United States District Court, S.D. California
LEE A. BAKER, Plaintiff,
NATHANIEL BIER, ROBERT GIBSON, and DOES 1-10, Defendants.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT [DOC. NO.
CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE
before the Court is Defendants' motion for summary
judgment or in the alternative partial summary judgment.
[Doc. No. 36.] For the reasons set forth below, the motion
for summary judgment is GRANTED.
15, 2015, Plaintiff filed a complaint setting forth three
causes of action under 42 U.S.C. §1983, as well as
various state law causes of action, arising from an incident
involving Deputies Bier and Gibson on July 19, 2013. [Doc.
No. 1.] On October 9, 2015, Plaintiff filed a First Amended
Complaint setting forth the three causes of action under 42
U.S.C. §1983 but omitting the state law causes of
action. [Doc. No. 6.] On October 27, 2015, Defendants filed a
motion to dismiss the FAC. [Doc. No. 8.] In opposition,
Plaintiff requested leave to amend. [Doc. No. 9.] Therefore,
on November 23, 2015, the Court granted Plaintiff's
request for leave to amend and denied the motion to dismiss
the FAC as moot. [Doc. No. 12.]
December 3, 2015, Plaintiff filed a Second Amended Complaint
which also sets forth three causes of action pursuant to 42
U.S.C. §1983 for the following alleged constitutional
violations: 1) unlawful seizure, in violation of the Fourth
Amendment; 2) excessive force, in violation of the Fourth
Amendment, and 3) deliberate indifference to his serious
medical need, in violation of the Eighth Amendment. [Doc. No.
December 16, 2015, Defendants filed a motion to dismiss the
SAC. [Doc. No. 14.] On January 28, 2016, the Court granted
the motion in part, and dismissed the §1983 claims for
unlawful seizure and deliberate indifference to his serious
medical need. [Doc. No. 17.] Thus, the only remaining claim
against Defendants is for excessive force.
September 8, 2017, Defendants filed a motion for summary
judgment or in the alternative partial summary judgment.
[Doc. No. 36.] On October 6, 2017, Plaintiff filed an
opposition. [Doc. No. 43.] On October 13, 2017, Defendants
filed a reply to the opposition. [Doc. No. 47.]
19, 2013, Deputy Bier and Deputy Gibson were on patrol in
Poway when they received a radio call reporting a domestic
dispute at the intersection of Parkway Center Drive and
Scripps Poway Parkway. (Ex. A1 - Bier Dec. at ¶ 3; Ex. B
- Gibson Dec. at ¶ 3.) It was reported that a man was
observed assaulting a woman, that the woman hit the man in
the head with a beer bottle, and both were covered with
blood. (Id.) The dispatcher advised that the male
had left the scene and was walking northbound on Parkway
Centre Drive from Scripps Poway Parkway. (Ex. A - Bier Dec.
at ¶ 3.) Deputy Bier responded to the scene. (Ex. A -
Bier Dec. at ¶ 4.) As he responded, he activated a video
camera in his patrol vehicle and placed it on the dashboard.
(Id.; Ex. C - Incident Video.) When Deputy Bier was
on Danielson Street, he observed Plaintiff walking. (Ex. A -
Bier Dec. at ¶ 5.) Plaintiff matched the description of
the male involved in the domestic violence dispute and he had
blood on his face. (Id.)
on the description provided by dispatch, both Deputy Bier and
Deputy Gibson believed that they were responding to a
potential domestic violence call. (Ex. A - Bier Dec. at
¶¶ 3 & 6; Ex. B - Gibson Dec. 3.) Both deputies
were aware that responding to domestic violence calls are
some of the potentially most dangerous situations for law
enforcement because of the level of emotions involved.
(Id.) With this in mind, Deputy Bier parked his car
then approached Plaintiff on foot and ordered him to sit on
the curb to place him in a position of disadvantage. (Ex. A -
Bier Dec. at ¶ 6.) Initially, Plaintiff did not comply
with the instruction and presented an agitated manner.
(Id.) Deputy Bier instructed Plaintiff to sit down a
second time and he complied. (Id.) Deputy Bier asked
Plaintiff if he required medical care, but Plaintiff did not
concern for his own safety, as well as to prevent Plaintiff
from fleeing during his investigation, Deputy Bier determined
it was necessary to handcuff Plaintiff before questioning
him. (Ex. A - Bier Dec. at ¶ 7.) Deputy Bier's
concern was based on several factors: the nature of the call
(probable domestic violence situation where Plaintiff had
been reported to have assaulted a woman); that Plaintiff had
not been searched for weapons; that Deputy Bier was the only
deputy on the scene; as well as Plaintiff's agitated
attitude and demeanor. (Id.) Deputy Bier ordered
Plaintiff to place his hands behind his back so he could be
handcuffed. (Id.) Plaintiff did not comply.
