1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC ANTHONY ALSTON, JR., No. 2:21-cv-2049 DAD AC PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CITY OF SACRAMENTO; SGT. HAMM, #3018; OFFICER DELGADO, #358; 15 OFFICER MELLOCH, #602, 16 Defendants. 17 18 Plaintiff is proceeding in this action pro se and the case was accordingly referred to the 19 undersigned by Local Rule 302(c)(21). Defendants move for summary judgment. ECF No. 32. 20 Plaintiff filed an untimely opposition to the motion. ECF No. 35. Defendants replied. ECF No. 21 36. In the interest of justice and judicial economy, the court has fully considered all papers and 22 argument, including plaintiff’s untimely opposition. For the reasons explained below, 23 defendants’ motion should be GRANTED. 24 I. Procedural Background 25 Plaintiff filed this civil rights action under 42 U.S.C. § 1983 for violations of his First, 26 Fourth, Fifth, and Fourteenth Amendment rights, along with related state law claims, on 27 November 5, 2021. ECF No. 1. Plaintiff paid the filing fee and did not seek in forma pauperis 28 status, so the complaint was not screened under 28 U.S.C. § 1915(e)(2). The complaint presents 1 eight causes of action, all arising from the police response to a home in the Meadowview area of 2 Sacramento on October 6, 2021. Plaintiff was attending a celebration of life for his cousin at the 3 house when he heard gunshots. When the police arrived, they handcuffed plaintiff and put him 4 into a patrol car where he was detained for over an hour. The complaint also alleges that many 5 other Black men at the scene were wrongfully handcuffed and detained. 6 The complaint presents the following claims: (1) unreasonable seizure/false 7 arrest/imprisonment in violation of the Fourth Amendment, under 42 U.S.C. § 1983; (2) violation 8 of First Amendment right to free speech, under § 1983; (3) excessive force in violation of the 9 Fourth Amendment, under § 1983; (4) excessive force/illegal detainment under California 10 Constitution and Bane Act; (5) violation of Fifth Amendment right to remain silent, under § 1983; 11 (6) violation of Equal Protection Clause, under § 1983; (7) battery under California law; and (8) 12 false imprisonment under California law. ECF No. 1. 13 Plaintiff filed a premature motion for summary judgment (ECF No. 7), which was 14 withdrawn after discussion at the initial scheduling conference (ECF No. 15). Discovery closed 15 on February 2, 2023, and the dispositive motions deadline was July 31, 2023. ECF No. 16. 16 Plaintiff filed a second motion for summary judgment (ECF No. 18), which was fully briefed and 17 thereafter denied. ECF Nos. 25 and 29. Trial is currently scheduled for November 27, 2023. 18 ECF No. 16. 19 The instant motion seeks judgment in defendants’ favor as a matter of law on all claims. 20 As to the federal claims, defendants contend that the individual officers are entitled to qualified 21 immunity and that plaintiff has provided no evidentiary foundation for municipal liability. 22 II. Legal Standards 23 A. Summary Judgment under Rule 56 24 Summary judgment is appropriate when the moving party “shows that there is no genuine 25 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 26 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 27 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 28 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 1 moving party may accomplish this by “citing to particular parts of materials in the record, 2 including depositions, documents, electronically stored information, affidavits or declarations, 3 stipulations (including those made for purposes of the motion only), admissions, interrogatory 4 answers, or other materials” or by showing that such materials “do not establish the absence or 5 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 6 support the fact.” Fed. R. Civ. P. 56(c)(1). 7 Summary judgment should be entered, “after adequate time for discovery and upon 8 motion, against a party who fails to make a showing sufficient to establish the existence of an 9 element essential to that party’s case, and on which that party will bear the burden of proof at 10 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 11 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 12 a circumstance, summary judgment should “be granted so long as whatever is before the district 13 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 14 56(c), is satisfied.” Id. 15 If the moving party meets its initial responsibility, the burden then shifts to the opposing 16 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 17 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 18 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 19 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 20 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 21 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 22 fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty 23 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 24 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a 25 reasonable jury could return a verdict for the nonmoving party,” Anderson, 477 U.S. at 248. 26 In the endeavor to establish the existence of a factual dispute, the opposing party need not 27 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed 28 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 1 truth at trial.’” T.W. Elec. Service, Inc., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. v. 2 Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). Thus, the “purpose of summary judgment is to 3 pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 4 trial.” Matsushita, 475 U.S. at 587 (citation and internal quotation marks omitted). 5 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 6 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 7 v. Cent. Costa County Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is 8 the opposing party’s obligation to produce a factual predicate from which the inference may be 9 drawn. See Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 10 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 11 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 12 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 13 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 14 U.S. at 289). 15 B. Qualified Immunity 16 Government officials are immune “from liability for civil damages insofar as their 17 conduct does not violate clearly established statutory or constitutional rights of which a 18 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 19 “Qualified immunity balances two important interests—the need to hold public officials 20 accountable when they exercise power irresponsibly and the need to shield officials from 21 harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. 22 Callahan, 555 U.S. 223, 231 (2009). Ideally, qualified immunity is determined at the earliest 23 possible stage in litigation to avoid unnecessary burden and expense. Hunter v. Bryant, 502 U.S. 24 224, 227 (1991)). 25 In Saucier v. Katz, 533 U.S. 194 (2001) (overruled in part by Pearson, 555 U.S. 223), the 26 Supreme Court set forth a two-part inquiry for determining whether qualified immunity applies. 27 First, a court must ask, “[t]aken in the light most favorable to the party asserting the injury, do the 28 facts alleged show the officer’s conduct violated a constitutional right?” Id. If so, the court must 1 ask whether the constitutional right was “clearly established.” Id. This second inquiry must be 2 undertaken in the specific context of the case. Id. In Pearson v. Callahan, the Supreme Court 3 removed any requirement that the Saucier test be applied in a rigid order, holding “[t]he judges of 4 the district courts and the courts of appeals should be permitted to exercise their sound discretion 5 in deciding which of the two prongs of the qualified immunity analysis should be addressed first 6 in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. 