Duncan v. City of San Diego, Case No.: 17-cv-52-BTM-MDD

• Decision Date: 05 August 2019
• Docket Number: Case No.: 17-cv-52-BTM-MDD
• Parties: Brandon DUNCAN, an individual; and Aaron Harvey, an individual, Plaintiffs, v. CITY OF SAN DIEGO, a California municipal corporation; Rudy Castro, in his individual and official capacity; Scott Henderson, in his individual and official capacity; and Does 1-10, in their official capacities, Defendants.
• Court: U.S. District Court — Southern District of California

401 F.Supp.3d 1016

Brandon DUNCAN, an individual; and Aaron Harvey, an individual, Plaintiffs,

v.CITY OF SAN DIEGO, a California municipal corporation; Rudy Castro, in his individual and official capacity; Scott Henderson, in his individual and official capacity; and Does 1-10, in their official capacities, Defendants.

Case No.: 17-cv-52-BTM-MDD

United States District Court, S.D. California.

August 5, 2019

Mark C. Zebrowski, Dean Seif Atyia, John R. Lanham, Morrison and Foerster LLP, San Diego, CA, for Plaintiffs.

Stacy Jo Plotkin-Wolff, Office of the San Diego City Attorney, San Diego, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

[ECF Nos. 31, 32]

Honorable Barry Ted Moskowitz, United States District Judge

I. INTRODUCTION

This cause of action arises under 42 U.S.C. § 1983. Plaintiffs Brandon Duncan and Aaron Harvey allege the deprivation of their First and Fourth Amendment rights by Defendants City of San Diego and San Diego Police Department ("SDPD") Detectives Rudy Castro and Scott Henderson. Plaintiffs were arrested on an arrest warrant issued by a Superior Court judge for violations of California Penal Code Section 182.5 ("CPC § 182.5"), which penalizes active gang participation. However, a different judge later found there was no probable cause to indict or commit Plaintiffs, and dismissed the charges against them. This civil suit followed.

Pending before the Court are the parties' cross-motions for partial summary judgment. Plaintiffs move the Court to grant summary judgment holding that: (1) a reasonably well-trained police officer would have known that the warrant declarations for Plaintiffs' arrests failed to establish probable cause and should not have been presented to a judge, and (2) that the warrant declarations contain false statements and omissions of material information, which were made either recklessly or deliberately. Defendants urge the Court to grant summary judgment holding that Defendants did not violate Plaintiff's constitutional rights or, in the alternative, that Detectives Castro and Henderson are entitled to qualified immunity and should be dismissed.

For reasons set forth below, the Court finds there is no genuine dispute of material fact as to whether the warrant declarations lacked probable cause to arrest Plaintiffs under CPC § 182.5, but that genuine disputes of material fact remain as to Plaintiffs' judicial deception claim, which must go to trial. The Court further concludes that there was no First Amendment violation. Finally, the Court denies both motions for summary judgment with regard to whether Detectives Castro and Henderson are entitled to qualified immunity.

II. BACKGROUND

A. FACTS

In 2013, the Violent Crimes Task Force ("VCTF"), which is comprised of a number of federal and local law enforcement agencies that includes the SDPD and San Diego District Attorney's Office, was investigating the Lincoln Park Bloods ("LPK") for gang-related drug trafficking and shootings. (ECF No. 31-2 "Decl. Nikoletich" ¶ 5; ECF No. 31-3 "Decl. Castro" ¶15). SDPD Gang Unit Detectives Rudy Castro and Scott Henderson were each assigned to monitor LPK and investigate crimes they suspected were LPK-related. (ECF No. 31-4 "Decl. Henderson" ¶ 3).

Between May and August 2013, there were eight or nine gang-related shootings. (See ECF Nos. 32-7, 32-8).

That same summer, in July 2013, the California Supreme Court discussed CPC § 182.5 at length in People v. Johnson , 57 Cal. 4th 250, 159 Cal.Rptr.3d 70, 303 P.3d 379 (2013). CPC § 182.5 is a voter-enacted statute that, according to the Legislative Analyst's comments in the ballot pamphlet, was intended to "expand[ ] the law on conspiracy to include gang-related activities." Id. at 261, 159 Cal.Rptr.3d 70, 303 P.3d 379 (citing Ballot Pamp., Primary Elec. (Mar. 7, 2000) analysis of Prop. 21 by Legis. Analyst, p. 46). In relevant part, the statute provides: "any person who actively participates in any criminal street gang, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony...." Cal. Pen. Code § 182.5 (internal citations omitted). In People v. Johnson , the California Supreme Court held that individuals may be separately charged with conspiracy to actively participate in a criminal street gang. Johnson , 57 Cal. 4th at 255, 159 Cal.Rptr.3d 70, 303 P.3d 379. The opinion, released during the spate of shootings in Lincoln Park, piqued the San Diego District Attorney's Office's interest in using CPC § 182.5 to prosecute LPK members. (Decl. Nikoletich ¶ 5).