(Id.) Deputy Bier repeated his command several times
and Plaintiff continued to refuse to submit to handcuffing.
(Id.) Deputy Bier withdrew his Taser and pointed it
at Plaintiff's feet, but Plaintiff continued to refuse to
put his hands behind his back. (Id.) Plaintiff told
Deputy Bier that he was not going to put his hands behind his
back. (Id.; Ex. D - Excerpt from Plaintiff's
Depo. at 72:17 - 22.) Deputy Bier spent approximately one
minute attempting to gain compliance from Plaintiff with
verbal and visual commands. (Ex. A - Bier Dec. at ¶ 7;
Ex. C - Incident Video at 1:24 - 2:27.)
Deputy Bier's numerous attempts using verbal and visual
techniques to gain compliance from Plaintiff failed, Deputy
Bier re-holstered his Taser and walked behind Plaintiff who
was still sitting on the curb. (Ex. A - Bier Dec. at ¶
8; Ex. C - Incident Video.) As Deputy Bier walked behind
Plaintiff, Deputy Bier observed Plaintiff lock his hands
together in front of his body and tense up. (Id.)
Fearing that Plaintiff was going to resist, attempt to
assault him, or escape, Deputy Bier tried to gain a tactical
advantage by placing his hands on Plaintiff's back and
pushing Plaintiff forward. (Id.) Deputy Bier
followed Plaintiff to the ground where Plaintiff continued to
refuse to put his hands behind his back so that Deputy Bier
could place the handcuffs on Plaintiff. (Id.)
Bier then placed his right arm around Plaintiff's neck
and straddled Plaintiff's back in an attempt to control
him. (Ex. A - Bier Dec. at ¶ 9; Ex. C - Incident Video.)
Deputy Bier used the microphone on his shoulder to notify
dispatch that he needed cover. (Id.) Plaintiff
continued to resist Deputy Bier's attempts to place
Plaintiff in handcuffs. (Id.) Deputy Bier began to
attempt to apply pressure to Plaintiff's carotid artery
but Deputy Bier knew that Plaintiff was able to breathe
because Deputy Bier was not applying much pressure.
(Id.) Plaintiff continued to resist by grabbing onto
Deputy Bier' arm and pulling it away from him.
(Id.) Plaintiff was also tensing his body and trying
to get out of Deputy Bier's grasp. (Id.)
Deputy Gibson arrived on the scene, he perceived that
Plaintiff was successfully resisting Deputy Bier's
attempt to place Plaintiff in a carotid restraint hold. (Ex.
B - Gibson Dec. at ¶ 4.) It appeared to Deputy Gibson
that Plaintiff was able to lift Deputy Bier's left arm up
over Plaintiff's chin and it appeared that Plaintiff was
biting Deputy Bier's left forearm and was about to kick
Deputy Bier with both feet or use his feet to break free.
(Id.) It was Deputy Gibson's impression that
Plaintiff was very close to escaping Deputy Bier's hold.
(Id.) Deputy Gibson was concerned for Deputy
Bier's safety. (Id.)
Deputy Gibson approached, Deputy Bier and Plaintiff, Deputy
Bier stopped attempting to apply the carotid restraint hold.
(Ex. A - Bier Dec. at ¶ 10.) Nevertheless Plaintiff
continued to resist Deputy Bier's attempts to gain
control of his arms. (Id.) Deputy Gibson placed his
knee on Plaintiff's abdomen. (Ex. B - Gibson Dec. at
¶ 5; Ex. C - Incident Video.) Noting that hand to hand
combat was not working to gain control of Plaintiff, Deputy
Gibson then un-holstered his Taser and removed its cartridge
so it would be in drive stun mode (which has a lesser quantum
of force than when the probes are deployed). (Id.)
Deputy Gibson placed the Taser against Plaintiff's
pectoral muscle and then ordered Plaintiff to stop resisting
immediately or warned that he would be Tased. (Id.)