7 “The plaintiff bears the burden of proof that the right allegedly violated was clearly 8 established.” Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014) (internal quotation 9 marks omitted). “To meet this standard the very action in question need not have previously been 10 held unlawful.” Id. (internal quotation marks omitted). This is especially the case in the context 11 of alleged Fourth Amendment violations, where the constitutional standard of “reasonableness” 12 requires a fact-specific inquiry. Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (en banc). 13 The court must determine “whether a reasonable officer would have had fair notice that the action 14 was unlawful[.]” Tarabochia, 766 F.3d at 1125 (internal quotation marks and brackets omitted). 15 At its base, “[t]he qualified immunity doctrine rests on a balance between, on the one hand, 16 society’s interest in promoting public officials’ observance of citizens’ constitutional rights and, 17 on the other, society’s interest in assuring that public officials carry out their duties and thereby 18 advance the public good.” Beier v. City of Lewiston, 354 F.3d 1058, 1071 (9th Cir. 2004). 19 III. Statement of Undisputed Facts 20 Unless otherwise specified, the following facts are either expressly undisputed by the 21 parties or have been determined by the court, upon a full review of the record, to be undisputed 22 by competent evidence. A comprehensive statement of disputed and undisputed facts, containing 23 defendants’ initial statement, plaintiff’s response, and defendants’ reply, is located at ECF No. 24 36-1.1 25 On the evening of October 6, 2021, gun shots were heard by individuals inside the home 26 at 2027 O’Neil Way in Sacramento. ECF No. 36-1 at 1. Multiple shots were heard in the 27 1 See also, ECF No. 32-2 (defendants’ separate statement of undisputed facts); ECF No. 35-2 28 (plaintiff’s opposition to undisputed facts). 1 vicinity, and the Sacramento Police Department received multiple calls reporting gunshots 2 outside 2027 O’Neil Way. Id. at 2. Plaintiff himself heard “probably more than 10” rounds fired, 3 “sounding like someone with an assault rifle.” Alston Depo. at 59:18-21 (ECF No. 32-3 at 12). 4 Police officers responded to the scene. Id. at 3. Officers observed numerous shell casings in the 5 roadway. Id. Officers observed that there was a party or similar gathering at the residence. Id. 6 Officers observed multiple individuals running away from 2027 O’Neil Way, and other 7 individuals running into the residence. Id. At least one individual was observed entering the 8 residence after discarding a firearm in front of the home. Id.; Declaration of Officer Derek 9 Calabrese (Calabrese Decl.)2 ¶ 8. 10 There were numerous individuals at the scene, some of whom appeared to the officers to 11 be intoxicated. Calabrese Decl. ¶ 10; Declaration of Det. Eric Nedeljkovic (Nedeljkovic Decl.)3 ¶ 12 10. Officers were concerned that additional individuals in and around 2027 O’Neil Way may 13 have had weapons. Nedeljkovic Decl. ¶ 7; Calabrese Decl. ¶ 12. Once additional officers 14 arrived, officers requested all individuals in the residence at 2027 O’Neil Way exit the home. 15 Nedeljkovic Decl. ¶ 8; Calabrese Decl. ¶ 13. 16 Officer Calebrese’s body camera shows multiple individuals standing around the home in 17 question, with Calebrese speaking to a man whose hands are placed on his head. ECF No. 30, Ex. 18 A (Calebrese Body Camera Footage). Officer Calabrese asks if the man has a gun, and the man 19 responds that he does, in his pocket. Id. Officer Calabrese says “okay, we can all have a civilized 20 conversation, but there’s a lot of guns here already.” Id. He directs the man away from the 21 house. Id. Officer Calabrese says, “we need to identify everybody.” Id. 22 Plaintiff, Eric Alston, exited the home after police arrived. ECF No. 36-1 at 4. Mr. 23 Alston was patted down for weapons, and asked if he was on parole. Id. Plaintiff was not 24 initially placed in handcuffs after being patted down for weapons. Id. Officer Delgado asked 25 plaintiff to move toward the street, away from the home. Delgado Interrogatory Responses (ECF 26 No. 35-1) at 5. Rather than walk toward the street, plaintiff approached another officer on the 27 2 ECF No. 32-4. 28 3 ECF No. 32-7. 1 scene, and was again directed toward the street and away from the house. ECF No. 19, Ex. A 2 (Delgado Body Camera Footage). While the other officer directed plaintiff again to move away 3 from the house, Officer Delgado approached plaintiff and took him by the arm, leading him away 4 from the house. Id. Plaintiff said “hey, don’t touch me man” and Officer Delgado replied, “you 5 can go by handcuffs too.” Id. Plaintiff and Officer Delgado briefly and inaudibly conversed, and 6 when they reached the sidewalk Officer Delgado said, “Ok, you’re going to go in handcuffs then” 7 and placed handcuffs on plaintiff with plaintiff’s hands behind his back. Id. Officer Delgado 8 stated, “there’s a whole bunch of guys in there, there’s just been a shooting.” Id. Plaintiff told 9 Officer Delgado that he was violating his constitutional rights, and Officer Delgado replied, 10 “you’re not under arrest, you’re being detained.” Id. 11 Officer Delgado walked plaintiff to the front of a police car. Id. Plaintiff continued to 12 repeat that his Fourth Amendment rights were being violated. Id. Officer Delgado stated, 13 “you’re being detained because you’re making it unsafe for everybody.” Id. Plaintiff asked “do 14 you have your camera on” several times. Id. Plaintiff repeated “I’ve done nothing wrong” and “I 15 was only trying to assist you” several times. Id. Plaintiff was directed to a police car and directed 16 to get in. Id. Plaintiff asked, “can you pull my pants up so I can stand up sir.” Id. The officer 17 obliged, plaintiff said, “thank you sir” and placed himself in the car with no physical assistance 18 from any officer. Id. 19 Plaintiff was kept in handcuffs for approximately 20 minutes. ECF No. 36-1 at 10. 20 After entering the patrol car, plaintiff invoked his Fifth Amendment rights, but continued to speak 21 and pose questions to the officers. ECF No. 7, Ex. A (AXON BODY 3 camera footage). The 22 vehicle patrol camera shows plaintiff sitting in the patrol car, stating at the 1 minute and 23 23 second mark, “I need medical, I have wrist issues sir.” ECF No. 7, Ex. A (Patrol Vehicle 24 Camera). An officer outside the car tells plaintiff “we need to make sure it’s cleared first” and 25 plaintiff replies, “well you need to call medical sir.” Id. The officer asked plaintiff what his 26 name was, and plaintiff refused to provide it. Id. At the 16:35 mark on the patrol vehicle camera, 27 plaintiff calls to an officer outside the vehicle and says, “I’ve got carpel tunnel sir” and asks for 28 his handcuffs to be removed. Id. Plaintiff exits the car, his handcuffs are removed, and he is 1 returned to the car at the 18:27 mark. Id. When plaintiff re-enters the car without handcuffs, he 2 yells “get my phone” to someone outside the car, and states “record, he’s violating my First 3 Amendment rights.” Id. A person outside the car says “Eric, please just stop, just relax” and, 4 after unintelligible comments between the person outside the car and plaintiff, the person outside 5 the car says, “I have it.” Id. The person outside the car repeatedly says, “just stop” and plaintiff 6 states, “I’m gonna sue him, I’m gonna sue him.” Id. Plaintiff states “they’re gonna get a lawsuit, 7 I have a right to record any interaction with the police department.” Id. 8 At the 23:78 mark on the patrol vehicle