse by families and caretakers. See id. § 15600.

Neither the Ninth Circuit nor the California courts have ruled on the issue of whether the EDACPA applies to law enforcement taking custody of individuals over the age of 65. Courts in this district have held that EDACPA does not apply to law enforcement's conduct toward an arrestee, reasoning that EDACPA was intended for deliberate, consistent caretakers, not for limited encounters with law enforcement. See Berman v. Sink, Civ. No. 2:13-597 LJO SAB, 2013 WL 2360899, at *17 (E.D. Cal. May 29, 2013) ("This Court is unconvinced that an elderly person's contact with law enforcement equates to actionable abuse under the Elder Abuse Act given the [Act's] emphasis to remedy wrongs by deliberate consistent caretakers.'"); Pirritano v. City of Redding, Civ. No. 2:08-1488 MCE KJM, 2010 WL 716235, at *4 (E.D. Cal. Mar. 1, 2010). The court finds this reasoning persuasive, particularly because law enforcement personnel are not among the "care custodians" listed in the Act. See id. § 15610.17. The court will therefore grant defendants' motion for summary judgment on this claim.

D. ADA/Rehabilitation Act against defendants CHP and State of California

Plaintiff brings claims under Title II of the American with Disabilities Act ("ADA") and the Rehabilitation Act ("RA") against the California Highway Patrol and the State of California. (See FAC ¶¶ 63-74.) Both Title II of the ADA and the RA proscribe discrimination on the basis of disability by state or local governments or their instrumentalities, although the RA applies specifically to programs receiving federal funding.[12] See 42 U.S.C. § 12131(1)(B); 29 U.S.C. § 794(b). Public entities are vicariously liable for the acts of their employees under both acts. See Duvall v. County of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001). "There is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act." Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999). Therefore, the court will apply the same analysis to claims under both statutes.

Under Title II of the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. "Discrimination includes a failure to reasonably accommodate a person's disability." Sheehan v. City & County of San Francisco, 743 F.3d 1211 (9th Cir. 2014).

Recently, the Ninth Circuit held that the ADA applies to arrests, siding with the majority of circuits. See id. at 1232. The Supreme Court granted the Sheehan defendants' petition of certiorari and will hear the case in March of this year. See City and County of San Francisco v. Sheehan, ___ U.S. ___, ___, 135 S.Ct. 702 (2014). However, the Ninth Circuit's opinion is still binding on this court. See Sanders County Republican Cent. Comm. v. Fox (recognizing a published Ninth Circuit decision constitutes binding authority which must be followed until it is overruled by a body that is competent to do so (citing Gonzalez v. Ariz., 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc))); see also Wicker v. McCotter, 798 F.2d 155, 158 (5th Cir. 1986) (holding that the fact that the Supreme Court grants certiorari does not alter authority of the circuit's prior decisions).

The Ninth Circuit identified at least two types of Title II claims applicable to arrests:

(1) wrongful arrest, where police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity; and (2) reasonable accommodation, where, although police properly investigate and arrest a person with a disability for a crime unrelated to that disability, they fail to reasonably accommodate the person's disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees.

Sheehan, 743 F.3d at 1232. Plaintiff proceeds under both theories.

1. Wrongful Arrest

To prevail on his wrongful arrest theory under the ADA, plaintiff must prove that (1) he was disabled; (2) the officers knew or should have known he was disabled; and (3) the officers arrested him because of legal conduct relating to his disability. See Holocomb v. Ramar, Civ. No. 1:13-1102 AWI SKO, 2013 WL 5947621, at *6 (E.D. Cal. Nov. 4, 2013) (citing Gohier v. Enright, 186 F.3d 1216, 1220 (10th Cir. 1999)); Lewis v. Truitt, 960 F.Supp. 175, 178 (S.D. Ind. 1997). Defendants do not dispute that plaintiff is disabled. (See Defs.' Mot. at 41-42.) The court's analysis will therefore focus on the second two elements.

In its § 1983 analysis, the court already found there is a genuine dispute of material fact concerning whether Officers Brame and Plumb should have known plaintiff has disabilities based on plaintiff's statements regarding his stroke, his physical symptoms, including lack of balance, and his disabled license plate. Brame also saw plaintiff's cane in the back of plaintiff's car. (See id. at 180:3-9.) Although he made that discovery after plaintiff was handcuffed, this was still before plaintiff was taken to the CHP office. A reasonable jury could find these were sufficient clues for providing defendants with notice that plaintiff had a disability.

Defendants argue that because the officers observed plaintiff driving dangerously and erratically, then their arrest of plaintiff was due to illegal conduct, and not legal conduct related to his disability. (Defs.' Mot. at 41-42.) However, a reasonable jury could conclude that defendants arrested plaintiff and continued to detain him at the highway patrol office not for driving erratically, but for driving under the influence. (See Brame Dep. at 118:23-119:1.) The officers stated that several of plaintiff's stroke-related disabilities played into their decision to arrest plaintiff for a D.U.I.-his lack of balance, slurred speech, constricted pupils, and his difficulty following Brame's finger. (See id. at 109:14-110:3.) None of these physical characteristics constitute illegal conduct. It can therefore reasonably be concluded that defendants arrested plaintiff because of legal conduct related to his disability. See Jackson v. Inhabitants of Town of Sanford, Civ. No. 94-12, 1994 WL 589617, at *6 (D. Me. Sept. 23, 1994) (denying defendants' motion for summary judgment on plaintiff's claim that he was unjustifiably arrested for driving under the influence due to stroke-related disabilities in violation of the ADA, reasoning that the "legislative history of the ADA demonstrates that Congress was concerned with unjustified arrests of disabled persons such as the plaintiff there"). Because it also remains disputed whether the officers reasonably should have known that plaintiff is disabled, summary judgment is appropriate for neither party on plaintiff's wrongful arrest claim at this time.

