Petition for Writ of Certiorari — Matthew Neidermeyer, Petitioner v. Michael Caldwell

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Case: 16-55233, 12/05/2017, ID: 10678111, DktEntry: 41-1, Page 1 of 8

NOT FOR PUBLICATION

FILED

UNITED STATES COURT OF APPEALS

DEC 5 2017

FOR THE NINTH CIRCUIT

MATTHEW A. NEIDERMEYER,

Plaintiff-Appellant,

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 16-55233

D.C. No.

8:14-cv-0 1209-JLS-DFM

MICHAEL CALDWELL, CHP Officer

#20073, individual and official capacity,

MEMORANDUM *

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

Argued and Submitted October 2, 2017

Pasadena, California

Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE, District Judge.**

Matthew Neidermeyer appeals the district court's grant of summary

judgment in favor of California Highway Patrol Officer Michael Caldwell. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The Honorable Benjamin H. Settle, District Judge for the U.S. District.

Court for the Western District of Washington, sitting by designation.

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The district court properly granted Officer Caldwell summary judgment

on Neidermeyer's investigatory stop claim. "In reviewing the district court's

determination of reasonable suspicion, we must look at the 'totality of the

circumstances' to see whether the officer had a 'particularized and objective basis'

for suspecting criminal activity." United States v. Cohn, 314 F.3d 439, 442 (9th

Cir. 2002) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). Video

evidence shows Neidermeyer drifting to the left within the traffic lane and then

quickly making an unsafe lane change. These apparent traffic offenses, see

California Vehicle Code §§ 21658(a), 22107, created reasonable suspicion that

justified an investigatory stop of the vehicle.

The district court properly granted Officer Caldwell summary judgment

on Neidermeyer's unlawful arrest claim. Even assuming that Officer Caldwell

lacked probable cause to arrest Neidermeyer for being under the influence of a

controlled substance, Neidermeyer "bears the burden to show that the contours of

the right were clearly established." Clairmont v. Sound Mental Health, 632 F.3d

1091, 1109 (9th Cir. 2011). Neidermeyer has failed, both here and before the

district court, to identify controlling authority or a "consensus of cases of

persuasive authority such that a reasonable officer could not have believed that his

actions were lawful" in similar circumstances. Wilson v. Layne, 526 U.S. 603, 617

(1999). In fact, Neidermeyer cites no cases at all, contending that the California

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statute on driving while under the influence of a controlled substance (DUI) alone

shows that he was arrested without probable cause. But the operative question is

whether it was "clearly established" that an officer could not arrest someone for

DUI under the undisputed facts in this case.

Here, construing the facts in the light most favorable to Neidermeyer,

Officer Caldwell, who was trained as a Drug Recognition Expert, observed

Neidermeyer's car drifting within its lane and then making an unsafe lane change.

After the traffic stop, Officer Caldwell also observed Neidermeyer's delayed eye

response during a nystagmus test.' Neidermeyer's behavior during the stop was

unusual, including his atypical and continuous commentary and his flinging

himself on the ground. Additionally, Neidermeyer spoke quickly and exhibited

signs of paranoia, which Officer Caldwell had been trained to recognize as possible

signs of stimulant use. Neidermeyer has not shown that, faced with these facts, a

reasonable officer would have known that he lacked probable cause to arrest

someone for suspicion of driving under the influence of a controlled substance.

Since this is a "dispositive inquiry," Saucier v. Katz, 533 U.S. 194, 202 (2001), the

Neidermeyer argues that Officer Caldwell lied about the nystagmus test results,

but offers no evidence to support this allegation. We therefore doubt that

Neidermeyer's allegation is enough to put the fact of the delayed eye response in

dispute. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ("A summary

judgment motion cannot be defeated by relying solely on conclusory allegations

unsupported by factual data."). But even if this fact were disputed, Neidermeyer's

driving and subsequent behavior alone are sufficient to support our holding.

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district court properly granted Officer Caldwell qualified immunity on this claim.

Neidermeyer argues that Officer Caldwell must have known he could not

punitively arrest him for refusing to answer questions. Even assuming

Neidermeyer's refusal to answer questions was a factor in his arrest, Officer

Caidwell's "[s]ubjective intentions play no role" in the Fourth Amendment

probable cause analysis. Whren v. United States, 517 U.S. 806, 813 (1996).

Instead, we must look to what a reasonable officer would do in light of the

objective facts. United States v. Magallon-Lopez, 817 F.3d 671, 675 (9th Cir.

2016). Here, the objective facts do not indicate that Officer Caldwell must have

known that he lacked probable cause.

The dissent notes that the police "may not disregard facts tending to

dissipate probable cause." Dissent at 2, citing Ramirez v. City of Buena Park, 560

F.3d 1012, 1023-24 (9th Cir. 2009). But, viewing the evidence in the light most

favorable to Neidermeyer, the officers encountered no such facts. On the contrary,

Neidermeyer's bizarre behavior intensified throughout the encounter. After being

asked to to step out of his car—a common measure during a lawful investigatory

stop, see Ramirez, 560 F.3d at 1021—Neidermeyer demanded that he be allowed

to stand "in public"; told the car's passenger that the officers "are not men that can

be trusted at this point"; threw himself on the ground in response to a request to

take a step; told the officers "take me in, arrest me"; and twice shouted "I'm afraid

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for my life." He also told his companion to put her cell phone "in [her]

underwear" to preserve her cell phone recording of the encounter, and later urged

her to leave the car and "run to safety."

The dissent suggests that a jury could have found this to be fearful behavior

that was reasonably provoked by Officer Caldwell's conduct. But, as the district

court noted, the video at no point shows Officer Caldwell or his partner "raising his

voice or acting in a manner that would prompt these statements and behavior from

Neidermeyer." Neidermeyer may not have been obligated to answer Officer

Caidwell's questions about his intended destination, but the questions themselves

assuredly were permissible—indeed, "[a]sking questions is an essential part of

police investigations." Hiibelv. Sixth Judicial Dist. Court of Nev., 542 U.S. 177,

185 (2004). In light of the undisputed facts in this case, including Neidermeyer's

increasingly unusual behavior during the lawful investigatory stop, we cannot say

that a reasonable officer would have known he lacked probable cause to arrest

Neidermeyer for a controlled substance DUI.

3. The district court properly granted summary judgment on the malicious

prosecution claim. "[T]here is a rebuttable presumption that a prosecutor exercises

independent judgment regarding the existence of probable cause in filing a

complaint.

insulat[ing] the arresting officers from liability." Smiddy v. Varney,

803 F.2d 1469, 1471 (9th Cir. 1986); see also Beck v. City of Upland, 527 F.3d

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853, 862 (9th Cir. 2008). The prosecutor, who had access to video of the arrest,

testified in his deposition that he exercised independent judgment in deciding to

file charges against Neidermeyer, and in fact also filed an additional charge not

recommended in Officer Caidwell's report. Neidermeyer claims that the police

reports contain false information. We have the benefit, as did the district court, of

the videos documenting the traffic stop. While the police reports certainly

characterize the evening's events differently than Neidermeyer does, like the

district court, we cannot say that any portion of the reports is demonstrably false.'

Neidermeyer "must provide more than an account of the incident in question that

conflicts with the account of the officers involved" in order "[t]o rebut the

presumption of independent judgment and to survive summary judgment."

Newman v. Cty. of Orange, 457 F.3d 991, 995 (9th Cir. 2006).

4. The district court did not abuse its discretion in denying Neidermeyer

leave to amend the complaint to include a claim for an allegedly unlawful frisk.

While leave to amend should be "freely give[n]

when justice so requires,"

F.R.C.P. 15(a)(2), the district court was permitted to deny leave here due to

Neidermeyer's "undue delay" in raising the claim and the "prejudice to the

For example, Neidermeyer argues that he did not refuse to undergo field sobriety

tests, as the report indicated. But while in the police vehicle, Neidermeyer

explicitly refused to consent to any test other than a Breathalyzer, which was later

administered at the police station.

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opposing party" that late amendment wOuld cause, Johnson v. Buckley, 356 F.3d

1067, 1077 (9th Cir. 2004). Though the parties discussed the frisk in Officer

Caidwell's deposition, an unlawful frisk claim was not raised in the second

amended complaint that was filed after that deposition was taken. Thus, Officer

Caldwell was not on notice that Neidermeyer would raise an unlawful frisk claim

later in the litigation, and was deprived of the opportunity to conduct appropriate

discovery as to possible damages.

Moreover, "when a party seeks to amend a pleading after the pretrial

scheduling order's deadline for amending the pleadings has expired, the moving

party must satisfy the 'good cause' standard of Federal Rule of Civil Procedure

16(b)(4), which provides that '[a] schedule may be modified only for good cause

and with the judge's consent,' rather than the liberal standard of Federal Rule of

Civil Procedure 15(a)." In re W. States Wholesale Nat. Gas Antitrust Litig., 715

F.3d 716, 737 (9th Cir. 2013) (alteration in original). This good cause standard

"primarily considers the diligence of the party seeking the amendment." Johnson

v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). If the moving

party "was not diligent, the inquiry should end." Id. Neidermeyer, who "has been

aware of the facts and theories supporting amendment since the inception of the

action," did not seek leave to amenduntil opposing Officer Caldwell's Motion for

Reconsideration. In re W. States, 715 F.3d at 737 (internal quotation mark

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omitted). Indeed, even if we considered the issue pursuant to Federal Rule of Civil

Procedure 15(b), as the dissent contends we should, the result would be the same:

Neidenneyer has already had two opportunities to amend his complaint and has

offered no explanation for his undue delay in seeking a third, the lateness of which

would prejudice Officer Caldwell. The district court did not abuse its discretion in

concluding that Neidermeyer did not show good cause for his failure to assert any

claim related to the frisk in his operative complaint, especially in light of his

personal knowledge of the relevant facts.

AFFIRMED.

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FILED

Neidermeyer v. Caldwell, No. 16-55233

DEC 5 2017

C. DWYER, CLERK

SETTLE, District Judge, concurring in part and dissenting in part: MOLLY

U.S. COURT OF APPEALS

While I concur in the majority's analysis of Neidermeyer's investigatory

stop claim and malicious prosecution claim, I respectfully dissent in regards to

Neidermeyer's unlawful arrest and unlawful frisk claims.

