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May v. San Mateo County

United States District Court, N.D. California, San Francisco Division

April 15, 2017

SAN MATEO COUNTY, et al., Defendants.


          LAUREL BEELER United States Magistrate Judge.


         This is a false-arrest and excessive-force case under 42 U.S.C. § 1983 and the Fourth Amendment. Plaintiff Richard Earl May was arrested after entering fenced-off private property, at night, while searching for his neighbor's cat. During the arrest, a San Mateo County police dog bit him.[1] Mr. May has sued the arresting officers - defendants Chris Laughlin and Eric Michel - and the County of San Mateo. The parties have all moved for summary judgment.[2] The parties have consented to magistrate jurisdiction. The court held a hearing on these motions on March 30, 2017.[3] For the reasons given below, the court partly grants and partly denies the parties' motions.


         1. The Incident

         The material facts in this case are mostly undisputed. On January 1, 2015, at roughly 11:00 at night, plaintiff Richard Earl May entered a construction site in Half Moon Bay. The site was private property, was fenced off, and bore Keep Out signs. A video-surveillance system protected the site. Mr. May climbed over the seven- or eight-foot fence to enter the site. Then 62 years old, Mr. May was with his neighbor, a woman aged 73. They were looking for her cat.[4] But good deeds sometimes get punished. In Sacramento, a private security company was monitoring the property over the video feed. An employee saw Mr. May and his neighbor moving about the property and alerted the police.[5]

         The police dispatcher in turn radioed a possible commercial burglary in progress.[6] While units responded - among whom were the individual defendants, Deputy Laughlin and Deputy Michel - the dispatcher conveyed the following information received from the security firm: Two or possibly three suspects were crossing back and forth over the fence and were stacking unidentified objects near the fence.[7] A third person was seen moving between buildings, “possibly.”[8] One person wore plaid and another black.[9] Deputy Laughlin did not recall dispatch “mentioning anyone actually stealing anything, ” only that they were stacking property near the fence.[10]

         Seven deputies responded to the call, though they arrived at different times. Three deputies - including Deputy Laughlin, his canine partner, Riggs, and Deputy Michel - entered the site. While these deputies investigated inside the property, others spread out along the outside of the fence to form a loose perimeter around the site.[11] Deputies Laughlin and Michel soon came upon a man fitting the description that they had received from police dispatch. It was Mr. May. When they first saw him, the deputies were approximately 75 to 100 yards away.[12] Deputy Laughlin testified that at this point, he announced: “Sheriff's canine, stop right there, show me your hands, get on the ground or you're going to get bit by the dog.”[13] He does not know if Mr. May heard him.[14] Mr. May says he did not. The defendants assume at summary judgment that no warning was given.[15]

         We now reach a disputed fact of some significance. Deputy Laughlin has explained that, when they were still roughly 100 yards away from Mr. May, after he gave the “Sheriff's canine” warning, he saw Mr. May “back into the shadows towards the fence.”[16] Mr. May has testified that, at this time, he thought he was going to talk to what he thought were security guards; he “put a hand on the fence, ” “just to be comfortable, ” and “just was waiting.”[17] Officer Laughlin, however, thought that Mr. May might be trying to flee.[18] He “lost visual” on Mr. May and “sent the dog.”[19]Riggs ran to Mr. May but did not bite him. The dog “nudged” his arm without causing injury.[20]Riggs then returned to the deputies.

         By now Deputies Laughlin and Michel and a third, Deputy Sanchez, had closed the distance to Mr. May. Deputy Laughlin gave Mr. May one or two more warnings to get on the ground or Riggs would bite.[21] Mr. May was now “a few steps” from the fence, “about a car length away from” Deputy Laughlin.[22] According to Deputy Laughlin, Mr. May was not complying with his orders to show his hands and get on the ground, and he was “backing up towards the fence line.”[23] (During this whole encounter, though, the deputy only ever saw Mr. May “standing up and moving slowly.”[24]) The deputy was concerned that Mr. May might be armed.[25] He now deployed Riggs a second time, giving the command to “bite and hold.”[26] The dog ran to Mr. May and bit his leg.[27]Deputy Laughlin pulled Mr. May to the ground. When Deputy Laughlin believed Mr. May was complying (by not “fighting” and “kicking at the dog”), he called Riggs off the bite.[28] Deputy Laughlin estimated that the bite lasted 15 to 20 seconds.[29] Mr. May said it seemed like “minutes.”[30]

         Apart from the dispute over whether he moved away from the police, and whether he moved in a way that suggested he was trying to flee, there has been no suggestion that Mr. May resisted the deputies. Indeed, Deputy Laughlin testified that, once Riggs had bitten him, Mr. May was not “resistive.”[31] He struggled while Riggs was biting him but even the defendants recognize that this happens in such situations.

