Narciso v. County of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 PATRICIA NARCISO, Individually and Case No.: 20cv116-LL-MSB

Through her Conservators MARCELINA

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LUNA and TRACY NARCISO, ORDER: (1) GRANTING IN PART

13 AND DENYING IN PART

Plaintiff,

DEFENDANTS’ MOTION FOR

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v. SUMMARY JUDGMENT; AND (2)

15 DENYING DEFENDANTS’ MOTION

COUNTY OF SAN DIEGO, DEPUTIES

TO FILE UNDER SEAL

16 DONALD FRANK and DARSHAUN

DOUGLAS, and Does 1 to 10,

17 [ECF Nos. 48, 49]

Defendants.

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This matter is before the Court on Defendants County of San Diego (“County”),

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Deputy Donald Frank (“Frank”), and Deputy Darshaun Douglas’s (collectively

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“Defendants”) Motion for Summary Judgment (“Motion”) and Motion to File Under Seal

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Defendants’ Exhibits J & K Lodged in Support of their Motion for Summary Judgment.

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ECF Nos. 48, 49. Defendants’ Motion for Summary Judgment has been fully briefed, and

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the Court deems it suitable for submission without oral argument. For the reasons stated

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below, the Court GRANTS IN PART and DENIES IN PART the Motion for Summary

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Judgment, and DENIES the Motion to File Under Seal.

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/ / /

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1 I. BACKGROUND

2 A. Factual Disputes

3 Unless otherwise stated, the Court finds the following material facts are supported

4 adequately by admissible evidence and are undisputed. ECF No. 59-1, Joint Statement of

5 Undisputed Facts (“JSUF”). They are “admitted to exist without controversy” for purposes

6 of the Motion. See Fed. R. Civ. P. 56(e)(2). To maximize clarity, the Court cites to the

7 JSUF, but references the Plaintiff’s version of the facts when noting a genuine factual

8 dispute. See Tolan v. Cotton, 572 U.S. 650, 657 (2014) (where genuine disputes exist, the

9 courts draw reasonable inferences in the non-moving party’s favor).

10 B. Factual Background

11 At the time of the incident at issue, Plaintiff Patricia Narciso (“Plaintiff”) was a

12 twenty-one-year-old woman who suffered from severe and chronic mental illness,

13 including schizoaffective disorder, borderline intellectual functioning, and autism

14 spectrum disorder. JSUF # 1. Since adolescence, Plaintiff has required multiple psychiatric

15 hospitalizations and has been prescribed multiple antipsychotic medications, mood

16 stabilizers, antidepressants, and hypnotic medications. Id. Plaintiff’s mother and sister,

17 Marcelina Luna and Tracy Narciso, have served as Plaintiff’s conservators since 2018. Id.

18 # 2.

19 In 2018, Plaintiff was attending Fred Finch Youth Center (“Fred Finch”), a school

20 in Spring Valley that provides referral-based individualized special education services for

21 students aged twelve through twenty-two and students dually diagnosed with both mental

22 health illness and developmental disabilities. Id. # 4.

23 On the morning of November 27, 2018, at approximately 10:30 a.m., Plaintiff had

24 an episode of irrational agitated behavior caused by her pre-existing conditions, and she

25 attempted to leave Fred Finch’s school campus. ECF No. 1, Complaint ¶ 12; id. # 6.

26 Plaintiff was coaxed back to a classroom (dubbed the “serenity room”) by Fred Finch’s

27 staff members. Id. # 7. Fred Finch’s school director, Bret Calhoun, called 9-1-1 for

28 assistance with Plaintiff’s episode. Complaint ¶ 12; id. # 8. When the 9-1-1 dispatcher

1 asked Calhoun if he needed an ambulance, Calhoun said no because Plaintiff was not

2 physically injured. ECF No. 53-1, Ex. 4, Deposition of Bret Calhoun 46:10–12; JSUF # 8.

3 Defendants Deputy Douglas and Deputy Frank were dispatched to Fred Finch. JSUF # 10.

4 The officers were informed and knew the incident involved control of a disabled student

5 and that Plaintiff suffered from autism. Complaint ¶ 13.

6 The remainder of the events was captured in video and audio through both deputies’

7 body cameras. See ECF No. 49-3, Ex. J, Douglas BWC video; ECF No. 49-3, Ex. K,

8 Frank’s BWC video; JSUF # 11. When the officers arrived to the scene, they found Plaintiff

9 on the floor of the serenity room in a prone position, with four Fred Finch staff members

10 physically restraining Plaintiff facedown and holding down each of Plaintiff’s limbs. JSUF

11 # 9, 10. Deputy Douglas handcuffed Plaintiff behind her back without incident. Complaint

12 ¶ 14; JSUF # 13. The officers asked the Fred Finch staff members what had happened prior

13 to their arrival, and Deputy Douglas escorted a couple of the staff members outside the

14 serenity room to speak with them. Complaint ¶ 14; JSUF # 14, 15.

15 Deputy Frank remained in the serenity room with Plaintiff and at least one Fred

16 Finch staff member. Complaint ¶ 15; JSUF # 15. During this time, Plaintiff began acting

17 out again and stated “if you’re gonna arrest me, I’m gonna kill those children . . .” JSUF #

18 16. Deputy Frank then said “You’re gonna what?”, “what kids are you talking about?”

