1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 10 11 JEFFREY MACKAY, Case No. 19-cv-02257-EJD

12 Plaintiff, ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS’

13 v. MOTION FOR SUMMARY

JUDGMENT

14 CITY OF SALINAS, et al., 15 Defendants. Re: Dkt. No. 56

16 Plaintiff Jeffrey Mackay (“Mackay”) brings suit against the City of Salinas (“City”) and 17 eight individual police officers (“Officers,” collectively with City as “Defendants”) under 42 18 U.S.C. § 1983 for violations of his Fourth Amendment and Fourteenth Amendment constitutional 19 rights. First Amended Complaint for Damages (“FAC”), ECF No. 20. He alleges that the 20 Officers used excessive force when they arrested him using two tasers and multiple closed-fist 21 punches and kicks to his head and body. Id. ¶ 1. Mackay also asserts a Devereaux claim, alleging 22 that the Officers fabricated false police reports against him, and a Monell claim, alleging that the 23 City failed to adequately train the Officers. Id. ¶¶ 29-52. 24 Defendants move for summary judgment on all claims. Defs.’ Mot. Summ. J. (“Mot.”), 25 ECF No. 56. Mackay only opposes the motion in part; he agrees to dismiss his claims against all 26 Officers who did not use force against him, as well as his Monell claim against the City. Pl.’s 27 Opp’n to Defs’ Mot. Summ. J. (“Opp.”), at 13. Accordingly, Defendants’ motion for summary 1 judgment is GRANTED as to Defendant City and Defendant Officers Ryan Keating, Clifton 2 Smith, Jose Luis Fletes, and Robert Hernandez. 3 Having considered the parties’ briefing, admissible evidence, and the applicable law, the 4 Court GRANTS IN PART and DENIES IN PART Defendants’ motion for summary judgment. 5 I. BACKGROUND 6 Given that Defendants are moving for summary judgment, the Court must view the facts in 7 the light most favorable to Mackay and credit his version of the facts unless it is “blatantly 8 contradicted by the record.” Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020). 9 Accordingly, the following facts are admitted by Mackay or undisputed, unless otherwise noted. 10 A. Vehicle Pursuit 11 At approximately 11:00 p.m. on Monday, April 23, 2018, Mackay left a sports bar in Old 12 Town Salinas and proceeded to drive himself home. Mot. 2. Although he had ordered alcohol at 13 the pub, he did not consume any before he left, due to an argument he had with his girlfriend. 14 Opp. 4; Mot. 2. While driving through a residential neighborhood, Mackay was pulled over by 15 Officer Fletes, who observed Mackay drive through a stop sign without stopping. Decl. of Jose 16 Luis Fletes, Jr. (“Fletes Decl.”) ¶¶ 3-6. As Officer Fletes got out and approached Mackay’s 17 stopped vehicle, Mackay suddenly started his car and accelerated away. Id. ¶ 8. 18 For 2.6 miles, Mackay fled from Officers Fletes and Garcia, reaching speeds up to 80 19 miles per hour and driving through various stop signs and red lights. Decl. of Mutalipassi 20 (“Mutalipassi Decl.”), Ex. 1 (“Mackay Dep. (MSJ)”) 62:8-63:14. There were no pedestrians and 21 only light traffic at that hour of the night, and Mackay recalls slowing down when he drove 22 through each stop sign and red light. Pl.’s Compendium of Ex., Ex. K (“Mackay Dep. (Opp.)”) 23 183:5-184:18 (“Not saying that I was driving in any legal fashion, but I wasn’t suicidal”). 24 Officers Fletes and Garcia ultimately ceased pursuit when Mackay turned onto and drove against 25 traffic on a one-way street. Fletes Decl. ¶¶ 23-24; see also Mackay Dep. (MSJ) 63:15-64:7. 26 The pursuit picked up again when Mackay drove past Officer Keating at approximately 60 27 to 70 miles per hour. Decl. of Ryan Keating (“Keating Decl.”) ¶ 3. Officer Keating confirmed the 1 license plate and then pursued Mackay’s vehicle through multiple stop signs and red lights for 2 about 4.9 miles. Id. ¶¶ 3-13, 16. At one point, Mackay made a U-turn on a two-way street to 3 drive in the opposite direction while officers were in pursuit, which Officer Mitchell viewed as an 4 attempt to ram him. Decl. of Cameron Mitchell (“Mitchell Decl.”) ¶¶ 24-27. Mackay, however, 5 denies getting close enough to an officer’s vehicle to have been misconstrued as a ramming 6 attempt. Opp. 5. Officers ultimately caught up to Mackay’s vehicle when it started to run out of 7 gas and Mackay exited his vehicle to continue his escape on foot. Mackay Dep. (MSJ) 81:2-23. 8 B. Foot Pursuit 9 After leaving his vehicle, Mackay hopped over a 4-foot-tall metal fence and then scaled a 10 10-foot-tall concrete wall into an apartment complex while being pursued by Officer Mitchell. 11 Mitchell Decl. ¶¶ 36-37. Officer Mitchell chased Mackay through the courtyard and parking lot of 12 the apartment complex, while other officers had surrounded all the exits out of the complex. Id. ¶¶ 13 39-46. Officer Mitchell states, and Mackay does not dispute, that Mackay appeared to surrender at 14 one point but took off running when Officer Mitchell attempted to grab him. Id. ¶¶ 43-44. 15 Throughout the foot chase, Mackay was not reported to be armed, aggressive, or combative, and it 16 appeared Mackay was “just concerned about getting away.” Opp. 6; see generally Mutalipassi 17 Decl., Ex. 6 (“SPD Report No. 18-041154”). 18 After a few minutes of pursuit within the apartment complex, Mackay attempted to run out 19 to the street via the apartment parking lot but was cut off by other officers. Mitchell Decl. ¶ 44; 20 see also Pl.’s Compendium of Ex., Ex. Q (“BWV 2”), at 0:04. Mackay then ducked between two 21 cars and ran along the fenced border of the parking lot. BWV 2, at 0:05-0:19. When he reached 22 the walled corner of the parking lot, Mackay attempted to scale over the 6-foot-tall fence. Id. At 23 this point, Officer Mitchell called out to the other officers to “tase him.” Mitchell Decl. ¶ 45. As 24 Mackay was in the middle of climbing over the fence, Officers Garcia and Puckett successfully 25 deployed their tasers against Mackay for 2 and 5 seconds respectively, and Mackay fell to the 26 ground. Mot. 4; Opp. 7-8; see also Pl.’s Compendium of Ex., Ex. P (“BWV 1”), at 0:44. 27 1 C. Arrest 2 There is some dispute as to whether Mackay experienced full or partial neuromuscular 3 incapacitation from the tasers, but the Body Worn Videos of the incident clearly show Mackay’s 4 body stiffening up and falling over with his arms to his side barely breaking the fall. See BWV 1, 5 at 0:46; BWV 2, at 0:21. When Mackay hit the ground, an officer immediately rushed to his side 6 and audibly struck Mackay’s head with a closed fist. See BWV 1, at 0:49-50. After this strike, 7 Mackay can be heard calling out, “Okay, I’m done. Okay, I’m not resisting.” Id. at 0:52-55. For 8 about 18 seconds, there appears to be some scuffle on the ground, during which Mackay was 9 kicked in his shoulder, struck multiple times on his head with a closed fist, and multiple officers’ 10 hands appeared to hold him down or grab his hair. Id., at 0:50-1:08; see also Pl.’s Compendium 11 of Ex., Ex. R (“BWV 3”), at 0:20-22. Mackay’s hands can be seen first covering his face and then 12 extended out above his head, at which point the violence ceased and Mackay was taken into 13 custody. BWV 3, at 0:24. 