United States District Court, N.D. California
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
THELTON E. HENDERSON United States District Judge
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.
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.
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.
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).
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.
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.
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.
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
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.
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
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 ...