1. I believe the district court improperly granted summary judgment to

Officer Caldwell on Neidermeyer's unlawful arrest claim. Like the district court,

the majority relies on the following facts that could support probable cause for

Neidermeyer's arrest: (a) Neidermeyer momentarily drove along the left line of his

lane before making an unsafe lane change in the opposite direction, (b) Officer

Caldwell noted approximately two seconds of pupil constriction instead of one

when performing a modified nystagmus test, and (c) Neidermeyer acted

excessively fearful over the course of the investigatory stop.

In reaching its conclusion, the majority emphasizes Neidermeyer's failure to

cite a consensus of cases to support his contention that, under the above-listed

facts, a reasonable officer would have known that he lacked probable cause.

However, while qualified immunity would certainly be warranted under these facts

in isolation, probable cause exists only if a prudent person would have believed

that the suspect had committed a crime under the totality of the circumstances.

Hart v. Parks, 450 F.3d 1059, 1065-66 (9th Cir. 2006). "As a corollary of the rule

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that the police may rely on the totality of facts available to them in establishing

probable cause, they also may not disregard facts tending to dissipate probable

cause." Ramirez v. City of Buena Park, 560 F.3d 1012, 1023-24 (9th Cir. 2009).

Interpreting the totality of the circumstances in the light most favorable to

Neidermeyer, a jury could conclude that it was clear that Officer Caldwell lacked

probable cause to arrest Neidermeyer. See Saucier v. Katz, 533 U.S. 194, 202

(2001) ("The relevant, dispositive inquiry.

is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.").

Several facts in this case weigh against a finding of probable cause and negate the

facts that Officer Caldwell cites to justify his decision to arrest.

First, apart from the modified nystagmus test—which revealed no

nystagmus—Officer Caldwell failed to administer any field sobriety tests. The

majority notes that Neidermeyer refused sobriety tests when he was in the back of

Officer Caldwell's vehicle. However, the offer and refusal of sobriety tests

occurred only after Neidermeyer had already been unlawfully frisked and then

placed under arrest. An officer's failure to conduct any field sobriety tests weighs

against finding that an officer has a reasonable belief or suspicion that a driver is

intoxicated. See United States v. Cohn, 314 F.3d 439, 446 (9th Cir. 2002).

Additionally, Officer Caidwell's improper conduct during the stop and arrest

(described below) places his credibility in question, and a jury could reasonably

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disbelieve his testimony regarding pupil constriction entirely.

Second, Neidermeyer's fearful behavior can be justified as a reasonable

response to Officer Caidwell's conduct during the investigatory stop. For instance,

prior to Neidermeyer's fearful behavior, Officer Caldwell ordered Neidermeyer

from the vehicle, unlawfully frisked him, and repeatedly stated that Neidermeyer

was being detained----and would ultimately be arrested—simply for refusing to

answer where he was going. While Officer Caidwell's subjective intent is

irrelevant to the existence of probable cause, the fact that he outwardly and

repeatedly expressed his unlawful subjective intent to Neidermeyer is an objective

fact that should be considered when evaluating the reasonableness of

Neidermeyer's fearful behavior. Moreover, "[a] frisk for weapons 'is a serious

intrusion upon the sanctity of the person, which may inflict great indignity and

arouse strong resentment."' Thomas v. Dillard, 818 F.3d 864, 876 (9th Cir. 2016),

as amended (May 5, 2016) (quoting Terry v. Ohio, 392 U.S. 1, 28 (1968)). This

should be especially true of a patently unlawful frisk, which Officer Caldwell

concedes occurred here.' Therefore, a jury could conclude that no reasonable

officer would view Neidermeyer's fearful behavior as a basis for arrest, since

Officer Caidwell's own conduct would likely evoke in a reasonable person some

Officer Caldwell admits he lacked any suspicion that Neidermeyer was armed or

dangerous. See Arizona v. Johnson, 555 U.S. 323, 327 (2009).

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sort of fearful response.

Third, while Neidermeyer's driving was sufficient to support probable cause

for a traffic infraction or a reasonable suspicion of intoxicated driving, it was

insufficient by itself to support probable cause for an arrest. The video evidence

shows Neidermeyer's vehicle drifting towards the left edge of its lane and touching

the line briefly before correcting itself and making a potentially unsafe lane change

within a car's length of a passing vehicle. Only thirty-four seconds pass from the

point when the video evidence first shows the vehicle drifting towards the left to

the time that the officers signal to stop. Only fourteen of those seconds pass

between when Neidermeyer's vehicle first observably drifted towards the left of

his lane and when the subsequent lane change was completed. This was not the

type of "swerving all over the road" of which Officer Caldwell accused

Neidèrmeyer When initiating the stop. California courts have held that "pronounced

weaving within a lane provides an officer with reasonable cause to stop a vehicle

on suspicion of driving under the influence where such weaving continues for a

substantial distance." People v. Perez, 221 Cal. Rptr. 776, 778 (1985). While

Officer Caldwell's observation of a potentially unsafe lane change justified a

citation and investigatory stop under California Vehicle Code §§ 21658(a), 22107,

it did not, without more, confer probable cause to arrest for intoxicated driving. See

Cohn, 314 F.3d at 446 ("[An] entire observation last[ing] only 35-45 seconds...

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is not long enough to show that [defendants] were weaving for a 'substantial'

distance.").

For these reasons, I would remand on the basis that the district court

mistakenly entered summary judgment on Neidermeyer's unlawful arrest claim

when there were genuine factual disputes and a jury could conclude that, under the

totality of the circumstances, it would be clear to a reasonable officer that Officer

Caldwell lacked probable cause to arrest. See Borunda v. Richmond, 885 F.2d

1384, 1391 (9th Cir. 1988) ("Where the facts or circumstances surrounding an

individual's arrest are disputed.

the existence of probable cause becomes a

question of fact for the jury.").

2. Additionally, I believe that the district court improperly denied

Neidermeyer leave to amend his complaint to include his claim asserting an

unlawful frisk. The majority concludes that because Neidermeyer sought to amend

his complaint after the deadline set forth in a Rule 16 scheduling order, he must

satisfy the "good cause" standard set forth in Rule 16(b). Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). In reaching the conclusion

that the proposed amendment should be denied, the district court and the majority

rely exclusively on Neidermeyer's lack of diligence in seeking the amendment.2

While the majority cites "prejudice to the opposing party" as a factor justifying

the denial of leave to amend, there does not appear to be any indication or findings

of prejudice on the record.

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However, Neidermeyer's motion for summary judgment, which raised the issue of

the unlawful frisk, should have been construed as a motion to amend under Rule

15(b). Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014).

Under that standard, the district court was required to consider "bad faith, undue

delay, prejudice to the opposing party, futility of amendment, and whether the

plaintiff has previously amended the complaint." Id. We abuse our discretion if we

do not apply the correct legal standard, Bateman v. U.S. Postal Service, 231 F.3d

1220, 1223 (9th Cir. 2000), or if we fail to consider the factors relevant to the

exercise of our discretion. See Bautista v. Los Angeles Cnty., 216 F.3d 837, 841-42

(9th Cir. 2000). See also Desertrain, 754 F.3d at 1155 ("[T]he district court abused

its discretion by not amending the First Amended Complaint to conform to the

evidence and argument.

Even if Neidermeyer' s request to amend was governed by the Rule 16(b)

"good cause" requirement instead of the Rule 15(b) standard, the district court and

majority employ too stringent of a standard of "good cause" in this case. Denying

leave to amend may be understandable under a harsh interpretation of Rule 16(b)

and the Circuit's precedent in Johnson. See 975 F.2d at 609 ("If [the moving] party

was not diligent, the inquiry should end."). However, while "Rule 16(b)'s 'good

cause' standard primarily considers the diligence of the party seeking the

amendment," the very use of the term "primarily" in the Circuit's decision in

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Johnson leaves open the possibility that circumstances will arise where courts must

consider other factors. Johnson, 975 F.2d at 609. If this is not the case to require

looking beyond just the diligence of the moving party, then I do not believe there

can ever be one. The decision in Johnson was rendered under highly

distinguishable circumstances. In that case, the moving party waited until summary

judgment to seek an amendment despite receiving three separate invitations from

opposing counsel to correct the inadequacy of the complaint. Additionally, the

defendants in Johnson predicated their summary judgment motion on the

inadequacy of the complaint, so the inadequacy of the complaint was actually

before the court during summary judgment proceedings.

In this case, however, the issue of the unlawful frisk was fully briefed

without objection in Officer Caldwell's opposition to Neidermeyer's summary

judgment motion. Also, the parties openly and plainly discussed whether the frisk

was lawfully justified during Officer Caldwell's deposition. Officer Caldwell

failed to object to Neidermeyer's efforts to litigate the frisk's unlawfulness until

after the district court had already entertained the fully-briefed arguments on the

issue and entered summary judgment in favor of Neidermeyer. Denying leave to

amend appears to benefit Officer Caldwell for lying in wait with his objection,

despite having the issue made clear much earlier in the case. As noted in Johnson,

a party's gross lack of diligence should end the inquiry into whether a late

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amendment will be permitted. In this case however, the district court snatched

defeat from the jaws of victory on a constitutional violation that was litigated

without objection all the way through summary judgment.

Finally, the district court and the majority's approach of focusing

exclusively on the diligence of Neidermeyer's counsel in seeking the proposed

amendment appears unworkable when Rule 16 and Rule 15 are viewed in tandem.

Rule 15(b) expressly states that, even during trial, "[t]he Court should freely permit

an amendment when doing so will aid in presenting the merits and the objecting

party fails to satisfy the court that the evidence would prejudice that party's action

or defense on the merits." Fed. R. Civ. P. 15(b)(1). Since Rule 15(b) allows for the

amendment of pleadings freely during trial absent prejudice to the objecting party,

basing the Rule 16(b) "good cause" standard exclusively on the diligence of the

moving party, without any consideration of prejudice to the objecting party,

renders the standard in Rule 15(b)( 1) ineffective. Moreover, the text of Rule 16(b)

requires that a party show good cause for modifying the scheduling order; it does

not require the party to show good cause for their failure to seek modification

earlier. If the Rule 16(b) "good cause" standard is to be properly applied in this

case, it appears that it must necessarily incorporate a review of some factors

beyond mere delay, including a balance of prejudice to Officer Caldwell and the

ultimate goal of avoiding an unjust result.