14 Officers Mitchell and Urrutia assert that they administered several “compliance strikes” to 15 Mackay because he would not give up his hands, which they claim were underneath his body near 16 his waistband. Opp. 5; see Mitchell Decl. ¶¶ 49-52. Officer Mitchell also expressed a fear that 17 Mackay was in possession of and reaching for a firearm or other weapon. Mitchell Decl. ¶¶ 50- 18 51. Mackay, however, testified in his deposition that his hands were to his sides and visible near 19 his hips when he fell off the fence. He also recalls that he tried but was not able to move his hands 20 out. Mackay Dep. (Opp.) 112:7-114:14. 21 After Mackay was taken into custody, he was transported to the hospital. Opp. 5. The 22 emergency room doctors found that he required three stitches near his ear and had various 23 swelling and contusions. Id.; see also Pl.’s Compendium of Ex., Ex. U. Mackay also testified that 24 he still suffers from concussion-related brain injury and hearing loss because of his injuries from 25 that night, as well as continuing emotional distress. Mackay Dep. (Opp.) 237:3-238:2. 26 D. Post-Arrest Events and Procedural History 27 Mackay was charged with multiple felony and misdemeanor counts, but he pleaded no 1 contest to only two: a felony violation of Cal. Veh. Code § 2800.4 (Driving Opposite Direction / 2 Fleeing Peace Officer) and a misdemeanor violation of Cal. Pen. Code § 148(a)(1) (Obstructing / 3 Resisting Public Officer). Mutalipassi Decl., Exs. 2, 3. On September 13, 2018, Mackay 4 stipulated to receiving 4 years in prison with his misdemeanor sentence to run concurrent with his 5 felony sentence. Pl.’s Compendium of Ex., Ex. T (“Mackay Plea Agreement”). 6 On February 13, 2019, Mackay filed suit against Defendants in the Superior Court of 7 California, County of Monterey. Notice of Removal ¶ 1, ECF No. 1. On April 25, 2019, 8 Defendants removed the matter to this Court. Id. The parties engaged in at least three ADR 9 sessions but were not able to settle. See ECF No. 72, at 8. 10 II. LEGAL STANDARD 11 Summary judgment is proper where the pleadings, discovery, and affidavits show that 12 there is “no genuine issue as to any material fact and that the moving party is entitled to judgment 13 as a matter of law.” Fed. R. Civ. P. 56(c). A fact is “material” if it would affect the outcome of 14 the suit under the governing law, and a disputed issue is “genuine” if the “evidence is such that a 15 reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 16 477 U.S. 242, 248-49 (1986). 17 The party moving for summary judgment bears the initial burden of identifying those 18 portions of the record which demonstrate the absence of a genuine issue of material fact. See 19 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party can meet this initial 20 burden, the burden then shifts to the non-moving party to produce admissible evidence and set 21 forth specific facts showing that a genuine issue of material fact does indeed exist for trial. See 22 Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). If 23 the non-moving party produces enough evidence to show a genuine issue of material fact exists, 24 then it defeats the motion; otherwise, the moving party is entitled to summary judgment. Id. 25 In considering a motion for summary judgment, the Court must view the evidence in the 26 light most favorable to the non-moving party. See Tolan v. Cotton, 572 U.S. 650, 655 (2014). 27 The Court may not weigh conflicting evidence as to a disputed fact nor may it make credibility 1 determinations; any disputed factual issues must be resolved in favor of the non-moving party. 2 See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir. 1987). 3 However, the Court need not credit the non-moving party’s version of events where it is blatantly 4 contradicted by the record. See Orn, 949 F.3d at 1171. 5 III. DISCUSSION 6 Defendants move for summary judgment of the remaining claims primarily on two 7 grounds. They argue first that the individual officers are entitled to qualified immunity, and 8 second, Mackay’s § 1983 claims constitute improper collateral attacks on his § 148(a)(1) plea for 9 resisting arrest. Mot. 1. Defendants also argue that the force they used in effectuating Mackay’s 10 arrest was objectively reasonable. Id. For the following reasons, the Court GRANTS IN PART 11 and DENIES IN PART Defendants’ motion. 12 A. Heck Preclusion 13 The Court first addresses Defendants’ argument that Mackay cannot proceed with his § 14 1983 claim because doing so would invalidate portions of his § 148(a)(1) conviction for resisting 15 arrest. This doctrine is often referred to as the Heck bar after the Supreme Court’s 1994 decision, 16 Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (“[W]hen a state prisoner seeks damages in a § 17 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would 18 necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be 19 dismissed. . . .”). In other words, if Mackay’s § 1983 claim for excessive force would negate an 20 element of or allege facts inconsistent with his prior conviction, then the § 1983 claim must be 21 dismissed to “prevent[] collateral attacks on convictions by way of civil actions.” Sanders v. City 22 of Pittsburg, 14 F.4th 968, 970-71 (9th Cir. 2021). 23 The conviction at issue here is Mackay’s plea to § 148(a)(1) for “resist[ing], delay[ing], or 24 obstruct[ing] any . . . peace officer.” A required element for § 148(a)(1) is that “the officer was 25 engaged in the performance of his or her duties” when a defendant resisted, delayed, or obstructed 26 the officer. Yount v. City of Sacramento, 43 Cal. 4th 885, 895 (2008). Notably, “[t]he use of 27 excessive force by an officer is not within the performance of the officer's duty.” Sanders, 14 1 F.4th at 971 (emphasis added) (citing Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005)). 2 Accordingly, an excessive force claim is barred by Heck if it is “predicated on allegedly unlawful 3 actions by the officer at the same time as the plaintiff's conduct that resulted in his § 148(a)(1) 4 conviction.” Sanders, 14 F.4th at 971 (italics in original). Where a § 148(a)(1) conviction may be 5 based on multiple acts of resistance, a § 1983 claim that is “inconsistent with even a portion of that 6 conviction is barred because it would necessarily imply the invalidity of that part of the 7 conviction.” Id. at 972 (emphasis in original) (quoting Yount, 43 Cal. 4th at 896). However, if the 8 alleged excessive force occurred before or after the acts that gave rise to the conviction or can 9 otherwise be distinguished to rely on separate “factual context[s],” then the § 1983 claim would 10 not necessarily imply the invalidity of a § 148(a)(1) conviction. Id. 11 1. Mackay’s § 148(a)(1) Plea 12 Because the inquiry under Heck turns on a comparison between the facts underpinning the 13 criminal conviction and the allegations supporting the § 1983 action, the Court first turns to 14 Mackay’s plea agreement to ascertain the factual basis for his § 148(a)(1) conviction. 15 Part 13 of Mackay’s no-contest plea sets forth the “Factual Basis” for his no contest plea. 16 Mackay Plea Agreement, at 2. As the factual basis, Mackay offers police report number SPD 18- 17 41154 and a handwritten set of specific facts:

18 On or about 4/23/18, Defendant willfully and unlawfully evaded officer against traffic, with knowledge thereof, and intent to elude pursuit. Subsequently, Def. 19 willfully delayed peace officer [sic] while in performance of their duties by failing to stop and comply with commands to stop while on foot. 20 21 Mackay Plea Agreement, at 2; Opp. 13. The trial judge signed the plea agreement, finding that 22 “there is a factual basis” for Mackay’s conviction, but there is otherwise no further indication as to 23 what specific facts Mackay’s § 148(a)(1) conviction is based on. Mackay Plea Agreement, at 3. 24 Defendants argue that, because Mackay offered the entire Police Report Number SPD 18- 25 41154 as a basis for his plea and the trial court did not expressly indicate it excluded portions of 26 the police report, Mackay’s conviction rests on all facts asserted in the police report. Mot. 12. Per 27 Defendants, this includes all events relating to Mackay’s continued resistance up to the time that 1 the officers secured his wrists in handcuffs, which would overlap with—and thereby preclude—all 2 of Mackay’s excessive force allegations. Id. Mackay responds that he had expressly limited the 3 basis for his plea of resisting arrest to the specified handwritten conduct, i.e., evading officers 4 against traffic and failing to stop and comply with officers’ commands to stop while on foot. 5 Accordingly, Mackay argues, the § 148(a)(1) conviction would not be disturbed by allegations that 6 the officers used excessive force after those actions. Opp. 22-23. 7 Mackay has the better argument here. Several courts have found it relevant that a 8 defendant failed to provide a separate basis for his or her no-contest plea and, therefore, could not 9 distinguish which specific acts of resistance led to the conviction and which did not. See, e.g., 10 Sanders, 14 F.4th at 972 (“Here, we cannot separate out which of [plaintiff’s] obstructive acts led 11 to his conviction since all of them did. As part of his guilty plea, [plaintiff] stipulated that the 12 factual basis for his conviction encompassed the three instances of resistance identified in the 13 preliminary hearing transcript.”); Winder v. McMahon, 345 F. Supp. 3d 1197, 1203 (C.D. Cal. 14 2018) (finding it relevant that plaintiff did not limit his plea agreement to only certain portions of 15 the submitted preliminary transcript or provide a separate factual basis). Most notably, the 16 Supreme Court of California, in finding that part of a § 1983 plaintiff’s claim is barred by Heck, 17 provided the following guidance: “Had [plaintiff] wanted to maximize his ability to challenge the 18 officers’ conduct in a subsequent civil action, he could have sought to identify and limit the basis 19 for his plea to violating Penal Code section 148, subdivision (a)(1).” Yount, 43 Cal. 4th at 897 20 (emphasis added). This is precisely what Mackay did in his plea agreement.1 21 Because Mackay limited the basis for his § 148(a)(1) plea to a set of specified facts as 22 expressly permitted by the California Supreme Court, the Court will correspondingly limit its 23 Heck analysis to those facts. The Court proceeds to consider whether Mackay’s excessive force 24

