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San Diego Branch of National Association v. County of San Diego

United States District Court, S.D. California

June 6, 2017

COUNTY OF SAN DIEGO, a Subdivision of the State,, Defendants.


          Janis L. Sammartino United States District Judge

         Presently before the Court is Defendants County of San Diego's and Sheriff William Gore's Motion to Dismiss Plaintiffs' First Amended Complaint (“County MTD”), (ECF No. 22), and Defendants City of El Cajon's and Jeff Davis's Motion to Dismiss First Amended Complaint and for a More Definite Statement (“City MTD”), (ECF No. 23). Also before the Court are Plaintiffs' Oppositions to the County Motion to Dismiss, (“County Opp'n”), (ECF No. 28), and the City Motion to Dismiss, (“City Opp'n”), (ECF No. 27), as well as the corresponding Replies (“County Reply”), (ECF No. 31); (“City Reply”), (ECF No. 30). The Court vacated the scheduled hearing and took the Motions under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 34.) Having considered the Parties' arguments and the law, the Court rules as follows.


         Alfred Olango was an African American man who was unarmed when police shot and killed him on September 27, 2016. (Compl. ¶ 2.) The events here at issue occurred in the wake of Mr. Olango's death.

         Approximately four days after Mr. Olango's death, community members held a vigil at the location of the shooting-the parking lot behind a restaurant, Los Panchos. (Id.) This parking lot is located in a privately owned shopping center. (Id.) Plaintiffs allege that Los Panchos granted Plaintiffs permission to be there. (Id.)

         At this first vigil, approximately eighty members of the community gathered and created a memorial with tables, candles, photographs, signs, and a canopy. (Id. at 3.) Some members barbequed and offered free food to the community. (Id.) Some collected donations for Mr. Olango's family. (Id.) Plaintiffs allege that the vigil was quiet and peaceful at all times. (Id.)

         Later that night, at approximately 12:00 a.m., a police helicopter informed the vigil attendees that the gathering had been declared an unlawful assembly. (Id. at 4.) Many vigil attendees left at that time, (id.), while others remained to speak with Sheriff's deputies who soon blocked both exits of the shopping center in which the parking lot was located, (id. at 5). After approximately thirty minutes of discussion between community members and the Sheriff's deputies, the deputies either dispersed the remaining vigil members or arrested the approximately twelve members who refused to leave. (Id. at 6.) Sheriff's deputies then tore down signs and posters at the vigil site. (Id. at 7.) Plaintiffs allege that at all times the “Sheriff's deputies could easily see and ascertain the peaceful nature of the vigil.” (Id. at 8.)

         Approximately two weeks later, at another vigil in the Los Panchos parking lot, the police again declared an unlawful assembly at approximately 12:00 a.m. (Id. at 9.) Defendants additionally asserted that Plaintiffs were trespassing. (Id.) Plaintiffs allege that at that time “[n]one of the [vigil attendees'] behavior could be called violent, boisterous, or tumultuous conduct . . . .” (Id.) Plaintiffs do not allege they had permission from Los Panchos to be at the vigil site that night, nor do Plaintiffs allege that law enforcement could see and ascertain the peaceful nature of the vigil. (Compare Id. ¶¶ 2-8, with Id. ¶¶ 9-10.)

         Since that time, Plaintiffs allege that the El Cajon Police are threatening to arrest for trespassing “any community members/protestors who go to the shopping center to visit the vigil site . . . .” (Id. at 11.) Three Plaintiffs, and approximately seven community members, have been arrested by El Cajon police officers for trespassing at the vigil location. (Id. at 12.) All Plaintiffs allege that they “would visit the vigil site to exercise their Constitutional Rights but for the threat of arrest by the Defendants . . . .” (Id. at 13.)

         Plaintiffs initially filed suit in this Court seeking a temporary restraining order to enjoin law enforcement both from prohibiting peaceful gatherings at the vigil site and arresting community members for merely being present at the vigil site. (See generally Ex Parte Appl. for TRO (“TRO Appl.”), ECF No. 4.) The Court held a hearing on the TRO Application and subsequently denied the Application. (ECF Nos. 12, 16.) Defendants have now moved to dismiss the underlying Complaint. (ECF Nos. 22, 23.)


         Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted, ” generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations, ' . . . it [does] demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A complaint will not suffice / / / “if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.' ” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557).

