United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [RE: ECF
LABSON FREEMAN UNITED STATES DISTRICT JUDGE
Blair Redmond (“Redmond”) was sitting in the
driver's seat of her parked vehicle near a skateboard
park in San Jose, California, when police officers from the
San Jose Police Department approached her and her boyfriend
to question them for a suspected littering violation. A
serious incident broke out between the officers and
Redmond's boyfriend, which involved a physical
altercation resulting in her boyfriend's arrest. From the
outset, Redmond was recording the events on her cell phone,
and at some point during the encounter she got out of the car
to continue to record the incident. She claims that as soon
as she got out of the car, one of the officers charged at
her, grabbed her arm, stomped on her foot, punched her in the
face, and dislocated her shoulder to stop her from filming.
Redmond was ultimately arrested, but not charged, with
brings suit under 42 U.S.C. § 1983 against the City of
San Jose (the “City”) and a number of police
officers involved in the events (the “Officers”)
(together with the City, “Defendants”).
Defendants move for summary judgment on all claims. See
generally Motion for Summary Judgment, ECF 130
(“Mot.”). The Court has considered the
parties' briefing, the admissible evidence, the
applicable law, as well as oral argument presented at the
hearing held on September 20, 2017. For the reasons that
follow, Defendants' motion for summary judgment is
Events Preceding Redmond's Encounter with the
afternoon of April 17, 2013, Blair Redmond was with her
boyfriend Joseph Evans (“Evans”) in a parked car
at Roosevelt Park in San Jose, California. Redmond was
sitting in the driver's seat of the car while Evans was
seated in the passenger seat fixing his skateboard. The car
was legally parked in a space in the parking lot for a
Daniel Pfiefer, Tony Diep, and Matthew Blackerby were also in
Roosevelt Park on April 17, 2013. As part of the San Jose
Police Department's “downtown services unit,
” these officers were tasked with addressing gang and
narcotics activity, as well as responding to “quality
of life” issues in downtown San Jose such as vagrants,
drinking and urinating in public, and street-level drug
dealing. See ECF 130-1 Exh. A (“Pfiefer
Depo.”) 44:21-45:4. The San Jose Police Department had
received numerous complaints regarding gang, drinking, and
narcotics activity in Roosevelt Park, and assigned the unit
to patrol the area. Id. 103:7-105:16. On the day of
the events at issue, Officers Pfiefer, Diep, and Blackerby
dressed in plain clothes and drove an unmarked vehicle to
Roosevelt Park. Id. 68:14-69:15.
Officers noticed Redmond's car near the skateboard park,
and that the vehicle had the front, back, and rear side
windows covered by some type of shade or curtains.
Id. 108:14-109:15. After patrolling the park for
some time, the Officers returned to their vehicle and saw
that Redmond's car was still in the parking lot.
See ECF 130-1 Exh. C (“Blackerby Depo.”)
111:24-112:6. Officers Pfiefer and Diep observed Evans throw
“some type of metallic object or objects” out of
the passenger side window. Pfiefer Depo. 110:19-22. The
Officers decided to approach Redmond's car to investigate
the littering issue. Id. 110:23-111:13. Redmond
recalls that the Officers approached the passenger side of
the car where Evans sat, but did not state any reason for
their presence at the car. See ECF 134-2
(“Redmond Depo.”) 95:11-17.
The Officers' Initial Exchange with Redmond and
Officer Diep approached the passenger window of the vehicle
followed by Officer Blackerby while Officer Pfiefer walked
around toward the driver's side of the vehicle where
Redmond was located. See ECF 103-1 Exh. B
(“Diep Depo.”) 132:15-21; Pfiefer Depo.
112:14-113:5. What happened next is subject to various
factual disputes. Officer Diep states that he stood at the
passenger side window and identified himself as a San Jose
police officer, showed the passengers his badge, and said
“how are you guys doing?” Diep Depo.
132:19-133:1; see also Redmond Depo. 68:4-7. After
Officer Diep stated something to that effect, Redmond recalls
that she and Evans responded: “I want to speak to your
sergeant, and we're going to record this incident.”
Redmond Depo. 68:4-7. Officer Blackerby testified that as
soon as Officer Diep identified himself to the occupants of
the vehicle, “the passenger [Evans] started
screaming.” Blackerby Depo. 114:21-22. In contrast,
Redmond testifies that Officer Diep was intimidating,
aggressive, and “escalated” his voice toward her
with demands. Redmond Depo. 67:14-19.
Diep testifies that he smelled marijuana in the vehicle.
See Diep Depo. 148:11-15. According to Diep, Evans
then began to roll the passenger side window all the way up,
even though Officer Diep instructed Evans not to roll the
window up. Id. 149: 7-9. Officer Diep then testifies
that he opened the passenger door to the vehicle, which was
unlocked. Id. 149: 9-14. Redmond testifies that she,
not Evans, rolled up the passenger side window and locked the
car doors in order to stay safe. See Redmond Depo.
