United States District Court, S.D. California
ORDER DENYING DEPUTY FRANK LEYVA'S AND DEPUTY
KENNETH EDWARDS' MOTION FOR SUMMARY JUDGMENT, OR IN THE
ALTERNATIVE, FOR SUMMARY ADJUDICATION
JEFFREY T. MILLER, UNITED STATES DISTRICT JUDGE
In this
civil rights action under 42 U.S.C. § 1983, Plaintiff
Suzanne Steinmeier (“Plaintiff”) alleges San
Diego County Sheriff's Deputies Frank Leyva and Kenneth
Edwards (“the Deputies”) used excessive force in
violation of her Fourth Amendment rights when they struck her
multiple times after she kicked a police dog that was biting
her wife. The Deputies now move for summary judgment. (Doc.
No. 34.) The motion has been fully briefed and the court
finds it suitable for submission on the papers and without
oral argument in accordance with Civil Local Rule 7.1(d)(1).
For the below reasons, the motion is DENIED.
I.
FACTUAL BACKGROUND
The
parties do not dispute that on the evening of April 27, 2015,
Plaintiff was driving in Riverside County with her wife,
Michelle Rivera (“Rivera”), as a passenger. After
being pulled over by a California Highway Patrol (CHP)
officer for a broken side mirror, they were informed they
both had felony warrants and would be arrested. Plaintiff
drove away from the scene and CHP Officers and San Diego
County Sheriff's Deputies pursued. A police helicopter
joined the chase. Plaintiff sped, ran stop lights, and drove
on the wrong side of the road. The vehicle pursuit lasted
over 45 minutes. Plaintiff eventually stopped the vehicle on
a rural road near where she and Rivera lived. They exited the
vehicle, slid down a hill into a dry riverbed, and walked and
ran along the riverbed for eight minutes until they stopped
and laid down on their backs under some trees. The riverbed
into which they fled was dark and rugged. They could be seen,
however, by the helicopter crew using night-vision equipment.
The helicopter crew advised the officers on the ground as to
the suspects' movements and location. Plaintiff and
Rivera laid underneath the trees for 22 minutes until the
Deputies reached them. At this point, the parties'
accounts diverge.
1.
Plaintiff's Account
According
to Plaintiff, while lying on her back, she saw a flashlight
and immediately put her hands up. (Doc. No. 43 at 79:7-8,
91:1-6, 109:6-11.) The officer holding the flashlight was a
“few feet” in front of her. (Id. at
69:12.) Right after seeing the flashlight, she saw a dog
about ten feet away from her feet, (id. at 70:1-2,
12-14; 71:3-12), but it ran past her, (id. at
71:2-5). Plaintiff understood the dog was trying to locate
her. (Id. at 70:18-24.) The dog went back to the
handler and sat down at the officer's feet. (Id.
at 72: 6-10, 17-18.) The dog looked up at the handler like
the dog had done something good. (Id. at 109:18-19.)
Plaintiff saw the handler staring at them.[1] (Id. at
72:23.) She and Rivera had their hands up and said, “we
surrender.” (Id. at 73:1-10.) The police were
“already around” them. (Id. at 109:13.)
She was illuminated by multiple flashlights and there were no
bushes or boulders between her and the officers.
(Id. at 72:11-14, 93:2-9.) The dog was
“re-released, ” (id. at 73:12,
108:3-14), and began biting Rivera on her inner thigh,
(id. at 72:15-16), but at that point Plaintiff did
not attempt to assist Rivera.[2] (Id. at 73:22-24.) The
police “may have” said something prior to the
bite. (Doc. No. 34-9 at 55-56.) While handcuffed or while
being handcuffed, Plaintiff kicked the dog about three or
four times. (Doc. No. 43 at 74:2-20.) The dog handler did not
say anything to Plaintiff. (Id. at 75:2-4.) She then
got flipped over onto her stomach. (Id. at 75:7.)