19 “kids right here.” Id. Deputy Frank contends that Plaintiff tried to slip a hand out of her

20 handcuffs, and when he reached down to try and tighten the handcuffs, a physical struggle

21 ensued. Id. # 17. Deputy Frank also contends that during this struggle, he felt a tug on his

22 firearm holster. Id. # 19. This physical struggle lasted approximately fifteen seconds while

23 Plaintiff remained handcuffed. Id. # 18. Deputy Frank pinned Plaintiff to the floor.

24 Complaint ¶ 16; id. # 20.

25 After hearing this struggle from outside the serenity room, Deputy Douglas reentered

26 the serenity room. Complaint ¶ 16; Douglas BWC video 4:00–4:10; id. # 20. At this point,

27 the deputies determined Plaintiff qualified for a Cal. Welf. & Inst. § 5150 72-hour

28 psychiatric hold. JSUF # 21. To stand Plaintiff up, Deputy Douglas took hold of Plaintiff’s

1 right arm while Deputy Frank took hold of Plaintiff’s left arm while her wrists remained

2 handcuffed behind her back. Id. # 22; ECF No. 53, Opposition (“Oppo.”) at 11. As the

3 deputies began walking Plaintiff out of the room, Plaintiff tried to kick a Fred Finch staff

4 member. JSUF # 23. As a result, the officers placed each of Plaintiff’s arms in a

5 “hammerlock” hold, with each officer placing an arm between Plaintiff’s handcuffed arm

6 while bending her forward until her upper body was parallel to the ground. Complaint ¶

7 18; JSUF # 24. The officers kept Plaintiff in a hammerlock hold as they walked her out of

8 the school and towards the parking lot. JSUF # 25.

9 As they were walking Plaintiff out, the deputies briefly loosened their hold and

10 allowed Plaintiff to stand upright while she was still handcuffed. Complaint ¶ 20; JSUF #

11 26. The officers then began discussing which one of them would be transporting Plaintiff

12 to the hospital when Plaintiff attempted to head-butt Deputy Douglas. JSUF # 26. The body

13 cameras around this time of the incident capture video and audio, but do not capture

14 Plaintiff’s fall and how it happened. See Douglas BWC 5:38–5:50; Frank BWC 5:28–5:37.

15 According to Plaintiff, the officers deliberately forced Plaintiff forward and slammed her

16 on the asphalt, face first, with the officers landing on her back and shoulders. Complaint ¶

17 20; Oppo. at 13. According to Defendants, Plaintiff’s momentum was so powerful that it

18 caused all three of them to rapidly fall forward on the asphalt. Motion at 14. Defendants

19 and Plaintiff landed on the asphalt and both of Plaintiff’s arms were broken. JSUF # 27.

20 Deputy Frank called for an ambulance, and the deputies removed Plaintiff’s

21 handcuffs while waiting for the medics to come. Id. # 28, 29. An ambulance took Plaintiff

22 to Scripps Mercy Hospital for emergency medical treatment, where she was admitted and

23 remained for twelve days for medical treatment. Complaint ¶ 21. The fractures to Plaintiff’s

24 arms were so severe that she had two surgeries where both upper arms required open

25 reductions and the installation of hardware. Id. ¶ 22.

26 II. LEGAL STANDARD

27 A. Summary Judgment

28 Summary judgment is appropriate if, viewing the evidence and drawing all

1 reasonable inferences in the light most favorable to the nonmoving party, “there is no

2 genuine dispute as to any material fact and the movant is entitled to judgment as a matter

3 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986). At the

4 summary judgment stage, the court “does not assess credibility or weigh the evidence, but

5 simply determines whether there is a genuine factual issue for trial.” House v. Bell, 547

6 U.S. 518, 559–60 (2006). A fact is “material” if it “might affect the outcome of the suit

7 under the governing law,” and a dispute as to a material fact is “genuine” if there is

8 sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party.

9 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Cline v. Indus. Maint. Eng’g &

10 Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000). “If the evidence is merely colorable,

11 or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S.

12 at 248 (citations omitted).

13 The moving party bears the initial burden of identifying the portions of the pleadings

14 and record that it believes demonstrate the absence of an issue of material fact. See Celotex,

15 477 U.S. at 323. The burden then shifts to the non-movant to show “there is a genuine issue

16 of material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585

17 (1986). In carrying their burdens, the parties can either cite to evidence supporting their

18 own position or show the other side's position is either unsupportable or devoid of any

19 genuine dispute. Fed. R. Civ. P. 56(c)(1). “Only disputes over facts that might affect the

20 outcome of the suit under the governing law will properly preclude the entry of summary

21 judgment.” Anderson, 477 U.S. at 247–48; see also T.W. Elec. Serv., Inc. v. Pacific Elec.

22 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (“Disputes over irrelevant or

23 unnecessary facts will not preclude a grant of summary judgment.”)).

24 In addition, when a videotape captures the events in question, and there is no

25 indication that the videotape has been doctored or altered in any way, a court should look

26 to the videotape as direct evidence of the events. See Scott v. Harris, 550 U.S. 372, 378–

27 80 (2007). When a videotape of the events “blatantly contradicts” or “utterly discredit[s]”

28 the account of a party such that “no reasonable jury could believe it,” the court “should not

1 adopt that version of the facts for purposes of ruling a motion for summary judgment.” Id.

2 at 378–80.

3 III. DISCUSSION

4 Defendants move for summary judgment on each of Plaintiff’s claims.1 The Court

5 analyzes each of these causes of action in turn, first addressing the Section 1983 and

6 qualified immunity standards and the disability discrimination claims before addressing

7 the state law claims.

8 A. Section 1983 Excessive Force Claim

9 To prevail under a 42 U.S.C. § 1983 claim, a plaintiff must show the officers violated

10 a federal right acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

11 Plaintiff alleges that Defendants Douglas and Frank violated her Fourth Amendment right

12 to be free from excessive force. Complaint ¶ 33. Defendants argue their conduct did not

13 amount to excessive force in violation of the Fourth Amendment, and even if their conduct

14 amounted to excessive force, they are entitled to qualified immunity. Motion at 17–26.

