United States District Court, N.D. California
ORDER DENYING DEFENDANTS' RENEWED MOTION FOR
SUMMARY JUDGMENT RE: DKT. NO. 224
S. HIXSON UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.
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.
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
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.
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.
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.
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).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.
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 ...