1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID CORDERO, Case No. 19-cv-01834-JSC

8 Plaintiff,

ORDER RE: SUMMARY JUDGMENT

v. 9 Re: Dkt. No. 63 10 CITY OF SAN FRANCISCO, et al., Defendants. 11

12 13 David Cordero alleges San Francisco police officers used excessive force when they 14 stopped and arrested him for running several stop lights at high speed during the early morning 15 hours of August 12, 2018. Now pending before the Court is Defendants’ motion for summary 16 judgment on all claims. After carefully considering the parties’ written submissions and video 17 evidence, and having had the benefit of oral argument on November 10, 2022, the Court GRANTS 18 in part and DENIES in part the motion. 19 I. Section 1983: Excessive Force Claim (First Cause of Action) 20 When evaluating a Fourth Amendment claim of excessive force, courts ask “whether the 21 officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting 22 them.” Graham v. Connor, 490 U.S. 386, 397 (1989). “Determining whether an officer’s use of 23 force violates the Fourth Amendment requires balancing ‘the nature and quality of the intrusion on 24 the individual’s Fourth Amendment interests against the importance of the governmental interests 25 alleged to justify the intrusion.’” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020) 26 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). 27 “That inquiry generally involves an assessment of factors such as ‘the severity of the crime 1 whether he is actively resisting arrest or attempting to evade arrest by flight.’” Id. (quoting 2 Graham v. Connor, 490 U.S. at 396). “Because the excessive force inquiry nearly always requires 3 a jury to sift through disputed factual contentions, and to draw inferences therefrom,” summary 4 judgment in excessive force cases “should be granted sparingly.” Smith v. City of Hemet, 394 F.3d 5 689, 701 (9th Cir. 2005) (en banc) (cleaned up). 6 A. Officer Oesterich 7 Officer Oesterich’s motion for summary judgment on the Section 1983 claim for excessive 8 force is DENIED. Plaintiff contends Officer Oesterich used excessive force when he “struck 9 [him] with his closed fists approximately five times and kneed [him] in [his] legs and back area 10 numerous times.” (Dkt. No. 66-2 ¶ 8.) Officer Oesterich argues that the force used was 11 reasonable as a matter of law “to protect himself and to get Plaintiff into custody.” (Dkt. No. 63 at 12 12.) 13 The Court disagrees. Genuine disputes of material fact preclude judgment as a matter of 14 law. For example, Officer Oesterich’s and Plaintiff’s recollections differ as to (1) Plaintiff’s 15 resistance after Officer Oesterich took Plaintiff to the ground and (2) Plaintiff’s hand movements 16 during the arrest.1 Once on the ground, Plaintiff claims he “had completely surrendered,” did not 17 attempt to flee, and did not attempt to punch or kick Officer Oesterich or in any way threaten him. 18 (Dkt. No. 66-2 at ¶ 13.) According to Officer Oesterich, in contrast, Plaintiff was attempting to 19 crawl away. Officer Oesterich therefore got on top of Plaintiff to keep him from escaping. When 20 he did so, it looked like Plaintiff was moving his hands toward his waistband. Officer Oesterich 21 became concerned that Plaintiff had a weapon and tried to force Plaintiff’s hands from under his 22 body. He also told Plaintiff to move his hands. When that did not work, Officer Oesterich struck 23 Plaintiff with his fist and knee in order to handcuff Plaintiff. (Dkt. No. 63-15 ¶¶ 13-17.) As to his 24 hand location during the incident, Plaintiff testified that he could not remember where his hands 25 were, but “there was no reason for [his hands] to be beneath his body.” (Dkt. No. 69 at 14.) It is 26

