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Rodriguez v. City of Modesto

United States District Court, E.D. California

April 8, 2015

MIGUEL RODRIGUEZ, CHARISSE FERNANDEZ, Plaintiffs,
v.
CITY OF MODESTO, A MUNICIPAL CORPORATION; RON CLOWARD, LIEUTENANT; JOHN BUEHLER, SERGEANT; JAMES MURPHY, RONNY ZIYA, MARK FONTES, AND KALANI SOUZA, POLICE OFFICERS IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; AND DOES 1-10, Defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Jury Trial June 9, 2015 (Doc. 63)

LAWRENCE J. O'NEILL, District Judge.

Plaintiffs bring the instant civil rights action against the City of Modesto and the arresting officers, alleging excessive force under 42 U.S.C. § 1983 and state law causes of action for civil rights violations and battery. Before the Court in the above-styled and numbered cause of action is the motion of Plaintiffs Miguel Rodriguez and Charisse Fernandez (collectively, "Plaintiffs") for Summary Judgment, filed January 22, 2015 (Doc. 63). Defendants filed their Opposition on February 26, 2015 (Doc. 75). The Court deems the matter appropriate for resolution without oral argument. See Local Rule 230(g). Having considered the record in this case, the parties' briefing, and the relevant law, the Court will deny Plaintiffs' motion. The Court finds that there are triable issues of fact as to whether the officers' actions were reasonable, and these triable issues impact whether the officers are entitled to qualified immunity. The factual findings will need to be determined by the trier of fact, then to be used to determine the legal issue.

I. BACKGROUND[1]

FACTUAL ALLEGATIONS

The following relevant facts come primarily from Plaintiffs' Second Amended Complaint ("SAC") (Doc. 40); the Yourke Declaration, Exhibit 1 (Doc. 65-1): Rodriguez's deposition ("Rod. Depo."), Exhibit 2 (Doc. 65-2): Fernandez's Deposition ("Fern. Depo."); Defendants' Statement of Undisputed Facts ("DSUF") (Doc. 83); the declarations of relevant officers (Officers Jon Buehler, Mark Fontes, Florencio Costales, Ronny Ziya) ("Buehler Decl., " "Fontes Decl., " "Costales Decl., " and "Ziya Decl.") (Docs. 78-81), and police consultant Don Cameron ("Cameron Decl.") (Doc. 82), as well as Video Evidence ("Video") (Docs. 70, 77).

Undisputed Events Leading to Encounter Between Police and Plaintiffs

This suit is an excessive force claim stemming from events in Modesto, California, when at approximately 1:00 a.m. on February 8, 2009, Modesto Police Department Officers Ziya, Costales, and Sprueill responded to a noise complaint and arrived at the home of Adrian Alizaga ("Alizaga") to investigate. SAC ¶ 14; Ziya Decl., ¶ 2; Costales Decl., ¶ 2; Ex. A at 14:14-18. Plaintiffs Charisse Fernandez ("Fernandez"), Alizaga's then-girlfriend, and Miguel Rodriguez ("Rodriguez"), Alizaga's cousin, were among a group of people gathered at Alizaga's home for his birthday party. Id. An officer knocked at the front door, and Alizaga opened the door and stepped outside. Id. Alizaga's dog ran out of the front door, towards the officers. Id; Ziya Decl., ¶ 4; Mtn. at 4:17. The officers ordered that the dog be put inside. DSUF, ¶ 6. Subsequently, Fernandez complied and put the dog in the house. Id. When Alizaga did not return inside the house, several of his guests stepped outside, including Rodriguez. Id., ¶ 23. Rodriguez saw two officers standing over Alizaga who was lying on the ground, handcuffed. Id. Plaintiffs could see that the police had arrested Alizaga. Id., ¶ 5, 23. When Rodriguez went outside to check on Alizaga, he heard a police officer yelling at them to go back inside the house. Id., ¶ 24. Rodriguez asked the police why Alizaga had been arrested. Id., ¶ 25.

