United States District Court, N.D. California
ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Re: Dkt. No. 51
Jacqueline Scott Corley United States Magistrate Judge.
Herrera brings this civil rights action against the City of
Fremont, Fremont Police Chief Richard Lucero, and several
individual officers following his arrest on May 14, 2017.
Plaintiff contends that officers violated his First, Fourth,
and Fourteenth amendments rights as well as his rights under
state law when they entered his home, detained, tased, and
arrested him while responding to a domestic disturbance call.
Defendants move for summary judgment. (Dkt. No. 51.) Having
considered the parties' arguments and having had the
benefit of oral argument on November 7, 2019, the Court
GRANTS IN PART and DENIES in part Defendants' motion for
summary judgment. Disputes of fact preclude summary judgment
on Plaintiff's excessive force claim against Officers
Gerber, Gigliotti, and Francisco. The motion is otherwise
Herrera and his long-time domestic partner Melissa (Monique)
Santellana hosted a Mother's Day barbeque at their
residence on May 14, 2017. (Dkt. No. 51-13 (Herrera Depo.) at
112:7-11; 116:6-20; Dkt. No. 62-3 (Santellana Depo.) at
11:1-13:5.) Both Mr. Herrera and Ms. Santellana's mothers
attended as did Ms. Santellana sixteen year-old sister,
Ellena, and Mr. Herrera's brother. (Dkt. No. 51-13 at
116:8-117:15.) Mr. Herrera and Ms. Santellana live with their
three minor children who were also present. (Id. at
123:19-20.) Over the course of the afternoon, Ms. Santellana
and her mother drank Jägermeister, and Mr. Herrera had a
couple of beers while he was barbequing and possibly some
Jägermeister. (Id. at 121:9-15; 122-3-24;
182:21-22.) At some point in the afternoon, Ms. Santellana
and Mr. Herrera got into an argument, which extended to
involve Ms. Santellana mother, and Mr. Herrera's mother.
Individual accounts of the dispute vary; however, the parties
agree that at some point Ellena called 911.
Gerber and Gigliotti were dispatched to the scene. (Dkt. No.
51-18 (Gigliotti Depo.) at 19:7-10; Dkt. No. 51-19 (Gerber
Depo.) at 19:9-11.) When the officers arrived at the scene,
Officer Gigliotti went to speak with Ellena and her mother
who were out front. (Dkt. No. 51-18 at 21:25-22:2.) While
Officer Gigliotti was speaking with Ellena and her mother,
Officer Gerber walked towards the backyard and observed a
shed with a broken door. (Dkt. No. 51-19 at 25:7-20.) The
officers then approached the house, knocked repeatedly, and
the door was ultimately opened by a woman who told them that
her son and a woman had been fighting. (Id. at
29:22-231 36:1-13; Dkt. No. 51-18 at 30:2-4.)
parties' versions of events after the officers entered
the house differ. The officers detained Mr. Herrera and in
the process of handcuffing him Officer Gerber deployed his
taser twice. The entire incident took under three minutes and
was recorded on a cellphone. (Dkt. No. 51-12 at Ex. P; Dkt.
No. 62-1 at Ex. L.) However, the cellphone video image is
intermittently obscured and does not show the tasing.
the officers handcuffed Mr. Herrera and led him out of the
house, he was taken and placed in a squad car. (Dkt. No.
51-18 at 74:4-10.) Upon his removal from the squad car, Mr.
Herrera testified that there was a second excessive force
incident when Officer Francisco attempted to choke him while
he was being transferred out of the handcuffs and into
four-point restraints on a gurney. (Dkt. No. No. 62-2 at
166:10-169:6.) Once he was restrained on the gurney, Mr.
Herrera was taken to Washington Hospital for evaluation.
(Dkt. No. 51-13 at 172:12- 18.) The taser prongs were removed
at the hospital and Officers Gerber and Gigliotti then
transported Mr. Herrera to Santa Rita Jail where he was
booked and charged with violation of California Penal Code
243(e)(1) and 148(a)(1). (Id. at 179:4-17,
180:13-14; Dkt. No. 51-18 at 75:22-23; Dkt. No. 62-10 at
The charges were ultimately dismissed. (Dkt. No. 62-2 at
filed this civil action one year later against the City of
Fremont, Fremont Police Chief Richard Lucero, Sergeant
Little, Officer Joseph Gigliotti, Officer Robert Gerber,
Officer Al Francisco, District Attorney James Meehan, and
Alameda County Sheriff's Office employee D. Skoldqvist.
He pleads 11 claims for relief: (1) violation of his First,
Fourth, and Fourteenth Amendment rights under 42 U.S.C.