15 Each of the Defendants’ arguments are addressed below.

16 1. Fourth Amendment Claim Against Deputies Douglas and Frank

17 Allegations of excessive force are examined under the Fourth Amendment’s

18 prohibition on unreasonable seizures. U.S. Const. amend. IV; Graham v. O’Connor, 490

19 U.S. 386, 394 (1989). “Determining whether the force used to effect a particular seizure is

20 ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and

21 quality of the intrusion on the individual's Fourth Amendment interests’ against the

22 countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (citing Tennessee

23 v. Garner, 471 U.S. 1, 8 (1985)). The “reasonable inquiry” in an excessive force case

24 examines “whether the officers' actions are ‘objectively reasonable’ in light of the facts and

25 circumstances confronting them.” Id. at 397. In determining the “reasonableness” of the

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1 This Court will not address Plaintiff’s Second Cause of Action for Deprivation of Civil

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1 use of force, the court must consider the three factors established in Graham: (1) the

2 severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the

3 type and the amount of force inflicted; (2) the government's interest in the use of force; and

4 (3) the balance of the gravity of the intrusion on the individual against the government's

5 need for that intrusion. Id.; see also Glenn v. Washington County, 673 F.3d 864, 871 (9th

6 Cir. 2011). These factors, however, are not exclusive. “Because the test of reasonableness

7 under the Fourth Amendment is not capable of precise definition or mechanical

8 application,” the reasonableness of a seizure must be assessed by carefully considering the

9 objective facts and circumstances that confronted the officers. Graham, 490 U.S. at 396.

10 “The calculus of reasonableness must embody allowance for the fact that police

11 officers are often forced to make split-second judgments—in circumstances that are tense,

12 uncertain, and rapidly evolving—about the amount of force that is necessary in a particular

13 situation.” Graham, 490 U.S. at 396–97. Therefore, “[t]he ‘reasonableness’ of a particular

14 use of force must be judged from the perspective of a reasonable officer on the scene, rather

15 than with the 20/20 vision of hindsight.” Id. at 396. Additionally, “[b]ecause [the excessive

16 force inquiry] nearly always requires a jury to sift through disputed factual contentions,

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

18 summary judgment or judgment as a matter of law in excessive force cases should be

19 granted sparingly.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005).

20 a. Severity of Intrusion

21 The first consideration is the type and amount of force inflicted after Plaintiff

22 “attempted to head-butt Deputy Douglas” as they were walking her out of the school. JSUF

23 # 25, 26. As to the type of force inflicted, Plaintiff claims that the two officers deliberately

24 took her down to the “parking lot asphalt, one by pushing the other by pulling, with so

25 much force.” Oppo. at 13. In addition, the amount of force employed by the officers was

26 severe enough to break both of Plaintiff’s arms and require two surgeries where both upper

27 arms required open reductions and the installation of hardware. Complaint ¶ 22.

28 The circumstances are not such in this case as to reasonably warrant the type and the

1 amount of force inflicted. First, no underlying crime was at issue. Defendants Douglas and

2 Frank were responding to the call from Fred Finch because Plaintiff was acting in an

3 emotionally disturbed manner. ECF No. 49-3, Ex. H and ECF No. 53-1, Ex. 5, Deposition

4 of Darshaun Douglas (“Dep. of Douglas”); ECF No. 49-3, Ex. I, and ECF No. 53-1, Ex. 6,

5 Deposition of Donald Frank (“Dep. of Frank”). Second, Defendants Douglas and Frank

6 were aware of Plaintiff’s mental disorders, and determined Plaintiff qualified for a Cal.

7 Welf. & Inst. § 5150 72-hour psychiatric hold. Complaint ¶ 13; JSUF # 21. Third, while

8 Plaintiff may have represented a threat to herself or possibly others before she was

9 handcuffed, a jury could find that she posed only a minimal threat to anyone’s safety once

10 she was handcuffed. Lastly, Plaintiff had no guns or weapons in her possession. Under

11 these circumstances, only the use of minimal force would have been permitted once

12 Plaintiff was handcuffed by Defendants. There is little, if any, basis for the type and amount

13 of physical force inflicted.

14 b. Government’s Interest in the Use of Force

15 With respect to the second consideration, the government’s interest in the use of

16 force, courts will consider “three primary factors, (1) ‘whether the suspect poses an

17 immediate threat to the safety of the officers or others,’ (2) ‘the severity of the crime at

18 issue,’ and (3) ‘whether he is actively resisting arrest or attempting to evade arrest by

19 flight.’” Glenn, 673 F.3d at 872 (citing Graham, 490 U.S. at 396.). The most important of

20 these factors is whether the suspect posed “an immediate threat to the safety of the officers

21 or others.” Smith, 394 F.3d at 702. Additionally, in some cases, the availability of

22 alternative methods of capturing or subduing a suspect may be a factor to consider. See

23 Chew v. Gates, 27 F.3d 1432, 1441 n.5 (9th Cir.1994). However, an officer need not

24 employ the “least intrusive” degree of force possible for their actions to be deemed

25 reasonable. See Gregory v. County of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008); see also

26 Bryan v. MacPherson, 630 F.3d 805, 831 n.15 (9th Cir. 2010) (explaining that the “settled

27 principle” that police officers are not required to employ the least intrusive amount of force

28 possible does not conflict with the “equally settled principle” that requires officers to at

1 least consider less intrusive means of effectuating an arrest).

