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Henneberry v. City of Newark

United States District Court, N.D. California

April 26, 2017

CITY OF NEWARK, et al., Defendants.


          MARIA-ELENA JAMES, United States Magistrate Judge.


         Pending before the Court is a motion for summary judgment filed by Defendants City of Newark, Newark City Manager John Becker, Newark Police Officer Karl Fredstrom and now-retired Newark Police Commander Renny Lawson. See Mot., Dkt. No. 89. Plaintiff John Henneberry filed an Opposition (Dkt. No. 90), and Defendants filed a Reply (Dkt. No. 91). The Court heard oral argument on March 2, 2017 and ordered supplemental briefing on a number of issues. Having considered the parties' positions, the relevant legal authority, and the record in this case, the Court GRANTS IN PART Defendants' Motion for the following reasons.


         For several years leading up to the events at issue in this lawsuit, Plaintiff attended every City Council meeting held by the City of Newark. See Henneberry Decl. ¶ 2, Dkt. No. 90-1. During these meetings and at other times, he actively participated in Newark politics, criticizing the salaries of City officials and their decisions to curtail public services. Id. ¶¶ 2-8, 18. As a result of his frequent and vocal participation at City Council meetings, Plaintiff was well known to Becker, Fredstrom, and former Defendant and Newark Chamber of Commerce President Linda Ashley. See Becker Decl. ¶ 6, Dkt. No. 89-3; Ashley Dep. at 39:16-43:25, Huang Decl. Ex. D, Dkt. No. 90-2; Fredstrom Dep. at 22:6-18, 24:24-25:13, Huang Decl., Ex. C. They and other Newark City officials felt Henneberry was disruptive, and that he complained too much. See Ashley Dep. at 39:16-41:24 (describing prior interactions where Henneberry complained about City), 42:8-43:25 (Ashley had discussed Henneberry with “a large portion of” the members of the City of Newark, including Becker: the gist of those conversations was that “it was hurtful what Henneberry did to people at the council meetings”); Defs.' Ashley Dep. at 90:15-25 (Plaintiff “has a history of calling the Mayor Hitler, of cussing at him, at cussing at the other council members, at City staff, me. And when you create a pattern, you expect that pattern to continue. And we had every reason to believe he would do it again and no reason to belief he wouldn't”), Thornton Decl. Ex. B, Dkt. No. 89-1; Fredstrom Dep. at 22:5-25:16 (recognized Plaintiff's name from prior council and planning meetings where Plaintiff was disruptive and “very loud”).

         Plaintiff saw advertisements about an upcoming State of the City address to be held on April 18, 2013 at a Hilton Hotel in Newark (the “Event”). Henneberry Decl. ¶ 13; see also Becker Decl. ¶ 3; Fredstrom Decl. ¶ 4, Dkt. No. 89-3. He looked up further information about the Event online and was directed to a “Community Events” page on the City of Newark Chamber of Commerce website. Henneberry Decl. ¶¶ 13-14, see id., Ex. A. The webpage makes no mention of reservations being required, does not state the Event is private or indicate the Chamber of Commerce is hosting the Event, and states there “will be gallery seating for those who do not attend the luncheon.” Id. ¶ 14 & Ex. A. He also clicked a link on the Community Events page that directed him to a flyer for the Event, which bears the Newark Chamber of Commerce's and the City of Newark's logos and the title “2013 State of the City Address & Showcase Mayor Al Nagy.” Id. ¶¶ 14-15 & Ex. B. The flyer states “Registration & Networking Showcase Open (lunch ticket not req.)” and “Gallery Seating Open (no charge).” Id., Ex. B. It describes “New Sponsor Opportunities!” and lists fees associated with different levels of sponsorship; the lower half of the flyer allows attendees to reserve showcase space and order lunch. Id. The flyer also states “[r]eservations are required by April 16” and directs attendees to pay the Chamber of Commerce online or by mail. Id.

         At 12:05 p.m. on April 18, 2013, Plaintiff arrived at Event. Henneberry Decl. ¶ 16. He waited in the lobby, filled out a nametag he found at an unstaffed table, helped latecomers fill out nametags, asked them if they were registered to vote, and directed them to the event room. Id. ¶ 17. Just before 12:30 p.m., he entered the ballroom, where the Event was taking place; he was not asked whether he had a reservation. Id. ¶¶ 18-19. He sat in the back row of the gallery section of the ballroom. Id.; see also Defs.' Ashley Dep. at 60:2-14. Plaintiff wrote on a pad of paper and did not say a word. Henneberry Decl. ¶ 20.