§ 1983; (2) a Monell Section 1983 and
supervisory liability claim; (3) a Devereaux Section
1983 claim; (4) a malicious prosecution Section 1983 claim;
(5) violation of the California Constitution, Article I,
§ 13; (6) violation of California Civil Code §
52.1(b); (7) false arrest and false imprisonment; (8) assault
and battery; (9) negligence; (10) invasion of privacy; and
(11) intentional infliction of emotional distress. (Dkt. No.
1.) Plaintiff subsequently dismissed his claims against D.
Skoldqvist and James Meehan. (Dkt. No. 12.) Plaintiff also
dismissed his intentional infliction of emotional distress
claim and his wage loss and loss of income claims. (Dkt. Nos.
48 & 57.)
September 23, 2019, Defendants filed the underlying motion
for summary judgment. (Dkt. No. 51.) The motion is fully
briefed and came before the Court for a hearing on November
7, 2019. Trial is scheduled to commence January 27,
Plaintiff's Constitutional Claims
Plaintiff's Section 1983 Civil Rights Claim - First
first Section 1983 claim is predicated on a violation of his
First, Fourth, and Fourteenth Amendment Rights. Essentially,
Plaintiff alleges that Officers Gerber and Gigliotti
unlawfully entered his home, that he was searched and
arrested without probable cause, that the officers used
excessive force to effectuate his arrest, and that the
officers acted in retaliation for exercise of his First
Amendment rights. Plaintiff also alleges that Sergeant Little
unlawfully entered his home after his arrest. Finally,
Plaintiff alleges that Officer Francisco used excessive force
when restraining him on the gurney prior to his transport to
Washington Hospital for evaluation.
Plaintiff's Fourth Amendment - Warrantless Entry
undisputed that no warrant was obtained prior to the entry of
any officer into Plaintiff's home. Generally, “[a]
warrantless entry into a home violates the Fourth Amendment
unless an exception to the Fourth Amendment warrant
requirement applies, such as emergency, exigency, or
consent.” Espinosa v. City & Cty. of S.F.,
598 F.3d 528, 533 (9th Cir. 2010). Defendants bear the burden
of proving that their warrantless entry falls within an
exception to the warrant requirement. See Rodriguez v.
City of San Jose, 930 F.3d 1123, 1137 (9th Cir. 2019).
Officers Gerber and Gigliotti move for summary judgment on
the grounds that their entry was authorized under the
emergency exception and Sergeant Little insists that his
entry was justified under the emergency exception as well, or
alternatively, that there was implied consent for his entry.
Officers Gerber and Gigliotti's Entry
the emergency exception, “if a police officer, while
investigating within the scope necessary to respond to an
emergency, discovers evidence of illegal activity, that
evidence is admissible even if there was not probable cause
to believe that such evidence would have been found.”
United States v. Martinez, 406 F.3d 1160, 1164 (9th
Cir. 2005) (internal citation and quotation marks omitted).
The emergency exception to the warrant requirement contains
(1) The police must have reasonable grounds to believe that
there is an emergency at hand and an immediate need for their
assistance for the protection of life or property. (2) The
search must not be primarily motivated by intent to arrest
and seize evidence. (3) There must be some reasonable basis,
approximating probable cause, to associate the emergency with
the area or place to be searched.
Id. (internal citation and quotation marks omitted).
“The volatility of situations involving domestic
violence make them particularly well-suited for an
application of the emergency doctrine because [w]hen officers
respond to a domestic abuse call, they understand that
violence may be lurking and explode with little
warning.” Id. at 1164 (internal citation and
quotation marks omitted).
following facts are undisputed. Officers Gerber and Gigliotti
responded to a 911 call regarding a domestic violence
incident. (Dkt. No. 51-18 (Gigliotti Depo.) at 19:7-10; Dkt.
No. 51-19 (Gerber Depo.) at 19:9-11.) Dispatch advised the
officers that three adult Hispanic females and one adult
Hispanic male were fighting and that the reporting party
stated that her sister's boyfriend was “now trying
to hit her mom and the [reporting party].” (Dkt. No.
51-21 at 4:15-5:16.) The officers were also advised that the
boyfriend had been seen with a gun in the past. (Id.
at 5:18-20.) Upon their arrival at the house, Officer
Gigliotti spoke with the reporting party, Ellena, who stated
that there had been an argument between her sister and Mr.
Herrera and Mr. Herrera “was pushing her or pushing
people inside the house, ” and that her sister was
locked in a shed in the backyard “because she wanted to
stay away from Rudi.” (Dkt. No. 51-18 at 22:14-23:4.)
Ellena's mother told Officer Gigliotti that she was
concerned about the safety of the children in the house.
