Malek v. Green
| Decision Date | 30 May 2018 |
| Docket Number | Case No. 17-cv-00263-BLF |
| Parties | POURYA MALEK, Plaintiff, v. JEFFERY GREEN, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
[Re: ECF 55]
This case arises out of an incident that occurred between Plaintiff Pourya Malek ("Malek") and three police officers from the California Department of Justice ("DOJ") at Malek's home on February 4, 2016. Malek brought suit against Special Agents Jeffery Green, Lance Sandri, and Elisardo Favela (the "Officers") for several violations of his civil rights pursuant to 42 U.S.C. § 1983 and related state law causes of action. See ECF 1 ("Compl."). Defendants moved to dismiss the original complaint, which the Court granted in part with leave to amend and denied in part. See ECF 49 ("Prior Order"). Malek filed a First Amended Complaint on October 18, 2017. See ECF 52 ("FAC"). The Officers now move to dismiss the FAC, arguing that they are entitled to qualified immunity on Malek's amended § 1983 causes of action and that his state law claims also fail. See ECF 55 ("Mot.").
The Court held a hearing on the Officers' motion to dismiss the FAC on May 3, 2018. For the reasons that follow as well as those stated on the record at the hearing, the Officers' motion to dismiss is GRANTED IN PART WITHOUT LEAVE TO AMEND and DENIED IN PART.
The facts of this case are familiar to the parties and the Court and are set forth at length in this Court's Prior Order. The Court summarizes the relevant facts here, focusing on Malek's amended allegations in the FAC.
On October 22, 2012, Malek pleaded no contest in the California Superior Court for Santa Clara County to a misdemeanor charge of having violated California Penal Code § 417.4 (). FAC ¶ 40. A no-contest plea to a § 417.4 charge does not prevent a person from possessing or owning firearms, because the operative statute—California Penal Code § 29805—does not list § 417.4 among the offenses for which a person may be convicted under § 29805. Id. ¶ 41. On or about February 4, 2016, the Officer Defendants reviewed a California Department of Justice-Bureau of Firearms Armed Prohibited Person System ("APPS"), Prohibited Person Report ("PPR"), which had been generated on November 12, 2015. Id. ¶ 42. The PPR stated that Malek had been convicted of Penal Code § 417.4 in 2012 and that he possessed seven registered firearms. Id. ¶¶ 43, 47. Malek alleges that he should not have been listed as a "prohibited person" because no criminal statute, including Penal Code § 29805, prohibits a person with a § 417.4 conviction from possessing or owning firearms. Id. ¶ 43.
Based on two state audit reports finding that the DOJ failed to maintain the APPS database in connection with mental health-based firearm prohibitions, Malek alleges on information and belief that the database's criminal conviction-based firearms prohibitions were similarly inaccurate. Id. ¶¶ 17-30. Malek further alleges that the Officer Defendants recklessly disregarded their training and knowledge about the inaccuracies in the APPS database by not reviewing the Penal Code, and § 29805 in particular, to ensure that Malek was properly included on the PPR at issue. Id. ¶¶ 38, 44-45.
Rather than ensuring that Malek's § 417.4 conviction made him eligible for inclusion on the PPR, Malek alleges that the Officers went to his home with the intention of getting him tovoluntarily surrender his firearms and to cite and release him, but not to arrest him and take him to jail. Id. ¶ 48. Around 9:00 P.M., the Officers arrived at Malek's home and knocked on his door. Id. ¶ 50. Malek alleges that he partially opened the front door, while standing well within his home, some feet away from the front door's threshold. Id. ¶ 51. Officer Green told Malek that he was prohibited from owning firearms due to his 2012 conviction. Id. Malek responded that the Officers were mistaken, because his criminal defense attorney had told him that he could lawfully possess firearms. Id. ¶ 52. Officer Green told Malek that he needed to give up his firearms, and Malek asked if the Officers had a warrant. Id. ¶¶ 53-54. Malek alleges that his repeated assertions of his rights made the Officers "visibly irritated." Id. ¶ 54.
The Officer Defendants then told Malek that he had "options," and he could either give up his firearms voluntarily, in which case he would not be taken to jail, or Malek could wait for the Officers to obtain a search warrant for the firearms, in which case Malek would be arrested and taken to jail. Id. ¶ 54. In response, Malek closed the door slightly, stepped back further into his house, stated that he wanted to speak to his attorney, and again demanded to see a search warrant. Id. ¶ 55.