The Parties' accounts of the key facts are markedly different.

Plaintiffs' Account of Events Leading to Use of Force

According to Plaintiffs, these events stem from Alizaga's thirtieth birthday party on February 7, 2009. Rod. Depo. at 13:15-23. Rodriguez states that approximately thirty guests attended, arriving around 7 or 8 p.m., and that "a lot of my family were there, " including his wife, mother, aunts, and cousins. Id. at 13:25; 14:22; 16:13-15. By the time police arrived, the parents had come and gone, only a group of about ten people remained, and the music was off. Id. at 16:16-17:1; SAC. ¶ 14. Of those approximately ten guests who remained, Rodriguez remembers the following were present: himself, his wife, Alizaga, Alizaga's girlfriend Plaintiff Charisse Fernandez, another cousin Eric, friends Roger and Dietrich Davenport, and Jeremy Aguilar. Rod. Depo. 18:20-19:2. A next-door neighbor, Steve, had been at the party, but was not in the house at the time of the incident. Id. at 21:7-13. Inside the house, the guests congregated in the front living room. People had been drinking beer at the party over several hours, so "everybody was buzzed, " but not drunk. Id. at 20:9-25. Rodriguez described the house as follows. The front room is a living room with a window overlooking the front porch, facing the front street-side of the house. Id. 17:19-18:10. The front door is in or near the living room and opens to a front porch, the dimensions of which are approximately six to eight feet wide and three feet deep. Id. at 23:5-16. The front porch overlooks a fenced-in front lawn, the perimeter of which is a street-facing picket fence with a center gate, and the side fence, perhaps chain link or picket, is on the property line between the neighbors' houses. Id. at 23:17-24:1. There are steps from the front yard up to the porch and the front door. See generally Video. The distance from the front gate to the porch is approximately twenty feet. Rod. Depo. at 27:3.

Rodriguez was sitting in the front room on the couch from which he could see the front door when he heard a knock at the door. Id. 17:19-25; 19:4-6, 14-22. He continued to talk on the couch, but noticed that his cousin Alizaga went to the door and opened it, but Rodriguez could not see who was at the door. Id. 19:10-24. The front window's blinds were turned at an angle where people inside could not see out. Id. 18:5-10. When Alizaga went to the door, he said, "watch him, watch him, " apparently referring to his dog, a German Shepherd mix. Id. 20:2-5; 89: 2-10. Alizaga went outside, the dog ran out, and Alizaga closed the door behind him. Id. at 21:16-20. Rodriguez saw Alizaga at the door, assumed a neighbor or another guest was at the door, and he remained on the couch talking in the living room. Id. 20:2-8. At the time, Rodriguez had a prescription card for cannabis and at some point that night prior to the incident had smoked marijuana. Id. at 21:1-6.

Rodriguez noticed that Alizaga did not return for what "felt like a really long time." Id. at 22:8-14. Because he wondered where Alizaga had gone, he went to the front door with Charisse Fernandez behind him. Id. While together with the group in the small living room, Rodriguez opened the front door and "everybody" was "all kind of around each other" at the door. Id. at 22:20-22. They saw two officers standing over Alizaga, who was face-down on the lawn inside of the front gate, his feet almost touching the front fence and his head pointed at the house. Id. 22:24-23:1; 24:2-17. When Rodriguez opened the door, officers started yelling and "telling us to go back in the house." Id. at 25:1-2; SAC ¶ 15. Rodriguez saw at least one police car on the street. Id. at 25:20-21. While Alizaga was prone on the front lawn, Rodriguez saw officers bend over Alizaga and put handcuffs on him. Id. at 25:8-11.

