Montelongo v. City of Modesto

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 JESSE MONTELONGO, et al., No. 1:15-cv-01605-TLN-BAM

12 Plaintiffs,

13 v. ORDER

14 CITY OF MODESTO, et al.,

15 Defendants.

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17 This matter is before the Court on Defendants City of Modesto (“City”) and Officer Dave

18 Wallace’s (collectively, “Defendants”) Motion for Summary Judgment. (ECF No. 86.) Plaintiffs

19 Jesse Montelongo, Victoria Montelongo, Theresa Lozano, J.M., E.M., Ale. M., Ali. M., Ala. M.

20 (collectively, “Plaintiffs”) filed an opposition. (ECF No. 89.) Defendants filed a reply. (ECF

21 No. 94.) For the reasons set forth below, the Court GRANTS in part and DENIES in part

22 Defendants’ motion.

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1 I. FACTUAL AND PROCEDURAL BACKGROUND

2 Close to midnight on October 16, 2014, Teresa Lozano called 911 from her home at 528

3 Milo Road in Modesto, California. (ECF No. 90 at 2.) Ms. Lozano told the 911 dispatcher: “I

4 need help please — hurry! . . . Help me! Just hurry. Please help me . . . My son is gonna beat —

5 ,” after which point the phone line cut off. (Id.) The 911 call was dispatched to the Modesto

6 Police Department, with the 911 dispatcher stating over the radio: “Start security check 528 Milo

7 across from Lucerne. The female on the phone, she called multiple times yelling help me over

8 and over, disconnected, called back again, disconnected, all we could understand was my son has

9 a . . . [a]nd so we don’t know what he has.” (Id. at 2–3.)

10 Officers Dave Wallace and Michael Callahan responded to the call. (Id. at 3.) Officer

11 Callahan’s body camera footage shows that the officers encountered Victoria Montelongo and her

12 fiancé in the driveway of 528 Milo Road. (Callahan Video at 01:00–01:50.) Ms. Montelongo

13 told the officers that her brother, Jesse Montelongo, was drunk and threatening their mother

14 inside the home. (Id.) After speaking to Ms. Montelongo in the driveway, the officers

15 approached the home. (Id.)

16 Officer Wallace’s body camera footage shows that Officer Callahan rang the doorbell and

17 then walked toward the opposite side of the home as a woman cried for help from inside.

18 (Wallace Video at 00:21–00:36.) Officer Wallace approached the front of the house as Mr.

19 Montelongo opened the front door. (Id. at 00:43–00:46.) Mr. Montelongo stood six to ten feet

20 away with his right arm concealed behind his back. (Id.; see also ECF No. 90 at 3–4.) Officer

21 Wallace pointed his firearm at Mr. Montelongo and stated, “Show me your hands.” (Wallace

22 Video at 00:46.) Mr. Montelongo responded, “What?” and kept his right hand behind his back as

23 he stood in the doorway. (Id. at 00:47.) Officer Wallace loudly repeated, “Show me your hands.”

24 (Id. at 00:48.) As Officer Wallace repeated the second command, Mr. Montelongo threw an

25 object from his previously concealed right hand in Officer Wallace’s direction. (Id.) The throw

26 was underhanded, and Mr. Montelongo remained in the doorway as he threw the object. (Id.)

27 Officer Wallace reacted by quickly turning to the left. (Id. at 00:48.) When he straightened,

28 Officer Wallace fired his weapon at Mr. Montelongo, who had already backed into the house and

1 was shutting the front door when the shot was fired. (Id. at 00:49.) When Officer Callahan

2 returned to the front of the house after the gunshot, Officer Wallace told him, “He threw

3 something at me” and “He wouldn’t show me his hands and threw an object at me.” (Id. at 1:01-

4 1:06.) The officers then cleared the house and detained Defendant until medical workers arrived.

5 (Id. at 01:30–07:40.) Mr. Montelongo suffered a gunshot wound below the chest, but survived

6 his injuries. (ECF No. 91-4 at 13.) It was later determined that the object Mr. Montelongo threw

7 at Officer Wallace was a book. (ECF No. 91-1 at 49.)

8 Plaintiffs brought this action on October 20, 2015, asserting various 42 U.S.C. § 1983 (“§

9 1983”) claims and state tort claims related to the incident. (ECF No. 1.) Defendants filed the

10 instant motion for summary judgment on August 2, 2019. (ECF No. 86.)

11 II. STANDARD OF LAW

12 Summary judgment is appropriate when the moving party demonstrates no genuine issue

13 as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed.

