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Gonzalez v. City of Bakersfield

United States District Court, E.D. California

July 5, 2017

ARTURO GONZALEZ, Plaintiff,
v.
CITY OF BAKERSFIELD, et al., Defendants.

          PRETRIAL ORDER

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Deadlines:

         Motions in Limine Filing: 7/2817 Oppositions to Motions in Limine: 8/4/17 Hearing on Motions in Limine: 8/14/17 Trial Submissions: 8/11/17 Jury trial: 8/21/2017 at 8:30 a.m., 4-5 days estimate

         Arturo Gonzalez asserts that Bakersfield police officers are liable for violations of his civil rights and California law, including wrongful detention or arrest, excessive force, battery, negligence, and for violating California's Bane Act. Defendants contend the actions taken were lawful and did not violate Plaintiff's civil rights.

         A. JURISDICTION/ VENUE

         This action includes causes of action pursuant to 42 U.S.C § 1983, and jurisdiction is based upon 28U.S.C §§ 1331 and 1343. In addition, the events that gave rise to this action occurred in Bakersfield, California. Accordingly, venue is proper in the United States District Court for the Eastern District of California sitting in Bakersfield. See 28 U.S.C. § 1391.

         B. JURY TRIAL

         The parties demanded a jury trial in this matter. (Doc. 1 at 21; Doc. 8 at 12)

         C. UNDISPUTED FACTS

         1. Plaintiff's claims arise out of an incident that took place in the City of Bakersfield, State of California, and within this judicial district.

         2. Plaintiff is suing in his individual capacity and seeks damages.

         3. The Defendant Officers were acting under color of law within the course and scope of their duties as officers for the City of Bakersfield.

         D. DISPUTED FACTS

         All other facts in this case remain in dispute including but not limited to:

1. Whether the seizure of Plaintiff constituted a detention or an arrest;
2. Whether, as either a detention or an arrest, the seizure of Plaintiff was justified;
3. Whether Defendants Barrier, Knott, and/or Orozco used excessive or unreasonable force;
4. Whether Defendant Barrier, Knott, and/or Orozco were negligent;
5. Whether each of the Defendants integrally participated in or failed to intervene in the wrongful conduct of the others;
6. The nature and extent of Plaintiff's damages, including economic and non-economic damages, both past and future;
7. Whether punitive damages should be imposed and, if so, the amount;
8. Whether a statutory penalty should be imposed under the Bane Act;
9. Whether the Defendant Officers met to form a tactical plan regarding their check the welfare of Arturo Gonzalez Jr.;
10. Whether the plaintiff came outside and followed Officer instructions regarding walking backwards, keeping his hands over his head, getting on his knees, etc.
11. Whether the Defendant Officers knew that Plaintiff was not Arturo Gonzalez Jr. at the time of their first contact or at what point they knew or should have known;
12. Whether Plaintiff was detained and/or arrested and if so, whether such detainment and/or arrest was reasonable and lawful and whether such detainment and/or arrest was justified by probable cause;
13. Whether the use of force by each Officer Defendant was reasonable and lawful;
14. Whether Defendant Carruesco failed to intervene and/or was an integral participant in the detention/arrest and/or the use of force;
15. Whether the plaintiff was harmed as a result of any alleged detention, arrest, and/or use of force by Defendants and the nature and extent of any such injuries;
16. Whether the conduct of each Officer Defendant was such as to warrant the imposition of punitive damages;
17. Whether Defendant Officers are entitled to immunity under federal and/or state law; and
18. Whether any of the other affirmative defenses raised by Defendants in their Answer to the Operative Complaint act to bar or limit liability and/or damages sought by Plaintiff in this action.

         E. DISPUTED LEGAL ISSUES

         None

         F. DISPUTED EVIDENTIARY ISSUES

         Both parties intend to file motions in limine regarding the evidence to be used at trial. Plaintiff intends to file motions on the following subjects:

         1. To exclude all information not known to the officers at the time of the incident, including all information about Plaintiff, information about Plaintiff's son that was not actually known to the officers at the time, and information subsequently discovered or events that took place subsequent to the incident;

         2. To exclude any reference to gangs or drugs;

         3. To exclude the 9-1-1 calls themselves, which the defendant officers did not hear prior to the beating;

         4. To exclude allegations that Plaintiff's son stated that “he was in possession of a grenade, a rocket launcher, five friends and an AK-47;”

