1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 JOSE LUIS BARAJAS CENTENO, Case No.: 3:19-cv-2098-L-DEB

10 Plaintiff,

11 v.

ORDER ON CROSS-MOTIONS FOR

12 CITY OF CARLSBAD, et al., SUMMARY JUDGMENT 13 Defendants. 14 15 Pending before the Court is the parties’ cross-motions for summary judgment. 16 (ECFs 116, 158, 159, and 162). The Court decides the matter on the papers submitted 17 without oral argument. See Civ. L. R. 7.1. For the reasons stated below, the Court 18 DENIES Plaintiff’s motion, and GRANTS IN PART and DENIES IN PART 19 Defendants’ motion. 20 I. BACKGROUND 21 This action relates to a police incident involving Plaintiff Jose Luis Barajas 22 Centeno (“Centeno”) that occurred in the City of Carlsbad (“Carlsbad”). 23 On April 27, 2019, Carlsbad residents observed someone attempting to gain access 24 to a vehicle with something that resembled a coat hanger. There were recent reported car 25 burglaries in that area. The residents therefore called Carlsbad’s Police Department to 26 report the possible crime. 27 Carlsbad police officers—Defendants Jordan Walker (“Walker”) and James 28 Gallivan (“Gallivan”) (collectively, “Officer Defendants”)—responded to the report. 1 Upon arrival, they observed a vehicle matching the report and Centeno attempting to 2 open it using a metal tool and flashlight. 3 Walker approached Centeno and asked him to put down the metal tool. Centeno 4 placed it on top of the vehicle. After that, they engaged in a verbal exchange. Walker 5 asked for identification and vehicle registration. Centeno stated he did not have that. 6 Walker informed him there was a report about a possible vehicle burglary. He responded 7 it was his vehicle. Walker asked for evidence to show ownership or authorization to 8 access the vehicle. Centeno again stated it was his vehicle. 9 During this exchange, Gallivan approached Centeno from the other side. Gallivan 10 grabbed the metal tool and threw it about ten feet behind him. After Centeno asked why 11 he did that, Gallivan stated he did not want him to grab it. Centeno then attempted to 12 walk past Gallivan. In response, Gallivan moved into Centeno’s path, held out his hand, 13 and told him to remain there. Centeno stepped backward. 14 Walker then said he was detaining Centeno and grabbed his arms to handcuff him. 15 Walker realized Centeno was still holding the flashlight and said, “Put the flashlight 16 down.” Centeno responded, “What?” Walker repeated, “Put the flashlight down.” It is 17 unclear when Centeno dropped the flashlight, but it happened shortly after Walker 18 grabbed him. 19 Officer Defendants contend Centeno resisted Walker’s attempt to handcuff him. 20 Centeno disputes that. Officer Defendants then took Centeno to the ground. Centeno was 21 instructed to put his hands behind his back three times. Officer Defendants contend 22 Centeno resisted by keeping his arms rigid and his right arm pinned under his torso. 23 Centeno contends he did not resist. Gallivan held Centeno’s left hand and placed his arm 24 on Centeno’s neck. Walker struck Centeno’s back with his knee at least two times. After 25 that, Centeno was handcuffed and placed in an upright position. The investigation 26 continued. 27 28 1 Eventually, Walker issued Centeno a written citation for a misdemeanor: resisting, 2 delaying, or obstructing a peace officer in the lawful exercise of their duties. Officer 3 Defendants released Centeno after he agreed to appear in court at a designated time. 4 A misdemeanor complaint was filed against Centeno. The court order from the 5 arraignment hearing indicates Centeno failed to appear. Centeno contends he attended it. 6 The order also indicates the prosecutor voluntarily dismissed the complaint. Centeno 7 thereafter initiated this civil rights action. 8 II. LEGAL STANDARD 9 Summary judgment is appropriate where the record, taken in the light most 10 favorable to the nonmoving party, indicates “there is no genuine dispute as to any 11 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 12 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex Corp. v. 13 Catrett, 477 U.S. 317, 322-324 (1986).1 14 To meet their burden, the moving party must present evidence that negates an 15 essential element of the opposing party’s case or show that the opposing party does not 16 have evidence necessary to support its case. Celotex, 477 U.S. at 322-23; Nissan Fire & 17 Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1105-06 (9th Cir. 2000). 18 If the moving party meets this burden, the nonmoving party must support their 19 opposition by producing evidence in support of the claim. Celotex Corp., 477 U.S. at 20 324; Nissan Fire & Marine Ins., 210 F.3d at 1103. They cannot defeat summary 21 judgment merely by demonstrating “that there is some metaphysical doubt as to the 22 material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 23 (1986); see also Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 24 1995) (“the mere existence of a scintilla of evidence in support of the nonmoving party’s 25 position is not sufficient.”) 26 27 28 1 Facts are material when, under the substantive law, they could affect the outcome. 2 Anderson, 477 U.S. at 248. Disputes about material facts are genuine if “the evidence is 3 such that a reasonable jury could return a verdict for the nonmoving party.” Id. 4 “Judgment as a matter of law is appropriate when the evidence presented at trial permits 5 only one reasonable conclusion.” Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th 6 Cir. 2008). 7 When ruling on summary judgment motions, courts must view all reasonable 8 inferences from the underlying facts in the light most favorable to the nonmoving party. 9 Matsushita, 475 U.S. at 587. They do not make credibility determinations or weigh 10 evidence. Anderson, 477 U.S. at 255. 