79:14-21; 95:14-17. Before she was able to roll the passenger
window all the way up, Redmond testifies that Officer Diep
reached through the open window on the passenger side in
order to unlock the door. The parties do not dispute that
once Officer Diep got the door open, he observed Evans
sitting in the passenger seat with a skateboard and tools on
Diep testifies that he observed Evans with a box cutter in
his left hand. See Diep Depo. 150:13-20. Officer
Diep instructed Evans to “put the knife down, ”
but Evans did not comply, instead continuing to yell and move
the box cutter around. Id. 150:23-151:2. Officer
Diep testifies that he did not reach into the vehicle until
after he had given Evans the chance to drop the box cutter.
Diep Depo. 151:3-24. In contrast, Redmond testifies that Diep
was trying to remove Evans from the vehicle when Evans was
just “sitting there” and Diep was grabbing at
him. See Redmond Depo. 73:15-18. Officer Diep claims
that Evans continued to move his left hand around in a
swiping motion holding the box cutter. Diep Depo.
152:23-154:4. As Officer Diep reached into the vehicle in an
attempt to control Evans' hand, the box cutter
“shaved off a piece of skin” on Officer
Diep's right thumb. Id. At that point, Officer
Diep pulled his hand back and shouted “he just cut
me.” Id. 153:6-8.
Officer Pfiefer was outside of the driver's side of the
car where Redmond sat and he recalls that he ordered Redmond
to get out of the vehicle. Pfiefer Depo. 112:18-113:5.
Redmond testifies that at the same time as Officer Diep was
grabbing Evans, Officer Pfiefer pounded on her window eight
to ten times with his flashlight but was unable to break the
window open. Redmond Depo. 98:1-8. Officer Pfiefer testifies
that when he heard Officer Diep instruct Evans to drop the
knife, he told Redmond to open the door to the car but she
refused. Pfiefer Depo. 116:4-24. Only when Redmond refused to
open the door did Officer Pfiefer recall that he
unsuccessfully tried to break the driver's window of the
car with his flashlight in order to open the door.
Id. 117:20-118:8. A 40-second video of this portion
of the incident while Evans and Redmond were still in the car
is captured by Redmond's phone. See ECF 130-1,
as he heard Officer Diep shout that he had been cut, Officer
Pfiefer moved to the front of his vehicle, drew his firearm
and pointed it at Evans who immediately raised his arms.
Pfiefer Depo. 118:10-119:18. Redmond testifies that
Evans' hands were empty at this point. Officers Diep and
Blackerby then pulled Evans from the front passenger seat of
the car. Diep Depo. 153:18-154:10. A struggle ensued, whereby
Officers Diep and Blackerby had difficulty handcuffing and
controlling Evans. Diep Depo. 155:5-7. Officer Diep used his
radio to call for Code 3 backup. Diep Depo 154:20-155:7. The
Officers testify that Officer Blackerby tripped over a cement
parking divider and fell on his back with Evans on top of
him. Blackerby Depo. 120:17-121:1. Redmond disputes the
Officers' version of events, instead asserting that the
Officers were on top of Evans, physically attacking him.
Redmond Depo. 101:25-102:4.
Redmond Gets Out of the Vehicle and is Arrested
Officers Diep and Blackerby struggled with Evans, Officer
Pfiefer was trying to keep an eye on Redmond while
simultaneously monitoring the crowd of people that had
started to form. Pfiefer Depo. 119:21-120:25. Pfiefer
suddenly noticed Redmond “spring out of the car.”
Id. 122:19-25. Redmond testifies that after seeing
Officers Diep and Blackerby on top of her boyfriend behind
the car, she decided to get out of the car with her arm
extended holding her cell phone to record the incident.
Redmond Depo. 101:25-102:4.
Pfiefer stood between Redmond and the struggle occurring
between the other officers and Evans. Pfiefer Depo.
123:13-124:11. Redmond moved toward him with a cell phone in
her hand. When Officer Pfiefer told her to “back up,
” he testifies that she responded “Fuck you,
I'm recording this shit.” Pfiefer Depo. 125:5-11.
Redmond testifies that when she got out of the car she
initially “took a step” toward the back of the
car toward the officers who were struggling with Evans.
Redmond Depo. 103:8-24. However, she testifies that she
immediately started “backtracking.” Id.
103:14-17. She continued to record the incident with her
outstretched hand, and told Officer Pfiefer that she was
recording the incident. At that point, Redmond testifies that
Officer Pfiefer charged toward her and told her that she was
under arrest. Redmond Depo. 104:1-13.
disputes Officer Pfiefer's account of her arrest. Officer
Pfiefer's version of events is that he reached out to
grab her hand in order to control her and take her into
custody. Pfiefer Depo. 126:10-25. When Redmond pulled her arm
away, she lunged backward and tripped and fell. Pfiefer Depo.
