Opinion
6:20-cv-00096-MK
07-15-2021
MICHAEL FRANCISCO, Plaintiff, v. CITY OF REDMOND; HANNAH COPELAND; and TIMOTHY WARBURG, Defendants
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael Francisco filed this action on behalf of his minor son, M.F., against Defendants Redmond Police Department (“RPD”) Officers Timothy Warburg and Hannah Copeland and the City of Redmond (the “City”; collectively “Defendants”). Plaintiff alleges a claim under 42 U.S.C. § 1983 for violating Plaintiffs Fourth Amendment rights to be free from unreasonable search and seizure. See Compl., ECF No. 1. Currently before the Court is Defendants' Motion for Summary Judgment. ECF No. 19. For the reasons that follow, Defendants' Motion should be GRANTED in part and DENIED in part.
BACKGROUND
Plaintiff is the father of M.F., a minor and student at Redmond Proficiency Academy (“RPA”). Grover Decl. Ex. 12 (“Francisco Dep.”) 7:12-13, ECF No. 29; see also Warburg Decl. Ex. 1 at 1, ECF No. 22. Defendants are RPD Officers Warburg and Copeland as well as the City. Def Mot. Summ. J. at 1, ECF No. 19. Officer Warburg also serves part-time as a School Resource Officer at RPA. Warburg Decl. at 1; Grover Decl. Ex. 15 (“Warburg Dep.”) 5:12-13, ECF No. 29.
On January 23, 2018, Officer Warburg, while on patrol, checked a vacant building near RPA where he had previously encountered students smoking and loitering. Warburg Decl. Ex. 1 at 1. Upon checking the southside stairwell, Officer Warburg discovered two RPA students, E.G. and M.F. Id. at 2. Officer Warburg smelled a “very strong odor of marijuana emanating from the bottom of the stairwell” where E.G. and M.F. were located. Id. When the students noticed Officer Warburg approaching, E.G. “quickly put an unknown object in a pink backpack” and M.F. “quickly put his hands in the front pockets of a gray sweatshirt he was wearing.” Id. Officer Warburg recognized M.F. from a prior encounter during which M.F. had suddenly ran out of class at RPA. Id. Officer Warburg ultimately “found M.F. in one of the hallways, breathing heavily.” Id. After Officer Warburg and the RPA Dean of Students spoke with him, M.F. “calmed down and said the stress of everything had just overwhelmed him briefly.” Id. M.F. subsequently returned to class. Id.
M.F. was fourteen years old on January 23, 2018. Jones Decl. Ex. 3 (“Francisco Dep.”) 8:20-23, ECF No. 20.
Officer Warburg testified this encounter provided him knowledge of M.F.'s “anxiety disorder which has caused [M.F.] to at times behave unpredictably.” Id. This “knowledge of M.F.'s possible mental health issues, and his physical size” led Officer Warburg to radio for back-up on January 23. Id; see also Grover Decl. Ex. 2 at 1, ECF No. 29. Around this time, Officer Warburg “told M.F. and E.G. to accompany [him] to [his] unit for further investigation.” Warburg Decl. Ex. 1 at 2. Upon arrival, M.F. and E.G. were told to stand by and place their backpacks on the trunk. Id.
The parties dispute M.F.'s size at the time of the January 23 arrest. Officer Warburg stated M.F. was 5' 11 and 230 lbs. Def's Mot. Summ J. 3 n.2, ECF No. 19. Plaintiff maintains that M.F. was 5'7 and 185 lbs. Pl.'s Mem. Opp'n Summ. J. 4 n.1, ECF No. 30. Given the parties respective burdens at this stage of the proceedings, the Court is required to view the facts in the light most favorable to Plaintiff. See Mattos v. Agarano, 661 F.3d 433, 451 (9th Cir. 2011) (“When all the material factual disputes are resolved in [the plaintiffs] favor and the evidence is viewed in the light most favorable to her, we conclude that she has alleged a Fourth Amendment violation.”) (emphasis added).
At this point, M.F.'s “anxiety was pretty high because [he] doesn't like cops.” Grover Decl. Ex. 13 (“M.F. Dep.”) 12:9-11, ECF No. 22. Officer Warburg asked M.F. and E.G. “if they had been smoking marijuana, ” and in response “[b]oth claimed the odor was already present in the stairwell when they got there a few minutes earlier.” Warburg Decl. Ex. 1 at 2. Shortly thereafter, Officer Warburg asked E.G. questions about the contents of her bag and E.G. replied that he “could search her backpack.” Id. Around this time, Officer Copeland arrived and began to search “the person of E.G.” Id.
