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Henneberry v. City of Newark

United States District Court, N.D. California

September 4, 2019

CITY OF NEWARK, et al., Defendants.




         Plaintiff John Patrick Henneberry brings this civil rights action for claims arising from his 2013 arrest and incarceration. After the Court granted summary judgment in part, two claims remain pending: (1) a First Amendment retaliation claim against Defendant Karl Fredstrom, the City of Newark police officer that arrested him; and (2) a claim under the Bane Act, Cal. Civ. Code § 52.1, against Fredstrom and Defendant City of Newark (together, “Defendants”). Order re: Mot. for Summ. J. (“MSJ Order”), ECF No. 98. The case was scheduled for a jury trial in September 2019; however, on May 28, 2019, the Supreme Court issued its decision in Nieves v. Bartlett, in which it held: “The plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest.” 139 S.Ct. 1715, 1724 (2019). Based on Nieves, the Court vacated the trial and ordered Defendants to file a renewed motion for summary judgment. Now pending before the Court is Defendants' renewed motion. ECF No. 224. Henneberry filed an Opposition (ECF No. 227) and Defendants filed a Reply (ECF No. 230). The Court finds this motion suitable for disposition without oral argument and VACATES the September 12, 2019 hearing. See Civ. L.R. 7-1(b). Having considered the parties' positions, relevant legal authority, and the record in this case, the Court DENIES Defendants' motion for the following reasons.


         A. Factual Background

         For several years leading up to the events at issue in this lawsuit, Henneberry attended every City Council meeting held by the City of Newark. Henneberry Decl. ¶ 2, ECF No. 90-1. During these meetings and at other times, he actively participated in Newark City politics, criticizing the salaries of City officials and their decisions to curtail public services. Id. ¶¶ 2-8, 18. As a result of his frequent and vocal participation at City Council meetings, Henneberry was well known to Defendants Jon Becker (Newark's City Manager), Officer Fredstrom, and Linda Ashley (Newark Chamber of Commerce President). Becker Decl. ¶ 6, ECF No. 89-3; Huang Decl. Ex. D (Ashley Dep.) at 39:16-43:25, ECF No. 90-2; id., Ex. C (Fredstrom Dep.) at 22:6-18, 24:24-25:13, ECF No. 90-2. They and other Newark City officials felt Henneberry was disruptive and complained too much. Ashley Dep. at 39:16-41:24 (describing prior interactions with Henneberry), 42:8-43:25 (Ashley had discussed Henneberry with “a large portion of” the members of the City of Newark, including Becker: the gist of those conversations was that “it was hurtful what Henneberry did to people at the council meetings”); Thornton Decl. Ex. B (Defs.' Ashley Dep.) at 90:15-25, ECF No. 89-1 (Henneberry “has a history of calling the Mayor Hitler, of cussing at him, at cussing at the other council members, at City staff, me. And when you create a pattern, you expect that pattern to continue. And we had every reason to believe he would do it again and no reason to belief he wouldn't.”); Fredstrom Dep. at 22:5-25:16 (recognized Henneberry's name from prior council and planning meetings where he was disruptive and “very loud”).

         Henneberry saw advertisements about an upcoming State of the City address to be held on April 18, 2013 at a Hilton Hotel in Newark (the “Event”). Henneberry Decl. ¶ 13; see also Becker Decl. ¶ 3; Fredstrom Decl. ¶ 4, ECF No. 89-3. He looked up further information about the Event online and was directed to a “Community Events” page on the City of Newark Chamber of Commerce website. Henneberry Decl. ¶¶ 13-14 & Ex. A. The webpage made no mention of reservations being required, did not state the Event was private or indicate the Chamber of Commerce was hosting the Event, and stated there “will be gallery seating for those who do not attend the luncheon.” Id. ¶ 14 & Ex. A. He also clicked a link on the Community Events page that directed him to a flyer for the Event, which bore the Newark Chamber of Commerce's and the City of Newark's logos and the title “2013 State of the City Address & Showcase Mayor Al Nagy.” Id. ¶¶ 14-15 & Ex. B. The flyer stated, “Registration & Networking Showcase Open (lunch ticket not req.)” and “Gallery Seating Open (no charge).” Id., Ex. B. It described “New Sponsor Opportunities!” and listed fees associated with different levels of sponsorship; the lower half of the flyer allowed attendees to reserve showcase space and order lunch. Id. The flyer also stated “[r]eservations are required by April 16” and directed attendees to pay the Chamber of Commerce online or by mail. Id.

         At 12:05 p.m. on April 18, 2013, Henneberry arrived at the Event. Henneberry Decl. ¶ 16. He waited in the lobby, filled out a nametag he found at an unstaffed table, helped latecomers fill out nametags, asked them if they were registered to vote, and directed them to the event room. Id. ¶ 17. Just before 12:30 p.m., he entered the ballroom, where the Event was taking place; he was not asked whether he had a reservation. Id. ¶¶ 18-19. He sat in the back row of the gallery section of the ballroom. Id.; see also Defs.' Ashley Dep. at 60:2-14. Henneberry wrote on a pad of paper and did not say a word. Henneberry Decl. ¶ 20.