         Becker spotted Plaintiff and found Ashley; he told her he did not want Plaintiff “embarrassing the Mayor” and asked Ashley whether there was “some reason why [Plaintiff] shouldn't be here.” Defs.' Ashley Dep. at 55:6-9, 58:18-59:23; see also Becker Decl. ¶¶ 6-7. Ashley told Becker that Plaintiff did not have a reservation, stated “we don't let anybody in who doesn't have a reservation, ” and assured Becker she would “take care of it.” Defs.' Ashley Dep. at 55:6-9; Id. at 94:5-13 (Ashley told Becker words to the effect that she would get Henneberry to leave because he did not have a reservation, and that Becker understood Henneberry was leaving); see also Becker Decl. ¶¶ 7-8 (“Ms. Ashley confirmed that Henneberry did not have a reservation for the Event, and that any person who did not have a reservation was not permitted at the Event. Ms. Ashley then told me that she would take care of the situation, and she walked over to Henneberry.”). Becker did not provide any direction to Ashley regarding Plaintiff's removal. Becker Decl. ¶ 10. Within a few minutes of Plaintiff sitting down in the gallery, Ashley informed him he needed to leave because he had not made a reservation. Defs.' Ashley Dep. at 59:22-25; Henneberry Decl. ¶ 20. Ashley did not check whether persons in the gallery had reservations until Becker noticed Plaintiff in attendance. See Defs.' Ashley Dep. at 51:10-55:5.

         Plaintiff declined to leave, because “[h]e had every right to be there.” Defs.' Ashley Dep. at 61:8-9. Ashley replied the Event was not a public event, but a private event run by the Chamber of Commerce, and that Plaintiff did not have a right to be there because he did not make a reservation. Id. at 61:10-15; see also id. at 80:10-13 (Ashley had rented the room for the Chamber event); Henneberry Decl. ¶ 20; see also Becker Decl. ¶ 5 (Event “was not a City of Newark event. I did not have control over who was permitted to attend the event.”) Plaintiff explained that he was entitled to attend the meeting under the Brown Act.[1] Defs.' Ashley Dep. at 61:17-20; Henneberry Decl. ¶ 20.

         Lawson and a plain-clothed police officer joined Ashley. Defs.' Ashley Dep. at 61:25-15; see also Defs.' Fredstrom Dep. at Ex. 1 (Incident Report) at 5-8 (identifying plain-clothed officer as Shannon Todd), Thornton Decl. Ex. A. At 12:25 p.m., Ashley informed Lawson that Plaintiff did not have a reservation and she had asked him to leave, but that Plaintiff refused to do so. Defs.' Ashley Dep. at 67:3-12; Lawson Decl. ¶ 4, Dkt. No. 89-4. Fredstrom was dispatched to the Event “because there was some type of disturbance involving Mr. Henneberry.” Defs.' Fredstrom Dep. at 20:5-21:6. There is no dispute that Plaintiff refused to leave after being asked to do so; however, there is no evidence Plaintiff was loud, used inappropriate language, was confrontational, or abusive. Defs.' Fredstrom Dep. at 103:1-105:22; Henneberry Decl. ¶ 20; see also Lawson Decl. ¶ 10 (“Henneberry's actions were disruptive to the event. As a result of [his] refusal to leave the Event or otherwise cooperate with requests, the scheduled program was delayed.”).

         Plaintiff contends two uniformed police officers “approached me yanked me out of my seat, and took me into the lobby, and handcuffed me. After a few minutes, I was taken outside and placed into the back of a patrol car. Neither police officer spoke with me, nor told me what was happening.” Henneberry Decl. ¶ 21. Defendants introduce evidence Lawson repeatedly asked Plaintiff to leave and explained what was happening. Fredstrom Dep. at 26:6-9; 29:22-23, 34:18-35:16; Lawson Decl. ¶¶ 4-5, 7.