(Dkt. No. 62-5 at 20:10-12.) Officer Gigliotti approached the
house and attempted to look through the blinds which were
drawn and he could see what looked like people moving around
inside. (Dkt. No. 51-18 at 24:3-25.) Officer Gigliotti heard
crying and yelling, and Officer Gerber heard a
scream. (Dkt. No. 51-18 at 25:2-21; Dkt. No. 51-19
at 26:7-10.) The officers then repeatedly knocked on the
door, a woman opened the door, and she stated that her son
and a woman had been fighting. (Dkt. No. 51-18 at 34:8-17;
Dkt. No. 51-19 at 36:8-14; Dkt. No. 62-4 (Esperanza Herrera
Depo.) at 40:8-24.)
facts are sufficient to establish that the officers were
justified in entering the home without a warrant under the
emergency exception. First, there were reasonable grounds to
believe that an emergency was at hand and that people needed
immediate assistance. Second, there is no evidence that the
entry into the home was motivated by desire to conduct a
search or arrest as opposed to ensure the safety of the
reported victim and children that the officers were told were
in the residence. Third, given Ellena's statement that
the suspect was inside the house and that he had been seen
with a gun the past, her mother's statement that she was
worried for the safety of the children inside the house, Mr.
Herrera's mother's statement regarding the fight when
she opened the door, and that the officers did not know where
the alleged victim was, there was probable cause to associate
the emergency with the residence. Under these circumstances,
the officers had an “objectively reasonable basis for
believing that an actual or imminent injury was
unfolding in the place to be entered.” Bonivert v.
City of Clarkston, 883 F.3d 865, 877 (9th Cir. 2018)
(emphasis in original); see also Thomas v. Dillard,
818 F.3d 864, 882 (9th Cir. 2016), as amended (May 5, 2016)
(discussing that in domestic violence cases, the emergency
exception could justify a warrantless entry where the facts
suggested the situation was dangerous and uncertain).
responds that even if the emergency exception justified the
initial entry, the exception does not last indefinitely and
the officers unlawfully remained inside the residence.
Plaintiff maintains that “[u]pon the officers'
entry, there was no screaming or crying, the officers
observed no physical injuries on the individuals inside and
Plaintiff was kneeling on the ground with his back towards
them” such that it was apparent that there was not a
real emergency. (Dkt. No. 62 at 15:27-16:1.) However, audible
crying can be heard on the video when the officers entered
the house and the officers had not located Ms. Santellana
-the alleged victim. While the emergency exception does not
last indefinitely, it does last until the officers are able
to determine whether there is an emergency. See
Thomas, 818 F.3d at 883 (holding that based on
conversations the officer had with both parties to the
alleged domestic violence incident, a reasonable officer
could not have believed that an emergency existed such that
he was entitled to enter the home without a warrant); see
also United States v. Brooks, 367 F.3d 1128, 1137 (9th
Cir. 2004) (holding that exigent circumstances continued to
justify an officer's investigation of a domestic violence
incident even after victim told the officer she was unharmed
because domestic violence victims often deny abuse while the
abuser is present such that the officer's “decision
to stay and ask more questions was a reasonable police
procedure.”) Plaintiff has not offered any evidence to
support his theory that Officers Gerber and Gigliotti
continued their investigation inside the residence after his
arrest. See Keenan v. Allan, 91 F.3d 1275, 1278 (9th
Cir. 1996) (noting that it is not the court's task
“to scour the record in search of a genuine issue of
light of the undisputed facts, Officers Gerber and Gigliotti
have established that the emergency exception justified their
warrantless entry. At a minimum, the officers would at least
be entitled to qualified immunity given the absence of any
clearly established law saying that the emergency exception
to a warrantless entry does not apply where: an officer is
responding to a domestic violence call with a suspect who has
been seen with a gun in the past, the officer is told by the
reporting party (who is a minor) that the suspect hit her and
her mother, the officer is told by the reporting party's
mother that she is worried for the safety of the children in
the house with the suspect, and where the location of the
other alleged victim is unknown. Plaintiff's reliance on
Bonivert v. City of Clarkston, 883 F.3d 865, 877
(9th Cir. 2018), is misplaced as there, “there were
simply no circumstances pointing to an actual or imminent
injury inside the home” because “[b]y the time
the officers arrived, both [the victim] and the child were
safely outside, surrounded by four other adults intent on
protecting them from harm” and the officers had radioed
dispatch to say there were no problems and everyone was safe.
The undisputed facts here are to the contrary; in particular,
Ms. Santellana's mother told the officers that she was
concerned about the safety of the children inside with
Plaintiff. No case holds, or even suggests, that officers
cannot enter a home under the emergency exception when a
domestic violence suspect is inside the home with children
and a reporting party states her concern for the children.