         Deputy Laughlin took Mr. May to the emergency room roughly two hours later.[32] Mr. May's bite wounds were - as the defendants' Rule 30(b)(6) witness on use of force characterized them - “pretty severe.”[33] The wounds required at least six medical visits during 2015; by December 2015, his leg was “swelling” again and was still “pretty bad.”[34]

         Deputy Laughlin cited Mr. May for two misdemeanors: trespass and “resisting, obstructing, or delaying” a law-enforcement officer.[35] The San Mateo district attorney declined to press charges.[36]

         2. The Claims and Motions

         Mr. May brought this suit against Deputy Laughlin, Deputy Michel, and the County of San Mateo. He sues for false arrest and excessive force under the Fourth Amendment and 42 U.S.C. § 1983. He would impose municipal-entity liability on the County under Monell v. Dep't of Soc. Svcs., 436 U.S. 658 (1978). He brings claims under California law for false arrest and under the state's Bane Act (Cal. Civ. Code § 52.1). For the latter claims he would hold the County vicariously liable under Cal. Gov't Code § 815.2. He has moved for summary judgment on all these claims.[37]

         In their own Rule 56 motion, the defendants seek summary judgment on all Mr. May's federal claims. The defendants argue that they did not falsely arrest Mr. May, that they did not use excessive force in arresting him, and that they are qualifiedly immune from liability on both these theories. The County seeks summary judgment on the Monell claim.[38]


         The court must grant a motion for summary judgment if the movant shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49.

         The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (quoting Celotex, 477 U.S. at 325) (“When the nonmoving party has the burden of proof at trial, the moving party need only point out ‘that there is an absence of evidence to support the nonmoving party's case.'”).

         If the moving party meets its initial burden, the burden then shifts to the non-moving party to produce evidence supporting its claims or defenses. Nissan Fire & Marine, 210 F.3d at 1103. The non-moving party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence that shows there is a genuine issue of material fact for trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not produce evidence to show a genuine issue of material fact, the moving party is entitled to summary judgment. See Celotex, 477 U.S. at 323.

         In ruling on a motion for summary judgment, the court does not make credibility determinations or weigh conflicting evidence, and it draws all inferences in the light most favorable to the non-moving party. E.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).


         1. False Arrest - Probable Cause

         The court grants the defendants summary judgment on the false-arrest claim. Considering all that Deputy Laughlin knew, and taking into view the “totality of the circumstances, ” a prudent person could think that there was a “fair probability” that crime was afoot and that Mr. May was involved. Deputy Laughlin had probable cause to arrest Mr. May.

         1.1 Governing Law

         “A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification.” Lacey v. Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012) (quoting Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001)). “Probable cause exists when there is a fair probability or substantial chance of criminal activity.” Id. (quoting United States v. Patayan Soriano, 361 F.3d 494, 505 (9th Cir. 2004) (quoting in turn United States v. Bishop, 264 F.3d 919, 924 (9th Cir. 2001)) (internal quotation omitted in Lacey) (emphasis added). “It is well-settled that ‘the determination of probable cause is based upon the totality of the circumstances known to the officers at the time of the search.'” Id. (quoting Bishop, 264 F.3d at 924).

         “Probable cause exists when police have knowledge at the moment of arrest of facts and circumstances based on reasonably trustworthy information that would warrant a belief by a reasonably prudent person that the person arrested has committed a criminal offense.” Franklin v. Fox, 312 F.3d 423, 438 (9th Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964); United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999)). “In general, we must ask whether ‘a prudent person would believe [that Mr. May] had committed a crime.'” Lacey, 693 F.3d at 918 (quoting Dubner, 266 F.3d at 966). “The evidence need support ‘only the probability, and not a prima facie showing, of criminal activity, ' Illinois v. Gates, 462 U.S. 213, 235 (1983), and such evidence need not be admissible, but only legally sufficient and reliable. Franks v. Delaware, 438 U.S. 154, 165 (1978).” Franklin, 312 F.3d at 438 (parallel citations omitted).

