Cross v. City of S.F.

• Decision Date: 02 May 2019
• Docket Number: Case No. 18-cv-06097-EMC
• Citation: 386 F.Supp.3d 1132
• Court: U.S. District Court — Northern District of California
• Parties: Tiffany CROSS, et al., Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

386 F.Supp.3d 1132

Tiffany CROSS, et al., Plaintiffs,

v.CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

Case No. 18-cv-06097-EMC

United States District Court, N.D. California.

Signed May 2, 2019

Abre Leann Conner, ACLU of Northern California, Fresno, CA, Christine Patricia Sun, Jamie Lorraine Crook, ACLU Foundation of Northern California, Eric Graham Messinger, Lauren Kapsky, Matthew Walter Samuels, Whitney Rose O'Byrne, Daralyn J. Durie, Durie Tangri LLP, Micaela Davis, San Francisco, CA, Ezekiel Reifler Edwards, American Civil Liberties Union Foundation, New York, NY, Novella Yvette Coleman, Oakland, CA, for Plaintiffs.

Margaret W. Baumgartner, Renee Rosenblit, Office of the City Attorney, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND DENYING DEFENDANTS' MOTION TO STRIKE

EDWARD M. CHEN, United States District Judge

This civil action is related to the arrests and criminal prosecutions of 37 African American men and women as part of Operation Safe Schools ("OSS"), a program jointly undertaken by the United States Attorney's Office ("USAO"), the Drug Enforcement Agency ("DEA"), and the San Francisco Police Department ("SFPD"). During the criminal prosecutions, a number of these individuals moved to compel discovery on the theory that they were selectively targeted and then prosecuted on the basis of their race. The Court granted in part the motion to compel discovery, but the criminal prosecutions never went forward because, in January 2017, the USAO decided to dismiss the cases with prejudice. See United States v. Mumphrey , No. CR-14-0643 EMC (N.D. Cal.) (Docket No. 293) (order approving notice of dismissal with prejudice). Seven of those persons have now brought a civil action against the City and County of San Francisco ("City" or "San Francisco") as well as multiple SFPD officers. Currently pending before the Court is Defendants' motion to dismiss and strike the first amended complaint ("FAC").

Having considered the parties' briefs, as well as the oral argument of counsel, the Court hereby GRANTS in part and DENIES in part the motion to dismiss and DENIES the motion to strike.

I. FACTUAL & PROCEDURAL BACKGROUND

In the operative FAC, Plaintiffs allege as follows.

OSS was a program run by the USAO, DEA, and the SFPD. See FAC ¶ 59. "The purported goal of the Operation was to target drug sales taking place near schools in the Tenderloin." FAC ¶ 61. "Some 46 members of law enforcement were involved in the Operation, including at least 34 officers, sergeants, and other members of the [SFPD]; 10 DEA officers; a United States Marshal; and a Daly City police officer." FAC ¶ 60.

"The core actions involved in the Operation consisted of undercover law enforcement officers or confidential informants carrying out a series of ‘buy-walk’ transactions." FAC ¶ 64. "In those buy-walks, undercover law enforcement officers or confidential informants approached targeted individuals in the Tenderloin to buy small amounts of drugs from them." FAC ¶ 65; see also FAC ¶ 74 (alleging that "[t]he alleged transactions at issue ... involved small amounts of drugs sold, such as one ‘rock’ of crack"). "[SFPD] officers decided which individuals to target for buy-walks and surveillance before the enforcement operations took place." FAC ¶ 67. "The federal indictments that later issued rested almost exclusively on information obtained during these ‘buy-walk’ transactions, meaning that [SFPD] officers' decisions to select and target individuals for surveilled buy-walks resulted in federal prosecution of those individuals." FAC ¶ 68. "Certain [SFPD] officers were involved in the vast majority of buy-walks and arrests in the Operation." FAC ¶ 69.

Two "waves" were conducted pursuant to OSS.

• The first wave "took place on various dates from August to November 2013" and "consisted of 20 buy-walks." FAC ¶ 70. Federal charges were brought against 14 out of the 20 individuals. All 14 were African American.¹See FAC ¶ 70. All 14 pled guilty. See SAC ¶ 76.

• The second wave "took place on various dates from October to December 2014" and "consisted of 23 buy-walks." FAC ¶ 71. Federal charges were brought against all 23 individuals. All 23 individuals were African American. See FAC ¶ 71. Plaintiffs were all arrested in the second wave. See SAC ¶ 71.

• In sum, 37 people were arrested and prosecuted under OSS, with all 37 people being African American. All 37 faced the prospect of "at least a one-year mandatory minimum sentence pursuant to 21 U.S.C. § 860(a), (d),^[2] though several faced greater exposure.... By contrast, there are no mandatory minimum sentences for drug-related offenses under California law." FAC ¶ 75.

