Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McFarland v. City of Clovis

United States District Court, E.D. California

April 10, 2017

LYLE S. McFARLAND, Plaintiff
v.
CITY OF CLOVIS, et al., Defendants

          ORDER ON THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 37, 48)

         This case arises from an encounter between Plaintiff Lyle McFarland (“McFarland”) and Defendant Officers Jacob Rios (“Rios”) and Richard Collins (“Collins”) of the City of Clovis Police Department (“Clovis P.D.”). Currently before the Court is McFarland's motion for summary judgment with respect to the first, second, fourth, sixth, and seventh causes of action on the ground that there was no probable cause to arrest him under California Penal Code § 422, and Defendants' motion for summary judgment on all claims. For the reasons that follow, McFarland's motion will be denied and Defendants' motion will be granted in part and denied in part.

         SUMMARY JUDGMENT FRAMEWORK

         Cross motions for summary judgment are evaluated separately under the same standards that apply to single summary judgment motions.[1] See Pintos v. Pacific Creditors Ass'n, 565 F.3d 1106, 1111 (9th Cir. 2009); ACLU v. City of Las Vegas, 466 F.3d 784, 790 (9th Cir. 2006). Summary judgment is proper when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is “material” if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is “genuine” as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

         Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Herbert Schenk, P.C., 523 F.3d 915, 923 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then “the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot “‘rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'” Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).

         The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010). While a “justifiable inference” need not be the most likely or the most persuasive inference, a "justifiable inference" must still be rational or reasonable. See Narayan, 616 F.3d at 899. Summary judgment may not be granted “where divergent ultimate inferences may reasonably be drawn from the undisputed facts.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2015); see also Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1175 (9th Cir. 2003). Inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Fitzgerald v. El Dorado Cnty., 94 F.Supp.3d 1155, 1163 (E.D. Cal. 2015); Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008). “A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial.” Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). The parties have the obligation to particularly identify material facts, and the court is not required to scour the record in search of a genuine disputed material fact. Simmons v. Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir. 2010). Further, a “motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'” Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.

         FACTUAL BACKGROUND[2]

         On January 25, 2015, at approximately 11:50 a.m., Keith McFarland (“Keith”) went to the Clovis PD lobby to complain about the conduct of his older brother Lyle McFarland. JUMF 1.

         Keith reported that McFarland had threatened to kill him. DUMF 1. Keith spoke to dispatch at the lobby and then Keith and Rios went into an interview room. See JUMF 2. Keith informed Rios that he had an ongoing issue with his brother throughout their lifetime, specifically an incident in Carlsbad where there was a physical fight between the brothers. Id.

         Keith reported that McFarland had left a voice message on Keith's answering machine/voice mail. See DUMF 2. Rios listened to the voice message and recalls that it was a low, gravelly voice, that sounded angry and the statement was something to the effect of “you will pay, the time is now.” Rios Depo. 23:7-12. The message that McFarland left Keith was: “What's your excuse, Keith? You owe me. I need to collect. Let's see. I don't know how I am going to collect for my arm, but I'll figure something out. Yeah. You're going to pay now, it's time.” JUMF 5. The message was left on January 23, 2015, but it was not received until January 24, 2015. See Drooyan Dec. Ex. 22 at p. 198; Doc. No. 50-2 at #8; Rios Depo. 22:15-23:1. Keith told Rios that “the voice message was a threat to harm him, ” although it did not say physically harm him, and Keith “was concerned due to the tone of the message.” See JUMF 6. According to the “Narrative” section of the “Online Law Enforcement Warrantless Arrest Declaration” of Rios (Drooyan Opp. Dec. Ex. 4), the tone of the voice message that McFarland left on Keith's phone was threatening but not specific. See PUMF 10.[3] Keith also told Rios that, at 8:53 a.m. that day, he had received an electronic message/text message from McFarland on January 25 that was a picture of shot gun shells spelling out “FUCK U” on a night stand, and there was also a hunting knife standing erect on the nightstand. See JUMF 7. Keith showed the picture to Rios.[4] Id. McFarland had sent this text message to Keith at 3:00 a.m. on January 25. See JUMF 8. Keith informed Rios that McFarland had a shotgun. See JUMF 10.