11 The court “may limit its review to the documents submitted for the purpose of 12 summary judgment and those parts of the record specifically referenced therein.” Carmen 13 v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). That is, courts 14 are not required “to scour the record in search of a genuine issue of triable fact.” Keenan 15 v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). 16 Cross-motions for summary judgment “must be considered on [their] own merits.” 17 Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th 18 Cir. 2001); Acosta v. City Nat'l Corp., 922 F.3d 880, 885 (9th Cir. 2019). Courts must 19 review the evidence submitted in support of each cross-motion, and “give the nonmoving 20 party in each instance the benefit of all reasonable inferences.” Americans Civil Liberties 21 Union of Nevada v. City of Las Vegas, 466 F.3d 784, 791 (9th Cir. 2006); Tulalip Tribes 22 of Wash. v. Washington, 783 F.3d 1151, 1156 (9th Cir. 2015). 23 Plaintiffs “seeking summary judgment on a claim must offer evidence sufficient to 24 support a finding upon every element of [their] claim other than elements admitted by the 25 defendants.” Barnes v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 537 (9th Cir. 2018). “It is 26 ordinarily a heavy burden.” Id. at 538. 27 “When opposing parties tell two different stories, one of which is blatantly 28 contradicted by the record, so that no reasonable jury could believe it, a court should not 1 adopt that version of the facts for purposes of ruling on a motion for summary judgment.” 2 Scott v. Harris, 550 U.S. 372, 380 (2007). “The mere existence of video footage of the 3 incident does not foreclose a genuine factual dispute as to the reasonable inferences that 4 can be drawn from that footage.” Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th 5 Cir. 2018).2 6 III. DISCUSSION 7 Centeno asserts claims under section 1983 against Officer Defendants for unlawful 8 detention or arrest, excessive force, and malicious prosecution. He also asserts a related 9 Monell claim against Carlsbad. And he asserts various state law claims against all 10 Defendants. 11 Officer Defendants argue they are entitled to qualified immunity as to the section 12 1983 claims. When that defense is raised, courts must determine: (1) whether the officer 13 violated a constitutional right, and (2) whether that right was “clearly established” when 14 the incident occurred. Pearson v. Callahan, 555 U.S. 223, 232 (2009); Jessop v. City of 15 Fresno, 936 F.3d 937, 940 (9th Cir. 2019). 16 “To be clearly established, a right must be sufficiently clear that every reasonable 17 official would have understood that what [they] [are] doing violates that right. [That is], 18 existing precedent must have placed the . . . constitutional question beyond debate.” 19 Reichle v. Howards, 566 U.S. 658, 664 (2012). An officer is immune “unless existing 20 precedent ‘squarely governs’ the specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 21 1148, 1153 (2018) (per curiam). The law cannot be defined “at a high level of 22 generality.” City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019); Mullenix v. 23 Luna, 577 U.S. 7, 12 (2015); White v. Pauly, 137 S. Ct. 548 (2017); see, e.g., S. B. v. 24 County of San Diego, 864 F.3d 1010, 1015 (9th Cir. 2017) (“we hear the Supreme Court 25 loud and clear. Before a court can impose liability on [an officer], we must identify 26 27 2 Defendants requested leave to file video evidence. (ECF 116-4). The Court GRANTS 28 1 precedent as of [the incident] that put [the officer] on clear notice that [their conduct] in 2 these particular circumstances would be [unconstitutional].”) Centeno has the burden to 3 show the right at issue was clearly established. Isayeva v. Sacramento Sheriff's Dep't, 872 4 F.3d 938, 946 (9th Cir. 2017); Sharp v. Cnty. of Orange, 871 F.3d 901, 911 (9th Cir. 5 2017). 6 When ruling on a summary judgment motion, “courts are required to view the facts 7 and draw reasonable inferences in the light most favorable to the” nonmoving party. 8 Scott, 550 U.S. at 378.3 “In qualified immunity cases, this usually means adopting . . . 9 the plaintiff’s version of the facts.” Id.; Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. 10 1991) (summary judgment based on qualified immunity is appropriate only if the officers 11 are entitled to judgment on the basis of the facts most favorable to plaintiff). 12 The Court will address whether Officer Defendants are immune from Centeno’s 13 1983 claims. 14 Unlawful Detention Claim 15 The Fourth Amendment protects individuals “against unreasonable . . . seizures.” 16 U.S. Const. amend. IV. “There are two categories of police seizures under the Fourth 17 Amendment: [detentions] and . . . arrests.” Hernandez v. Skinner, 969 F.3d 930, 937 (9th 18 Cir. 2020). Both are at issue here. 19 First, Centeno asserts an unlawful detention claim against Officer Defendants. 20 “Police officers may conduct a brief, investigative stop of an individual when they have 21

22 23 3 Officer Defendants rely on their expert witness to support the summary judgment motion. The witness, however, did not view the evidence, including the videos, in the 24 light most favorable to Centeno nor draw all reasonable inferences in his favor. (See, e.g. 25 Defendants’ Exhibit D at 18) (“while on the ground, Mr. Barajas-Centeno allegedly kept his arms rigid and concealed under his body.”) The report also relies on disputed material 26 facts, like whether Centeno resisted Officer Defendants’ lawful commands. The Court 27 thus has not relied on the expert in deciding Defendants’ summary judgment motion. Moreover, upon reviewing the evidence, the Court overrules all evidentiary objections 28 1 reasonable suspicion that the person apprehended is committing or has committed a 2 criminal offense.” Id.; Terry v. Ohio, 392 U.S. 1, 21-22 (1968). 