As Officer Copeland attended to E.G., M.F. “began to walk away from [Officer Warburg's] unit.” Grover Decl. Ex. 2 at 1-2. Officer Warburg instructed M.F. to return to the unit. Id. After complying with Officer Warburg's instruction, “M.F. started to pace in circles, gradually getting further away from [the] unit.” Warburg Decl. Ex. 1 at 3. Officer Warburg “told M.F. not to walk away” and M.F. again returned to the unit. Id. Once more, M.F. “started to walk away, this time getting a little further away th[a]n he had the previous two times.” Id. However, M.F. was never more than five to fifteen feet away from the unit. M.F. Dep. 16:6-9; 21:11-16.
At this point, Officer Warburg “walked over to M.F.[, ] . . . took hold of his left elbow and started to physically walk him back to [the] unit.” Warburg Decl. at Ex. 1 at 3. M.F.'s hands remained in his sweatshirt's front pocket. See M.F. Dep. 17:19-23. Officer Warburg could see “M.F. was holding an object in one hand which [he] thought to be some kind of pipe.” Id. at Ex. 2 at 2.
In Officer Warburg's Initial Summary Narrative (“initial report”), he wrote that he “believed the object [M.F. was holding was] some kind of pipe.” Warburg Decl. at Ex. 1 at 3. He went on to write that “[i]n [his] mind, the object, which [he] only glimpsed briefly, could have also been a weapon.” Id. Officer Warburg subsequently testified he believed the object was a pipe because “it was about the size and shape of a pipe and in conjunction with the odor [he] was smelling, putting two and two together, so to speak, that's what [he] thought it to be.” Warburg Dep. 21:5-10.
Officer Warburg instructed M.F. to remove his hands; M.F. did not comply. Warburg Decl. Ex. 1 at 3. Officer Warburg then “tried to pull M.F.['s] arm toward [him] to prevent [M.F.] from destroying evidence and/or escaping.” Warburg Dep. 21:13-15. Officer Warburg told M.F. he would be handcuffed for Officer Warburg's safety. Warburg Decl. Ex. 1 at 3.
M.F. responded “You can't do that!” and tried to twist away from [Officer Warburg].” Id. Officer Copeland observed M.F. and Officer Warburg struggle and attempted to pull M.F.'s arm behind his back. Id; see also Jones Decl. Ex. 4 at 3-4. Defendants “Copeland and [Warburg] both gave M.F. several commands to stop resisting and to put his hands behind his back.” Warburg Decl. Ex. 1 at 3. M.F. testified that with both officers holding his arms, “[he] couldn't get [his] hands out of [his] pocket even if [he] was going to comply[.]” See Grover Decl. Ex. 13 (“M.F. Dep.”) 30:18-31:4, ECF No. 29. M.F. further testified that during this time his arms were “tensing” up, “just like not letting [Officer Warburg] do anything to [him], ” and that he was “not doing anything either.” Id. at 31:9-11.
The parties dispute the events that transpired next. Defendants maintain that Officer Copeland “removed her Taser and warned M.F. that he would be tased if he did not stop resisting.” Warburg Decl. Ex. 1 at 3. M.F., however, did not recall hearing any such warning. M.F. Dep. 65:18-25, ECF No. 29. Ultimately, Officer Copeland deployed her Taser in M.F.'s back, in “drive-stun” mode for 5 seconds while Officer Warburg simultaneously “conducted a front sweep kick of his left foot and pulled him face forward to the ground.” Warburg Decl. Ex. 1 at 3 (“Copeland then deployed her taser into M.F.'s back, while at about the same time I conducted a front sweep kick of his left foot and pulled him face forward to the ground.”); Copeland Decl. Ex. 1 at 1, ECF No. 21. (“I deployed my taser again on M.F.['s] back and Officer Warburg and I assisted him to the ground in a prone position.”); Jones Decl. Ex. 1 at 24; Ex. 4 at 6.