131:14-21. As she tried to get back up, Officer Pfiefer
grabbed her leg and tried to keep her nearby due to the crowd
of people forming around them. When Redmond refused commands
to roll over and tried to get up, Officer Pfiefer admits that
he grabbed her hair to keep her on the ground and then
“hit her with his fist” on the side of her head
in an attempt to end the fight and allow him to take control.
Id. 132:8-137:22. Redmond stopped resisting at that
point and Officer Pfiefer was able to handcuff her.
to Redmond, Officer Pfiefer charged at her and grabbed her
right hand in an attempt to take away her phone. Redmond
Depo. 104:1-3. When he lost his grip, he stomped on her foot
to pin her in place. Id. 104:17-18. When she
stumbled backwards after the stomp, Officer Pfiefer then
punched her in the face. Id. 106:2-3. She then fell
to the ground in a “crouched position” covering
her head and face with her hands. Id. 87:16-19.
Redmond testifies that Officer Pfiefer then pulled her back
up by her hair and wrenched her arm behind her back until she
“heard a loud pop” and felt pain in her right
shoulder, which she eventually learned was dislocated from
the incident. Id. 108:17-109:1, 110:1-12,
111:15-112:3. Redmond further testifies that Officer Pfiefer
pushed her face down onto the concrete and pinned her left
shoulder down with his knee. Redmond Depo 115:7-116:4.
Officer Pfiefer denies that he ever wrenched Redmond's
arm behind her back or pinned her down with his knee. Pfiefer
Redmond was in handcuffs, she was turned over to Officer
Wendy Hoskin who had arrived on the scene after the events
described above took place. Officer Hoskin performed a pat
down search of Redmond. While Redmond contends that the pat
down was “quick” and “not overly
rough” but not gentle, she also asserts that the pat
down involved lifting Redmond's shirt in front of
numerous witnesses, revealing the skin between “an
inch” below Redmond's bra to “right above my
belly button.” Redmond Depo. 59:16-17; 58:20-59:10.
According to Officer Hoskin, the pat-down search that she
performed on Redmond was standard. Hoskin Depo. 89:17-91:14.
Sergeant Donald Perrier arrived on the scene, and he was
informed that Redmond wanted to speak with him. Instead of
speaking with her about the incident, Redmond testifies that
Sergeant Perrier accused her of assaulting “his”
police officers. See Redmond Depo. 65:16-66:5.
Redmond contends that Sergeant Richard Galea, who was
responsible for supervising Officers Pfiefer, Diep, and
Blackerby, but who was never on the scene that day, was
similarly uninterested in hearing about his officers'
conduct. According to Redmond, all of the approximately 8 to
10 officers from the San Jose Police Department who arrived
on the scene in Roosevelt Park on April 17, 2013 are
responsible for the events that transpired because they were
“indifferent to the brutality” and never asked
what crime Redmond was accused of committing.
Redmond's Claims against the City and the
initially filed this case pro se against the City of
San Jose and five police officers. See ECF 1 (Filed
May 20, 2014). On October 2, 2015, the Court appointed
counsel for Redmond. See ECF 81. Counsel for Redmond
eventually filed a Fourth Amended Complaint, which is the
operative pleading in this case. See Fourth Amended
Complaint (“4AC”), ECF 86. On June 7, 2016, the
Court denied Defendants' motion to dismiss the Fourth
Amended Complaint with respect to the supervisors (Sergeants
Perrier and Galea) and Officer Hoskin. See ECF 102.
seeks to hold eight individual police officers as well as the
City of San Jose (“City”) accountable for
violations of her constitutional rights and of state
Specifically, Redmond alleges that the individual officers
deprived her of the right to be free from retaliation as
guaranteed by the First Amendment (First Cause of Action
(“COA”)). She also alleges Fourth Amendment
violations including excessive force (Second COA), unlawful
arrest (Third COA), unreasonable search of her person (Fourth
COA), and unreasonable search and seizure of her vehicle
(Sixth COA). See generally 4AC, ECF 86. Redmond also
seeks to hold the City liable for these § 1983
violations for its pattern and practice of ongoing
constitutional violations under Monell v. Department of
Social Services of the City of New York, 436 U.S. 658
(1978), and to hold Sergeants Perrier and Galea liable under
§ 1983 as supervisors.
also brings a host of derivative state law claims against
Defendants including battery (Fifth COA), violation of
California Civil Code § 52.1 (“Bane Act”)
(Seventh COA), Intentional Infliction of Emotional Distress
(Eighth COA), False Arrest/Imprisonment (Ninth COA), and
Negligent Infliction of Emotional Distress (Tenth COA).
Finally, Redmond alleges a violation of the Fourteenth
Amendment's equal protection clause (Eleventh COA).
See 4AC ¶¶ 80-153.
party is entitled to summary judgment if the ‘movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.'” City of Pomona v. SQM N. Am. Corp.,
750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed.R.Civ.P.