         5. To preclude or limit testimony about officers' subjective states of mind, beliefs, or fears;

         6. To exclude references to Plaintiff's race, immigration status, or his neighborhood, including both direct and indirect appeals to prejudice, such as allegations that it is a “gang neighborhood” or a “high-crime area.” As to Plaintiff's race, counsel agree that his race has no pertinence to the issues in the case. Likewise, because Plaintiff does not seek damages for lost wages, counsel agree that his immigration status. Thus, the Court ORDERS that this evidence will not be allowed.[1]

         7. To exclude certain opinions of Defendants' police practices expert;

         8. To exclude certain opinions and testimony by Defendants' medical expert; and

         9. To address the qualified immunity and comparative negligence defenses, to establish how these defenses will (and will not) be handled at trial and in front of the jury. To the extent that qualified immunity is raised at trial, the immunity is a question of law for the Court and this defense will not be presented to the jury. If there are fact questions that must be determined by the jury before qualified immunity may be considered, either side may propose special interrogatories for the jury to decide. If they choose to do so, they SHALL file the special interrogatories to the jury at the same time as their verdict form (as set forth below).

         G. SPECIAL FACTUAL INFORMATION

         1. Plaintiff's Special Factual Contentions:

         The date, place and general nature of the incident: This is a civil rights and personal injury lawsuit involving a videotaped seizure and beating of Arturo Gonzalez by the defendant police officers. Plaintiff suffered serious injuries to his back and shoulder.

         The officers claim that they charged, tackled, and beat Plaintiff based on the mistaken belief that Plaintiff was his son, who is also named Arturo Gonzalez. From Plaintiff's perspective, it was an unprovoked attack on an innocent disabled retiree who had come outside to try to help the officers and who had done nothing wrong. Plaintiff contends that the officers' alleged mistake as to his identity was not reasonable, since he wore a gray beard, since he was obviously not in his thirties, and since he told the officers who he was. The officers were told over the radio that Plaintiff's son was not home and that Plaintiff was stepping out of the house. Even if the person the officers encountered had been Plaintiff's son, there is no justification for attacking and beating a person who is cooperating and complying with all instructions. Plaintiff contends that the seizure and beating of Plaintiff violated Plaintiff's rights under state and federal law. The incident took place at approximately 1:45-2:15 a.m. on January 20, 2015 near 4800 Chinta Drive in Bakersfield.

         The particular acts, omissions, and conditions constituting the basis for liability: The officers admit that they were dispatched on a “check the welfare” call, which means, in Defendant Barrier's words: “Check the welfare is when there's an individual who appears to need assistance due to some type of either mental disability or physical disability or rambling and so forth.” The officers were told that a person had called 9-1-1 and was “rambling incoherently and not making much sense.” The officers did not actually hear the call. The caller's cellphone had been traced to an approximate latitude/longitude location.

         The officers received information that the “subject should be identified as Arturo Gonzalez, 4-7-82, ” indicating a person who was in the area of 33 years old. The dispatched officers were also transmitted information to the effect: “Officer safety, this RP made 422 to ambush law enforcement past date, ” meaning that the caller had made past threats against the police (not on the night in question). No other information was dispatched to the officers about the caller.

         The officers briefly stopped at a nearby location to discuss a “tactical plan.” One possible outcome the officers considered was to take the caller into custody for the purposes of mental health treatment. Obviously, one reason why a person could call 9-1-1 and ramble is that the person is mentally ill, and the officers considered that possibility. The officers did not have any information that any specific crime had occurred (they merely planned to investigate to determine whether a crime had occurred). The officers did not have any information that anyone was in danger, other than possibly police officers or the caller. No crime was committed on the day of the prior 9-1-1 calls.

         The officers' “tactical plan” consisted of the following: “It's to approach quietly. [Orozco] and Sergeant Carruesco would be on the south side and Barrier and Knott would be on the north side.” That was the extent of the “tactical plan.” There does not appear to have been any plan formulated for a situation where the subject surrendered or where an innocent third party exited the residence.

         The officers traveled to the location from which they believed the call had been made, parked their vehicles along the street, and approached the house on foot. Barrier attempted to call the cellphone from which the 9-1-1 calls had been made, but nobody answered.