         There is no dispute that, while Henneberry was seated, Lawson and Fredstrom grabbed Plaintiff by the hands and arms and escorted him out of the building using a rear wrist lock. Defs.' Fredstrom Dep. at 38:16-40:21 & Incident Report at 6. Fredstrom asked Lawson whether he wanted Plaintiff detained; Lawson responded affirmatively. Id. at 40:22-41:7 & Incident Report at 6. At this point, Fredstrom handcuffed Plaintiff and placed him in a patrol car. Incident Report at 6. Fredstrom returned to the conference to investigate the incident. Id.

         Plaintiff was kept in a patrol car for 30-45 minutes while Fredstrom was conducting his investigation. Henneberry Decl. ¶ 22. Fredstrom took statements from Ashley and several other witnesses who reiterated that they had told Plaintiff or had overheard Plaintiff being told that the Event was private and not open to the public, and that Ashley had asked Plaintiff to leave but he refused. See Incident Report at 6-9 (Ashley, Newark City Attorney David Benoun, and two others, all told Fredstrom conference was a private event; Ashley, Todd, and another witness, all told Fredstrom Ashley had asked Plaintiff to leave).[2] One of the witnesses Fredstrom interviewed was Benoun, who

told me that Linda Ashley had come up to him and said that Mr. Henneberry was at the event and that Henneberry was claiming a violation of the Brown Act. Benoun said that Ashley told him that if Henneberry was to be removed, that Henneberry wanted to speak to the city attorney. Benoun agreed and spoke with Henneberry. Benoun . . . advised Henneberry that this was a private affair, has nothing to do with the city, it's a [Chamber of Commerce] event and that if they ask you to leave, it is within their rights.

         Incident Report at 8. Fredstrom determined he had probable cause to arrest Plaintiff for trespassing based on his investigation. Defs.' Fredstrom Dep. at 61:22-62:1. Fredstrom also believed the arrest was supported by Ashley's willingness to sign a Citizen's Arrest form. Id. at 62:2-63:9, 73:20-75:12.

         Becker did not give Fredstrom or Lawson any directions regarding detaining or arresting Plaintiff. Becker Decl. ¶ 10.

         By the time Fredstrom drove Plaintiff to the Newark Police Department, the Event was over, evidenced by the fact that people were leaving. Henneberry Decl. ¶ 22. Fredstrom continued to interview Plaintiff at the police station. Defs.' Fredstrom Dep. at 75:13-19; Henneberry Decl. ¶ 23. Fredstrom arrested Henneberry for violating California Penal Code Section 602.1(a). See Consolidated Arrest Report, Huang Decl. Ex. A. Fredstrom made the decision not to “field cite” Plaintiff at the Newark Police Station. Defs.' Fredstrom Dep. at 94:25-95:5; see also id. at 95:10-15 (Newark Police Department policy allows officers either to issue a citation and release somebody from the scene under certain circumstances, or to transport the person to Fremont Jail and have them issue a citation and release the subject after booking). At 2:54 p.m., Fredstrom left the police station to transport Plaintiff to the Fremont Jail. Defs.' Fredstrom Dep. at 88:1-13. Persons booked at the Fremont jail are eligible for “cite and release, ” and Fredstrom intended to tell the officers booking Plaintiff at Fremont Jail that Plaintiff was eligible for immediate release and citation. Id. at 91:20-93:2. The cite and release process can take anywhere from 10 minute to hours, depending on how many people are waiting to be booked. Id. at 93:21-94:2. But when they arrived at Fremont Jail, Fredstrom was ordered to take Plaintiff and another arrestee to Santa Rita Jail. Id. at 91:12-19, 94:14-16.

         Plaintiff was booked into Santa Rita Jail where, instead of being cited and released, he was held for more than thirty hours. Henneberry Decl. ¶ 24. As a result of this experience, Plaintiff has drastically reduced his participation in local government, and has stopped attending City Council meetings. Id. ¶ 26.


         Summary judgment is proper where the pleadings, discovery, and affidavits demonstrate that there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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.

         Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324-25.

         If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. Fed.R.Civ.P. 56(c)(1); Anderson, 477 U.S. at 250. All reasonable inferences must be drawn in the light most favorable to the nonmoving party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). However, it is not the task of the Court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The Court “rel[ies] on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.” Id.; see also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). Thus, “[t]he district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.” Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to make this showing, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 322 (internal quotations omitted).