25 1 This is not to suggest that it would be universally beneficial for every criminal defendants to 26 write in a specific factual basis for their plea agreements. As the California Supreme Court noted, a plaintiff also obtains substantial benefit from a more general plea, as “[b]y declining to limit the 27 scope of his no contest plea, [the plaintiff] is protected against a new prosecution for resisting these officers by the double jeopardy clause.” Yount, 43 Cal. 4th at 897. 1 claims would necessarily imply the invalidation of any of those specified facts. 2 2. Tasers 3 Mackay argues in his opposition that Officers Garcia and Puckett used excessive force in 4 deploying tasers against him when he was fleeing. Opp. 7. There is no dispute that, when 5 Officers Garcia and Puckett deployed tasers at Mackay’s back, he was still attempting to flee. Id. 6 As comparison, Mackay’s plea admits that he “willfully delayed peace officer[s] while in 7 performance of their duties by failing to stop and comply with commands to stop while on foot.” 8 Mackay Plea Agreement, at 2. 9 Given these facts, the Court cannot draw a factual distinction such that Mackay’s plea 10 admissions and taser-related claim can both stand. On this point, the Ninth Circuit had held that, 11 although a continuous transaction can be broken into ‘different actions’ for purposes of a § 1983 12 action, we may not “slice up the factual basis of a § 148(a)(1) conviction to avoid the Heck bar.” 13 Sanders, 14 F.4th at 972 (italics in original). Here, there is no dispute that, up until the moment he 14 was tased, Mackay was still “failing to stop and comply with commands,” as phrased in his plea 15 agreement. Mackay also admitted that this failure to stop and comply with commands occurred 16 “while [the officers were] in performance of their duties.” Mackay Plea Agreement, at 2 17 (emphasis added). Accordingly, the temporal scope of Mackay’s plea admissions extends until he 18 stopped or otherwise complied with the officers’ commands, a line that Mackay himself draws. 19 See Opp. 23 (“[T]here are two phases to the incident, the fleeing on foot phase and the arrest 20 phase.”). Even when viewed in the light most favorable to Mackay, this durational scope 21 overlaps—albeit only momentarily—with his allegations that the Officers used excessive force by 22 deploying tasers while he was fleeing, FAC ¶ 21, which triggers the Heck bar. Mackay’s 23 allegation that Officers Garcia and Puckett used excessive force while he was fleeing would 24 necessarily invalidate his prior plea admission that the officers were in performance of their duties 25 while he was failing to stop and comply with commands. 26 For the foregoing reasons, the Court finds that, to the extent Mackay’s excessive force 27 claim arises from the use of tasers against him as he was still fleeing, those claims are barred by 1 his prior plea admissions. The Court accordingly GRANTS summary judgment to Officers Garcia 2 and Puckett as to Mackay’s § 1983 excessive force claim. 3 3. Punches and Kicks 4 Mackay also asserts that Officers Mitchell and Urrutia used excessive force against him 5 when they struck him multiple times with closed fists and kicks after he had fallen to the ground 6 incapacitated and compliant. FAC ¶ 21. Once again, the inquiry under Heck is whether these 7 allegations of excessive force would necessarily imply that Mackay’s § 148(a)(1) plea was invalid. 8 The Court finds that these allegations would not, and the § 1983 claim is not barred. 9 As noted at Section III.A.1., the Court interprets Mackay’s plea admissions to extend until 10 he stopped running, which naturally also applies to his admissions regarding Defendants’ lawful 11 “performance of their duties.” In other words, Mackay’s plea only admits that Defendants were 12 “in performance of their duties” while he was delaying peace officers and failing to stop; the plea 13 does not admit that Defendants were “in performance of their duties” after Mackay had stopped 14 running and was on the ground. Accordingly, the factual basis supporting Mackay’s conviction 15 (his flight on foot from Defendants) can be readily distinguished from the basis supporting his § 16 1983 claim (Defendants’ punches and kicks after Mackay stopped running and fell on the ground). 17 Defendants argue that Mackay’s plea and the Heck bar should apply to their conduct up 18 until Mackay was in handcuffs. Reply 12. However, Mackay does not admit that he was resisting 19 up until he was in handcuffs—he only admits that he was resisting while he was running from 20 Defendants. Mackay Plea Agreement, at 2; see also Mackay Dep. (Opp.) 112:7-114:14. At the 21 summary judgment stage, the Court is required to accept Mackay’s facts. To the extent 22 Defendants’ argument rely on the fact that Mackay’s plea attached the entire Police Report 23 Number SPD 18-41154, this reliance is misplaced. Mackay provided a basis to limit the temporal 24 scope of his plea—and corresponding admissions pertaining to Defendants’ performance of their 25 duties—to his conduct before he stopped running. Mackay Plea Agreement, at 2. 26 Defendants also argue that their facts are analogous to those in Lemos v. Cnty. of Sonoma, 27 where the Ninth Circuit affirmed the application of the Heck bar. 5 F.4th 979 (9th Cir. 2021), 1 reh'g en banc granted, opinion vacated, 22 F.4th 1179 (9th Cir. 2022). Notwithstanding the fact 2 that Lemos is no longer good law, the facts here are nonetheless distinguishable. In Lemos, the 3 underlying conviction involved a jury that found that plaintiff’s “resistance [was] continuous 4 throughout the entire transaction of events.” Id. at 985. Here, although Defendants assert that 5 Mackay was actively resisting at all times prior to being restrained in handcuffs, Mot. 12, Mackay 6 disputes this assertion and testified that he was incapacitated while on the ground and attempting 7 to comply with the officers’ commands. Mackay Dep. (Opp.) 112:7-113:11. Given that the Court 8 must adopt Mackay’s version of events on summary judgment, Defendants’ cited case law is 9 distinguishable based on the scope of the underlying criminal conviction. 10 To the extent Mackay asserts that Officers Mitchell and Urrutia used excessive force in 11 continuously striking him after he had stopped running and resisting, the Court finds that 12 Mackay’s § 1983 claim involves different factual allegations from those underpinning his § 13 148(a)(1) conviction. Accordingly, Mackay may assert the excessive force claim against Officers 14 Mitchell and Urrutia without risking his prior conviction being invalidated. 15 4. Devereaux Fabrication Claim 16 Defendants also asserts that Heck bars Mackay’s Devereaux claim that Defendants 17 falsified their police reports. Mot. 13. The thrust of this argument is that, because Mackay had 18 offered the full police report as a factual basis for his plea, his allegation that portions of that 19 police report were false or fabricated would necessarily imply his conviction was invalid. Id. In 20 his opposition, Mackay specifies that he only challenges specific statements in Defendants’ reports 21 that were allegedly falsified, such as Officer Mitchell’s claim that Mackay attempted to ram him 22 with his vehicle and Officers Mitchell’s and Urrutia’s reports that they immediately deescalated 23 after Mackay said, “Okay, I’m done, I’ll stop.” Opp. 15-17. 24 Defendants have not shown how Mackay’s success on his Devereaux claim would disturb 25 his convictions for Cal. Veh. Code § 2800.4 (Driving Opposite Direction / Fleeing Peace Officer) 26 and Cal. Pen. Code § 148(a)(1) (Obstructing / Resisting Public Officer). Defendants appear to 27 assume that the criminal court relied on every fact in the police report Mackay offered in his plea 1 agreement. Reply 12. However, this broad assumption is unwarranted where Mackay provided 2 specific and separate factual bases for his plea agreement, the substance of which he does not 3 claim Defendants fabricated (i.e., that Mackay failed to stop and comply with Defendants’ 4 commands). See supra III.A.1. This also distinguishes the present case from Defendants’ cited 5 authority, Ortega v. Mattocks, No. 13-CV-06016-JSC, 2014 WL 7275372, at *5 (N.D. Cal. Dec. 6 22, 2014) (finding that Heck applied where the excessive force claim “depend[ed] on a finding that 7 . . . the police did not have cause to charge him with resisting arrest.”). 8 Accordingly, Mackay’s § 1983 claim for false reporting does not necessarily imply the 9 invalidity of his underlying convictions and, therefore, is not barred by Heck. 10 B. Qualified Immunity 11 Having considered Defendants’ arguments that they are entitled to summary judgment 12 based on Heck, the Court proceeds to assess whether they are entitled to qualified immunity from 13 Mackay’s surviving § 1983 claims (i.e., excessive force claim for Defendants’ punches and kicks, 14 Devereaux claim for deliberate fabrication of evidence). 15 “The doctrine of qualified immunity protects government officials from liability for civil 16 damages insofar as their conduct does not violate clearly established statutory or constitutional 17 rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 18 (2009) (internal quotation marks omitted). To overcome qualified immunity, a plaintiff must 19 make two showings: first, the facts plaintiff has alleged or shown must make out a violation of a 20 constitutional right; and second, the right at issue must have been “clearly established” at the time 21 of defendant’s alleged misconduct. Id. at 232 (summarizing Saucier v. Katz, 533 U.S. 194 22 (2001)). A plaintiff must satisfy both prongs to defeat an assertion of qualified immunity, and the 23 Court may consider the two prongs in whichever order. Id. at 236. 24 With respect to the second prong, “clearly established” law may not be defined at a high 25 level of generality, Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011), and it must be “particularized to 26 the facts of the case.” White v. Pauly, 580 U.S. 73 (2017). The Court may not, for instance, rely 27 on a general proposition that unreasonable searches and seizures violate the Fourth Amendment to 1 determine whether the violative nature of a particular conduct was clearly established. Ashcroft, 2 563 U.S. at 742. 3 1. Excessive Force Claim 4 Because the Court has held that Heck bars Mackay’s excessive force claims as to the taser 5 usage, the Court only considers whether qualified immunity protects Officers Mitchell and Urrutia 6 from claims that they used excessive force in punching and kicking Mackay while on the ground.2 7 The Court first considers whether Mackay has shown a constitutional violation. The 8 constitutional right implicated by claims of excessive force is the Fourth Amendment’s right to be 9 free from “unreasonable . . . seizures,” and therefore, plaintiffs must show that the force used 10 against them was not “objectively reasonable in light of the facts and circumstances.” Graham v. 11 Connor, 490 U.S. 386, 396-97 (1989) (internal quotation marks omitted). To assess “objective 12 reasonableness,” courts in the Ninth Circuit consider: “(1) the severity of the intrusion on the 13 individual's Fourth Amendment rights by evaluating the type and amount of force inflicted, (2) the 14 government's interest in the use of force, and (3) the balance between the gravity of the intrusion 15 on the individual and the government's need for that intrusion.” Rice v. Morehouse, 989 F.3d 16 1112, 1121 (9th Cir. 2021). With regards to the second factor, courts evaluate the state’s interest 17 by considering “the severity of the crime at issue, whether the suspect pose[d] an immediate threat 18 to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting 19 to evade arrest by flight.” Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) 20 (citing Graham, 490 U.S. at 396). Notably, because the reasonableness inquiry is an objective one 21 in light of the facts and circumstances confronting the officer defendants, courts may not consider 22 the defendants’ subjective intent or motivation nor should it view the circumstances with “20/20 23 vision of hindsight.” Graham, 490 U.S. at 396-97. 24