3 “The reasonable suspicion standard is a less demanding standard than probable 4 cause, and merely requires a minimal level of objective justification.” Gallegos v. City of 5 Los Angeles, 308 F.3d 987, 990 (9th Cir. 2002); United States v. Valdes-Vega, 738 F.3d 6 1074, 1078 (9th Cir. 2013) (“the reasonable suspicion standard is not a particularly high 7 threshold to reach.”) Police officers must have “specific, articulable facts which, when 8 considered with objective and reasonable inferences, form a basis for particularized 9 suspicion.” United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en 10 banc). Courts must consider all the circumstances to determine whether an officer had 11 reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 273 (2002). 12 There is no dispute Centeno was detained. But the parties fail to address when the 13 detention commenced. The Court first turns to this issue. 14 Officer Defendants, wearing standard police uniforms, arrived at the scene in 15 marked police cars. They surrounded Centeno near the vehicle and asked him several 16 questions. Then, when Centeno attempted to walk around, Gallivan moved into his path, 17 held out his hand, and told Centeno to remain in place. Viewing the evidence in the light 18 most favorable to Centeno and drawing all reasonable inferences in his favor, the 19 detention started at this point. See Terry, 392 U.S. at 19 n.16 (seizures occur when police 20 officers, through force or authority, restrain an individual’s liberty); INS v. Delgado, 466 21 U.S. 210, 215 (1984) (consensual encounter between a police officer and a citizen can be 22 transformed into a seizure where a reasonable person would have believed they were not 23 free to leave.); Fla. v. Bostick, 501 U.S. 429, 437 (1991) (“no seizure occurs when police 24 ask questions of an individual, ask to examine the individual’s identification, and request 25 consent to search . . . so long as the officers do not convey a message that compliance 26 with their requests is required.”); United States v. Brown, 996 F.3d 998, 1006 (9th Cir. 27 2021) (seizure occurred when officer ordered individual to stand up and turn around). 28 1 When that happened, Officer Defendants had reasonable suspicion to detain 2 Centeno. Carlsbad Police Department received a report that an individual with a metal 3 object was attempting to gain access to a vehicle at night. Officer Defendants responded 4 to the report. They observed Centeno with a metal tool and a flashlight, items often used 5 for vehicle burglaries, attempting to open the passenger side door with the metal tool. 6 Although Centeno stated it was his vehicle, he did not provide identification or 7 documentation to support that assertion. Centeno’s other statements also did not dispel 8 Officer Defendants’ reasonable suspicion.4 Under these circumstances, it was reasonable 9 for Officer Defendants to order Centeno not to move while they investigated his right to 10 access the vehicle (e.g., title or permission from the registered owner). 11 In sum, viewing the evidence in the light most favorable to Centeno and drawing 12 all reasonable inferences in his favor, any reasonable jury would conclude Officer 13 Defendants had reasonable suspicion to detain Centeno. His claim of detention without 14 reasonable suspicion therefore fails. 15 Unlawful Arrest Claim 16 Centeno also asserts an unlawful arrest claim against Officer Defendants. The 17 Court must determine (1) when the arrest occurred, and (2) whether probable cause 18 existed at that time. Dubner v. City & Cty. of S.F., 266 F.3d 959, 964 (9th Cir. 2001) 19 (police officers need probable cause to make warrantless arrests). 20 There is no dispute Centeno was arrested. But, as with the detention, the parties do 21 not address when the arrest occurred. The Court first turns to this issue. 22 23 24 4 Centeno argues he was unable to understand Officer Defendants because he is not fluent 25 in English. But he fails to cite evidence to show Officer Defendants – or objectively reasonable officers in their situation – should have known that. The record shows the 26 opposite. Defendants provided video footage from the incident. (See Defendants’ 27 Exhibits A and B). In the videos, Centeno provided direct answers to Officer Defendants’ questions. (Id.) (stating Officer Defendants should have known it was his vehicle because 28 1 Again, Centeno was detained when Gallivan told him not to move. The relevant 2 issue is when the detention transformed into an arrest. Michigan v. Summers, 452 U.S. 3 692, 700 (1981) (“every arrest, and every seizure having the essential attributes of a 4 formal arrest, is unreasonable unless it is supported by probable cause.”); Ganwich v. 5 Knapp, 319 F.3d 1115, 1122 (9th Cir. 2003) (“a seizure becomes unlawful when it is 6 more intrusive than necessary.”); Kraus v. Pierce Cnty., 793 F.2d 1105, 1108 (9th Cir. 7 1986) (“investigative stops based upon suspicion short of probable cause are . . . 8 constitutionally permissible only where the means utilized are the least intrusive 9 reasonably available.”); Washington v. Lambert, 98 F.3d 1181, 1185, 1188-1189 (9th Cir. 10 1996) (intrusive techniques might turn a stop into an arrest). 11 To determine whether and when an investigative detention transforms into an 12 arrest, the Court must consider all the circumstances, including two main components: 13 First is the intrusiveness of the stop, i.e., the aggressiveness of the police methods and how much the plaintiff’s liberty was restricted. Under this 14 component, [courts] review the situation from the perspective of the person 15 seized, assessing whether a reasonable innocent person in these circumstances would . . . have felt free to leave after brief questioning. 16 Second is the justification for the use of such tactics, i.e., whether the officer 17 had sufficient basis to fear for [their] safety to warrant the intrusiveness of the action taken. This inquiry is undertaken . . . from the perspective of law 18 enforcement, while bearing in mind that the purpose of a [detention] is to 19 allow the officer to pursue [their] investigation without fear of violence.