Plaintiff contends Officer Copeland used her Taser a total of three times. See M.F. Dep. 63:16-24; 64:10-13. Officer Copeland's recollection of events both contemporaneously and during her deposition testimony indicate she deployed her taser three times. Grover Decl. Ex. 6 at 1-2 (“Suppl. Copeland Report”) (“I deployed taser again on [M.F.'s] back . . .”) (“I deployed my taser one more time in [an attempt to get M.F.] to release his arms and bring them behind his back.”); see also Grover Decl. Ex. 14 (“Copeland Dep.”) 21:3-22:13.
Defendants strenuously assert that Officer Copeland tased M.F. a single time. Def's Mot. Summ. J. 8. In raising the argument, Defendants rely on a “computer generated Taser report, ” that shows a single discharge and M.F.'s deposition testimony suggesting M.F. was not tased after being taken to the ground. Id. Plaintiff disputes the accuracy of that report. Pl.'s Opp'n 8-9. At this stage of the proceedings, the Court is required to view the facts in the light most favorably to Plaintiff and a reasonable jury could conclude that the report was inaccurate based on Officer Copeland's contemporaneous report and deposition testimony. Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (“If the evidence, reviewed in the light most favorable to [the plaintiff], could support a finding of excessive force, then the defendants are not entitled to summary judgment.”). As to whether M.F. was tased while on the ground, the record evidence is muddled at best. In response to being asked M.F. remembered being tased any time after he was taken to the ground, he responded “No. I -- yeah, no.” M.F. Dep 71:12-14. Officer Copeland testified that she “recalled pulling the trigger” to her taser a third time while M.F. was on the ground. Copeland Dep. 34:14- 19. As such, for purposes of resolving the pending motion, the Court must resolve this factual conflict in Plaintiff's favor and therefore assumes M.F. was tased additional times after being taken to the ground.
M.F. was arrested for resisting arrest in violation of Oregon Revised Statute (“ORS”) § 162.315, and issued a citation for being a minor in possession of marijuana in violation of ORS § 475B.260. Grover Decl. Ex. 5 at 4, ECF No. 29.
At the time of the arrest, RPD had written policies in place providing officers with guidelines on the use of force. Grover Decl. Ex. 8 at 1, ECF No. 29. One such policy, 300.3-Use of Force, provided that “[o]fficers shall use only that amount of force that reasonably appears necessary given the facts and circumstances perceived by the officer. . . to accomplish a legitimate law enforcement purpose.” Id. In addition, RPD policies provided that “[a]n officer is justified in using force upon another person only when and to the extent that the officer reasonably believes it necessary, ” to either “[m]ake an arrest or to prevent the escape from custody of an arrested person unless the officer knows that the arrest is unlawful” or “for self-defense or to defend a third person from what the officer reasonably believes to be the use or imminent use of force while making or attempting to make an arrest or while preventing or attempting to prevent an escape.” Id. at 2. Furthermore, RPD policies provided five relevant factors used to determine the reasonable use of force: (1) the “immediacy and severity of the threat to officers or others, ” (2) officer and subject factors such as “age, size, relative strength . . . the number of officers available vs. subjects, ” (3) “obvious juveniles, ” (4) “prior contacts with the subject or awareness of any propensity for violence, ” and (5) the “seriousness of the suspected offense or reason for contact with the individual.” Id. at 2-3.
Similarly, Policy 304.5.1-Application of the Taser Device, provided officers with guidelines on the use taser devices. Grover Decl. Ex. 9 at 2, ECF No. 29. The policy stated that an officer's taser device “[i]s intended to control a violent or potentially violent individual, while minimizing the risk of serious injury.” Id. at 1. Moreover, the application of the taser device should only come after “a verbal warning of the intended use of the taser device . . . .” Id. However, the policy required officers to consider certain limitations and restrictions before using the taser device. Id. at 2. Specifically, the policy stated officers may use their taser device “[w]hen the circumstances perceived by the officer . . . indicate that such application is reasonably necessary to control a person [when] the subject is violent or physically resisting and the subject has demonstrated, by words or action, an intention to be violent or to physically resist, and reasonably appears to present the potential to harm officers . . . .” Id. Also, the policy provided officers with special deployment considerations, providing that officers should generally avoid using the taser device, “unless the totality of the circumstances indicates that other available options reasonably appear ineffective or would present greater damage to the officer . . . and the officer reasonably believes that the need to control the individual outweighs the risk of the device.” Id. Such special deployment considerations, as relevant here, included assessing whether a subject was an obvious juvenile. Id. at 2-3.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec, 809 F.2d at 630.