14 R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary

15 judgment practice, the moving party always bears the initial responsibility of informing the

16 district court of the basis of its motion, and identifying those portions of “the pleadings,

17 depositions, answers to interrogatories, and admissions on file together with affidavits, if any,”

18 which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

19 Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof

20 at trial on a dispositive issue, a summary judgment motion may properly be made in reliance

21 solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at

22 324 (internal quotations omitted). Indeed, summary judgment should be entered against a party

23 who does not make a showing sufficient to establish the existence of an element essential to that

24 party’s case, and on which that party will bear the burden of proof at trial. Id. at 322.

25 If the moving party meets its initial responsibility, the burden then shifts to the opposing

26 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.

27 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); First Nat’l Bank of Ariz. v. Cities

28 Serv. Co., 391 U.S. 253, 288–89 (1968). In attempting to establish the existence of a factual

1 dispute, the opposing party may not rely upon the denials of its pleadings, but is required to

2 tender evidence of specific facts in the form of affidavits and/or admissible discovery material in

3 support of its contention that a dispute exists. Fed. R. Civ. P. 56(c). The opposing party must

4 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the

5 suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that

6 the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for

7 the nonmoving party. Id. at 251–52.

8 In the endeavor to establish the existence of a factual dispute, the opposing party need not

9 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

10 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

11 trial.” First Nat’l Bank of Ariz., 391 U.S. at 288–89. Thus, the “purpose of summary judgment is

12 to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for

13 trial.’” Matsushita Elec. Indus. Co., 475 U.S. at 587 (quoting Rule 56(e) advisory committee’s

14 note on 1963 amendments).

15 In resolving the summary judgment motion, the court examines the pleadings, depositions,

16 answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed.

17 R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence

18 of the opposing party is to be believed, and all reasonable inferences that may be drawn from the

19 facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S.

20 at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s

21 obligation to produce a factual predicate from which the inference may be drawn. Richards v.

22 Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir.

23 1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party

24 “must do more than simply show that there is some metaphysical doubt as to the material facts.”

25 Matsushita Elec. Indus. Co., 475 U.S. at 586. “Where the record taken as a whole could not lead

26 a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at

27 587.

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1 III. ANALYSIS

2 A. § 1983 Claims

3 Section 1983 provides that “[e]very person who, under color of any [state law] subjects, or

4 causes to be subjected, any citizen of the United States . . . to the deprivation of any rights,

5 privileges, or immunities secured by the Constitution and laws, shall be liable to the party

6 injured[.]” 42 U.S.C. § 1983.

7 Plaintiffs assert four distinct § 1983 claims: excessive force in violation of the Fourth

8 Amendment (Claim One); unlawful detention in violation of the Fourth Amendment (Claims Two

9 and Three); and violation of the Fourteenth Amendment’s Equal Protection Clause (Claim Four).

10 (ECF No. 1 at 6–8.) Defendants move for summary judgment as to all of Plaintiffs’ § 1983

11 claims. (ECF No. 86 at 2.) In opposition, Plaintiffs only rebut Defendants’ argument regarding

12 the excessive force claim. (See generally ECF No. 89.) However, the Court may not grant a

13 motion for summary judgment “on the mere fact” that Plaintiffs fail to challenge what is asserted

14 by the moving party. See Pinder v. Emp. Dev. Dep’t, 227 F. Supp. 3d 1123, 1135–36 (E.D. Cal.

15 2017). Therefore, the Court will address all of Plaintiffs’ § 1983 claims in turn.

16 i. Excessive Force (Claim One)

17 a. Constitutional Violation

18 Defendants argue the Court should grant summary judgment as to Mr. Montelongo’s

19 excessive force claim because Office Wallace’s use of force was objectively reasonable as a

20 matter of law. (ECF No. 86 at 16.) In opposition, Plaintiffs argue there are genuine issues of

21 material fact as to whether Officer Wallace used excessive force. (ECF No. 89 at 17.)

22 The Fourth Amendment protects the “right of the people to be secure . . . against

23 unreasonable searches and seizures.” U.S. Const. amend. IV. The Fourth Amendment permits

24 officers making an arrest to use force, but only an amount that is objectively reasonable in light of

25 the circumstances. Tennessee v. Garner, 471 U.S. 1, 11 (1985).

26 The parties agree Officer Wallace used deadly force. (See ECF No. 86 at 16; see also

27 ECF No. 89 at 6.) “The intrusiveness of a seizure by means of deadly force is unmatched.”

28 Garner, 471 U.S. at 9. However, “whether or not [Officer Wallace’s] actions constituted

1 application of ‘deadly force,’ all that matters is whether [his] actions were reasonable.” Scott v.

