Mann v. City of Sacramento

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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12 ROBERT MANN, SR., et al. No. 2:17-cv-01201 WBS DB

13 Plaintiffs,

14 v. ORDER RE: DEFENDANTS’ AMENDED

MOTION TO DISMISS

15 CITY OF SACRAMENTO, et al.

16 Defendants.

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19 Plaintiffs Robert Mann Sr. (“Robert”), Vern Murphy-Mann

20 (“Vern”), and Deborah Mann (“Deborah”) (collectively,

21 “plaintiffs”) brought this action against defendants City of

22 Sacramento, the Sacramento Police Department, Samuel D. Somers

23 Jr. (“Chief Somers”), John C. Tennis (“Officer Tennis”), and

24 Randy R. Lozoya (“Officer Lozoya”) (collectively, “defendants”),

25 under 42 U.S.C. § 1983, seeking damages arising from the killing

26 of their brother, Joseph Mann (“Joseph”), by Officers Tennis and

27 Lozoya on July 11, 2016.1 (See Compl. (Docket No. 1).)

28 1 Plaintiffs’ original complaint listed two additional

1 Plaintiffs claimed that, by shooting and killing Joseph, Officers

2 Tennis and Lozoya had deprived them of their right of intimate

3 association with their brother under the First and Fourteenth

4 Amendments in violation of 42 U.S.C. § 1983.2 (See generally

5 id.)

6 Defendants moved to dismiss plaintiffs’ complaint for

7 failure to state a claim upon which relief may be granted. (See

8 Docket No. 12); Fed. R. Civ. P. 12(b)(6). On September 19, 2017,

9 the court granted defendants’ motion as to plaintiffs’ § 1983

10 claim for loss of companionship under the Fourteenth Amendment,

11 as the Ninth Circuit has expressly limited such claims to parents

12 and children. (See Docket No. 23); Ward v. City of San Jose, 967

13 F.2d 280, 283-84 (9th Cir. 1991). The court denied defendants’

14 motion as to plaintiffs’ claim under the First Amendment,

15 however, holding that, under applicable Supreme Court and Ninth

16 Circuit case law, plaintiffs had adequately alleged a § 1983

17 claim for deprivation of their First Amendment right to

18 association. (See Docket No. 23); Bd. of Directors of Rotary

19 Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987); IDK,

20 Inc. v. Clark Cty., 836 F.2d 1185, 1194 (9th Cir. 1988).

21 Defendants appealed to the Ninth Circuit, which issued

22 a memorandum opinion reversing this court’s decision as to

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siblings, Zachary Mann and William Mann, as plaintiffs. (See

24 Compl. ¶¶ 7-8.) However, the operative complaint no longer

includes Zachary and William as plaintiffs. (See First Amended

25

Compl. (“FAC”) (Docket No. 59).)

26

2 Plaintiffs also alleged a claim--not at issue in this

27 Order--for municipal and supervisory liability against the City,

the Sacramento Police Department, and Chief Somers. (See FAC

28 ¶¶ 107-112.)

1 plaintiffs’ claims under the First Amendment.3 See Mann v. City

2 of Sacramento, 748 F. App’x 112 (9th Cir. 2018) (“Mann II”). The

3 Ninth Circuit explained that plaintiffs had failed to plead

4 sufficient facts to establish a violation of an “intimate

5 association” right protected under the First or Fourteenth

6 Amendments:

7 Plaintiffs did not allege that their

relationships with Joseph involved marriage,

8 child rearing, or cohabitation, as in [Lee

v. City of Los Angeles, 250 F.3d 668 (9th

9 Cir. 2001)] or [Keates v. Koile, 883 F.3d

1128 (9th Cir. 2018)]. Nor did they allege

10 specific facts about the ‘objective

characteristics’ of their relationships with

11 Joseph to show that they were nonetheless

the sort of relationships that ‘warrant

12 constitutional protection.’

13 Mann II, 748 F. App’x at 115 (quoting Rotary Club, 481 U.S. at

14 545-46). “Moreover,” the court continued, “even if plaintiffs

15 could plead sufficient facts to satisfy the standards for

16 intimate association set forth in Rotary Club, relief would be

17 foreclosed under Ward v. City of San Jose, 967 F.2d 280 (9th Cir.

18 1991).” Id. The court noted that Ward had held that adult, non-

19 cohabitating siblings do not possess a cognizable liberty

20 interest in their brother’s companionship. See id. “Because we

21 analyze the right of intimate association in the same manner

22 regardless whether we characterize it under the First or

23

24 3 The Ninth Circuit noted that, although this court had

not “explicitly address qualified immunity,” the Ninth Circuit

25

had “jurisdiction over this interlocutory appeal of the district

court’s denial of qualified immunity, Mitchell v. Forsyth, 472

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U.S. 511, 525 (1985), as well as such issues are ‘inextricably

27 intertwined’ with the qualified immunity issue, Lum v. City of

San Joaquin, 584 F. App’x 449, 450-51 (9th Cir. 2014).” Mann II,

28 748 F. App’x at 113.