         Keith also reported to Rios that “there had been long-term kind of volatile history between [Keith] and his brother, and that according to [Keith], [McFarland], over time, had become more and more hostile and verbally aggressive to the point where at least a year prior, [Keith] decided to actually block [McFarland]'s phone number from allowing texts and phone numbers.” JUMF 3. Some of McFarland's behavior that Keith told Rios included: (1) McFarland came by Keith's home at odd hours because on one occasion Keith found a gift that he had given McFarland smashed to pieces in Keith's driveway; (2) McFarland sent text messages or made phone calls in which he threatened to destroy Keith's business and called Keith an abuser; (3) McFarland sent a text for Keith to watch his back when he is hanging around downtown Clovis and that McFarland was going to drop Keith where he stands; and (4) a group that follows people around would grab Keith if Keith was driving haphazardly and under the influence, and that Keith was going down (or words to that effect). See DUMF's 9, 10; Keith Depo. 99:17-25.[5] Keith told Rios that, “within the past few weeks, few days when the block expired, [Keith] immediately began receiving phone calls and texts from his brother again.” JUMF 4. Keith was noticeably fearful. See DUMF 14. Rios reported that Keith said he (Keith) believed McFarland was threatening to kill him with a shotgun, that he was in fear of his life, and that he believed that the threat was imminent.[6] See Drooyan Dec. Ex. 4. Keith wanted criminal charges pursued against McFarland. See JUMF 11.

         Rios made the decision to arrest McFarland for violation of California Penal Code § 422 (“§ 422”) based on his interview with Keith, the voice message that Keith played for Rios, the texted photo of the shotgun shells and hunting knife, and Keith's fearful state. See PUMF's 3, 11. Rios's Warrantless Arrest Declaration and Rios's police report do not expressly discuss McFarland's specific intent. See Drooyan Dec. Exs. 4, 5; see also PUMF 11.

         On January 25, 2015 at 3:20 p.m., McFarland was arrested without a warrant at his residence by Rios, who was assisted by Collins, for violation of § 422. See JUMF 12.

         Just prior to the arrest, Rios knocked on McFarland's front door and announced that he was with the police department. DUMF 4. Approximately 5 seconds later, McFarland looked out his window and told Rios that he was going to get his keys. See id. Rios recognized McFarland from McFarland's DMV photo. See id. McFarland opened the door approximately 30 seconds later. See id. At that time, Rios had the following officer safety concerns: (1) he knew that he was dealing with a felony suspect and that firearms were mentioned or involved, and whenever he investigates those types of crimes he is concerned for his safety; (2) he saw a camera focusing out through the window towards the front door, which led him to believe that the person inside might have knowledge that police officers were there; (3) the delay in McFarland coming to the door, and not knowing what McFarland was going to get. See Rios Depo. 58:4-20.[7] Rios was concerned that there could be anything waiting on the inside of the door. See id. at 58:21-22.

         When McFarland opened the door, he was barraged by questions about the location of his cell phone and shotgun. See McFarland Depo. 37:12-13. Rios asked if the officers could come inside and talk, and McFarland said “no.” See id. at 37:13-15. Collins asked about the location of McFarland's shotgun and cell phone, and asked McFarland to step outside and talk. See id. at 37:15-17. About thirty seconds after he had opened the door, McFarland put his foot on the threshold, Collins reached in, grabbed McFarland's right hand and thumb, turned McFarland's right arm and hand around and up to the middle of McFarland's back, and Rios grabbed McFarland's left arm and turned it up to the middle of McFarland's back. See id. at 37:18-22; McFarland Dec. ¶ 5. Collins had his hand pinching a nerve in McFarland's arm and was squeezing McFarland's arm hard. See id. at 41:25-42:13. The officers bent McFarland over. See id. at 44:19-20. Rios put handcuffs on McFarland. See id. at 38:3, 42:4-7. Rios was shaking like a leaf and obviously nervous. See id. at 37:24-25.

