United States District Court, N.D. California
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
NATHANAEL M. COUSINS United States Magistrate Judge.
Eliel Paulino claims that San Jose Police Officers Marco
Cruz, Gerardo Silva, and Gurbaksh Sohal violated his rights
under the Fourth Amendment and various state laws when they
arrested Paulino by taking him to the ground and striking him
with batons. The defendant officers moved for summary
judgment on all of Paulino's claims, arguing that the
force they used was reasonable as a matter of law and that
qualified immunity shields them from liability. Fatal to
defendants' motion, however, the material facts of the
case are far from undisputed. Most importantly, the parties
dispute whether Paulino took a “preassaultive”
stance and actively resisted Officer Cruz's initial
attempt at arrest by withdrawing his arm, and whether Paulino
intentionally withheld his right arm from the officers to
avoid being handcuffed when he was on the ground. Because a
reasonable jury could find for either party on these factual
issues, summary judgment must be denied.
August 16, 2015, around 2:00 a.m., Officers Sohal and Silva
were on patrol in a two-man vehicle near Cadillac Drive and
Winchester Street in San Jose. Dkt. No. 49-2 at 9-11.
Defendants claim they knew this area was frequented by gang
members and often had drug-related crime. Dkt. No. 49-3 at
8-9. The officers spotted Paulino's vehicle and initiated
a stop because the rear license plate light was not
functioning. Dkt. Nos. 49-2 at 12, 49-3 at 8. Paulino drove
into a parking lot behind an apartment complex at 3137
Cadillac Drive and pulled into a parking space, with Officers
Sohal and Silva following behind in the patrol car. Dkt. No.
49-2 at 13.
video captures the remainder of the incident,
beginning with Paulino and the two officers entering the
parking lot. Dkt. No. 50 (“Video”). The video is
visible, albeit dark, but no sound is audible.
Paulino parked, Officer Silva instructed Paulino to stay in
his vehicle while Officer Sohal searched the parking lot for
other possible suspects. Dkt. No. 49-2 at 17. Paulino
complied with the order. Dkt. No. 49-2 at 17. When Officer
Sohal returned, Officer Silva instructed Paulino to exit his
vehicle and approach the officers, which he did. Dkt. No.
49-2 at 17-18. Officer Silva asked Paulino, in Spanish,
whether he was drunk, and Paulino told him he was. Dkt. No.
49-4 at 24. The officers asked for identification, and
Paulino gave them his Mexican Consulate card. Dkt. No. 49-4
at 24-25. Officer Sohal then pat searched Paulino, who was
cooperative, and found no weapons. Dkt. No. 49-3 at 13-14.
Shortly thereafter, Officer Cruz arrived on scene. Video at
5:30. Officer Cruz stood next to Paulino, who was leaning on
the patrol vehicle's front panel, while Officer Sohal
searched Paulino's vehicle and Officer Silva ran
Paulino's information in the patrol vehicle computer.
Video at 6:55-7:30; Dkt. No. 49-3 at 16-17.
these events, a man later identified as Paulino's father,
Jose Luis Paulino Norberto, was talking and yelling from a
window in the nearby apartment building. Dkt. No. 49-3 at 18,
53. Paulino began talking with his father in Spanish, which
Officer Cruz does not understand. Dkt. No. 49-3 at 56-58.
Officer Cruz instructed Paulino to stop talking, but Paulino
continued speaking to his father in Spanish. Dkt. Nos. 49-3
at 57-58, 49-4 at 31-32.
parties disagree on the details of what happened next, but
the video shows the following. Officer Cruz walks closer to
Paulino and reaches for Paulino's arm, seemingly in an
attempt to handcuff him. Officer Cruz does not immediately
get the handcuffs on and continues to grab at Paulino's
arms, and both men stumble back along the patrol car toward
the front passenger door, which sits ajar. The other two
officers quickly move to the scene. Paulino hits the
passenger door with his body and nearly falls, at which point
Officer Silva jabs Paulino with a baton. Officer Silva steps
away from the struggle as Officers Cruz and Sohal work to
bring Paulino to the ground. Paulino winds up on the ground
with Officer Cruz on top of him. The video is too dark to
ascertain many more details, but while Paulino is on the
ground, Officer Sohal strikes Paulino with his baton several
times, pausing occasionally and reaching down toward Paulino.
Officer Silva returns to the struggle, and the three officers
restrain Paulino. Video at 8:55-10:20.
assert that before Officer Cruz initially tried to handcuff
Paulino, Paulino took a “preassaultive” stance
and clenched his fists. Dkt. No. 49 at 11. When Officer Cruz
reached for Paulino's arm, defendants claim Paulino drew
back and prevented his arm from being handcuffed. Dkt. No. 49
at 11. They also assert that, even if Paulino did not intend
to resist Cruz's efforts at arrest, Paulino's body
weight falling away from Officer Cruz gave the impression of
resistance. Dkt. No. 49 at 11. After bringing Paulino to the
ground, defendants allege Officer Cruz “placed his left
shin across Plaintiff's back to keep him from getting
up” while Officer Sohal attempted to gain control of
Paulino's right arm. Dkt. No. 49 at 13. According to
defendants, Paulino actively prevented Officer Sohal from
accessing his right arm by keeping it underneath his body,
and Officer Sohal responded by striking Paulino with his
baton to induce Paulino's cooperation. Eventually,
defendants claim, Paulino relented by saying “okay,
okay” and giving up his arm. Dkt. No. 49 at 13.
offers a different version of the facts. According to him, he
did not resist Officer Cruz's initial attempt to handcuff
him, and he fell backward inadvertently because his feet were
tangled and he lost his balance. Dkt. No. 53 at 9. After
stumbling backward and hitting the patrol car's front
passenger door, Paulino claims he was “thrown to the
ground” and landed face down before Officer Sohal
“arrived and put his knee on [Paulino's] back and
hit him very hard with the baton.” Dkt. No. 53 at 9.
Paulino contends that he was unable to free his right arm
because it was pinned beneath his body and that once he said,
“no problem, ” the officers stopped hitting him.
Dkt. No. 53 at 10. He asserts that at no time did he
“challenge, resist, fight, or threaten the
officers.” Dkt. No. 53 at 10.
filed this action against the defendant officers on May 17,
2016, alleging excessive force in violation of the Fourth
Amendment under 42 U.S.C. § 1983 and state law claims
for battery, negligence, and intentional infliction of
emotional distress. Dkt. No. 1. Paulino filed an amended
complaint adding a claim under California Civil Code §
52.1. Dkt. No. 28. Defendants moved for summary judgment on
all claims, Dkt. No. 49, and Paulino opposed the motion. Dkt.
No. 53. All parties consented to the jurisdiction of a
magistrate judge. Dkt. Nos. 11, 19.
judgment may be granted only when, drawing all inferences and
resolving all doubts in favor of the nonmoving party, there
is no genuine dispute as to any material fact. Fed.R.Civ.P.
56(a); Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Reasonable factual inferences must be construed in favor of
the non-moving party, and summary judgment should not be
granted if “a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
police misconduct cases frequently involve “disputed
factual contentions” and “almost always turn on
credibility determinations, ” the Ninth Circuit has
“held on many occasions that summary judgment . . . in
excessive force cases should be granted sparingly.”
Drummond v. City of Anaheim, 343 F.3d 1052, 1056
(9th Cir. 2003) (citation omitted); see also Liston v.
Cty of Riverside, 120 ...