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Officer Caidwell's only arguments relating to prejudice deal with a

purported lack of opportunity to obtain evidence on damages. If this did constitute

prejudice, it could easily be remedied with less than an hour deposition of

Neidermeyer sometime before trial, with the costs to be borne by Neidermeyer.

Therefore, I would remand with instructions to consider whether the proposed

amendment should be permitted under the factors applicable to the Rule 15(b)

standard. Even under the Rule 16(b) "good cause" standard, I would remand for

consideration of whether the proposed amendment would result in any prejudice to

Officer Caldwell or whether avoiding an unjust result in this case constitutes "good

cause" for modifying the scheduling order.

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

DEC 282017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MATTHEW A. NEIDERMEYER,

Plaintiff-Appellant,

MICHAEL CALD WELL, CHP Officer

#20073, individual and official capacity,

No.

16-55233

D.C.No.

8:14-cv-0 1209-JLS-DFM

Central District of California,

Santa Ana

tS)1)1

Defendant-Appellee.

Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE,* District Judge.

Judges M. Smith and Nguyen have voted to deny the petition for panel

rehearing, and Judge Settle has voted to grant it. The petition for panel rehearing is

DENIED.

The Honorable Benjamin H. Settle, United States District Judge for

the Western District of Washington, sitting by designation.

Case.

120JLS4DFM Oocument 121 Filed..iO/2IIi5 Page

f 27

J #3640•

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

11 MATTHEW A. NEJDERMEYER,

Plaintiff,

.13

VS.

is CI-1P OFFICER MICHAEL CALD WELL

16 #20073, individually and as a peace officer,

CASE NO. SACV 14-1209-JLS (DF.Mx)

Defendant,

OR!) ER (1) GRANTING IN PART

AND DENYING IN PART

DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT Doc. 85)

AND (2) GRANTING IN PART AND

DENYING IN PART PLAINTIFFS

MOTION FOR SUMMARY

JUDGMENT (Doc. 78)

Case 8: 4-cv-01209-JL$-DFM Document 121: 1 Filed .10/21115.: Page 2 of 27 :

Page lb. #.3641

Before the Court are cross-motious for summary judgment filed by Plaintiff

2 Matthew A. Neidermeyer and Defendant California Highway Patrol Officer Michael

3 Caldwell. (Pitt's Mot,, Doe. 78;1 Del's Mot, Doe, 85.2) Having considered the briefing

4 and supporting documentation submitted by the parties, held a hearitig, and taken the

5 matter under submission, the Court GRANTS in part and DENIES in part: Defendant's

6 Motion, and GRANTS in part and DENIES in part Plaintiffs Motion,

8 1. BACKGROUND'

This case arises out: of Defendant California Highway Patrol ("ClIP") Officer

ii Michael Caidwell's traffic stop and subsequent arrest of Plaintiff Matthew A.

12 Ne idermeyer. (See generally Second Amended Complaint ("SAC"), Doe. 52.)

Officer Caldwell became a CMI? officer in January 2010. (Defendant's Genuine

14 Issues and Additional Statement of Material Facts. "SQl" 11143, Doe, 93.) During his

15 training from January 2010, to July 2010, Officer Caldwell received approximately 52

16 hours of Driving Under the Influence ("DUI") training. (Plaintiffs Response to

17 Defendant's Additional Statement of Material Facts, "Response" I' I, Doe. 98-1.) In 2011,

18 Officer Caldwell received an additional 16 hours of DUI training, graduating from.

19 Advanced Roadside Impaired Driving Enforcement ("ARIDE"). (M. 2,) in March 2012,

20 Officer Cald-well became a Drug Recognition Expert ("DRE") after an additional 72 hours

21 of specialized instruction. (Id. 113.) By December 1. 201.2, Officer Caldwell had

22 conducted at least 200 DIlL investigations. (Id. ¶ 20)

'Defendant filed an Opposition to Plaintiff's's Motion, and Plaintiff replied. Def's Opp'n,

25 Doe. 94; Pltfs Reply, Doe, 98.)

26 Plaintiff flied an Opposition to Defendani'sMOtion, and Defendant replied. (Pltf's Opp'n, Doe.

96; Det's Reply, Doe. 99.)

27 3 Unless otherwise noted all facts referred to in this section are undisputed and any objections

thereto are overruled.

Case 8: 4-cv-01209-JLS-DFM Document 121. Filed 10/21/15 Page 3 at

27 Page 10 #:3642

On the night of Saturday, December 1, 2012, Officer Caldwell. and his partner

2 Officer Taradeo Carter, were driving a patrol car on the interstate 5 freewa

y in the vicinity

3 of Pioneer Boulevard. (SGJ ¶ 1; Oct's Mot. at 5.) While heading southbound on the

4 four-lane Interstate 5, the officers observed Neidenneyer's car driving in the second

Jane

5 from the left. (SGJ ¶j 1-2.)

The in-car video taken from Officer Caidwell's police vehicle ("MVA.RS Video") is

7 slightly blurry, but depicts the events leading to Officer Caidweli's traffic stop and

8 subsequent arrest ofNeidermeyer.4 (MVARS Video, Does. 79, $2.) As the officer

9 approach Neiderineyer's car from behind, the WARS Video shows Neidermeyer' s car

10 begin to drift from the center to the left side of the lane over a period of about five

1.1 seconds.S (Id. at 00:24-00:29.) Neiderrn.eyer's vehicle then jerks to the left, causing the

12 car's tires to either touch or just barely cross over the dividing lines separating his lane

13 from the left-most lane of interstate 5. (Id. at 00:31-00:32.) A few seconds later,

14 Neidermeyer steers his car back into the center of his lane. (Id. at 0:33-0:34.) He then

15 begins drifting towards the right side of his lane. (Id. at 00:34-00:39) As Neidermeyer's

16 ear is drifting towards the right side of his lane, a car begins to pass Neidermeyer's car in.

17 the lane directly to his right. (Id.) Before the car has cleared Neldermeyer's ear,

and as

18 Neidenneyer's car continues to drift towa:rds the dividing line separating his lane

from the

19 lane on his right, Neidernieyer puts on his turn signal.. (Id. at 00:39-00:40.) With the car

21 4 Both parties have submit

ted copies of the WARS Video. See WARS Video.. Does. 79, 82,)

Nevertheless, Officer Caldwell objects to Neidermeyer's submission of the WARS Video.

Because Officer Caldwell. has submitted the same copy of the WARS Video that Neiderme.yer

23 submitted as evidence, the Court finds this evidentiary objection nieritless. Thus, the Court

finds

both copies of the MVARS Video admissible, The parties also dispute what Officer Caldwe

ll and

24 his partner observed prior to the events captured on the WARS Video. (SGI 31;

Respon

¶ 22.) However, for the purposes of this Order, the Court relies only on the behavior captured by

the WARS Video and Cell Phone Video and other facts that are undisputed by the parties.

See

also

Scott v. Harris, 550 U.S. 372,. 380-81 (2007) (explaining that the Court of Appeals "should

have viewed the facts in the light depicted by the videotape").

The first m inute of the M

VARS Video does not have audio. The rest of the M'VARS Video,

however,. has audio.

,.,

Case 844-cv-01209JLSDlM Document 121 FUêd 10/21/15 Page.4. of 27 Page ID :#:364

1 on his right at most a single car length ahead of Neidermeyer's car, and without braking,

2 Neidermeyer changes lanes and pulls directly behind the car that had passed him on, his

3 right. (Id. at 00:41-00:45.) Neidermeyer seems to continue to drift from the center to the

4 right side of this lane for a short period of time before the officers pull behind Neidermeycr

5 and turn on the patrol vehicle's flashing lights to stop Neidermeyer. (Id. at: 00:46-01:02.)

After turning on the patrol vehicle's lights, through the patrol veh.icl&s speakers

7 the officers direct Neidermeyer to exit the freeway and pull his vehicle over. (Id. at 01:108 01:16) At one point, N'eiderrneyer attempts to stop his car on the off-ramp, but the

9 officers direct him to keep going. (Id. at 02:00-02:10)

Once NeIdermeyer has parked his car on the side of the road, Officer Caldwell

11 approaches the driver side window of Neidermey.er's car. (Ed. at 02:25.) Officer Caldwell

12 asks Neidermeyer for his license, registration, and insurance information. (Id. at 02:35)

1.3 Neidermeyer gives Officer Caldwell his license and registration, but not his proof of

14 insurance because he cannot find it. (SOT ¶ .14; Response ¶ 42.)

Officer Caldwell ask's Neiderrneyer where he is coming from, and Neidenneycr

16 informs Officer Caldwell that he had been at the Magic Castle in Hollywood. California.

17 (WARS Video at 02:4002:48.) Officer Caldwell then tells Neidermeyer that he pulled

18 Neidermcyer over because Neidcrmeyer "was swerving all over the road." (Id. at 02:55.)

19 Officer Cald-well also asks Neidermeyer "how long have you been in California?' '1d. at

20 03:10.) N'eidermeyer refuses to answer and states that he does not wish to answer any

21 questions without an attorney. (Id. at 03:15.) Officer Caldwell asks Neidermeyer if he had

22 drank any alcohol that night. (Id, at 04:13.) Neidermeyer responds that he had not. (Id.)

Officer Cald:weli then asks Neiderrneyer to stick his head out of the window. (Id. at

24 04:16) Officer Caidwell performs a modified nystagmus test on Neidermeyer, which

25 consists of Officer Caidweil holding up his finger and having Neidcrmeyer follow it with

26 his eyes while Officer Caldwell shines a flashlight in Neidermeyct's direction. (Id. at

27 1 04-20-04:40.) Although no nystagmus was found, Officer Caldwell claims that.

