Steinmeir v. County of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 SUZANNE STEINMEIER, Case No.: 18cv1603 JM (WVG)

12 Plaintiff,

ORDER DENYING DEPUTY FRANK

13 v. LEYVA’S AND DEPUTY KENNETH

EDWARDS’ MOTION FOR

14 COUNTY OF SAN DIEGO; SAN

SUMMARY JUDGMENT, OR IN

DIEGO COUNTY SHERIFF’S

15 THE ALTERNATIVE, FOR

DEPARTMENT; SHERIFF WILLIAM

SUMMARY ADJUDICATION

16 GORE; FRANK LEYVA; KENNETH

EDWARDS; PETER ALVARADO;

17

BRIAN KEENE; WILLIS WHITED; and

18 DOES 3 through 10,

19 Defendants.

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21 In this civil rights action under 42 U.S.C. § 1983, Plaintiff Suzanne Steinmeier

22 (“Plaintiff”) alleges San Diego County Sheriff’s Deputies Frank Leyva and Kenneth

23 Edwards (“the Deputies”) used excessive force in violation of her Fourth Amendment

24 rights when they struck her multiple times after she kicked a police dog that was biting her

25 wife. The Deputies now move for summary judgment. (Doc. No. 34.) The motion has

26 been fully briefed and the court finds it suitable for submission on the papers and without

27 oral argument in accordance with Civil Local Rule 7.1(d)(1). For the below reasons, the

28 motion is DENIED.

1 I. FACTUAL BACKGROUND

2 The parties do not dispute that on the evening of April 27, 2015, Plaintiff was driving

3 in Riverside County with her wife, Michelle Rivera (“Rivera”), as a passenger. After being

4 pulled over by a California Highway Patrol (CHP) officer for a broken side mirror, they

5 were informed they both had felony warrants and would be arrested. Plaintiff drove away

6 from the scene and CHP Officers and San Diego County Sheriff’s Deputies pursued. A

7 police helicopter joined the chase. Plaintiff sped, ran stop lights, and drove on the wrong

8 side of the road. The vehicle pursuit lasted over 45 minutes. Plaintiff eventually stopped

9 the vehicle on a rural road near where she and Rivera lived. They exited the vehicle, slid

10 down a hill into a dry riverbed, and walked and ran along the riverbed for eight minutes

11 until they stopped and laid down on their backs under some trees. The riverbed into which

12 they fled was dark and rugged. They could be seen, however, by the helicopter crew using

13 night-vision equipment. The helicopter crew advised the officers on the ground as to the

14 suspects’ movements and location. Plaintiff and Rivera laid underneath the trees for 22

15 minutes until the Deputies reached them. At this point, the parties’ accounts diverge.

16 1. Plaintiff’s Account

17 According to Plaintiff, while lying on her back, she saw a flashlight and immediately

18 put her hands up. (Doc. No. 43 at 79:7-8, 91:1-6, 109:6-11.) The officer holding the

19 flashlight was a “few feet” in front of her. (Id. at 69:12.) Right after seeing the flashlight,

20 she saw a dog about ten feet away from her feet, (id. at 70:1-2, 12-14; 71:3-12), but it ran

21 past her, (id. at 71:2-5). Plaintiff understood the dog was trying to locate her. (Id. at 70:18-

22 24.) The dog went back to the handler and sat down at the officer’s feet. (Id. at 72: 6-10,

23 17-18.) The dog looked up at the handler like the dog had done something good. (Id. at

24 109:18-19.) Plaintiff saw the handler staring at them.1 (Id. at 72:23.) She and Rivera had

25 their hands up and said, “we surrender.” (Id. at 73:1-10.) The police were “already around”

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1 Plaintiff later stated that she believed the dog handler was Deputy Leyva. (Doc. No. 43

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1 them. (Id. at 109:13.) She was illuminated by multiple flashlights and there were no bushes

2 or boulders between her and the officers. (Id. at 72:11-14, 93:2-9.) The dog was “re-

3 released,” (id. at 73:12, 108:3-14), and began biting Rivera on her inner thigh, (id. at 72:15-

4 16), but at that point Plaintiff did not attempt to assist Rivera.2 (Id. at 73:22-24.) The

5 police “may have” said something prior to the bite. (Doc. No. 34-9 at 55-56.) While

6 handcuffed or while being handcuffed, Plaintiff kicked the dog about three or four times.

7 (Doc. No. 43 at 74:2-20.) The dog handler did not say anything to Plaintiff. (Id. at 75:2-

8 4.) She then got flipped over onto her stomach. (Id. at 75:7.) After being handcuffed, she

9 was hit on her back and head multiple times with a fist and an object that she believed was

10 a flashlight. (Id. at 76:1-9.) Plaintiff also claims that at some point Deputy Leyva said,

11 “that’s what you get, you dyke bitch.” (Doc. No. 43 at 77:9-15.)

12 2. The Deputies’ Accounts

13 According to Deputy Leyva, when he and his police dog Bary (“Bary”) arrived on

14 the scene, he was informed that two suspects were lying down somewhere in the dark

15 riverbed area. (Doc. No. 34-9 at 96:2-7.) He was aware the suspects had felony arrest

16 warrants and had just led police on a lengthy chase. (Id. at 98:4-9.) He was not familiar

17 with the area, (id. at 108:5-12), but knew the suspects were familiar with the area, (Doc.

18 No. 34-3 at 3:11-13). At the beginning of his search, before entering the dark riverbed, he

19 yelled for the suspects to come out or they would be bitten. (Doc. No. 34-9 at 111:15-

20 112:14.) After walking a “good distance,” (id. at 114:16-20), the helicopter guided him to

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22 2 At a deposition on September 6, 2019, Plaintiff testified:

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We surrendered, our hands were in the air, and he – like there was flashlights

24 on us, we had our hands in the air, the cops – the dog already had passed us.