27 1 Plaintiff confirmed at the summary judgment hearing that he is not challenging Officer 1 undisputed that Plaintiff did not have a weapon, (Dkt. No. 66-2 ¶ 13; Dkt. No. 63-8 at 15), and 2 Plaintiff claims he had completely surrendered, (Dkt. No. 66-2 ¶ 13). Officer Oesterich’s police 3 report says only that Plaintiff refused to place his hands behind his back. (Dkt. No. 63-8 at 13.) 4 The report makes no mention of Plaintiff’s hands reaching for a waistband. (Id.) 5 The available video evidence does not require the Court to adopt Oesterich’s version of 6 events over Plaintiff’s testimony as a matter of law. See Vos v. City of Newport Beach, 892 F.3d 7 1024, 1028 (9th Cir. 2018). First, the surveillance video supports an inference that Officer 8 Oesterich immediately started punching Plaintiff before there was any time for the alleged 9 resistance. (Sims Decl., Ex. B, Surveillance Camera 1 at 7:22:17.) Those initial strikes occurred 10 before Officers Cotter and Williams joined the arrest. (Id.). Defendants argue that Plaintiff’s 11 hands were moving toward his waistband when Officers Oesterich and Cotter and Williams were 12 trying to arrest him. (Dkt. No. 63 at 12; Dkt. No. 63-1 ¶ 10.) Thus, Defendants cannot justify 13 Officer Oesterich’s force that occurred before other officers were assisting him based on alleged 14 resistance that occurred after those other officers arrived. Moreover, after those initial strikes, the 15 video does not conclusively show the resistance Defendants describe, nor does it unambiguously 16 display Plaintiff moving his hands towards his waistband. (See, e.g., Sims Decl., Ex. B, 17 Surveillance Camera 1 at 7:22:17.) Defendants cite Officer Cotter’s body-worn camera for the 18 proposition that Plaintiff reached for his waistband. (Dkt. No. 63 at 12.) But, based on the video 19 evidence cited, a reasonable juror could find that the Officers had control of Plaintiff’s hands. (See 20 Cotter Decl. Ex. B at 11:23:05.) 21 In sum, substantial disputes exist as to “the facts and circumstances confronting” Officer 22 Oesterich when he struck Plaintiff after taking Plaintiff to the ground. Graham, 490 U.S. at 397. 23 Drawing all reasonable inferences in Plaintiff’s favor, a trier of fact could find that Officer 24 Oesterich did not observe Plaintiff moving his hands toward his waistband given the timing of the 25 punches, the lack of a weapon, and Oesterich’s failure to mention Plaintiff reaching for his 26 waistband in the police report. See Cruz v. City of Anaheim, 765 F.3d 1076, 1080 (9th Cir. 2014). 27 Moreover, a trier of fact could also find that Plaintiff’s alleged refusal to give up his hands did not 1 actively resisting. See Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013). 2 B. Officer Cotter 3 Plaintiff contends that while Officer Oesterich was striking and kneeing him,2 Officer 4 “Cotter ran over to me, kneeled down on my shoulder and struck me in the facial area with his 5 closed fist approximately three times.” (Dkt. No. 66-2 ¶ 9.) After Plaintiff was handcuffed, but 6 before he was searched, “defendant Cotter intentionally grabbed [Plaintiff’s] neck and pressed 7 [his] head toward the ground, and kept his knee pressed with extreme force on [his] neck and head 8 area.” (Id. ¶ 10.) 9 A genuine dispute exists as to the reasonableness of the strikes to the face. Officer Cotter 10 contends the blows were necessary because he saw Plaintiff putting his hands near his waistband 11 and thus was concerned he might have a weapon, he was unable to get Plaintiff’s helmet off, and 12 the blows were designed to cause Plaintiff to raise his hands to his face thus enabling the officers 13 to handcuff him. (Dkt. No. 63-1 at ¶¶ 10-13.) Like Officer Oesterich, Officer Cotter’s 14 contemporaneous police report makes no mention of Plaintiff’s hands moving towards a 15 waistband. (Dkt. No, 63-8 at 15.). Thus, for the reasons explained above, a reasonable trier of fact 16 could find that Officer Cotter did not see Plaintiff putting his hands near his waistband. A trier of 17 fact might find that Plaintiff did so, and that the strikes were therefore reasonable. But drawing all 18 reasonable inferences in Plaintiff’s favor, the Court cannot conclude that the jury must find the 19 facts in such a way as to make the blows to the face reasonable as a matter of law. 20 A genuine dispute also exists as to the reasonableness of the force used after Plaintiff was 21 handcuffed. With respect to Plaintiff’s testimony as to the force on his neck, Officer Cotter 22 attests:

23 As the officers were searching Plaintiff, he tensed up and fell to his side. I then placed my hand on the back of Plaintiff’s neck in order to 24 control Plaintiff and force him to sit up. I did so because other officers were still in the process of searching Plaintiff and I was still concerned 25

26 2 Defendants contend that Plaintiff’s declaration testimony that Officer Cotter was kneeing him is contradicted by his deposition testimony. (Dkt. No. 73 at 11.) But they do not identify the 27 deposition testimony so the Court cannot conclude that the declaration statement “clear[ly] and Plaintiff was armed. I then asked Plaintiff whether he had a gun. 1 Plaintiff said he did not. I let go of Plaintiff’s neck once the search was completed. 2 3 (Dkt. No. 63-1 at ¶ 18.) While some force to hold up Plaintiff to be searched would be reasonable 4 as a matter of law, Plaintiff testifies to, and the body cam video supports an inference of, “extreme 5 force.” (See Cotter Decl. Ex. B at 11:24:00.) Officer Cotter does not explain how his concern 6 about Plaintiff maybe having a gun would have justified such force given that Plaintiff was 7 handcuffed at the time and surrounded by several officers who were searching him. Moreover, the 8 audio accompanying Officer Cotter’s body camera footage also supports an inference that that the 9 force used was retribution, not reasonable force to execute the search. (Id.) 10 Finally, while not identified in Plaintiff’s declaration, the video shows that after Plaintiff 11 was handcuffed, and while he was being searched, Officer Cotter came around to the front of 12 Plaintiff and stepped hard on his ankle while Plaintiff complains that Officer Cotter is hurting him. 13 (DeFilippo Decl. Ex. B at 11:24:30). Officer Cotter argues that he did so because he believed that 14 Plaintiff had attempted to swing at him with his leg, and Officer Cotter needed to hold his leg 15 down to allow the search to be completed. Drawing all reasonable inferences in Plaintiff’s favor, 16 however, Officer Defillipo’s and Officer Oesterich’s body camera videos permit a reasonable trier 17 of fact to find that Officer Cotter could not have reasonably believed that Plaintiff had attempted 18 to swing his foot at him or that the force used was necessary. (Id.; Oesterich Decl. Ex. B. at 19 11:24:30.) 20 Defendants’ reliance on Gammage v. City of San Francisco, 2020 WL 1904498 *13 (N.D. 21 Cal. April 17, 2020), is unpersuasive. The videos there established the undisputed facts of the 22 plaintiff’s escalating dangerous behavior, including refusing to turn his car off, leaving it in drive, 23 yelling at the officers, and ignoring repeated demands, justifying the force used to pull the plaintiff 24 out of his car and arrest him. Here, in contrast, Plaintiff does not dispute the force used to pull 25 him off his motorcycle. Also here, in contrast, the videotape does not establish undisputed facts; 26 instead, the videotapes are not clear or are subject to varying inferences. This is not a case in 27 which the facts can be recounted “in the light depicted by the videotape.” Id. at *1; Vos v. City of 1 incident does not foreclose a genuine factual dispute as to the reasonable inferences that can be 2 drawn from that footage”). 3 C. Officer Sharron 4 Defendants’ motion for summary judgment argued that the complaint does not allege any 5 facts as to Officer Sharron and that there is no evidence to support a claim against him. Plaintiff’s 6 opposition does not address this argument. Accordingly, as Plaintiff has not identified any facts 7 upon which a reasonable trier of fact could find Officer Sharron liable, and the parties’ evidence 8 does not reveal and basis for liability, summary judgment is granted in Officer Sharron’s favor. 9 D. Officers Williams, Cowhig and Defillipo 10 Plaintiff contends that Officers Williams and Cowhig and Defillipo are liable under section 11 1983, not for their own use of force, but for failing to intervene to stop the force used by Officers 12 Oesterich and Cotter or as integral participants. The record does not support such a finding as to 13 any of these officers. 