Plaintiff responded by stating “fuck you.” (Ex. B
- Gibson Dec. at ¶ 5; Ex. D - Excerpt from
Plaintiff's Depo. at 91:22 - 92:4.) Deputy Gibson made a
second order to Plaintiff to stop resisting or he would be
Tased. (Ex. B - Gibson Dec. at ¶ 5.) Plaintiff continued
to struggle and Deputy Gibson activated his Taser for 3 to 5
seconds. (Id.) Plaintiff let go of his hold on
Deputy Bier and rolled onto his stomach. (Id.; Ex. C
- Incident Video.) Plaintiff brought both of his hands
underneath his body and began to push himself up.
(Id.) Concerned that Plaintiff would be in a
position of advantage if he got up, Deputy Gibson placed the
Taser on Plaintiff's back and activated the charge again.
(Id.) Plaintiff then stopped resisting and submitted
to handcuffing. (Id.; Ex. A - Bier Dec. at ¶
10.) Neither deputy used further force against Plaintiff
after he stopped resisting. (Id.)
Bier suffered a slight abrasion to his left forearm. (Ex. A -
Bier Dec. at ¶ 11.) Plaintiff claims he suffered:
several minor asphalt abrasions to his face, elbow, hand, and
knees; Taser marks on his chest and back; cuts on his wrists
from the handcuffs; as well as right shoulder pain and
discomfort from the encounter with Defendants. (Ex. E -
Pl.'s Interrogatory Response No. 1.) Plaintiff does not
know if the cuts on his wrists allegedly caused by the
handcuffs occurred when the handcuffs were initially applied,
or later when he was in the care of other, non-defendant
deputies. (Ex. D - Excerpt from Plaintiff's Depo. at
151:12 - 152: 15 & 153:15 - 155:8.) Plaintiff did not ask
Deputy Bier or Deputy Gibson to loosen the handcuffs.
(Id. at 152:13 - 15.) Plaintiff was taken to a
hospital for the evaluation of his injuries. (Ex. A - Bier
Dec. at ¶ 10.)
was arrested and was convicted for being under the influence
of methamphetamines during the incident. (Ex. D - Excerpt
from Plaintiff's Depo. at 102:1 - 22.)
approximately 5:53 p.m. Defendant Bier received a radio call
of, “a male and female actively in a physical
confrontation. The male was seen assaulting the female.
Assault without injury is misdemeanor assault (PC §240).
The female had also hit the male in the head with a beer
bottle. The male was bleeding in result of the beer bottle
hitting him in the head. While (Defendant Bier) was en route,
dispatch advised that the male had left the scene and was
walking northbound on Parkway (sic) Center Drive from Scripps
Poway Parkway.” (Excerpt of Defendant Bier's
Sheriff Deputy Officer report, p. 1, ¶1).
Defendant Bier travelled eastbound on Danielson toward
Parkway (sic) Centre Drive he notice a man who matched the
description given by dispatch walking down the street.
(Id. at p. 1 ¶2). The male had a lot of blood
on his face that looked as if it were coming from his nose.
The man was later identified as Mr. Baker. (Id.).
Defendant Bier stopped his patrol car and approached Mr.
Baker on foot. (Excerpt of Lee Baker Depo. at 69:20-24).
Defendant Bier told Mr. Baker to sit down twice. Mr. Baker
told Defendant Bier he would sit down and did sit down within
thirteen seconds of their contact. [Criminal Trial (CT) TS
Vol. 1 at 225:27-28, to 226:1, 16-18]. Defendant Bier asked
Mr. Baker whose blood was on him. Mr. Baker told Defendant
Bier that it was his blood, that he had just been attacked by
his girlfriend, that she had thrown a frozen bottle of
Gatorade at his face, that he was the victim and he might
need medical attention. (Excerpt of Lee Baker Depo at
Defendant Bier told Mr. Baker to put his behind his back
because he was under arrest. (Id. at 70:21-22.) Mr.
Baker asked why he needed to put his hands behind his back;
he was the victim. (Id. at 70:24-25.) Mr. Baker
asked what he was being arrested for. (Excerpt of Lee Baker
Depo at 71:1). Defendant Bier never advised Mr. Baker why he
was being detained or arrested. [PE TS at 36:1- 17]. Prior to
Defendant Bier pointing his taser at Mr. Baker and as
Defendant Bier continued to tell Mr. Baker to put his hands
behind his back, Mr. Baker continued to ask what he was being
arrested for and to try to explain the situation to Defendant
Bier but Defendant Bier was not listening. Defendant Bier
never told Mr. Baker that he was placing him in handcuffs for
officer safety or because he was conducting an investigation.