After being handcuffed, she was hit on her back and head
multiple times with a fist and an object that she believed
was a flashlight. (Id. at 76:1-9.) Plaintiff also
claims that at some point Deputy Leyva said,
“that's what you get, you dyke bitch.” (Doc.
No. 43 at 77:9-15.)
2.
The Deputies' Accounts
According
to Deputy Leyva, when he and his police dog Bary
(“Bary”) arrived on the scene, he was informed
that two suspects were lying down somewhere in the dark
riverbed area. (Doc. No. 34-9 at 96:2-7.) He was aware the
suspects had felony arrest warrants and had just led police
on a lengthy chase. (Id. at 98:4-9.) He was not
familiar with the area, (id. at 108:5-12), but knew
the suspects were familiar with the area, (Doc. No. 34-3 at
3:11-13). At the beginning of his search, before entering the
dark riverbed, he yelled for the suspects to come out or they
would be bitten. (Doc. No. 34-9 at 111:15-112:14.) After
walking a “good distance, ” (id. at
114:16-20), the helicopter guided him to the “general
area” of the suspects, (id. at 100:16-17,
114:20). Deputy Leyva claims he saw “silhouettes”
and “figures or whatever.”[3] (Id. at
102:14-17; 116:19-20.) He did not have his flashlight out,
but could see despite the darkness because there were five or
six officers behind him with flashlights.[4] (Id. at
110:16-17.) There were bushes, rocks, branches, foliage and a
small hill obstructing his view. (Id. at
114:21-115:20.)
When
Deputy Leyva saw the figures or silhouettes, he pointed in
that direction and gave Bary an apprehension command.
(Id. at 116:21-23.) Deputy Leyva then saw Bary
biting Rivera and saw Plaintiff kicking Bary. (Doc. 34-9 at
122.) He heard Plaintiff yelling at him to get the dog off
her. (Id.) He twice told her to stop kicking his
dog, but she did not obey. (Id.) Neither suspect was
handcuffed at that point. (Id.) Deputy Leyva
testified that he lunged forward on top of Plaintiff and hit
her in the face.[5] (Id. at 123.) When he struck her,
she stopped kicking Bary because it pushed her away just
slightly. (Id.) He then glanced over and saw
uniforms to his right, and got off Plaintiff because he
wanted to grab Bary and get him off Rivera. (Id.)
The other deputies were trying to get Plaintiff secured in
handcuffs. (Id.) Deputy Leyva testified he did not
remember seeing her hands, (id. at 124), but in a
subsequent declaration, he stated he could not see her right
hand. (Doc. No. 34-3 at 4:14.)
According
to Deputy Edwards, he was following 20 to 30 feet behind
Deputy Leyva with his flashlight on. (Doc. No. 34-9 at
138:13-16.) He heard Bary barking and a female screaming and
ran over to the area. (Id. at 157:7-9.) He saw Bary
biting Rivera and Deputy Leyva on top of Plaintiff while both
suspects were on their backs. (Id. at 139.)
Plaintiff was trying to kick Bary, and Deputy Leyva was
yelling to get off the dog. (Id. at 140:1-2.) Deputy
Edwards told Deputy Leyva to get off Plaintiff so that Deputy
Leyva could get Bary. (Id. at 142:7-9.) When Deputy
Leyva got off the Plaintiff, she flipped over onto her
stomach and Deputy Edwards jumped on her. (Id. at
142:13-15, 158:4-7.) Deputy Edwards recognized Plaintiff from
her warrant photo and told her to put her hands behind her
back, but she did not comply. (Id. at 142:22-143:7.)
Deputy Edwards claims she put her hands in her waistband.
(Id. at 158:6-7.) He struck her with his flashlight
in the right shoulder area. (Id. at 144:2-9.) She
did not comply. (Doc. No. 34-2 at 4:25-5:2.) He struck her
three more times. (Id. at 5:1-2.) He and another
Deputy then handcuffed Plaintiff. (Doc. No. 34-9 at
141:10-12.)