28 Neidermeyer's pupils contracted after two to three seconds instead of the standard one

Case 8:4-cv.01209JLS-DFM Ooc.urent 121 :Filed:i0/Wi5.Pae.5 of 27 Page ]D#.3644

1 second contraction. (SOI ¶J 16-17) According to Caldwell, slow contraction of pupils is

2 an indicator that someone might be under the influence of drugs or alcohol. (id. 1116;

3 Response ¶ 53.)

Officer Caldwell then returns to the patrol vehicle for a few minutes, (MVARS

5 Video at 04:40-07:50.) When Officer Caldwell returns to Neidermeyer's car, he again

6 asks Neiderm-eyer where he is going. (id. at 07:55.) Once again, Neidermeyer refuses to

7 answer the question without an attorney.. (Id, at 08:05,)

At this point, Officer Caldwell asks Neidermeyer to get out of his car. (Id. at

9 08:05w) As soon as Neidermeyer gets out of his car, he looks across his car towards

10 Officer Carter and says, "All of it, all of it is being recorded." (Id. at 08:12.) Officer

1.1 Caldwell then orders Neidermeyer to move onto the sidewalk on the right side of the road.

12 (Id. at 08:20.)

From this point forward, Ne.idermeyer and Officer Caldwell cannot be seen on the

14 MVARS Video. However, the MVARS Video continues to capture the audio of their

15 interactions.

As soon as Neidermeyer moves out of the sight of the MVARS Video, he demands,

17 "record all this." (Id. at 08:19.) Neidermeyer states that. "he wants to be in public" and

18 where other people can see him. (Id. at 08:30,) Officer Caldwell then tells Neiderwcyer to

19 face the patrol car, interlace his fingers, and spread his feet, (Id. at 08:40.) Officer

20 Caldwell asks NeIdenneyer if be has any weapons or drugs on him, and Neidermeyer

21 quickly answers no. (Id. at 08:55.) Officer Caldwell then proceeds to conduct a pat-down

22 of Neidermeyer. (SCI ¶ 24; MVARS Video at 09:00-09:20.) Officer Caidwel.i admits that

23 he did not believe Neidermeyer was armed. (SGI ¶ 25.)

Officer Caldwell then asks Nei-dermeyer why he will not tell him where he is going.

2$ (MVARS Video at 09:25.) In response Neidermeyer loudly states, "I will not answer any

26 questions without an attorney." (Sd. at 09:27) Officer Caldwell then asks Neidermeyer if

27 he "wants to make this difficult" and "if bej wants to go to jail because [hel won't answer

28 a couple of questions." (Id, at 09:42.) Soon thereafter, after Officer Caldwell informs

Case. 8:

oocurnent.121;.Filed:1012i/15. Page, 6 ,of 27... Page ID:#:3645

Neiderm-eyer that he is being recorded. Neidernieyer loudly narrates that his "hands are up

in the air and visible," (Id. at 10:36.) Neidermeyer then asks, "Can I stand in front of the

car where the camera can see me? I would like to stand in front of the car so that they can

see I am not being violent. I am not being violent." (Id. at 10:50.) Neidermeyer continues

to narrate his movements out loud. (Id. at 10:50-11:00.)

Next, Neidermeyer calls out to his girlfriend, "Megan, get on your phone.

. .

Send

a message of that recording, a condensed version of it, so that when they take your phone

and assault you or do anything to you, we have it online. These are not men that can be

trusted at this point." (Id. at 11:15-1 1.:0.) Neither the video nor the audio of the WARS

10 Video show either officer raising his voice or acting in a manner that would prompt these

11 statements and behavior from Neidermeyer, (See generally id.)

Neidermeyer continues to refuse to answer the officers' questions. (Id. at 12:00-

13 1.2:15..) Officer Caldwell informs Neidermeyer at this point that he is not under arrest, but

14 that he is being detained. (Id. at 12:20.) Nei.derrneyer once again narrates his movements

15 and the events aloud, (Id. at 12:35.)

When Officer Caldwell directs Neidermeyer to "step right here," Neidermeyer

17 states that he is 'lust going to get down on the ground." (id. at 12:58.) Neidermeyer then

18 lies down on the ground with his hands and feet apart, despite not being instructed to do

19 so. (Response ¶ 88) Officer Caldwell quickly tells Neidermeyer to stand up, turn around,

20 put his hands on his head, and spread his legs. (MYARS Video at 13:12-13:20.)

21 Neiderineyer responds by shouting, "Take me in.

.. .

Arrest me. I'm afraid for my life.

22 I'm afraid for my life." (Response ¶ 89.) Officer Caldwell directs Neid-ermeyer to spread

23 his fed, (MVARS Video at 13:42.) Soon thereafter, Neidermeyer yells, "You are hurting

24 my arms, you are hurting my arms," and claims that the officers are hurting his left

25 shoulder. (Id, at 13:50-14:05.) Nei.dérmeyer yells to his girlfriend, directing her not to

26 delete her cell phone recording, to put it in her underwear if she has to, and to start, e27 mailing little segments. (Id. at 14;45) Finally, Neidermeyer states, "I. have not resisted

28 one bit" and "1 have, completely cooperated," to which Officer Caldwell responds, "You

Case 8,44-cv-0I209JLS-bFM Document 121 Filed 10/21115 Page 7.Of:27. Page ID! #:36

' .46

have not answered any questions. All 1 wanted to know was where you were going, Now

1 know where you are going. You're going to jail. Because you didn't want to answer

questions." (Id, at 14:48.) Officer Caldwell arrests Neidermeyer-6 (Response ¶ 90.)

Neidermeyer was arrested for a violation of California Vehicle Code § 23152(a). (Id.

¶ 103,)

Portions of the traffic stop and Neidermeyer's arrest also were recorded by

Neidermeyer's girlfriend, Megan l3arhorst, on her cell phone ("Cell Phone Video") while

she was a passenger in Ncidermeyer's car. (Response ¶ 71; Cell Phone Video Ex. B, Doe.

79; Ex, I, Doe, 82w) The cell phone recording begins as Neidermeyer is searching for his

10 proof of insurance while still in his car, (Cell Phone Video at 00:00.) The Cell Phone

1 1 Video then captures the modified nystagmus test conducted by Officer Caldwell. (Id. at

12 01:00.) The Ccl.! Phone Video stops, but then resumes after Officer Caldwell returns to

13 Neidermeyer'.s car and asks Neidermeyer to step out of the car, (1d at 01 :00 to 01:15.)

While the WARS Video does not include video of the events that occurred once

15 Neidermeyer exits his car, the Cell Phone Video captures Neidcrmeyer's movements and

1.6 behavior while he is on the sidewalk. (Id. at 0:200.) However, the Cell Phone Video fails

17 to clearly capture the audio of these events until Neidermeyer begins narrating his

18 movements loudly. (Id. at 02:00-04:00.)

The Cell Phone Video recording stops after Neidermeyer says to. Barhorst "these

2.0 men cannot be trusted at this point," but resumes when Neidermeyer lies down on the

23. ground without being prompted to do so, (Id. at 05:20-05:40.) The Cell Phone Video also

22 captures the point when Neidermeyer is handcuffed and arrested and when Neidermeyer

23 complains that Officer Caldwell is hurting his arm and shoulder. (Id. at 06:30-07:00)

The MVARS Video lasts for an additional 35 minutes, but, because the parties agree that

27 Officer Caldwell arrested Neidermeyer when.he put Neidermeyer in handcuffs, the Court need not

28 discuss what is captured on the WARS Video from this point forwards

Case

1209-AS-DFM Document 121. Filed 10/21/15 Page 8 of 27 Page ID..#:3647

During the events captured on the Cell. Phone Video, Neiderineyer keeps his hands

raised or visible at all times, and seems to timely comply with the officers' instructions,

except for laying down on the ground unprompted and being slow to put his hands behind

4 his head at one point. (Id. at 02:00-07:00) The Court cannot say one way or another

whether Neide.rineyer's body movements and posture were abnormal during these

6 interactions. However, at no point does the Cell Phone Video show either officer raising

7 his voice or acting in a manner that would prompt these statements and behavior froi.n

8 Neidermeyer. (See generally id.)

Following the traffic stop and arrest, Officer Caldwell prepared a DRB Report and

10 an Arrest report, both of which were submitted by CHP to the District Attorney's Office.

11. (Response 11106.) On December 12, 2013, Filing Deputy District Attorney \Vakabayashi

12 reviewed Officer Caidwell's Arrest Report and DRE Report and charged Neidermeyer

13 with violating California Vehicle Code § 23152(a) and California Penal Code 148(a). (id.

14 ¶ 107) Eventually, the criminal charges against Neidermeyer were dismissed because the

15 District Attorney who was subsequently assigned to the case determined that the case

16 would he too hard to prosecute, (Id. ¶ 115.)

j )7

In addition, after Neidermeyer refused to submit to a chemical test, a DMV

18 administrative per Sc hearing, was held, where it was determined that Neiderrn.eyer's

19 driving privileges should be suspended for one year. (Id. ¶ 110.) The DMV and

20 N•eidermeyer eventually reached a. settlement after 'Neidermeyer filed, a Writ in Superior

21 Court, challenging the .DMV's.decision to suspend his license. (Id. ¶1

113.)

As a result of this traffic stop and arrest, Neidermeyer brings a cause of action

23 against Officer Caldweli. under 42 U.S.C. § 1.983, claiming that Officer Caldwell violated.

24 his constitutional rights by detaining Neidcrmeyer without reasonable suspicion,

25 conducting an illegal pat-down, and arresting Neidermeyer without probable cause. (SAC

26 ¶j 8-16.) Ncidermeyer also contends that Officer Caidwell is liable for malicious

27 prosecution. (id.)

Both parties now move for summary judgment.

Case 8 4-cv-Q1209-JLS-DFM Document 121 Filed 10/21/15 Page 9.0 27 Page ID # 3648

2 IL

LEGAL STANDARD

In deciding a motion for summary judgment, the Court must view the evidence in

5 the light most favorable to the non-moving party and draw all justifiable inferences in that

6 party's favor. Anderson v. Liberly Lobby, [nc., 477 U.S. 242, 255 (1986). Summary

7 judgment is proper "if the [moving party] shows that there is no genuine dispute as to any

8 material fact and the [moving party] is entitled to judgment as a matter of law," Fed. R.