14 1. Failure to Intervene 15 “[P]olice officers have a duty to intercede when their fellow officers violate the 16 constitutional rights of a suspect or other citizen. Importantly, however, officers can be held liable 17 for failing to intercede only if they had an opportunity to intercede.” Cunningham v. Gates, 229 18 F.3d 1271, 1289 (9th Cir. 2000), as amended (Oct. 31, 2000) (cleaned up). 19 It is undisputed that none of these officers had the opportunity to intercede when Officer 20 Oesterich first used force upon pulling Plaintiff from his motorcycle; they were not close enough 21 to intervene and had no way of knowing what Officer Oesterich was about to do. As for the 22 subsequent force, Officer Cowhig declares: “I did not observe Officers Oesterich or Cotter apply 23 any force to Plaintiff. I did not see either officer punch, kick or knee the Plaintiff.” (Dkt. No. 63-4 24 ¶ 14.) Officer Defillipo similarly denies seeing any of the force about which Plaintiff complains. 25 (Dkt. No. 63-7 ¶ 19.) Plaintiff does not acknowledge this testimony, let alone identify evidence 26 that creates a genuine dispute of fact. Officer Williams does not attest that he did not see any 27 force; but he does declare that he was focused at all times on getting Plaintiff handcuffed. (Dkt. 1 trier of fact could infer that Officer Williams had an opportunity to intervene. (Dkt. No. 66 at 5- 2 6.) Summary judgment must be granted to Officers Cowhig, Defillipo and Williams on the failure 3 to intervene claim. 4 2. Integral Participants 5 Plaintiff relies on Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009) and Boyd v. 6 Benton Cnty, 374 F.3d 773, 780 (9th Cir. 2004), for the proposition that Officers Cowhig, 7 Defillipo and Williams can be liable as “integral participants” for the alleged excessive force of 8 Officers Oesterich and Cotter. Not so. In Hopkins, the Ninth Circuit explained that the “integral 9 participant” rule supports liability for officers who guard the door with a gun during an 10 unconstitutional search. Plaintiff makes no effort to apply the law articulated in that search case to 11 the facts of this case. And in Boyd, the Ninth Circuit held that officers involved in a search where 12 a flash-bang device was tossed into an occupied apartment could be held liable for excessive force 13 under an integral participant theory because the evidence supported a finding that “every officer 14 was aware of the decision to use the flash-bang, did not object to it, and participated in the search 15 operation knowing the flash-bang was to be deployed.” 374 F.3d at 780. Here, in contrast, as 16 explained in the context of Plaintiff’s failure to intervene theory, the evidence does not support a 17 finding that these officers knew that excessive force was going to be used, or even witnessed it 18 occurring. Summary judgment must be granted on this theory as well. 19 As Plaintiff has not met his burden of identifying facts from which a reasonable trier of 20 fact could find Officers Cowhig, Defillipo or Williams liable, summary judgment in their favor 21 must be granted. 22 E. Qualified Immunity 23 Officers Cotter and Oesterich insist they are at least entitled to qualified immunity. Their 24 argument, however, is premised on disputed issues of fact. The Officers argue that it is undisputed 25 that Plaintiff was “resisting the Defendant Officers’ attempts to secure Plaintiff’s hands for 26 handcuffing” and that the officers “responded with commensurate levels of reasonably minimal 27 force.” (Dkt. No. 73 at 14.) But, as described above, a reasonable trier of fact could find Plaintiff 1 not pose a threat when the officers punched him. Similarly, Officer Cotter’s argument that he 2 needed to hold Plaintiff’s neck and head to allow officers to complete their search because 3 Plaintiff refused to sit upright is based on disputed facts; the video does not compel acceptance of 4 Defendants’ version of the facts. The same is true for stepping on Plaintiff’s ankle. Where such 5 disputes exist, summary judgment is appropriate only if Defendants are entitled to qualified 6 immunity on the facts as alleged by the non-moving party. Blankenhorn v. City of Orange, 485 7 F.3d 463, 477 (9th Cir. 2007). That is not the case here. 8 A two-part test determines whether an officer is entitled to qualified immunity: first, the 9 Court decides whether the officer violated a plaintiff’s constitutional right; if the answer to that 10 inquiry is “yes,” the Court must determine whether the constitutional right was “clearly 11 established in light of the specific context of the case” at the time of the events in 12 question. Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (quoting Robinson v. York, 566 13 F.3d 817, 821 (9th Cir.2009)). 14 Taking Plaintiff’s version of events as true, Blankenhorn, 485 F.3d at 477, Officers Cotter 15 and Oesterich are not entitled to qualified immunity. First, as described above, a reasonable jury 16 could find Officers Cotter and Oesterich violated Plaintiff’s Fourth Amendment rights (1) when 17 Officers Cotter and Oesterich punched Plaintiff, (2) when Officer Cotter stomped on Plaintiff’s 18 ankle, and (3) when Officer Cotter placed “extreme force” on Plaintiff’s neck while Plaintiff was 19 handcuffed. Second, based on Plaintiff’s version of events, clearly established law placed Officers 20 Oesterich and Cotter on notice that the force used here violated the Fourth Amendment. 21 a. Punches 22 Blankenhorn, a Ninth Circuit case decided prior to the incident here, put Officers Cotter 23 and Oesterich on notice that “punching [an arrestee] to free his arms when, in fact, he was not 24 manipulating his arms in an attempt to avoid being handcuffed” is “a Fourth Amendment 25 violation.” Id. at 481. Here, as in Blankenhorn, Plaintiff asserts that he was not resisting 26 Defendants’ attempts to handcuff him. Under such circumstances, clearly established law 27 precludes officers from utilizing face strikes to handcuff a subject. 1 b. Stepping on the Ankle 2 Blankenhorn also held that the use of ankle restraints on a handcuffed, non-resisting 3 individual constituted a Fourth Amendment violation. Id. There, the Ninth Circuit found no 4 reasonable officer would have believed “hobble” restraints, “in addition to handcuffs, were 5 necessary, to maintain control of [the plaintiff] and prevent possible danger to passersby.” Id. A 6 jury could find the conduct here was even more extreme: rather than use a restraining tool, Officer 7 Cotter stepped hard on Plaintiff’s ankle with his own foot—allegedly without any reason to do 8 so—while Plaintiff informed Officer Cotter that he was in pain. Taking Plaintiff’s version of 9 events as true at this stage, Officer Cotter’s actions violated a handcuffed and non-resisting 10 arrestee’s clearly established right to be free of gratuitous ankle restraint. 11 c. Force on the Neck 12 Finally, after Plaintiff was handcuffed, Plaintiff alleges “defendant Cotter intentionally 13 grabbed [Plaintiff’s] neck and pressed [Plaintiff’s] head toward the ground, and kept his knee 14 pressed with extreme force on [Plaintiff’s] neck and head area.” (Dkt. No. 63-1 ¶ 10.) The Ninth 15 Circuit has clearly established that applying extreme force to the neck and head area of a 16 handcuffed, non-resisting, and surrendered arrestee is a Fourth Amendment violation. See 17 Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003); Barnard 18 v. Theobald, 721 F.3d 1069, 1073, 1075 (9th Cir. 2013). Thus, based on Plaintiff’s alleged non- 19 resistance, a reasonable officer would have known that the force used here was excessive. 20 *** 21 Because Officers Cotter and Oesterich are not entitled to qualified immunity at this stage, 22 their motion for summary judgment on Plaintiff’s Section 1983 claim is DENIED. 23 II. State Law Claims 24 A. Negligence and Battery (Second and Third Causes of Action) 25 1. Government Tort Claims Act 26 Before a plaintiff brings suit against a California public entity for money damages, the 27 plaintiff must comply with the Government Tort Claims Act, Cal. Gov’t Code § 810 et seq. The 1 public entities” and public employees in their official capacity to the entity before bringing suit. 2 Cal. Gov’t Code § 905; Massa v. Southern Cal. Rapid Transit Dist., 43 Cal. App. 4th 1217, 1221– 3 22 (1996) (noting that Cal. Gov’t Code § 950.6 “requires a written claim for money or damages 4 for injury be presented to the employing public entity as a prerequisite to suing the agency or any 5 of its employees who are claimed to have acted within their official capacity”). 