         As the handcuffs were being applied, McFarland complained about his arm and told the officers over and over again that he was disabled. See id. at 41:23-42:20, 43:16-20, 44:10-22. The officers at some time stated, “We know that your brother hurt your arm, you can use this in your defense, ” Id. at 41:19-20, or “Your brother Keith says he hurt your arm. Why don't you tell us about that, that could help in your defense.” Id. at 47:18-24. Rios and Collins escorted McFarland to their patrol car, which took about 10 minutes as Rios had to retrieve the car. See McFarland Dec. ¶ 7. In response to McFarland's complaints that his arm hurt and that he was disabled, Rios put another pair of handcuffs on McFarland and then put McFarland in the back of a patrol car. See JUMF 13. McFarland is 6'1” and about 270 lbs. See JUMF 14. McFarland told Rios and Collins six or more times that being handcuffed behind his back was causing his disabled arm great pain. See id. McFarland asked the officers to be handcuffed with his arms in front, but the officers did not respond to his requests. See id. Clovis PD trains their officers that it is permissible, on a decisional basis, to handcuff a person in front. See Jackson Depo. 11:15-18.

         After the arrest, and with the assistance of Officer Martin, Rios applied for and obtained a search warrant for McFarland's residence. See JUMF 15. A judicial officer found probable cause for the issuance of the search warrant and thus, issued the warrant on January 25, 2015. See id.

         McFarland was in custody following his arrest, including incarceration in the Fresno County Jail, until January 27, 2015 at 8:52 p.m., when he was released without being charged with a crime. See PUMF 2. Fresno County Deputy District Attorney Caples issued a “No Charges Initiated Interagency Memorandum.” See Drooyan Dec. Ex. 3. Caples's memorandum indicates that there was “insufficient evidence, ” that the “documented material, text, and photo do not amount to a violation of [§ 422]. They lack sufficient specificity or intent.” Id.

         Prior to arresting McFarland, Rios consulted Sgt. Dave Smith, his supervisor at the Clovis PD. See PUMF 5. Rios presented information to Smith, and Rios and Smith reviewed the elements of § 422. See PUMF 6; Smith Depo. 13:6-14:17. The elements that Smith reviewed with Rios were that a threat was made and that the threat was credible, with a high likelihood to create great bodily injury. See Smith Depo. 14:18-15:7; see also PUMF 6. Smith does not recall whether he ever discussed the specific intent element of § 422 with Rios. See Smith Depo. 48:1-10. Smith concurred with Rios's decision to arrest McFarland for violating § 422. See PUMF 14.

         Rios also discussed the case with Collins. See PUMF 8. Rios discussed the “highlights” of the case. See Collins Depo. 12:8-13. Rios and Collins discussed part of the elements of § 422, discussed what Keith believed was a credible threat and why, and discussed possible crimes implicated, but they did not discuss specific intent. See id. at 12:23-14:21.

         Rios's determination to arrest McFarland for violating § 422 complied with, and did not violate, Clovis PD policy. See PUMF 13.

         PARTIES' MOTIONS

         I. First Cause of Action - Arrest Without Probable Cause

         Plaintiff's Argument

         McFarland argues that Rios did not have probable cause. Rios's arrest report and warrantless arrest declaration do not identify a specific intent to immediately and unequivocally threaten Keith with a crime, nor do they identify any crime that was allegedly threatened. Rios acknowledged that the voice mail and text message lacked specificity. This admission is consistent with the assessment of the Fresno County District Attorney's office, which declined to bring charges because the documentary evidence presented to it lacked the specificity and intent needed for a violation of § 422. Due to a lack of specificity and intent, Rios did not have probable cause to believe that McFarland violated § 422. Further, the City is liable because Rios, Collins, and Smith believed that there was sufficient evidence for an arrest under § 422, the City found no violation of policy from the arrest, and the City admitted that the arrest conformed to policy.

         In reply, McFarland emphasizes “specific intent” was not discussed in Rios's police report and his warrantless arrest declaration, nor was it discussed in the Clovis PD investigative report. Further, significant portions of the information that Keith said that he told Rios was not included in Rios's report and his warrantless arrest declaration, nor was it included in the Clovis PD investigative report, and thus, is uncorroborated. Further, Rios's investigation did not include a criminal background check on McFarland or Keith and did not include interviews with family members or anyone who knew McFarland or Keith. There is also a discrepancy regarding what Keith told Rios. Whereas Rios's report states that months prior to blocking McFarland's phone, McFarland texted Keith that he would “shoot [Keith] where he stands, ” Keith's deposition states that “he received threating text messages that [McFarland] will drop him where he stands.” The “drop” statement is not in Rios's report, Rios's warrantless arrest declaration, or the Clovis PD investigative report. This discrepancy in language and substance shows that Keith is a liar.