Rodriguez concedes that he went out to the front lawn in an attempt to find out from police what was going on and why Alizaga had been arrested. SAC ¶ 15; DSUF ¶ 25. He approached police and came halfway across the front law to within approximately eight to ten feet of the officers. Rod. Depo. at 26:18-22; 27:10. Rodriguez asked the officers what was going on. Id. 26:15-22. While asking questions, Rodriguez used an "upset, firm but not yelling voice, an articulate voice to let them know that they're talking to someone that has a brain, just interested in why his family is being arrested." Id. at 28:25-29:3. While doing so, he was standing up and had his hands behind his back to show he was not a threat. Id. at 27:10-13; 28:21-22. He was prepared to go to jail if necessary, and kept asking officers what was going on and why they were arresting Alizaga. Id. 28:13-14. Rodriguez puts Fernandez outside with him at this point, slightly behind him to the left. Id. at 27:20-24. Other party guests had come out of the house and were on the porch. Id. at 32:12-14. From the front yard, Alizaga was yelling obscenities at officers, but no one else was. Id. 33:3-9. From the porch, some people were asking officers what was going on and why was Alizaga being arrested. Id. 32: 15-23. Someone on the porch yelled something like, "that's fucked up." Id. 33:13-19.

Officers refused to respond to Rodriguez's questions or give any explanation for Alizaga's arrest, and again ordered them to get inside the house. Id. at 28:9-11. In response to Rodriguez's continued questions, an officer standing about 7-10 feet away pulled out his Taser, "and told me he was going to shoot me, " and "basically told me to shut up and go back in the house." Id. at 29:21-30:1-2. Rodriguez told the officer to shoot if he liked, but that he had no reason to do it because Rodriguez was not a threat to them, he was just asking why they were arresting his cousin. Id. 30:5-8. Rodriguez did not threaten or advance on the officers in any way. Id. He repeated to officers "I am of no threat to you. My hands are behind my back. I just want to know what's going on." Id. at 29:12-14. The officer reholstered his Taser and did not use it at that time. Id. 35:9-14. The officer reholstered his Taser about 30 seconds to a minute before the other officers arrived. Id.

Rodriguez concedes that he still did not go inside because he feared for Alizaga's safety if he left him alone with officers. Id. 30:10-17. Rodriguez anticipated that the police might arrest him for refusing to go back inside but he felt he had to keep an eye on Alizaga. Id. 35:14-36:2. In total, he estimates that he had been speaking to officers on the front lawn for two to three minutes when he saw numerous additional police cars arrive, pulling up to the house, and it "seemed like the whole police force." Id. 28:15-16; 30:18-31:7. He observed approximately eight additional police officers arrive, maybe more. Id. 31:10-12.

Realizing the additional officers' imminent arrival, Rodriguez's friend Roger Davenport urged him to come inside. Id. 31:16-21. Rodriguez refused his friends' pleas to move inside, telling them because "we didn't do anything wrong. I'm standing up for what I believe in. Nothing wrong happened here. I just want to know why he is being arrested." Id. 31:18-21. The other individuals present were scared and while some remained on the porch, others went inside the house. Id. at 31:22-25; 32:8-9; see Video at minute 1:00-30. Rodriguez contends that when additional officers arrived, he was the only party guest on the front lawn. Id. at 31:24. The newly arrived additional officers came through the front gate. Id. 33:21-24. Two or three officers came straight to Rodriguez. Id. at 34:3-7. In his deposition, Rodriguez stated:

I basically knew [I would get arrested]. I saw how many officers were coming. So I put my hands behind my back, and I knew like at this point just arrest me because I'm not going to let my cousin go to jail by himself. So I put my hands behind my back literally like this, like made it easy for them to just put the handcuffs on me. Take me away. Because I felt I knew that I would have to talk to someone higher up, and I would tell them that this was wrong and tell them my side of the story, but that never happened.

Id. at 35:17-36:2. Rodriguez contends that he did not resist or fight, when officers approached he stood with his hands behind his back, watching officers approach him. Rod. Depo. 36:7-10; 39:21-25. Officers said nothing as they approached him. Id.

