Simmons v. Superior Court of San Diego Cnty.

• Citation: 7 Cal.App.5th 1113,212 Cal.Rptr.3d 884
• Decision Date: 29 December 2016
• Docket Number: D070734
• Court: California Court of Appeals
• Parties: Kenneth SIMMONS, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; The City of San Diego, et al., Real Parties in Interest.

7 Cal.App.5th 1113

212 Cal.Rptr.3d 884

Kenneth SIMMONS, Petitioner,

v. The SUPERIOR COURT of San Diego County, Respondent;The City of San Diego, et al., Real Parties in Interest.

D070734

Court of Appeal, Fourth District, Division 1, California.

Filed December 29, 2016

Certified for Partial Publication.^*

Sias | Carr, Peter L. Carr, IV, NaShaun L. Neal ; Filer | Palmer and Justin A. Palmer for Petitioner.

No appearance for Respondent.

Jan I. Goldsmith, City Attorney, Daniel F. Bamberg, Assistant City Attorney, Keith W. Phillips, Deputy City Attorney, for Real Parties in Interest.

HALLER, Acting P.J.San Diego police officers Carlos Robles and Kyle Williams initiated contact with plaintiff Kenneth Simmons for being in a city park after it closed and for riding a bicycle in the dark without a headlight. Simmons fled. The officers pursued, detained, and searched him, finding a plastic baggie containing rock cocaine. Simmons was charged with possessing a controlled substance, using a weapon in a fight, and resisting an officer. A jury was unable to reach a verdict on the drug possession count and acquitted him on the others.

Simmons then brought a civil action against the City of San Diego (the City) and the officers (collectively, defendants) asserting (among others) claims under the Tom Bane Civil Rights Act (Bane Act; Civ. Code,¹ § 52.1 ), which authorizes civil actions by individuals whose federal or state rights have been interfered with by "threat, intimidation, or coercion"; and under the Ralph Civil Rights Act of 1974 (Ralph Act; § 51.7), which authorizes civil actions by individuals subjected to violence or intimidation because of their membership in a protected class. Simmons, who is African-American, alleged the officers violated these statutes by using excessive force during his arrest, pulling his underwear into a "wedgie" while searching him, and conducting a nonconsensual physical body cavity search of his rectum.

Defendants moved for summary adjudication of the Bane Act and Ralph Act claims. The trial court granted the motion. Simmons filed a petition for writ of mandate, which defendants opposed. We issued an order to show cause why we should not grant the requested relief. For reasons we will explain, we grant the petition as to Simmons's Bane Act claim, but deny it as to his Ralph Act claim.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Underlying Incident and Simmons's Criminal Case²

On the night of May 17, 2014, San Diego police officers Robles and Williams were patrolling Memorial Park (the park). They observed Simmons straddling his bicycle next to four Hispanic males who were standing by a park bench. The officers activated the emergency lights on their patrol vehicle and told another group of people that the park was closed. Simmons fled on his bicycle and the officers pursued him in their vehicle. After 10 to 20 seconds, Williams exited the vehicle and pursued Simmons on foot. When Williams caught up about 10 seconds later, he "bear hug[ged]" Simmons to the ground.³ The officers handcuffed Simmons, searched him, and found a baggie containing rock cocaine. Simmons was arrested and later charged with possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a) ); resisting an executive officer (Pen. Code, § 69 ); using a deadly weapon in a fight (Pen. Code, § 417, subd. (a)(1) ); and willfully resisting, delaying, or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1) ).

Simmons moved to suppress the prosecution's evidence on the basis the officers' warrantless detention and search of him was presumptively unreasonable. The motion was denied.

In October 2014, a jury hung on the drug possession count and acquitted Simmons on the remaining counts. During deliberations in the criminal trial, the jury submitted the following question: "If the defendant willfully resisted a peace officer while the officer was lawfully performing his duties (and the defendant knew the officer was performing his duties and was an officer), but the officer subsequently performed his duties unlawfully during the same encounter , is the defendant guilty of Pen. Code § 148 in Count 2 (the lesser offense [to resisting an executive officer]?" (Italics added.))

II. Simmons's Civil Complaint

In April 2015, Simmons filed a civil lawsuit against the City, the San Diego Police Department,⁴ and the officers, asserting causes of action for battery (officers only), sexual assault (officers only), violating the Bane Act (all defendants), violating the Ralph Act (all defendants), intentional infliction of emotional distress (all defendants), negligent supervision (City only), and negligence (all defendants). His operative second amended complaint alleges the following narrative.