         In opposition to Defendants' motion, McFarland reiterates the above arguments. Further, McFarland points out that although Rios's narrative indicates that Keith received the telephone message on January 24, 2015, a Clovis PD investigator noted that the message was left on January 23, 2015, and telephone records show that no calls were made from McFarland to Keith on January 24, 2015. This discrepancy shows Rios's bad faith and culpability for not determining when the voice message was left. Defendants have not shown when the voice message was actually left or that it was left in connection with the text message. No evidence indicates that the text message and voice message are connected, and neither the text message nor the voice message alone support probable cause to arrest under § 422.

         Defendants' Argument

         Defendants argue that probable cause existed to arrest McFarland. The text message might seem ambiguous, but it is given meaning by the past history. Rios knew about the physical altercation between Keith and McFarland, McFarland's other harassing and threatening messages to Keith, the voice message in which McFarland said that Keith was going to pay and the time was now, and that McFarland owned a shotgun. All of this information was relayed to Rios by Keith himself. All of these considerations show that probable cause existed. In fact, probable cause exists based on the text message and voice message alone. As to the intent element, given the brothers' history, and the content of the text message, it is apparent that McFarland intended Keith to take the text message as a threat. Additionally, with respect to liability for the City, McFarland has no evidence of any deliberate policy, custom, or practice that is the moving force behind any constitutional violation. The Clovis PD policies in effect at the time are constitutional.

         In reply, Defendants argue that the discrepancy between when the voice message was left (either January 23 or January 24) is irrelevant because the totality of the circumstances still indicate that probable cause existed. Further, reliance on the Deputy District Attorney Caples's decision to not to file charges is irrelevant, and in any event Caples's decision was based on an evaluation of the evidence under the beyond a reasonable doubt standard, not the probable cause standard. McFarland does not attempt to explain how the totality of the circumstances does not demonstrate probable cause.

         In opposition to McFarland's motion, Defendants essentially make the same arguments that they did in support of their motion.

         Legal Standards

         a. Probable Cause

         “The Fourth Amendment requires police officers to have probable cause before making a warrantless arrest.” Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009). Therefore, the absence of probable cause is a necessary element to a § 1983 false arrest claim. See Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015). “Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested.” John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008); see also Lingo v. City of Salem, 832 F.3d 953, 960 (9th Cir. 2016). “Generally, officers need not have probable cause for every element of the offense, but they must have probable cause for specific intent when it is a required element.” Edgerly v. City & County of San Francisco, 599 F.3d 946, 953 (9th Cir. 2010); see Blankenhorn v. City of Orange, 485 F.3d 463, 472 (9th Cir. 2007). “Probable cause” does not require “certainty, ” a “preponderance of the evidence, ” or even a prima facie showing, it simply requires a “fair probability.” See United States v. Gourde, 440 F.3d 1065, 1069, 1073 (9th Cir. 2006). Courts look to “the totality of the circumstances known to the arresting officers, to determine if a prudent person would have concluded there was a fair probability that the defendant had committed a crime.” John, 515 F.3d at 940; see also Lingo, 832 F.3d at 960. “Probable cause is an objective standard and the officer's subjective intention in exercising his discretion to arrest is immaterial to judging whether his actions were reasonable for Fourth Amendment purposes.” John, 515 F.3d at 940; see Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (“Our cases make clear that an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.”).

         b. Penal Code § 422[8]