1 Fourteenth Amendments, Ward necessarily rejected any argument

2 that adult, non-cohabitating siblings enjoy a right to intimate

3 association.” Id. The Ninth Circuit then remanded the case to

4 this court to consider whether to grant plaintiffs leave to amend

5 their complaint. See id.

6 On remand, this court granted plaintiffs leave to

7 amend, and plaintiffs timely filed a First Amended Complaint

8 (“FAC”), adding a number of allegations related to their

9 relationship with Joseph and to Joseph’s living situation in the

10 months preceding his death. (See Docket No. 59.) Defendants

11 again moved to dismiss the complaint, arguing that, even with

12 plaintiffs’ amendments, the complaint still failed to state a

13 claim for relief upon which relief may be granted. (See Docket

14 No. 61); Fed. R. Civ. P. 12(b)(6). On March 13, 2019, the court

15 granted defendants’ motion. (See Docket No. 70.) Based on Mann

16 II’s statement that “even if plaintiffs could plead sufficient

17 facts to satisfy the standards for intimate association set forth

18 in Rotary Club, relief would be foreclosed . . . [because Ward]

19 held that adult, non-cohabitating do not possess a cognizable

20 liberty interest in their brother’s companionship,” Mann II, 748

21 F. App’x at 115 (emphasis added) (internal citations and

22 quotation marks omitted), the court held that the FAC failed to

23 state a § 1983 claim under the First Amendment because it failed

24 to adequately allege that Joseph cohabitated with any of the

25 plaintiffs at the time of his death. (See Docket No. 70.)

26 Plaintiffs then appealed to the Ninth Circuit. (See

27 Docket No. 72.) On April 30, 2020, a new panel issued a

28 memorandum opinion, which again reversed the decision of this

1 court. See Mann v. Sacramento Police Dep’t, 803 F. App’x 142

2 (9th Cir. 2020) (“Mann III”). The Ninth Circuit first noted that

3 Mann II’s statement that Ward would foreclose plaintiffs’ § 1983

4 claim under the First Amendment “even if” they had pled

5 sufficient facts to satisfy Rotary Club was dicta, because Ward

6 neither created a cohabitation requirement nor purported to

7 govern First Amendment claims. See id. at 143 (citing Trent v.

8 Valley Elec. Ass’n, Inc., 195 F.3d 534, 537 (9th Cir. 1999);

9 Ward, 967 F.2d at 284). Rather, Ward had only addressed

10 Fourteenth Amendment intimate-association claims brought by adult

11 siblings. See id.

12 The Ninth Circuit further stated that Mann II had

13 recognized that cohabitation was “one of several objective

14 indicia that courts may consider when assessing whether

15 plaintiffs were deprived of their intimate-association right”

16 under the First Amendment. See id. at 143-44 (citing Rotary

17 Club, 481 U.S. at 545; Keates, 883 F.3d at 1236; Lee, 250 F.3d at

18 685-86; Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th

19 Cir. 1995)). The court remanded the case “for consideration of

20 plaintiffs’ First Amendment claim under the standard set forth in

21 Rotary Club and its progeny.” Id. at 144.

22 On remand, defendants renewed their motion to dismiss

23 the FAC for failure to state a claim0, and the parties submitted

24 updated briefs in light of Mann III.4 (See Defs.’ Am. Mot. to

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4 Officers Lozoya and Tennis filed the motion to dismiss,

which defendants City of Sacramento and Chief Somers joined in

27 its entirety. (See Docket No. 93.) Defendants City of

Sacramento and Chief Somers also joined the reply brief of

28 Officers Lozoya and Tennis in its entirety. (See Docket No. 96.)

1 Dismiss (“Mot. to Dismiss”) (Docket No. 92); Pls.’ Opp’n (Docket

2 No. 94); Defs.’ Reply (Docket No. 95).)

3 I. Legal Standard

4 Federal Rule of Civil Procedure 12(b)(6) allows for

5 dismissal when the plaintiff’s complaint fails to state a claim

6 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

7 The inquiry before the court is whether, accepting the

8 allegations in the complaint as true and drawing all reasonable

9 inferences in the plaintiff’s favor, the complaint has stated “a

10 claim to relief that is plausible on its face.” Bell Atl. Corp.

11 v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard

12 is not akin to a ‘probability requirement,’ but it asks for more

13 than a sheer possibility that a defendant has acted unlawfully.”