camera, plaintiff taps the window and gets the 9 attention of a person outside the vehicle. Plaintiff states “are you recording, let me see it.” Id. At 10 the 23:03 mark, plaintiff tells the person outside the vehicle to stop recording. At the 43:39 mark, 11 plaintiff taps on the vehicle window. Plaintiff states “that motherfucker said he was going to 12 bring medical man, my arm hurts.” Id. Plaintiff begins to engage with someone outside the 13 vehicle whom he refers to as Melloch, though the officer is not visible from the camera angle, 14 again demanding medical attention for his arm. Id. The interaction ends at the 47:27 mark. Id. 15 Another interaction begins with an officer at the 52:49 mark. Id. Plaintiff invokes his Fifth 16 Amendment rights, continues to demand to know what crime he is suspected of, and states that he 17 has a right to record any interaction with law enforcement. Id. 18 At the 1:05:00 mark, another officer approaches. Id. Plaintiff immediately states, “I want 19 medical” and invokes his Fifth Amendment rights, before stating “what’s going on sir.” Id. The 20 officer responds, “I understand we haven’t identified you yet.” Id. Plaintiff says, “what does it 21 matter, what crime do you suspect me of sir.” Id. The officer replies “this is a shooting 22 investigation” involving multiple firearms, and the officer explains that plaintiff is part of the 23 investigation for two reasons: “your proximity in both distance and time to that shooting.” Id. 24 The officer says “so, we will be identifying everybody” and offers plaintiff the opportunity to 25 identify himself. Id. The interaction continues, with plaintiff stating at the 1:07:37 mark “you 26 won’t let me record” and the officer responding, “we don’t let people have phones in the back of 27 the vehicles.” Id. Plaintiff tells the officer that the Supreme Court says he is allowed to record 28 any interaction with law enforcement, to which the officer replies “unless you’re detained.” Id. 1 At the 1:08:46 mark plaintiff again states that he is a prisoner, he is detained, he has not been 2 given medical attention, he has carpel tunnel, and the handcuffs that were initially placed on him 3 were too tight. Id. The officer responds, “it looks like you’re free” and plaintiff says, “my left 4 arm is fine, my right arm is numb.” Id. Plaintiff and the officer continued to converse; the 5 interaction ends at 1:12:15 on the patrol vehicle camera. Id. Officer Melloch approaches plaintiff 6 at the 1:17:17 mark and asked, “can you get me your name so I can get you out of here?” to 7 which plaintiff responded “Melloch, I’m invoking my Fifth, you have not told me, I will take this 8 all the way, you don’t want this, you have to tell me why I’m being detained.” Id. The officer 9 again asked for ID, and plaintiff again invoked his Fifth Amendment right. Id. Plaintiff 10 repeatedly says, “take me to jail,” and tells the officer to get his sergeant. Id. The interaction 11 ends at 1:18:37. Id. 12 At the 1:23:09 mark on the patrol vehicle camera, plaintiff taps on the window and says 13 “are you guys going to take me to jail or what” and repeatedly says “take me to jail.” Id. At the 14 1:23:35 mark, plaintiff begins speaking with an officer and states he is invoking his Fifth 15 Amendment privilege, and then says “you gotta tell me why I am being detained.” Id. The 16 officer, Officer Nedeljkovic, explained that there were two clusters of bullet casings and a large 17 gathering of people. Id., ECF No. 7, Ex. A (AXON BODY 3 camera footage). He goes on to 18 explain that one subject threw a gun and went inside; another subject was “back here” and threw a 19 gun at the speaking officer, and that subject was detained. ECF No. 7, Ex. A (AXON BODY 3 20 camera footage). The officer explained that “when officers come on to a scene like that where a 21 shooting has occurred, there are bullets on the ground, and people are nearby, you are detained 22 until we can figure out what is going on safely.” Id. Plaintiff was told he was being detained for 23 multiple reasons including because he was making the scene unsafe. ECF No. 36-1 at 11. 24 Officer Nedeljkovic explained to Mr. Alston that because of the shooting individuals were being 25 detained until officers could safely determine what occurred. Id. SPD officers were continuing to 26 investigation the shooting while Mr. Alston was detained in the back of the police vehicle. Id. at 27 12. Plaintiff tells the Officer that Officer Delgado “still hasn’t given me medical” and the Officer 28 responded, “do you need medical?” to which plaintiff replied, “I need medical, I have carpel 1 tunnel.” Id. The officer asked, “do you want an ambulance?” and plaintiff replied “I want 2 medical.” Id. The officer tells another officer, “hey he wants an ambulance for his carpel 3 tunnel.” Id. 4 The officer called a sergeant over to the vehicle in which plaintiff was detained. Plaintiff 5 said he invoked his Fifth and Fourth Amendment rights, but continued to ask the officers “do you 6 suspect me of shooting a firearm,” to which the original officer replied, “I explained it to you.” 7 Officer Nedeljkovic stated, “so the easiest way to remedy this situation is us ID’ing you, and then 8 most likely, as long as you’re . . .” during which plaintiff continually interrupted the officer 9 stating, “Fifth Amendment” and “take me to jail, take me to jail I know I haven’t done anything 10 wrong.” Id. After the officers confer, at 1:27:49 on the patrol vehicle camera, plaintiff is 11 informed he is being released and he exits the vehicle saying, “where’s medical.” Once outside 12 the vehicle plaintiff continues to demand medical. ECF No. 7, Ex. A (Patrol Vehicle Cam). 13 Plaintiff was released from the police vehicle after being detained for approximately 90 minutes. 14 ECF No. 36-1 at 13. 15 IV. Analysis 16 A. Claim One: Unreasonable Detention (Fourth Amendment, 42 U.S.C. § 1983) 17 1. Overview of the Claim 18 The complaint alleges that plaintiff’s Fourth Amendment right against unreasonable 19 seizure was violated by his temporary detention during the investigation that immediately 20 followed police response to the reports of gunshots fired at or near 2027 O’Neil Way. This claim 21 is stated against Officers Hamm, Delgado and Melloch individually, and against the City of 22 Sacramento. ECF No. 1 at 6. 23 2. Officer Liability 24 The individual officers argue that they are entitled to qualified immunity. With respect to 25 both persons and property, “[t]he Fourth Amendment proscribes only ‘unreasonable’ searches and 26 seizures.” Franklin v. Foxworth, 31 F.3d 873, 875 (9th Cir. 1994). Whether a seizure is 27 unreasonable is measured by an objective test based on all the circumstances of a given situation: 28 “a detention may be unreasonable in a particular instance either because the detention itself is 1 improper or because it is carried out in an unreasonable manner.” Id. at 876. Objective 2 reasonableness in the Fourth Amendment context is evaluated from the perspective of a 3 “reasonable officer on the scene,” considering all the facts and circumstances confronting law 4 enforcement. Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011). In all detention 5 scenarios, the court must weigh the need for police action against the nature and degree of 6 inconvenience and intrusion that the detention entails. See Terry v. Ohio, 392 U.S. 1, 21 (1968); 7 see also Brown v. Texas, 443 U.S. 47, 51 (1979) (in deciding whether a detention is reasonable, 8 courts look to “the gravity of the public concerns served by the seizure, the degree to which the 9 seizure advances the public interest, and the severity of the interference with individual liberty.”). 