56(a)). Material facts are those that may affect the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A genuine dispute of material fact
exists if there is sufficient evidence for a reasonable jury
to return a verdict for the nonmoving party. Id. at
party moving for summary judgment bears the initial burden of
informing the court of the basis for the motion, and
identifying portions of the pleadings, depositions, answers
to interrogatories, admissions, or affidavits that
demonstrate the absence of a triable issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
To meet its burden, “the moving party must either
produce evidence negating an essential element of the
nonmoving party's claim or defense or show that the
nonmoving party does not have enough evidence of an essential
element to carry its ultimate burden of persuasion at
trial.” Nissan Fire & Marine Ins. Co., Ltd. v.
Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
moving party meets its initial burden, the burden shifts to
the nonmoving party to produce evidence supporting its claims
or defenses. Id. at 1103. If the nonmoving party
does not produce evidence to show a genuine issue of material
fact, the moving party is entitled to summary judgment.
Celotex, 477 U.S. at 323. “The court must view
the evidence in the light most favorable to the nonmovant and
draw all reasonable inferences in the nonmovant's
favor.” City of Pomona, 750 F.3d at 1049.
However, “the ‘mere existence of a scintilla of
evidence in support of the plaintiff's
position'” is insufficient to defeat a motion for
summary judgment. Id. (quoting Anderson,
477 U.S. 242, 252 (1986)). “‘Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial.'” Id. (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
doctrine of qualified immunity protects government officials
from liability for civil damages ‘unless a plaintiff
pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was
‘clearly established' at the time of the challenged
conduct.'” Wood v. Moss, 134 S.Ct. 2056,
2066-67 (2014) (quoting Ashcroft v. al-Kidd, 131
S.Ct. 2074, 2080 (2011)). “[T]he Supreme Court has
‘repeatedly ... stressed the importance of resolving
immunity questions at the earliest possible stage in
litigation.'” Dunn v. Castro, 621 F.3d
1196, 1199 (9th Cir. 2010) (quoting Hunter v.
Bryant, 502 U.S. 224, 227 (1991)). Under the applicable
pleading standard, the plaintiff must allege facts sufficient
to make out a plausible claim that it would have been clear
to the defendant officer that his conduct was unlawful in the
situation he confronted. Id. at 2067. “Because
qualified immunity is an affirmative defense from suit, not
merely from liability, ‘[u]nless the plaintiff's
allegations state a claim of violation of clearly established
law, a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery.'”
Doe By and Through Doe v. Petaluma City School
Dist., 54 F.3d 1447, 1449-50 (9th Cir. 1995) (quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001), the Supreme Court set forth a two-part
approach for analyzing qualified immunity. The analysis
contains both a constitutional inquiry and an immunity
inquiry. Johnson v. County of Los Angeles, 340 F.3d
787, 791 (9th Cir.2003). The constitutional inquiry requires
the court to determine this threshold question: “Taken
in the light most favorable to the party asserting the
injury, do the facts alleged show the officer's conduct
violated a constitutional right?” Saucier, 533
U.S. at 201. If the Court determines that a constitutional
violation could be made out based on the parties'
submissions, the second step is to determine whether the
right was clearly established. Id. “The
relevant, dispositive inquiry in determining whether a right
is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” Id. at 202. The
Supreme Court has clarified that the sequence of
analysis set forth in Saucier is not mandatory and
that a court may exercise its sound discretion in determining
which of the two prongs of the qualified immunity analysis to
address first. Pearson v. Callahan, 555 U.S. 223,
241-42 (2009). Thus, in some cases, it may be unnecessary to
reach the ultimate constitutional question when officers
would be entitled to qualified immunity in any event, a
result consistent with longstanding principles of judicial
Supreme Court recently reiterated the longstanding principle
that a “clearly established” constitutional right
“should not be defined ‘at a high level of
generality.'” White v. Pauly, 137 S.Ct.
548, 552 (2017) (quoting al-Kidd, 563 U.S. at 742).
Rather, it must be “particularized” to the facts
of the case.” Id. (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Defining the right
at too high a level of generality “avoids the crucial
question whether the official acted reasonably in the
particular circumstances that he or she faced.”
Plumhoff v. Ricard, 134 S.Ct. 2012, 2023 (2014).
“[A] defendant cannot be said to have violated a
clearly established right unless the right's contours
were sufficiently definite that any reasonable official in
the defendant's shoes would have understood that he was
violating it.” Id. “In other words,
‘existing precedent must have placed the statutory or
constitutional question' confronted by the official
‘beyond debate.'” Id. (quoting
al-Kidd, 563 U.S. at 741). “A right can be
clearly established despite a lack of factually analogous
preexisting case law, and officers can be on notice that
their conduct is unlawful even in novel factual
circumstances.” Ford v. City of Yakima, 706
F.3d 1188, 1195 (9th Cir. 2013). “The relevant inquiry
is whether, at the time of the officers' action, the
state of the law gave the officers fair warning that their
conduct was unconstitutional.” Id.
move for summary judgment on all of Redmond's claims.