9 Civ. P. 56. A factual issue is "genuine" when there is sufficient evidence such that a

10 reasonable trier of fact could resolve the issue in the non-inovant's favor, and an issue is

11 "material" when. its resolution might affect the outcome of the suit under the governing

12 law. Anderson, 477 U.S. at 248.

The moving party bears the initial burden of demonstrating the absence of a genuine

14 issue of fact. Celotex o,p, v. Catrett, 477 U.S. 317, 323 (1986). "if a party fails to

t5 properly support an assertion of fact or fails to properly address another party's assertion

1.6 of fact.

.. ,

the court may... consider the fact undisputed." Fed, R. Civ, P. 56(e)(2).

17 Furthermore, "Rule 56[(a)] mandates the entry of summary judgment.

. .

against a. party

18 who fails to make a showing sufficient to establish the existence of an element essential to

1.9 that party's case, and on which that party will bear the burden of proof at.trial." Celotex

20 corp., 477 U.S. at 322. Therefore, if the nonmovant does not make a sufficient showing to

21 establish the elements of its claims, the Court must grant the motion. See in re Oracle

22 coil). Sees. 1111g., 627 F.3d 376, 387 (9th Cir. 2010) (*'the non-moving party must come

23 forth with evidence from which a ji.ry could reasonably render a verdict in the non-moving

24 party's favor").

Case 8 14-cv-01209JL&DFtv1 Document 121 Filed 10122115 Page 10 of 27 Page JD

#:3649

.1. ilL DISCUSSION

Where, as here, "parties submit cross-motions for summary judgment, eiach

4 motion must be considered on its own merits."' Fair Hous, council ofRiverside cty., Inc.

5 v. Riverside Two, 249 F.3d 11.32, 1136 (9th Cir. 200 1) (quoting William W. Sçhwarzer, et

6 al., The Analysis and Decision of Summary Judgment Motions, 139 F ..R.D. 441, 499 (Feb.

7 1992)), However, "the court must consider the appropriate evidential)' material identified

8 and submitted in support of both motions, and in opposition to both motions, before ruling

9 on each of them." Id, at 1134.

Plaintiffs Opposition largely sets forth the .same arguments and evidence as set

11 forth. in Plaintiff's Motion and Plaintiffs Reply. (Compare Pltf's Opp'n with Pitfs Mot'.

12 and PM's Reply.) Similarly, Deftndant's Opposition sets forth almost identical arguments

13 and evidence as set forth in Defendant's Motion and Defendant's Reply. (Compare Del s

14 Opp'n with Del's Mot, and Del' s Reply.) The Court has considered Plaintiffs Motion and

15 Defendant's Motion on their own merits, but for the sake of judicial economy, where the

16 arguments in the parties' respective motions and responsive pleadings overlap, the Court

17 will discuss those argument's as they are found in I efendant's Motion, Plaintiffs

1 8 Opposition, and Defendant's Reply. However, because Plaintiffs Motion addresses the

19 .lega l ity of Officer Caidweli's pat-down, whereas that issue is not raised in Defendant's

20 Motion or the pleadings filed in response to Defendant's Motion, the Court will address

21 the pat-down separately.

Neidermeyer contends that Officer Caidwell failed to file his motion for summary judgment

26 by the July 5, 2015 deadline, and thus Defendant's Motion should not be considered. (Pltl's

Opp'n at 6-7.) Defendant's Motion, was filed, on July 7, 20151 two days after the deadline,. (Del's

Mot.)

Despite Officer Galdwell*s. late filing, the Court, in itsdiseredon, will consider Defendant's

Motion,

8:14cv-0120-JLS-OFM Document 121 Filed10/21115 Page 1i of.27 .PageJ

#:3650

A. Defendant's Motion for Summary Judgment

For the purposes of CaidweiPs Motions the Court takes the facts in the light most

5 1 1 favorable to Neiderineyer.

Officer Caldwell argues that he is entitled to summary judgment on Neidermeyer's

7 42 U.S.C. § 1983 claim because he and Officer Carter "had reasonable suspicion to

8 investigate whether [Neidermeyer] was driving impaired" and because "Officer Caldwell,

9 a Drug Recognition. Expert, arrested Neidermeyer because there was probable cause to

10 believe that NeidermeyerJ was under the influence of a CNS stimulant." Det's Mot. at

4.) Officer Caldwell also contends that he "is entitled to qualified immunity under section

12 1983 because his decision to stop and arrest [Neidenneyer] did not violate clearly

.13 established Jaw' (Id. at S.)

Because the Court finds that Officer Caldwell is entitled to qualified immunity in

15 regards to Neidermeyers claims related to the traffic stop and arrest. of Neidermeyer, the

16 Court need not determine whether Officer Caldwell had reasonable suspicion to detain and

17 probable cause to arrest N.eide.rmeyer.

I. Qualified Immunity

"Qualified immunity balances two important interests—the need to hold public

22 officials accOuntable when they exercise power irresponsibly and the need to shield

23 officials from harassment, distraction, and liability when they perform their duties

reasonably. Pearson v. Callahan, 555 U.S. 223, 231(2009). "The doctrine of qualifie

25 immunity

, protects government officials fro liability for civil damages insofar as

their

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

27 reasonable person would have known." Slanton v. Sims, 134 S. Ct, 3, 4 (201.3)

28 11 quotation marks and citation omitted).

(internal

as 8:•14cv01209JLS-DFM Document 121 : Filed 10/21/15 Page 12•.bf 27.. Pae.:iD;

"'Qualified immunity gives government officials breathing room to make

2 reasonable but mistaken judgments,' and 'protects all but the plainly incompetent or those

3 who knowingly violate the law." Id. at 5 (quoting Ashcrcft v. al-Kidd, 563 U.S. 731

4 (201 1)). "The principles of qualified immunity shield an officer from personal liability

5 when an officer reasonably believes that his or her conduct complies with the law. Police

6 officers are entitled to rely on existing lower court cases without facing personal. liability

7 for their actions. Pearson, 555 U.S. at 2.44-45 (2009). "The protection of qualified

8 immunity applies regardless of whether the government official's error is 'a mistake of

9 law, a mistake of fact, or a mistake based on mixed questions of law and fact.

Id. at 231.

"[A]n officer will be denied qualified immunity in a § .1983 action only if (1) the

11. facts alleged, taken in the light most favorable to the party asserting injury, show that the

12 officer's conduct violated a constitutional right, and (2) the right at issue was clearly

13 established at: the time of the incident such that a reasonable officer would have understood

14 her conduct to be unlawful in that situation,' Green v City & Cty. ofS.F., 751 F.3d 1039,

15 1051-52 (9th Cir, 2014) (internal quotation marks and citation omitted). "A[n officer] 's

16 conduct violates clearly established law when, at the time of the challenged conduct, the

17 contours of a right are sufficiently dear that every reasonable official would have

18 understood that what he is doing violates that right. al-Kidd, 563 U.S. 731, 131 S. Cl:. at

1.9 2083. "This inquiry must be undertaken in light of the eases specific context, not as a

2.0 broad general proposition" Saucier v. Katz, 533 U.S. 194 194 (2001).

21.

Courts "'do not require a case directly on point' before concluding that the law is

22 clearly established, 'but existing precedent must: have placed the statutory or constitutional

23 question beyond debate."' Stanton, 134 S. Ct. at 5 (quoting Ashcrqft v. a1-Kidd, 563 U.S.

24 731 (201 1)). Plaintiffs "bear the burden of demonstrating that the right allegedly violated

25 was clearly established at the time of the incident," Greene v. camreta, 588 F.3d 1011.

26 lO31(9thCir.2009) vacated in part,563U.S,692,l.31 S.Ct.2020, 179L.Ed.2d 1118

2.7 (2011) and vacated in part, 661 F.3d 1201 (9th Or, 2011). In the absence of genuine

28 issues of material fact, this determination is a: question of law to be determined by the

.8.:14-cv-01209-JL8-DFM Document 121 Filed 10121115 :.Pae.:i3f 27 Page 10

#:3652

1. court" Davisv, City of Seattle. No. C130895JLR.., 2014 WL 3810574, at *3 (WD, Wash.

2 Aug.. ] , 2014) (citing Green 751 F.3d at 1052).

i, Reasonable Suspicion to Stop Neidernieyer's Vehicle

The Supreme Court permits courts "to exercise their sound discretion in deciding

7 which of the two prongs of the qualified immunity analysis should be addressed first in

8 light of the circumstances in the particular case at hand." Pearson 555 U.S. at 236. Thus

9 based on the circumstances present in this case, the Court first will address the second step

10 of the qualified immunity inquiry.

111

Caidweli asserts that he pulled Neidermeycr over because he suspected that

12 Neidermeyer was driving under the influence of alcohol. and/or drugs. (SG- I 7.) See Cal.

13 Veh. Code § 23152( providing that "[i}t is unlawful for a persoii who is under the influenc

14 of any alcohol beverage.

[or) for a person who is under the influence of any drug to

1 5 drive a vehicle"). Officer Caldwell also claims that Ncidermeyer violated California

16 Vehicle Code §§ 21658(a) and 22107. (DeIs Mot. at S.) California Vehicle Code

17 § 21658(a) provides: "Whenever any roadway has been divided into two or more clearly

18 marked lanes for traffic in one direction, the following rules apply: (a) A vehicle shall be

19 driven as nearly as practical entirely within a single lane and shall not be moved

from the

20 lane until such movement can be made with reasonable safety." Cal, Veh. Code

§ 21658.

21 California Vehicle Code § 22107 provides: "No person shall turn a vehicle from a direct.

22 course or move right or left upon a roadway until such movement can be made with

23 reasonable safety and then only after the giving of an appropriate signal in the manner

24 provided in this chapter in the event any other vehicle may be affected by the movement"

25 Cal. Veh. Code § 22107.

"Stops under the Fourth Amendment fall into three categories. First, police my

27 stop a citizen for questioning at any time, so long as that citizen recognizes that he or she

28 free to ieave.., Second the police may 'seize' citizens for brief, investigatory stops.