10 Circumstances under which it may be objectively reasonable to detain a person who is not 11 suspected of having committed a crime include “emergency situations” in which local law 12 enforcement officers are acting to keep the peace. See Maxwell v. County of San Diego, 708 13 F.3d 1075, 1084 (9th Cir. 2013). 14 Here, the facts and circumstances material to the reasonableness of plaintiff’s detention 15 are that the defendant officers were responding to multiple emergency calls regarding shots fired 16 in a residential neighborhood; the scene was crowded and chaotic, with some persons appearing 17 intoxicated; there were multiple shell casings at the scene, at least one gun had been discarded by 18 someone at the scene, and at least one individual was found to be armed; the extent of ongoing 19 danger accordingly needed to be assessed; and officers were attempting to identify the persons 20 present and determine which of them had pertinent information about the shooting and which if 21 any of them might be possible suspects. For purposes of qualified immunity, the dispositive 22 question is whether it was clearly established that under these circumstances, it violated the 23 Fourth Amendment to detain someone who failed to follow directions (or who was perceived as 24 non-cooperative) for 90 minutes in a patrol car, including 20 minutes in handcuffs, while the 25 scene was secured and the persons present were identified. The court must ask whether plaintiff’s 26 asserted right to be free from such detention was “‘sufficiently clear’ that every ‘reasonable 27 officer would have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 28 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Although 1 a case involving an identical fact pattern is not required, “existing precedent must have placed the 2 statutory or constitutional question beyond debate.” Id. 3 In Maxwell, supra, the Ninth Circuit rejected an assertion of qualified immunity where 4 officers had separated and detained witnesses at the scene of a crime for five hours for the sole 5 purpose of gathering information from them, even though the crime had been solved. The court 6 noted that “there are few cases discussing the reasonability of detaining witnesses solely for 7 investigative purposes,” and that “[i]n most cases the lack of on-point precedent would compel us 8 to grant qualified immunity.” Id. at 1083. The court nonetheless held that the multi-hour 9 detention at issue was “obvious[ly]” unconstitutional, in light of its excessive duration and the 10 fact that its only purpose was the gathering of information from the detainees. Id. at 1083-85. 11 The absence of exigency—a public safety concern, an ongoing search, the need to secure a crime 12 scene, or similar law enforcement need serious enough to justify a suspicion-less detention— 13 made the detention obviously unreasonable under clearly established Fourth Amendment 14 jurisprudence. Id. 15 Maxwell does not defeat defendants’ assertion of qualified immunity here. In this case the 16 detention lasted 90 minutes, not five hours. Its purpose was not only to obtain information from 17 plaintiff, but primarily to ensure the safe and unimpeded securing of the scene, the identification 18 of any ongoing threat to public safety, and the gathering of evidence related to possible criminal 19 activity. At the time of plaintiff’s detention, the shooter(s) had not been identified. The facts of 20 Maxwell, in contrast, did not involve any ongoing danger or ongoing need to determine whether 21 danger continued. Maxwell accordingly does not support plaintiff’s position. To the contrary, 22 the undersigned finds that the case at bar is one of those cases in which the Ninth Circuit has 23 indicated that the lack of on-point precedent compels a grant of qualified immunity. See id. at 24 1083. 25 Plaintiff argues that because officers did not have reasonable suspicion to believe that he 26 had been involved in the exchange of gunfire or had otherwise committed a crime, it was clearly 27 established that he could not be detained at all. In support of the proposition that no detention is 28 ever permissible without individualized reasonable suspicion of criminal conduct, and in 1 opposition to the assertion of qualified immunity on this claim, plaintiff cites cases involving fact 2 patterns entirely unlike this case. Plaintiff cites Liberal v. Estrada, 632 F.3d 1064, 1076-77 (9th 3 Cir. 2011), which found a Fourth Amendment violation where a traffic stop was conducted 4 without any reason to suspect criminal activity on the part of the motorist, and C.L. v. Grossman, 5 798 Fed. Appx. 1015, 2020 U.S. App. LEXIS 9449, 2020 WL 1492036 (9th Cir. 2020), which 6 affirmed the denial of qualified immunity where officers had detained and forcefully arrested an 7 autistic individual in a public park because they thought his repetitive hand movements indicated 8 use of an illegal inhalant. The standards for traffic stops and for detentions rising to the level of 9 arrest, though certainly clear, are not applicable here. Neither case cited by plaintiff involved 10 police response to a “shots fired” call or an analogous public safety emergency. Because the need 11 for police action in this case is very different from that in the cited cases, those authorities cannot 12 have put defendants on notice that their actions were unconstitutional. 13 Elsewhere in his opposition to summary judgment, plaintiff cites Washington v. Lambert, 14 98 F.3d 1181, 1182 (9th Cir. 1996), in which the plaintiffs had been stopped at gunpoint in the 15 parking lot of their hotel, taken to the ground, forcefully handcuffed, and detained based only on 16 their racial similarity to individuals who had committed a robbery nearby. Plaintiff also cites 17 Nicholson v. City of Los Angles, 935 F.3d 685, 691 9th Cir. (9th Cir. 2019), which denied 18 qualified immunity for an unlawfully prolonged detention and sustained handcuffing of an 19 individual after probable cause had dissipated. Neither of these cases would put a reasonable 20 officer on notice that it is impermissible in response to shots fired at a crowded location in a 21 residential neighborhood to detain those present while the scene is secured, possible ongoing 22 threats are identified and neutralized, and any percipient witnesses and/or potential suspects are 23 identified. 24 In sum, plaintiff’s reliance on the rules governing “Terry stops” and traffic stops does not 25 defeat qualified immunity because the facts of this case present a materially different situation. 26 The obvious exigency of the situation at 2027 O’Neil Way, and the related law enforcement 27 needs to secure the scene and identify persons present without interference, are the most salient 28 circumstances affecting the reasonableness analysis required by the Fourth Amendment. None of 1 the cases cited by plaintiff or identified by the court’s research would put reasonable officers on 2 notice that their actions, under the circumstances at 2027 O’Neil Way, violated plaintiff’s rights. 3 To the contrary, the Ninth Circuit has acknowledged that some detentions not based on 4 reasonable suspicion that the detainee was personally involved in criminal activity may be 5 justified in emergency situations. See Maxwell, 708 F.3d at 1084 (citing United States v. Ward, 6 488 F.2d 162, 169 (9th Cir. 1973) (en banc)). Accordingly, the undersigned finds that the 7 individual officers are entitled to qualified immunity as to the fact of plaintiff’s detention. 