2 Harris, 550 U.S. 372, 383 (2007). The inquiry is objective. Graham v. Connor, 490 U.S. 386,

3 397 (1989); Glenn v. Washington Cnty., 673 F.3d 864, 871 (9th Cir. 2011). The vantage point is

4 that of a reasonable officer confronted with the same facts, bearing in mind the decisions occurred

5 in a “split” second and making every effort to ignore the advantages of “20/20 vision of

6 hindsight.” Graham, 490 U.S. at 396–97.

7 In determining whether Officer Wallace’s actions were objectively reasonable, the Court

8 “must balance the nature of the intrusion upon an individual’s rights against the countervailing

9 government interests at stake, without regard for the officers’ underlying intent or motivations.”

10 S.R. Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir. 2019), cert. denied sub nom. Browder v.

11 Nehad, 141 S. Ct. 235 (2020) (citing Graham, 490 U.S. at 396–97). “Whether a use of force was

12 reasonable will depend on the facts of the particular case, including, but not limited to, whether

13 the suspect posed an immediate threat to anyone, whether the suspect resisted or attempted to

14 evade arrest, and the severity of the crime at issue.” Id. “The most important Graham factor is

15 whether the suspect posed an immediate threat to anyone’s safety.” Id. (citing Mattos v. Agarano,

16 661 F.3d 433, 441 (9th Cir. 2011) (en banc)).

17 Reasonableness of force is usually a fact question for the jury. A.G.1 by & through Uribe

18 v. City of Fresno, No. 1:16-CV-01914-LJO-SAB, 2018 WL 4042906, at *4 (E.D. Cal. Aug. 22,

19 2018) (citing Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997)). “Because the

20 excessive force inquiry nearly always requires a jury to sift through disputed factual contentions,

21 and to draw inferences therefrom, [the Ninth Circuit has] held on many occasions that summary

22 judgment or judgment as a matter of law in excessive force cases should be granted sparingly.”

23 Id. (quoting Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012)).

24 In the instant case, Defendants argue Officer Wallace’s actions were objectively

25 reasonable based on the following evidence: the officers were responding to a suspected domestic

26 violence call; the 911 caller left open whether the suspect was armed; when the officers arrived at

27 the scene, Ms. Montelongo told the officers her brother was drunk inside the home and had been

28 threatening and aggressive with her mother; Officer Wallace recognized Ms. Montelongo’s fiancé

1 as being associated with the Norteños gang, raising suspicion that Mr. Montelongo might be in a

2 gang as well; the officers heard a woman cry for help from inside the home; when Mr.

3 Montelongo appeared at the front door, he concealed his right hand despite Officer Wallace’s

4 commands; Officer Wallace believed the concealed object could be gun or knife; Officer Wallace

5 fired his weapon after Mr. Montelongo “lunged” at him from close range with the unknown

6 object in his hand. (ECF No. 86 at 16–17.)

7 Defendants also argue it is irrelevant that Officer Wallace fired his weapon as Mr.

8 Montelongo was moving back into the house. (ECF No. 86 at 19.) Defendants emphasize that

9 only 1.5 seconds elapsed between the time Mr. Montelongo threw the object and Officer Wallace

10 fired his weapon. (Id.) Defendants submit a report from Kris Mohandie, Ph.D, a California

11 licensed psychologist trained in clinical, police, and forensic psychology. (ECF No. 86-4 at 4.)

12 Dr. Mohandie opines that “Officer Wallace’s decision to shoot had already been made prior to the

13 book being thrown at him” and “whether Officer Wallace still perceived a threat or not at that

14 point when the object was first thrown, given what is known about lag time, he would not have

15 been able to inhibit the shooting decision which had already been made, given the

16 psychophysiological dynamics of reaction time.” (Id. at 8.) Defendants also submit a report from

17 Scott R. Seaman, a law enforcement consultant. (ECF No. 86-5 at 2.) Mr. Seaman opines that

18 Officer Wallace acted in a manner consistent with policy, procedures, and law enforcement

19 training. (Id. at 27–31.) Based on this evidence, Defendants argue Officer Wallace reasonably

20 believed Mr. Montelongo was an immediate threat and used reasonable force to protect himself

21 from that perceived threat. (ECF No. 86 at 16–20.)