DISCUSSION
This dispute centers on whether Defendants violated M.F.'s constitutional right to be free from excessive force and whether the City's use of force policy violates the Constitution. Defendants argue that they are entitled to summary judgment because (1) Officers Copeland and Warburg did not use excessive force in tasing M.F.; or, alternatively, are entitled to qualified immunity; and (2) Plaintiff s Monell claim fails as a matter of law.
I. Excessive Force Claim
“Fourth Amendment excessive force claims are examined under the reasonableness standard and the framework outlined by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989).” Price v. City of Sutherlin, 945 F.Supp.2d 1147, 1155 (D. Or. 2013) (citation omitted). In evaluating a claim of excessive force, the critical question “is whether the use of force was objectively reasonable in light of the facts and circumstances confronting the . . . officer.” Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) (citation and internal quotations omitted).
Courts assess the '"nature and quality of the intrusion' on a person's liberty with the ‘countervailing governmental interests at stake' to determine whether the use of force was objectively reasonable under the circumstances.” Smith, 394 F.3d at 701 (quoting Graham, 490 U.S. at 396).
This analysis requires courts to weigh the government interest by considering: (1) the severity of the crime at issue; (2) whether the individual posed an immediate threat to the safety of the officers or others; and (3) whether the individual actively resisted arrest. Graham, 490 U.S. at 396; see also Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994) (court must “look to whatever specific factors may be appropriate in a particular case, whether or not listed in Graham”).
In addition to the factors mentioned above, courts may consider the reasonableness of officers use of force in light of whether officers knew that an individual was mentally unstable. See Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001) (“The problems posed . . . by an unarmed, emotionally distraught individual who is creating a disturbance . . . are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal . . . . In the former instance, increasing the use of force may . . . exacerbate the situation.”).
Because excessive force claims “almost always turn on . . . credibility determinations” and “nearly always requir[e] a jury to sift through disputed factual contentions, ” summary judgment is rarely warranted. Smith, 394 F.3d at 701 (citation and internal quotations omitted).
A. Type and Amount of Force
Turning first to the type and amount of force inflicted, Defendants urge the Court to find that the use of a taser in drive-stun mode is categorically less than intermediate force. Def.'s Mot. Summ. J. 10-11 (citing Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010)). Essentially, Defendants argue that because Bryan found the use of a taser in “dart-mode” constituted “an intermediate, significant level of force, ” that “[i]t logically follows that deploying a Taser in drive-stun mode constitutes something less than an intermediate level of force.” Id. at 11.
“When a taser is used in drive[-]stun mode, the operator removes the dart cartridge and pushes two electrode contacts located on the front of the taser directly against the victim.” Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011). When a taser is used in dart-mode it “uses compressed nitrogen to propel a pair of ‘probes' . . . toward the target” and “[u]pon striking a person, the [taser] delivers a 1200 volt, low ampere electrical charge[.]” Id.
The Ninth Circuit, however, has rejected a similar argument, at least implicitly. In Brooks v. City of Seattle, a panel majority initially held that tasing an individual in drive-stun mode “presented] a less-than-intermediate use of force” as a matter of law and thus concluded that the police officer's use of a taser in drive-stun mode did “not amount to a constitutional violation.” Brooks v. City of Seattle, 599 F.3d 1018, 1030-31 (9th Cir. 2010), on reh 'g en banc sub nom. Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011); see also Brooks, 599 F.3d at 1037 (criticizing the panel majority for distinguishing between tasers in dart-mode and drive-stun mode) (Berzon, J., dissenting).
The en banc Ninth Circuit, however, declined to craft such a broad per se rule. Instead, the court concluded that “the record [was] not sufficient . . . to determine what level of force is used when a taser is deployed in drive-stun mode.” Mattos, 661 F.3d at 443. Similarly here, the Court declines to hold that the use of a taser in drive-stun mode is categorically less than an intermediate force. Rather, consistent with Mattos, the Court will “assess the reasonableness of the tasing” under the circumstances. Id.