8 Nothing about the manner of the detention requires a different result. First, as to duration, 9 no clearly established law would have alerted officers that they were exceeding the bounds of 10 Fourth Amendment reasonableness. Plaintiff spent approximately 90 minutes in the patrol car. 11 That is not an objectively unreasonable length of time for officers to detain a witness at a “shots 12 fired” scene in a residential neighborhood, while attempting to determine which of the many 13 people present (if any) may have been involved and which of them could provide information 14 relevant to the immediate law enforcement needs of protecting public safety and identifying 15 possible suspects. The length of plaintiff’s detention was not disproportionate to the officers’ 16 immediate need to identify those present, secure the scene, preserve any evidence, and ensure 17 public safety. Plaintiff has identified no evidence demonstrating that his detention exceeded the 18 time it took officers to accomplish those urgent law enforcement tasks. 19 As to the use of handcuffs, the tightness of which is addressed below in relation to 20 plaintiff’s excessive force claim, the fact of their use in this context does not make the seizure 21 unreasonable. Plaintiff’s reliance on Washington v. Lambert, supra, is unavailing. As noted 22 above, that case involved the seizure at gunpoint of two men who were treated as robbery 23 suspects based only on their race and proximity to the robbery. The facts here, involving 24 plaintiff’s presence at a crowded scene where shots had been fired, are not analogous. Plaintiff 25 was handcuffed because the officers considered him uncooperative during their initial efforts to 26 secure the scene and assure the safety of those present. Although plaintiff disputes that 27 characterization, the video evidence clearly shows plaintiff failing to do as he was asked. See 28 Scott v. Harris, 550 U.S. 372, 380-81 (2007) (plaintiff’s version of events cannot defeat summary 1 judgment when contradicted by the video evidence). The Ninth Circuit has recognized both a 2 plaintiff’s non-cooperation with officers and the existence of an ongoing public safety threat or 3 recent violent crime as potential justifications for handcuffing that would otherwise be 4 impermissible in the absence of probable cause to arrest. Washington, 98 F.3d at 1189. 5 Finally, plaintiff remained handcuffed for approximately 20 minutes, which is a relatively 6 brief period of time. The cuffs were removed when plaintiff complained about pain. Cf. 7 LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir. 2000) (no qualified immunity where 8 evidence shows officers refused to loosen handcuffs when plaintiff complained of pain); Palmer 9 v. Sanderson, 9 F.3d 1433 (9th Cir. 1993) (same). Plaintiff has identified no authority, and the 10 undersigned is aware of none, that would have made the illegality of this brief handcuffing 11 apparent to any reasonable officer under the circumstances. For all these reasons, Officers 12 Hamm, Delgado and Melloch are entitled to qualified immunity on Claim One. 13 3. Municipal Liability 14 Because section 1983 does not provide for vicarious liability, local governments “may not 15 be sued under § 1983 for an injury inflicted solely by its employees or agents.” Monell v. Dep’t 16 of Soc. Servs. of New York, 436 U.S. 658, 694 (1978). Instead, local government entities can be 17 liable only where the municipality itself causes a constitutional violation through a “policy or 18 custom, whether made by its lawmakers or those whose edicts or acts may fairly be said to 19 represent official policy[.]” Id. Municipal liability requires proof both that a policy exists4 or that 20 a customary practice rises to the level of a policy,5 and that this policy or custom or practice 21 4 Conclusory allegations that a policy exists are insufficient to state a Monell claim. See, AE ex 22 rel. Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012); Starr v. Baca, 652 F.3d 23 1202, 1216 (9th Cir. 2011); Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1247 (9th Cir. 1999). 24 5 Absent a formal governmental policy, plaintiff must show a “longstanding practice or custom which constitutes the standard operating procedure of the local government entity.” Gillette v. 25 Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992), cert. denied, 510 U.S. 932 (1993). The custom 26 must be so “persistent and widespread” that it constitutes a “permanent and well settled city policy.” Monell, 436 U.S. at 691. “Liability for improper custom may not be predicated on 27 isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” 28 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (citations omitted). 1 caused or was the “moving force” behind the violation of plaintiff’s rights by the individual 2 municipal actors. Id.; see also City of Springfield v. Kibbe, 480 U.S. 257, 266-68 (1987) 3 (discussing causation requirement in section 1983 municipal liability cases). 4 Here, plaintiff seeks to hold the City of Sacramento liable for the actions of the officers on 5 the theory that the City has “a custom and a practice of forcing people to be detained and identify 6 themselves even with no reasonable suspicion of a crime, in pursuant to their investigation 7 tactics.” ECF No. 35 at 3. Plaintiff represents that the City and its expert witness have admitted 8 to having such a custom or practice. Id. Plaintiff provides no citation to the record for such an 9 admission, however, and defendants deny having admitted to any unconstitutional policy or 10 customary practice. It appears that plaintiff is referring to the declaration of defense expert David 11 Blake, Ph.D., whose report he provides as an exhibit. See ECF No. 35-1 at 15-45. Dr. Blake 12 nowhere states that City police customarily detain people without legal justification. Rather, he 13 recites the California Peace Officer Standards and Training (CA-POST) provisions that are 14 applicable to investigative detentions, and he opines based on a comprehensive review of the 15 evidence in this case that the officers reasonably complied with those standards. Id. at 32-37. 16 Defendants’ reply brief states that they “admit that they will stop and detain subjects on an 17 investigatory basis” but maintain that “there is nothing unlawful or unconstitutional in engaging 18 in such conduct if there are articulable reasons to do so.” ECF No. 36 at 6. Plaintiff’s assertion 19 of a concession by defendants is thus belied by the record. 20 The City is entitled to summary judgment on Claim One, because plaintiff has failed to 21 identify evidence sufficient to support essential elements of municipal liability. See Celotex, 477 22 U.S. at 323. First, for the reasons stated above in relation to individual officer liability, it does not 23 appear that there was any constitutional violation of plaintiff’s rights for which the City could be 24 liable. Second, even assuming that the officers exceeded the bounds of the Fourth Amendment in 25 relation to plaintiff’s detention, he has not identified a policy or established the existence of a 26 custom that could plausibly have cause the officers to disregard their POST training and violate 27 his rights. To the extent that plaintiff relies on the theory that temporary investigative detentions 28 of persons present at the scene of a shooting, who have not yet been ruled out as potential 1 participants and/or identified as witnesses, is an admitted customary practice that is also 2 unconstitutional, plaintiff is simply wrong about the law. For the reasons explained above in 3 relation to individual officer liability and qualified immunity, the practices acknowledged by the 4 City and endorsed by POST are not categorically unconstitutional. 