14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare

15 recitals of the elements of a cause of action, supported by mere

16 conclusory statements, do not suffice.” Id. Although legal

17 conclusions “can provide the framework of a complaint, they must

18 be supported by factual allegations.” Id. at 679.

19 II. Discussion

20 The court’s discussion of whether plaintiffs have

21 adequately stated a § 1983 claim for deprivation of their First

22 Amendment rights is complicated by the fact that the Mann II and

23 Mann III decisions appear to be plainly contradictory. While

24 Mann II stated that the right of intimate association should be

25 analyzed in the same manner regardless of whether it is

26 characterized under the First or Fourteenth Amendments, and that

27 Ward bars intimate association claims by adult, non-cohabitating

28 siblings, Mann III stated that Ward did not create a cohabitation

1 requirement, and addressed only Fourteenth Amendment association

2 claims, implying that the contours of an intimate association

3 claim may differ depending on which amendment the claim is

4 brought under.

5 Because Mann III was decided more recently, this court

6 will proceed according to the guidance set out in that decision.

7 See Mann III, 803 F. App’x at 144. Mann III did not purport to

8 define exactly how far a claim for intimate association under the

9 First Amendment extends, but the fact that the Ninth Circuit

10 reversed this court’s dismissal of plaintiffs’ claim under the

11 First Amendment (see Docket No. 70) implies that, at least in

12 certain circumstances, the right of siblings to intimately

13 associate falls within the First Amendment’s ambit.5

14 This conclusion is supported by the Supreme Court’s

15 opinion in Rotary Club. There, the Court was tasked with

16 determining whether the relationship between members of the

17 Rotary Club, an international fraternal organization of almost a

18 million members, was sufficiently intimate to warrant protection

19 under the First Amendment. See Rotary Club, 481 U.S. at 539-40.

20 The Court’s analysis began by recognizing that “the First

21 Amendment protects those relationships, including family

22 relationships, that presuppose ‘deep attachments and commitments

23 to the necessarily few other individuals with whom one shares not

24 only a special community of thoughts, experiences, and beliefs

25 but also distinctively personal aspects of one's life.’” Rotary

26

27 5 Were § 1983 claims by siblings categorically barred

under the First Amendment, the Ninth Circuit presumably would

28 have affirmed this court’s dismissal of plaintiffs’ claim.

1 Club, 481 U.S. at 545-46 (quoting Roberts v. United States

2 Jaycees, 468 U.S. 609, 622 (1984)). Though the Court noted that

3 it had accorded constitutional protection to relationships

4 “includ[ing] marriage, the begetting and bearing of children,

5 child rearing and education, and cohabitation with relatives,” it

6 indicated that this list was not exhaustive, and even pointed out

7 that it had “not held that constitutional protection is

8 restricted to relationships among family members.” Id. at 545

9 (collecting cases). According to the Court, other relationships,

10 “including family relationships,” may also be protected to the

11 extent that the “objective characteristics” of the relationship

12 demonstrate that it is “sufficiently personal or private to

13 warrant constitutional protection.” Id. at 545-46. The Court

14 listed four factors it would consider in making such a

15 determination: “size, purpose, selectivity, and whether others

16 are excluded from critical aspects of the relationship.” Id. at

17 546 (citing Roberts, 468 U.S. at 620).

18 Applying these factors to Rotary Club members, the

19 Court concluded that the Club chapters’ size (which ranged from

20 20 to 900 members), inclusive and public-facing nature and

21 purpose, and relative lack of selectivity and exclusion weighed

22 against affording constitutional protections. Id. Specifically,

23 the Court noted that the Rotary Club’s Constitution directed

24 local chapters to “keep a flow of prospects coming” to make up

25 for attrition over time, undertake service projects to aid the

26 community and the general public, and to keep membership open to

27 all qualified members in the area. See id. at 546-47. The Court

28 further noted that local chapters’ activities generally occurred

1 in the presence of strangers and in public places. See id.

2 In the wake of Rotary Club, the Ninth Circuit has held

3 that the right to intimate association as guaranteed by the First

4 Amendment extends to parents and children, see Lee v. City of Los

5 Angeles, 250 F.3d 668 (9th Cir. 2001); Keates v. Koile, 883 F.3d

6 1128 (9th Cir. 2018), as well to unrelated, cohabitating

7 roommates, see Fair Housing Council of San Fernando Valley v.

8 Roommate.com, LLC, 666 F.3d 1216, 1221 (9th Cir. 2012) (applying

9 Rotary Club factors: “it’s hard to imagine a relationship more

10 intimate than that between roommates” because the home forms the

11 “center of our private lives”). Other district courts in this

12 circuit have further held that siblings, see Smith v. County of

13 Santa Cruz, No. 17-CV-05095, 2019 WL 2515841, at *12 (N.D. Cal.

14 June 17, 2019), and fiancées, see Graham v. County of Los

15 Angeles, No. CV 10-05059 DDP (Ex), 2011 WL 3754749, at *2 (C.D.

16 Cal. Aug. 25, 2017), have a cognizable liberty interest in

17 intimate association and companionship under the First Amendment.