25 2 Mackay claims that Officer Mitchell punched him in the head between eight to ten times, and 26 Officer Urrutia kicked him five times and punched him in the head five times. Opp. 9-10. Neither Mackay nor Defendants provide a meaningful distinction between the type and quantum of force 27 used by Officers Mitchell and Urrutia. The Court accordingly considers both Officers’ use of force together in assessing their reasonableness. 1 a. Severity of Intrusion 2 With respect to the severity of the intrusion onto Mackay’s rights, kicks and punches to the 3 head are often treated as intermediate or significant force that, “while less severe than deadly 4 force, nonetheless presents a significant intrusion upon an individual’s liberty interests.” Gordon 5 v. City & Cnty. of San Francisco, No. 20-CV-03910-JCS, 2021 WL 5449074, at *9 (N.D. Cal. 6 Nov. 22, 2021); see also, e.g., Tuuamalemalo v. Las Vegas Metro. Police Dep’t, 2018 WL 7 11016234, at *6 (D. Nev. Mar. 27, 2018) (“So, at most, [defendant’s] punch was intermediate 8 force”); Garlick v. Cnty. of Kern, 167 F. Supp. 3d 1117, 1147 (E.D. Cal. 2016) (“Generally, 9 impact blows by punching or kicking are considered ‘significant force.’”). The severity of this 10 intrusion, however, is magnified by the number of strikes used here: thirteen to fifteen punches 11 and five kicks over a period of 18 seconds. 12 Mackay’s efforts to treat the Officers’ punches and kicks as deadly force are unpersuasive. 13 He relies on his own expert’s report but does not cite any specific cases where impact blows to the 14 head arose to the level of deadly force. Opp. 11-12. Nor does he identify any specific 15 circumstances here that may elevate otherwise non-lethal force to deadly force.3 Cf. Garlick, 167 16 F. Supp. 3d at 1147 (noting that punches and kicks are broadly characterized as non-lethal force 17 but could be employed in some circumstances to create substantial risk of death or serious bodily 18 injury). “Non-lethal, however, is not synonymous with non-excessive; all force—lethal and non- 19 lethal—must be justified by the need for the specific level of force employed.” Bryan v. 20 MacPherson, 630 F.3d 805, 825 (9th Cir. 2010). 21 b. State’s Interest in Using Force 22 The Court proceeds to evaluate the state’s interest in using force against Mackay, which is 23 guided by the factors set forth by the Supreme Court in Graham. 490 U.S. at 396. 24 The first factor focuses on the severity of the crime at issue. Mackay was initially pulled 25 over for a traffic infraction (either driving through a stop sign or talking on his cell phone). 26