         Additionally, at the summary judgment stage, parties must set out facts they will be able to prove at trial. At this stage, courts “do not focus on the admissibility of the evidence's form . . . . [but] instead focus on the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citation omitted). “While the evidence presented at the summary judgment stage does not yet need to be in a form that would be admissible at trial, the proponent must set out facts that it will be able to prove through admissible evidence.” Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (citations omitted). Accordingly, “[t]o survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.” Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001); Celotex, 477 U.S. at 324 (a party need not “produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”); see also Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”).


         After this Court granted in part and denied in part Defendants' Motion to Dismiss (Order, Dkt. No. 75), Plaintiff's remaining claims in this action are as follows: (1) Section 1983 claims against all Defendants based on violations of the First and Fourth Amendments; (2) False Arrest/False Imprisonment claims against Lawson, Fredstrom, and the City of Newark; and (3) Bane Act claims against Lawson, Fredstrom and the City of Newark. Defendants move for summary judgment as to each of these claims.

         A. Section 1983-Fourth Amendment

         1. Probable Cause

         The Fourth Amendment requires that an arrest be supported by probable cause. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001); Michigan v. Summers, 452 U.S. 692, 700 (1981) (an arrest generally is unreasonable unless it is supported by probable cause). An arrest is supported by probable cause if, under the totality of the circumstances known to the arresting officer, a prudent person would have concluded that there was a fair probability that the defendant had committed a crime. Luchtel v. Hagemann, 623 F.3d 975, 979 (9th Cir. 2010); Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004); Grant v. City of Long Beach, 315 F.3d 1081, 1085 (9th Cir. 2002).

         Defendants contend they cannot be liable for wrongful arrest or imprisonment because Fredstrom had probable cause to arrest Plaintiff for trespassing. In his Opposition, Plaintiff argues the arrest was not lawful because there was no probable cause to arrest him, and because the arrest was motivated by the invidious purpose of chilling his right to free speech and political participation. He argues the fact Fredstrom changed his mind about the penal code section he used to charge Plaintiff demonstrates Defendants lacked probable cause to arrest him in the first place. He argues the fact Fredstrom suggested to Ashley that she sign a Citizen's Arrest form further demonstrates Defendants lacked probable cause. During the hearing, Plaintiff clarified that he does not base his Fourth Amendment claim on any excessive force allegations.

         a. Fredstrom

         Fredstrom arrested Plaintiff pursuant to California Penal Code section 602.1(a), a misdemeanor, which provides that:

Any person who intentionally interferes with any lawful business or occupation carried on by the owner or agent of a business establishment open to the public, by obstructing or intimidating those attempting to carry on business, or their customers, and who refuses to leave the premises of the business establishment after being requested to leave by the owner or the owner's agent, or by a peace officer acting at the request of the owner or owner's agent, is guilty of a misdemeanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to four hundred dollars ($400), or by both that imprisonment and fine.

         “[A] violation of § 602.1 has two elements: (1) intentional interference, and (2) refusal to leave.” Dubner v. City and Cty. of S.F., 266 F.3d 959, 966 (9th Cir. 2001). Under this statute, “interference” requires obstruction or intimidation, not mere presence. See, e.g., Hamburg v. Wal-Mart Stores, Inc., 116 Cal.App.4th 497, 511 (2004), as modified (Mar. 3, 2004) (while there was evidence that fifteen persons were on store property, and some were collecting signatures for a petition, “nowhere in the police report is there any suggestion that the officers on the scene believed appellants or other protestors were intentionally interfering with Wal-Mart's business by obstructing or intimidating its customers or otherwise engaging in any criminal act”); Han v. City of L.A., 2016 WL 2758241, at *6 (C.D. Cal. May 12, 2016) (“No one disputes that [p]laintiff was arrested while he was waiting in line to order food” but there was no evidence that plaintiff, who previously had been banned from the area for distributing pamphlets on veganism, “had obstructed or intimidated or in any other fashion interfered with any of the businesses in [the area], other than [d]efendants' contention that [p]laintiff's presence . . . was sufficient to interfere with the business”); cf. Chaffee v. Chiu, 2013 WL 6664785, at *2 (N.D. Cal. Dec. 17, 2013) (probable cause existed where arresting deputy witnessed “chaos” during Board of Supervisors meeting, “observed” plaintiff “raising his voice, “‘heard' the profanity-laced shouting match between” plaintiff and others, and was told by witnesses plaintiff had started the disturbance).