See generally Mot. The Court seeks to respond to the
motion as submitted by the moving party. However, in the
interests of efficiency, the Court addresses Redmond's
theory of direct liability for constitutional claims against
individual officers, and separately addresses Redmond's
claims for supervisor liability as to Sergeants Perrier and
Galea, and her Monell claim against the City itself.
The Court also recognizes that Redmond has brought claims
against two officers who were not directly involved in the
events described above. Because the Court finds that no
genuine dispute of material fact exists as to the claims
against these Defendants, the Court addresses their liability
before turning to Redmond's claims under a direct theory
of liability against Officers Pfiefer, Blackerby, Diep, and
Hoskin, and then ultimately turns to her theories of
supervisory liability and her Monell claim.
Claims Against Officers Mishaga and Wong
Mishaga and Wong are charged with unlawful arrest (Third
COA), unlawful search (Fourth COA), and possibly excessive
force (Second COA). See generally 4AC. Each officer
testified that he arrived at the scene after Redmond was
already in the police vehicle. See Mishaga Depo.
68:9-70:25, ECF 130-1 Exh. I; Wong Depo. 63:6-8, 98:16-19,
ECF 130-1 Exh. J.
hearing on September 20, 2017, counsel for Redmond submitted
on the papers as to Officers Mishaga and Wong. Redmond's
opposition does not mention these officers. Moreover,
although Redmond testifies that an unidentified officer may
have pinned her down along with Officer Pfiefer, there is no
evidence to create a triable issue of fact as to these
officers' liability. Therefore, Defendants' motion
for summary judgment as to Officers Mishaga and Wong is
Direct Liability for Constitutional Violations
seeks to hold a number of the Officer Defendants, as well as
the City, liable for retaliating against her in violation of
her First Amendment right to videotape police officers while
they are performing their duties in a public place. In her
Fourth Amended Complaint, Redmond alleges the retaliation
claim against Officer Pfiefer, Sergeant Perrier, Sergeant
Galea, and the City itself. See 4AC ¶¶
80-88, ECF 86. However, in her opposition to Defendants'
motion for summary judgment, Redmond asserts that Officers
Blackerby and Diep are also directly liable for First
Amendment violations. See Opp'n at 5. The Court
addresses the First Amendment claims against Sergeants
Perrier and Galea as supervisors, and the Monell
claim against the City, separately from her theories of
direct liability. Here, the Court considers Redmond's
First Amendment claim against Officers Pfiefer, Blackerby and
bulk of the arguments regarding the retaliation claim center
on the actions of Officer Pfiefer, because he is the officer
who allegedly prevented Redmond from videotaping the incident
by arresting her and taking her into custody. Defendants
primarily argue that Officer Pfiefer had legitimate law
enforcement reasons to take Redmond into custody and that his
actions were not motivated because she was filming the event
on her cell phone.
Defendants do not explicitly move for qualified immunity on
the retaliation claim in their motion for summary judgment as
to Officer Pfiefer, they insinuate that in the context of an
inherently dangerous situation, the “law is not clearly
established when it comes to whether a person has the right
to videotape the incident.” Mot. at 9. Redmond
preempted the qualified immunity argument on the retaliation
claim in a footnote of her opposition. See Opp'n
at 5 n.2. It is not until Defendants' reply that they
explicitly assert that Officer Pfiefer is entitled to
qualified immunity on the retaliation claim. See
Reply at 5-6. The Court considers both prongs of the
qualified immunity analysis, and finds that disputed factual
issues, including the nature of Redmond's participation
in the incident, preclude granting summary judgment on the
retaliation claim as to Officer Pfiefer.
Court must first consider whether the facts viewed in the
light most favorable to Redmond support a violation of her
First Amendment rights. In order to sustain a claim of
retaliation in violation of the First Amendment, Redmond must
establish three elements: (1) she was engaged in
constitutionally protected activity; (2) Officer
Pfiefer's actions would chill a person of ordinary
firmness from continuing to engage in the protected activity
in the future; and (3) Officer Pfiefer's intent to
inhibit the protected speech was a substantial or motivating
factor in his conduct. See Pinard v. Clatskanie Sch.
Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006); accord
Skoog v. Cty. of Clackamas, 469 F.3d 1221, 1231-32 (9th
concede that citizens have a First Amendment right to
videotape police officers who are performing their duties in
a public space. See Mot. at 8 (citing Fordyce v.
City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995)).
However, Defendants argue that the right is subject to
“serious limitations” that are implicated by the
“undisputed” facts of this case. Id. at
9. By characterizing Redmond as an active player in an
“inherently dangerous” encounter with the police,
Defendants insinuate that she did not have a right to record
them because she was suspected of resisting, delaying, or
obstructing police officers in the course of their duties.