Like, he came – the dog came initially – I wouldn’t even be sitting here if the

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dog bit us first. But he went past us, the dog went back to his handler, like by

26 to Leyva, and Leyva like was mad at the dog, and he was like yanking him

and making him go back and bite us.

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(Doc. No. 46-3 at 16:11-20.)

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1 the “general area” of the suspects, (id. at 100:16-17, 114:20). Deputy Leyva claims he saw

2 “silhouettes” and “figures or whatever.”3 (Id. at 102:14-17; 116:19-20.) He did not have

3 his flashlight out, but could see despite the darkness because there were five or six officers

4 behind him with flashlights.4 (Id. at 110:16-17.) There were bushes, rocks, branches,

5 foliage and a small hill obstructing his view. (Id. at 114:21-115:20.)

6 When Deputy Leyva saw the figures or silhouettes, he pointed in that direction and

7 gave Bary an apprehension command. (Id. at 116:21-23.) Deputy Leyva then saw Bary

8 biting Rivera and saw Plaintiff kicking Bary. (Doc. 34-9 at 122.) He heard Plaintiff yelling

9 at him to get the dog off her. (Id.) He twice told her to stop kicking his dog, but she did

10 not obey. (Id.) Neither suspect was handcuffed at that point. (Id.) Deputy Leyva testified

11 that he lunged forward on top of Plaintiff and hit her in the face.5 (Id. at 123.) When he

12 struck her, she stopped kicking Bary because it pushed her away just slightly. (Id.) He

13 then glanced over and saw uniforms to his right, and got off Plaintiff because he wanted to

14 grab Bary and get him off Rivera. (Id.) The other deputies were trying to get Plaintiff

15 secured in handcuffs. (Id.) Deputy Leyva testified he did not remember seeing her hands,

16 (id. at 124), but in a subsequent declaration, he stated he could not see her right hand. (Doc.

17 No. 34-3 at 4:14.)

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19 3 Deputy Leyva later testified, “I don’t believe I ever had a clear visual of exactly what it

20 was. I just knew it stuck out in the area.” (Doc. No. 34-9 at 101:13-14; see also id. at

116:8-9 (“I just caught something out of my peripheral that didn’t fit where we were. . . . I

21 never saw them. I saw two figures or silhouettes out there, like I said, something that didn’t

22 match the area.”); id. at 117:2-3 (“I couldn’t see a hundred percent what it was or who it

was[.]”).)

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4 Deputy Leyva later testified, “if they turn their light on, it’s going to give me a little bit

of light, and that’s all I need to be able to move forward. I don’t believe that they were

25 ever so far behind me that I couldn’t see at least a little bit out in front of me.” (Doc. No.

26 34-9 at 110:18-21.)

27 5 In his declaration, Deputy Leyva states he struck Plaintiff once in her right cheek with a

closed fist. (Doc. No. 34-3 at 13.)

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1 According to Deputy Edwards, he was following 20 to 30 feet behind Deputy Leyva

2 with his flashlight on. (Doc. No. 34-9 at 138:13-16.) He heard Bary barking and a female

3 screaming and ran over to the area. (Id. at 157:7-9.) He saw Bary biting Rivera and Deputy

4 Leyva on top of Plaintiff while both suspects were on their backs. (Id. at 139.) Plaintiff

5 was trying to kick Bary, and Deputy Leyva was yelling to get off the dog. (Id. at 140:1-2.)

6 Deputy Edwards told Deputy Leyva to get off Plaintiff so that Deputy Leyva could get

7 Bary. (Id. at 142:7-9.) When Deputy Leyva got off the Plaintiff, she flipped over onto her

8 stomach and Deputy Edwards jumped on her. (Id. at 142:13-15, 158:4-7.) Deputy

9 Edwards recognized Plaintiff from her warrant photo and told her to put her hands behind

10 her back, but she did not comply. (Id. at 142:22-143:7.) Deputy Edwards claims she put

11 her hands in her waistband. (Id. at 158:6-7.) He struck her with his flashlight in the right

12 shoulder area. (Id. at 144:2-9.) She did not comply. (Doc. No. 34-2 at 4:25-5:2.) He

13 struck her three more times. (Id. at 5:1-2.) He and another Deputy then handcuffed

14 Plaintiff. (Doc. No. 34-9 at 141:10-12.)

15 II. PROCEDURAL HISTORY

16 On March 24, 2017, Plaintiff and Rivera filed a complaint in state court under

17 42 U.S.C. § 1983 alleging violation of their Fourth Amendment right to be free from

18 excessive force by police.6 (Doc. No. 1-3.) As Defendants, she named: (1) the County of

19 San Diego; (2) the San Diego County Sheriff’s Department; (3) Sheriff William Gore; (4)

20 Deputy Leyva; (5) Deputy Edwards; (6) Deputy Peter Alvarado; and (6) and Does 1

21 through 10, in both their individual and official capacities. (Doc. No. 1 at 2, 1-5 at 4.)

22 Rivera subsequently dismissed her claims against all Defendants on July 24, 2017. (Doc.

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6 Much of the material provided by the parties here, including deposition and trial

25 testimony, was part of a concurrent lawsuit based on the same events brought solely by

Rivera in the U.S. District Court for the Central District of California on April 26, 2016.

26

See Rivera v. Cty. of San Diego, Case No. ED CV 16-795 PSG (KSx), 2017 WL 5643151,

27 at *1 (C.D. Cal. Nov. 14, 2017). The case went to trial on June 29, 2017, and the jury

returned a verdict in favor of the Defendants. Id. The verdict was subsequently affirmed.

