United States District Court, N.D. California
ORDER RE: MOTION FOR SUMMARY JUDGMENT RE: DKT. NO.
MARIA-ELENA JAMES, United States Magistrate Judge.
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.
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”).
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.
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.
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.
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. Defs.' Ashley
Dep. at 61:17-20; Henneberry Decl. ¶ 20.
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
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.
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.
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). 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.
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
did not give Fredstrom or Lawson any directions regarding
detaining or arresting Plaintiff. Becker Decl. ¶ 10.
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.
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.
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.
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.
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).
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.”).
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.
Section 1983-Fourth Amendment
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).
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.
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.
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).
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).
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
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.
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
[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). 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 ...