Fernandez's account is largely the same, albeit with details specific to her experience. When the dog ran into the yard, police ordered Alizaga to put the dog back in the house or they would shoot it. Fern. Depo., 23:24-24:7. Fernandez ran after the dog, got hold of it, and brought the dog inside the house where she secured it in a back bedroom. Id. Despite the police's order to move back or go inside the house, Fernandez concedes that she did not stay inside, but came out with Rodriguez to see what had happened to her boyfriend, Alizaga. SAC ¶ 17. At some point she returned inside where she told some guests that Alizaga had been arrested, but Rodriguez remained outside. Rod. Depo. at 18:11-20. Then, along with some guests, Fernandez went on the front porch to see what was going on. Id.; Fern. Depo. 23:16-23. Outside for at least a second time, Fernandez saw Alizaga on the ground, and she saw five or six officers standing around Alizaga and officers hitting Alizaga with batons. Fern. Depo. 23:16-23, 27:8-15. From where she stood on the porch, Id. at 31:17-32:1, she also saw officers "beating" Rodriguez, who was on the ground, lying on his side and facing toward Fernandez. Id. at 27:24-28:24; 31:17-32:1.

Defendant City of Modesto Officers' Account of Events Leading to Use of Force

According to Defendants, Officers Ziya, Costales, and Sprueill responded to a noise complaint in a neighborhood known to have a high crime rate. Ziya Decl., ¶ 2; Costales Decl., ¶ 2; Ex. A at 14:14-18. After officers knocked on Alizaga's door, he quickly opened it and told his dog "sic em" and "go get em, " and the German Shepherd came out of the door in a rush. Ziya Decl., ¶¶ 3-4; Ex. A at 11:17-21. Alizaga followed the dog outside, towards the officers and yelled "get em" to the dog. Ziya Decl., ¶ 4. The officers were fearful that they would be attacked by the dog and commanded Alizaga to get the dog back inside the residence. Id.; Costales Decl., ¶ 3. Alizaga refused, became belligerent, yelling "fuck you guys" and similar comments. Ziya Decl., ¶ 5.

Ms. Fernandez followed Alizaga outside and also confronted the officers. Id. Officer Sprueill escorted Alizaga from the front porch to separate him from Fernandez. The officers explained to Alizaga that they were only there for a noise complaint, and tried to get him to calm down, but he continued to act aggressive and shout profane statements at the officers. Id., ¶ 6. Fernandez began to become belligerent, and Alizaga became more belligerent. Id., ¶ 7. The officers gave Alizaga several warnings to calm down, and at that same time a number of males, of which Miguel Rodriguez was one, exited the house and began to swear and shout at the officers and challenge them to fight. Id.; Costales Decl., ¶ 5. Alizaga attempted to break away from Officers Sprueill and Ziya, but the officers attempted to handcuff Alizaga and take him into custody for resisting lawful the officers' orders, causing the crowd of males to advance towards the officers. Ziya Decl., ¶ 8.

Alizaga struggled against the officers, and Officers Sprueill and Ziya took Alizaga to the ground to gain control over him. Id. According to the officers, the crowd was hostile, shouting at the officers and challenging them to fight, and that Rodriguez was one of the individuals who challenged the officers to fight. Ziya Decl., ¶¶ 9-10; Costales Decl., ¶¶ 5-6.

Fearing that the situation could soon be out of control, Officer Costales called for backup. While waiting for back up, Officers Ziya and Costales stood side-by-side, approximately 1-2 feet from the crowd, and waited for backup to arrive while Officer Sprueill gained control of Alizaga. Ziya Decl., ¶¶ 10-11. The male subjects continued to act hostile and refused commands to go back into the residence. Ziya Decl. ¶¶ 9-10; Costales Decl. ¶ 8. The officers were outnumbered, and a number of members of the crowd were larger-sized individuals. Ziya Decl. ¶ 10. After a while, several male subjects went back into the house, while several subjects remained outside and continued to shout at and antagonize the officers. Costales Decl., ¶ 7.

