1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

YEMA KHALIF, HAWI AWASH,

7 Case No. 4:22-cv-04097-YGR Plaintiffs, 8 ORDER GRANTING MOTION TO DISMISS v. 9 Dkt. No. 39 CITY OF BELVEDERE et al., 10 Defendants. 11

12 Before the Court is defendants’ motion to dismiss the Second Amended Complaint. (Dkt. 13 No. 39.) For the reasons stated on the record at the March 8, 2023 hearing, the Court orders as 14 follows: the motion is DENIED as to Claim 71, GRANTED WITH PREJUDICE as to Claim 6, and 15 otherwise GRANTED WITH LEAVE TO AMEND.2 16 Plaintiff shall file an amended pleading by Wednesday, March 22, 2023, and defendant 17 shall respond two weeks thereafter. 18 As discussed at the hearing and pursuant to Local Rule 72-1, this matter is REFERRED to a 19 magistrate judge to conduct a settlement conference in accordance with the assigned judge’s 20 calendar. Should the case settle, the parties are ordered to file a Notice of Settlement within two 21 business days so that the Court may vacate any pending dates. The parties will be advised of the 22 1 Plaintiffs allege that Officer Clark’s act of touching and then beginning to unholster his 23 gun was excessive force in response to plaintiffs’ conduct of lawfully standing on their property talking to officers. Defendants cite authority indicating that this is an inadequate basis for an 24 excessive force claim. They cite, for example, Foster v. City of Indio, 908 F.3d 1204, 1218 (9th 25 Cir. 2018) (“Neither we nor the Supreme Court have held that merely unholstering a firearm, without more, constitutes excessive force.”). The Court takes plaintiffs failure to address this 26 authority as a concession that they cannot plead an excessive force claim.

27 2 As stated at the hearing, the Court finds the body camera footage of Officer Madfes and ] date, time, and place of the settlement conference by notice from the assigned magistrate judge. 2 This terminates docket number 39. 3 IT Is SO ORDERED. 4 Dated: March 10, 2023 5

YVONNE GONZALEZ ROGERS

6 UNITED STATES DISTRICT COURT JUDGE 7 8 9 10 11 12

2B 14

15 16

17

6

Z 18

19 20 21 22 23 24 25 26 27 28