         After spotting Henneberry, Becker found Ashley and told her he did not want Henneberry “embarrassing the Mayor” and asking whether there was “some reason why he shouldn't be here.” Defs.' Ashley Dep. at 55:6-9, 58:18-59:23; see also Becker Decl. ¶¶ 6-7. Ashley told Becker that Henneberry did not have a reservation, stated “we don't let anybody in who doesn't have a reservation, ” and assured Becker she would “take care of it.” Defs.' Ashley Dep. at 55:6-9, 94:5-13; see also Becker Decl. ¶¶ 7-8 (“Ms. Ashley confirmed that Henneberry did not have a reservation for the Event, and that any person who did not have a reservation was not permitted at the Event. Ms. Ashley then told me that she would take care of the situation, and she walked over to Henneberry.”). Within a few minutes of Henneberry sitting down in the gallery, Ashley informed him he needed to leave because he had not made a reservation. Defs.' Ashley Dep. at 59:22-25; Henneberry Decl. ¶ 20. Ashley did not check whether persons in the gallery had reservations until Becker noticed Henneberry in attendance. Defs.' Ashley Dep. at 51:10-55:5.

         Henneberry declined to leave because “[h]e had every right to be there.” Id. at 61:8-9. Ashley replied the Event was not a public event as it was run by the Chamber of Commerce and he did not have a right to be there because he did not make a reservation. Id. at 61:10-15; 80:10-13; Henneberry Decl. ¶ 20; see also Becker Decl. ¶ 5 (The Event “was not a City of Newark event. I did not have control over who was permitted to attend the event.”). Henneberry explained that he was entitled to attend the meeting under the Brown Act.[1] Defs.' Ashley Dep. at 61:17-20; Henneberry Decl. ¶ 20. At some point, Fredstrom and Newark Police Officer Renny Lawson joined Ashley. Defs.' Ashley Dep. at 61:25-15. Fredstrom was dispatched to the Event “because there was some type of disturbance involving Mr. Henneberry.” Thornton Decl., Ex. A (Defs.' Fredstrom Dep.) at 20:5-21:6, ECF No. 89-1. Ashley informed the officers that Henneberry did not have a reservation and she had asked him to leave, but that he refused to do so. Id. at 67:3-12; Lawson Decl. ¶ 4, ECF No. 89-4.

         There is no dispute that Henneberry refused to leave after being asked to do so, but there is no evidence he was loud, used inappropriate language, was confrontational, or abusive. Defs.' Fredstrom Dep. at 103:1-105:22; Henneberry Decl. ¶ 20. There is also no dispute that, while Henneberry was seated, Fredstrom and Lawson grabbed him by the hands and arms and escorted him out of the building using a rear wrist lock. Defs.' Fredstrom Dep. at 38:16-40:21 & Ex. A (Incident Report) at 6. When Fredstrom asked Lawson whether he wanted Henneberry detained, Lawson responded affirmatively. Defs.' Fredstrom Dep. at 40:22-41:7 & Incident Report at 6. At this point, Fredstrom handcuffed Henneberry and placed him in a patrol car. Incident Report at 6. Fredstrom then returned to the conference to investigate the incident. Id. Henneberry was kept in the patrol car for 30-45 minutes while Fredstrom conducted his investigation. Henneberry Decl. ¶ 22.

         Fredstrom took statements from Ashley and several other witnesses who reiterated that they had told Henneberry or had overheard him being told that the Event was private and not open to the public, and that Ashley had asked him to leave but he refused. See Incident Report at 6-9. One of the witnesses Fredstrom interviewed was Defendant David Benoun, Newark's City Attorney, who

told me that Linda Ashley had come up to him and said that Mr. Henneberry was at the event and that Henneberry was claiming a violation of the Brown Act. Benoun said that Ashley told him that if Henneberry was to be removed, that Henneberry wanted to speak to the city attorney. Benoun agreed and spoke with Henneberry. Benoun . . . advised Henneberry that this was a private affair, has nothing to do with the city, it's a [Chamber of Commerce] event and that if they ask you to leave, it is within their rights.

Id. at 8. Fredstrom determined he had probable cause to arrest Henneberry for trespassing based on his investigation. Defs.' Fredstrom Dep. at 61:22-62:1. Fredstrom also believed the arrest was supported by Ashley's willingness to sign a Citizen's Arrest form. Id. at 62:2-63:9, 73:20-75:12.

         By the time Fredstrom drove Henneberry to the Newark Police Department, the Event was over, as evidenced by the fact that people were leaving. Henneberry Decl. ¶ 22. Fredstrom continued to interview him at the police station. Defs.' Fredstrom Dep. at 75:13-19; Henneberry Decl. ¶ 23. Fredstrom arrested Henneberry for violating California Penal Code section 602.1(a).[2]See Huang Decl. Ex. A (Consolidated Arrest Report). Fredstrom made the decision not to “field cite” him at the Newark Police Station. Defs.' Fredstrom Dep. at 94:25-95:5, 95:10-15 (Newark Police Department policy allows officers either to issue a citation and release somebody from the scene under certain circumstances, or to transport the person to Fremont Jail and have them issue a citation and release the subject after booking). At 2:54 p.m., Fredstrom left the police station to transport Henneberry to the Fremont City Jail. Id. at 88:1-13. Persons booked at the Fremont jail are eligible for “cite and release, ” and Fredstrom intended to tell the officers booking Henneberry at Fremont City Jail that he was eligible for immediate release and citation. Id. at 91:20-93:2. The cite and release process can take anywhere from 10 minute to hours, depending on how many people are waiting to be booked. Id. at 93:21-94:2. But when they arrived at Fremont Jail, Fredstrom was ordered to take Henneberry and another arrestee to Santa Rita Jail. Id. at 91:12-19, 94:14-16.

         Henneberry was booked into Santa Rita Jail where, instead of being cited and released, he was held for more than 30 hours. Henneberry Decl. ¶ 24. As a result of this experience, he has drastically reduced his participation in local ...

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