2 Here, in regard to the severity of the crime, a jury could conclude that the police

3 were not called to Fred Finch on a suspicion of a “crime,” but rather in response to a call

4 indicating that Plaintiff was attempting to leave campus and was acting “verbally and

5 physically violent towards staff” while having an episode of irrational, agitated behavior.

6 Complaint ¶ 12; ECF No. 53-1, Exs. 8, 9 (San Diego County Sheriff’s Department Officer

7 Reports reported by Deputies Douglas and Frank regarding the incident). Further, as stated

8 above, Defendants never claim that Plaintiff was actively trying to evade arrest or flee the

9 scene. ECF No. 53-1, Exs. 8, 9. The second and third factors therefore point decisively

10 away from the officers’ interest in using force to bring Plaintiff down to the ground.

11 In assessing the first and most important factor, Defendants contend that Plaintiff

12 posed an immediate threat to their safety at the time of the incident because she “became

13 suddenly violent, assaultive, and made an (albeit unsuccessful) attempt to injure Deputy

14 Douglas. Id.; ECF No. 59 (“Reply”) at 5. They also claim that “the deputies’ quick-thinking

15 attempt to take Plaintiff to the ground in order to regain control of her, without . . . any

16 additional deployment(s) of force, clearly falls within the spectrum of reasonableness.”

17 Reply at 7. However, a “simple statement by the officer that he fears for his safety or the

18 safety of others in not enough; there must be objective factors to justify such a concern.”

19 Bryan, 630 F.3d at 826 (citing Deorle, 272 F.3d 1272, 1281 (9th Cir. 2001)). Moreover,

20 “[a] desire to resolve quickly a potentially dangerous situation is not the type of

21 governmental interest that, standing alone, justifies the use of force that may cause serious

22 injury.” Id.

23 In this case, ample facts exist that would allow a reasonable jury to conclude that

24 Plaintiff did not pose a threat to anyone’s safety. It was apparent that Plaintiff was unarmed.

25 Further, given the nature of the call and after determining that Plaintiff qualified for a Cal.

26 Welf. & Inst. § 5150 72-hour psychiatric hold, a jury could conclude that the officers knew

27 that they were dealing with a mentally ill person in need of help, and not a violent criminal.

28 The Ninth Circuit has stated that “the problems posed by, and thus the tactics to be

1 employed against an unarmed, emotionally distraught individual . . . are ordinarily different

2 from those involved in law enforcement efforts to subdue an armed and dangerous criminal

3 who has recently committed a serious offense.” See Deorle v. Rutherford, 272 F.3d 1272,

4 1282–83 (9th Cir. 2001). Although the Ninth Circuit has refused to create two tracks of

5 excessive force analyses—one for the mentally ill and one for serious criminals—the court

6 has repeatedly emphasized that a suspect's evident mental illness typically diminishes the

7 government's interest in using significant force, given that swift force employed against an

8 emotionally distraught individual often serves only to exacerbate, rather than defuse, a

9 potentially dangerous situation. Id. at 1282–83.

10 Ultimately, Defendants’ claims of fear for their safety rest on the notion that Plaintiff

11 had attempted to head-butt Defendant Douglas. Motion at 13. Although this is a form of

12 “active resistance,” which justifies the use of more force than against “passive resistance,”

13 Plaintiff remained handcuffed and within the deputies’ control during the incident at issue.

14 See Forrester v. City of San Diego, 25 F.3d 804, 805 (9th Cir. 1994) (passive resistance

15 has been described to include actions like “remaining seated, refusing to move, and

16 refusing to bear weight.”). The deputies were confronted by, at most, a disturbed and upset

17 individual. Plaintiff never broke free from the officers’ holds, and she was unarmed. It was

18 implausible to believe that Plaintiff posed a large threat to the deputies even if Plaintiff was

19 trying to head-butt Defendant Douglas. Additionally, the officers cannot claim Plaintiff

20 posed a threat to others because there were no bystanders within close proximity of Plaintiff

21 when they were exiting Fred Finch to approach Douglas’s patrol car. Thus, even the nature

22 of Plaintiff’s “active resistance” fails to establish a strong governmental interest in using

23 significant physical force.

24 c. Balancing Severe Force Against Government’s Interest

25 Here, in balancing the severity of the intrusion experienced by Plaintiff against the

26 government’s interest, some force was surely justified in initially restraining Plaintiff so

27 she could not injure herself, the Fred Finch staff members, or the arresting officers.

28 However, after Plaintiff was handcuffed and walked out of Fred Finch onto the parking lot,

1 the force that the officers then applied was clearly constitutionally excessive when

2 compared to the minimal amount that was warranted. It is undisputed that Plaintiff

3 attempted to head-butt Deputy Douglas. JSUF # 26. Plaintiff claims that the officers

4 “deliberately took down a handcuffed Patricia Narciso to the parking lot asphalt, one by

5 pushing the other by pulling, with so much force that they shattered the upper arm bones

6 on each side.” Oppo. at 13. On the other hand, Defendants contend that “Plaintiff’s

7 momentum was so powerful, that it caused all three of them to rapidly fall forward on the

8 asphalt.” Motion at 14. There is, therefore, a genuine issue of fact on this point, and one

9 that must be resolved in Plaintiff’s favor to conclude that the officers deliberately took

10 down Plaintiff as to crush both of her arms on the asphalt.

11 Additionally, as stated above, Plaintiff was a mentally disturbed individual not

12 wanted for any crime, and a detainee's mental illness must be reflected in any balancing of

13 the government's interest against the need in the use of force. See Deorle, 272 F.3d at 1283

14 (“Even when an emotionally disturbed individual is ‘acting out’ and inviting officers to use

15 deadly force to subdue him, the governmental interest in using such force is diminished by

16 the fact that the officers are confronted, not with a person who has committed a serious

17 crime against others, but with a mentally ill individual.”). As such, the officers’ interest in

18 quickly using significant force against Plaintiff is undermined by their knowledge of

19 Plaintiff’s mental disability; their knowledge that Plaintiff was unarmed; and their failure

20 to consider less intrusive alternatives before bringing her down to the ground.