         California Penal Code § 422 prohibits making “criminal threats.” See Cal. Pen. Code § 422; In re George T., 33 Cal.4th 620, 630 (2004); People v. Toledo, 26 Cal.4th 221, 227 (2001). The elements of a § 422 offense are: “(1) willfully threatening to commit a crime that will result in death or great bodily injury to another person; (2) specific intent that the statement be taken as a threat; (3) the threat was on its face and under the circumstances so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat caused the victim to be in sustained fear for his or her own safety or for his or her immediate family's safety; and (5) the victim's fear was reasonable under the circumstances.” Coquico v. Lynch, 789 F.3d 1049, 1053 n.3 (9th Cir. 2015) (quotations omitted); see George T., 33 Cal.4th at 630; Toledo, 26 Cal.4th at 227-28. The threat may be made “verbally, in writing, or by means of an electronic communication device.” Cal. Pen. Code § 422; George T., 33 Cal.4th at 630. In determining whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat, courts should consider all of the surrounding circumstances and the parties' history. People v. Smith, 178 Cal.App.4th 475, 480 (2009); People v. Butler, 85 Cal.App.4th 745, 754 (2000); People v. Mendoza, 59 Cal.App.4th 1333, 1340 (1997). A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning. George T., 33 Cal.4th at 635; see also Butler, 85 Cal.App.4th at 753.

         Discussion

         a. Individual Liability

         For purposes of § 422, it seems that the key “statement” is the January 25 text message. The text message was actually a picture of the top of a small table or nightstand. See Smith Opp. Dec. Ex. B. On the tabletop are shotgun shells that are arranged to spell out “FUCK U.” See Id. Significantly, there is what appears to be a large fixed-blade hunting knife that is standing erect and stabbed into the tabletop at the top of the first shotgun shell letter “U.”[9] See id.

         To give the text message context, Rios was informed of some of the turbulent history between Keith and McFarland. As discussed above, Keith told Rios that the brothers had previously been in a physical fight in Carlsbad, [10] there had been a long term volatile history, and McFarland had become more hostile and verbally aggressive to the point that Keith blocked McFarland's phone number so that Keith would not receive texts and calls from McFarland. See JUMF's 2, 3. There is no genuine dispute that Keith also informed Rios about harassing and threatening messages from McFarland that indicated that Keith was an abuser, that Keith should watch his back, and that McFarland would either “drop him [Keith] where he stands” or that McFarland would “shoot him [Keith] where he stands.”[11] See DUMF's 9, 10; Keith Depo. 99:22-25. Shortly after the phone block expired, Keith listened to the voice message in which McFarland: asked for Keith's excuse, said that Keith owed him, that he needed to collect from Keith, that he would figure something out to collect for his (McFarland's) right arm, said that Keith was going to pay, and that it was time. See JUMF 5. Rios listened to the message, and Keith told Rios that the message was a threat to harm him. See JUMF's 5, 6. The message was left on Keith's cell phone about two days before the shotgun shells and hunting knife text message. Keith was visibly fearful and told Rios that he was in fear, believed an attack was imminent, believed that McFarland was threatening to harm or shoot him, and that McFarland had a shotgun.

         Viewing the totality of the circumstances and the parties' history, the Court concludes that a reasonably prudent person would find a fair probability that McFarland violated § 422. See Lingo, 832 F.3d at 960; Coquico, 789 F.3d at 1053 n.3; John, 515 F.3d at 940; George T., 33 Cal.4th at 630; Mendoza, 59 Cal.App.4th at 1340-41. Shotgun shells, when combined with a shotgun, are capable of causing tremendous bodily harm to a person. A hunting knife is also capable causing tremendous bodily harm. These items were not in containers or simply “lying about” in a random photo. The shells were arranged in an insulting manner and the hunting knife was actually stabbed into the tabletop. By itself, the text is objectively menacing and suggests a threat. The sense of a threat is confirmed by the voice message in which McFarland states that he will have to figure out a way for Keith to pay him back for McFarland's arm and that it was time for Keith to pay. Sending a provocative picture of shotgun shells and a hunting knife stabbed into a tabletop could reasonably indicate that McFarland had figured out a way for Keith to pay and would use the items pictured in the text message against Keith. Further, the phrase “time to pay” suggests immediacy, and the sense of immediacy was heightened because the text was received within two days of the voice message. Also, the volatile history that Keith relayed to Rios involved escalating harassing behavior from McFarland, all of which appears to have stemmed from a physical fight in Carlsbad several years prior. The text message could reasonably be viewed as the culmination of the escalating behavior. Finally, Keith stated that he was fearful, he appeared to Rios to be fearful, and he had been in receipt of the text message for approximately three hours by the time he spoke to Rios. See People v. Wilson, 234 Cal.App.4th 193, 201 (2015) (noting that “sustained fear” for purposes of § 422 “occurs over a period of time that extends beyond what is momentary, fleeting, or transitory, ” and that “[15] minutes of fear is more than sufficient . . . .”).