18 See also Sanchez v. County of Santa Clara, No. 5:18-cv-01871-EJD,

19 2018 WL 3956427, at **8-9 (N.D. Cal. Aug. 17, 2018) (holding that

20 grandparents and grandchildren have a liberty interest in family

21 integrity, without specifying whether this right arises under the

22 First or Fourteenth Amendments, or both).

23 Taken together, these cases show that the frequency and

24 significance of the interactions among parties to the

25 relationship at issue are key factors in determining whether the

26 right to intimate association is protected under the First

27 Amendment. The relationships to which protection has been

28 afforded generally involve interactions that occur on a daily, or

1 almost daily basis, and often involve intensely private

2 exchanges, whether it be because the parties live together, see

3 Fair Housing Council, 666 F.3d at 1221, or because some element

4 of caretaking or custody is present, see, e.g., Sanchez, 2018 WL

5 3956427, at **8-9.

6 As the Supreme Court stated in Smith v. Org. of Foster

7 Families for Equality and Reform, 431 U.S. 816, 844 (1977), a

8 case where the Court suggested (though did not decide) that

9 foster parents and children have a constitutionally-protected

10 liberty interest in their association, “the importance of the

11 familial relationship . . . stems from the emotional attachments

12 that derive from the intimacy of daily association, and from the

13 role it plays in ‘promot(ing) a way of life’ through the

14 instruction of children, as well as from the fact of blood

15 relationship.”

16 Likewise, in Fair Housing Council, the Ninth Circuit

17 reasoned that roommates are entitled to protection under the

18 First Amendment because they have “unfettered access to the home”

19 and thus “learn intimate details most of us prefer to keep

20 private,” “note [their roommates’] comings and goings,” and are

21 “fully exposed to [their roommates’] belongings, activities,

22 habits, proclivities, and way of life.” Fair Housing Council,

23 666 F.3d at 1221. And in Sanchez, the district court held that

24 the plaintiff grandparents had sufficiently alleged a liberty

25 interest in associating with their grandchildren because they

26 “spent a substantial amount of time living with” their

27 grandchildren and had “established a long standing custodial

28 relationship such that they were an existing family unit.”

1 Sanchez, 2018 WL 3956427, at **8-9.

2 A. Analysis of Factors under Rotary Club and its Progeny

3 Applying the factors outlined in Rotary Club and its

4 progeny to the allegations in the FAC, it is clear that

5 plaintiffs’ alleged relationship with Joseph was more intimate

6 and personal than that between members of a large fraternal

7 organization like the Rotary Club. In terms of the first Rotary

8 Club factor, size, each plaintiff’s relationship with his or her

9 brother involved only two people, and was enmeshed within a

10 “tightknit family unit” of five children and two parents. (See

11 FAC ¶ 17.) This is much more akin to relationships that the

12 Ninth Circuit has granted protection under the First Amendment,

13 see, e.g., Lee, 250 F.3d at 685-86 (holding that parent and child

14 have a right to intimately associate under the First Amendment),

15 than the relationship among members of local Rotary Club

16 chapters, which could range in size anywhere from 20 to 900

17 members. See Rotary Club, 481 U.S. at 546.

18 Looking next to selectivity, the Supreme Court held

19 that local Rotary Club chapters were not sufficiently selective

20 because they had instructions to “keep a new flow of prospects

21 coming” to make up for expected member attrition and gradually

22 grow the membership, and to keep the chapter open to all eligible

23 members in the area in order to ensure that the chapter was

24 comprised of a cross-section of different professions and members

25 of the community. See id. By contrast, plaintiffs’ relationship

26 with Joseph was limited by blood. See id.; Smith, 431 U.S. at

27 844 (“the importance of the family relationship . . . stems from

28 the emotional attachments that derive from the intimacy of daily

1 association . . . as well as from the fact of blood relationship

2 (emphasis added)). While plaintiffs allege that they and Joseph

3 shared intimate moments with their parents, or with plaintiffs’

4 children (Joseph’s nieces and nephews), these shared experiences

5 extended only to other members of plaintiffs’ nuclear family.

6 (See FAC ¶¶ 17-19, 26.)

7 Defendants argue that the relationship between siblings

8 cannot be characterized as “selective” because siblings, unlike

9 spouses, fiancées, or parents, do not choose to form their

10 relationship--that choice is made by their parents, for them.