The Court notes, however, that the use of a taser, even in drive-stun mode, is far from a trivial application of force particularly in this case where Plaintiffs reaction was significant enough for Officer Copeland to call paramedics because she though M.F. was having a seizure.Copeland Decl. Ex. 1 at 2, ECF No. 21; see also Kaady v. City of Sandy, 2008 WL 5111101, *16 (D. Or. Nov. 26, 2008) (noting that while non-lethal, “being shocked by a Taser is a painful experience [and therefore] constitutes an intermediate level of force and a significant intrusion on a victim's Fourth Amendment rights”) (citations omitted); see also Bryan, 630 F.3d at 824-26 (“[t]he physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that [Tasers] constitute an intermediate or medium, though not insignificant, quantum of force”) (citations and internal quotations omitted).
Defendants highlight that (1) Plaintiff did not sustain injuries that required medical attention and (2) the fact that Plaintiff suffered no long-term medical consequences as a result of the application of force. Significantly, however, Defendants do not direct the Court to-and the Court is unaware of-authority, indicating that sustained injuries requiring long-term medical attention are necessary prerequisites to maintaining an excessive force claim.
Viewing the facts in the light most favorable to Plaintiff, Officer Copeland tased Plaintiff multiple times. At a minimum, the record reflects that Officer Copeland deployed her Taser in M.F.'s back, in “drive-stun” mode for 5 seconds concurrent with Officer Warburg's “front sweep kick of [M.F.'s] left foot and pulled him face forward to the ground.” Warburg Decl. Ex. 1 at 3; Copeland Decl. Ex. 1 at 1.
B. Severity of the Crime at Issue
Turning next to the governmental interests at stake, the Court finds that all three Graham factors weigh in Plaintiffs favor. First, in Officer Warburg's initial report, he indicated that he booked M.F. for resisting arrest, issued a citation for minor in possession of marijuana, and requested a charge of criminal trespass II. Grover Decl. Ex. 5 at 4. Each of these alleged crimes, while violations of the law, “are not serious offenses.” Mattos, 661 F.3d at 444. See e.g., Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007) (noting that trespassing and obstructing a police officer were not severe crimes); Price v. Roseburg Police Dep t , No. 6:15-cv-01114-JR, 2017 WL 4287216, at *5 (D. Or. June 21, 2017) (concluding potential crimes were non-severe where “[i]t was unlikely being cited with any of these offenses would result in a felony charge or jail time, and none were violent crimes”), adopted, 2017 WL 4287197 (D. Or. Sept. 27, 2017).
Defendants acknowledge the crimes at issue were not severe, but argue instead M.F. posed a significant threat because he “was physically and violently resisting his arrest . . . .” Def.'s Mot. Summ. J. 12-13. The argument is unavailing because it confuses the first and second factors under Graham. Moreover, the significance of any potential threat was lessened by the fact that M.F. was outnumbered by law enforcement officers who had taken hold of both of M.F.'s elbows. Warburg Decl. at Ex. 1 at 3; see also Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) (significance of plaintiff s alleged crimes lessened by the fact that he “was completely surrounded by the police, and that the prospects for his imminent capture were far greater than are those of the many fleeing suspects who are fleeter than the police officers chasing them”). As such, “[u]nder these circumstances, the nature of the crime at issue provides little, if any, basis for the officers' use of physical force.” Smith, 394 F.3d at 703.
C. Potential Safety Threat
Second, “and most importantly, ” the summary judgment record does not establish that M.F. posed an immediate threat to the safety of the officers or the public as a matter of law. Price, 945 F.Supp.2d at 1156 (citation and internal quotations and brackets omitted). A “simple statement by the officer that he fears for his safety or the safety of others is not enough” to establish a safety threat; rather, “there must be objective factors to justify such a concern.” Deorle, 272 F.3d at 1281. Put differently, while the possibility that an individual has a weapon is a cause for concern, an officer must articulate objective factors that suggest a potential weapon poses a threat. Compare Miller v. Clark County, 340 F.3d 959, 964-65 (9th Cir. 2003), and Saman v. Robbins, 173 F.3d 1150, 1156 (9th Cir.1999), with Beaver v. City of Federal Way, 507 F.Supp.2d 1137, 1146 n.8 (W.D.Wash. 2007).