         McFarland argues that the above evidence does not sufficiently show intent. The intent that is required under § 422 is the intent for a statement to be taken as a threat. Coquico, 789 F.3d at 1053 n.3; George T., 33 Cal.4th at 630; Toledo, 26 Cal.4th at 228. Circumstantial evidence is sufficient to demonstrate intent under § 422. See In re A.S., 2016 Cal.App. Unpub. LEXIS 1873, *9 (Mar. 15, 2016);[12] In re B.C., 2015 Cal.App. Unpub. LEXIS 803, *9-*10 (Feb. 4, 2015); People v. Kirk, 2009 Cal.App. Unpub. LEXIS 7972, *11-*12 (Oct. 5, 2009). Here, McFarland never explains the intent behind the text message or voice message. Nevertheless, as discussed above, the text by itself is menacing. When the text is considered with the brothers' history and especially the voice message to pay now, a threat to use the hunting knife and/or the shotgun shells and shotgun on Keith is reasonably seen. In fact, this is the interpretation that Keith gave to Rios. See Drooyan Dec. Ex. 4. Given the combined effect of the text message and the voice message, the mere fact that the text was sent at all indicates a fair probability that McFarland intended Keith to take the text as a threat. See John, 515 F.3d at 940; A.S., 2016 Cal.App. Unpub. LEXIS 1873 at *9; Kirk, 2009 Cal.App. Unpub. LEXIS 7972 at *11-*12.

         McFarland also argues that nothing in Rios's report or warrantless arrest declaration shows that Rios considered McFarland's intent or that Rios was aware of the intent element. It is true that Rios's report and arrest declaration do not expressly discuss McFarland's intent. However, probable cause is an objective standard, and the subjective thoughts and intent of the officer is not considered. See Devenpeck, 543 U.S. at 153; United States v. Magallon-Lopez, 817 F.3d 671, 675 (9th Cir. 2016) (in the context of a traffic stop, holding that the standard for probable cause is an “objective one” that does not turn “on the subjective thought processes of the officer . . . .”); Abbott v. Sangamon Cnty., 705 F.3d 706, 714 (7th Cir. 2013) (“Determining whether an officer had probable cause to arrest entails a purely objective inquiry; the officer's subjective state of mind and beliefs are irrelevant.”); John, 515 F.3d at 940. As long as a prudent person would view the facts that were known by Rios and find probable cause for the intent element, there is no constitutional violation. See Devenpeck, 543 U.S. at 153; Magallon-Lopez, 817 F.3d at 675; John, 515 F.3d at 940. As discussed above, the facts communicated to and known by Rios are sufficient to show probable cause to believe that McFarland intended the text to be a threat. That Rios may not have considered McFarland's intent or been aware of the intent element is irrelevant. See Devenpeck, 543 U.S. at 153; Magallon-Lopez, 817 F.3d at 675; Abbott, 705 F.3d at 714; John, 515 F.3d at 940.

         McFarland argues that there is a dispute about when the voice message was sent in that Rios indicates that it was left and received on January 24, but the Clovis PD investigative report indicates that message was left on January 23, and there is nothing to connect the voice message to the text message. Assuming without deciding that Rios told the Clovis PD that the voice message was left on January 23, [13] the result of the analysis above does not change. The difference is only that one additional day separates the two messages. Whether there is one day or two days separating the messages, the time period is quite short and the effects of the voice message would likely not have dissipated. Further, the Court cannot agree that nothing connects the text message to the voice message. The two messages appear to be the last communications that McFarland sent to Keith, and the messages were sent at most within 48 hours of each other. Considering that the voice message said that it was time for Keith to pay and that McFarland would figure a way to make Keith pay for McFarland's arm, it is not unreasonable to view the text message as McFarland communicating that he had found a way for Keith to pay, and that way involved the use of the hunting knife and/or the shotgun shells/shotgun. In the absence of other communications between the brothers, it is reasonable to view the messages as connected.[14]

         McFarland also argues that the text message is not specific in terms of a crime threatened and Rios himself did not identify what specific crime was being threatened in the text message. However, California courts have held that § 422's phrase that “crime which will result in great bodily injury” means “the crime, if committed, would result in great bodily injury.” People v. Maciel, 113 Cal.App.4th 679, 685 (2003); see Butler, 85 Cal.App.4th at 759. Notably, “there is no requirement that a specific crime or Penal Code violation be threatened.” Maciel, 113 Cal.App.4th at 685; Butler, 85 Cal.App.4th at 755. Therefore, that Rios did not identify a particular Penal Code provision is not fatal.[15] See id.; cf. also Edgerly, 599 F.3d at 953 (noting that officers generally do not need probable cause as to every element of a crime).