11 (See Mot. to Dismiss at 12 (citing Rode v. Dellarciprete, 845

12 F.2d 1195, 1204-05 (3d Cir. 1988)). Without “affirmative choice”

13 to form a relationship, defendants argue, there can be no

14 “liberty” interest in intimate association to protect under the

15 First Amendment. (See Defs.’ Reply at 1-3.)

16 While it is true that nobody chooses whom their blood

17 siblings will be, siblings (particularly adult siblings)

18 certainly have a choice in whether they will associate with one

19 another, and how intimate that association will be. Here,

20 plaintiffs’ allegations describe the efforts they and Joseph made

21 to maintain an intimate relationship after they moved out of

22 their childhood home. Between 1986 and approximately 2009, after

23 Joseph moved into his own place, plaintiffs allege that he

24 continued to regularly visit them and play with his nieces and

25 nephews, and that he regularly participated in family get-

26 togethers. (See id. at ¶ 26.) Around 1999, Joseph invited his

27 sister, Vern, to move in and live with him. (See id. at ¶ 27.)

28 Following the death of their mother, in 2011, when

1 Joseph began to exhibit symptoms of mental illness, plaintiffs

2 Robert and Vern each invited Joseph into their homes, and he

3 split his living arrangements between them. (See id. at ¶ 31.)

4 Plaintiffs further allege that they visited Joseph when he would

5 occasionally become hospitalized due to his mental illness, and,

6 on occasions when Joseph would “stay out, at times for several

7 days,” plaintiffs would search for Joseph at places he habitually

8 frequented, and would bring him back to their homes to bathe,

9 rest, and eat. (Id. at ¶¶ 32-35.)

10 These allegations show that, even as plaintiffs began

11 their own families, and even as Joseph’s deteriorating mental

12 condition caused him to become more distant, plaintiffs actively

13 chose to keep Joseph in their lives and engaged in activities

14 emblematic of an intimate sibling relationship. See Santa Cruz,

15 2019 WL 2515841, at *12 (noting that high-school-age siblings

16 were entitled to liberty interest in each other’s companionship

17 in part because they continued to visit each other after moving

18 into separate homes); Sanchez, 2018 WL 3956427, at **8-9 (holding

19 that grandparents had protected liberty interest in associating

20 with grandchildren because they had chosen to “spen[d] a

21 substantial amount of time living” together and had “established

22 a long standing custodial relationship such that they were an

23 existing family unit”). The allegations in the FAC therefore

24 demonstrate that the relationship between plaintiffs and Joseph

25 was sufficiently selective to warrant protection under the Rotary

26 Club standard. See 481 U.S. at 546.

27 By the same token, plaintiffs and their brother also

28 “excluded [others] from critical aspects of the relationship” by

1 sharing intimate experiences in a way that only siblings or

2 parents and children can. See Rotary Club, 481 U.S. at 546.

3 Plaintiffs allege that they “grew up” with Joseph “as a tightknit

4 family unit that lived, ate, played, and prayed together.” (See

5 FAC ¶ 17); Smith, 431 U.S. at 844. The family attended church

6 regularly and had dinner together, “during which they routinely

7 discussed personal and religious matters.” (See FAC at ¶ 18.)

8 Plaintiffs shared the same family home with Joseph until 1980.

9 (Id. at ¶ 26.)

10 Between 1986 and approximately 2009, Joseph regularly

11 visited plaintiffs to play with their sons and daughters (his

12 nieces and nephews) and participated in family get-togethers

13 approximately once a week. (Id. at ¶ 26-28.) After Joseph began

14 experiencing symptoms of drug addiction in approximately 2015,

15 plaintiffs allege that Robert encouraged and assisted Joseph in

16 enrolling in Alcoholics Anonymous (“AA”) and Narcotics Anonymous

17 (“NA”), and accompanied Joseph to meetings. (See id. at ¶ 31.)

18 Plaintiffs also visited Joseph when he would become hospitalized,

19 supported him financially, and fed and housed him from 2015 up

20 until his death. (See id. at ¶ 31.) These allegations reflect a

21 relationship between plaintiffs and Joseph in which each sibling

22 shared “not only a special community of thoughts, experiences,

23 and beliefs but also distinctly personal aspects” of their lives.

24 See Rotary Club, 481 U.S. at 546.

25 Next, the “purpose” of the plaintiffs’ relationship

26 with their brother (to the extent a sibling relationship has a

27 “purpose”) further supports a finding that the relationship is

28 entitled to constitutional protection under the First Amendment.

1 See Rotary Club, 481 U.S. at 546. Unlike the relationship

2 between Rotary Club members, which largely existed to “produce an

3 inclusive, not exclusive, membership,” undertake service projects

4 to aid the community and the general public, “raise the standards

5 of the members’ businesses and professions,” and to “improve

6 international relations,” Rotary Club, 481 U.S. at 546,

7 plaintiffs allege that their relationship with their brother

8 served as an “intimate human relationship[]” that necessarily

9 entailed “deep attachments and commitments.” (See FAC ¶ 104.)