22 The Court agrees with Defendants that the conduct in the instant case is conduct that may

23 justify the use of deadly force. George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013) (“If the

24 person is armed — or reasonably suspected of being armed — a furtive movement, harrowing

25 gesture, or serious verbal threat might create an immediate threat.”). “The question on summary

26 judgment, however, is not whether some version of the facts supports [Defendants’] position, but

27 rather whether a trier of fact, viewing the evidence in the light most favorable to [Plaintiffs],

28 could find in [Plaintiffs’] favor.” S.R. Nehad, 929 F.3d at 1133 (emphasis added). For the

1 reasons set forth below, the Court finds a reasonable jury could conclude that Mr. Montelongo did

2 not pose an immediate threat that warranted the use of deadly force. See Gonzalez v. City of

3 Anaheim, 747 F.3d 789, 794 (9th Cir. 2014) (“The key issue in this case is whether a reasonable

4 jury would necessarily find that [the officer] perceived an immediate threat of death or serious

5 physical injury at the time he shot [the suspect] in the head.”); see also Vos v. City of Newport

6 Beach, 892 F.3d 1024, 1032 (9th Cir. 2018) (concluding “a reasonable jury could conclude that

7 [the suspect] was not an immediate threat to the officers” when the officers outnumbered the

8 suspect eight to one, did not believe the suspect had a gun, and had less lethal methods available

9 to stop the suspect from charging).

10 First, the body camera footage arguably contradicts Defendants’ repeated assertion that

11 Mr. Montelongo “lunged” at Officer Wallace. (See, e.g., ECF No. 86 at 13); see Vos, 892 F.3d at

12 1028 (“[V]ideo footage of the incident does not foreclose a genuine factual dispute as to the

13 reasonable inferences that can be drawn from that footage.”). It is undisputed that Mr.

14 Montelongo was six to ten feet away from Officer Wallace when he appeared in the doorway.

15 (ECF No. 90 at 4.) The footage shows that Mr. Montelongo remained in the doorway with his

16 feet unmoving as he threw the object — underhanded — at Officer Wallace. (Wallace Video at

17 00:48.) A trier of fact could determine that Mr. Montelongo’s underhanded toss did not pose a

18 serious physical threat to Officer Wallace.

19 Second, there is at least a reasonable inference that Officer Wallace had no reason to

20 believe Mr. Montelongo was armed. Officer Wallace states he believed the object behind Mr.

21 Montelongo’s back “was a gun or some other type of weapon.” (ECF No. 86-3 at 6.) In the

22 footage, however, Officer Wallace never verbalizes such a belief. Rather, he states Mr.

23 Montelongo threw “something” or an “object” at him. (Wallace Video at 01:01–01:06.)

24 Moreover, Ms. Montelongo testified that she informed Officer Wallace prior to the incident that

25 there were no weapons in the house. (V. Montelongo Dep. at 92 (filed under seal).) She also told

26 officers Mr. Montelongo was drunk and being loud and threatening, but “not that kind of

27 threatening.” (Callahan Video at 01:20–01:40 (emphasis added).) Ms. Montelongo’s statements

28 suggest the officers were on notice that Mr. Montelongo did not pose a serious physical threat.

1 Third, Officer Wallace fired his weapon after dodging the object. (Wallace Video at

2 00:48–00:49.) A reasonable jury could conclude any threat related to the concealed object

3 dissipated the moment the object passed by Officer Wallace. Defendants have not alleged that

4 there was any reason to believe Mr. Montelongo possessed any other potentially dangerous

5 objects on his person.

6 Lastly, the body camera footage clearly shows Mr. Montelongo was retreating into the

7 home and closing the front door when the shot was fired. (Id. at 00:49.) A reasonable jury could

8 conclude that a reasonable officer in Officer Wallace’s position would have perceived he was no

9 longer under attack. Further, a reasonable jury may also “consider the availability of other

10 methods to subdue” Mr. Montelongo other than shooting him in the chest. See Gonzalez, 747

11 F.3d at 797 (explaining that an officer who shot a suspect could have shot the suspect in a

12 nonlethal area of the body). For all these reasons, a reasonable jury could find that it was

13 apparent Mr. Montelongo was no longer a threat when Officer Wallace fired his weapon, at least

14 not a threat that warranted the use of deadly force.

15 Defendants primarily rely on three cases from within the Ninth Circuit. (ECF No. 86 at

16 17–19 (citing Cruz v. City of Anaheim, 765 F.3d 1076 (9th Cir. 2014); F.C. by & through

17 Corrales v. Impastato (F.C.), No. CV-11-00287-PHX-ROS, 2013 WL 12202371 (D. Ariz. Mar.

18 12, 2013); Smith v. Cnty. of Riverside, No. ED-CV-1600227-JGB-KKX, 2018 WL 5880610 (C.D.