21 Viewing the facts in the light most favorable to the Plaintiff and resolving all

22 disputed facts in her favor, a reasonable jury could find that the degree of force used against

23 Plaintiff violated her Fourth Amendment right against excessive force.

24 2. Qualified Immunity

25 Deputies Frank and Douglas argue that even if they used excessive force against

26 Plaintiff, they cannot be held personally liable for the injuries that Plaintiff suffered under

27 qualified immunity. Motion at 22–26. Given this Court’s determination above that there

28 are triable issues of fact to be resolved in determining whether there has been a violation

1 of Plaintiff’s Fourth Amendment rights, the Court must proceed to the question of whether

2 the officers are entitled to qualified immunity.

3 “Public officials are immune from suit under 42 U.S.C. § 1983 unless they have

4 ‘violated a statutory or constitutional right that was clearly established at the time of the

5 challenged conduct.’” City and County of San Francisco, Calif. v. Sheehan, 575 U.S. 600,

6 611 (2015) (citing Plumhoff v. Rickard, 572 U.S. 765, 778 (2014)). To be clearly

7 established, the “contours of the right must be sufficiently clear that a reasonable official

8 would understand that what he is doing violates that right.” Rice v. Morehouse, 989 F.3d

9 1112, 1125 (9th Cir. 2021) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The

10 Supreme Court has repeatedly cautioned the Ninth Circuit not to define clearly established

11 law at a high level of generality and that “the clearly established right must be defined with

12 specificity.” Id.; see also District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)

13 (defining the right at too high a level of generality “avoids the crucial question whether the

14 official acted reasonably in the particular circumstances that he or she faced.”).

15 Importantly, while a case directly on point is not required to determine whether an

16 officer violated clearly established law, existing precedent must place the lawfulness of the

17 particular action beyond debate. Mullenix v. Luna, 577 U.S. 7, 12 (2015). There can be “the

18 rare ‘obvious case,’ where the unlawfulness of the officer's conduct is sufficiently clear

19 even though existing precedent does not address similar circumstances.” Vazquez v. City

20 of Kern, 949 F.3d 1153, 1164 (9th Cir. 2020). The relevant inquiry is “whether the officer

21 had fair notice that her conduct was unlawful.” Nicholson v. City of Los Angeles, 935 F.3d

22 685, 690 (9th Cir. 2019).

23 In the instant case, taking Plaintiff’s version of the events as true, Plaintiff has not

24 shown that the use of the officers’ bodies and the force in the manner deployed violated a

25 clearly established constitutional right. No case at the time of the incident clearly

26 establishes that an officer’s takedown of a mentally ill person who was actively resisting

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1 or using physical force was excessive force. The cited cases by Plaintiff all involve distinct

2 factual circumstances. In Deorle, the police officer shot the drunk, verbally abusive, and

3 suicidal plaintiff using cloth-cased lead shots as he steadily walked toward the officer’s

4 direction with a can or bottle in his hand. Deorle, 272 F.3d at 1277–78. The lead shot round,

5 “akin to a rubber bullet” and potentially lethal at distances up to fifty feet, constituted force

6 capable of causing serious injury and was permissible only if compelled by a strong

7 governmental interest. Id. at 1279–80. It “knocked Deorle off his feet, [ ] removed one of

8 his eyes” and “left lead shot implanted in his skull.” Id. at 1275, 1279. In both Gravalet-

9 Blondin and Rice, the plaintiff was engaged in completely passive resistance. Rice, 989

10 F.3d at 1127 (citing Gravalet-Blondin, 728 F.3d at 1092) (the plaintiffs in both cases were

11 “perfectly passive, engaged in no resistance, and did nothing that could be deemed

12 particularly bellicose)). Similarly, in Santos v. Gates, the plaintiff was also “passive” and

13 immediately “went limp and slumped to the ground” as his wrists were grabbed to be

14 handcuffed. 287 F.3d 846, 849 (9th Cir. 2002) (mildly intoxicated plaintiff who was earlier

15 diagnosed as a paranoid schizophrenic was not actively resisting when police officers

16 “guided” him down to the ground to prevent plaintiff from hitting his head on the sidewalk).

17 The facts here also do not approximate those in other cases involving a mentally

18 disturbed individual. In Bryan v. MacPherson, the Ninth Circuit explained that even when

19 a mentally disturbed person behaves erratically, erratic behavior does not entitle an officer

20 to use force, and any force used must be proportional to the actual danger posed. 630 F.3d

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23 2 Plaintiff’s Motion for Supplemental Authority brings this Court’s attention to Andrews v.

City of Henderson, a Ninth Circuit case decided after the Plaintiff’s Opposition to the

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Motion was filed. 2022 WL 1613618 (9th Cir. May 23, 2022). Andrews is distinct and

25 involves a felony suspect. More importantly, Andrews was decided after the time of the

incident at hand here. Therefore, even if the right was clearly established by Andrews, it

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would not have been able to provide notice that a specific use of force was unlawful. See

27 Kisela v. Hughes, 138 S. Ct. 1148, 1154 (2018) (“a reasonable officer is not required to

foresee judicial decisions that do not yet exist in instances where the requirements of the

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1 at 829. This idea, however, was in relation to a discussion of excessive force, and not

2 qualified immunity. The court ultimately held that a reasonable officer was immune

3 because the officer could have made a reasonable mistake of law in the circumstances as

4 there was a lack of prior authority regarding whether tasers constituted an intermediate

5 level of force. Id. at 833. Bryan is also distinguishable in that the plaintiff was standing

6 fifteen to twenty-five feet away from the officer, facing away from the officer, and at no

7 point did he level a physical or verbal threat against the officer. Id. at 832–33.