Although the Officers had not planned to enter Malek's home or arrest him when they came to the house to confiscate the firearms, Malek alleges that the Officers decided to punish him for his "defiance" by not voluntarily surrendering his guns and asking to see a warrant. Id. ¶ 56. Specifically, Malek alleges that Officer Sandri barged into the house, crossing the threshold and forcing Malek back into his home. Id. ¶ 57. Officers Green and Favela followed behind Officer Sandri into the house, and all of the Officers stood in Malek's living room when Officer Sandri told Malek he was under arrest. Id. ¶¶ 57-58. Malek was handcuffed behind his back with only one set of handcuffs, even though Malek alleges that the Officers had been trained to handcuff a person of Malek's stature with two sets of handcuffs to avoid unnecessary pain. Id. ¶ 58.
Before obtaining a search warrant, Malek alleges that Officers Green and Favela searched the house for the firearms that would eventually be the subject of the search warrant. Id. ¶ 60. The Officers located the gun safe and the shotgun in the bedroom that Malek had mentioned to them. Id. The pre-warrant search also included going into Malek's garage to take photographs ofMalek's vehicles. Id. ¶ 61. When Malek asked why the Officers were searching his home without a warrant, the Officers replied that they did not need one. Id. The FAC adds allegations that Malek asked his wife, Fatemeh, to get the court documents from his § 417.4 case. Id. ¶ 62. When Fatemeh, who was not handcuffed, retrieved the court documents and Malek showed them to Officer Sandri, the Officers did not change their conclusion that Malek was prohibited from owning firearms because of the § 417.4 offense. Id.
Malek alleges that the Officers gave him another opportunity to give up his firearms and avoid being taken to jail, but Malek insisted that they get a search warrant for the guns. Id. ¶¶ 65-66. Officer Sandri, who Malek alleges was the supervisor and leader of the operation, directed Officer Green to obtain a search warrant for the firearms. Id. ¶ 67. After Officer Green left the house to obtain the warrant, Officer Sandri continued to try to convince Malek to give up the firearms voluntarily, advising him that obtaining a warrant would take several hours. Id. ¶ 68. Malek refused again. Id. A few hours later, Malek told Officers Sandri and Favela that he was experiencing significant pain from the handcuffs, including that they were aggravating his pre-existing back injury, and that the handcuffs were too tight on his wrists. Id. ¶ 71. Malek alleges that the Officers ignored his repeated complaints and refused his request to handcuff him in front, although Officer Sandri added a second pair of handcuffs after several hours. Id. ¶¶ 71-74.
Meanwhile, Officer Green had authored a statement of probable cause in support of the search warrant that incorrectly stated: "[d]ue to the misdemeanor conviction, of 417.4 PC, MALEK is prohibited from owning or possessing firearms for a ten year period after the conviction date (through 10/23/2022) per section 29805 PC (Possession of Firearm by Misdemeanant), a felony violation." Id. ¶ 77. Malek alleges that Officer Green violated his training and DOJ policy by not requesting that any attorney review his statement of probable cause of the search warrant before presenting them to the magistrate judge, who signed the search warrant at about 3:54 a.m. on February 5, 2016. Id. ¶¶ 78-79. Around 4:15 A.M. Officer Green called Officer Sandri and told him that he had obtained the search warrant. Id. ¶ 80. When Malek asked to see the search warrant, Officer Sandri was "frustrated" and told Malek that it was good enough that Officer Green had obtained it. Id.
As previously alleged, Officer Sandri instructed Malek to open the gun safe or the Officers would have a locksmith come drill it open. Id. Because Malek remained handcuffed, he instructed his wife to open the gun safe. Id. ¶ 81. Officers Favela and Sandri seized the guns and ammunition in the safe as well as several knives on display near the safe. Id. At some point after opening the gun safe, Officer Green returned to the house and showed the search warrant to Malek. Id. One or more of the Officers also searched the house after opening the gun safe and took photographs. Id.
At 6:00 A.M. on February 5, 2016, at which point Malek had been in handcuffs for approximately nine hours, Malek heard Officer Green tell Officer Sandri that they should put down 6:00 A.M. as the time for Malek's arrest. Id. ¶ 83. The Officers then transported Malek to Santa Clara County Jail where he was booked on charges for violations of two felonies: California Penal Code § 29805 and § 30305 (). Id. ¶ 86. Malek remained in custody until 1:00 P.M. on February 5, 2016. Id. A few hours later, at 6:00 P.M. that evening, Officer Sandri left a voicemail for Malek stating that their "paperwork" had been incorrect and that Malek was not prohibited from owning or possessing...
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