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1 No. 1-5 at 98-100.) Rivera was thus voluntarily dismissed from the action without

2 prejudice, leaving Steinmeier as the only Plaintiff. (Id.) On June 12, 2018, Plaintiff

3 amended the Complaint by identifying CHP Officers Brian Keene as Doe 1, (Doc. No. 1-

4 3 at 4), and Willis Whited as Doe 2, (Doc. No. 1-4). Keene and Whited removed this action

5 to federal court on July 16, 2018. (Doc. No. 1.) On August 29, 2019, Deputies Leyva and

6 Edwards filed the instant motion for summary judgment. (Doc. No. 34-1.) Plaintiff filed

7 a response in opposition on September 16, 2019, (Doc. No. 42), and Defendants filed a

8 reply on September 23, 2019, (Doc. No. 46).

9 III. LEGAL STANDARD

10 A motion for summary judgment shall be granted where “there is no genuine issue

11 as to any material fact and . . . . the moving party is entitled to judgment as a matter of

12 law.” Fed. R. Civ. P. 56(c). The moving party bears the initial burden of informing the

13 court of the basis for its motion and identifying those portions of the record demonstrating

14 the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

15 323 (1986). The court must examine the evidence in the light most favorable to the non-

16 moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt as to

17 the existence of any issue of material fact requires denial of the motion. Anderson v.

18 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “A material issue of fact is one that affects

19 the outcome of the litigation and requires a trial to resolve the parties’ differing versions of

20 the truth.” SEC v. Seaboard, 677 F.2d 1301, 1306 (9th Cir. 1982). Summary judgment

21 can only be entered “if, under the governing law, there can be but one reasonable

22 conclusion as to the verdict.” Anderson, 477 U.S. at 250. The court may not weigh

23 evidence or make credibility determinations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th

24 Cir. 1986).

25 IV. DISCUSSION

26 Constitutional violations by persons acting under the color of state law may be

27 redressed by bringing suit in federal court under 42 U.S.C. § 1983. Gomez v. Toledo,

28 446 U.S. 635, 639 (1980). In a section 1983 claim, the plaintiff must show (1) the action

1 occurred “under color of state law,” and (2) resulted in the deprivation of rights under the

2 Constitution or federal statute. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988)

3 (citations omitted).

4 Under the Fourth Amendment, the force used by police must be objectively

5 reasonable when considering the totality of the circumstances. Tennessee v. Garner,

6 471 U.S. 1, 7-8 (1985). The objective reasonableness of the force involves a three-part

7 inquiry. Graham v. Connor, 490 U.S. 386, 396 (1989). The court should first examine

8 the type and amount of force used, then assess the government’s interests in using the

9 force by looking at “(1) the severity of the crime at issue, (2) whether the suspect posed

10 an immediate threat to the safety of the officers or others, and (3) whether the suspect

11 actively resisted arrest or attempted to escape.” Maxwell v. Cty. of San Diego, 697 F.3d

12 941, 951 (9th Cir. 2012). These factors are non-exhaustive. Id. The third step is to

13 balance the degree of force against the government interest at stake to determine if the

14 force used was “greater than is reasonable under the circumstance.” Santos v. Gates,

15 287 F.3d 846, 854 (9th Cir. 2002). “The reasonableness of a particular use of force must

16 be judged from the perspective of a reasonable officer on the scene, rather than with the

17 20/20 vision of hindsight.” Graham, 490 U.S. at 396. This determination is “ordinarily

18 a question of fact for the jury.” Liston v. County of Riverside, 120 F.3d 965, 976 (9th Cir.

19 1997). Accordingly, in excessive force cases, “summary judgment should be granted

20 sparingly.” Maxwell, 697 F.3d at 951; see also Estate of Lopez by & through Lopez v.

21 Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017); Gonzalez v. City of Anaheim, 747 F.3d 789,

22 795 (9th Cir. 2014) (en banc). For the below reasons, summary judgment cannot be

23 granted because genuine disputes of material fact exist.

24 A. Genuine Disputes of Material Fact

25 As discussed above, the parties offer starkly different accounts of what transpired

26 the night of April 27, 2015 during the critical few seconds when Plaintiff and Rivera were

27 apprehended. These differing accounts raise several genuine disputes of material fact.

28 First, the parties dispute whether Plaintiff and Rivera had visibly surrendered prior to

1 Deputy Leyva commanding Bary to apprehend them. Plaintiff claims that Deputy Leyva

2 commanded Bary to attack even though Deputy Leyva saw they were lying down, with

3 their hands raised, and they said, “we surrender.” (Doc. No. 42 at 7-9.) Plaintiff testified

4 that she saw Deputy Leyva staring at them. (Doc. No. 43 at 72:23.) The video also shows

5 that before Bary bit Rivera, one officer was only a few feet away from the suspects and

6 another officer was close by. In contrast, Deputy Leyva claims that when he gave Bary

7 the apprehension command, he saw “two silhouettes laying in the brush underneath a

8 tree,” but never had a “clear visual” of the silhouettes because it was dark. (Doc. No. 34-

9 1 at 11-12.) He denies the suspects were illuminated by flashlights or that he saw or heard

10 them surrender.7 (Doc. No. 34-3 at 4:9-10.)

11 Second, the parties dispute when Plaintiff was handcuffed and when force was used.

12 Plaintiff claims she was struck after being handcuffed and placed on her stomach.8 (Doc.

13 No. 43 at 75:2-4, 75:7, 76:1-9, 81:16:23.) In contrast, Deputy Leyva claims he punched

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15 7 The Deputies claim that Plaintiff admitted to surrendering “just prior” to Rivera being

bitten, which was too late to factor into the analysis. (Doc. No. 34-1 at 11-12 n.6.) Plaintiff

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actually testified that it was 20 to 30 seconds from when she first raised her hands to when

17 Bary bit Rivera. (Doc. No. 34-9 at 23.) The question of whether 20 to 30 seconds was

enough time for Deputy Leyva to have called off Bary is one appropriate for resolution at

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trial, not summary judgment.

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8 Plaintiff admits she kicked Bary while being handcuffed or after she was handcuffed.