27 3 Indeed, the deposition excerpt Mackay offers in support of this position discusses kicks in the context of professional mixed martial arts fights. Pl.’s Compendium of Ex., Ex. M. 1 However, there is no dispute that, in fleeing from Defendants, Mackay drove against traffic on a 2 one-way street, drove up to 80 miles per hour, and drove through red lights and stop signs. See 3 Mackay Dep. (MSJ) 62:8-63:14; 183:5-184:18. Driving against traffic is a felony, though this is 4 tempered by the fact that it is also a non-violent traffic offense and Mackay only did so for a brief 5 distance. See Fletes Decl. ¶ 24 (noting that he last saw Mackay turning off the one-way street). 6 The Ninth Circuit has held that traffic violations generally do not support the use of a significant 7 level of force. See Bryan, 630 F.3d at 828 (9th Cir. 2010); United States v. Daniels, No. 19-CR- 8 00709-BLF-1, 2022 WL 1540035, at *7 (N.D. Cal. May 16, 2022) (noting that running two stop 9 signs was a “minor traffic infraction”). Taken with Mackay’s testimony that there was light traffic 10 and no pedestrians that night, the first Graham factor weighs in Mackay’s favor.4 11 The second Graham factor considers whether Mackay posed an immediate threat to the 12 safety of the officers or others, which courts often refer to as the “most important single element of 13 the [Graham] factors.” Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). Here, Mackay 14 appeared to be “just concerned about getting away” and did not exhibit any acts of aggression or 15 violence towards any of the officers pursuing him while on foot. Opp. 3-4. Additionally, 16 crediting Mackay’s version of the facts, once he fell on the ground, Mackay experienced full 17 neuromuscular incapacitation and did not fight back or resist. Opp. 8-9. The Body Worn Video 18 shows Defendants continuing to strike Mackay after he had yelled, “Okay, I’m done,” one or two 19 seconds after he hit the ground. BWV 1, at 0:52-55. The Court cannot say that, at the time 20 Defendants used the force at issue here, Mackay was an “immediate threat to the safety of the 21 officers or others.” 22 Defendants assert that they feared for their safety because Mackay “was determined to 23 escape, that [he] was willing to endanger his own life and the lives of the officers and the public in 24 order to achieve that end, and that [he] may have been armed with a weapon.” Mot. 8-9. 25