10 In support of this conclusion, plaintiffs detail the

11 efforts they and Joseph made to remain in each others’ lives as

12 they reached adulthood and Joseph began to struggle with mental

13 illness and drug addiction. (See FAC ¶¶ 26-35.) For instance,

14 as already discussed above, plaintiffs invited Joseph to family

15 get-togethers approximately once per week, cultivated a

16 relationship between Joseph and his nieces and nephews, attended

17 NA and AA meetings with him, and “were in constant contact with

18 [him] and made sure he knew he was welcome in their homes.” (See

19 id.)

20 Plaintiffs’ relationship with Joseph also served a

21 caretaking purpose. Plaintiffs allege that Joseph struggled with

22 symptoms arising from mental illness and drug addiction in the

23 later years of his life. (See FAC ¶¶ 30-31.) To help care for

24 Joseph, Robert alleges that he encouraged and assisted Joseph in

25 enrolling in AA and NA, and accompanied him to meetings. (See

26 id.) Plaintiffs also visited Joseph when he would become

27 hospitalized, supported him financially, fed him, and

28 intermittently housed him up until his death. (See id. at ¶ 33.)

1 Notably, plaintiffs state that they would search for Joseph at

2 places he habitually frequented when he went missing for extended

3 periods of time, and would bring him back to their homes, where

4 he often stayed, to bathe, rest, and eat, indicating that

5 plaintiffs played a crucial role in looking out for Joseph’s

6 well-being as he struggled with the symptoms of mental illness

7 and addiction. (See id. at ¶ 35.)

8 While these allegations do not establish that

9 plaintiffs’ relationship with Joseph was “custodial,” the care

10 plaintiffs allege they provided for Joseph reflects the type of

11 intimate care and affection that exists among “existing family

12 unit[s].” See Sanchez, 2018 WL 3956427, at **8-9. The “purpose”

13 prong of the Rotary Club standard therefore weighs in favor of

14 granting Joseph and plaintiffs’ relationship protection under the

15 First Amendment. See Rotary Club, 481 U.S. at 546.

16 Finally, the frequency and significance of the alleged

17 interactions between Joseph and plaintiffs indicate that their

18 relationship is entitled to protection. Plaintiffs allege that

19 they were in “constant contact” with Joseph, “made sure that he

20 knew he was welcome in their homes,” and provided care to him in

21 the months leading up to his death by allowing him into the most

22 private areas of their lives. (See FAC ¶¶ 29-35.) Plaintiffs

23 state that Joseph left belongings in their homes, indicating that

24 he expected to return upon his departure. (See id.)

25 Though, as this court has previously noted, these

26 allegations do not suffice to establish that Joseph “cohabitated”

27 with plaintiffs because they do not establish that Joseph had

28 independent access to plaintiffs’ homes, contributed to the

1 maintenance of one or more of their homes, or that he rarely

2 slept outside of their homes, (see Docket No. 70), Mann III made

3 clear that, while cohabitation is relevant to a relationship’s

4 status under the First Amendment, it is not necessary to

5 establish constitutional protection. See Mann III, 803 F. App’x

6 at 143. Even though plaintiffs cannot establish that they formed

7 an intimate relationship with Joseph by virtue of being

8 roommates, their allegations do evidence a relationship that was

9 similar to that of cohabitants in other ways. See Fair Housing

10 Council, 666 F.3d at 1221. For example, the allegations show

11 that both plaintiffs and Joseph were exposed to intimate details

12 about each other which most of us would prefer to keep private,

13 as well as each other’s “belongings, activities, habits,

14 proclivities, and way of life,” as plaintiffs attended AA and NA

15 meetings with Joseph and brought him back to eat, bathe, and

16 sleep in their homes after being out on the street. See id.

17 In sum, taking the allegations in the FAC as true and

18 construing them in their most favorable light, as the court must

19 do on a motion to dismiss, see Twombly, 550 U.S. 544, 570, the

20 court finds that plaintiffs have satisfied the factors set forth

21 in Rotary Club and its progeny, and have therefore shown that

22 their interactions with Joseph were sufficiently personal and

23 intimate to warrant protection under the First Amendment. See

24 Rotary Club, 481 U.S. at 545; Fair Housing Council, 666 F.3d at

25 1221.