[CT TS Vol. 1 at 207:1-7].
trial Defendant Bier could not recall whether Mr. Baker asked
why he was being arrested or whether Mr. Baker told Defendant
Bier he was the victim of a battery. “I cannot recall
the whole conversation…I can't remember what he
said.” (CT TS at 205:22-27). While watching the video
Defendant Bier acknowledged that Mr. Baker was talking,
“His lips moving. Yes.” (CT TS at 230:25-28;
231:1, 23-28, 232:1-15). But Defendant Bier answered at least
six times “no, ” as he watched the video, he
could not recall what Mr. Baker said to him. (CT TS at
Bier testified he remembered thinking that it seemed like Mr.
Baker was wondering why he was being told to put his hands
behind his back but he testified he did not remember Mr.
Baker asking him why he was being told to put his hands
behind his back. (CT TS at 231:3-8, 17-18). Defendant Bier
testified three times during the underlying criminal
proceedings. He never testified that Mr. Baker told him he
was not going to put his hands behind his back as he did
recently in his declaration. Now Defendant Bier remembers Mr.
Baker telling him he wouldn't put his hands behind his
back. But, he does not acknowledge the other half of Mr.
Baker's statement which was, “until you tell me
what I'm being arrested for.” [CT TS Vol. 2 at
Bier acknowledged that Mr. Baker “wasn't aggressive
towards me. He wasn't trying to fight me.” [CT TS
Vol. 1 at 206:16-17.] Defendant Bier also acknowledged that
at no time prior to Defendant Bier going behind Mr. Baker to
try to handcuff him did Mr. Baker make any movement forward,
or up, looking like he was going to flee. [CT TS Vol. 1 at
199:14-17]. As Mr. Baker sat on the curb, after Defendant
Bier told him to sit on the curb, Mr. Baker never tried to
reach into his pocket, never reached his hand toward any
other part of his body, didn't reach his arms out to
Defendant Bier. (CT TS Vol. 1 at 199:5-13). After he sat down
Mr. Baker never tried to get up from the curb again. At no
time did Mr. Baker ever try to punch or kick Defendant Bier,
nor did he threaten him. [PE TS at 30:3-12; 61:24-28].
Bier was the first deputy to arrive on scene. He knew,
however, before he went hands-on with Mr. Baker, that
Defendant Gibson was en route to Defendant Bier's
location. [CT TS Vol. 1 at 201:5-6, 11-12]. Defendant Bier
noticed a slight size difference but never mentioned being
concerned about a size differential between him and Mr.
Baker, or that he was particularly intimidated by Mr. Baker.
Defendant Bier testified that he was only one inch shorter
and 20 pounds lighter than Mr. Baker. [CT TS Vol. 1 at
Bier decided to immediately put Mr. Baker in handcuffs
because it was his “common procedure” when he was
by himself to place someone he is contacting in handcuffs for
his safety, and to control the situation because he
“didn't have to worry about him anymore by placing
him in handcuffs.” [PE TS at 17:17-25].
Bier never tried to engage Mr. Baker in any friendly or
quasi-friendly conversation at all. [CT TS Vol. 1 at
221:19-22]. Defendants' expert Ronald McCarthy testified
that verbalization during a detention is a technique that
should be employed by San Diego Sheriff's Deputies when
possible, and Sheriff's Deputies are directed to use this
technique in San Diego Sheriff training materials
“Addendum F.” (Excerpt of Ronald McCarthy Depo.
at 32:2-25; 33:1-2.)
Baker had not given Defendant Bier any indication that he was
a present physical threat to Defendant Bier or anyone else,
and he had made no movements to flee at the initial
encounter. [Motion to Suppress (MS) TS at 50:18-25].
Defendant Bier agreed that Mr. Baker had submitted to him
when Mr. Baker was seated on the curb and before Defendant
Bier tried to put the handcuffs on. [MS TS at 53:18-22].
why Mr. Baker could not understand why Defendant Bier wanted
to handcuff him, and despite his multiple inquiries,
Defendant Bier wasn't telling. Contrary to what the
Sheriff's Department teaches, and Defendant Bier learned
in training manual “Addendum F, ” that is, to use
verbalization to prevent escalation of a situation, including
explaining any actions that are about to be taken, Defendant
Bier didn't do that. [CT TS Vol. 1 at 211:10-16]
Bier testified at trial he said only three things to Mr.
Baker before going hands on with him: 1. Sit down; 2. Do you
need medical attention, and 3. Put your hands behind your
back. [CT TS Vol. 1 at 221:10-18]. Defendant Bier admitted
that if verbalization had been used in the beginning of the
encounter it is possible the situation with Mr. Baker could
have been deescalated. [CT TS Vol. 1 at 211:23-28; 212:1-4.]