8 Although a case directly on point with the exact same factual circumstances is not

9 required, there is no existing precedent that could have clearly established the violative

10 nature of the officers’ particular conduct in the specific context of the case. See Vos v. City

11 of Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018) (citing Mullenix v. Luna, 577 U.S.

12 7, 12 (2015)). This Court has found no clearly established law predating November 2018

13 that would put every reasonable officer on notice that the force used in this scenario

14 constitutes a constitutional violation. Even construing uncertainties in Plaintiff’s favor

15 here, the officers are entitled to qualified immunity.

16 Plaintiff’s experts have opined that Frank and Douglas disregarded California Police

17 Officer standards and San Diego Sheriff’s Department training regarding officer contacts

18 with mentally ill subjects. Oppo. at 11. According to Plaintiff’s experts, Plaintiff “could

19 have been safely secured on the [ambulance] stretcher’s multi-point soft restraint system .

20 . . while being transported to a hospital for evaluation and treatment” instead of deciding

21 to walk her handcuffed to “one of their patrol cars, and have one of them drive her, alone.”

22 Id. (citing ECF No. 53-2 ¶¶ 6–7, ECF No. 53-3 ¶¶ 13–14). However, Plaintiff has not

23 pointed to evidence indicating the officers were required to do this in every situation. See

24 ECF No. 53-2 (“Declaration of Scott A. DeFoe”) ¶ 7 (“For psychological emergencies,

25 activation of and/or referral to the EMS system may be appropriate. Where the patient may

26 be in danger to self or others, activation of the EMS system as well as proper officer/public

27 safety tactics are critical.”) (emphasis added). There is also no authority the officers were

28 required to do so when the undisputed facts indicate that Fred Finch’s school director

1 Calhoun told the 9-1-1 dispatcher an ambulance was unnecessary. JSUF # 8. While the

2 officers’ failure to consider the option of the Psychiatric Emergency Response Team

3 (PERT) or call an ambulance raises questions as to the reasonableness of the officers’

4 actions, the presence of alternative actions standing alone could not clearly establish a

5 constitutional boundary “beyond debate” given the absence of authority. See Bryan, 630

6 F.3d 805, 831 n.15 (9th Cir. 2010) In light of this finding, the Court grants summary

7 judgment in favor of Defendants Frank and Douglas on Plaintiff’s Fourth Amendment

8 claim.

9 B. ADA Claim

10 Defendants also seek summary judgment on Plaintiff’s ADA claim, which Plaintiff

11 asserts against County Defendant for “failing to provide [Plaintiff] with safe transportation

12 to a psychiatric facility for evaluation and treatment of her condition, and by retaliating

13 against Plaintiff for engaging in behaviors that were the result of her disability and not

14 volitional action.” Complaint ¶ 49; see Motion at 26–29. Plaintiff and the County agree

15 that Plaintiff is an individual with a disability who is qualified to participate in or receive

16 reasonable accommodation. JSUF # 1, 3. Defendant County, however, argues Plaintiff has

17 not established the County failed to reasonably accommodate her disability. Motion at 27.

18 To state a claim of disability discrimination and recover monetary damages under

19 Title II of the ADA, including a reasonable accommodation claim, the burden is on the

20 plaintiff to show that: (1) the plaintiff is an individual with a disability; (2) the plaintiff is

21 otherwise qualified to participate in or receive the benefit of some public entity's services,

22 programs, or activities; (3) the plaintiff was either excluded from participation in or denied

23 the benefits of the public entity's services, programs, or activities, or was otherwise

24 discriminated against by the public entity; and (4) such exclusion, denial of benefits, or

25 discrimination was by reason of the plaintiff's disability. Bresaz v. County of Santa Clara,

26 136 F. Supp. 3d 1125, 1132 (N.D. Cal. 2015) (citing Weinreich v. Los Angeles Cnty. Metro.

27 Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997)).

28 Here, Plaintiff presents evidence in the form of declarations from police practices

1 expert Scott A. DeFoe and psychiatrist Nathan Lavid, M.D., who state that officers

2 transporting a person experiencing behavioral health crisis to a hospital should call for the

3 PERT or Emergency Medical Services (EMS), but that was not done in this case. ECF No.

4 53-2 ¶¶ 4–7, ECF No. 53-3 ¶¶ 13–14. Plaintiff also presents evidence in the form of

5 declarations that officers transporting a person experiencing behavioral health crisis should

6 exercise extraordinary care to avoid serious injury and place the person down gently on her

7 behind. ECF No. 53-2 ¶¶ 9–10, ECF No. 53-3 ¶¶ 13–14. The Court finds the evidence is

8 sufficient, if credited by the jury, to establish the existence of a reasonable accommodation.

9 The Ninth Circuit’s decision in Vos v. City of Newport Beach is illuminating here.

10 892 F.3d 1024, 1037 (9th Cir. 2018). While acknowledging that police officers are forced

11 to make split-second decisions when presented with immediate threats, the Ninth Circuit

12 in Vos nevertheless found summary judgment inappropriate for the defendants because the

13 officers had an opportunity to wait for backup and employ the accommodations that the

14 plaintiff asserted were necessary, “including de-escalation, communication, or specialized

15 help.” Id. The officers had the time to employ less confrontational tactics and assess the

16 situation such that further accommodation was possible. Id. Additionally, the Ninth Circuit

17 has stated that the reasonableness of accommodation is an entirely different fact question

18 than an excessive force claim. Id. Similar to the defendants in Vos, Defendants had the time

19 and opportunity to assess the situation and employ the type of further accommodations

20 identified by Plaintiff and failed to do so. Therefore, the Court finds that Plaintiff has

21 offered sufficient evidence of a reasonable accommodation to survive summary judgment.