Phase One of Physical Encounter Between Rodriguez and Officers

Rodriguez's Account

Two or three of the additional officers marched straight to Rodriguez as soon as they arrived. Rod. Depo. at 34:3-7. Rodriguez anticipated they were coming to arrest him and as he stood on the lawn, he presented himself to them by turning his back and putting his hands behind his back. Id. at 35:17-19; 36:16-20. Officers said nothing as they approached. Id. at 36:3-5. Without any warning, one of the approaching officers, Officer Fontes, shot Rodriguez in the back with a Taser. Id. at 36:7-13. The Taser barbs went in Rodriguez's back. Id. at 36:25; see Doc. 69, Nos. 4-20. Officer Fontes was not the same officer who initially arrived on the scene and had reholstered his Taser. Id. at 37:12; 38:11-14. Rodriguez immediately fell to the ground. Id. at 40:1. About the Taser strike, Rodriguez reported:

When I got tased, my view changed from what was happening at eye level to now floor level. I instantly fell on the floor, so when you're being tased, forget about remembering anything at that point. It was just the feeling of being tased.

Id. at 39:11-15.

Officers' Account

According to Defendants, officers ordered Rodriguez to stop walking in the front yard, and in response Rodriguez became profane and belligerent. In response, Officer Costales unholstered his Taser and pointed it at Rodriguez, who told Officer Costales to go ahead and shoot him. Costales Decl., ¶ 6. Additional officers arrived who also repeatedly told the crowd, which included Rodriguez, to go back inside the house, but Rodriguez and Fernandez remained noncompliant and were combative. Ziya Decl., ¶ 12; Costales Decl., ¶¶ 8-9.

The officers did not know how many people were in the house, whether there were weapons in the house, whether the individuals in the front of the house - including Rodriguez and Fernandez - were armed, or whether the dark areas on the sides of the house concealed persons who would attack the officers. Ziya Decl., ¶ 19; Costales Decl., ¶ 13; Buehler Decl., ¶ 10; Fontes Decl., ¶ 11. According to the officers, after having had a German Shepard "sic'ed on them, " and not knowing if anyone else from the party might attempt to attack the officers, it was essential that the officers quickly gain control of the scene by detaining any individuals who were refusing to comply with their lawful commands. Id.; Cameron Decl.; Ex. A at p. 4.

The officers specifically ordered Rodriguez to get on the ground and cease his aggressive behavior. Rodriguez refused and Officer Fontes told him that he was under arrest. Fontes Decl., ¶ 4; Ziya Decl., ¶ 13. Officer Fontes then attempted to grab Rodriguez' left hand to place it behind his back and handcuff him, but Rodriguez spun away. Fontes Decl., ¶ 4. Officer Ziya then attempted a leg sweep takedown, which Rodriguez resisted, and Officer Fontes was ultimately able to successfully take Rodriguez to the ground onto his stomach. Fontes Decl., ¶ 5; Ziya Decl., ¶ 13.

Once on the ground on his stomach, Rodriguez held his arms firmly under his body and would not allow himself to be handcuffed. Ziya Decl., ¶ 14. Officers had not searched Rodriguez for weapons. Fontes Decl., ¶ 8; Ziya Decl., ¶ 18. Based on their experience and training, the officers understood that knives, guns, and other dangerous items can be concealed in the waistband of pants - the location where Rodriguez was keeping his hands, despite the officers' orders and physical attempts to place him in handcuffs. Id.

