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Redmond v. San Jose Police Department

United States District Court, N.D. California, San Jose Division

November 16, 2017

BLAIR REDMOND, Plaintiff,
v.
SAN JOSE POLICE DEPARTMENT, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [RE: ECF 130]

          BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE

         Plaintiff 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 resisting arrest.

         Redmond 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

         I. BACKGROUND[1]

         A. Events Preceding Redmond's Encounter with the Officers

         On 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 skateboard park.

         Officers 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.

         The 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.

         B. The Officers' Initial Exchange with Redmond and Evans

         Initially, 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.

         Officer 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 his lap.

         Officer 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.

         Meanwhile, 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, Exh. E.

         As soon 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.

         C. Redmond Gets Out of the Vehicle and is Arrested

         While 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.

         Officer 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.

         Redmond 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. Id.

         According 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 Depo 139:15-140:13.

         Once 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.

         Eventually, 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.

         D. Redmond's Claims against the City and the Officers

         Redmond 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.

         Redmond 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 law.[2] 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.

         Redmond 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.

         II. LEGAL STANDARD

         A. Summary Judgment

         “A 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 248-49.

         The 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).

         If the 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, 587 (1986)).

         B. Qualified Immunity

         “The 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)).

         In 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 restraint.

         The 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.

         III. DISCUSSION

         Defendants 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.

         A. Claims Against Officers Mishaga and Wong

         Officers 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.

         At the 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 GRANTED.

         B. Direct Liability for Constitutional Violations

         1. Retaliation Claim

         Redmond 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 Diep.

         a. Officer Pfiefer

         The 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.

         Although 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.

         i. Constitutional Violation

         The 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 Cir. 2006).

         Defendants 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.

         The 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 Officer Pfiefer.

         By way 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.

         The 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.

         According 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.

         Defendants 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).

         Officer 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.

         Unsurprisingly, 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.

         Based 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 judgment.

         Defendants 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).

         Defendants 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)).

         Defendants 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.

         The 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.

         Defendants 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).

         Again, 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.

         The 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.

         ii. Clearly Established

         As 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 immunity.

         On 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.

         As of 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).

         Even 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 ...


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