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(Doc. No. 43 at 74:2-5.) Plaintiff does not specify, however, the precise point at which she

21 was handcuffed or when she kicked Bary. Taking the facts in the light most favorable to

Plaintiff, she alleges she was handcuffed before she was struck, or at the very least, while

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be restrained on the ground. When asked when she began kicking Bary, Plaintiff initially

23 testified “I believe it was after the officers are handcuffing me.” (Id. at 74:2-5; see also id.

at 74:12-14 (“Q: And what did you do as they were – were they able to handcuff you? A:

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They – I started kicking the dog.”).) Plaintiff subsequently testified that when she began

25 kicking the dog, an officer flipped her over onto her stomach, (id. at 75:5-9), and she was

hit with what she believed was a fist and object, (id. at 76:1-9). Plaintiff was asked whether

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the officer was able to handcuff her at that point and Plaintiff responded, “I was already

27 handcuffed” and “I was handcuffed the whole time.” (Id. at 76:12-14.) During her most

recent deposition, Plaintiff testified that she did not know when police started trying to

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1 Plaintiff while she was on her back, while she was kicking Bary, after he repeatedly told

2 her to stop, before he could see her right hand, and before she was handcuffed. (Doc. No.

3 34-3 at 4:13-18.) Deputy Edwards claims he struck Plaintiff while she was on her stomach

4 with her hand in her waistband, before she was handcuffed, and after she repeatedly refused

5 his commands to show him her hands. (Doc. No. 34-2 at 4:25-5:2.)

6 Third, the parties dispute what force was used. As noted above, Deputy Leyva

7 admits he punched Plaintiff once on the right cheek, (Doc. No. 34-3 at 4:13-18), and

8 Deputy Edwards admits he hit Plaintiff four times with his flashlight in the right shoulder

9 area, (Doc. No. 34-2 at 4:25-5:2.) In contrast, Plaintiff initially claimed she was hit with

10 the flashlight between 10 and 20 times. (Doc. No. 43 at 76:10-11.) Plaintiff does not claim

11 she was hit in the face. (Doc. No. 42 at 11:27.) Plaintiff later testified that after she was

12 rolled onto her stomach she felt “like dumps, like hits or whatever” on her head and neck

13 area. (Doc. No. 46-3 at 9-10.) She did not know the number of times she was hit on her

14 head and back area, but stated that it was “a few” and “less than 10 maybe.” (Id. at 10:8-

15 9.) She then stated that “it might have been” the 10 to 20 number she previously stated,

16 (id. at 10:11-22), but went back and forth about whether her previous testimony that she

17 was hit 10 to 20 times was accurate, stating:

18 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 –

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and like too much, but – not that I was doing anything like on purpose. I just

20 don’t – I don’t remember, you know, so – but I would like to say it was less

than the number I gave then.

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22 (Id. at 11:6-12:5.) She also stated, “I think an object hit me at least once on my head,” (id.

23 at 12:19-20), and “I thought I got kicked. . . . [s]omewhere on my back, like the side or like

24 – like somewhere in the lower area,” (id. at 13:18-22).9

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27 9 The parties also dispute whether Deputy Leyva said “that’s what you get, you dyke bitch.”

(Doc. Nos. 43 at 77:9-15, 34-3 at 5:17-18). The comment is material to intent, which in

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1 Although each party claims their version of events is supported by the record, courts

2 should only reject one party’s version of the events when it is so blatantly contradicted by

3 the record, including video evidence, that no reasonable jury could believe it. Scott v.

4 Harris, 550 U.S. 372, 380 (2007). The materials submitted by the parties, including the

5 video evidence, do not support or refute either party’s version of events to the point where

6 summary judgment could be appropriate. Although the video evidence shows the moment

7 when Bary contacted the suspects, it does not clearly show Bary biting Rivera, Plaintiff

8 kicking Bary, Plaintiff being handcuffed, the Deputies striking Plaintiff, or the location of

9 Plaintiff’s hands. Accordingly, multiple genuine disputes of material fact exist, including

10 whether Plaintiff was handcuffed prior to being struck, whether Deputy Leyva punched

11 Plaintiff while she was kicking Bary, whether Deputy Leyva had the opportunity to protect

12 Bary by means other than punching Plaintiff, and whether Plaintiff was resisting arrest

13 and hiding her hands when she was struck by Deputy Edwards. These genuine issues of

14 material facts indisputably bear on the ultimate question of whether excessive force was

15 ever used against Plaintiff, and if so, by whom and under what circumstances.

16 In considering whether to grant summary judgment, the evidence must be viewed in

17 the light most favorable to Plaintiff and the court must accept the version of events most

18 favorable to her. Drummond v. City of Anaheim, 343 F.3d 1052, 1054 n.1 (9th Cir. 2003).

19 Accordingly, the court must accept Plaintiff’s version that Deputy Leyva ordered Bary to

20 attack Plaintiff and Rivera even though he knew where they were located, saw them lying

21 on their backs with their hands raised, and heard them say “we surrender.” He did not have

22 objectively reasonable cause to suspect they were violent, only that they wanted to evade

23 arrest. He did not give any warning about Bary, or at least not one that could be heard.

24 There were at least three other officers nearby. When Bary bit Rivera, Plaintiff defended

25 her wife by kicking Bary. Plaintiff was put on her stomach and handcuffed and then struck

26 multiple times in the head and back, which included at least one punch in the head from

27 Deputy Leyva and four strikes with a flashlight to the right shoulder area from Deputy

28 Edwards. Plaintiff may have also been kicked. At some point thereafter, Deputy Leyva

1 said to Plaintiff, “that’s what you get, you dyke bitch.” These facts, though relying

2 primarily on Plaintiff’s credibility, are not so blatantly contradicted by the record that no

3 reasonable jury would believe them to be true. Furthermore, as discussed below, these

4 disputed facts are clearly material to the determination of whether the Deputies’ use of

5 force was excessive and, therefore, preclude the court from finding that the Deputies are

6 entitled to qualified immunity.