26 4 Defendants note the fact that all of Mackay’s crimes were “serious crimes . . . related to his active resistance and attempts to escape.” Opp. 13. While certainly a relevant factor, the Court 27 considers Mackay’s resistance in its analysis of the third Graham factor, rather than double count it in the first factor. 1 However, fleeing from officers on its own is not violent nor threatening, and there is no evidence 2 that Mackay’s attempts to flee on foot endangered the Officers or the public. Furthermore, the 3 public safety risk that Mackay had posed when he was driving recklessly would have dissipated 4 once he exited his vehicle. And despite Defendants’ asserted belief that Mackay may have been 5 armed, Officer Mitchell maintained a visual on Mackay for nearly the entire foot pursuit, was 6 actively looking to see if he was armed, and did not see anything to indicate Mackay was armed. 7 Pl.’s Compendium of Ex., Ex. B (“Mitchell Dep.”) 64:5-65:12. 8 Taking the factual circumstances in the light most favorable to Mackay, the Court finds 9 that the second Graham factor tips moderately towards Mackay and, at the very least, there exists 10 a genuine issue for a jury as to whether Mackay posed an “immediate threat” when Officers 11 Mitchell and Urrutia used force against him. 12 The third and final Graham factor considers whether Mackay actively resisted arrest or 13 attempted to evade arrest by flight. This factor indisputably weighs in favor of Defendants, as 14 Mackay has pleaded to resisting arrest for failing to stop and comply with officers’ commands and 15 evading officers against traffic. Mackay’s Plea Agreement, at 2. That said, this weight is 16 somewhat reduced by the fact that Mackay was no longer resisting at the time of Defendants’ use 17 of alleged excessive force. The Court notes this distinction because this factor would shift 18 significantly in favor of Defendants if the force at issue was instead Defendants’ use of tasers to 19 subdue the then-fleeing Mackay. 20 In sum, the first and second Graham factors generally weigh in favor of Mackay, and the 21 third factor leans towards Defendants. The state’s interest in using some force against Mackay 22 was certainly present throughout his overall exchange and flight from the officers, but the interest 23 would have diminished significantly once Mackay had exited his vehicle and again after he had 24 fallen to the ground from neuromuscular incapacitation. 25 c. Balancing of Intrusion with State Interest 26 In balancing the state’s intrusion onto Mackay’s rights (multiple punches and kicks) with 27 its interest in using force (existent but diminished), the Court cannot say that there is no genuine 1 issue of material fact such that Defendants are entitled to qualified immunity. 2 Defendants primarily justify their use of punches and kicks by arguing Mackay continued 3 to resist on the ground and would not give up his hands. Mot. 8, 14; Reply 13-14. However, 4 Mackay testified that he did not resist after he was tased nor did he move his hands underneath 5 him. Mackay Dep. (Opp.) 112:7-113:11. The video footage appears to support Mackay’s 6 assertion that he did not resist and, at the very least, does not blatantly contradict his assertion. 7 BWV 1, at 0:52-55. Accordingly, the Court must adopt Mackay’s version of the facts, which is 8 that Defendants punched and kicked him while he was on the ground and not resisting or fighting 9 back. The fact that Mackay had previously fled from the police and engaged in unsafe driving in 10 doing so—a fact that Defendants cite multiple times—carries significantly less weight in 11 considering whether the force at issue was justified when Mackay was out of his car, no longer 12 able to flee, and not resisting. 13 If Mackay can prove these facts as shown, the Court cannot say that no reasonable jury 14 could find that the force used by Officers Mitchell and Urrutia was unreasonable and excessive. 15 Accordingly, Mackay has shown that his constitutional rights were violated, overcoming the first 16 prong of qualified immunity. 17 d. Clearly Established Law 18 In accordance with the Supreme Court’s admonition to consider “clearly established” law 19 that is specific and “particularized to the facts of the case,” White, 580 U.S. 73, the Court 20 considers the state of the law in April 2018 regarding the use of punches and kicks to apprehend a 21 suspect who is not resisting.5 The Court is satisfied that the law was sufficiently and “clearly 22 established” to provide fair notice to Officers Mitchell and Urrutia that their actions could have 23 been unconstitutional. 24 The Court finds especially persuasive the Ninth Circuit’s decision in Blankenhorn v. City 25

