Herrera v. City of Fremont

          ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 51

          Jacqueline Scott Corley United States Magistrate Judge.

         Rudi 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.^[1] (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 granted.

         SUMMARY JUDGMENT EVIDENCE

         Rudi 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.

         Officers 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.)

         The 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.

         After 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 15.^[2]) The charges were ultimately dismissed. (Dkt. No. 62-2 at ¶ 2.)

         PROCEDURAL BACKGROUND

         Plaintiff 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.)

         On 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.^[3] Trial is scheduled to commence January 27, 2019.

         DISCUSSION

         I. Plaintiff's Constitutional Claims

         A. Plaintiff's Section 1983 Civil Rights Claim - First Claim

         Plaintiff's 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.

         1. Plaintiff's Fourth Amendment - Warrantless Entry Claim

         It is 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.

         a) Officers Gerber and Gigliotti's Entry

         Under 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 three requirements:

(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).

         The 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.^[4] (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.)

         These 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.^[5] 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).

         Plaintiff 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 triable fact.”).

         In 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.

         Accordingly, Officers Gerber and Gigliotti are entitled to summary judgment on the warrantless entry claim.

         b) Sergeant Little's Entry

         Following 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.

         As 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).

         Defendants-as 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.

         However, 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.

         “[C]learly 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.” Id

         Plaintiff 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 ...