7 B. Qualified Immunity

8 The Ninth Circuit has found that qualified immunity “was conceived as a summary

9 judgment vehicle, and the trend of the Court’s qualified immunity jurisprudence has been

10 toward resolving qualified immunity as a legal issue before trial whenever possible.”

11 Morales v. Fry, 873 F.3d 817, 823 (9th Cir. 2017). “[C]omparing a given case with existing

12 statutory or constitutional precedent is quintessentially a question of law for the judge, not

13 the jury.” Id.

14 In addressing qualified immunity at summary judgment in excessive force cases, the

15 court must determine (1) whether the facts, taken in the light most favorable to the party

16 asserting the injury, show the officer’s conduct violated the Fourth Amendment’s right

17 against excessive force, and (2) whether the right in question was clearly established at the

18 time of the violation. Tolan v. Cotton, 572 U.S. 650, 655-56 (2014). “[U]nder either prong,

19 courts may not resolve genuine disputes of fact in favor of the party seeking summary

20 judgment.” Id. at 656 (internal citation omitted).

21 1. Excessive Force

22 Under the Fourth Amendment, the right to make an arrest necessarily carries with

23 it the right to use some degree of physical coercion to effect it. Graham v. Connor,

24 490 U.S. 386, 396 (1989) (citing Terry v. Ohio, 392 U.S. 1, 22-27 (1968). Police officers

25 are not required to use the least intrusive degree of force possible. See Forrester v. City

26 of San Diego, 25 F.3d 804, 806 (9th Cir. 1994). Police may use only such force to effect

27 an arrest as is “objectively reasonable” under the circumstances. Graham, 490 U.S. at

28

1 397 (1989); Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185, 1198 (9th

2 Cir. 2001).

3 a. Type and Amount of Force Used

4 The first step in an excessive force inquiry requires the court to assess the severity

5 of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and

6 amount of force inflicted. Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017)

7 (citations omitted), cert. denied, 138 S. Ct. 1283 (2018). The inquiry must be conducted

8 on a case-by-case basis because it is a “highly fact-intensive task for which there are no

9 per se rules.” Id. (quoting Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011)).

10 The Deputies argue the force used on Plaintiff was not excessive because Deputy

11 Leyva “only” punched Plaintiff once and Deputy Edwards “only” struck Plaintiff four

12 times with a “thin, 1.7 pound” flashlight. (Doc. No. 34-1 at 18.) The facts that Deputy

13 Leyva only punched Plaintiff once and that Deputy Edwards’ flashlight weighed 1.7

14 pounds are not, in and of themselves, supportive of reasonableness. See Santos, 287 F.3d

15 at 853-54 (shoving can amount to excessive force if unreasonable). Moreover, punching,

16 kicking, and/or hitting with a flashlight are intermediate levels of force that significantly

17 intrude on Fourth Amendment rights. See Young v. Cty. of Los Angeles, 655 F.3d 1156,

18 1161-62 (9th Cir. 2011) (strikes with an impact weapon “capable of inflicting significant

19 pain and causing serious injury” are generally considered intermediate force); Garlick v.

20 Cty. of Kern, 167 F. Supp. 3d 1117, 1147 (E.D. Cal. 2016) (“Generally, impact blows by

21 punching or kicking are considered ‘significant force.’”) (citing Blankenhorn v. City of

22 Orange, 485 F.3d 463, 480 (9th Cir. 2007)).

23 The intrusion is mitigated somewhat, however, by Plaintiff’s lack of immediate

24 injury. (Doc. No. 34-1 at 18-19.) The lack of injury, therefore, can support the

25 reasonableness of force. Felarca v. Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018) (“We

26 may infer from the minor nature of a plaintiff’s injuries that the force applied was minimal.

27 While injuries are not a precondition to section 1983 liability, their absence can suggest a

28 lesser degree of force when that force is of the type likely to cause injuries.”) (internal

1 citations omitted). Here, one would expect some bruising or swelling to result from a

2 punch to the head and several strikes from a flashlight, yet there is no indication of any

3 such injury. See Felarca, 891 F.3d at 817 (finding minimal force where injuries would

4 normally be expected). The medic on the scene, however, found “no obvious visual signs

5 of trauma.” (Doc. No. 34-9 at 269.) A photo of Plaintiff’s face taken at the scene by

6 Deputy Edwards, including one of her right cheek where Deputy Leyva claims to have

7 punched her, shows no visible injuries. (Id. at 167; Doc. No. 34-2 at 5.) The emergency

8 room doctor’s notes state “[t]here is no evidence clinically, by either history, physical

9 exam, or diagnostic studies, of any significant injuries to the head, face, neck, back, chest,

10 head, abdomen or extremities.” (Doc. No. 43 at 133.) The lack of injury therefore provides

11 some support that the Deputies’ strikes, in and of themselves, were not excessively

12 forceful. As discussed below, however, the reasonability of striking Plaintiff at all does

13 not comport with Plaintiff’s version of the facts.

14 b. The Government’s Interest

15 The second step in an excessive force analysis under the Fourth Amendment is to

16 evaluate the government’s interest in the use of force. Lowry, 858 F.3d at 1257. That

17 interest is assessed by considering: (1) the severity of the crime at issue; (2) whether the

18 suspect posed an immediate threat to the safety of the officers or others; and (3) whether

19 the suspect was actively resisting arrest or attempting to evade arrest by flight. Id. (citing

20 Graham, 490 U.S. at 396. These factors are not exclusive, however, and the court must

21 examine the totality of circumstances and consider other factors when appropriate. Id.;

22 see also Chew v. Gates, 27 F.3d 1432, 1440 n.5 (9th Cir. 1994) (“Other courts have

23 supplemented these factors with such matters as . . . . whether more than one arrestee or

24 officer was involved [and] whether other dangerous or exigent circumstances existed at

25 the time of the arrest[.]”). Finally, as the Supreme Court explained in Graham:

26 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

27

vision of hindsight. . . . Not every push or shove, even if it may later seem

28 unnecessary in the peace of a judge’s chambers, violates the Fourth

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2

circumstances that are tense, uncertain, and rapidly evolving – about the

3 amount of force that is necessary in a particular situation.

