Luong v. City & Cnty. of S.F.

• Decision Date: 19 November 2012
• Docket Number: No. C11-5661 MEJ,C11-5661 MEJ
• Court: U.S. District Court — Northern District of California
• Parties: KIMBERLY LUONG, et al., Plaintiffs, v. CITY & COUNTY OF SAN FRANCISCO, et al., Defendants.

KIMBERLY LUONG, et al., Plaintiffs,

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

No. C11-5661 MEJ

UNITED STATES DISTRICT COURT Northern District of California

Dated: November 19, 2012

ORDER GRANTING IN PART

AND DENYING IN PART

DEFENDANTS' MOTION FOR

SUMMARY JUDGMENT

Re: Dkt. No. 23

I.INTRODUCTION

In this lawsuit, Plaintiffs Kimberly (Kim) Luong, Vicky Luong, and Rocky Luong¹(who is Kim and Vicky's father) assert that Defendants City and County of San Francisco(City), San Francisco Police Department(SFPD), SFPD Chief of Police Greg Suhr, and five SFPD police officers — Alberto Ciudad, Gary Moriyama, Thomas Haymond, Sophal Chea, and Robert Duffield(Officers) — violated Plaintiffs' rights under both federal and state law.Second Amended Complaint (SAC), Dkt. No. 21.Defendants now move for summary judgment (Motion, Dkt. No. 23), arguing that each of Plaintiffs' claims fail as a matter of law.Plaintiffs have filed an Opposition (Opp., Dkt. No. 26) to this Motion, to which Defendants have replied (Reply, Dkt. No. 27).Having carefully considered all of the papers submitted by the parties and the arguments of counsel, the Court hereby GRANTS IN PART and DENIES IN PART Defendants' Motion for the reasons explained below.

II.BACKGROUND²

On November 14, 2010, a cable car operator suffered life threatening injuries when he was stabbed several times near Mason Street and Jackson Street in San Francisco.The suspect — later identified as George Luong(Rocky's son and Kim and Vicky's brother) — fled on foot to a nearby alley street called Himmelman Place, where he lived in an apartment with his family.SFPD Officers responded to the crime scene and were quickly alerted by witnesses to the apartment.³

Officers knocked on the front door, identified themselves, and demanded entrance.Neither Kim, George, or their mother(who were all inside) opened the door.After obtaining permission by radio from their supervisor Sergeant Haymond, Officers broke down the door and entered the apartment.George then immediately announced that he would cooperate and came out to the front porch, where he was arrested.Kim, who was recording the incident with a camcorder, was asked by an Officer why she did not open the door.She replied that she was scared.One of the Officers walked through the apartment and commented that there was a bucket inside which appeared to contain a t-shirt covered in blood.Officers then ordered Kim and her mother to leave the apartment.

Kim and her mother joined Rocky and Vicky, who had been waiting outside of the apartment while George was detained.Plaintiffs, who were still recording the ongoing events, were told by anOfficer that they could not use the camcorder because it was a crime scene.The Officer also motioned for them to move down the alley to the main street, and Plaintiffs started to walk in that direction.Two different Officers then informed Plaintiffs that they would have to seize the camcorder as evidence.Plaintiffs refused to give up the camcorder, expressing in an indirect way that they had rights since George was a family member, and that the camcorder could be obtained at a later time from their lawyer.

A handcuffed George was then escorted by Officers down the alley and past Plaintiffs, who were still recording, to a patrol car.An Officer refocused his attention to Plaintiffs and asked them whether they saw what had transpired earlier.Moments later, an individual off-camera is heard saying "you know what, excuse me," which is followed by an Officer physically attempting to take the camcorder away from Plaintiffs.In the ensuing scuffle — the exact details of which both parties dispute — Officers used force to take possession of Plaintiffs' camcorder and detain each of them.During the struggle, each Plaintiff was in possession of the camcorder for a brief moment before the Officers were able to seize it.All three Plaintiffs were eventually handcuffed and arrested.Rocky and Vicky were cited under California Penal Code § 148(Section 148) for resisting and delaying police officers in the execution of their duties.Kim was cited under California Penal Code § 243(Section 243) for battery on a police officer.⁴