See Mot. at 9. Defendants argue that even viewing
the facts in the light most favorable to Redmond, Officer
Pfiefer did not violate her First Amendment rights as a
matter of law. See Mot. at 9.
entire premise of Defendants' argument on the retaliation
claim is based on facts which are disputed. Importantly,
whether Redmond was merely a passenger who was recording the
incident from a safe distance, or whether she was
“actively involved” in the incident and
threatening the safety of the officers, presents a factual
dispute for the jury to decide. The following disputed issues
of fact prevent Defendants from meeting their burden on
summary judgment as to the First Amendment claim against
of background, Redmond testifies that she told the officers
that she was recording the incident from the first moment
that they made contact with Redmond and Evans to investigate
the littering incident. As soon as Officer Diep approached
Redmond's car, Redmond and Evans informed him that they
wanted to speak to his sergeant and that they were going to
record the officers. See Redmond Depo. 68:4-7.
Redmond then proceeded to record the exchange with the
officers on her cell phone while she and Evans were still in
the vehicle, resulting in a 40 second video. See ECF
130-1, Exh. E.
events that unfolded when the officers approached the car are
disputed. Defendants argue that it is undisputed that Redmond
“refused commands from Officer Pfiefer to exit the
car.” Mot. at 9. Redmond does testify that she heard
Officer Pfiefer say “open the door” when he
approached the driver side of her car. Redmond Depo. 95:4-7.
A reasonable jury could interpret the video of the incident
to confirm Redmond's account that she was only told to
open the door. See ECF 130-1, Exh. E. Redmond
further testifies that she did not recall hearing Officer
Pfiefer say anything else to her through the cracked window
on the driver's side of the car. Redmond Depo. 95:18-23.
Rather, she testifies that while Officer Diep was trying to
remove Evans from the car, Officer Pfiefer “was
attempting to break the window to retrieve me.” Redmond
Depo. 73:3-6. Redmond's testimony makes clear that
Officer Diep was the primary officer that she and Evans were
communicating with while they were in the car, because Diep
“was the only one trying to like get into the car or
who was able to get into the car.” 95:22-96:10.
to Redmond, Officers Diep and Blackerby eventually removed
Evans from the car, and Officer Pfiefer then moved from the
driver's side of the car to the passenger side.
Id. 101:3-5. Redmond testifies that from the
driver's seat, she looked through the back of her
windshield and saw that the officers were on top of Evans,
and she “wanted to record it, ” so she stepped
out of the car. Id. 101:20-102:4.
unsuccessfully attempt to persuade the Court that what
happened after Redmond got out of the car is also undisputed,
but calling the officers' version of events
“undisputed facts” does not make them so. Two
starkly different accounts emerge from the deposition
testimony. Although unbeknownst to Redmond, her phone had
stopped recording the incident and there is no video after
the initial 40 seconds of the exchange, corroboration is not
required to establish a genuine issue of material fact when
the issue is established by sworn testimony. See Fordyce
v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).
Pfiefer testifies that when Redmond got out of the car to
record the incident with Evans, he instructed her to back up
while she was advancing toward the officers. See
Pfiefer Depo.125:9-11. According to Officer Pfiefer, Redmond
responded, “fuck you, I'm recording this shit,
” and continued advancing toward the officers
“with her arm outstretched.” Id.
125:21-126:2. Officer Pfiefer then recalls giving her arrest
commands, instructing her to turn around and place her hands
behind her back. Id. He argued that she did not
comply with his commands, although he admits that she
“barely” moved backwards. Id. 126:4-7.
Redmond disputes Officer Pfiefer's account of their
interaction. When Redmond got out of the car to record the
incident, she testifies that she took only “two
steps” toward the back of the car before she
immediately started backtracking. See Redmond Depo.
103:14-17. At that point, Officer Pfiefer was already
charging at her. Id. 104:1-3. Redmond concedes that
Officer Pfiefer told her that she was under arrest, but she
did not hear any further commands from him because people in
the crowd that had gathered were yelling. Id.
113:14-19. She also recounts Officer Pfiefer's physical
contact with her, which is addressed more fully below in the
context of her excessive force claim. For purposes of the
First Amendment violation, it matters that Officer Pfiefer
attempted to grab her arm while she had her phone in her
hand, and believed she was recording the incident.