After Rodriguez was on the ground from the take-down, he continued to pull away from the officers, got into a crawling position, and began crawling away from the officers towards the house. Fontes Decl., ¶ 5. At this point, due to this continued resistance, Officer Fontes first deployed his Taser in "probe" mode (which consists of two darts attached to electric wires) on Rodriguez. Id. A verbal warning prior to deploying the Taser was not feasible because the officers did not have control of Rodriguez' hands, he was continuing to resist arrest, and the delay involved in giving a warning could have compromised the safety of the officers or others. Id. After Officer Fontes tased Rodriguez, Rodriguez continued to pull away, breaking one of the connections on the Taser thus making it ineffective. Id., ¶ 6.

Phase Two of Encounter Between Rodriguez and Officers: Rodriguez on the Ground

Rodriguez's Account

After the first Taser application, as Rodriguez fell, he fell forward and his hands were in front of him. Id. at 42:14. When he landed, he was face down with his hands underneath his chest. Id. at 42:10-14. Rodriguez contends:

I don't know what he was doing exactly on my back. Because I'm like - I couldn't feel the batons - you could kind of feel it hitting but you can't feel the pain because when you're getting tased, it's like a locking feeling that's like - it takes over all your sensory. So you can feel nudges on you, but you can't feel the pain because you're being tased. It takes over everything. It's just like a locking feeling.

Id. at 44:18-45:1.

Officer Fontes used the Taser on Rodriguez approximately three more times and continued shooting him as he lay on the ground, face down, as other officers started striking him with batons. Id. at 40:1-25. The officer who tased Rodriguez was on top of him. Id. at 44:15-16. As he was shot with the Taser, Rodriguez was struck with a club repeatedly, all about his body. Id. at 59:1-12. He did not feel anyone pull on his arms or try to put on handcuffs. Id. at 45:17-25. About the baton strikes, Rodriguez stated that he was hit, "all over. It felt like everywhere. My legs, up and down, my whole complete body, " and although he could not count the number of times, at least ten times. Id. at 40:5-6; 41:9-10. Officer Ziya was the officer who struck Rodriguez with a baton while he lay on the ground. See Yourke Exh. 4, Police Incident Report by Officer Ziya; see Ziya Decl (Doc. 81). Throughout the encounter, Rodriguez remained on the ground, face down, and incapacitated due to after-effects of the Taser use. SAC ¶ 15; Rod. Depo. at 44:18-45:1.

Nearly or actually overlapping with other uses of force, Officer Murphy deployed his canine against Rodriguez. SAC ¶ 15. After officers repeatedly used a Taser on Rodriguez and beat him with a baton, Officer Murphy ordered a police dog to attack Rodriguez as he remained lying on the ground, face down; the dog bit Rodriguez approximately four times. Rod. Depo. at 46:1-25; see Yourke Exh. 5, Police Incident Report by Officer Murphy. Rodriguez alleges:

... they just kept hitting me, and then they released a dog on me. Like first they bring a dog after that. I'm electrocuted, I'm shocked, I'm getting beat, and then they like put the dog on me after that. So now the dog is just mauling my leg.

Id. at 45:25-46:5. Rodriguez further contends that the dog bit him:

At least four times. At this point [officers] stopped tasing me and they stopped hitting me because they're able to relax now. The dog is biting me. Like I'm not getting tased anymore, so I have my mobility back again. I'm not going to let the dog eat my leg literally what he was doing. So I remember like trying to kick the dog off, not kick the dog, but trying to shake my pant leg and my leg out of his mouth. And then by this time it's just like - they keep - they're yelling the whole time. Stop resisting. Stop resisting. And I'm, well, stop doing everything you're doing to me. So I basically rolled over again and get back in this position [putting his hands behind his back], and that's when they handcuffed me.

Id. at 46:13-47:4. The dog bit Rodriguez on the right lower leg, causing deep wounds. SAC ¶ 15; Doc. 69, Exh. Nos. 4-20. Rodriguez described the duration of the physical encounter with the officers seeming "like an eternity, " but that it probably lasted about "one minute." Rod. Depo. at 47:9-11. Rodriguez alleges he was wearing a t-shirt and jeans, was "clearly unarmed" and that he "did not offer any physical resistance to the police at all, even after they used force against him." Id. According to Rodriguez, police handcuffed him and escorted him to a nearby patrol car. Id.