5 Plaintiff’s conclusory allegations about the prevalence of racist City policies and customs 6 are insufficient to defeat summary judgment. At his deposition, plaintiff testified in vague and 7 conclusory terms that he was aware of numerous reports showing the City has various 8 (unspecified) unconstitutional policing policies and practices. Alston Depo. at 100:5-104:19 9 (ECF No. 32-2 at 25-29). The only report about which he could proffer any concrete information 10 whatsoever, even to identify a general topic, involved traffic stops. Id. at 104:9-19 (ECF No. 32- 11 2 at 29). Plaintiff’s detention was not a traffic stop, however, so any policy or practice that might 12 be established by a traffic stop report could not support municipal liability here. In response to 13 the motion for summary judgment, plaintiff has produced none of the reports he referenced in his 14 deposition, and he has identified no other evidence of a policy or custom that proximately caused 15 the alleged violation of his rights. Because there is a complete failure of proof as to an essential 16 element of municipal liability, the City is entitled to summary judgment on Claim One. 17 B. Claim Two: Freedom of Speech (First Amendment, 42 U.S.C. § 1983) 18 1. Overview of Claim 19 The complaint alleges that plaintiff’s First Amendment rights were violated when the 20 responding officers interfered with his recording of their interactions and took away his phone. 21 This claim is stated against Officer Melloch and the City. ECF No. 1 at 6-7. 22 2. Officer Liability 23 Defendants again assert qualified immunity. Federal law has long been clear that there is 24 a First Amendment Right to photograph and record “matters of public interest,” including 25 interactions with police officers in public spaces. Fordyce v. City of Seattle, 55 F.3d 436, 439 26 (9th Cir. 1995); Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); see 27 also, Reed v. Lieurance, 863 F.3d 1196, 1211 (9th Cir. 2017) (referencing “the First Amendment- 28 protected activity of observing a government operation” and citing Fordyce as “recognizing a 1 ‘First Amendment right to film matters of public interest’ – in that case, police actions during a 2 public demonstration” (quoting Fordyce, 55 F.3d at 439)).6 However, the established law 3 regarding the right to record police interactions does not directly address the right of an individual 4 to record while detained. 5 The facts related to the removal of plaintiff’s phone are somewhat unclear.7 In any event, 6 there is no allegation or evidence that plaintiff was prevented from recording police at the scene 7 until he was placed in the patrol car for reasons unrelated to his recording, at which time his cell 8 phone was taken from him as an officer safety precaution.8 9 Plaintiff quotes from Askins, supra, which he cites for the proposition that “all filming is 10 legal if the government official is in the public.” ECF No. 35 at 9 (emphasis added). But neither 11 Askins nor any of the cases it cites in the paragraph quoted by plaintiff, id., involved a factual 12 scenario analogous to that presented in here, in which the would-be video recorder is being 13 detained for reasons of public safety and officer safety that are independent of any First 14 Amendment activity. In Askins, plaintiffs were advocates on border policy issues who contended 15 that the California Border Patrol’s policies against recording imposed “unconstitutional 16 restrictions on their First Amendment right to photograph and record CBP officers engaging in 17 the public discharge of their official duties.” 899 F.3d at 1043. Askins was detained, but only 18 after and because he took photographs; the right to film recognized by the court did not involve 19

20 6 Reed did not itself involve recording. The plaintiff in that case claimed a First Amendment right to observe an interagency governmental operation to herd buffalo into Yellowstone National 21 Park. He challenged his involuntary removal from an observation point under the First Amendment, and his arrest for obstructing the operation under the Fourth Amendment. 22 7 The undisputed facts, as set forth above, are consistent with plaintiff’s phone not having been 23 confiscated by the police but passed on to an individual who continued to record from outside the patrol car and with whom plaintiff conversed freely. See supra at p. 8. 24 8 In discovery, plaintiff expressly admitted that he was told “that allowing detained individuals to have a cell phone was an officer safety issue.” ECF No. 32-3 at 51 (plaintiff’s response to RFA 25 No. 11) (Ex. 4 to Day Decl.); ECF No. 32-3 at 17 (Alston Depo. 70:7-10) (Ex. 1 to Day Decl.). 26 Plaintiff attempts to dispute the same fact in opposition to summary judgment, ECF No. 35-2 at 11 (response to DUF 39), but the evidence he cites does not defeat his prior admissions. The 27 undersigned has reviewed the specific patrol vehicle camera footage to which plaintiff refers, and the fact that it does not capture the statement does not support an inference that no such statement 28 was made. 1 filming while in detention. Id. at 1039, 1043. 2 The authorities cited by the Askins court also dealt with filming by persons who were 3 themselves undetained observers. In Animal Legal Defense Fund v. Wasden, plaintiff challenged 4 an Idaho statute on constitutional grounds, arguing that it prevented protected investigative 5 journalism. 878 F.3d 1184, 1192 (9th Cir. 2018). In Fordyce, supra, the plaintiff was recording 6 police at a protest, and his subsequent arrest was recording-related. 55 F.3d at 438. In American 7 Civil Liberties Union of Illinois v. Alverez, an advocacy organization was challenging an Illinois 8 “eavesdropping statute” that made it a felony to record conversations unless all parties’ consent. 9 679 F.3d 583, 586 (7th Cir. 2012). In Glick v. Cunniffe, plaintiff was a bystander who “was 10 arrested for using his cell phone’s digital video camera to film several police officers arresting a 11 young man.” 655 F.3d 78, 79 (1st Cir. 2011). 9 These cases all involved the rights of journalists 12 and observers (whether advocates or bystanders) to record the actions of law enforcement 13 officers. None of them recognized, or fairly imply, a right to record on the part of a person who is 14 being lawfully detained—for reasons unrelated to any First Amendment activity—in the 15 immediate aftermath of a threat to public safety. 16 The distinction is significant because the Constitution permits reasonable time, place and 17 manner restrictions on otherwise protected First Amendment activity. See Askins, 899 F.3d at 18 1044; see also Glick, 655 F.3d at 85 (the right to record police activity is “not unqualified”). In 19 Kelly v. Borough of Carlisle, the Third Circuit found that there is not a clearly established right 20 for a person to videotape police while they are pulled over on a traffic stop, because traffic stops 21 have been characterized as an “inherently dangerous situation.” 622 F.3d 248, 262 (3rd Cir. 22 2010). The Kelly court noted that the right to videotape police “is subject to reasonable time, 23 place, and manner restrictions, as long as they are ‘justified without reference to the content of the 24 regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . 25 leave open ample alternative channels for communication of the information.” Id. (quoting Ward 26 9 The quoted portion of Askins also cited Smith v. Cumming, 212 F.3d 1332, 1332 (11th Cir. 27 2000), in which plaintiffs alleged that they were harassed by police and prevented from videotaping police actions. In a very short opinion that omits the factual background, the 28 Eleventh Circuit court held that plaintiffs’ rights were not violated. Id. 1 v. Rock Against Racism, 491 U.S. 781, 791 (1989)). This familiar First Amendment rule appears 2 to permit the restriction at issue here. 3 As in Kelly, the restriction of plaintiff’s ability to record while being temporarily detained 4 appears to have been reasonably related to legitimate law enforcement needs. At the scene, 5 defendants asserted an officer safety justification for the removal of cell phones from individuals 6 detained in the back of a patrol vehicle. 