84-cv01209-3LSDFM Document 12i.. .Filed::10121115 Page 14 (if.27 Page ID:

#:3653

1. This class of stops is not consensual, and such stops must be supported by reasonable

2 suspicion. Finally, police stops may be full-scale arrests. These stops, of course, are

3 seizures, and must be supported by probable cause," Morgan v. Woessner, 997 F.2d 1244,

4 1252 (9th Cir. 993) (internal quotation marks omitted) (citing Terry i Ohio, 392. U.S. 1,

5 20-22 (1968)).

"The Fourth Amendment permits brief investigative stops—such as the traffic stop

7 in. this case—when a law enforcement officer has a particularized and objective basis for

8 suspecting the particular person stopped of criminal activity." Navarette v. Gal,, 134 S. Ct

9 1683, 1687 (2014) (internal quotation, marks and citation omitted). "The [reasonable

10 suspicion] stadard takes into account the totality of the circumstances—the whole

1. 1 • picture." Id. "Determining reasonable suspicion is a 'commonsense approach' under

12 which courts can appropriately recognize certain driving behaviors, such as weaving, as

13 'sound indicia of drunk driving"' Davis, 2014 WL 3810574, at *4 (quoting Nwareite,

14 134 S. Ct. at 1690'91).

Officer Caidwell argues that, "fe}ven if Officer Caldwell did not have reasonable

16 suspicion to stop [Ne.idermeyer]'s vehicle, fl he is entitled to qualified, immunity." (Del s

17 Mat. at. 13.) Neidenneycr is correct that, in the Ninth Circuit, merely weaving within a

18 lane does not justify a traffic stop unless the weaving is "pronounced" or occurs for a

19 "substantial distance." (See Pltt s Opp'n at. 12 (citing United Slates v. Colin, 314 F.3d 439,

20 445 (9th Cir. 2002)). "However, weaving in conjunction with other indicia of intoxication

21 can give rise to a reasonable suspicion that a driver is under the influence." Davis, 201.4

22 WL 3810574, at *4 (citing United States v. Mesa, 234 F. App'x 680, 682-83 (9th Cir.

23 2007)); United States v, Fernanrkz-Castillo, 234 F.3d 11.4, 1.120 (9th Cir. 2003)).

2.5

Cas 8:14-C v-01209-JLS-DFM Document 121 Filed 10/21/15 Page 15 of 27 Page ID

#:3654

The beginning of the MVAR.S Video shows. Neidermeyer drifting within his lane

2 over a period of about five seconds,8 MVARS Video at 00:2400:29) .Neidermeyer's

3 vehicle then jerks to the left, which

if taking the facts in the light most favorable to

4 Neidermever causes the car's tires to touch the dividing lines separating Neidermeyer' s

5 lane from the left-most: lane of Interstate 5. (Id. at 00:31-00:32.) After steering his car

6 back into the center of his lane, Neidenneyer begins drifting towards the tight side of his

7 lane. (hi. at 00:34-00:39.) As Neidermeyer's car is drifting towards the right side of his

$ lane, a car begins to pass Neidermeyer's ear in the lane directly to his right. With the car

9 on his right at most a single car length ahead ofNeidermeyers car, and without braking,.

10 Neidermeyer changes lanes and pulls directly behind the car that had passed Neidermeyer

ii on his right. (Id.. at 00:41-00:45.) The WARS Video also shows Neidermeyer drifting

12 from the center to the right side of this lane for a short period of time. (Id. at 00:4600:57)

As mentioned above, the Court wi.l.i not address the first prong of the qualified

14 immunity analysis and thus does not express any view regarding whether Officer

15 Caldwell's traffic stop of Neidermeyer was constitutional. In regards to the second prong.,

16 the Court finds that, though Officer Caldwell may have been mistaken in believing his

17 actions were justified, he was not "plainly incompetent," and thus is entitled to qualified

18 immunity. See Stanton, 134 S. Ct. 3.7 (2013).

'19

Neidermeyer claims that Officer Caldwell is not entitled to qualified immunity

20 because "[tjhe right against being unlawfully detained, arrested and booked on accusations

21. of crime in bad fiUtli and without probable cause is long settled in the 9th Circuit." (Pltrs

22 Opp'n at 13..) However, the Supreme Court has directed courts "not to define clearly

23 established law at a high level of generality. The general propos.ti.on, for example, that an

24 unreasonable search or seizure violates the Fourth Amendment is of little help in

' Because the Cell Phone Video captures only the events that occurred. after Neidcrrneyer was

27 stopped. the Court relies exclusively on the events and behavior captured on the MVARS Video in

this ection.

as .8:14cvOi209JLSD.F.M.. Document .121I.•Filèd:10/21t15 Page 16 Of 27

PaO ID

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1 determining whether the violative nature of particular conduct is clearly established." a!2 Kidd, 563 U.S. 731, 131 S. Ct. at 2084 2011) (internal, quotation marks and citations

3 omitted). When analyzed at the correct level of generality, the Court finds that

4 Neidermeyer has failed to carry his burden oidemon.stra.ting that the right allegedly

5 violated was clearly established at the time of his traffic stop, See Davis, 2014 WL

6 3810574,at*5,

Neidermeyer primarily relies on the Ninth Circuit's decision in U.S. v. Colin, 314

8 F.3d 439 (9th Ci.r. 2002) for the proposition that the right allegedly violated in this case

9 was clearly established at the time Neiderrneyer was stopped. by Officer Caldwell. , (Pltrs

10 Opp'n at 1.1-1.2.) In Colin, an officer observed a car on Interstate 15 "drift onto the solid

11 white line on the far side of the right. Jane and watched the car's wheels travel along the fog

12 line for approximately ten seconds." Colin, 314 F.3d at 441. After the car signaled and

13 moved into the left lane, the officer then "observed the car drift to the left side of the left

.14 lane where its left wheels traveled along the solid yellow line for approximately ten

15 seconds." Id. "The car then returned to the center of the left lane, signaled a lane change,

16 and moved into the right lane." id, At this point, the officer pulled the car over for

17 possible violations of California Vehicle Code §§ 21658(a) and 23152(a). Id.

The Go/in court concluded that the officer "did not have reasonable suspicion to

19 stop [the car] based on lane straddling or driving under the influence." Id. at 446. The

20 Court based its decision. on the fact that "cases suggest that to violate a lane straddling

21 statute, a driver must do more than, simply touch, even for 10 seconds, a painted line on a

22 highways" id at 444. Further, the Court, found that because there was no 'pronounced

23 weaving within a lane" that continued for "a substantial distance," the officer did not have

24 reasonable suspicion to stop the vehicle on suspicion of driving under the influence. Id. at

25 445-46,

Here, if the WARS Video merely showed Neide.rmeyer's car drifting within his

27 lane and touching the dividing lines for a short period of time, Ne.idermeyer might be

28 correct that Co/in established that the right allegedly violated in this case was clearly

Cas '8:14cvO12O9-J:LS.DFM Document 121 Filed.10/21/15 Page 17 óf.27 Page ID

#:3656

established in 2002. (Pltfs Oppn at 12.) However, Co/in is inapposite because, even if

2 the Court assumes that Neiderineyer's car never crossed the dividing line between lanes,

3 but rather only touched the dividing lines briefly, the MVARS Video also shows

4 Neidermeyer making an unsafe lane change. (WARS Video at 00:41-00:45.) co/in

5 recognized that California Vehicle Code § 21658(a) imposes "two separate duties on

6 drivers to stay within a single lane and to make safe lane changes." Id. at 444 (citing

7 People v. Butler, 146 Cal. Rptr. 856 (1978) People v. Skinner, 39 Cal. 3d 765 (1985). in

8 Ca/in, there was no evidence that the car made any unsafe lane changes prior to being

9 pulled over. However, here, the WARS Video shows Neidermcyer making an unsafe

10 lane change about 15 seconds before Neidenneyer is pulled over. As a result, the facts

11 before this Court are different from the facts before the Co/in court, and Neidermeyer's

12 reliance on co/hr fails to satisfy his burden of showing that the right allegedly violated in

13 this case was clearly established at the time Neidcrmeyer was stopped by Officer Caldwell.

14 (Pitr s Opp n, at 11-I 2.)

1.5

Further, "f'tjhe Ninth Circuit precedent[s] of Mesa and Fernandez'-Castillo make

16 clear that a combination of minor driving irregularities that do not themselves constitute

17 illegal activity can nonetheless sum to a reasonable suspicion of intoxicated driving."

18 Davis, 2014 WL 3810574, at *5 (citing United Slates v. Mesa, 234 F. App'x 680, 682-83

19 (9th Cir. 2007) and Untied Slates v. Fernandez-castillo, 324 F3d 1114, 1117 (9th Cir.

20 2003) ("All relevant factors must be considered in the reasonable suspicion calculus—even

21 those factors that, in a different context, might be entirely innocuous,")). "As a matter of

At oral argument. Ncidermeyer's counsel contended that Officer Carter's deposition

24 testimony impeaches Officer Caidweli's account of the events at issue in this case. Specifically,

Neidenneycr's counsel argued that Officer Carter testified that Nèidermeyer's lane change was

2 safe. The Court, however. has reviewed the entirety of Officer Carter's deposition testimony and

26 at no point does Officer Carter classify this lane change as safe. .SCe generally Carter Depo., Doe.

85-4.) Rather, Officer Carter testified that NeIdermeyefs car came close to the vehicle on his

27 right when Neidermeyer made his lane change, estimating the distance between the cars to be

28 between five and ten feet when Neidermeyer changed lanes. (Id. at 7879.)

•814-cv0120.9-JLS-DFM. Document. 121 Filed 10121/I5:: Page ia of 27 Page 40

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11 public policy, qualified immunity provides ample protection to all but the plainly

incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335,

335 (1986).