         Then Barrier contacted the dispatcher to ask the dispatcher to call the land line at the house. The purpose of doing this was to have the dispatcher tell the person in the house to come outside. Barrier successfully made contact with the dispatcher and asked the dispatcher to call the residence and have someone come outside. Barrier stated, “Can you confirm the address and locate a telephone number for this subject?” The operator responded, “10-4.” The dispatcher then called the landline, and Plaintiff picked up the phone. Plaintiff has discovered a recording of that phone call. The time was approximately 1:47 in the morning, and Plaintiff was asleep. On the recording, the following can be heard:

Plaintiff: [Ringing] Hello.
Dispatcher: Hello, is Arturo there?
Plaintiff: Arturo who?
Dispatcher: Arturo Gonzalez?
Plaintiff: Senior? Yes.
Dispatcher: I'm looking for Junior.
Plaintiff: No, he's not in right now.
Dispatcher: He's not in right now?
Plaintiff: No.
Dispatcher: Um, is this the address that called police recently, 4800 Chinta Drive?
Plaintiff: Well, this is Arturo's father. And this is, um, 4800 Chinta Drive.
Dispatcher: Mmk. Ok. Arturo called us.
Plaintiff: Yes.
Dispatcher: And he was stating that - Sir, there are officers outside, and they need somebody to come outside and talk to them.
Plaintiff: Ok.
Dispatcher: Can you go outside?
Plaintiff: I - I can, yes. It's going to be a little bit.
Dispatcher: All right. I'll let the officer know, ok?
Plaintiff: Ok, fine.
Dispatcher: Thank you sir. Bye-bye.
Plaintiff: Bye.

         After having made contact with Plaintiff, the dispatcher sent the following audio transmission to Defendant Barrier: “5 North 1 [Barrier's call sign], I made contact with the subject's father. He's advising he's not there; however, he will step out and speak with police.” In other words, the dispatcher told the officers that the person they were looking for was not at home but that the person's father (i.e., Plaintiff) would step outside and talk to them. Plaintiff has discovered the audio recording of this call as well as the written CAD (Computer Aided Dispatch) entry of this call. Plaintiff has also authenticated it via the testimony of the dispatcher as well as of the City of Bakersfield's designee under Federal Rule of Civil Procedure 30(b)(6). The officers claim they never got the call.

         After Plaintiff came outside, Plaintiff was instructed to walk backwards to the sound of the officer's voice. Plaintiff complied with these commands within seconds. Barrier conceded at his deposition that at that time, Plaintiff was submitting to his authority. When officers asked Plaintiff who he was, and he said, “This is Arturo Gonzalez Montes, sir.” At that time, Plaintiff had a gray beard.

         The rest of the encounter is captured on video (which is submitted herewith). Plaintiff is walking backwards with his hands above his head, complying with the officers' commands. Then he is ordered onto his knees, and he complies. The officers claim that at this point, Plaintiff “maneuvered his shoulder back and forth” in “a strange manner” and “reached for his waistband.” However, Plaintiff disputes this version of events. Plaintiff merely lowers his right hand to touch the ground for balance as he goes down to his knees. Then the officers charge, tackle, and beat Plaintiff.

         On the video, Defendant Barrier is the first to make contact with Plaintiff. Barrier admits to applying force with his knee, using a control hold, striking Plaintiff with his fist, and applying his body weight. Barrier admits that he struck Plaintiff as hard as he could with his knee. Barrier also admits that he punched Plaintiff in the face as hard as he could. Barrier also admits applying body weight to Plaintiff for 60 seconds.

         Meanwhile, Defendant Orozco applied a control hold. Specifically, Defendant Orozco applied a rear wrist lock to twist one of Plaintiff's hands behind his back. Defendant Knott applied body weight to Plaintiff's back. The officers admit that Plaintiff never punched, kicked, or verbally threatened the officers. Defendant Barrier never believed that Plaintiff was trying to flee.

         After he was in handcuffs, Plaintiff complained of pain. Orozco After taking Plaintiff into custody, the officers claim to have realized their mistake. When asked, Plaintiff told the officers that he had not seen or heard from his son, Arturo Gonzalez Jr., in two days.

         No crime had been committed. However, even after Defendant Barrier was told that Plaintiff was not the person they were looking for, Defendant Barrier requested permission to arrest Plaintiff. Defendant Barrier's request for permission to arrest Plaintiff was denied.