4 490 U.S. at 396-97 (internal citations and quotation marks omitted).

5 i. Severity of the Crime at Issue

6 The Deputies argue the force used on Plaintiff was reasonable because they knew

7 she had a felony warrant. (Doc. No. 42 at 7.) This factor provides only minimal support,

8 however, because the Deputies did not know whether the basis for the warrant involved

9 violence. (Doc. No. 34-1 at 23.) While “outstanding felony warrants are not to be taken

10 lightly,” “[if] the record does not reveal the type of felony for which [a suspect] was

11 wanted, the existence of the warrants is of limited significance” and is “not strong

12 justification for the use of dangerous force.” Chew, 27 F.3d at 1442 (emphasis in original);

13 Bryan v. MacPherson, 630 F.3d 805, 829 n.12 (9th Cir. 2010) (“[W]e have previously

14 suggested that felonies not involving violence provide limited support for the use of

15 significant force under Graham.”) (citations omitted). The warrants nonetheless provide

16 some support for the Deputies because the Ninth Circuit has also stated that the severity

17 of the crime factor “generally” weighs in favor of the reasonability of the use of force

18 when police have “reason to believe” the suspect committed a “felony-grade offence.”

19 Gonzalez v. City of Anaheim, 715 F.3d 766, 770 (9th Cir. 2013), rev’d on other grounds

20 on reh’g en banc, 747 F.3d 789 (9th Cir. 2014) (citing Coles v. Eagle, 704 F.3d 624, 628

21 (9th Cir. 2012)). Although the police in Gonzalez and Coles witnessed suspects in the act

22 of committing non-violent felonies, the Deputies here had a similarly strong reason to

23 believe that Plaintiff committed a felony based on her felony warrant.

24 In addition to knowing that Plaintiff had a felony warrant, the Deputies knew that

25 Plaintiff committed crimes related to fleeing from the police. As pointed out by the

26 Deputies, some courts have found evasion and reckless driving to weigh in favor of the use

27 of force. See Estate of Martin v. United States, Case No. 13cv1386 LAB (BGS), 2015 WL

28 5568049, at *9 (S.D. Cal. Sept. 22, 2015) (“[Police knew the suspect] was attempting to

1 evade them, and driving with extreme recklessness. These are serious crimes, and weigh

2 in favor of the government’s interest in the use of force to apprehend [the suspect by tasing

3 him in his car].”), aff’d, 686 F. App’x 419 (9th Cir. 2017); Skylstad v. Reynolds, 248 F.

4 App’x 808, 811 (9th Cir. 2007) (“The severity of the crimes of driving at high speeds

5 through residential areas cannot be understated. The car and driver posed an immediate,

6 serious threat to officers and others.”). While Plaintiff led police on a lengthy chase during

7 which she sped, ran stop lights, and drove on the wrong side of the road, Plaintiff was not

8 driving recklessly at the point at which the Deputies used force against her. Because the

9 force used was not related to neutralizing the danger posed by Plaintiff’s reckless driving,

10 the fact that Plaintiff drove dangerously weighs only minimally, if at all, in favor of the

11 Deputies.

12 ii. Threat to Officer Safety

13 The most important factor in an excessive force analysis is whether the suspect posed

14 a safety threat. See George, 736 F.3d at 838. For this factor to weigh in favor of the

15 officers, “the objective facts must indicate that the suspect pose[d] an immediate threat to

16 the officer or a member of the public.” Bryan, 630 F.3d at 826. The Deputies primarily

17 argue their safety was threatened because they were susceptible to an ambush. (Doc. Nos.

18 34-1 at 9:6-9, 19:24-20:3, 34-9 at 109:10.) Certainly, numerous facts support the

19 reasonableness of the Deputies’ initial concern for their own safety. They were searching

20 for two suspects wanted for unknown felonies in a dark, undeveloped, and unfamiliar area

21 with ample natural hiding places. The Deputies also had reason to believe Plaintiff and

22 Rivera were familiar with the area given that it was on or near their property. Both suspects

23 had also demonstrated a commitment to avoiding arrest based on the lengthy pursuit on

24 which they had just led police.

25 Favorable conditions for an attack on police do not, however, necessarily constitute

26 objective facts indicating an immediate threat justifying the use of force. Here, the

27 opportunity for Plaintiff and Rivera to ambush the Deputies was greatly diminished, if not

28 eliminated, because a police helicopter was watching the suspects with night vision

1 equipment and directing the Deputies to the suspects’ exact location. Furthermore, while

2 the Deputies repeatedly argue they did not know whether the suspects had weapons or

3 could gain access to weapons, (Doc. No. 34-1 at 6:8-9, 9:9, 10:7, 10:15-18, 13:18-19, 20:7-

4 8), the Deputies were aware the helicopter crew could see the suspects clearly enough to

5 describe their movements. At no point did the helicopter crew advise the Deputies that the

6 suspects were armed or hiding. Instead, the helicopter repeatedly informed the Deputies

7 that the suspects were lying down underneath some trees. (See Doc. No. 43 at 44 (“The K-

8 9, if you were to turn right, right now. Turn your flashlight to the right. To the right, yeah.

9 Right there, directly, you’re directly on them right now. They’re lying down, underneath

10 some trees. It’s doesn’t look too thick, but you might not be able to see them, yeah, like

11 we can see them.”); 39-40 (“If you go straight and walk like right off the edge of that down

12 into the brush line, that’s where these two are lying down under the trees.”).) Finally, at

13 the point at which force was used on Plaintiff, she was not hidden, and according to her,

14 she was lying on her stomach in handcuffs or was being held down while being handcuffed.