Accordingly, based an the events captured in the MVARS Video, the Court cannot

say that every reasonable officer in Officer Caidwell's position would have understood that

the traffic stop violated Neidermeyer's constitutional rights. See Davis, 2014 WL

3810574, at *5 (citing al-Kidd, 131 S. Ct, 2083). As a result, the Court GRANTS

Defendan.ts Motion and DENIES PlaintiiVs Motion in regards to the traffic stop because

9 Officer Caldwell is entitled to qualified immunity)0

H. Probable Cause to Arrest Neidermeyer

Officer Caldwell asserts that, "[i]n the absence of Neiderineyer's full cooperation,

14 which included not taking any FSTs or answering questions,.. [the] decision to arrest

15 Nc.idermcyer [was based] on the following information: (1) rNeidermeyer]s erratic

16 driving; (2) objective signs that {Neiderineyer} was under the influence of a CNS

17 stimulant; (3) [Ncidertneyer]'s odd, combative, and paranoid demeanor during his contact,

18 with the officers; and (4) Officer Ca.tdweli's training and experience as a traffic officer and

19 as a Drug Recognition Expert/Evaluator" (Defs Mot. at 17-18.) According to Officer

20 Caldwell, Ncidermeyer 'exhibited obvious signs of [Central Nervous System ("CNS")]

21 stimulant use (paranoia, fast talking, muscle rigidity), refused to cooperate in Officer

22 Caldwell's investigation without his attorney present, refused to answer questions seeking

23 to determine whether fNeidermeyerj was driving impaired, and refused to perform field.

24 sobriety tests ('TSTs")" (Id. at 4.) Officer Caidweil claims that he "not only had the

25 duty, but also the obligation, to remove fNeiderineyerj from the roadways after he

Because the second step of the qualified innmnhty analysis is dispositivc, the Court need not

discuss the first step of the qualified immunity analysis.

8:14cv-01209-JLS-DFM Document 121 riled 10/21/15 Page 19 of 27 Page 10

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1 witnessed fNcidermeyerj's previous erratic and dangerous driving and the obvious signs of

CNS stimulant use (paranoia, fast talking, muscle rigidity) exhibited by [Neidermeyer]

3 during their encounter." (Def's Reply at 2) Officer Caldwell therefore argues that the

4 objective evidence was "more than sufficient to support the conclusion Officer Caldwell

5 had probable cause to arrest [Neidermeyer] for DUL' (Deft Mot. at 18.)

As an initial matier, Neidermeyer argues that "[wJhat these films and Plaintiff's

7 I other evidence shows[sic] is Caldwell negatively reacted. to [P]laintif1s right not to answer

8 his question about where he was going by abusing his arrest powers, a classic contempt of

9 cop' arrest without probable cause," (Plif' s Opp in at 16.) Neidermeyer therefore claims

10 that Officer Caldwell did not have probable cause to arrest Neidermeyer and is not entitled

11 to qualified immunity because Officer Caldwell admits that he arrested Neidermeyer for

12 refusing to answer his questions. Pltfs Mot. at 2728,) However, the Supreme Court has

13 "foreclose[d] the argument that ulterior motives can invalidate police conduct justified on

14 the basis of probable cause. Sujective intentions play no role in ordinary, probable-cause

15 Fourth Amendment analysis." Whren v. UniiedStates 517 U.S.806, 806 (1996) (internal

16 citation omitted). Thus, this argument is without merit.

1.7

Neidermeyer also claims that, even lithe Court were to accept all of Officer

.18 Caidweil's claims about Neiderme.yer's behavior as true, Officer Caldwell still did 'not

19 have probable cause to arrest tNeidermeyerl for [a] violation of California's DUI statute."

20 (Phfs Opp'n at 1.4.) According to Neidermeyer, the WARS Video and the Cell Phone

21 Video "prove Neidermeyer was well able to communicate, had clear clean speech, had the

22 physical. agility to get down and up balancing on one leg, and otherwise comj~ plyj with

23 commands." (Id. at 16)

Neidermeyer "bear[s] the burden of demonstrating that the right allegedly violated

25 was Clean)' established at the time of the incident,"

amreia, 588 F.3d at: 103 1, However,

26 specifically in regards to Officer CaldwelPs decision to arrest Neidermeyer, nowhere in

27 Plaintiff's Motion, Plaintiff's Opposition, or Plaintiff Reply does Neidermeyer "ci.tc[]

28 any cases of controlling authority in the[] juisdiction at the time in question which clearly

as :$14..cv-0i2O9.JL&tFM: .Docum'ent'121 'Filed 0/21I15...:0 ge 20 of'27 :pac

#:3659'

I established the rule on which [he] seek[s] to rely, nor ha[s he] identified a consensus of

2 cases of persuasive authority such that a reasonable officer could not have believed that his

3 actions were lawful.," Wilson v, Layne. 526 U.S. 603, 604 (1.999), (See Plaintiffs Motion

4 at 1723; Plaintiffs Opp'n at I316; Plaintiffs Reply at 11-12 (arguing based on the facts

5 that Officer Caldwell violated N'eidermeyer's rights and that those rights were clearly

6 established, but failing to cite a single case to support the contention that Officer Caldwell

7 could not have believed that his actions were lawful when arresting

Further, to the extent that Neid.erncyer has cited, cases for the general proposition

9 "that an unreasonable search or seizure violates the Fourth Amendment," the Court finds

1.0 that Ncidermeyer has failed to satisfy his burden because such general propositions. are "of

11 little help in determining whether the violative nature of particular conduct is clearly

12 established." al-.Kidd 31 S. Ct. at 2084 (internal quotation marks and citations omitted).

13 The Supreme Court has directed courts "not to define clearly established law at a high

14 level of generality." Id.

Accordingly, though the Court recognizes that Officer Caldwell may have been

1.6 mistaken in believing his arrest: of Neidermeyer was justified, the Court finds that Officer

17 1 Caldwell was not "plainly incompetent" and.thus is entitled to qualified immunity. See

18 Stanton 134 S. Ct. at 7. Neid.ermeyer has failed, to cart), his burden. of demonstrating that

19 the right allegedly violated was clearly established at the time of Neideimeyer's arrest. As

20 a result, the Court GRAN. IS Defendant's. Motion and DENIES Plaintiffs Motion in

21. regards to the arrest because Officer Caidweli: is entitled to qualified immunity)'

26—'"'

"Once again, because the second step of the 'qualified immunity analysis is dispositive, the

Court need not discuss the first step of the qualified immunity analysis.

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2. Malicious Prosecution"

Officer Caldwell claims that he is entitled to summary judgment on Neidermeyer's

§ 1983 claim for malicious prosecution because "the District Attorney's Office exercised.

independent judgment in filing charges of, and then criminally prosecuting Neidermeyer]

7 for, DU.1 and resisting arrest." (Defs Mot. at 26) Neidenneyer argues, however, that

$ Officer Caldwell is not entitled to summary judgment on Neidemeyer's malicious

9 prosecution claim because "[tibe truthfulness of [Officer Cal.dwellj's reports, which [the

10 District Attorney] testified w[ere] exclusively what he relied upon, [are] materially

ii disputed by Neidermeyer1," (1'Itfs Opp'n at 17.)

"In order to prevail on a §. 1983 claim of malicious prosecution, a plaintiff 'must

13 show that the defendants prosecuted [him] with malice and without probable cause, and

14 that they did so for the purpose of denying [him] equal protection or another specific

15 constitutional right." Awabdy v. Cii; ofAdelanio 368 F.3d 1062, 1066 (9th Cii-, 2004)

16 (quoting Freeman v. city of Santa Ana, 68 F.3d. 1.180, 11.89 (9th Cir. 1995)) (alteration in

17 original). "Malicious prosecution actions are not limited to suits against prosecutors but

18 may be brought, as here, against other persons who have wrongfully caused the charges to

1.9 be filed." Id.

Where, as here, a prosecutor has filed a criminal complaint, a rebuttable

21 presumption arises that "the prosecutor.

22 that probable cause.

. .

. -

exercised independent judgment in determining

existed, thereby breaking the chain of causation between an arrest

23 and prosecution and immunizing investigating officers from damages suffered after the

24 complaint was filed." Beck v. City, of iand, 527 F.3d 853, 862 (9th Cir, 2008) (citation

25 and internal quotation marks omitted). However, the presumption is rebutted by showing

Plaintilrs Motion does not seek summary judgment on the malicious prosecution claim.

Case 8:14-cv01209JLSDFM Document 121 Filed 10/21/15 Page 22

of 27 Page ID.

#:3661

1 that the independence of the prosecutor's judgment has been compromised. Id. That may

2 be accomplished by, among other things, showing that the prosecutor was given false

3 information or that the officers otherwise engaged in "wrongftl or had faith conduct that

4 was actively instrumental in causing the initiation of legal proceedings," id. at 862-63

5 (citation and internal quotation marks omitted), including the fabrication of police reports.

6 See B1a.nkenliorn V. Cii)' of Orange, 485 F.3d 463, 482-83 (9th Cir. 2007); Sloman v.

7 Tadlock, 21 F3d. 1462, 1474 (901 Cir. 1994).

The Court finds that Officer Caldwell is entitled to summary judgment on

9 Ncidermc'er's malicious prosecution claim because there is no genuine dispute that the

10 prosecutor who filed the criminal complaint against Neidermeyer exercised independent

11 judgment in determining that probable cause existed. Further, Neidenneyer has failed, to

1.2 show that the independence of the prosecutor's judgment was compromised in this case.

In support of Plaintiffs Motion, Neidermeyer submitted as evidence Officer

14 Caldwell's DRE Report and Arrest Report concerning Neidermeyer's traffic stop and

15 arrest. (See Ex. D DRE Report, Doe. 78-2; Ex. G, Arrest Report, Doe, 78-2.) Both

16 reports provide a description that largely matches what is depicted on the WARS Video

17 and Cell Phone Video, and which the Court independently describes above. (compare id,

18 to WARS Video; Cell 1?honc Video; Section I. supra.) It is true that Neidermeyer

19 disputes the truth-fulness of these reports based on the events depicted in the WARS

20 Video and. Cell Phone Video, but, even when taking the facts in the light most favorable to

21 Neiderrneyer, the Court cannot say that any statements included in these reports are

22 demonstrably false, Neidermeye•r may disagree with Officer CaldweiPs characterization

23 of Neidermeyer's movements and demeanor in the reports, but Neidermeyer has failed to

24 show that Officer Caldwell fabricated any portion of these reports.

Further, it is undisputed that Filing Deputy District Attorney Wakahayashi (the

26"filing prosecutor") reviewed Officer Caidweil's Arrest Report and DRE report and

27 charged Neidermeyer with, violating California. Vehicle Code 23152(a) and Californ

ia.

