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McComas v. City of Rohnert Park

United States District Court, N.D. California

April 3, 2017

DON MCCOMAS, Plaintiff,
CITY OF ROHNERT PARK, et al., Defendants.


          THELTON E. HENDERSON United States District Judge

         Before the Court is Defendant's motion for summary judgment. The Court found the matter suitable for resolution without oral argument and vacated the hearing scheduled for April 3, 2017. See Civ. L.R. 7-1(b). Having carefully considered the parties' written arguments, the Court DENIES Defendant Rodriguez' motion for summary judgment for the reasons set forth below.


         This action, brought under 42 U.S.C. § 1983, arises out of an encounter between Don McComas (“Plaintiff” or “McComas”) and Officer David Rodriguez (“Defendant” or “Rodriguez”), a City of Rohnert Park police officer. The facts, gleaned from the evidence submitted by both parties, are as follows.

         Shortly after noon on July 29, 2015, Plaintiff McComas was standing in his driveway hitching a boat to his Ford Excursion truck. McComas Decl. ¶ 5 (ECF No. 43-1). He was waiting for his son to arrive so that they could go to a meeting with his son's attorney and then spend the afternoon at a nearby lake with friends. Id. As McComas was hooking up his boat to his truck, he got a glimpse of a police car turning left from Heartwood Drive onto Hermitage Way. Id. McComas' house is located on one end of Hermitage Way, which is a cul-de-sac. Id. ¶ 2. McComas thought it was odd that a police car was turning on his little street and heading toward his house just minutes before his son Tyler was supposed to arrive. McComas Dep. at 55:10-15 (ECF No. 34-3). McComas felt that ever since Tyler had been falsely accused of domestic violence by his ex-girlfriend about thirteen months prior, Rohnert Park police had started circling around his street and keeping an eye on his house. McComas Decl. ¶ 4.

         Upon seeing the police car, McComas moved from the back of his truck to the front passenger side, where he stood watching the police car. McComas Dep. at 56:9-17.The police car, driven by Officer Rodriguez, drove to the front of McComas' house, paused there for a few seconds, and then drove away. Id. at 55:4-19. While standing in his driveway, McComas was able to see the officer in the car. Id. at 55:7-9. He recognized the officer as someone who had driven around his street about eight times in the last thirteen months. Id. at 52:2-6. McComas did not know the name of the officer and had not had any conversations with the officer prior the encounter on July 29th. Id. at 52:18-20. As Rodriguez drove away from McComas' house toward the north end of the cul-de-sac, McComas pulled out his phone and took two photos of the back of the police car. Id. at 55:10-14; Ex. B to Fullerton Decl. (ECF No.34).

         Officer Rodriguez contends that he was in McComas' neighborhood to investigate an illegal care sales business. Rodriguez Decl. ¶ 4 (ECF No. 35). He was running registration checks on parked vehicles when he drove past McComas' house and past a Toyota truck that he thought might have been a used car for sale. Id. ¶ 7. He claimed that as he was driving north, he saw in his rearview mirror a person, presumably McComas, duck behind a truck. Id. ¶ 8. He drove to the north end of the cul-de-sac, turned around and headed in McComas' direction. Id. ¶ 9. He stopped a few houses away from McComas' house and spent about two minutes running a check on the Toyota's license plate. Id.; McComas Dep. at 58:18-23. Then he drove toward McComas' house, observed McComas holding an object in his hand that he suspected was a phone, and called dispatch to check the registration of McComas' Ford Excursion truck. Rodriguez Decl. ¶¶ 10-11.