As early as the fall of 2013, the San Diego District Attorney's Office began working off a "target list" that included Plaintiffs, and told Detectives Castro and Henderson that they were interested in prosecuting LPK gang members under CPC § 182.5. (ECF No. 32-4 "Decl. Lanham" Exh. 7 (Nov. 2013 email chain detailing section 182.5 "target list" and conversations with Castro); Decl. Castro ¶ 34; Decl. Henderson ¶ 15; Decl. Nikoletich ¶ 5). Detectives Castro and Henderson reviewed the information they had gathered on LPK members and determined they had probable cause to arrest Plaintiffs and thirteen other individuals for violations of CPC § 182.5. (Decl. Henderson ¶¶ 16, 17; ECF Nos. 32-7 at 13:10-16, 32-8 at 13:11-17).

Detective Castro wrote the arrest warrant applications and declarations. (Decl. Castro ¶ 37; Decl. Henderson ¶ 18). In June 2014, Castro submitted the proposed warrant application and declarations to the District Attorney's Office for review. (Decl. Castro ¶ 38). After a round of edits, the reviewing Deputy District Attorney, Kristie Nikoletich, deemed the warrant application and declarations legally sufficient to support a probable cause finding. (Decl. Castro ¶ 38; Decl. Nikoletich ¶ 8). Detective Castro presented the warrant application and supporting declarations to San Diego Superior Court Judge David Gill, who read the documents and, without further questions, signed the warrants in Castro's presence. (Id.)

1. Warrant Declarations

Detective Castro's supporting warrant declarations for Duncan and Harvey are each fourteen pages, and discuss gang-related crimes committed by thirteen individuals in addition to Plaintiffs. (See ECF No. 32-7 "Duncan Warrant Decl."; ECF No. 32-8 "Harvey Warrant Decl.").

Detective Castro's declaration supporting the warrant application for Duncan's arrest states that "gang members use social media to promote their criminal street gang," and that a review of "Facebook revealed ... Brandon Duncan (Tiny Doo) ... had [a] profile page[ ] during 2013." (Duncan Warrant Decl. at 10:16-22). Castro further noted that "[a]ll [suspects] are ‘friends’ with each other on Facebook and all have posted about their LPK membership." (Id.) It also avers that after two other suspected LPK members were arrested for gang-related crimes, "Duncan posted on his [Facebook] wall ‘Free Lil Hawg and Tae Dip.’ " (Id. at 12:6-7). Finally, Castro's declaration avers that "Charles, Banks, Robinson and Duncan comprise the LPK music group ‘Black Angel Music Group.’ " (Id. at 12:12-13).

Detective Castro's declaration supporting the warrant application for Harvey's arrest also states that Harvey "aka Baby Struck" had a Facebook page in 2013 and was friends with other suspected LPK gang members, all of whom posted about their gang membership. (Harvey Warrant Decl. at 10:16-22). The declaration provides the following examples: "[i]n February and April 2013, Charles posted photographs of himself with a group of LPK gang members, including Harvey, Lamberth, and Gray, with several of the men throwing up LPK gang signs and hand signs for ‘Crip Killer.’ "; and, "[o]n April 29, 2013, [Charles] posted a photo with Lamberth, Harvey and Gray and wrote ‘Real niggas come first.’ " (Id. at 10:23-26). The declaration also details a recorded conversation between suspected LPK members Byreese Taylor and Alton Stovall during a prison visit to another suspected LPK member, Franklin Lamberth. (Id. at 6:12-20). In that recorded conversation, "Lamberth talked about why he was in custody and discussed other LPK gang members. Taylor told Lamberth that Aaron Harvey (aka Baby Struck) was keeping gang members in order." (Id. at 6:15-16). The declaration further states that "Charles is the CEO of [Black Angel Music Group], Winters is VP of Business Operations, Harvey and Jones are Operations Assistants and Bank is an artist." (Id. at 12:13-14).

Based on the foregoing facts, the declaration concludes that Duncan and Harvey "are active members of the Lincoln Park criminal street gang and know members of Lincoln Park engaged in, or have engaged in, a pattern of criminal activity, which includes assaults with firearms, attempted murder and shooting at occupied dwellings, and they promote, further, assists [sic], or benefits [sic] from this felonious criminal conduct, in violation of California Penal Code section 182.5, a felony." (Id. at 13; Duncan Warrant Decl. at 13).

2. Arrests

Duncan was arrested at his residence on June 19, 2014 at 5:40 a.m. (ECF No. 53-5 "Duncan Supp. Decl." ¶ 2). He awoke to the "sound of movement outside of the front door" and when he opened the door, he "was immediately confronted by several law enforcement officers who were pointing their firearms" at him. (Id. ¶¶ 4,5). The law enforcement officers were executing both an arrest and a search warrant. (ECF No. 64-2). The SDPD investigator's report states that Duncan was arrested per his arrest warrant, and the officers seized only his "White I-Phone." (ECF No. 53-2).

Harvey was arrested on July 17, 2014 in Las Vegas, Nevada. (ECF No. 53-6 "Harvey Supp. Decl." ¶ 2). A team of "approximately fifteen to twenty law enforcement...