         In order to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent with' a defendant's liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” contained in the complaint. Id. This review requires context-specific analysis involving the Court's “judicial experience and common sense.” Id. at 678 (citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.' ” Id.


         Although the County Motion and City Motion at times assert overlapping arguments, they also each raise concerns specific to the distinct moving parties. Accordingly, the Court addresses each separately where relevant, turning first to the County Motion and then addressing the City Motion.[1]

         I. The County Motion to Dismiss

         The County and Sheriff Gore argue both that they should be entirely dismissed from the action, and, in the alternative, that various individual claims warrant dismissal. (County MTD 3-13.) However, because the Court concludes that the Complaint currently fails to allege sufficient facts to state any claim against either Defendant, the Court only addresses this threshold issue.

         Turning first to Plaintiffs' sparse allegations against Sheriff Gore in his individual capacity-each allegation is either alleged on information and belief, merely a legal conclusion couched as a statement of fact, or some combination of the two. (Compl. ¶¶ 14 (“It is alleged on information and belief, that defendants Police Chief JEFF DAVIS and Sheriff WILLIAM GORE imposed an illegal and unwritten curfew on free speech activities . . . .”); 35 (“It is alleged on information and belief that either Sheriff WILLIAM GORE or officers directly subordinate to Sheriff Gore ordered the vigil to be dispersed despite its peaceful nature and in direct violation of the First Amendment rights of Plaintiffs and other members of the community ..... It is alleged that defendant WILLIAM GORE either directly ordered or acquiesced to the decision to declare the vigil an unlawful assembly or failed to properly train and supervise the deputies under his charge resulting in the violation of the Constitutional rights of the plaintiffs.”); 118 (“This pattern and practice of illegal conduct, which included the excessive use of force by officers and the wrongful arrests of protestors, was approved and encouraged by policy makers such as Sheriff WILLIAM GORE and El Cajon Chief of Police JEFF DAVIS.”).) This is insufficient to state a claim against Sheriff Gore in his personal capacity. E.g., Blantz v. Cali. Dep't of Corr. & Rehab., Div. of Corr. Health Care Servs., 727 F.3d 917, 926-27 (9th Cir. 2013) (conclusory, “on information and belief” allegations are insufficient to state a claim).

         Nor do Plaintiffs' sparse allegations against the County (and Sheriff Gore in his official capacity) fare much better. (E.g., id. ¶ 119 (“The Sheriff's Department has a pattern and practice of declaring peaceful assemblies unlawful based on their own convenience.”).) For instance, although Plaintiffs allege that the Sheriff's department declared the October 1 and 15 vigils to be unlawful, (e.g., id. ¶ 48, 49), these allegations are either directly undercut by earlier allegations, (id. ¶ 14 (“[O]n October 1, 2016, the members of the vigil were informed . . . that the police had declared the vigil an unlawful assembly.”), or lack sufficient specificity to be plausibly pled against the County, (id. ¶ 9 (stating only that “the Defendants declared an unlawful assembly” (emphasis added))). Accordingly, the only validly pled allegations center on the fact that “Sheriff Deputies tore down signs the demonstrators had placed on the property with the permission of the tenants[, ]” (id. ¶ 66; see also Id. ¶ 7), or arrested vigil attendees for refusing to disperse after the unlawful-assembly declaration, (id. ¶¶ 75, 78, 99, 103). But taking these allegations together-and even assuming that the Sheriff's Department twice declared an unlawful assembly-is nonetheless insufficient to state a claim for municipal liability.[2] See, e.g., Davis v. City of Ellensburg, 869 F.2d 1230, 1234 (9th Cir. 1989) (“[A] single act of a non-policymaking employee cannot give rise to municipal liability.” (citing City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985))).

         Given the foregoing, the Court DISMISSES from this action both the County of San Diego and Sheriff William Gore.

         II. The City Motion to Dismiss

         The City and Chief Davis argue that each cause of action should be dismissed for various reasons and additionally adopt the County Motion to Dismiss' arguments. The Court addresses the issues presented in the following order: (A) whether Plaintiff NAACP has associational standing; (B) Plaintiffs' claim for declaratory relief; (C) the alleged First Amendment violations; (D) the alleged unlawful seizures, arrests, detentions, and imprisonments; (E) the City's liability; and (F) Defendants' request for a more definite statement.

         A. The NAACP and ...

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