15 Even if the Deputies could not see the suspects and were, therefore, vulnerable to an

16 ambush at the moment Deputy Leyva gave Bary the apprehension command, this was no

17 longer the case when, seconds later, Bary bit Rivera and the Deputies saw the suspects on

18 the ground.10

19 As pointed out by the Deputies, the Ninth Circuit has held, in two somewhat similar

20 cases, that officers were justified in the use of a police dog because they were entitled to

21 assume that a hidden suspect posed an immediate threat where the officers did not know if

22

23 10 The Deputies do not argue that Plaintiff’s attack on Bary was itself sufficient to

objectively indicate an immediate threat to their own safety, or that an attack on a police

24

dog constitutes a threat to the safety of “officers or others” as contemplated in Graham.

25 The Deputies cite no authority, and the court is aware of none, addressing the degree of

justification that an attack on a police dog provides for the use of force by police officers.

26

The court declines to address the issue here given the parties’ multiple genuine disputes of

27 material fact, including whether a reasonable officer in Deputy Leyva’s position would

have viewed Plaintiff’s attack on Bary, at least in part, as an act in defense of her wife

28

1 the suspect was armed and the suspect ignored warnings that the police dog would be

2 released. First, in Miller v. Clark Cty., 340 F.3d 959, 965 (9th Cir. 2003), police pursued

3 a wanted felon who was pulled over during a traffic stop and fled on foot into a dark and

4 wooded area with which the suspect was familiar. Id. at 961. Before entering the woods,

5 the officers warned of the dog’s presence. Id. When released, the dog located and bit the

6 suspect. Id. In finding the dog’s bite to be a reasonable use of force, the Ninth Circuit

7 relied heavily on the unique ability of police dogs to eliminate the opportunity for hiding

8 suspects to ambush pursuing police. Id. at 966-68. Second, in Lowry, 858 F.3d at 1258,

9 police responded to a silent burglar alarm in a dark commercial building with an open door.

10 Before entering, the police warned of the presence of a police dog, and when released, the

11 dog located and bit a sleeping employee who had unwittingly tripped the alarm. Id. In

12 finding use of the police dog to be reasonable, the Ninth Circuit relied on the special danger

13 presented by burglary suspects. Id.

14 Miller and Lowry are distinguishable because the Plaintiff here was located before

15 the police dog was released. Rather, Plaintiff was struck by police after the police observed

16 her kick the police dog during the handcuffing process. As already noted, the threat that

17 Plaintiff could ambush police was greatly mitigated, if not eliminated, by the presence of

18 a police helicopter equipped with night-vision equipment advising the Deputies as to

19 Plaintiff’s and Rivera’s precise location and movements. Because the Deputies knew

20 Plaintiff’s location, could see her prior to using force against her, and used a far different

21 type of force than used on the plaintiffs in Miller and Lowry, those cases do not require

22 finding that the Deputies acted reasonably.11

23 iii. Flight and Resisting Arrest

24 There is no dispute that at the point of apprehension, Plaintiff was not actively

25 fleeing. Furthermore, at the point force was used against her, she claims she was being

26

27 11 The police in Miller also knew the suspect was wanted for a dangerous felony, may not

have been law enforcement friendly, and might be armed. Miller, 340 F.3d at 961. Also,

28

1 handcuffed or was already handcuffed. The Deputies concede “she was no longer running

2 away when the deputies encountered her,” but they argue she was still “evading arrest.”

3 (Doc. No. 34-1 at 24-25.) The Ninth Circuit has found that when a suspect flees then hides,

4 the suspect’s flight has terminated, at least temporarily. Chew v. Gates, 27 F.3d 1432, 1442

5 (9th Cir. 1994). A reasonable officer would not then necessarily conclude that punching

6 or striking Plaintiff was warranted to prevent flight.

7 There is no dispute, however, that Plaintiff violently kicked a police dog. An attack

8 on a police dog could reasonably be construed by an objective officer as an attempt to resist

9 arrest, even if the suspect was already handcuffed. In such cases, the application of some

10 force might well be reasonable to stop the attack and effectuate the arrest. Here, however,

11 a potential question exists as to whether an objectively reasonable officer in Deputy

12 Leyva’s position would have perceived the attack on Bary as one of resistance to arrest,

13 rather than an act in defense of another. Moreover, Deputy Edwards does not suggest that

14 his use of force was in response to Plaintiff’s attack on Bary. Plaintiff’s attack on Bary

15 therefore provides some support for Deputy Leyva’s punch, but not Deputy Edwards’

16 strikes.12

17 iv. Less Intrusive Alternatives

18 Finally, whatever objectively reasonable concerns the attack on Bary might have

19 raised for police, the evidence indicates that a reasonable officer in Deputy Leyva’s

20 position would have resolved those concerns using less restrictive means. Deputy Leyva

21 admittedly punched Plaintiff in the head rather than commanding Bary to move away from

22 Plaintiff or removing Bary away from Plaintiff himself. The record suggests Bary was on

23

24

12 The video evidence also supports Deputy Leyva’s claim that Bary’s bite and Deputy

25 Leyva’s punch were reasonable because, if only for an instant, Deputy Leyva had the

responsibility of controlling both suspects while outnumbered. (Doc. No. 34-1 at 12:7-9.)

26

This does not weigh heavily in his favor, however, given that Bary, though not a human

27 law enforcement officer, surely possessed his own formidable apprehension abilities and

was in fact subduing, or at least preoccupying, Rivera with his bite so that Deputy Leyva

28

1 a leash while Plaintiff was kicking him. (See Doc. Nos. 34-1 at 11:10, 34-9 at 115:11.)