10 Although defendants have not elaborated on that 7 justification here, it is readily apparent that the investigation of shots recently fired in a residential 8 neighborhood—where at least one firearm was observed being discarded at the scene, another 9 was taken from an individual being questioned by police, two clusters of bullet casing had been 10 found, and numerous members of the crowd appeared to police to be intoxicated—involves an 11 “inherently dangerous situation.” Accordingly, the removal of objects from persons temporarily 12 detained is not patently unrelated to officer safety. Moreover, a cell phone is not just a camera or 13 tape recorder; it is a means of communication. In the immediate aftermath of a “shots fired” 14 event, it may be legitimate for police to prevent witnesses and potentially involved parties from 15 communicating with each other while they sort out who is who. Preservation of evidence, the 16 integrity of witness reports, and officer safety all therefore may support a temporary suspension 17 of cell phone use by persons who are being detained. In any event, such considerations 18 distinguish the facts here from the First Amendment cases on which plaintiff relies in opposition 19 to defendants’ assertion of qualified immunity. 20 It is significant that officers in this case did not categorically prohibit the recording of 21 plaintiff’s detention; they denied plaintiff personal access to his cellphone, for any purpose, while 22 he was detained in a patrol car. The only recordings that were prevented were those that could 23

24 10 In discovery, plaintiff expressly admitted that he was told “that allowing detained individuals to have a cell phone was an officer safety issue.” ECF No. 32-3 at 51 (plaintiff’s response to 25 RFA No. 11) (Ex. 4 to Day Decl.); ECF No. 32-3 at 17 (Alston Depo. 70:7-10) (Ex. 1 to Day 26 Decl.). Plaintiff attempts to dispute the same fact in opposition to summary judgment, ECF No. 35-2 at 11 (response to DUF 39), but the evidence he cites does not defeat his prior admissions. 27 The undersigned has reviewed the specific patrol vehicle camera footage to which plaintiff refers, and the fact that it does not capture the statement does not support an inference that no such 28 statement was made. 1 have been taken from inside the patrol car. Recording from outside the patrol car continued 2 unimpeded, as documented in plaintiff’s own exhibits. 3 For all these reasons, the undersigned is skeptical of plaintiff’s assertion that he had a First 4 Amendment right to record while in the patrol car. But this court need not decide that question. 5 Officer Melloch is entitled to qualified immunity because there was at the time of plaintiff’s 6 detention no “clearly established” First Amendment right for a person detained during police 7 investigation of a dangerous situation to retain a recording device for the purpose of personally 8 recording this own detention. As the previous survey of authority demonstrates, a reasonable 9 officer cannot have been expected to conclude that the First Amendment right of bystanders and 10 observers to record police actions in public forums limited their ability to remove a cell phone 11 from a person who was being detained pending identification because he was at the scene of a 12 shooting and failing to cooperate. The law simply did not give defendant “fair warning” that his 13 conduct in removing the phone was unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 739 14 (2002) (although officials can be on notice that their conduct violates established law even in 15 novel factual circumstances, the law must give the defendant officer “fair warning” that his or her 16 conduct was unconstitutional). Accordingly, Officer Melloch is entitled to summary judgment on 17 grounds of qualified immunity. 18 3. Municipal Liability 19 Defendants seek summary judgment on the issue of municipal liability as to all of 20 plaintiff’s federal claims, on the common ground that plaintiff has not produced evidence that any 21 of the alleged constitutional violations were proximately caused by any policy or custom of the 22 City. ECF No. 32-1 at 4-6. The only claim as to which plaintiff responded with any showing 23 intended to defeat summary judgment is Claim One, discussed previously. See ECF No. 35 at 2-3 24 and passim. Plaintiff has identified no evidence of a policy, or of a custom with the force of 25 policy, that caused the alleged violation of his First Amendment rights. This failure of proof on 26 an essential element of Monell liability entitles the City to summary judgment whether or not 27 Officer Melloch is also entitled to summary judgment. See Celotex, 477 U.S. at 323. 28 //// 1 C. Claim Three: Excessive Force (Fourth Amendment, 42 U.S.C. § 1983) 2 1. Overview of Claim 3 The complaint alleges that plaintiff was subjected to excessive force when he was 4 handcuffed too tightly. The claim is stated against Officer Delgado and the City. ECF No. 1 at 7- 5 8. 6 2. Officer Liability 7 Defendants again rely on qualified immunity. Here the court begins with the first prong 8 of the qualified immunity analysis, asking whether, construing the evidence in plaintiff’s favor, 9 Officer Delgado violated the Fourth Amendment. The objective reasonableness of force is 10 evaluated in the context of the circumstances facing the officer. Graham v. Connor, 490 U.S. 11 386, 396 (1989). The relevant circumstances include “the severity of the crime at issue, whether 12 the suspect poses an immediate threat to the safety of the officers or others, and whether he is 13 actively resisting arrest or attempting to evade arrest by flight.” Id. In this case plaintiff was not 14 handcuffed pursuant to an arrest, but as part of police efforts to secure the scene of a shooting. 15 The court has already found in relation to Claim One that the officers involved in plaintiff’s 16 detention are entitled to qualified immunity regarding the fact that plaintiff was placed in 17 handcuffs. The distinct question on Claim Three is whether the manner in which the handcuffs 18 were used rose to the level of excessive force. 19 Although applying handcuffs in an abusive manner can constitute excessive force, see 20 Hansen v. Black, 885 F.2d 642, 643 (9th Cir. 1989), the facts here do not support a finding that 21 Officer Delgado acted in an abusive manner. Plaintiff has identified no evidence that more than 22 minimal force was employed in the application of the handcuffs. Delgado’s body camera footage 23 (ECF No. 19, Ex. A) does not show any roughness or use of force. See Scott, 550 U.S. at 380-81 24 (summary judgment proper where video evidence refutes plaintiff’s assertions). The evidence 25 here is entirely unlike that in Wall v. County of Orange, 364 F.3d 1107 (9th Cir. 2004), cited by 26 plaintiff, in which the plaintiff was smashed face first into a car, forcefully handcuffed, then lifted 27 by his handcuffed arms and thrown into a patrol car. Plaintiff’s other authorities are equally 28 inapposite. In both LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir. 2000), and Palmer v. 1 Sanderson, 9 F.3d 1433 (9th Cir. 1993), the defendant officers refused to loosen handcuffs when 2 the plaintiff complained of their tightness; here they did so. 3 Claim Three rests entirely on the “tightness” of the cuffs and the pain that plaintiff 4 experienced during the 20 minutes he was handcuffed. ECF No. 1 at 4, 7-8. Plaintiff’s subjective 5 experience of pain, without more, cannot establish a constitutional violation because even the 6 deliberate infliction of pain does not necessarily violate the Fourth Amendment. See, e.g., 7 Forrester v. City of San Diego, 25 F.3d 804, 806-07 (9th Cir. 1994) (use of “pain compliance 8 techniques” not inherently unreasonable). It is undisputed that plaintiff’s handcuffs were 9 removed after 20 minutes due to plaintiff’s complaints of pain. Under the circumstances of the 10 ongoing efforts to secure the scene at 2027 O’Neil Way, the failure to respond to plaintiff’s 11 complaints by removing his handcuffs sooner does not rise to the level of an objectively 12 unreasonable use of force. 