26 5 Mackay cites several cases to support his assertion that the unconstitutional nature of Defendants’ conduct was clearly established. Opp. 19. However, every case involved the use of 27 deadly force and firearms, and therefore is inapposite to considering, as here, the use of intermediate or substantial force from body weapons. See Reply 3-8. 1 of Orange, 485 F.3d 463 (9th Cir. 2007), the facts of which bear many resemblances to the facts 2 here. In Blankenhorn, the officers had punched the plaintiff several times while he was on the 3 ground because they were “trying to get [the plaintiff’s] arms out from underneath him and secure 4 the handcuffs.” Id. at 481. Much like Defendants here, the officer in Blankenhorn also testified 5 that such punches are “utilized at times to distract an individual so that his muscles relax 6 momentarily and then you are able to take control.” Id. However, the Blankenhorn plaintiff—also 7 like Mackay here—had claimed he never pinned his arms underneath his body. Id. Crediting the 8 plaintiff’s version of the events, the Ninth Circuit concluded that “a rational jury could find that if 9 [the plaintiff] did not maneuver his arms beneath his body it eliminated the need for any use of 10 force to release them, and thus [the defendant’s] punches were not reasonably justified by the 11 circumstances as he claims.” Id. 12 Several other courts have reached the same conclusion as Blankenhorn, concluding that 13 impact strikes on a non-resisting person are likely to be excessive force. See Branscum v. San 14 Ramon Police Dep’t, 606 F. App’x 860, 863 (9th Cir. 2015) (“Because the officers clearly had 15 probable cause to arrest [plaintiff] for serious offenses and he continued to pose a potential threat 16 to the officers after he lay on the ground, the ‘countervailing governmental interests at stake,’ 17 would be compelling if [plaintiff] were resisting the officers. . . . But if the jury concluded that no 18 acts of resistance occurred, the officers' use of force would not be ‘reasonably justified by the 19 circumstances as [they] claim.’”) (internal citations omitted); Paulino v. Cruz, No. 16-CV-02642- 20 NC, 2017 WL 2903172, at *5 (N.D. Cal. July 7, 2017) (“At the time of [plaintiff’s] arrest, it was 21 clearly established that the degree of force used by the officers [tackling, kneeling, and punching] 22 would be excessive if [plaintiff] was unresisting and nonviolent.”); Turner v. Graff, No. C 10- 23 5709 CRB PR, 2012 WL 3656492, at *4 (N.D. Cal. Aug. 17, 2012) (“Although plaintiff's 24 resistance created a need for defendants to apply reasonable force to control him in order to 25 maintain discipline and order, kicking, punching and kneeing plaintiff after he was taken down 26 and was face down on the ground supports the finding that the force used by defendants was 27 unreasonably excessive or brutal, even if plaintiff did not suffer significant injuries.”). 1 Given that many courts have reached the same conclusion on similar facts, the Court finds 2 that the law was “clearly established” in April 2018 such that Officers Mitchell and Urrutia would 3 have been on notice that they could be violating Mackay’s Fourth Amendment rights by punching 4 and kicking him while on the ground. Accordingly, Defendants Mitchell and Urrutia are not 5 entitled to qualified immunity. The Court DENIES summary judgment as to Defendants Mitchell 6 and Urrutia. 7 2. Devereaux Fabrication Claim 8 For Mackay to prevail on his § 1983 claim under Devereaux, he must establish that “(1) 9 the defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused 10 [his] deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). To show 11 deliberate fabrication, Mackay must, at minimum, point to evidence supporting one of the 12 following two propositions: “(1) Defendants continued their investigation of [Mackay] despite the 13 fact that they knew or should have known that he was innocent; or (2) Defendants used 14 investigative techniques that were so coercive and abusive that they knew or should have known 15 that those techniques would yield false information.” Devereaux v. Abbey, 263 F.3d 1070, 1076 16 (9th Cir. 2001). 17 Defendants assert that they are entitled to qualified immunity from Mackay’s Devereaux 18 claims. They argue that Mackay cannot present any evidence that Defendants either continued 19 their investigations of him despite knowledge of his innocence or that they used investigative 20 techniques so coercive that they would yield false information. Mot. 10. Defendants also argue 21 that, in any event, Mackay cannot show that the Defendants’ behavior violated “clearly 22 established” law when it took place. Id. In opposition, Mackay recites the various portions of 23 Defendants’ police report statements that he disputes and asserts without further support that a 24 jury could find that those statements were deliberately fabricated to criminally charge and convict 25 Mackay. Opp. 15-17. 26 In evaluating Defendants’ qualified immunity, it is worth noting that Devereaux does 27 establish that there is a constitutional due process right “not to be subjected to criminal charges on 1 the basis of false evidence that was deliberately fabricated by the government.” Devereaux, 263 2 F.3d at 1074-75. However, Defendants have presented arguments that Mackay’s constitutional 3 rights under Devereaux were not violated, and Mackay has not produced any evidence that would 4 indicate otherwise. The opposition’s recitation of disputed statements in the police reports is 5 insufficient, as “not all inaccuracies in an investigative report give rise to a constitutional claim.” 6 Spencer v. Peters, 857 F.3d 789, 798–99 (9th Cir. 2017). 7 Furthermore, Mackay makes no effort to meet the two-pronged “stringent test” set forth by 8 Devereaux for deliberate fabrication, which requires that Defendants either (1) continued their 9 investigation of Mackay despite knowing he was innocent, or (2) used investigative techniques so 10 coercive and abusive such that they would have yielded false information. See Devereaux, 263 11 F.3d at 1076. Mackay does not, for instance, present any evidence that Defendant officers 12 continued their investigation of him or that he was innocent of the crimes he was charged with. 13 See Highbaugh v. Caitham, No. C 20-03911 WHA, 2021 WL 3141215, at *9 (N.D. Cal. July 26, 14 2021) (“It bears pointing out that the first prong of Devereaux’s standard requires innocence.”). 15 Nor does Mackay identify any techniques Defendants used that would have yielded false 16 information. Mackay’s failure to address any of these elements is fatal to their claim. 17 The Court finds that Mackay has not produced any evidence showing a genuine issue of 18 material fact as to whether Defendants violated his constitutional rights under Devereaux. 19 Defendants are therefore entitled to qualified immunity from and summary judgment on Mackay’s 20 § 1983 claim that Defendants falsified police reports. 21 IV. CONCLUSION 22 Based on the foregoing, Defendants’ motion for summary judgment is GRANTED IN 23 PART and DENIED IN PART. 24 The Court GRANTS summary judgment in favor of Defendants as to Plaintiff’s Second 25 Claim for Relief (Devereaux Claim) and Third Claim for Relief (Monell Claim). The Court also 26 GRANTS summary judgment in favor of Defendant Officers David Puckett, Edgar Garcia, Ryan 27 Keating, Clifton Smith, Jose Luis Fletes, and Robert Hernandez on Plaintiff’s First Claim for 1 Relief (Excessive Force). 2 The Court DENIES summary judgment as to Defendant Officers Jordy Urrutia and 3 Cameron Mitchell on Plaintiffs First Claim for Relief (Excessive Force). 4 IT IS SO ORDERED. 5 Dated: July 18, 2022 6 7

EDWARD J. DAVILA

8 United States District Judge 9 10 11 12

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19 20 21 22 23 24 25 26 27 28 Case No.: 19-cv-02257-EJD

ORDER GRANTING IN PART AND DENYING IN PART DEFS’ MSJ