Officers Gerber and Gigliotti are entitled to summary
judgment on the warrantless entry claim.
Sergeant Little's Entry
Plaintiff's arrest, Sergeant Little arrived at the scene
and entered Plaintiff's home as part of his post-incident
investigation. Plaintiff insists that Sergeant Little's
entry was unlawful because he never consented to Sergeant
Little's entry into his home and any third-party consent
was tainted by the officers' underlying illegal conduct.
Sergeant Little counters that his entry was justified because
the emergency exception was ongoing, he had implied consent
to enter, no one asked him to leave, and he did not conduct
any searches inside the house.
noted above, warrantless entries into a home “are
presumptively unreasonable.” Payton v. New
York, 445 U.S. 573, 587 (1980); see also
Bonivert, 883 F.3d at 874 (“there is no talismanic
distinction, for Fourth Amendment purposes, between a
warrantless entry and a warrantless search. The two
intrusions share this fundamental characteristic: the breach
of the entrance to an individual's home.”)
(internal citation and quotation marks omitted). In addition
to the emergency exception, “[t]he Fourth Amendment
recognizes a valid warrantless entry and search of premises
when police obtain the voluntary consent of an occupant who
shares, or is reasonably believed to share, authority over
the area in common with a co-occupant who later objects to
the use of evidence so obtained.” Georgia v.
Randolph, 547 U.S. 103, 106 (2006).
the party moving for summary judgment-bear the burden of
offering evidence to negate Plaintiff's warrantless entry
claim. The only evidence regarding Sergeant Little's
presence in the house is his declaration testimony that he
arrived at the scene to conduct a use of force/administrative
investigation while Officers Gigliotti and Gerber were still
conducting their investigation. (Dkt. No. 51-1 at
¶¶ 6-10.) When he arrived, Officers Gigliotti and
Gerber gave him a briefing of what had occurred inside the
house. (Id. at ¶ 8.) They were still conducting
their investigation into the domestic disturbance call and
interviewing witnesses. (Id. at ¶ 9.) Sergeant
Little attests that “[w]e were still in the process of
making sure everyone was safe and nobody needed medical
attention.” (Id.) As part of his
investigation, Sergeant Little conducted interviews of
witnesses inside and outside the home and no one asked him to
leave. (Id. at ¶ 11.) He did not conduct any
searches while he was inside the house. (Id. at
¶ 12.) These facts, though not in dispute, are
insufficient to meet Defendants' burden of showing that
either the emergency or consent exceptions apply to justify
Sergeant Little's warrantless entry.
even assuming that Sergeant Little violated Plaintiff's
constitutional rights through his entry, he is entitled to
qualified immunity. “In determining whether an officer
is entitled to qualified immunity, we consider (1) whether
there has been a violation of a constitutional right; and (2)
whether that right was clearly established at the time of the
officer's alleged misconduct.” Lal v.
California, 746 F.3d 1112, 1116 (9th Cir. 2014). Here,
the Court has concluded that Sergeant Little has not shown as
a matter of law that he did not violate Plaintiff's
constitutional rights through his warrantless entry into the
home; thus, the dispositive question is whether that right
was clearly established.
established law [is not to be defined] at a high level of
generality.” Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011). Instead, in deciding whether a
constitutional right was clearly established at the time of
the alleged violation, a court must ask “whether the
violative nature of particular conduct is clearly
established.” Id. (emphasis added). “The
plaintiff bears the burden to show that the contours of the
right were clearly established.” Clairmont v. Sound
Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011).
“This inquiry, it is vital to note, must be undertaken
in light of the specific context of the case, not as a broad
general proposition.” Saucier v. Katz, 533
U.S. 194, 201 (2001), overruled on other grounds by
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“Although this Court's caselaw does not require a
case directly on point for a right to be clearly established,
existing precedent must have placed the statutory or
constitutional question beyond debate.” Kisela v.
Hughes, __ U.S. __, 138 S.Ct. 1148, 1152 (2018).
Qualified “immunity protects all but the plainly
incompetent or those who knowingly violate the law.”
has pointed to no case-other than Bonivert-as
establishing that the law was clearly established that the
emergency exception does not cover a supervisor's entry
into a home as part of an ongoing investigation into a
domestic violence situation involving his subordinate
officers who are still in the process of interviewing
witnesses and victims and securing the scene.
Bonivert, however, is distinguishable for the
reasons stated above-while Sergeant Little arrived after
Plaintiff had been arrested, he attests that the officers
were still in the process of making sure everyone was safe
and nobody needed medical attention and thus the emergency
was still arguably ongoing. Sergeant Little is entitled to
qualified immunity unless “in the light of pre-existing
law the unlawfulness [of his entry] must be ...