20 United States v. Edwards, 761 F.3d 977, 981 (9th Cir. 2014); Lambert, 98 F.3d at 1188- 21 1189; United States v. Miles, 247 F.3d 1009, 1012 (9th Cir. 2001) (courts “allow 22 intrusive and aggressive police conduct without deeming it an arrest … when it is a 23 reasonable response to legitimate safety concerns.”); Haynie v. Cnty. of Los Angeles, 339 24 F.3d 1071, 1077 (9th Cir. 2003) (“a brief, although complete, restriction of liberty, such 25 26 27 28 1 as handcuffing, during a Terry stop is not a de facto arrest, if not excessive under the 2 circumstances.”) There is no bright-line rule. Lambert, 98 F.3d at 1185.5 3 First, Walker’s actions – grabbing Centeno’s arms to handcuff him without any 4 warning or explanation6 – significantly increased the intrusiveness of the detention and 5 severely restricted Centeno’s liberty. It is uncommon to use restrains like that during 6 routine investigative detentions. Florida v. Royer, 460 U.S. 491, 500 (1983) 7 (“investigative methods [used] should be the least intrusive means reasonably 8 available.”); Lambert, 98 F.3d at 1187 (“under ordinary circumstances, when the police 9 have only reasonable suspicion to make an investigatory stop, drawing weapons and 10 using handcuffs and other restraints will violate the Fourth Amendment.”); Meredith v. 11 Erath, 342 F.3d 1057, 1063 (9th Cir. 2003) (“circumstances which would justify a 12 detention will not necessarily justify a detention by handcuffing . . . more is required.”); 13 United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982) (“handcuffing 14 substantially aggravates the intrusiveness of an otherwise routine investigatory detention 15 and is not part of a typical Terry stop.”) After all, handcuffs are the hallmark of 16 traditional arrests (although not dispositive). See, e.g., Dunaway v. New York, 442 U.S. 17 200, 212 (1979); United States v. Juvenile (RRA-A), 229 F.3d 737, 743 (9th Cir. 2000) 18 (“we conclude that [the] handcuffing was the clearest indication that [they were] no 19 longer free to leave and therefore find it to be the point of arrest.”) 20 Officer Defendants do not set forth any concrete argument to justify grabbing 21 Centeno to handcuff him. (ECF 116 at 15:8-17); see, e.g., Royer, 460 U.S. at 500 (“it is 22 23 24 5 Although the Ninth Circuit often states the ultimate determination is whether a 25 reasonable person would feel free to leave after brief questioning, it uses a test that considers the justification for using restraints, etc. from the officer’s perspective. 26 Edwards, 761 F.3d at 981. 27 6 Although Walker stated, “Stop. You’re gonna be detained,” that would not alert a reasonable person as to the imminent use of restraints because such actions are 28 1 the [government’s] burden to demonstrate that the seizure it seeks to justify on the basis 2 of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the 3 conditions of an investigative seizure.”); United States v. Ricardo D., 912 F.2d 337, 340 4 (9th Cir. 1990) (“any overt show of force or authority should be justified under the 5 circumstances.”) Officer Defendants contend Walker grabbed Centeno’s arms prior to the 6 arrest and argue his resistance established probable cause to arrest him. Yet their 7 argument does not address any case law on using restraints during detentions (i.e., before 8 arrest). (ECF 116 at 15:8-17). 9 Before the detention, Centeno complied with Officer Defendants’ order to put 10 down the tool and answered their questions. Walker’s action of grabbing Centeno’s arms 11 to handcuff him, without any explanation, would lead a reasonable innocent person to 12 believe Walker decided to make an arrest and they were not free to leave after brief 13 questioning. Although Walker made a statement that Centeno would be “detained,” he 14 did not inform Centeno he would be released once the investigation was completed (e.g., 15 after determining ownership) or that he was being temporarily handcuffed for the 16 officer’s safety. See United States v. Johnson, 581 F.3d 994, 999 (9th Cir. 2009) (“even 17 after all three men were secured with handcuffs while the officers ran a background 18 check, the officers repeatedly reassured the suspects that the detention might be nothing 19 more than a misunderstanding and that its purpose was merely investigatory.”) And 20 again, Centeno was already detained at this point (i.e., Walker merely stated what had 21 already occurred). 22 Viewing the evidence in the light most favorable to Centeno and drawing all 23 reasonable inferences in his favor, once Walker grabbed Centeno’s arm to handcuff him, 24 the actions were sufficiently intrusive that a reasonable innocent person in Centeno’s 25 situation would not have felt free to leave after brief questioning. 26 Second, viewing the evidence in the light most favorable to Centeno and drawing 27 all reasonable inferences in his favor, there were no reasonable justifications for Walker’s 28 actions. United States v. $109,179 in United States Currency, 228 F.3d 1080, 1085 (9th 1 Cir. 2000) (“neither handcuffing a suspect nor relocating a suspect automatically turns a 2 detention into an arrest where these actions are reasonably taken for safety and security 3 purposes.”) 4 Officer Defendants outnumbered Centeno and surrounded him near the vehicle. 