26 B. Direct and Substantial Interference with Plaintiffs’

Rights

27

28 Defendants present an additional argument that, even if

1 the court finds that plaintiffs have a right to intimate

2 association with Joseph under the First Amendment, their claim

3 must nevertheless fail because the allegations in the FAC do not

4 show that the officers acted “directly” against their

5 relationship with Joseph. (See Mot. to Dismiss at 15.) In other

6 words, defendants argue that plaintiffs claims must fail,

7 regardless of the outcome of the court’s Rotary Club analysis,

8 because plaintiffs do not allege that Officers Tennis and Lozoya

9 were aware of Joseph’s sibling relationships when they shot and

10 killed him, and thus the Officers could not have acted with the

11 intent to deprive plaintiffs of their relationship with Joseph.

12 (See id.)

13 Defendants cite to Zablocki v. Redhail, 434 U.S. 374

14 (1978) for the proposition that government actors cannot be

15 liable for incidentally burdening a plaintiff’s substantial

16 right; rather, the government actor must “directly and

17 substantially” interfere with that right. (See Mot. to Dismiss

18 at 10.) In Zablocki, the Supreme Court held that a Wisconsin

19 statute, which prevented certain classes of Wisconsin residents

20 from marrying, violated those residents fundamental right to

21 marry under the due process clause of the Fourteenth Amendment.

22 See Zablocki, 434 U.S. at 387. In its opinion, the Court noted

23 that it was not preventing states from imposing regulations which

24 incidentally affected the right to marry or established

25 reasonable prerequisites--only regulations that “directly and

26 substantially” interfered with the right to marry were

27 prohibited. See id.

28 However, Zablocki says nothing about what state of mind

1 a plaintiff must allege an officer had to maintain a § 1983 claim

2 that the officer deprived him of a relationship protected by the

3 First Amendment. The Ninth Circuit has specifically rejected the

4 imposition of a requirement that an officer act with the

5 “specific intent” to deprive the plaintiff of his rights § 1983

6 claims brought under the Fourteenth Amendment. See Smith v. City

7 of Fontana, 818 F.2d 1411, 1420 n.12 (9th Cir. 1987) (“[T]he

8 plaintiffs can state a section 1983 claim without further

9 alleging that the official was trying to break up their family.”

10 (citing Kelson v. City of Springfield, 767 F.2d 651 (9th Cir.

11 1985)); Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir.

12 1992) (rejecting need to impose plaintiffs to “prove a wrongful

13 intent directed specifically at them” in § 1983 claim for

14 deprivation of relationship protected by the 14th Amendment).

15 Further, none of the cases in which the Ninth Circuit

16 has recognized the existence of a § 1983 claim for deprivation of

17 an intimate association right under the First Amendment has

18 required that plaintiffs allege that officers specifically

19 intended to deprive them of the protected relationship, or allege

20 that the officers acted “directly” against that relationship.

21 See Keates, 883 F.3d at 1236; Lee, 250 F.3d at 685-86.

22 If the Ninth Circuit intended for the lack of intent to

23 deprive plaintiffs of their constitutional rights to be an

24 independent bar to stating a § 1983 claim under the First

25 Amendment, there would have been no reason for the Mann III panel

26 to remand this case for further considerations under Rotary Club,

27 see Mann III, 803 F. App’x at 144, as the FAC contains no

28 allegations that the Officers intended to deprive the plaintiffs

1 of their constitutional rights, or that they even knew that

2 Joseph had siblings when they shot and killed him. The court

3 therefore finds defendants’ argument that plaintiffs’ claim under

4 the First Amendment must fail because they have not alleged a

5 specific intent to deprive them of their constitutional rights to

6 be without merit.

7 Accordingly, the court finds that plaintiffs have

8 adequately pled a § 1983 claim for deprivation of their right to

9 intimate association under the First Amendment, and will deny

10 defendants’ motion to dismiss on that basis.

11 C. Qualified Immunity

12 Defendants further argue that, even if plaintiffs have

13 alleged sufficient facts to state a claim under the First

14 Amendment, their claim must be dismissed because Officers Tennis

15 and Lozoya are entitled to qualified immunity from suit. (See

16 Mot. to Dismiss at 16-20.) To determine whether an officer is

17 entitled to qualified immunity, the court considers: (1) whether

18 there has been a violation of a constitutional right; and (2)

19 whether the defendants’ conduct violated “clearly established”

20 federal law. Sharp v. Cty. of Orange, 871 F.3d 901, 909 (9th

21 Cir. 2016) (citing Kirkpatrick v. Cty. Of Washoe, 843 F.3d 784,

22 788 (9th Cir. 2016)).

23 The clearly established law inquiry “is an objective

24 one that compares the factual circumstances faced by the

25 defendant to the factual circumstances of prior cases to

26 determine whether the decisions in the earlier cases would have

27 made clear to the defendant that his conduct violated the law.”