28 Penal Code 148(a) based on them. (Response ¶ 107.) On the first page of the Arrest

Case 8:14-cv-01209-JLSDlM Document 121 Filed 10/21/15.. Page 23 of 27 PageID

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1 Report, in the upper right corner, Officer Caldwell checked the box indicating the

2 existence of the WARS Video, (Arrest Report at I.) Thus, Officer Caldwell not only

3 provided a detailed description of the events in his reports, but also informed the

4 prosecutor that this description could be verified by viewing the WARS Video, Though

5 the filing prosecutor admits that he never saw theMVARS video before filing the criminal

6 complaint against Neiderineyer, (Wakabayashi Depo. at. 31:7-32:1.2, Doe. 85-5), there is no

7 evidence that the filing prosecutor could not have viewed the WARS Video if he so

S desired. As a result, the filing prosecutors decision to file charges against Neidermeyer

9 based solely on. Officer Caidwell's reports was an exercise of his independent judgment.

1.0

Finally, not only did the filing prosecutor independently decide to charge

11 Neidenneyer with a. violation of California Vehicle Code § 2'3152(a),. but he also filed a

12 charge against Ne.idermeyer under California Penal Code § 148(a), (Response 107.)

13 Nowhere in Officer CakiweiPs Arrest Report or DRE report does Officer Caldwell

14 recommend that Neidermeyer be charged under California Penal Code § 148(a). Rather,

1 5 the Arrest Report and DRE Report recommend that Neidermeyer be charged with

16 violations of California Vehicle Code § 23152(a) and California Health and Safety Code §

17 11550(a) only. (Arrest Report at 6; DRE Report at 4.) Thus, the filing prosecutor once

18 again, exercised independent judgment when deciding to charge Neiderineyer with

19 violating California Penal Code § 148(a).

While Neidërmeyer disputes what Officer Caldwell and his partner witnessed prior

21 to the events captured oil the WARS Video, there is no evidence that Officer Caldwell

22 engaged in "wrongful or bad faith conduct that was actively41 instrumental in causing the

23 initiation of legal proceedings." Beck 527 F.3d at 862-63 (citation and internal quotation

24 marks omitted). Accordingly, there is no genuine dispute of material fact as to

25 Neiderrneyer's malicious prosecution claim As a result, the Court GRANTS Defendant's

26 Motion to the extent Officer Caldwell seeks summary judgment on Neiderrneycr's

27 malicious prosecution claim.

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B. Plaintiff's Motion for Summary Judgment and the Teriy, Search

As mentioned above, Neidermeyer contends that Officer CaidweiPs pat-down

4 during the traffic stop was illegal. Specifically, Neidenneyer argues that "Officer

5 CaidweiPs admission that he had no belief [that Neiderme.yer] was armed or dangerous to

6 himself or anyone else" establishes that Officer Caidwell's pat-down search violated

7 Neidcrmeyer's Fourth Amendment right to be free from unreasonable seizures. (Pitt's

8 Mot, at 17; PItt's Reply at 9-11..) The Court agrees.

"Where an officer reasonably believes that the persons with whom he is dealing

1.0 may be armed and presently dangerous,' the officer may conduct a frisk or 'pat-down'

11 search of that person." United States v. LEV, 705 F.3d 430, 432-33 (9th Cir. 2012)

12 (citing Ter;y v. Ohio, 392 U.S. 1, 30 (1.968)). "'The stop and the frisk[J must be analyzed

1.3 separately; the reasonableness of each must be independently determined.'" Id at 434-35

,14

1.5

(citing United States v, Thomas, 863 F.2d 622, 628 (9th. C.ir. 1988)).

"The sole justification of [a pat-down] is the protection of the police officer and

1.6 others nearby. .

Thus, the appropriate analysis is whether a reasonably prudent man in

17 the circumstances would he warranted in the belief that his safety or that of others was in

18 danger." I.E. K. 705 F.3d at 435 (internal quotation marks and citation omitted) (emphasis

19 in original). The Ninth Circuit has joined other circuits in "refusf ing] to allow police

20 officers to justify a Terry search based on mere nervous or fidgety conduct and touching of

21. clotiilng. Id. at 430.

Here, prior to conducting the pat-down, Officer Caldwell asked Neidernicyor if he

23 had any, weapons or drugs on him, and Neidermeyer quickly answered no. (MVARS

24 Video at 08:55.) in addition, up to the point of the pat-down, there was no objective

25 evidence or behavior on the part of Neidermeyer to suggest that he was armed or

26 dangerous. (See generally id at 0:00 to 08:55,) In fact,, at his deposition, Officer Caldwell

27 admitted that, at the time he conducted the pat-down of Neidermeyer. he did not believe

that Neidermeyer was armed or dangerous. (See Caldwell Depo. at 310:4-312:1, Ex. C.

as 8:14-cv01209-JLS-bFM. Document 121 Filed 10/21/15.: Page 25

#2664

0. 27 Page ID

I Doe. 78-2;13 SOI ¶ 25 undisputed that Officer Caldwell did not believe Neiderrneye

r was

2 aimed or dangerous)) Thus, there is no evidence to suggest that "a

reasonably prudent

3 man in the circumstances would be warranted in the belief that his safety or

4 was in danger." I.E.1K, 705 F.3d at 435 (internal quotation marks and

that of others

citation omitted).

Officer Caidwdll also argues that his pat-down of Neidermeyer was lawfu

l because

6 it was a search incident to Neidermeyer's arrest. cDef s Opp'n at 17 (quoti

ng United

7 States i Robinson, 414 U.S. 218, 235 (1973).) "The search-incident-to-arres

t exception

8 permits law enforcement officers to conduct a warrantless search of a person

who is

9 arrested, and of his surrounding area, when the search is incident to the arrest

." United

10 Slates v. Smith, 389 F.3d 944, 950-51. (9th Cir. 2004).

"ITihe critical inquiry in such cases

11 is whether the search is roughly contemporaneous with the arrest.

Id. at 951 (internal

12 quotation marks and citation omitted). "The requirement that the search

and the arrest be

13 roughly contemporaneous is not strictly temporal in nature. Rathe

r, [t]he relevant

14 distinction turns not upon the moment of arrest versus the moment of the search

IS whether the arrest and search are so separated in time or by intervening

but upon

acts that the latter

1.6 cannot he said to have been incident to the former." Id. (quoting United States

17 McLaughlin, 170 F.3d 889, 892 (9th Cir, 1999)).

According to Officer Caldwell, "[ut is immaterial that Plaintiffs pat down

was

19 done before [Nei.dermeyer] was formally under arrest" because Office

r Caldwell ultimately

20 decided to arrest Neidermeyer. (Dcfs Opp'n at 17-1 8.) However,

the cases that Officer

21 Caldwel.l relies upon in support of this contention involved searches that occur

red

22 imiriediatel.y after the arrest, United Stares v. Robinson, 414 U.S. 218 (1973

), without a

23 "significant delay in the series of events from the moment probable cause arose,

" Sin ith,

At one point in his deposition. Officer Caldwell testifies that "something led

me to believe

that

needed

to pat [Neidermeyer] down, and I in that instante, that night, I for

officer safety

reasons, I did a tat-down." (Caldwell D.epo. at 308:20-308:23.) However, in

response to follow27 up questions, Officer Caldwell admits that he did not believe that Neidcrmeyer was

armed when

he conducted the pat-down. See Id. at 310:4-310:7.)

as 8:14-cv-01209-JLS-DFM Document 121 Filed 10/21/15, Page 26.of27 Page.l

#;3665

1 389 F,3d at 952-53, under circumstances "[w]here the formal arrest followed quickly on

2 the heels of the challenged search," Rawlings v. Kentucky, 448 U.S. 98,111 (1980). or

3 where officers "had a reasonable basis to believe that there was a threat to officer safety."

4 Ross v. cal., Na, ED CV 11-1252-DSF SP. 2013 WL 2898066. at 10 (CJ).

Cal. June 10,

5 2013). None of those circumstances are present here. Officer Caldwel.l.'s pat-down of

6 Neidermeyer occurred immediately after Officer Caldwell asked. Neidermeye.r to exit his

7 vehicle and well before Neidermeyer was handcuffed and arrested. Thus, at the time

8 Officer Caldwell conducted his pat-down, very few of the events and observations that

9 Officer Caldwell claims contributed to having probable cause to arrest Ne.idermeyer had

10 occurred. In addition, as discussed above, there was no objective evidence or behavior on

11. the part ofNeidermeyer to suggest that he was armed or dangerous, and, Officer

Caldwell

12 himself admitted that he did not. believe Neidermeyer was armed at the time he conducted

13 the pat-down Thus, Officer Caidwell's pat-down of Neiderrneyer cannot be classified as a

14 search incident- to arrest based on the eases Officer Caldwell cites in his papers.

Accordingly, because there is no genuine dispute of material fact as to the illegality

16 of Officer Caldwcll's pat-down of Neidermeyer, the Court GRANTS Plaintiffs Motion. to

1.7 the extent Neiderm.eyer seeks summary judgment on this issue,

19 IV.

CONCLUSION

For t1 foregoing reasons, Defendant's Motion is GRANTED in part and DENIED

22 in part, and Plaintiffs Motion is GRANTED in part and DENIED in part.

The Court GRANTS Defendant's Motion in regards to DeJndant's stop and arrest

24 of Plaintiff and Plaintiffs claim for malicious prosecution. The Court GRANTS

25 Plaintiffs Motion in regards to Officer Caldweil's pat-down of N'eidermeyer. However,

26 the Court DENIES the remainder of Plaintiffs Motion.

Accordingly, Neidenneyer has prevailed on his 42 U.S.C.

§ 1. 983 claim to the

28 extent it is based on Officer Caidwell's illegal pat-down., whereas Officer Caldwell has

14-cv-01209JLS-0FM Document 121 Filed 10/21/15 Page 27 of 27 Page ID

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1 prevailed on all other theories of liability. Thus, the only issue for trial is a determination

2 of the damages arising from Officer CaIdwell's illegal pat-down.

In light of this Order, the Court ORDERS the parties to file a Joint Status Report no

4 later than 14 days from the date of this Order, informing the Court which motions in

5 Jimine the Court still needs to decide. (Does, 106-1 15.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.