Officers' Account

After the first application of the Taser in "probe" mode, Officer Fontes changed his Taser into "drive stun" mode. Id., ¶ 7. According to Defendants, "drive stun" mode is less effective, it requires direct contact with an individual, and is used for pain compliance. Id., ¶ 7. Officer Fontes shouted to Rodriguez that he needed to put his hands behind his back, and at the same time applied the Taser in "drive stun" mode to Rodriguez' back, to no apparent effect. Id. Rodriguez still did not comply. Id.

Officer Fontes applied another cycle of the Taser in "drive stun" mode to Rodriguez' back and he continued to refuse to comply. Id. Defendants note that Rodriguez admits that while this was happening he was face down on the ground and that the officers yelled to him to stop resisting arrest. Opposition (Doc. 75) (citing Pls. Mtn. at 5:22-24).

Because officers believed that the Taser had been ineffective, Officer Ziya deployed his "asp" collapsible baton and showed it to Rodriguez in an attempt to gain his compliance. Ziya Decl., ¶ 15; Fontes Decl., ¶ 9. Officer Ziya ordered Rodriguez to take his hands from underneath him several times but he would not comply. Id. Officer Ziya then struck Rodriguez on the left arm, but Rodriguez continued to refuse to comply. Id. During this struggle, and while Officer Ziya deployed his baton, officers believed that Rodriguez did not display any indication of being under the influence of the Taser because he acted and spoke as if the Taser had no effect. Ziya Decl., ¶ 16. Even after being tased and then struck with the baton, Rodriguez still kept his hands underneath him, out of view of the officers and refused to comply with their commands so that they could place him under arrest. Id., ¶¶ 15-17.

Officer Murphy then deployed his K9 to bite the lower extremity of Rodriguez, in an attempt to gain control over him because officers believed that the Taser and baton had been ineffective. Fontes Decl., ¶ 10. The K9 bites ultimately proved successful and Rodriguez allowed the officers control of his hands, which the officers placed in handcuffs. Id. According to Defendants, all of the force used by the officers occurred in a matter of seconds. No officers applied any force to Rodriguez after he was handcuffed.

Encounter Between Fernandez and Officers

Fernandez's Account

After she saw officers "beating" Alizaga and Rodriguez, and while standing on the porch, Fernandez screamed at police, "Stop! What are you doing?!" Id. at 31:17-32:1. According to Fernandez, while she was still on the porch, Buehler grabbed her by the hair and threw her to the ground without warning. Fern. Depo. at 32:4-8; Yourke Decl., Ex. 1 (Doc. 66-1); Video at minute 1:28. When she fell to the ground, she ended up on her belly. Id. at 33:19-34:10. While she was on the ground, Officer Souza held a police dog to her head and ordered her not to move or the dog would bite her. Id. at 34:11-25; SAC ¶ 17. The dog was straining at the leash and lunging and barking aggressively at Fernandez, causing her to scream loudly in terror for her life. SAC. ¶ 17. Officer Buehler handcuffed her while she was face down on the grass. Id. While she was screaming and lying facedown on the lawn in handcuffs, another officer (unknown to Plaintiffs and referred to as Officer Doe Defendant No. 1), approached her from behind and struck her about the legs and left arm several times with his baton, causing bruising. Id.; Fern. Depo. 36:17-38:10; Video at minute 1:40-45. About a minute after she was thrown to the ground, police picked her up from the front lawn where she lay facedown and placed her in the police car. Fern. Depo. At 35:23-36:13.

Together, Plaintiffs allege that Defendant Lieutenant Cloward, the ranking officer on the scene, observed the police conduct described above and did nothing to prevent ...


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