22 Finally, the County argues that there is no evidence of intentional discrimination on

23 the basis of Plaintiff’s disability. Motion at 27. Deliberate indifference is the appropriate

24 test. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). “Deliberate

25 indifference requires both knowledge that a harm to a federally protected right is

26 substantially likely and a failure to act upon that the likelihood.” Id. at 1139 (citing City of

27 Canton v. Harris, 489 U.S. 378, 389 (1989)). “When the plaintiff has alerted the public

28 entity to his need for accommodation (or where the need for accommodation is obvious, or

1 required by statute or regulation), the public entity is on notice that an accommodation is

2 required, and the plaintiff has satisfied the first element of the deliberate indifference test.”

3 Duvall, 260 F.3d at 1139.

4 Here, there is no question that the officers who responded to the call were aware of

5 Plaintiff’s mental illness, and Mr. Calhoun also informed the officers that Plaintiff was

6 suffering from mental health troubles. ECF No. 53-1, Exs. 8, 9 (San Diego County Sheriff’s

7 Department Officer Reports reported by Deputies Douglas and Frank stating they were

8 aware of Plaintiff’s mental condition); see also JSUF # 14. Defendants Douglas and Frank

9 also had engaged with Plaintiff around ten to fifteen minutes before the incident, during a

10 time in which Plaintiff exhibited symptoms of her mental disabilities. See ECF No. 49-3,

11 Exs. J-K. Defendant Douglas had also previously responded to calls from Fred Finch

12 around “20 to 25 times” and was aware the students there were “having behavioral issues

13 at the time.” Dep. of Douglas 25:3-6, 25:25. Despite all of this, Defendants Frank and

14 Douglas at no point undertook any accommodations, such as calling in special medical

15 forces trained to deal with individuals with mental health issues.

16 Accordingly, the Court finds it can be factually disputed whether the County failed

17 to act upon its knowledge that harm to Plaintiff was substantially likely. The Court finds

18 that there is evidence for a reasonable jury to conclude that the County intentionally

19 discriminated against Plaintiff on the basis of her disability. Therefore, summary judgment

20 is denied as to the claim against the County.

21 IV. STATE LAW CLAIMS

22 A. Rehabilitation Act of 1973

23 Plaintiff alleges that the County violated her right under section 504 of the

24 Rehabilitation Act of 1973, which provides that “[n]o otherwise qualified individual with

25 a disability in the United States . . . shall, solely by reason of her or his disability, be

26 excluded from the participation in, be denied the benefits of, or be subjected to

27 discrimination under any program or activity receiving Federal financial assistance.” 29

28 U.S.C. § 794(a). As “[t]here is no significant difference in analysis of the rights and

1 obligations created by the ADA and the Rehabilitation Act,” the Court analyzes the ADA

2 and Rehabilitation Act claims identically. Zukle v. Regents of Univ. of Cal., 166 F.3d 1041,

3 1045 n.11 (9th Cir. 1999). Therefore, because there is evidence before the Court that shows

4 that Plaintiff was subject to discrimination under the ADA, summary judgment is denied

5 as to Plaintiff’s Rehabilitation Act claim against County.

6 B. California Civil Code §§ 51.7 and 52.1

7 Plaintiff alleges that she is entitled to recovery under California’s Ralph Act (Cal.

8 Civ. Code § 51.7) and Bane Act (Cal. Civ. Code § 52.1) for violence against Plaintiff based

9 on her disability. Complaint ¶¶ 57–59. The Bane Act prohibits interference or attempted

10 interference with a person's rights under the U.S. or California Constitutions and laws by

11 “threats, intimidation, or coercion.” Cal. Civ. Code § 52.1(a)–(b). To state a Bane Act

12 claim, the plaintiffs do not need to establish a threat, intimidation, or coercion that is

13 “transactionally independent” from the constitutional violation. Reese v. Cnty. of

14 Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (citing Cornell v. City & Cnty. of San

15 Francisco, 17 Cal. App. 5th 766, 799–802 (2017)). Stating a claim for excessive force in

16 violation of the Fourth Amendment states a claim for excessive force under the Bane Act

17 because “the elements of the excessive force claim under § 52.1 are the same as under §

18 1983.” Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013).

19 Additionally, in Mendez v. County of Los Angeles, the Ninth Circuit explained that

20 “the California Supreme Court has held that immunity applies only to policy decisions, not

21 to operational decisions like the [officers’] decision to enter the [plaintiff's] residence.” 897

22 F.3d 1067, 1084 (9th Cir. 2018) (citing Caldwell v. Montoya, 10 Cal. 4th 972, 981 (1995)).

23 “Moreover, this ‘discretionary immunity’ does not apply to excessive force claims.”

24 Blankenhorn v. City of Orange, 485 F.3d 463, 487 (9th Cir. 2007); Scruggs v. Haynes, 252

25 Cal. App. 2d 256, 267–68 (1967). Therefore, unlike the § 1983 excessive force claim, the

26 officers here are not entitled to qualified immunity.