2. Reasonable Accommodation Theory

Title II also subjects the officers to liability if they "fail[ed] to reasonably accommodate the [plaintiff's] disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees." Sheehan, 743 F.3d at 1232. "[The] plaintiff bears the initial burden of producing evidence of the existence of a reasonable accommodation, " and "[a] public entity may defeat a reasonable accommodation claim by showing that making the modifications would fundamentally alter the nature of the service, program, or activity.'" Id. at 1233. Plaintiff asserts defendants denied him the accommodation of permitting him to (1) remain unhandcuffed and (2) use his cane over the course of his arrest. (Pl.'s Mot. at 38-40.)

"[A] public entity is on notice that an individual needs an accommodation when it knows that an individual requires one, either because that need is obvious or because the individual requests an accommodation." Robertson v. Las Animas County Sheriff's Dep't, 500 F.3d 1185, 1198 (10th Cir. 2007). The parties dispute whether the officers were on notice that plaintiff required an accommodation. Plaintiff states he informed Brame that the reason he could not be handcuffed was because he "ha[d] no balance." (Id. at 63:4-5.) Brame admits plaintiff asked for his cane as they were leaving to head to the CHP office, (Brame Dep. at 180:16-18), but plaintiff testified that Brame did not return the cane to plaintiff until much later, after they left the CHP office to book plaintiff at the jail, (Orr Dep. at 91:11-20). Brame, however, testified that plaintiff never mentioned that he could not balance without handcuffs and instead stated that he did not want to be seen putting on handcuffs by his neighbors and friends driving down the freeway. (See Brame Dep. at 130.) Whether the officers were on notice that plaintiff required an accommodation is thus in dispute.

Assuming defendants were on notice of plaintiff's need for an accommodation, the question becomes whether a jury could find that permitting plaintiff to stay out of handcuffs is reasonable. "[T]the question of what constitutes a reasonable accommodation under the ADA requires a fact-specific, individualized analysis of the disabled individual's circumstances and the accommodations that might allow him to meet the program's standards." McGary v. City of Portland, 386 F.3d 1259, 1270 (9th Cir. 2004) (internal quotation marks and citation omitted).

Defendants argue that it is unreasonable to ask a law enforcement officer to place himself in danger by permitting an arrestee to be unrestrained during an arrest. (Defs.' Mot. at 48-49.) Because plaintiff was suspected of narcotic use and was physically combative, defendants argue it was especially unreasonable to expect the officers to permit plaintiff to travel with the officers without handcuffs. (Id.) From defendants' characterizations of plaintiff's threatening behavior, a reasonable jury could conclude that it would be unreasonable for the officers to permit plaintiff to not wear handcuffs while he was in custody.

Other evidence suggests it would have been reasonable for the officers to permit plaintiff not to be restrained by handcuffs and use his cane. If what plaintiff states is true, and he requested that he not be handcuffed prior to becoming combative, (see Orr Dep. at 63:4-5), then a reasonable jury could conclude that his request may have been more reasonable. Furthermore, there is evidence that Officer Kelly later took off plaintiff's handcuffs without trouble. (Kelly Dep. at 16:9-14 (Docket No. 54-4).) When they arrived at the CHP office, Kelly took plaintiff's handcuffs off because plaintiff was having problems walking up the stairs. (Id.) She assisted plaintiff by holding onto his arm and during this time did not perceive plaintiff as a threat. (Id. at 17:13-23.) Kelly testified that she felt it was within her discretion to remove the handcuffs in this situation even though plaintiff was in custody. (Id. at 19:3-7.) From these disputed facts-including whether or not plaintiff was combative with the officers-the court cannot conclude that a reasonable jury could not find one way or the other that permitting plaintiff to proceed in custody unhandcuffed with the use of his cane was reasonable.

Whether plaintiff suffered injury or indignity from the officers' alleged failure to accommodate is also in dispute. Plaintiff testified, "I can walk without a cane, but a cane is my best friend, " and "without the cane, I stagger. With the cane, I don't stagger as much, but I still stagger a little." (Orr Dep. at 26:23-24, 27:12-14.) Plaintiff also testified that while handcuffs would not impair his ability to walk, he would be unable to get into the patrol car without use of his hands. (Id. at 64:6-13.) Although there is no evidence of how plaintiff fared entering and exiting the police car, a genuine dispute of fact remains as to whether plaintiff suffered "greater injury or indignity than other arrestees" while in handcuffs without the use of his cane. See Sheehan, 743 F.3d at 1232.

With so many facts in dispute, from which a reasonable jury could or could not conclude that CHP and the State of California violated Title II by not offering plaintiff a reasonable accommodation, summary judgment is inappropriate on plaintiff's reasonable accommodation claim.

It is THEREFORE ORDERED that defendants' motion for summary judgment be, and the same hereby is, GRANTED with respect to plaintiff's Section 51.7 and Elder Abuse claims and DENIED with respect to all other claims.

It is FURTHER ORDERED that plaintiff's motion for summary judgment be, and the same hereby is, DENIED in all respects.

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