Id. 104: 23-105:25. Redmond testifies that when
Officer Pfiefer grabbed her phone, she “pulled it away
and said ‘I'm going to record this, ' with the
camera still facing him.” Id. 105:20-22. After
stepping on her foot, punching her in the face, and pulling
her back up from the ground by her hair, Officer Pfiefer
allegedly “grabbed [Redmond's] right arm which
still had [her] phone in it, and he wrenched it, at which
time [her] phone dropped.” Redmond Depo. 88:5-8.
on the divergent accounts offered by Officer Pfiefer and
Redmond, it is disputed whether Redmond was a suspect who was
interfering with the police officers' duties, or whether
she was merely a co-occupant of a vehicle who happened to
have a front row seat to the events that unfolded. A rational
jury could credit Redmond's testimony, as well as the
video evidence, and conclude that she was a passive onlooker
-albeit one who was dating the suspect - who got out of the
car to record the police encounter with her boyfriend. A
juror who accepted Redmond's testimony that Officer
Pfiefer immediately charged at her and tried to grab her
phone away from her could reasonably conclude that the
officer did so in order to stop her from recording the
incident. It is similarly disputed whether Redmond's
conduct posed a danger to the officers, and whether Officer
Pfiefer had probable cause to arrest her. Thus, Redmond has
submitted sufficient evidence on the first element of a
retaliation claim, that Redmond was engaged in
constitutionally protected activity, to defeat summary
do not challenge the second element of a retaliation claim.
Redmond testifies that Officer Pfiefer physically attacked
and arrested her while she was recording the officers. These
alleged actions would chill a person of ordinary firmness
from continuing to engage in the protected activity in the
future. See Ford v. City of Yakima, 706 F.3d 1188,
11983 (9th Cir. 2013).
do take aim at what they perceive to be Redmond's failure
to satisfy the “causation” requirement of her
First Amendment claim. See Mot. at 9-10. To succeed
on a retaliation claim, Redmond also must prove that Officer
Pfiefer's intent to inhibit her protected activity
(recording the officers) was a substantial or motivating
factor in his conduct. The standard requires Redmond to prove
“that [Officer Pfiefer's] desire to chill [her]
speech was a but-for cause of [his] allegedly unlawful
conduct.” See Ford v. City of Yakima, 706 F.3d
at 1193 (citing Lacey v. Maricopa County, 693 F.3d
896, 916-17 (9th Cir.2012) (en banc)).
argue that Officer Pfiefer's alleged interruption of
Redmond's videotaping was not the but-for cause of his
actions to grab her arm, arrest her, and take her into
custody. Instead, his conduct was motivated by
“numerous legitimate reasons.” See Mot.
at 10. The Court agrees with the legal standard cited by
Defendants, that if the plaintiff establishes the elements of
a retaliation claim, the defendant “can escape
liability by showing that it would have taken the same action
even in the absence of the protected conduct.”
Keyser v. Sacramento City Unified Sch. Dist., 265
F.3d 741, 750 (9th Cir. 2001). Yet the Ninth Circuit has also
made clear that Defendants must show more than that they
“could have” taken the actions in the absence of
protected speech. Defendants have the burden at trial to
establish that they would have taken the actions in
the absence of her recording the incident. Settlegoode v.
Portland Pub. Schs., 371 F.3d 503, 512 (9th Cir.2004);
accord Pinard, 467 F.3d at 770.
Court finds that Redmond's testimony, as well as the
video recording, constitute sufficient evidence on which a
reasonable jury could find that Officer Pfiefer acted with a
retaliatory motive. Defendants concede that Officer
Pfiefer's actions came close in time to Redmond's
attempt to videotape the officers who were struggling with
her boyfriend on the ground, but they argue that Redmond
fails to present any further evidence of retaliatory motive.
See Reply at 4. Viewing the evidence in
Redmond's favor, a reasonable juror could conclude that
her recording of the incident was the but-for cause of
Officer Pfiefer charging at her and grabbing her phone. She
testified that she immediately told the officers that she was
going to record them, and Officer Pfiefer proceeded to bang
on her window with his flashlight to try to get her out of
the car - which a reasonable jury could determine is
corroborated by the video evidence. Redmond further testifies
that Officer Pfiefer charged at her and grabbed her phone as
soon as she stepped out of her car to record the incident.
The Court rejects Defendants' characterization of the
facts as showing no more than that Redmond was simply
videotaping. See Reply at 5.
further argue that they have carried their burden on summary
judgment to demonstrate that Officer Pfiefer had
“numerous legitimate reasons” for physically
apprehending Redmond. If Officer Pfiefer would have taken his
actions even in the absence of her videotaping the events,
that destroys the causal connection between the alleged
unconstitutional motive and resulting harm. See
Reply at 3 (quoting McComas v. City of Rohnert Park,
2017 WL 1209934 (N.D. Cal. April 3, 2017)). But all of these
reasons are called into question by Redmond's account of
events. In other words, whether Officer Pfiefer acted with
the purpose of preventing Redmond's interference with the
officers, to promote officer safety, and to arrest a suspect
based on probable cause, hinges on whether the jury accepts
his version of events over Redmond's. See Hines v.
Gomez, 108 F.3d 265, 268 (9th Cir.1997) (holding that
circumstantial evidence of retaliation, combined with the
jury's rejection of the defendant's purported reason
for punishing the plaintiff, warranted the jury's finding
that the defendant took the action in retaliation for the
plaintiff's exercise of his rights).
accepting Defendants' argument on this point requires
accepting their version of the facts. Redmond's account
of the incident does not support the position that Officer
Pfiefer had legitimate reasons to arrest her and that he
would have done so if she was not recording them.