         1.2 Analysis

         The undisputed facts gave Deputy Laughlin probable cause to arrest Mr. May for either commercial burglary or criminal trespass. Consider everything that Deputy Laughlin knew at the time of the arrest. Deputy Laughlin found Mr. May inside the fenced perimeter of private commercial property. It was approximately 11:00 p.m. Dispatch had told Deputy Laughlin that there were two or maybe three people total on the property. These people had been seen stacking (unidentified) property near the fence. These facts would cause a “reasonably prudent person” to believe that there was at least a “fair probability” that crime was afoot and that Mr. May was involved. See Franklin, 312 F.3d at 438 (“prudent”); Lacey, 693 F.3d at 918 (“fair probability”); could use a cite for “was involved”

         1.2.1 Probable cause does not require full prima facie proof

         The plaintiff's responses do not persuade otherwise. To refute the notion that Deputy Laughlin had probable cause to arrest him, Mr. May parses too finely and demands too much. Mr. May effectively argues that, based on what Deputy Laughlin knew, he lacked conclusive proof of every element of some relevant crime.[39] For example, Mr. May argues that Deputy Laughlin did not know whether Mr. May or anyone else had actually entered a structure on the property (beyond breaching the perimeter fence) - entry being a necessary element of the crime of burglary.[40] He similarly argues that burglary requires the specific intent to commit a felony, and criminal trespass an intent to occupy the premises.[41] But, Mr. May insists, on the undisputed facts Deputy Laughlin was not thinking about, and possessed “no facts to establish, ” whether Mr. May held such an intent.[42]

         These arguments misapprehend the probable-cause standard. As the Supreme Court has explained: “The evidence need support ‘only the probability, and not a prima facie showing, of criminal activity . . . .'” Franklin, 312 F.3d at 438 (quoting Illinois v. Gates, 462 U.S. at 235) (emphasis added); accord, e.g., Chism v. Washington State, 661 F.3d 380, 389 (9th Cir. 2011). This indeed has long been the rule:

As early as Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364 (1813), Chief Justice Marshall observed, in a closely related context, that “the term ‘probable cause, ' according to its usual acceptation, means less than evidence which would justify condemnation . . . . It imports a seizure made under circumstances which warrant suspicion.”

Illinois v. Gates, 462 U.S. at 235 (quoted in Maryland v. Pringle, 540 U.S. 366, 371 (2003)).

         1.2.2 Pre-arrest investigation

         Mr. May also argues that Deputy Laughlin did not adequately investigate matters before arresting him. On Mr. May's account, the information that Deputy Laughlin received from the security company, by way of the police dispatcher, was “insufficient” to support a constitutional arrest. “[C]learly established Ninth Circuit precedent, ” writes Mr. May, “requires law enforcement officers to investigate to establish probable cause before arresting - especially where insufficient details are relayed to the arresting officer.”[43]

         The Ninth Circuit “has held that ‘‘[i]n establishing probable cause, officers may not solely rely on the claim of a citizen witness that [s]he was a victim of a crime, but must independently investigate the basis of the witness' knowledge or interview other witnesses.'” Hopkins v. Bonvicino, 573 F.3d 752, 767 (9th Cir. 2009) (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (citing in turn Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991) (‘‘[P]olice officers ha[ve] a duty to conduct an investigation into . . . [a] witness'[s] report . . . .”)). This is true even where the arresting officer has learned information from other law-enforcement officials. Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1293 n. 16 (9th Cir. 1999) (“Although a police officer is entitled to rely on information obtained from fellow law enforcement officers, this in no way negates a police officer's duty to reasonably inquire or investigate these reported facts.”) (citation omitted).

         The court need not decide whether the information that Deputy Laughlin received was alone “sufficiently detailed, ” Fuller, 950 F.2d at 1443, to yield probable cause without further investigation or other corroboration. The court holds only that, under the “totality of the circumstances, ” Deputy Laughlin acted reasonably and constitutionally in arresting Mr. May. Deputy Laughlin had circumstantial corroboration that yielded probable cause. In his “pre-arrest investigation” argument, Mr. May loses sight of the broader rule that probable cause is assessed under all the circumstances known to the arresting officer. He focuses too narrowly on whatever of Deputy Laughlin's conduct can be described as explicitly investigative while disregarding the surrounding context. The latter, too, can “corroborate” witness reports to support probable cause. Cf. Peng v. Hu, 335 F.3d 970, 979 (9th Cir. 2003) (quoted at ECF No. 71 at 13-14).[44] Here, consistent with what the security company and police dispatcher had told him, Deputy Laughlin came upon Mr. May inside the fenced perimeter of private property, at 11:00p.m., matching the basic description that the security company had given. In conjunction with the information that Mr. May was not alone, this all gave Deputy Laughlin a reasonable belief to think that Mr. May was involved in something criminal. The circumstantial facts - one could almost say the “experiential” facts - that Deputy Laughlin directly perceived bolstered what the security company and police dispatcher had told him and yielded probable cause.