         Even though no crime had been committed and the officers knew that Plaintiff was not the person they had been looking for, Plaintiff remained in handcuffs. While in handcuffs, he was placed in the back of a patrol car (causing excruciating pain to his injured shoulder). The handcuffs were not unfastened from behind his back until around the time the paramedics arrived. Defendants acknowledge that the paramedics did not arrive until 2:09, or 22 minutes after Plaintiff was ordered out of his house. After the paramedics arrived, Plaintiff was handcuffed to the gurney. The handcuffs were not removed until Plaintiff arrived at the hospital.

         The particular acts, omissions or conditions constituting the basis of any defense: Plaintiff contends that no defenses are available based on the facts and circumstances of the case.

         The age, injuries sustained, prior injuries, medical expenses and estimated future medical expenses of claimant: Arturo Gonzalez, age 64, suffered severe and lasting injuries to his neck, lower back, and shoulders consisting, without limitation, of post traumatic tendinosis with tears in the left shoulder, post traumatic impingement syndrome in the left shoulder, post traumatic tendinosis and impingement syndrome in the right shoulder, post traumatic cervical disc derangement and disc prolapse, post traumatic lumbar disc derangement and disc prolapse with annular tears, headaches, 6th and 7th rib fractures, hip pain, knee pain, anxiety and chest pain. His injuries required hospitalization and long-term medical treatment. He continues to experience pain and discomfort throughout his entire body, and his injuries require ongoing medical care in the future, consisting, without limitation, of epidural steroid injections and medial branch nerve blocks in the spine, lumbar discogram, lumbar radio frequency ablation, and left shoulder surgical arthroscopy. Mr. Gonzalez has a history of low back pain, but prior to this incident it was stable and did not require any intervention. The past medical specials are $53, 468.41. The future medical specials are as follows: $5, 000 to $6, 000 per injection for epidural steroid injections. He will likely need a total of six injections in the future. The estimated cost for the left shoulder arthroscopic surgery is $30, 000 to $40, 000. The estimated cost for the lumbar radio frequency ablation is $8, 000 to $10, 000 and he will likely require two of these in the future. The total estimated costs for future medical care are $76, 000 to $96, 000.

         2. Defendant's Special Factual Contentions:

         On January 20, 2015 at approximately 1:15 a.m., Bakersfield Police Officers Douglas Barrier, Kasey Knott, Juan Orozco, and Sergeant Gary Carruesco were dispatched to 4800 Chinta Drive in Bakersfield, California to “check the welfare” of an individual who had made prior threats to kill law enforcement. Prior to their arrival, Bakersfield Police Officer Douglas Barrier was provided with additional details regarding the criminal threats and the suspect by the Bakersfield Communication Center. Officer Barrier was also advised that the subject's name was Arturo Gonzalez, his date of birth was April 7, 1982, and that there was an outstanding warrant for his arrest. In addition, Officer Barrier accessed information about prior calls for service at the Chinta Drive address including the fact that on January 18, 2015, Arturo Gonzalez made multiple calls saying things like “I got my shotgun and I'm gonna kill the cops!”, that he was in possession of a 12 gauge shotgun and if Officers arrive at his residence, he will “be hiding in the dark to ambush” responding Officers, that he was in possession of a grenade, a rocket launcher, five friends and an AK-47. Officer Barrier also learned that Arturo Gonzalez had a prior arrest for assault with a deadly weapon in 2007 and criminal threats in 2009.

         Prior to going to the residence, the four Officers parked and met at the intersection of Ambrister Drive and Stine Road to form a tactical plan. Officer Barrier relayed the information he had learned through his records check including providing information regarding the previous calls by Arturo Gonzalez Jr. regarding the threats to police officers, and the fact that Arturo Gonzalez Jr. had a warrant for his arrest.

         The Officers proceeded to 4800 Chinta Drive on foot, utilizing vehicles for cover. Upon arrival, Officer Barrier attempted to call the cell phone number associated with the calls that had been made on January 18, 2015; however, no one answered. At that point, Officer Barrier contacted the Communications Center to ask if they would contact the reporting party and have the subject step outside the residence. Officer Barrier also asked if the Communication Center could attempt to locate a land-line associated with 4800 Chinta Drive and make contact.

         At approximately 1:50 a.m., a male subject exited the residence wearing baggy clothing, a hooded sweatshirt and a beanie. Officer Barrier was concerned that the subject's hands were concealed. Officer Barrier proceeded to shine his flashlight on the male subject announcing “Bakersfield Police Department”. Officer Barrier then called out: “Arturo Gonzalez, take your hands out of your pockets.” Mr. Gonzalez acknowledged Officer Barrier and the Officers believed that the ...


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