19 Cal. June 15, 2018).) Defendants’ case law does not persuade the Court that Officer Wallace’s

20 actions were objectively reasonable as a matter of law.

21 In Cruz, officers received a tip from an informant that Cruz was “a gang member who sold

22 methamphetamine and carried a gun.” 765 F.3d at 1077. When a group of officers attempted to

23 detain Cruz during a traffic stop, Cruz backed his vehicle into a marked police car to escape. Id.

24 at 1078. Once officers eventually stopped Cruz’s vehicle, four officers testified Cruz ignored

25 commands and reached for the waistband of his pants. Id. The officers opened fire. Id. The

26 district court granted summary judgment to the officers, finding that the officers’ use of deadly

27 force was reasonable. Id. On appeal, the Ninth Circuit reversed, finding there was a genuine

28 factual dispute as to whether the officers saw Cruz reach for his waistband such that he still posed

1 an immediate threat when the officers shot him. Id. at 1079–1080.

2 In F.C., a district court granted summary judgment to an officer where the plaintiff was

3 caught selling drugs and then “simulated taking a gun out of his pocket, charged the [officer’s]

4 van with arms outstretched pointing his hands in the shape of a gun, and tried to make [the

5 officer] fear he was about to be shot.” 2013 WL 12202371, at *3. The plaintiff “got to within 12

6 to 18 inches” of the officer. Id. The court found “[u]nder these tense, uncertain, and rapidly

7 evolving circumstances, [the officer’s] split-second judgment was objectively reasonable.” Id. at

8 *4 (internal quotation marks omitted).

9 In Smith, a district court granted summary judgment in favor of officers who shot an

10 individual who, “armed with something, lunged at [an officer] who was three or four feet from

11 him.” 2018 WL 5880610, at *6 (emphasis in original). The court emphasized that the officers

12 reasonably believed the suspect had a knife or metal tool, the officers first attempted to use non-

13 lethal force with a taser, there was a risk of harm to close-proximity bystanders, and the suspect

14 had a “known recent history [of] armed assault.” Id. However, the court denied summary

15 judgment as to “the eighth and final shot fired.” Id. at *7. The court emphasized that the officers

16 failed to allege the suspect “still held a weapon once he stood up after being shot seven times,”

17 the suspect did not appear to make any threatening move toward the officers, and the suspect was

18 backing away from the officers when the eighth shot was fired. Id.

19 Although Mr. Montelongo did not comply with Officer Wallace’s two commands to show

20 his hands and threw a concealed object toward Officer Wallace, Mr. Montelongo did not display

21 the same degree of “dangerous and erratic” behavior as the plaintiffs in Cruz, F.C., or Smith. See,

22 e.g., Cruz, 765 F.3d at 1077–1078. In Cruz, for example, the officers had been told by an

23 informant that Cruz was a gang member who carried a gun, and Cruz backed into a patrol car to

24 evade police and emerged from the car when he was finally stopped. Id. Yet the Ninth Circuit

25 held even that was not enough to grant summary judgment unless the officers saw Cruz reach for

26 his waistband before firing their weapons. Id. at 1080.

27 In the instant case, looking at the evidence in the light most favorable to Plaintiffs and

28 drawing all reasonable inferences in their favor, it appears Mr. Montelongo tossed an object at

1 Officer Wallace from six to ten feet away, Officer Wallace dodged the object, and then Officer

2 Wallace fired his weapon despite seeing Mr. Montelongo immediately retreat. As such, this case

3 is similar to the eighth shot in Smith. See 2018 WL 5880610, at *7. A reasonable jury could find

4 the threat to Officer Wallace had subsided by the time he fired his weapon. Although Defendants

5 provide evidence that Office Wallace’s delay was due to a normal lag in reaction time (see

6 generally ECF Nos. 86-4, 86-5), Plaintiffs provide conflicting evidence from Scott DeFoe, a

7 police practices expert, who concluded that a reasonable officer in Officer Wallace’s position

8 would not have used deadly force. (ECF No. 91-14); see Vos, 892 F.3d at 1032 n.7 (“[T]he mere

9 seconds that elapsed . . . is one factor in the analysis. While the calculus of reasonableness must

10 embody the allowance for the fact that police officers are often forced to make split-second

11 judgments, the analysis requires the court to look at all the facts and circumstances surrounding

12 the interaction.”) (internal quotation marks omitted). A jury should resolve these factual issues.