5 There is no evidence other individuals were in the immediate area or at risk. Centeno did 6 not attempt to flee or pose a flight risk. Centeno complied with Walker’s order to put 7 down the metal tool. Gallivan grabbed the tool and threw it out of reach. See, e.g., Torres 8 v. City of Madera, 648 F.3d 1119, 1126 (9th Cir. 2011) (reasonable juries can, taking the 9 totality of the circumstances into account, conclude that an officer’s poor judgment 10 caused them to act with undue haste). When Gallivan ordered Centeno to stay in place, he 11 complied. Centeno answered Officer Defendants’ questions even though he had no 12 obligation to do so. United States v. Lopez, 482 F.3d 1067, 1078 (9th Cir. 2007) (“apart 13 from disclosing one’s identity, a person detained by police has no general obligation to 14 answer questions or volunteer information.”) Officer Defendants do not contend they 15 were subject to any inherent risks due to the reported crime (vehicle break in). Although 16 Centeno had a ten-inch flashlight in his hand, Officer Defendants did not tell him to put it 17 down before Walker grabbed him and, per Walker’s declaration, he did not notice 18 Centeno was still holding the flashlight until after he grabbed his arms. To the extent 19 Defendants argue Centeno attempted to flee when he started to walk past Gallivan, that 20 argument is rejected. Centeno had no obligation to remain in place before Officer 21 Defendants detained him (i.e., he could walk away). See United States v. Mendenhall, 22 446 U.S. 544, 555 (1980). 23 Defendants characterize Walker grabbing Centeno’s arms to handcuff him as an 24 attempt to “detain” him. But Defendants also state Centeno made “a strange and 25 unsupported argument that [Officer Defendants] detained Centeno because he was 26 agitated. This is not correct.” (ECF 159 at 9). 27 28 1 And Defendants do not contend probable cause existed based on the reported 2 attempted vehicle break in. They contend it was Centeno’s resistance to Walker grabbing 3 his hands that established probable cause to arrest him. 4 Viewing the evidence in the light most favorable to Centeno and drawing all 5 reasonable inferences in his favor, a reasonable jury could conclude there was no need for 6 Walker to grab Centeno’s arms. Overall, a reasonable jury could conclude the detention 7 transformed into an arrest without probable cause when Walker grabbed Centeno’s arms 8 to handcuff him. 9 For the same reason, Walker is not entitled to qualified immunity on the unlawful 10 arrest claim. It would have been clear to any reasonable officer that Walker’s conduct 11 violated the Fourth Amendment. Intrusive means or restraints are only permissible during 12 detentions in “special circumstances.” Green v. City & Cnty. of San Francisco, 751 F.3d 13 1039, 1047 (9th Cir. 2014). Those circumstances are when: (1) a suspect is uncooperative 14 or takes action at the scene that raises a reasonable possibility of danger or flight, (2) 15 police have information that the suspect is armed, (3) the stop closely follows a violent 16 crime, or (4) police have information that a violent crime is about to occur. Id.; Lambert, 17 98 F.3d at 1189; United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987) (“the 18 use of force during a stop does not convert the stop into an arrest if it occurs under 19 circumstances justifying fears for personal safety.”); see Harlow v. Fitzgerald, 457 U.S. 20 800, 818-19 (1982) (“if the law was clearly established, the immunity defense ordinarily 21 should fail, since a reasonably competent public official should know the law governing 22 his conduct.”) 23 It is also well established that individuals may not be subjected to a de facto arrest 24 in the absence of probable cause. See Green, 751 F.3d at 1052. In the unlawful arrest 25 context, “the two prongs of the qualified immunity analysis can be summarized as: (1) 26 whether there was probable cause for the arrest; and (2) whether it is reasonably arguable 27 that there was probable cause for arrest—that is, whether reasonable officers could 28 disagree as to the legality of the arrest such that the arresting officer is entitled to 1 qualified immunity.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011) 2 (per curiam). But again, Defendants do not contend probable cause existed when Walker 3 initially restrained Centeno. 4 Because Walker’s conduct of grabbing Centeno’s arms transformed the detention 5 into an arrest, Gallivan is entitled to summary adjudication.7 The claim against Walker 6 survives summary judgment. 7 Even if Walker’s actions did not transform the detention into an arrest, the 8 unlawful arrest claim would survive summary judgment. 9 Officer Defendants argue they had probable cause to arrest Centeno under 10 California Penal Code section 148(a). That section makes it a misdemeanor to willfully 11 resist, delay, or obstruct any peace officer in the discharge of their lawful duties. 12 Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015). An arrest under 13 section 148(a)(1) requires probable cause to believe: (1) the defendant willfully resisted, 14 delayed, or obstructed a peace officer; (2) when the officer was engaged in the 15 performance of their duties; and (3) the defendant knew or reasonably should have 16 known the other person was a peace officer engaged in their duties. In re Muhammed C., 17 95 Cal. App. 4th 1325, 1329 (2002). “In California, the lawfulness of the officer’s 18 conduct is an essential element of the offense of resisting, delaying, or obstructing a 19 peace officer.” Smith v. Cty of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (en banc). That 20 is, it is not a crime to resist unlawful orders. Id.; Velazquez, 793 F.3d at 1019 (“a suspect 21 cannot be arrested for violating section 148 because he evaded an officer’s attempt to 22 arrest him unlawfully.”) “And, for the purposes of Section 148(a), an officer is not 23 lawfully performing [their] duties when [they] detain an individual without reasonable 24 suspicion or arrests an individual without probable cause.” Velazquez, 793 F.3d at 1019. 