         McComas was standing on the driver's side of his truck, in the middle of his driveway, holding his cell phone and filming the officer. McComas Dep. at 64:2-65:2. He had started filming as soon as Rodriguez had begun driving in his direction after stopping a few houses away. McComas Decl. ¶ 8. The rest of the encounter was caught on video taken by McComas' cell phone. Def.'s Ex. A to Fullerton Decl. (“Video”) (ECF No. 40). After checking the registration on McComas' truck, Officer Rodriguez rolled down his window and took a photo of McComas with his own cell phone, allegedly for identification purposes. Video at 1:20-1:55; Rodriguez Decl. ¶ 12. The photo shows McComas holding his camera in his right hand, his left hand reaching toward his phone, and a large bulge present in McComas' left pants pocket. Def.'s Ex. B to Rodriguez Decl. (ECF No. 35-2). Rodriguez then exits his vehicle, puts his hand on top of his holstered weapon, and orders McComas: “Go ahead and take your hand out of your pocket!” Video at 2:07-2:15. McComas responds: “No, sir! I have done absolutely nothing.” Id. at 2:15-2:17. Within a second, Officer Rodriguez unholsters his gun and holds it by his side. Id. at 2:18. McComas exclaims, “Put your gun down, really?!” and immediately takes out the keys and second cell phone that were in his pocket, placing them on the hood of his truck. Id. at 2:19; 2:20-2:24.

         The video shows McComas backing up behind his truck, while continuing to film with his right hand and pointing at the officer with this left hand. Id. at 2:25-2:35. McComas can be heard pleading, “You don't touch me!” in a threatened anxious manner. Id. at 2:25-2:27. Rodriguez can be seen holding his weapon with two hands for a few seconds and then pointing it back down toward the ground. Id. at 2:24-2:27. The officer follows McComas as McComas walks backward to the other side of his truck. Id. at 2:25-2:42. McComas can be heard saying, “You go away!” to which the officer responds: “I don't go away. I stay where I am! You could go into your house if you want or you could stay out here, but you don't keep your hand in your pocket!” Id. at 2:39-2:47. McComas responds: “My hand can be in my pocket if I want. There is nothing there. I've done nothing! What have I done? Answer me… Why did you get out of your vehicle?” Id. at 2:48-2:57. Officer Rodriguez answers: “You are taking a picture of me. I am taking a picture of you.” Id. at 2:57-2:59.

         What proceeds is a minute-long exchange between the officer and McComas, in which McComas says, “you are trying to intimidate me, ” “this is going all over Youtube, ” while the officer states “I don't even know who you are.” Id. at 3:02-4:03. In response to McComas accusing Rodriguez' station of being “corrupt, ” the officer seemingly more agitated says: “What's wrong with you, man? Are you some kind of Constitutionalist, crazy guy, or something like that?” Id. at 3:35-3:47. McComas responds, “No, Sir.” Id. at 3:45. Rodriguez then asks, “Why are you doing this?” seemingly referring to the fact that McComas was filming. Id. at 3:56. McComas responds: “Why are you sitting here with your gun out on me? This is why I am doing this… to protect myself from you.” Id. at 3:57-4:02. The encounter ends with Rodriguez retreating toward his car while facing McComas and commenting: “Put it on Youtube. I don't really care.” Id. at 4:09-4:22.

         Plaintiff filed this action on May 18, 2016, seeking damages and injunctive relief. Compl. at 7 (ECF No. 1). He alleges that Defendant Rodriguez acted in retaliation for Plaintiff's exercise of his First Amendment right to film the police. Id. at 29. Defendant disputes that any of his actions were taken in retaliation. Def.'s Mot. for Summ. J. (“Mot.”) at 7-11 (ECF No. 33). He claims that he approached Plaintiff to investigate suspicious activity and that he unholstered his weapon and continued to engage Plaintiff in order to protect himself from any threat Plaintiff might have posed. Id. Plaintiff alleges that, as a result of the interaction, he experienced mental anguish, humiliation, disturbed sleep and emotional suffering. Compl. ¶ 31.

         The Complaint also alleged a Monell claim against the City of Rohnert Park. Id. ¶¶ 32-41. In response to Defendants' Motion for Summary Judgment, Plaintiff agreed to dismiss the claim against the City. See Mot. at 1-20; Opp'n at 3 (ECF No. 43). This Court therefore DISMISSES WITH PREJUDICE Plaintiff's Monell cause of action against the City and proceeds to review only Plaintiff's retaliation claim against the individual officer.


         Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The Court may not weigh the evidence and must view the evidence in the light most favorable to the nonmoving party. Id. at 255. The Court's inquiry is “whether the ...

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