Based on the above events, Plaintiffs filed a Complaint against Defendants in San Francisco County Superior Court on September 15, 2011.Dkt. No. 1, Ex. A. Defendants then removed the lawsuit to this Court on November 22, 2011.Dkt. No. 1.The 12 claims asserted by Plaintiffs mostly stem from their allegation that Defendants used excessive force to unlawfully arrest them.The specific claims, delineated in Plaintiffs' SAC that was filed on July 17, 2012, are as follows: (1) a 42 U.S.C. § 1983(Section 1983) claim against the Officers for violating Plaintiffs' constitutional rights under the First, Fourth, and Fourteenth Amendments;(2) a Section 1983 municipal claim against the City based on the same allegations as the first claim and pursuant to Monell v.Department of Social Services of City of New York, 436 U.S. 658(1978);(3) a 42 U.S.C. § 1981(Section 1981) claim against the Officers for violating Plaintiffs' constitutional rights on account of their race; (4) a California Civil Code § 51.7(Section 51.7) claim against the Officers based on the same allegations as the third claim; (5) an assault claim against the City and the Officers; (6) a battery claim against the City and the Officers; (7) an intentional infliction of emotional distress (IIED) claim against the City and the Officers; (8) a negligence claim against the City and the Officers; (9) a Section 1983 municipal claim against the City and Suhr for negligent selection, training, retention, supervision, investigation, and discipline of the Officers; (10) a California Civil Code § 52.1(Section 52.1) claim against the City and the Officers; (11) a claim for injunctive and declaratory relief; and (12) a false imprisonment/false arrest claim against the City and the Officers.In their Motion, Defendants move to dismiss each of these claims.

III.LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate only when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law.Fed. R. Civ. P. 56.The moving party bears both the initial burden of production as well as the ultimate burden of persuasion to demonstrate that no genuine dispute of material fact remains.Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102(9th Cir.2000).Once the moving party meets its initial burden, the nonmoving party is required "to go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial."Celotex Corp. v. Catrett, 477 U.S. 317, 324(1986)(internal quotations and citations omitted).On summary judgment, courts are required to view the evidence in the light most favorable to the nonmoving party.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587(1986).If a reasonable jury could return a verdict in favor of the nonmoving party, summary judgment is inappropriate.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986).

IV.ANALYSIS

In their Opposition, Plaintiffs first note that they are withdrawing their Section 1983Monellclaims against the municipal Defendants.Opp.at 1, fn. 2.Plaintiffs also do not oppose Defendants' Motion on the following: (1)the Section 1981 claim; (2)the Section 51.7 claim; (3) the injunctive and declaratory relief claim; and (4) that there is no evidence to support that Duffield was present during the incident or used any force.Accordingly, Defendants' Motion with respect to Duffield and each of the above claims is GRANTED.The Court discusses the merits of Plaintiffs' seven remaining claims against Defendants in turn below, focusing first on the crux of Defendants' Motion: that Plaintiffs' Section 1983 claims against the Officers for excessive force and unlawful arrest fail as a matter of law.

A.Section 1983 Claim for Excessive Force

Pursuant to the Fourth Amendment, police officers may only use such force as is "objectively reasonable" under the circumstances.Graham v. Connor, 490 U.S. 386, 397(1989).To determine whether the Officers' use of force was reasonable in this matter, this Court must balance the "nature and quality of the intrusion on a person's liberty with the countervailing governmental interests at stake."Davis v. City of Las Vegas, 478 F.3d 1048, 1054(9th Cir.2007)(internal quotations and citations omitted).This balancing requires the Court to "assess the quantum of force used" and then "measure the governmental interests at stake" by considering "(1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight."Id.(internal quotations and citations omitted).Since cases involving police misconduct almost always involve disputed facts and turn on credibility determinations, the Ninth Circuit has "held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly."Drummond v. City of Anaheim, 343 F.3d 1052, 1056(9th Cir.2003).

The Ninth Circuit's warning in Drummondthat summary judgment in excessive force cases should be granted sparingly aptly applies to Kim and Vicky's claims in this matter.In their Motion, Defendants argue that the "Officers did not use pepper spray or their batons, or cause any serious injury to Plaintiffs," but, rather, only "pushed Kimberly and Vicky away when they attempted tointerfere, and then held them while they continued to resist, resulting in a few scrapes and bruises."Motionat 9-10.According to Defendants, this constituted a reasonable use of force, and, even if it did not, th...