25 26 27 7 Centeno does not raise the “integral participant” doctrine as to Gallivan. Chuman v. 28 1 Specifically, Officer Defendants contend Centeno obstructed their performance of 2 lawful duties when he resisted Walker’s attempt to restrain him. But their argument as to 3 that is conclusory: “[Officer Defendants] were engaged in the performance of their lawful 4 duties when they attempted to detain Centeno in furtherance of their investigation of the 5 reported vehicle burglary.” (ECF 116 at 17). Officer Defendants also fail to explain or 6 cite evidence to support the contention that Walker attempted to handcuff Centeno so 7 they “could safely continue their investigation.” (Id. at 18). Regardless, given the 8 evidence discussed above, both arguments are unavailing. 9 Walker therefore failed to meet his initial burden because he neither (1) produced 10 affirmative evidence negating an essential element nor (2) demonstrated an absence of 11 evidence to support Centeno’s claim. That is, Walker failed to meet the burden as to 12 whether grabbing Centeno to handcuff him was lawful. See, e.g., People v. Stier, 168 Cal. 13 App. 4th 21, 27 (2008) (“generally, handcuffing a suspect during a detention has only 14 been sanctioned in cases where the police officer has a reasonable basis for believing the 15 suspect poses a present physical threat or might flee.”); In re Antonio B., 166 Cal. App. 16 4th 435, 442 (2008) (officer’s ‘policy’ of handcuffing any suspect he detains was 17 unlawful). 18 And it was clearly established that an officer cannot arrest an individual for 19 resisting unlawful actions. Smith, 394 F.3d at 695 (en banc); Velazquez, 793 F.3d at 1019. 20 Malicious Prosecution Claim 21 Centeno must show Officer Defendants initiated the criminal prosecution with the 22 intent to deprive him of equal protection or otherwise intended to subject him to a denial 23 of constitutional rights. Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985). He 24 provides no evidence to support this claim. Centeno also failed to cite any legal support 25 for the proposition that attending the court hearing constituted a seizure, and the Court is 26 aware of none. Officer Defendants are entitled to judgment as to this claim. 27 To the extent Centeno asserts a related claim under state law, it also fails because 28 Defendants are immune. Cal. Gov. Code §§ 821.6 (“a public employee is not liable for 1 injury caused by his instituting or prosecuting any judicial or administrative proceeding 2 within the scope of his employment, even if he acts maliciously and without probable 3 cause.”); 815.2 (“a public entity is not liable for an injury resulting from an act or 4 omission of an employee of the public entity where the employee is immune from 5 liability.”) 6 Excessive Force Claim 7 Centeno asserts an excessive force claim against Officer Defendants. They raise 8 qualified immunity as a defense. An officer’s force must be objectively reasonable under 9 the circumstances. Graham v. Connor, 490 U.S. 386, 396 (1989); Scott, 550 U.S. at 383. 10 To assess whether an officer’s actions were reasonable, courts must weigh “the nature 11 and quality of the intrusion on the individual’s Fourth Amendment interests against the 12 countervailing governmental interests at stake.” Graham, 490 U.S. at 396; Lowry v. City 13 of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (en banc). The Court assesses the 14 “reasonableness of a particular use of force from the perspective of a reasonable officer 15 on the scene,” not with hindsight. Graham, 490 U.S. at 396. 16 To determine the government’s interest at stake, the Court considers (1) the 17 severity of the crime at issue, (2) whether the suspect posed an immediate threat to the 18 safety of the officers or others, and (3) whether the suspect resisted arrest or attempted to 19 flee. Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc). The most important 20 factor is the second one. Isayeva, 872 F.3d at 947. The Court may also consider other 21 factors, including less intrusive alternatives and whether proper warnings were provided. 22 Id. 23 Because this analysis is fact-sensitive, summary judgment should be granted 24 sparingly. Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002); Green, 751 F.3d at 1049 25 (“the determination [as to] whether the force used to effect an arrest was reasonable under 26 the Fourth Amendment should only be taken from the jury in rare cases.”) 27 First, Centeno argues the takedown was excessive. But viewing the evidence in the 28 light most favorable to Centeno and drawing all reasonable inferences in his favor, 1 Centeno resisted Walker’s attempt to handcuff him (he pulled away, clenched his fists, 2 and leaned forward). Accordingly, Officer Defendants met their initial burden at the 3 summary judgment stage. No reasonable jury could conclude the force was excessive. 4 Centeno failed to provide any evidence to raise a genuine issue of fact as to this claim. 5 This is sufficient to grant Officer Defendants’ motion as to the takedown. Alternatively, 6 the motion is granted based on qualified immunity because Centeno failed to cite 7 precedent that would have put Officer Defendants on clear notice that taking him to the 8 ground under the circumstances was excessive. Reichle, 566 U.S. at 664; Donovan v. 9 Phillips, 685 F. App'x 611, 612-13 (9th Cir. 2017) (officer’s use of “control hold” when 10 plaintiff exited car by grabbing their wrist, and pulling their arm downward, causing them 11 to roll onto the ground was “relatively minimal” force).8 The Court grants the motion on 12 that portion. O’Doan v. Sanford, 991 F.3d 1027, 1037 (9th Cir. 2021). 