Court cannot resolve the factual disputes in the record in
favor of Officer Pfiefer at summary judgment. A genuine issue
of material fact exists as to whether Officer Pfiefer charged
at and arrested Redmond in an attempt to prevent her from
exercising her First Amendment right to record the police
officers who were struggling with Evans, after Redmond had
made her intention to record the officers clear from the
outset. Redmond testified that her physical struggle with
Officer Pfiefer involved numerous attempts by him to grab her
phone away from her while she pointed the camera at him, and
ultimately he caused her to drop the camera and prevented her
from recording the events. Officer Pfiefer may ultimately
prevail on his causation arguments, but at the very least,
“these claims merit a trial.” Fordyce,
55 F.3d at 439.
explained above, a reasonable jury could credit Redmond's
testimony and find that Officer Pfiefer violated her
constitutional rights. The Court next considers whether
Officer Pfiefer is nevertheless entitled to summary judgment
under the second prong of qualified immunity. Defendants
argue that the law was not clearly established that
Redmond-who they characterize as an active participant in the
incident-had a First Amendment right to record the officers
under these circumstances. Again, Defendants frame their
arguments using facts in the record that are disputed by
Redmond's testimony. Defendants argue that no clear law
“prohibits an officer from physically arresting a
person (which may incidentally prevent that person from
videotaping) who is actually involved in an incident and
who may be seen as interfering with the officers [sic]
duties, or in this case, who is seen as creating a safety
risk to other officers.” Reply at 5 (emphasis
added). The nature of Redmond's involvement, her
interference with the officers, and the safety risk she posed
to the officers are all questions of fact for the jury to
decide and do not appropriately guide the Court on qualified
summary judgment, the right in question under the second
prong of qualified immunity is framed by the plaintiff's
version of the facts, not the defendant's. See Torres
v. City of Los Angeles, 548 F.3d 1197, 1210 (9th Cir.
2008) (explaining that “defendants are only entitled to
qualified immunity as a matter of law if, taking the facts in
the light most favorable to [the plaintiff], they violated no
clearly established constitutional right”). Under
Redmond's version of the facts, the Court asks whether a
reasonable officer in Officer Pfiefer's position would
know that his conduct was unlawful under the circumstances.
See Saucier v. Katz, 533 U.S. 194, 201 (2001). The
Court therefore must credit Redmond's testimony that she
saw the police on top of her boyfriend, got out of the car to
record their arrest of Evans with her phone, informed the
officers that she was recording, and took merely two steps
toward the officers before she immediately backtracked.
Further, Redmond testifies that when Officer Pfiefer saw her
get out of the car to record the incident, he charged at her,
grabbed her phone away, and arrested her in an attempt to
stop her from recording. Under these circumstances, the law
was clearly established such that a reasonable officer would
be on notice that his conduct was unconstitutional.
April 17, 2013, the date of the incident in question, the
constitutional right to be free from retaliation while
recording police activity in a public place was clearly
established in the Ninth Circuit. Fordyce, 55 F.3d
at 439. This is because the First Amendment protects a
“right to film matters of public interest.”
Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th
Cir. 1995). A majority of other circuits agree. See Glik
v. Cunniffe, 655 F.3d 78, 83 (1st Cir. 2011) (holding
that “the First Amendment protects the filming of
government officials in public spaces.”); see also
Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.
2000) (“The First Amendment protects the right to
gather information about what public officials do on public
property, and specifically, a right to record matters of
public interest.”). Therefore, on the day in question,
Redmond had “a clearly established right to record
police officers carrying out their official duties.”
Crago v. Leonard, No. 13-cv-531, 2014 WL 3849954, at
*4 (E.D. Cal. Aug. 5, 2014), report and recommendation
adopted, 2014 WL 4435954 (E.D. Cal. Sept. 9, 2014);
see also Adkins v. Limtiaco, 537 Fed.Appx. 721, 722
(9th Cir. 2013) (unpublished) (right to photograph police
officers in a public place is clearly established).
crediting Defendants' contention that Officer Pfiefer had
non-retaliatory justifications to arrest Redmond for her
failure to obey his commands, the law is clearly established
in the Ninth Circuit that there is a right to be free from
retaliation even if the officer had probable cause to arrest.
See Skoog, 469 F.3d at 1235. Accepting, as the Court
must, Redmond's contention that Officer Pfiefer grabbed
her phone and punched her in an attempt to stop her from
recording, a reasonable officer would have known that he
cannot retaliate against a citizen for recording the police
in a public place, even if the officer was also acting to
protect the safety of officers or to arrest her based on
probable cause. See McComas, 2017 WL 1209934, at *7.
In light of Fordyce, which Redmond relies on in her
opposition, no reasonable officer under the circumstances
would believe that Officer Pfiefer's alleged actions were
lawful under the First Amendment. See also Glik v.
Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (affirming
district court's denial of qualified immunity on