         McFarland also relies on the decision by the Fresno County District Attorney's Office not to bring charges due to insufficient evidence. There are two problems with McFarland's position. First, McFarland cites no authority that this Court is bound by the District Attorney's determination of probable cause. Second, the decision of the District Attorney's Office does not analyze probable cause to arrest. Deputy District Attorney Caples explained that he reviewed the written materials submitted (which the Court will assume means Rios's police report and warrantless arrest declaration) and measured the information in those materials against the “beyond a reasonable doubt” standard, which is the standard that would be needed for a conviction at trial. See Caples Depo. 20:11-18, 23:12-19. In fact, Caples stated that the decision to not bring charges had “nothing to do with probable cause.” Id. at 24:19-22. It is well established that the “beyond a reasonable doubt” standard is a higher and more stringent standard than “probable cause.” See Newman v. Twp. of Hamburg, 773 F.3d 769, 773 (6th Cir. 2014); United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010); United States v. Banuelos-Romero, 597 F.3d 763, 768 (5th Cir. 2010); United States v. Driscoll, 632 F.2d 737, 739 (9th Cir. 1980). Therefore, that Caples and the District Attorney's Office did not find the evidence strong enough to meet the stringent “beyond a reasonable doubt” standard does not speak to the issue of “probable cause” to arrest.

         Finally, McFarland criticizes Rios for not contacting friends or other family members of the brothers, and for not investigating the brothers' respective criminal backgrounds. McFarland does not elaborate and does not cite any authority in connection with these criticisms.[16] However, the Ninth Circuit has held that “officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but must independently investigate the basis of the witness's knowledge or interview other witnesses.” Peng v. Hu, 335 F.3d 970, 978 (9th Cir. 2003); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). To the extent that McFarland is relying on this line of authority, his argument is not persuasive. “A sufficient basis of knowledge can be established if the victim provides ‘facts sufficiently detailed to cause a reasonable person to believe a crime had been committed and the named suspect was the perpetrator.'” Peng, 335 F.3d at 978 (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991)). Here, Keith appeared fearful to Rios, told Rios that he was in fear of McFarland, told Rios that McFarland was his brother, and provided Rios with a relatively detailed account of a volatile history with McFarland, a voice message from McFarland, and the shotgun shells and hunting knife text message from McFarland. Based on the evidence submitted to the Court, this information was sufficiently detailed to cause a reasonable person to believe that McFarland had violated § 422. See Peng, 335 F.3d at 978; Fuller, 991 F.2d at 1444. In the absence of further elaboration by McFarland, the failure of Rios to check criminal backgrounds or interview friends or family of the brothers does not defeat probable cause.

         In sum, given the totality of the circumstances known to Rios, including the content of the text message, the content of the voice message, and the volatile history of the brothers, a reasonable and prudent person would have concluded that there was a fair probability that McFarland intended that the text be taken as a threat and that he violated § 422. See Coquico, 789 F.3d at 1053 n.3; John, 515 F.3d at 940; George T., 33 Cal.4th at 630. Because probable cause existed, summary judgment on the first cause of action in favor of Defendants is appropriate. Yousefian, 779 F.3d at 1014.

         b. Qualified Immunity

         Because Rios had probable cause to arrest McFarland for violation of § 422, there was no constitutional violation for a false arrest. If there is no constitutional violation, there is no need to reach the immunity inquiry. Johnson v. County of L.A., 340 F.3d 787, 793-94 (9th Cir. 2003). However, in the alternative, the Court finds that qualified immunity is appropriate. Considering the content of the messages and the volatile history of the brothers, a reasonable officer in Rios's position “could have reasonably but mistakenly believed” that the arrest of McFarland ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.