28 See Sandoval v. Cty. of San Diego, 985 F.3d 657, 674 (9th Cir.

1 2021). In other words, the court asks whether “it would be clear

2 to a reasonable officer that his conduct was unlawful in the

3 situation he confronted.” Lacey v. Maricopa Cty., 693 F.3d 896,

4 915 (9th Cir. 2012); see also Ziglar v. Abbasi, 137 S. Ct. 1843,

5 1866 (2017) (“Whether qualified immunity can be invoked turns on

6 the ‘objective legal reasonableness’ of the official's acts.”

7 (citation omitted)).

8 The only argument defendants offer as to why Officers

9 Tennis and Lozoya are entitled to qualified immunity is that the

10 plaintiffs did not possess a “clearly established” right to

11 intimate association with Joseph under the First Amendment at the

12 time of Joseph’s death.6 (See Mot. to Dismiss at 16-20.)

13 Defendants cite to several out-of-circuit cases where courts have

14 granted qualified immunity on the ground that the plaintiffs did

15 not have a clearly established right to intimate association

16 under the First Amendment at the time of the conduct that gave

17 rise to the suit. See, e.g., Starnes v. Butler Cty. Court of

18 Common Pleas, 50th Judicial Dist., 971 F.3d 416 (3d Cir. 2020);

19 Gaines v. Wardynski, 871 F.3d 1203 (11th Cir. 2017).

20 All of those cases upon which defendants rely involved

21 situations in which the plaintiffs bringing § 1983 claims were

22 also the individuals against whom the defendant’s conduct had

23 been directed. For instance, Starnes involved a probation

24 officer with the Butler County Court of Common Pleas who alleged

25 that the court’s presiding judge had taken adverse employment

26

6 Defendants do not argue that they are entitled to

27 qualified immunity under the first prong of the qualified

immunity analysis in either their motion to dismiss or reply.

28 (See Mot. to Dismiss at 16-20; Defs.’ Reply at 6-10.)

1 actions against her in retaliation for her associating with her

2 boyfriend. See Starnes, 971 F.3d at 422-23. Those cases say

3 nothing about whether the proper focus of the court’s inquiry in

4 a wrongful death action should be on the constitutional rights of

5 the plaintiff or of the decedent.

6 In none of those cases were the plaintiffs surviving

7 family members of individuals killed by police officers. In such

8 cases, the Ninth Circuit has indicated that the proper focus of

9 the court’s inquiry is on the constitutional rights of the

10 decedent, not those of the decedent’s potential relatives, such

11 as parents or siblings. See Porter v. Osborn, 546 F.3d 1131,

12 1140 (9th Cir. 2008) (“Thus, whether [defendant] is entitled to

13 qualified immunity . . . turns on whether [plaintiffs] can

14 present facts to the district court that would justify a jury

15 finding that [defendant] acted with an unconstitutional purpose

16 to harm [the decedent].”).

17 The relevant question for the court under the second

18 prong of the qualified immunity analysis here is therefore

19 whether a reasonable officer would have known that his conduct

20 violated Joseph’s clearly established rights, not those of the

21 plaintiffs. See Kaur v. City of Lodi, 263 F. Supp. 3d 947 (E.D.

22 Cal. 2017) (Nunley, J.) (rejecting officers’ assertion that they

23 were entitled to qualified immunity from survivors’ First

24 Amendment intimate association claims under the second prong

25 because “qualified immunity does not give an officer who engages

26 in conduct that was patently unconstitutional when committed a

27 get-out-of-liability-free card because there is ‘some lingering

28 ambiguity’ as to which constitutional provision ‘applies in this

nen ee nnn nee en een nnn nnn nnn nen nn enn nnn nnn enn eo OI ND

1 precise context,’ or whether he has managed to violate several

2 constitutional provisions at once” (citing Harris v. City of

3 | Circleville, 583 F.3d 356, 367 (6th Cir. 2009)).

4 Since controlling Ninth Circuit precedent indicates

5 that the court must assess whether the Officers’ conduct violated

6 Joseph’s clearly established constitutional rights, and

7 defendants do not argue that a reasonable officer would have

8 thought that Officers Tennis and Lozoya’s actions were lawful as

9 to Joseph under the second prong, (see Defs.’ Reply at 10 (Docket

10 No. 95) (“this motion does not assert a reasonable officer could

11 have deemed the shooting lawful”), the Officers’ request for

12 | qualified immunity must be denied. See George v. Morris, 736

13 F.3d 829, 837 (9th Cir. 2013) (affirming district court’s denial

14 of qualified immunity where district court did not analyze the

15 second gualified immunity prong, because defendants had not

16 | argued that they were entitled to qualified immunity on that

17 | basis).

18 IT IS THEREFORE ORDERED that defendants’ motion to

19 dismiss (Docket No. 92) be, and the same hereby is, DENIED.

20 || Dated: February 24, 2021 tleom ah. A. be—~

21 WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

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