II.
PROCEDURAL HISTORY
On
March 24, 2017, Plaintiff and Rivera filed a complaint in
state court under 42 U.S.C. § 1983 alleging violation of
their Fourth Amendment right to be free from excessive force
by police.[6] (Doc. No. 1-3.) As Defendants, she named:
(1) the County of San Diego; (2) the San Diego County
Sheriff's Department; (3) Sheriff William Gore; (4)
Deputy Leyva; (5) Deputy Edwards; (6) Deputy Peter Alvarado;
and (6) and Does 1 through 10, in both their individual and
official capacities. (Doc. No. 1 at 2, 1-5 at 4.) Rivera
subsequently dismissed her claims against all Defendants on
July 24, 2017. (Doc. o. 1-5 at 98-100.) Rivera was thus
voluntarily dismissed from the action without prejudice,
leaving Steinmeier as the only Plaintiff. (Id.) On
June 12, 2018, Plaintiff amended the Complaint by identifying
CHP Officers Brian Keene as Doe 1, (Doc. No. 1-3 at 4), and
Willis Whited as Doe 2, (Doc. No. 1-4). Keene and Whited
removed this action to federal court on July 16, 2018. (Doc.
No. 1.) On August 29, 2019, Deputies Leyva and Edwards filed
the instant motion for summary judgment. (Doc. No. 34-1.)
Plaintiff filed a response in opposition on September 16,
2019, (Doc. No. 42), and Defendants filed a reply on
September 23, 2019, (Doc. No. 46).
III.
LEGAL STANDARD
A
motion for summary judgment shall be granted where
“there is no genuine issue as to any material fact and
. . . . the moving party is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(c). The moving party bears the
initial burden of informing the court of the basis for its
motion and identifying those portions of the record
demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The court must examine the evidence in the light most
favorable to the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt as to
the existence of any issue of material fact requires denial
of the motion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). “A material issue of fact is one
that affects the outcome of the litigation and requires a
trial to resolve the parties' differing versions of the
truth.” SEC v. Seaboard, 677 F.2d 1301, 1306
(9th Cir. 1982). Summary judgment can only be entered
“if, under the governing law, there can be but one
reasonable conclusion as to the verdict.”
Anderson, 477 U.S. at 250. The court may not weigh
evidence or make credibility determinations. Berg v.
Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986).
IV.
DISCUSSION
Constitutional
violations by persons acting under the color of state law may
be redressed by bringing suit in federal court under 42
U.S.C. § 1983. Gomez v. Toledo, 446 U.S. 635,
639 (1980). In a section 1983 claim, the plaintiff must show
(1) the action occurred “under color of state law,
” and (2) resulted in the deprivation of rights under
the Constitution or federal statute. Leer v. Murphy,
844 F.2d 628, 632-33 (9th Cir. 1988) (citations omitted).
Under
the Fourth Amendment, the force used by police must be
objectively reasonable when considering the totality of the
circumstances. Tennessee v. Garner, 471 U.S. 1, 7-8
(1985). The objective reasonableness of the force involves a
three-part inquiry. Graham v. Connor, 490 U.S. 386,
396 (1989). The court should first examine the type and
amount of force used, then assess the government's
interests in using the force by looking at “(1) the
severity of the crime at issue, (2) whether the suspect posed
an immediate threat to the safety of the officers or others,
and (3) whether the suspect actively resisted arrest or
attempted to escape.” Maxwell v. Cty. of San
Diego, 697 F.3d 941, 951 (9th Cir. 2012). These factors
are non-exhaustive. Id. The third step is to balance
the degree of force against the government interest at stake
to determine if the force used was “greater than is
reasonable under the circumstance.” Santos v.
Gates, 287 F.3d 846, 854 (9th Cir. 2002). “The
reasonableness of a particular use of force must be judged
from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396. This determination is
“ordinarily a question of fact for the jury.”