13 See Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (explaining “we must respect the

14 exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary

15 conflicts, and draw reasonable inferences from proven facts”) (internal quotation marks and

16 brackets omitted).

17 Based on the existing record, the Court “cannot say that a verdict in favor of [Defendants]

18 on the claim for excessive force is the only conclusion that a reasonable jury could reach.” See

19 Gonzalez, 747 F.3d at 797. For these reasons, summary judgment is not appropriate on the issue

20 of whether there was a constitutional violation.

21 b. Qualified Immunity

22 Qualified immunity shields officials from civil liability where a reasonable officer would

23 not have known that his conduct violated a clearly established right. Anderson v. Creighton, 483

24 U.S. 635, 638–39 (1987). It “gives ample room for mistaken judgments by protecting all but the

25 plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224,

26 229 (1991). An officer may be denied qualified immunity at summary judgment in a § 1983 suit

27 only if (1) the facts alleged, viewed most favorably to plaintiff, show the officer used excessive

28 force in violation of the Fourth Amendment, and (2) the right was clearly established so a

1 reasonable officer would have known his conduct to be unlawful. Morales v. Fry, 873 F.3d 817,

2 821 (9th Cir. 2017). “[T]he two prongs of qualified immunity balance two important, competing

3 interests: the need to hold public officials accountable for irresponsible actions, and the need to

4 shield them from liability when they make reasonable mistakes.” Id. at 822.

5 As of the date of this incident in 2014, case law “clearly established that an officer may

6 not use deadly force to apprehend a suspect where the suspect poses no immediate threat to the

7 officer or others.” Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010). Further, “it would be

8 clear to a reasonable officer that his conduct was unlawful.” Longoria v. Pinal Cnty., 873 F.3d

9 699, 709–10 (9th Cir. 2017) (denying qualified immunity at summary judgment where fact and

10 credibility issues were to be decided by a jury in a case in which an unarmed suspect was shot

11 after a chase). Determining whether a law was clearly established does not “require a case

12 directly on point, but existing precedent must have placed the statutory or constitutional question

13 beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074 (2011). At the time of

14 the shooting, it was clearly established that officers may not use deadly force against a person

15 who is armed but cannot reasonably be perceived to be taking any furtive, harrowing, or

16 threatening actions. See George, 736 F.3d at 838; Curnow By and Through Curnow v. Ridgecrest

17 Police, 952 F.2d 321, 324–25 (9th Cir. 1991); see also Estate of Lopez by and through Lopez v.

18 Gelhaus, 871 F.3d 998, 1020 (9th Cir. 2017) (holding that George and Curnow clearly

19 established this principle at the time of the shooting in that case, October 22, 2013). This is true

20 even in circumstances in which the suspect has allegedly “committed a violent crime in the

21 immediate past.” See Harris v. Roderick, 126 F.3d 1189, 1203–04 (9th Cir. 1997); Smith, 2018

22 WL 5880610, at *9 (“Decedent may have initially attacked the Responding Officers, but if

23 Decedent no longer posed a threat, the use of deadly force violated clearly established law.”).

24 Officer Wallace is not entitled to summary judgment based on qualified immunity

25 because, as established previously, there is a material issue of fact as to whether Officer Wallace

26 violated Mr. Montelongo’s clearly established constitutional right. Longoria, 873 F.3d at 711;

27 Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 532 (9th Cir. 2010) (affirming denial of summary

28 judgment on qualified immunity because “there are genuine issues of fact regarding whether the

1 officers violated [the plaintiff’s] Fourth Amendment rights[, which] are also material to a proper

2 determination of the reasonableness of the officers’ belief in the legality of their actions”); Santos

3 v. Gates, 287 F.3d 846, 855 n.12 (9th Cir. 2002) (stating it was premature to decide qualified

4 immunity “because whether the officers may be said to have made a ‘reasonable mistake’ of fact

5 or law may depend on the jury’s resolution of disputed facts and the inferences it draws

6 therefrom”). Accordingly, Officer Wallace is not entitled to qualified immunity at this stage.

7 In sum, the Court DENIES Defendants’ motion for summary judgment as to Mr.

8 Montelongo’s excessive force claim.

9 The Complaint also alleges Defendants used excessive force by holding Plaintiffs within

10 the home at gunpoint. (ECF No. 1 at 7.) However, the evidence demonstrates that Officer

11 Wallace did not point his firearm at anyone other than Mr. Montelongo. (See generally Wallace

12 Video; Lozano Dep. 155:11–155:13; Ali. M. Dep. 122:10–122:24; J.M. Dep. 77:10–78:17; E.M.

13 Dep. 62:20–63:6, 66:4–67:1.) Notably, Plaintiffs do not address these claims in their opposition,

14 and there does not appear to be any other viable basis for the remaining Plaintiffs to bring

15 excessive force claims. For these reasons, the Court GRANTS Defendants’ motion for summary

16 judgment as to the remaining Plaintiffs’ excessive force claims.