About 10:20 p.m. on May 17, 2014, Simmons was lawfully riding his bicycle and listening to music in the park when he was profiled by Robles and Williams. Without reasonable suspicion or probable cause, the officers "allegedly trailed behind [him] to inform him about the need of using a bike light [with] which his bike was already equipped." Simmons did not hear the officers trailing behind him because he was wearing earphones and listening to music. The officers approached Simmons without reasonable suspicion or probable cause and accused him of attempting to evade them because he allegedly possessed drugs. "After [Simmons] repeatedly denied that he possessed drugs, [the officers] then told [him] that they believed that he inserted the drugs [into] his rectum and that they were going to retrieve them with their hands. [Simmons] begged [the officers] not to violate him in that way." The officers "conducted anal cavity searches on [Simmons]'s body without his consent on at least two separate occasions: once while on the side of the street and [again] when [the officers] placed him in the patrol vehicle." The officers also hit Simmons repeatedly in the head and torso "causing multiple contusions and partially causing [Simmons] to defecate on himself."

In support of his Bane Act claim, Simmons alleged the officers "violated [his] right to be free of unreasonable searches" by conducting warrantless and nonconsensual physical body cavity searches. Invoking the statutory language, Simmons alleged the officers (1) threatened "that they were going to perform an illegal anal cavity search ... and carried out that threat"; (2) intimidated Simmons "by handcuffing him, punching and kicking him in the stomach and face and pulling down his pants prior to forcefully conduc[t]ing an anal cavity search ..."; and (3) coerced him when he "was held against his will and beaten by [the officers] while they forcefully conducted an anal cavity search on him." Simmons alleged the officers' conduct was "deliberate and spiteful and specifically aimed [at] depriving him of his [F]ourth [A]mendment right[s]."

In support of his Ralph Act claim, Simmons alleged the officers interfered with the exercise or enjoyment of his statutory and constitutional rights "by the unreasonable use of excessive force perpetrated on him in a racially motivated manner."

III. Defendants' Summary Adjudication Motion

The City and the officers moved for summary adjudication of Simmons's Bane Act and Ralph Act causes of action.

A. Defendants' Moving Papers

1. Bane Act Claim

Defendants argued they were entitled to summary adjudication of Simmons's Bane Act claim because no liability arises under the act when an arrest is lawful. They asserted the officers had probable cause to arrest Simmons, were entitled to use force in doing so, and did not threaten Simmons beyond telling him to stop resisting.

Defendants maintained the officers had probable cause to detain Simmons for three reasons. First, "for being in a City park after it was closed." They submitted evidence showing (1) the officers encountered Simmons at approximately 10:20 p.m.; (2) the park closed at 10:00 p.m.; and (3) it is a violation of the San Diego Municipal Code to be in a city park after it has closed.

Second, defendants argued the officers "had separate probable cause to detain [Simmons] for riding a bicycle in a time of darkness without a light in violation of Vehicle Code section 21202."⁵ Each officer submitted a declaration stating the following: "I saw [Simmons] riding his bicycle at approximately 10:20 p.m. I did not see any lamp emitting white light on the ground or sidewalk in front of Simmons as he was riding a bicycle that night. Even after arresting [Simmons], I did not see a lamp emitting white light on Simmons'[s] bicycle or on Simmons himself." Defendants submitted as an exhibit a video captured by Williams's body-worn camera during the incident to show that it was dark when Simmons was riding his bicycle.

Third, defendants asserted the officers "had probable cause to detain [Simmons] for willfully resisting, delaying and obstructing a peace officer in violation of Penal Code section 148." The officers' declarations stated: "We activated our patrol vehicle's overhead blue and red lights while trailing behind Simmons on his bicycle to stop him. Simmons looked back, did not yield and kept pedaling his bicycle away from us as fast as he could. [Simmons] proceeded to ride his bicycle into a dark alleyway. When we finally caught Simmons, he fought our efforts to arrest and search him, presumably to prevent us from searching his right front pocket where we found his crack cocaine. The body camera video footage shows our search of [Simmons] and our removing a baggie with crack cocaine from Simmons['s] right front coin pocket...." Although the officers found drugs in Simmons's possession, they did not cite suspicion of drug possession as a basis for probable cause to detain him.

Defendants maintained that because the officers had probable cause to detain or arrest Simmons, they were "entitled to use coercion and threats and intimidation" in doing so. They nevertheless denied making any threats (beyond telling Simmons to stop fleeing and...