13 Plaintiff relies on Washington v. Lambert, discussed above in relation to Claim One, for 14 the proposition that the constitution permits handcuffing only when police satisfy a four-factor 15 test establishing that the detainee poses a threat to officer safety. ECF No. 35 at 11. In 16 Washington the court noted that absent probable cause for arrest, use of handcuffs and other 17 restraints will violate the Fourth Amendment “[u]nder ordinary circumstances.” Such methods 18 may be permissible, however, “1) where the suspect is uncooperative or takes action at the scene 19 that raises a reasonable possibility of danger or flight; 2) where the police have information that 20 the suspect is currently armed; 3) where the stop closely follows a violent crime; and 4) where the 21 police have information that a crime that may involve violence is about to occur.” Washington, 22 98 F.3d at 1189. In this case, the officers were responding to a possible violent crime (or at least 23 a serious threat to public safety) and plaintiff was uncooperative at the scene. Washington thus 24 supports defendants’ position rather than plaintiff’s. 25 In any event, none of the authorities cited by plaintiff or identified by the court would 26 have made it clear that keeping plaintiff in handcuffs for 20 minutes was unconstitutional under 27 the circumstances. Certainly, existing precedent did not put the question beyond debate. See 28 Ashcroft v. al-Kidd, 563 U.S. at 741. Accordingly, Officer Delgado is entitled to qualified 1 immunity. 2 3. Municipal Liability 3 As with Claim Two, plaintiff has identified no evidence of a policy or a custom with the 4 force of policy that caused a violation of his First Amendment rights. This failure of proof on an 5 essential element of Monell liability entitles the City to summary judgment. See Celotex, 477 6 U.S. at 323. 7 D. Claim Five: Right to Remain Silent (Fifth Amendment, 42 U.S.C. § 1983) 8 The complaint alleges that plaintiff’s Fifth Amendment rights were violated by his 9 questioning at the scene after he had invoked his constitutional privilege not to talk to the police. 10 ECF No. 1 at 9. Defendants argue that this claim is foreclosed by Chavez v. Robinson, 12 F.4th 11 978, 999 (9thh Cir. 2021), which held that a Fifth Amendment violation will not support a Section 12 1983 claim unless the plaintiff made a statement that was used against him in a criminal 13 proceeding. ECF No. 32-1 at 6. In response, plaintiff concedes that he cannot maintain a Fifth 14 Amendment claim. ECF No. 35 at 2. Accordingly, defendants’ motion for summary judgment 15 should be granted as to Claim Five. 16 E. Claim Six: Equal Protection (42 U.S.C. § 1983) 17 The complaint alleges that only Black males were detained at the scene, thus 18 demonstrating intentional racial and gender discrimination. ECF No. 1 at 9-10. The claim is 19 asserted against the three individual officers and the City. “To state a claim for violation of the 20 Equal Protection Clause, a plaintiff must show that the defendant acted with an intent or purpose 21 to discriminate against him based upon his membership in a protected class.” Serrano v. Francis, 22 345 F.3d 1071, 1082 (9th Cir. 2003) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 23 1998)). Here, plaintiff has failed to identify any evidence that could support a finding of 24 intentional discrimination. 25 Plaintiff argues that people of “all different races were detained from coming out of the 26 home like everyone else, not actual seizures, or patrol car detainments, and slave chattel 27 recreations, as only the black men were exhibited to.” ECF No. 35 at 14. Plaintiff also argues the 28 fact that a woman with children was allowed to leave the scene demonstrates that defendants were 1 targeting men. Id. Neither of these assertions demonstrates that defendants detained plaintiff 2 based on his status as a Black male. Plaintiff does not dispute that he was told he was detained 3 “for multiple reasons including because he was making the scene unsafe.” ECF No. 35-2 at 10 4 (response to DUF 33). He has identified no evidence that would support an inference those 5 reasons for detention were pretextual, and his own denial that he personally posed a safety threat 6 does nothing to generate an inference that racism was the real reason for his detention. Plaintiff 7 stipulates he did not hear a single officer use or make any racial comments. Id. at 17 (response to 8 DUF 60). Finally, plaintiff agrees he “only identified Officer Melloch as acting with racial 9 animus because two African American males were in the back of his patrol car.” Id. at 19. 10 (response to DUF 61). The fact that plaintiff and another Black male were in the back of Officer 11 Melloch’s car, without more, does not support an inference of intentional racial and/or gender 12 discrimination. 13 There is simply no evidence indicating that plaintiff’s Fourteenth Amendment equal 14 protection rights were violated. Moreover, plaintiff has identified no evidence of a City policy or 15 custom that proximately caused the alleged acts of discrimination. Conclusory allegations of 16 disparate treatment, whether at 2027 O’Neil Way or more broadly as a characteristic of City 17 policing, are insufficient to defeat summary judgment. All defendants are entitled to summary 18 judgment on this claim. 19 F. State Law Claims 20 Plaintiff’s remaining causes of action (Claim Four, Bane Act; Claim Seven, Battery; and 21 Claim Eight, False Imprisonment) are all based on California law. Because defendant is entitled 22 to summary judgment on all claims brought under federal law, this court should decline to 23 exercise supplemental jurisdiction over plaintiff’s state law claims. Carnegie-Mellon Univ. v. 24 Cohill, 484 U.S. 343, 350 (1988) (when federal claims are eliminated before trial, district courts 25 should usually decline to exercise supplemental jurisdiction); Lima v. U.S. Dep’t of Educ., 947 26 F.3d 1122, 1128 (9th Cir. 2020) (no abuse of discretion where district court declined to exercise 27 supplemental jurisdiction over state law claims after granting summary judgment on federal 28 claims); Whalen v. McMullen, 907 F.3d 1139, 1153 (9th Cir. 2018) (same). The undersigned 1 | takes no position on whether plaintiff would be able to successfully pursue these claims in state 2 || court. 3 V. Conclusion 4 For all the reasons explained above, IT IS HEREBY RECOMMENDED that defendants’ 5 || motion for summary judgment (ECF No. 32) be GRANTED, that judgment be entered 6 || accordingly in defendants’ favor, and that this case be closed. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 9 || after being served with these findings and recommendations, any party may file written 10 || objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 11 || document should be captioned “Objections to Magistrate Judge’s Findings and 12 || Recommendations.” Any response to the objections shall be filed with the court and served on all 13 || parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file 14 || objections within the specified time may waive the right to appeal the District Court’s order. 15 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 16 | (9th Cir. 1991). 17 IT IS SO ORDERED. 18 | DATED: October 10, 2023 ~ 19 Chee

ALLISON CLAIRE

20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28