13 The issue of excessive force is also raised as to Gallivan holding Centeno’s left 14 hand and placing his hand on Centeno’s neck with minimal pressure while on the ground. 15 Centeno failed to raise a genuine issue of material fact. And Gallivan is entitled to 16 summary adjudication. Alternatively, Centeno failed to cite precedent that would have 17 put Gallivan on clear notice that his force under the circumstances was excessive. 18 Lastly, the issue of excessive force is raised as to Walker’s knee strikes to 19 Centeno’s back. The knee strikes, under the circumstances, involved at least intermediate 20 force. Officer Defendants placed Centeno on his right side. During that time, Gallivan 21 held his left arm and had his other hand on Centeno’s neck. The video shows Officer 22 Defendants restrained Centeno’s movement. That posture could pose a challenge to 23 comply with the commands (i.e., placing right arm behind back while two officers hold 24 25 26 8 The Court’s determination on the unlawful detention and arrest claim is not dispositive 27 as to the excessive force claim. See Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (lack of probable cause does not establish an excessive force claim); Mattos, 28 1 the person down on their right side). The evidence also does not show Centeno posed a 2 safety or flight risk. The crime at issue was not severe (potential car burglary or 3 unfortunate locking of keys in car). And Walker did not warn Centeno that he would 4 perform the knee strikes. 5 Walker’s justification for the force is that Centeno had his right arm pinned under 6 his torso after Officer Defendants told him three times to place the arm behind his back. 7 But Centeno claims he did not resist Officer Defendants. Viewing the video in the light 8 most favorable to Centeno and drawing all reasonable inferences in his favor, Centeno 9 did not resist or refuse Officer Defendants’ commands while on the ground. Id. Under the 10 circumstances, as shown in the video, a reasonable jury could conclude Walker’s two 11 knee strikes were excessive.9 12 The Court must next determine “whether clearly established law prohibited 13 [Walker] from using the degree of force that he did in the specific circumstances that [he] 14 confronted.” O’Doan, 991 F.3d at 1037; see also Mullenix, 577 U.S. at 12. 15 Again, per Centeno, he did not resist Officer Defendants’ commands. The video is 16 consistent with this claim. It also shows Centeno held in a position that would make it 17 difficult to comply with the orders. Under that version of events, it would have been clear 18 to any reasonable officer that performing knee strikes was objectively unreasonable. 19 Blankenhorn, 485 F.3d at 480 (Plaintiff “claims he never pinned his arms underneath his 20 body. (The video does not clearly show whether he did so or not). Crediting [Plaintiff’s] 21 version of the events, as we must at a summary-judgment stage, we conclude that a 22 rational jury could find that if [Plaintiff] did not maneuver his arms beneath his body it 23 eliminated the need for any use of force to release them, and thus that [the officer’s] 24 punches were not reasonably justified by the circumstances as he claims.”); Vos, 892 F.3d 25

26 27 9 Given that, the Court has not addressed the parties’ arguments as to whether Walker struck Centeno with his knee more than twice. Centeno also does not argue the integral 28 1 at 1028; Rice v. Morehouse, 989 F.3d 1112, 1125 (9th Cir. 2021) (the “right to be free 2 from the application of non-trivial force for engaging in mere passive resistance” is well 3 established.); Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“officials can still be on notice 4 that their conduct violates established law even in novel factual circumstances.”) Walker 5 is not entitled to qualified immunity. The Court therefore denies the summary judgment 6 motion as to Walker’s knee strikes. 7 Monell Claim 8 “Municipalities may be liable under section 1983 for constitutional injuries 9 pursuant to (1) an official policy; (2) a pervasive practice or custom; (3) a failure to train, 10 supervise, or discipline; or (4) a decision or act by a final policymaker.” Horton v. City of 11 Santa Maria, 915 F.3d 592, 603-604 (9th Cir. 2019); Monell v. Dep’t. of Soc. Servs., 436 12 U.S. 658, 690 (1978); City of Canton v. Harris, 489 U.S. 378, 385 (1989) (requiring “a 13 direct causal link between a municipal policy or custom and the alleged constitutional 14 deprivation.”) That is, a municipality must have caused the constitutional violation. 15 Harris, 489 U.S. at 385. Centeno must “show deliberate action attributable to [Carlsbad] 16 that directly caused” the constitutional violation. Horton, 915 F.3d at 603 (emphasis 17 original). 18 Here, Carlsbad presented evidence as to its official policies that mirror the 19 constitutional requirements or restrictions on law enforcement activities. Centeno failed 20 to cite any official policy that caused the asserted constitutional violations. And he cannot 21 rely exclusively on his own incident to show Carlsbad had a long-standing custom. 