Although only African American individuals were arrested and charged pursuant to OSS, "[i]ndividuals of many different races engage in drug sales in the Tenderloin." FAC ¶ 54. In other words, "drug dealing in the Tenderloin is not limited to members of any one racial group or ethnicity. One set of survey results suggests that approximately half of those persons who sell drugs within the Tenderloin are Black, while 20% are Latino and 17% are white." FAC ¶ 56. Moreover,

[SFPD] members know the Tenderloin is racially diverse and that drug activity in the Tenderloin is not limited to one racial group or ethnicity. For example, multiple law enforcement reports demonstrate the [SFPD's] awareness of the presence of Hispanic or Latino dealers in the Tenderloin. There are also hundreds of San Francisco Superior Court cases that involve non-Black individuals arrested by the [SFPD] for drug-trafficking crimes in the Tenderloin between January 2013 and February 2015, a period that covers the events giving rise to this suit.

FAC ¶ 58.

Plaintiffs maintain that the 37 individuals – including themselves – were targeted for the buy-walks on the basis of their race. As evidence of discriminatory intent, Plaintiffs point to the following (all identified by this Court during the criminal proceedings – i.e. , in its order granting discovery into selective enforcement):

• "The fact that all 37 OSS Arrestees were Black even though the relevant population was not 100% Black." FAC ¶ 86(a).

• "[SFPD] incident reports that showed that the [SFPD] was aware of the presence of and locations frequented by Latino dealers in the Tenderloin." FAC ¶ 86(b).

• "Evidence that some of the [SFPD] officers who were part of the Operation were aware of the existence of non-Black persons engaged in drug sales in the Tenderloin, as those officers were personally involved with the arrests of more than 30 of the non-Black comparators identified by the Federal Defender." FAC ¶ 86(c).

• "A video from the investigation of Plaintiff McNeal, in which [Defendant] Officer Rosaia stated, ‘fucking BMs,’ – i.e., Black males – as the camera is focused on a group of Black men and women, and in response, [Defendant] Officer Crosby stated, ‘shh, hey, I'm rolling.’ " FAC ¶ 86(d).

• "A video from the investigation of a Black OSS Arrestee, Cassie Roberts, showing Officer Doe 1, who was acting in an undercover capacity as a buyer, declining an offer from an Asian dealer and instead purposefully waiting for Ms. Roberts to get off the phone so he could approach her." FAC ¶ 85(b)(iv); see also FAC ¶ 86(e).

• "Racially based conduct or comments made by other officers involved in the Operation, in other contexts." FAC ¶ 86(f); see alsoUnited States v. Mumphrey , 193 F.Supp.3d 1040, 1064 (N.D. Cal. 2016) (taking note of "race-based comments or conduct by at least some of the SFPD officers who worked on OSS, albeit in non-OSS situations (with many of these officers working on multiple OSS cases)").

As indicated above, the two OSS waves took place in late 2013 and 2014. Criminal proceedings in this District were largely initiated in 2014 and 2015.

On March 31, 2015, the Federal Public Defender filed a notice of related cases for eight of the OSS Arrestees – including the Plaintiffs in this case – noting [a] pattern of racially selective enforcement and prosecution, and the intent to file a motion to dismiss the criminal indictments based on violations of the Equal Protection Clause's prohibition against racially selective enforcement of the laws.

FAC ¶ 78.

On April 27, 2015, the Executive Committee for the District assigned all of the criminal cases to this Court "in light of the stated intent of the Federal Public Defender and CJA counsel to file motions to dismiss for selective prosecution based on the same evidentiary record in each of the ... cases." United States v. Mumphrey , No. CR-14-0643 EMC (N.D. Cal.) (Docket No. 30) (order).

On July 16, 2015, the federal government filed a motion seeking a ruling on the claim that the government had engaged in selective enforcement and selective prosecution. See United States v. Mumphrey , No. CR-14-0643 EMC (N.D. Cal.) (Docket No. 51) (Mot. at 1) (asking for "a ruling that the defendants are not entitled to relief in these criminal cases on any claim that law enforcement officers and prosecutors engaged in racial discrimination in [OSS]"). On December 2, 2015, the criminal defendants moved to compel discovery – more specifically, discovery targeted to support a theory of selective enforcement and/or prosecution pursuant to the Supreme Court's decision in United States v. Armstrong , 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). See United States v. Mumphrey , No. CR-14-0643 EMC (N.D. Cal.) (Docket No. 119) (motion).

On June 30, 2016, this Court granted in part and denied in part the motion to compel discovery. See United States v. Mumphrey , No. CR-14-0643 EMC (N.D. Cal.) (Docket No. 190) (order). More specifically, the Court allowed discovery on the selective enforcement theory, but not the selective prosecution theory.

On January 24, 2017, the federal prosecution filed a notice that it was dismissing the indictments in all of the criminal cases. The next day, the Court approved the dismissal with...