2 While officers are not required to use the least intrusive means of responding to an exigent

3 situation, they must act within a reasonable range of conduct. Glenn v. Washington Cty.,

4 673 F.3d 864, 876 (9th Cir. 2011). Clear, reasonable, and less intrusive alternatives to the

5 force employed weighs against a finding that the use of force was reasonable. Id.

6 Plaintiff’s attack on Bary was undoubtably an immediate threat to the canine’s safety.

7 Plaintiff’s use of violence against Bary may have also objectively signaled a propensity to

8 use violence against the Deputies. When asked why he did not simply remove Bary while

9 Plaintiff was kicking him, however, Deputy Leyva gave a somewhat ambiguous and non-

10 responsive answer, stating:

11 Bary is my partner. We go to work every day together. I know that dog would

give his life for me, and I’m not going to sit there and just let somebody beat

12

the crap out of my dog. So I told her to stop kicking him. She didn’t. I lunged

13 forward to get her away from him, which, you know, unfortunately, made the

bite be a little bit longer. But once I got her away from Bary and stop kicking

14

him [sic], then I went and grabbed a hold of Bary and took him off the bite.

15

16 (Doc. No. 34-9 at 123-24.) Also, as previously noted by this court, Sheriff’s Department

17 guidelines may have required Deputy Leyva to consider less intrusive alternatives than

18 punching Plaintiff in the head. (Doc. No. 13 at 11 n.8.) To the extent Deputy Leyva was

19 justified in punching Plaintiff in the head in order to protect Bary from Plaintiff’s kicks and

20 subdue a demonstrably violent suspect, the apparent availability of less intrusive

21 alternatives may undermine the reasonableness of his actions. Based on the foregoing, and

22 taking the facts in the light most favorable to Plaintiff, a reasonable jury could find that

23 Deputy Leyva’s use of force was not objectively reasonable.

24 2. Clearly Established Right

25 Police officers have qualified immunity from civil liability so long as their conduct

26 does not violate clearly established statutory or constitutional rights of which a reasonable

27 person would have known. Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). Clearly

28 established rights are those that are “‘sufficiently clear that every reasonable official would

1 have understood that what he is doing violates that right.’” Id. (quoting Reichle v.

2 Howards, 566 U.S. 658, 664 (2012)). Courts do not require a case to be directly on point,

3 “‘but existing precedent must have placed the statutory or constitutional question beyond

4 debate.’” Id. (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)). “Put simply,

5 qualified immunity protects ‘all but the plainly incompetent or those who knowingly

6 violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The Supreme

7 Court has repeatedly instructed courts “‘not to define clearly established law at a high level

8 of generality.’” Id. (quoting Ashcroft, 563 U.S. at 742)). “The dispositive question is

9 ‘whether the violative nature of particular conduct is clearly established.’” Id. The inquiry

10 must be conducted “‘in light of the specific context of the case, not as a broad general

11 proposition[.]’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). “Such specificity

12 is especially important in the Fourth Amendment context, where the Court has recognized

13 that ‘[i]t is sometimes difficult for an officer to determine how the . . . . excessive force

14 [doctrine] will apply to the factual situation the officer confronts.’” Id. (quoting Saucier,

15 533 U.S. at 202).

16 Consistent with this court’s previous order denying in part Defendants’ motion for

17 judgment on the pleadings, (Doc. No. 13 at 15-16), several cases support the clear

18 establishment of the right to be free from being struck by police under the particular

19 circumstances present here, which include allegations that Plaintiff was struck while on the

20 ground, handcuffed, or while being handcuffed. In Drummond, 343 F.3d at 1052-53,

21 officers sat on a mentally ill plaintiff’s back and neck, asphyxiating him, while he was on

22 the ground and unarmed. The court held that such severe force was unreasonable because

23 plaintiff was handcuffed on the ground, was not resisting arrest, and posed a minimal threat

24 to anyone’s safety. Id. at 1057-59. In Smith v. City of Hemet, 394 F.3d 689, 702-03 (9th

25 Cir. 2005), the officers pepper sprayed and sicced a police dog on the plaintiff even though

26 he was on the ground, face-down, unarmed, and wearing pajamas. The court found the

27 force was unreasonable, in part, based on the availability of alternative methods for

28 subduing the suspect even though he disregarded the officers’ orders, refused to put up his

1 ||hands, and was shouting expletives. Id. at 703. In Davis v. City of Las Vegas, 478 F.3d

2 (9th Cir. 2007), an officer slammed the plaintiff head-first into a wall and then

3 ||punched him in the face while plaintiff was on the ground. The court found the force

4 ||unreasonable in light of the minimal threat and flight risk plaintiff presented and the

5 || availability of alternatives. Jd. at 1055-56. Finally, in Blankenhorn, 485 F.3d at 480, the

6 ||court held that punching the plaintiff while he was on the ground being handcuffed was

7 ||unreasonable force even though the plaintiff initially resisted arrest.

8 These cases clearly establish that it is unlawful for an officer to strike a suspect while

9 || she is on the ground handcuffed, or while being handcuffed, and not posing an immediate

10 threat to officers or the public. The circumstances here are unique, of course, because

11 || Plaintiff admittedly kicked a police dog while she was on the ground before force was used

12 || against her. As noted above, kicking a police dog might justify the use of force in certain

13 circumstances. The apparent availability of less intrusive means for controlling Plaintiff

14 || and/or protecting Bary, however, as well as the lack of clarity in the record as to when and

15 || why Plaintiff kicked Bary, when and why Deputy Leyva punched Plaintiff, or even what

16 || force was used against Plaintiff, preclude the court from finding on summary judgment that

17 either Deputy is immune from liability on the basis of qualified immunity.

18 IV. CONCLUSION

19 For the forgoing reasons, the Deputies’ Motion for Summary Judgment, or in the

20 || Alternative for Summary Adjudication, is DENIED.

21 IT IS SO ORDERED.

22 || DATED: January 16, 2020 7. XM

23 FREY T.(MILLER

nited States District Judge

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