27 As the Court has previously determined there are triable issues of fact as to whether

28 Defendants violated Plaintiff’s Fourth Amendment rights by using excessive force, there

1 are also triable issues of fact as to Plaintiff’s Bane Act cause of action. Accordingly, the

2 Court denies summary judgment as to this claim.

3 C. Battery

4 Defendants move for summary judgment on Plaintiff’s battery claim against all

5 Defendants, contending that Defendants did not deploy excessive force, nor that Plaintiff

6 was ultimately injured by a deployment of excessive force. Motion at 30. Under California

7 law, “[a] state law battery claim is a counterpart to a federal claim of excessive use of force.

8 In both, a plaintiff must prove that the peace officer's use of force was unreasonable.”

9 Brown v. Ransweiler, 89 Cal. Rptr. 3d 801, 811 (Ct. App. 2009); see also Avina v. United

10 States, 681 F.3d 1127, 1131 (9th Cir. 2012) (“In California, claims that police officers used

11 excessive force in the course of an arrest, investigatory stop or other seizure of a free citizen

12 are analyzed under the reasonableness standard of the Fourth Amendment to the United

13 States Constitution.”).

14 As the Court has already established above, there is a factual dispute as to whether

15 Defendants Frank and Douglas’s use of force was reasonable. Accordingly, summary

16 judgment is denied as to Plaintiff’s battery claims, as they relate to excessive force.

17 D. Liability of the County for Plaintiff’s State Law Causes of Action

18 Finally, the Court considers the liability of the County for Plaintiffs' state law claims.

19 On the issue of municipal liability, California law diverges from federal law. California

20 Government Code § 815.2 provides that “[a] public entity is liable for injury proximately

21 caused by an act or omission of an employee of the public entity within the scope of his

22 employment if the act or omission would, apart from this section, have given rise to a cause

23 of action against that employee or his personal representative.” This provision of California

24 law “clearly allows for vicarious liability of a public entity” for the unlawful conduct of its

25 police officers. Blankenhorn v. City of Orange, 485 F.3d 463, 488 (9th Cir. 2007).

26 Accordingly, Plaintiff may pursue all of her successful claims based on California law

27 against the County, as well as against the individual officer defendants. Thus, summary

28 judgment is denied as to the California Civil Code §§ 51.7 and 52.1 and battery claims

1 against the County as well.

2 V. DEFENDANTS’ MOTION TO SEAL

3 There is a “strong presumption in favor of access” and a “general right to inspect

4 and copy public records and documents, including judicial records and documents.”

5 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing

6 Nixon v. Warner Communs., Inc., 435 U.S. 589, 597 n.7 (1978)). This is especially true for

7 dispositive motions, where the parties must “articulate compelling reasons supported by

8 specific factual findings” for why these materials should be sealed. Id. at 1179.

9 “In general, ‘compelling reasons’ sufficient to outweigh the public's interest in

10 disclosure and justify sealing court records exist when such ‘court files might have become

11 a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote

12 public scandal, circulate libelous statements, or release trade secrets.” Id. Under the

13 compelling reasons standard, “the party seeking protection bears the burden of showing

14 specific prejudice or harm will result if no [protection] is granted.” Phillips v. Gen. Motors

15 Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002). If public access to the documents to be

16 sealed would “promot[e] the public's understanding . . . of [a] significant public event[ ],”

17 that fact weighs against sealing the judicial record. Valley Broad. Co. v. U.S. Dist. Court

18 for Dist. of Nevada, 798 F.2d 1289, 1294 (9th Cir. 1986).

19 Here, Defendants do not meet their burden, and their justifications to seal the records

20 are unsupported by the facts. Defendants seek to seal Exhibits J and K, consisting of body

21 camera footage of the incident, submitted in support of their Motion for Summary

22 Judgment. Defendants argue that these exhibits were designated as “confidential” pursuant

23 to the protective order in this case, but do not explain, even in a general way, why the

24 information is confidential. Defendants do not assert any exception to the presumption of

25 public access or offer any authority that supports sealing material merely because its

26 contents are sensitive and particularly where, as here, the footage contains evidence that is

27 highly probative to the case.

28 Moreover, these body camera videos are of significance to the public, who has an

1 ||interest in transparency of law enforcement activity and its use of force. See id. at 1294.

2 || This case, where the body camera captured footage of police officers allegedly hurting a

3 || citizen, exemplifies how and when body cameras should be used for public awareness and

4 ||agency transparency. Further, Defendants do not raise privacy concerns regarding Frank

5 Douglas, or any other officer depicted in the videos, and both Defendants Frank and

6 Douglas have been named in the public docket. In sum, with only minimal showings of

7 || particularized harm to the Defendants going forward and a strong public interest in the

8 || videos’ disclosure, the Court denies Defendants’ motion to seal.

9 CONCLUSION

10 For the foregoing reasons, the Court:

11 1. GRANTS Defendants’ Motion for Summary Judgment as to the § 1983 claim

12 for excessive force against Defendants Donald Frank and Darshaun Douglas;

13 2. DENIES Defendants’ Motion for Summary Judgment as to the ADA claim

14 against Defendant County of San Diego;

15 3. DENIES Defendants’ Motion for Summary Judgment as to the Rehabilitation

16 Act of 1973 claim against Defendant County of San Diego;

17 4. DENIES Defendants’ Motion for Summary Judgment as to the California Civil

18 Code §§ 51.7 and 52.1 claim against Defendants County of San Diego, Donald

19 Frank, and Darshaun Douglas;

20 5. DENIES Defendants’ Motion for Summary Judgment as to the state law battery

21 claim against Defendants County of San Diego, Donald Frank, and Darshaun

22 Douglas; and

23 6. DENIES Defendants’ Motion to File Under Seal.

24 IT IS SO ORDERED.

25 ||Dated: August 17, 2022 NO

26 NF)

Honorable Linda Lopez

38 United States District Judge