17 ii. Unlawful Detention (Claims Two and Three)

18 “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the

19 Government, and its protections extend to brief investigatory stops of persons or vehicles that fall

20 short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v.

21 Ohio, 392 U.S. 1, 9 (1968)). Peace officers may conduct a brief, investigatory search or seizure,

22 so long as they have a reasonable, articulable suspicion that “criminal activity may be afoot.”

23 Terry, 392 U.S. at 30. The Fourth Amendment also prohibits arrests without probable cause or

24 other justification. Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964 (9th Cir. 2001). “Probable

25 cause to arrest exists when officers have knowledge or reasonably trustworthy information

26 sufficient to lead a person of reasonable caution to believe that an offense has been or is being

27 committed by the person being arrested.” Ramirez v. City of Buena Park, 560 F.3d 1012, 1023

28 (9th Cir. 2009).

1 Plaintiffs summarily allege in their second and third claim that the officers “detained

2 Plaintiffs without reasonable suspicion” and “arrested Plaintiffs without probable cause.” (ECF

3 No. 1 at 7.) These claims are devoid of factual allegations regarding who was detained, how the

4 individuals were detained, or why the detention was unlawful. Not only are Plaintiffs’ allegations

5 broad and conclusory, but Plaintiffs also fail to present any evidence or argument to defend their

6 unlawful detention claims in their opposition. As it is, the evidence shows that the officers had

7 probable cause to arrest Mr. Montelongo pursuant to California Penal Code § 148 after he refused

8 to comply with Officer Wallace’s commands and threw an object at the officer. (ECF No. 86 at

9 24.) The grounds for the other Plaintiffs’ unlawful detention claims are unclear and unsupported

10 by the evidence.

11 For these reasons, the Court GRANTS Defendants’ motion for summary judgment as to

12 Plaintiffs’ second and third claims.

13 iii. Equal Protection (Claim Four)

14 In order to state a § 1983 claim for violation of the Equal Protection Clause, “a plaintiff

15 must show that the defendants acted with an intent or purpose to discriminate against the plaintiff

16 based upon membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th

17 Cir. 1998) (citing Washington v. Davis, 426 U.S. 229, 239–240 (1976)).

18 In Claim Four, Plaintiffs allege the officers’ “unreasonable use of force” was “based on

19 Plaintiffs’ race.” (ECF No. 1 at 8.) Again, Plaintiffs’ allegations are broad and conclusory.

20 Additionally, Plaintiffs have not presented any evidence to suggest that Officer Wallace

21 intentionally used force because of Plaintiffs’ race.

22 Accordingly, the Court GRANTS Defendants’ motion for summary judgment as to

23 Plaintiffs’ fourth claim.

24 B. State Law Claims

25 Plaintiffs also bring three state law claims: (1) violation of the Ralph Act (Claim Five); (2)

26 violation of the Bane Act (Claim Six); and (3) intentional infliction of emotional distress (“IIED”)

27 (Claim Seven). Defendant moves for summary judgment as to all three state law claims. (ECF

28 No. 86 at 2.) The Court will address each claim in turn.

1 i. Ralph Act (Claim Five)

2 The Ralph Act, California Civil Code § 51.7, provides that “[a]ll persons within

3 [California] have the right to be free from any violence, or intimidation by threat of violence,

4 committed against their persons or property because of [race].” Cal. Civ. Code §§ 51.7(a), 51(b).

5 In order to establish a Ralph Act claim, “a plaintiff must show ‘(1) the defendant threatened or

6 committed violent acts against the plaintiff; (2) the defendant was motivated by his perception of

7 plaintiff’s race; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial

8 factor in causing the plaintiff’s harm.’” Warren v. Marcus, 78 F. Supp. 3d 1228, 1248 (N.D. Cal.

9 2015).

10 Plaintiffs do not address the Ralph Act claim in their opposition. Like the Equal

11 Protection claim, Plaintiffs’ Ralph Act claim fails because there is no evidence that Officer

12 Wallace’s actions were racially motivated. Therefore, the Court GRANTS Defendants’ motion

13 for summary judgment as to Plaintiffs’ Ralph Act claim.