Further, Defendant Bier admitted that by yelling within the
first minute of their contact Defendant Bier
“heightened the level of” the situation. [CT TS
Vol. 1 at 222:13-14].
Defendant Bier went behind him, Mr. Baker was scared and felt
like he was being attacked. [CT TS Vol. 2 at 56:14-19].
Defendant Bier appeared as if he was going to grab Mr.
Baker's arms but then he pushed Mr. Baker onto the
ground. [CT TS Vol. 1 page 170, lines 16-17]. Mr. Baker put
his arm out to break his fall but he made no movement to
specifically avoid being handcuffed, to fight Defendant Bier
or try to get away; he simply held himself up off the ground.
[CT TS Vol. 1 at 171:4-5, 9-12; Incident Video]. Defendant
Bier then wrapped his body around Mr. Baker and rolled Mr.
Baker into a supine position. [CT TS Vol. 1 at 172: 4-8]. Mr.
Baker remained essentially still. He did not flail, hit, or
kick. (Incident Video).
Defendant Bier wrapped his arm around Mr. Baker's neck in
a chokehold. He placed his forearm over Mr. Baker's
trachea and squeezed so Mr. Baker could not breathe. [CT TS
Vol. 2 at 56: 24-26]. Mr. Baker was afraid for his life. [CT
TS Vol. 2 at 56: 27-28; Excerpt of Lee Baker Depo. at
79:6-7]. Mr. Baker still did not fight back but he did try to
get Defendant Bier's arm off of his trachea by tapping on
Defendant Bier's arm. [CT TS Vol. 2 at 57:7-14].
Defendant Bier agreed he may have been putting pressure on
Mr. Baker's windpipe. [CT TS Vol. 1 at 219:4-6]. Mr.
Baker was not tense and he did not try to get out of
Defendant Bier's hold. [Incident Video; CT TS Vol. 2 at
70: 13-17; Excerpt of Lee Baker Depo. at 79:12-22]. To the
contrary, he did not fight back, for fear he would be shot
and killed. [Excerpt of Lee Baker Depo. at 80:5-8).
Bier had Mr. Baker under control when Defendant Gibson
arrived shortly thereafter and jumped on Mr. Baker's
abdomen, placing his knee in Mr. Baker's chest. [Excerpt
of Lee Baker Depo. at 82: 24-25, 83: 1-2]. Defendant Gibson
tased Mr. Baker once in the chest, Defendant Bier released
his hooks around Mr. Baker's legs so he could roll over
and Mr. Baker did roll over. “And right when he was
tased he immediately rolled over and I was able to put my leg
- my leg across his lower leg to keep him from kicking. And I
put him in handcuffs.” [(Excerpt of Defendant
Bier's Sheriff Deputy Officer report, p. 2, ¶2; PE
TS at 24:1-5, 19:3-10]. Mr. Baker was tased at least one more
time in his back after he rolled over even though according
to Defendant Bier Mr. Baker was compliant. [Decl. of Deputy
Gibson in Support of Defendants' Motion for Summary
Judgment at 4: 22; PE TS Vol. 1 at 19: 9-10].
time prior to Mr. Baker's arrest did Defendants Bier or
Gibson form the opinion or any suspicion that Mr. Baker was
under the influence of methamphetamine or any other drug, nor
did that possibility affect the way Mr. Baker's detention
or arrest was handled. [CT TS Vol. 1 at 198:17-28; 199:1-2].
Mr. Baker was neither field-tested nor arrested for being
under the influence of drugs. [CT TS Vol. 1 at 305:3-20]. At
the time of his arrest neither Defendants intended to arrest
or charge Mr. Baker with being under the influence of a
controlled substance. [CT TS Vol. 1 at 315:21-28].
approximately 9:14 p.m., after Mr. Baker had been arrested,
transported to Pomerado hospital, and from the hospital to
the Poway Sheriff substation, Defendant Gibson had Mr.
Baker's blood drawn, he testified at trial, for two
reasons: to test for communicable diseases if Mr. Baker had
bitten Defendant Bier (even though Defendant Bier never told
Defendant Gibson he had been bitten), and to test for
controlled substances. [CT TS Vol. 1 at 257:7-28, 258:1-8,
Jaworski was interviewed, and admitted throwing the frozen
bottle at Mr. Baker because she was angry. Ms. Jaworski was
arrested for felony domestic violence. ...