Liston v. County of Riverside, 120 F.3d 965, 976
(9th Cir. 1997). Accordingly, in excessive force cases,
“summary judgment should be granted sparingly.”
Maxwell, 697 F.3d at 951; see also Estate of
Lopez by & through Lopez v. Gelhaus, 871 F.3d 998,
1006 (9th Cir. 2017); Gonzalez v. City of Anaheim,
747 F.3d 789, 795 (9th Cir. 2014) (en banc). For the below
reasons, summary judgment cannot be granted because genuine
disputes of material fact exist.
A.
Genuine Disputes of Material Fact
As
discussed above, the parties offer starkly different accounts
of what transpired the night of April 27, 2015 during the
critical few seconds when Plaintiff and Rivera were
apprehended. These differing accounts raise several genuine
disputes of material fact. First, the parties dispute whether
Plaintiff and Rivera had visibly surrendered prior to Deputy
Leyva commanding Bary to apprehend them. Plaintiff claims
that Deputy Leyva commanded Bary to attack even though Deputy
Leyva saw they were lying down, with their hands raised, and
they said, “we surrender.” (Doc. No. 42 at 7-9.)
Plaintiff testified that she saw Deputy Leyva staring at
them. (Doc. No. 43 at 72:23.) The video also shows that
before Bary bit Rivera, one officer was only a few feet away
from the suspects and another officer was close by. In
contrast, Deputy Leyva claims that when he gave Bary the
apprehension command, he saw “two silhouettes laying in
the brush underneath a tree, ” but never had a
“clear visual” of the silhouettes because it was
dark. (Doc. No. 34-1 at 11-12.) He denies the suspects were
illuminated by flashlights or that he saw or heard them
surrender.[7] (Doc. No. 34-3 at 4:9-10.)
Second,
the parties dispute when Plaintiff was handcuffed and when
force was used. Plaintiff claims she was struck
after being handcuffed and placed on her
stomach.[8] (Doc. No. 43 at 75:2-4, 75:7, 76:1-9,
81:16:23.) In contrast, Deputy Leyva claims he punched
Plaintiff while she was on her back, while she was kicking
Bary, after he repeatedly told her to stop, before he could
see her right hand, and before she was handcuffed. (Doc. No.
34-3 at 4:13-18.) Deputy Edwards claims he struck Plaintiff
while she was on her stomach with her hand in her waistband,
before she was handcuffed, and after she repeatedly refused
his commands to show him her hands. (Doc. No. 34-2 at
4:25-5:2.)
Third,
the parties dispute what force was used. As noted above,
Deputy Leyva admits he punched Plaintiff once on the right
cheek, (Doc. No. 34-3 at 4:13-18), and Deputy Edwards admits
he hit Plaintiff four times with his flashlight in the right
shoulder area, (Doc. No. 34-2 at 4:25-5:2.) In contrast,
Plaintiff initially claimed she was hit with the flashlight
between 10 and 20 times. (Doc. No. 43 at 76:10-11.) Plaintiff
does not claim she was hit in the face. (Doc. No. 42 at
11:27.) Plaintiff later testified that after she was rolled
onto her stomach she felt “like dumps, like hits or
whatever” on her head and neck area. (Doc. No. 46-3 at
9-10.) She did not know the number of times she was hit on
her head and back area, but stated that it was “a
few” and “less than 10 maybe.”
(Id. at 10:8-9.) She then stated that “it
might have been” the 10 to 20 number she previously
stated, (id. at 10:11-22), but went back and forth
about whether her previous testimony that she was hit 10 to
20 times was accurate, stating:
I don't know if it's incorrect. I feel different. I
don't think that now. I think it's less. . . . I
think the number I may have given was - sounded like way -
and like too much, but - not that I was doing anything like
on purpose. I just don't - I don't remember, you
...