22 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“liability for improper custom may 23 not be predicated on isolated or sporadic incidents.”) Centeno also failed to present any 24 evidence that Officer Defendants’ supervisor made a conscious, affirmative choice to 25 ratify their conduct, as opposed to a mere failure to overrule it. Lytle v. Carl, 382 F.3d 26 978, 987 (9th Cir. 2004); Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003); Hunter 27 v. Cnty. of Sacramento, 652 F.3d 1225, 1236 n.8 (9th Cir. 2011) (discussing law on 28 failure to investigate and discipline employees in the face of widespread constitutional 1 violations). There are no genuine issues of material fact as to the Monell claim and 2 Carlsbad is entitled to summary adjudication. 3 Bane Act Claim (California Civil Code Section 52.1) 4 Centeno asserts a Bane Act claim against Defendants related to the detention and 5 arrest. Centeno must show they made threats or engaged in coercion in addition to the 6 conduct inherent in the seizure. Lyall v. City of Los Angeles, 807 F.3d 1178, 1196 (9th 7 Cir. 2015); see also Allen v. City of Sacramento, 234 Cal. App. 4th 41 (2015) (“a 8 wrongful arrest or detention, without more, does not satisfy both elements of [the Bane 9 Act].”) Defendants showed there is no evidence to support that claim, and Centeno failed 10 to produce any evidence. Defendants are therefore entitled to summary adjudication as to 11 wrongful detention and unlawful arrest claim. 12 But based on the Court’s above determination as to Walker’s knee strikes, it rejects 13 Defendants’ argument on Centeno’s excessive force claim. (See ECF 116 at 27) (“the 14 elements of a Bane Act claim for excessive force are essentially identical to those of a § 15 1983 excessive force claim. . . . Therefore, because, in this case, plaintiff cannot maintain 16 a claim for excessive force under Section 1983, defendants are also entitled to summary 17 judgment as to plaintiff’s Bane Act claim, as a matter of law.”) The Bane Act claim 18 against Walker as to his knee strikes survives summary judgment. Defendants are entitled 19 to summary adjudication on the remaining portions.10 20 Punitive Damages 21 Officer Defendants moved for summary adjudication on Centeno’s request for 22 punitive damages. 23 A jury may award punitive damages under section 1983 if a defendant’s conduct 24 was driven by evil motive or intent, was malicious or oppressive, or when it involved a 25

26 27 10 Because Gallivan is entitled to summary adjudication as to the excessive force claim, the Court does not address his argument that the state law claim is time-barred under the 28 1 reckless or callous indifference to someone’s constitutional rights. Dang v. Cross, 422 2 F.3d 800, 809 (9th Cir. 2005); Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993). 3 It is subject to summary adjudication when the plaintiff fails to produce evidence raising 4 a material question of fact regarding aggravating circumstances. 5 Centeno failed to respond to Officer Defendants’ argument. The Court construes 6 that as a waiver or an abandonment. See Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th 7 Cir. 2000) (failure to raise argument in opposition to summary judgment constitutes 8 waiver); Image Technical Service, Inc. v. Eastman Kodak, 903 F.2d 612, 615 n.1 (9th Cir. 9 1990); Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005).11 The 10 Court therefore grants Defendants’ summary judgment motion as to the request for 11 punitive damages. 12 Centeno’s Summary Judgment Motion 13 Centeno failed to set forth evidence to support his claims against Defendants. 14 Centeno consequently failed to meet his “heavy burden” at the summary judgment stage. 15 Barnes, 889 F.3d at 538. The Court denies his motion for that reason. Alternatively, his 16 motion is denied because there are triable issues of material fact as to Centeno’s conduct 17 during the incident, including whether he resisted lawful restraints. Viewing the evidence 18 in the light most favorable to Defendants (as the opposing parties) and drawing all 19 reasonable inferences in their favor, a reasonable jury could conclude their actions were 20 lawful under the circumstances. The Court therefore DENIES Centeno’s motion. 21 Centeno also asks for leave to amend his complaint. Specifically, he seeks leave to 22 add an Americans with Disabilities Act claim. The Court incorporates its prior order that 23 denied a near identical request: The proposed claim relates to the same April 27, 2019, 24 police incident at issue in this excessive force lawsuit. There is no doubt Centeno knew 25 about the facts that support the ADA claim (e.g., Officer Defendants’ conduct during the 26

27 11 To the extent Centeno seeks punitive damages against Carlsbad, it is immune. City of Newport v. Fact 28 1 || arrest and Centeno’s disability) long before the deadline in the scheduling order. And 2 ||ignorance about the law, carelessness, or inaction does not show “good cause.” Johnson 3 || v. Mammoth Recreations, 975 F.2d 604, 608-609 (9th Cir. 1992). (ECF 166). The same is 4 || true for the proposed claim against the Carlsbad Police Chief and Carlsbad Mayor. The 5 || Court therefore DENIES Centeno’s request. 6 IV. CONCLUSION 7 For the above reasons, the Court DENIES Centeno’s motion in full. The Court 8 ||also DENIES Defendants’ motion as to the (1) section 1983 unlawful arrest claim against 9 || Walker, (2) section 1983 excessive force claim against Walker as to the knee strikes, and 10 Bane Act claim against Walker as to the knee strikes. In all other respects, the Court 11 ||} GRANTS Defendants’ motion. 12 IT IS SO ORDERED. 13 ||Dated: December 22, 2021

15 H . James Lorenz, 6 United States District Judge

17 18 19 20 21 22 23 24 25 26 27 28 22