14 ii. Bane Act (Claim Six)

15 The Bane Act, California Civil Code § 52.1, provides a private cause of action against

16 anyone who “interferes by threats, intimidation, or coercion, or attempts to interfere by threats,

17 intimidation, or coercion, with the exercise or enjoyment by an individual or individuals of rights

18 secured by the Constitution or laws of the United States, or laws and rights secured by the

19 Constitution or laws of California.” Cal. Civil Code § 52.1(a).

20 Defendant argues that Plaintiffs’ Bane Act claim fails because there is no underlying

21 constitutional violation. (ECF No. 86 at 27.) For the reasons already discussed, there are genuine

22 issues of material fact as to whether Officer Wallace used excessive force against Mr.

23 Montelongo in violation of his Fourth Amendment rights. See Cameron v. Craig, 713 F.3d 1012,

24 1022 (9th Cir. 2013) (“[T]he elements of the excessive force claim under § 52.1 are the same as

25 under § 1983.”). However, as discussed, there is no evidence that Defendants interfered with the

26 remaining Plaintiffs’ legal rights, and Plaintiffs make no argument on this point. As such, the

27 Court DENIES Defendants’ motion for summary judgment as to Mr. Montelongo’s Bane Act

28 claim and GRANTS the motion as to the remaining Plaintiffs’ Bane Act claims.

1 iii. IIED (Claim Seven)

2 To succeed on an IIED claim, Plaintiffs must show that Defendants intentionally or

3 recklessly caused them to suffer “severe or extreme emotional distress” through their “extreme

4 and outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009). “A defendant’s

5 conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a

6 civilized community.” Id. (internal quotation marks omitted).

7 Plaintiffs argue they have “extreme anxiety being around law enforcement officers” and

8 are “angry and scared about what happened to them.” (ECF No. 89 at 25.) Plaintiffs further

9 argue they “are deeply saddened” about Officer Wallace’s use of force in response to Mr.

10 Montelongo “tossing” a book at the officer. (Id.) Plaintiffs assert “Defendants’ contention that

11 [Officer] Wallace’s actions do not amount to outrageous conduct is mistaken and not in line with

12 long standing and well settled law in California.” (Id.) Yet Plaintiffs fail to cite any authority to

13 support this assertion.

14 Plaintiffs’ IIED claims fail as a matter of law because no reasonable jury could find that

15 the officers engaged in extreme and outrageous conduct. Although the Court has decided that a

16 reasonable jury could find that Officer Wallace’s actions constituted excessive force, Officer

17 Wallace’s actions — responding to the domestic disturbance call, firing a single shot at a suspect

18 who failed to comply with commands and threw a concealed object at him, and subsequently

19 clearing Plaintiffs from the home — were not “so extreme as to exceed all bounds of that usually

20 tolerated in a civilized community.” Hughes, 46 Cal. 4th at 1050.

21 Accordingly, the Court GRANTS Defendants’ motion for summary judgment as to

22 Plaintiffs’ IIED claims.

23 IV. CONCLUSION

24 For the foregoing reasons, the Court hereby GRANTS in part and DENIES in part

25 Defendants’ Motion for Summary Judgment (ECF No. 86) as follows:

26 1. The Court DENIES summary judgment as to Mr. Montelongo’s excessive force claim

27 and GRANTS summary judgment as to the remaining Plaintiffs’ excessive force

28 claims (Claim One);

1 2. The Court GRANTS summary judgment as to Plaintiffs’ remaining § 1983 claims

2 (Claims Two, Three, and Four);

3 3. The Court GRANTS summary judgment as to Plaintiffs’ Ralph Act claim (Claim

4 Five);

5 4. The Court DENIES summary judgment as to Mr. Montelongo’s Bane Act claim and

6 GRANTS summary judgment as to the remaining Plaintiffs’ Bane Act claims (Claim

7 Six); and

8 5. The Court GRANTS summary judgment as to Plaintiffs’ ITED claim (Claim Seven).

9 The only remaining claims are Mr. Montelongo’s excessive force claim (Claim One) and

10 | Bane Act claim (Claim Six). Therefore, the Court DISMISSES all Plaintiffs except Mr.

11 | Montelongo from this action. The remaining parties are ORDERED to file a Joint Status Report

12 | within thirty (30) days of the electronic filing of this Order indicating their readiness to proceed to

13 | trial and proposing trial dates.

14 IT IS SO ORDERED.

15 | DATED: June 14, 2021

16 hy /)

17 “ \/ the

19 United States District Judge

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