         The undisputed witness statements memorialized in Fredstrom's Incident Report and the conversations Fredstrom recalled during his deposition constitute “reasonably trustworthy information sufficient to lead a person of reasonable caution” to believe that the Event was a private event organized by the Chamber of Commerce for which Plaintiff did not have a reservation, that Plaintiff sat in an “area designated for guests (public) who had reserved a spot, but would not be eating (no charge)”, and that Plaintiff “was asked politely to leave on several occasions by several [Chamber of Commerce] members.” Incident Report at 9; see also Defs.' Fredstrom Dep. at 61:12-16. But there is no evidence Fredstrom was informed that Plaintiff had done anything besides refusing to leave after being asked to do so. While it is disputed whether Plaintiff's refusal to leave “caused a delay to the start of the” conference (id.), there is no evidence Plaintiff was being disruptive before Ashley and Defendants approached him. At the hearing, Defendants argued the Court should “infer” Plaintiff had an “intent” to disrupt based on his refusal to leave the conference. An inference regarding Plaintiff's intent is insufficient to create a triable issue of fact that Plaintiff in fact caused a disturbance. Defendants thus have not met their burden of showing no genuine dispute exists that Fredstrom had probable cause to arrest Plaintiff under section 602.1(a).

         Probable cause nevertheless may exist for an arrest “for a closely related offense, even if that offense was not invoked by the arresting officer, as long as it involves the same conduct for which the suspect was arrested.” Gasho v. United States, 39 F.3d 1420, 1428 n.6 (9th Cir. 1994). The “closely related offense” doctrine crafts a compromise. On one hand, it ensures police officers are not required to charge every arrested citizen with every offense for which the officer thought the citizen could be held in order to ensure that at least one charge would survive probable cause. On the other, it ensures police officers are not allowed to provide ex post facto justifications to justify sham arrests. Bingham v. City of Manhattan Beach, 341 F.3d 939, 950-51 (9th Cir. 2003) (while doctrine did not apply because crime initially charged and crime later offered as justification did not arise out of same conduct, court nonetheless found qualified immunity because no concerns about sham arrest were implicated). “As long as the officers had some reasonable basis to believe [Plaintiff] had committed a crime, the arrest is justified as being [] based on probable cause. Probable cause need only exist as to any offense that could be charged under the circumstances.” Id.; see also Blankenhorn v. City of Orange, 485 F.3d 463, 473-75 (9th Cir. 2007) (applying Bingham and finding probable cause existed where suspect was arrested for trespassing in violation of California Penal Code section 602(j), but ultimately charged with trespassing in violation section 602(n).)

         The Court finds there is no dispute that Fredstrom had probable cause to arrest Plaintiff for violating Penal Code section 602(o). Section 602 lists trespasses constituting misdemeanors, and includes

[r]efusing or failing to leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by (1) a peace officer at the request of the owner, the owner's agent, or the person in lawful possession, and upon being informed by the peace officer that he or she is acting at the request of the owner, the owner's agent, or the person in lawful possession, or (2) the owner, the owner's agent, or the person in lawful possession.

         Cal. Penal Code § 602(o). Land “not open to the general public” includes otherwise “public property that is temporarily closed to all but ticket-buying members of the public”:

[T]he Court concludes that the California Supreme Court would define property “not open to the general public” to include property open only to ticket-buyers. In reviewing criminal trespass convictions for entry onto public property, courts in other jurisdictions have distinguished between areas of public facilities for which a ticket is required, and areas which anyone may enter. [Cite.] Courts addressing the analogous problem of determining whether areas of a public stadium constitute public forums for free speech purposes have distinguished between areas open to the non-ticket buying public and areas for which a ticket is required. [Cite.] The California Supreme Court, in defining the state constitutional protections for speech in privately-owned shopping centers, has emphasized that the owners of such centers allow the public to enter and exit freely. [Cite.]. Here, it is uncontroverted that tickets were required to enter Blair Field during the game at which the plaintiffs were seized. [Cite.] The field was not open to the public without permission from the baseball team. This element of [trespass] was therefore present at the time Sergeant Jacobson made his determination of probable cause.

James v. City of Long Beach, 18 F.Supp.2d 1078, 1084-85 (C.D. Cal. 1998).[3] While the hotel at which the Event was held was open to the public, it is undisputed that Lawson, Benoun, and Ashley, among others, told Fredstrom the room in which the Event took place was only open to persons who made reservations and ...

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