         The cases that the plaintiff cites on pre-arrest investigations are too factually different to offer more than general guidance. They confirm the important principle that the Fourth Amendment does not allow the police to “arrest now, and investigate later.” See Kanekoa v. City & Cnty. of Honolulu, 879 F.2d 607, 612 (1989). But none of these cases suggests that, in this situation, Deputy Laughlin lacked probable cause to arrest Mr. May because he failed to more fully investigate the situation. The “strange circumstances” of Lacey, supra, for example, involved a sheriff carrying out a personal vendetta against two newspaper reporters. See Lacey, 693 F.3d at 907-10, 923-24. On a witness's “bare claim that a misdemeanor ha[d] been committed earlier in the day, without any information about exigent circumstances, ” and without further inquiring, the sheriff had had the reporters arrested “at their homes in the middle of the night.” Id. at 923-24. The Ninth Circuit found this “objectively unreasonable.” Id. at 924. The appeals court refused to dismiss the false-arrest claim and held that the sheriff was “not entitled to qualified immunity” on that claim. Id. at 924.

         The Ninth Circuit's opening summary in Hopkins, supra, suggests how different that case is from this one. The Hopkins court wrote:

On August 22, 2003, two San Carlos Police Officers broke into Bruce Hopkins' home. They did not have a warrant, nor did they have probable cause. All that they had was a statement from a third party that Hopkins had been involved in an extremely minor traffic incident, an incident so minor that it did not cause as much as a scratch on either of the vehicles involved, and that he appeared to have been drinking. Based on this information, the officers broke into Hopkins' home with their flashlights shining and their guns drawn. When they found Hopkins, they handcuffed him, removed him from his house, and placed him under arrest.

Hopkins, 573 F.3d at 759. More fully,

The officers did not inspect Hopkins' car to see if the hood was still warm, which would have corroborated [the witness's] statement that the car had recently been driven, nor did they inspect the vehicle for any evidence of reckless driving or of alcohol consumption, such as open containers or an alcoholic odor. They did not ask [the reporting witness] any questions in order to gain information beyond her cursory and conclusory statements, such as whether she observed Hopkins driving erratically or at an abnormal speed. In short, the officers obtained no information whatsoever beyond [the witness's] brief statement.

Id. at 767. In that situation, the Ninth Circuit held that the defendant officers' merely accepting the witness's unelaborated report was “insufficient to support probable cause.” Id.

         The decision in Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005) does not translate into our case. Motley confirms the general rule that, “officers have an ongoing duty to make appropriate inquiries regarding the facts received or to further investigate if insufficient details are relayed.” Id. at 1081. But Motley applies this rule in the context of parolee-residential searches. Motley asked whether the police had adequate information that a parolee lived at a given address to warrant searching that place in connection with parole. See Id. at 1080-82. (The Motley court held that the police did have probable cause so that their conduct was, to this extent, “objectively reasonable.” Id.) It is hard to say how well Motley speaks to the present context. Rules governing how the police may constitutionally search a parolee's residence depart somewhat from standard Fourth Amendment analysis. See Id. at 1078-80 (“Generally, a condition of parole that permits warrantless searches provides officers with the limited authority to enter and search a house where the parolee resides . . . .”). At all lengths, nothing in Motley indicates that, in the situation that confronted him, Deputy Laughlin had to conduct a fuller investigation before he could reasonably conclude that there was a “fair probability” that criminal activity was underway.

         Furthermore, in the cases that Mr. May cites in this area, the investigation (or the need to investigate) came after the alleged wrong was complete. After the events in question were over, a witness reported the crime to the police, who then conducted some form of overt investigation. This was the case in Fuller, for example, where a jewelry-store clerk told the police that two women (who had been in his store earlier in the day) had stolen a ring. The police did not immediately arrest the women. They first spoke with the women, with a second store employee, and with other witnesses. Id. at 1439-40. The Ninth Circuit held that, given this investigation, the police “reasonably believed that there was probable cause to arrest” the plaintiffs without a warrant and were thus immune from the § 1983 claim. Id. at 1443-45. So, too, in Hopkins, the police responded to a witness's report about a traffic incident that had happened earlier - and from which the suspect (the § 1983 plaintiff) had already returned home. Hopkins, 573 F.3d at 760-62.

         Here, by contrast, Deputy Laughlin walked into a situation that was in progress. He was not rebuilding a sequence of events from witness reports - as in Hopkins or Fuller. He was instead immersed in the situation. Based on what he had learned from the security company and dispatcher, and given the facts that he witnessed, the court holds as a matter of law that Deputy Laughlin had probable cause to arrest Mr. May.

         2. False Arrest - Qualified Immunity

         Even if the court had reached the opposite conclusion, holding summarily that Deputy Laughlin lacked probable cause to arrest Mr. May, the court would still find the defendants immune from the false-arrest claim as a matter of law.

         2.1 ...

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