6 Here, there is no dispute that Plaintiff presented a timely claim to San Francisco. 7 Defendants nonetheless contend that the claim was inadequate as a matter of law because it 8 described the time of the incident as 8:45 p.m., 14 hours after the incident actually occurred. The 9 Court is unpersuaded. The Act requires the plaintiff to identify the “date, place and other 10 circumstances of the occurrence or transaction which gave rise to the claim asserted.” Cal. Gov’t 11 Code § 910(c). The claim did so. It correctly identified Plaintiff’s name, and the date and location 12 of the occurrence. It also identified the name and contact information of Plaintiff’s attorney. 13 Defendants cite no case, and the Court is not aware of any, which holds that merely getting the 14 time of an incident incorrect renders the notice inadequate as a matter of law. A plaintiff need 15 only “substantially comply” with the claim presentation requirement and “the test for substantial 16 compliance is whether the face of the filed claim discloses sufficient information to enable the 17 public entity to make an adequate investigation of the claim’s merits and settle it without the 18 expense of litigation.” Connelly v. Cnty. of Fresno, 146 Cal. App. 4th 29, 38 (2006). Plaintiff 19 substantially complied. 20 2. Merits 21 Plaintiff’s negligence and battery claims against Officers Oesterich and Cotter survive for 22 the same reasons his Section 1983 excessive force claims survive. The claims likewise fail against 23 Officers Cowhig, Williams and Defillipo for the reasons explained above. 24 B. Bane Act (Fourth Cause of Action). 25 The Bane Act “provides a cause of action for violations of a plaintiff’s state or federal civil 26 rights committed by ‘threats, intimidation, or coercion.’” Chaudhry v. City of Los Angeles, 751 27 F.3d 1096, 1105 (9th Cir. 2014) (quoting Cal. Civ. Code § 52.1). The Act does not require the 1 constitutional excessive force violation the plaintiff alleges. It does, however, require “a specific 2 || intent to violate the arrestee’s right to freedom from unreasonable seizure.” Reese v. Cnty. of 3 || Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018). 4 In light of the Court’s ruling on the Section 1983 claim, a reasonable trier of fact could 5 find Officers Cotter and Oesterich liable on the Bane Act claim, but not the other officers. This 6 || includes the specific intent requirement. A reasonable trier of fact could find that the officers were 7 || retaliating for Plaintiff having, in their view, intentionally assaulted Officer Oesterich. 8 CONCLUSION 9 Defendants’ motion for summary judgment is in large part premised on their argument that 10 “t]he undisputed video evidence shows that a reasonable officer would believe that Plaintiff had 11 not surrendered, that he was actively evading arrest, and that he was engaged in criminal activity.” 12 (Dkt. No. 73 at 13.) The Court has reviewed the videos and disagrees that they require such 5 13 undisputed findings. See Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) 14 || (‘The mere existence of video footage of the incident does not foreclose a genuine factual dispute 3 15 as to the reasonable inferences that can be drawn from that footage”). Drawing all reasonable a 16 inferences in Plaintiff's favor, a reasonable trier of fact could find that Officers Cotter and 3 17 Oesterich used excessive force, and intended to do so. Thus, their motion for summary judgment 18 || is DENIED. However, the motion for summary judgment of the remaining officers is GRANTED 19 || as no reasonable trier of fact could find that they failed to intervene in or were integral participants 20 || in the alleged excessive force. 21 This Order disposes of Docket No. 63. 22 IT IS SO ORDERED. 23 Dated: December 12, 2022 24

6 JAQQUELINE SCOTT CORL United States District Judge 27 28