Defendants assert that because “Officer Warburg did not know if the object in M.F.'s hand was a weapon or contraband” M.F. posed an immediate threat to officers. Def.'s Mot. Summ. J. 13. That assertion, however, conflicts with both Officer Warburg's initial report and his subsequent deposition testimony in which he explained that he perceived the object in M.F.'s hand “to be some kind of pipe.” Warburg Decl. Ex. 1 at 3; Warburg Dep. 20:25-21:12. Defendant Warburg's initial report explained the basis for his conclusion that M.F. was holding a pipe:
I started to remove M.F.'s left hand from his pocket, and when I did so, I could see a what looked like a white cylindrical object protruding from his hand. I believed the object to be some kind of pipe, but I was not completely sure.Warburg Decl. Ex. 1 at 3; see also Warburg Dep. 21:5-10 (explaining that Warburg believed the object was pipe based on “the size and shape of a pipe and in conjunction with the odor [he] was smelling”).
Defendant's rely on the next sentence of the report: “In my mind, the object, which I only glimpsed briefly, could also have been some kind of weapon.” Id. That speculative conjecture, however, is insufficient to establish as matter of law that M.F. was a threat to officer safety. See Deorle, 272 F.3d at 1281 (“a simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern”). In other words, Officer Warburg could have articulated facts in his report that formed a basis for a conclusion that he believed the object in M.F.'s hand was a weapon, but he did not do so here. Moreover, Defendants have failed to direct the Court to evidence that Officer Copeland-the individual who actually tased M.F-had a concern about a potential weapon. On this record, a jury could reasonably conclude that M.F. did not pose an immediate threat to Defendants.
Defendants' reliance on M.F.'s subjective belief as to whether it would have been reasonable for Officer Warburg to conclude he was holding a weapon, as well as E.G.'s subjective opinion regarding M.F. at the scene, are not relevant to the Court's objective assessment of the reasonableness of Defendants' use of force. See Price, 945 F.Supp.2d at 1155 (“The inquiry turns on whether the officer's actions are ‘objectively reasonable' in light of the facts and circumstances confronting him . . . .”).
D. Resistance
Next, the Court must assess whether M.F. was “actively resisting arrest or attempting to evade arrest by flight, and any other exigent circumstances that existed at the time of the arrest.” Mattos, 661 F.3d at 445. It is well-established, however, that noncompliance alone “does not constitute active resistance.” Kaady, 2008 WL 5111101 at *18.
Here, although Defendants assert that M.F. was “actively resisting officers” and it was therefore “objectively reasonable for Officer Warburg to believe M.F. was also attempting to flee, ” questions of fact remain as to this Graham factor. Although M.F. complied with each of Officer Warburg's orders up to the instruction to remove his hands from his sweatshirt pocket, there is evidence in the record that when Officer Copeland walked over to M.F. and took hold of his left elbow and began to physically walk him back to the unit, M.F. tensed his arms and pulled his left arm away from Officer Copeland. Warburg Decl. Ex. 1 at 3; see also Copeland Decl. Ex. 1 at 1.
A reasonable jury could conclude that M.F. “engaged in some resistance to arrest”; however, such a conclusion does not preclude a finding that an officer's use of force was excessive. See Mattos, 661 F.3d at 446 (finding the plaintiff “actively resisted arrest insofar as she refused to get out of her car when instructed to do so and stiffened her body and clutched her steering wheel to frustrate the officers' efforts to remove her from her car” but nevertheless concluding a reasonable factfinder could conclude the use of force was unreasonable). The Court notes, however, that the initial reports produced by Officers Copeland and Warburg do not suggest that M.F. was engaged in violent resistance. Moreover, to the extent Defendants argue M.F. was attempting to flee, the Court is unpersuaded given: (1) that M.F. had a law enforcement officer draped on each arm; (2) “no other exigent circumstances [existed] at the time, ” Mattos, 661 F.3d at 445; and (3) Officer Warburg knew M.F. and knew where to find him in the event he escaped.
E. Additional Factors
Additional factors weigh in Plaintiffs favor. For instance, although there is evidence in the summary judgment record indicating that Officer Copeland warned M.F. before deploying her taser, see Warburg Dep. 25:11-15, ECF No. 29, M.F. testified that he had no recollection of a such a warning. M.F. Dep. 69:9-13, ECF No. 29. While the failure to warn, alone, is insufficient to establish liability, it does support a finding that such force was not objectively reasonable. See Bryan, 630 F.3d at 831 (citations omitted). Further, as noted, Officer Warburg was familiar with M.F. and would have known how and where to locate him in the event he ultimately fled and was aware M.F. had anxiety issues. Warburg Dep. 13:8-14:12, ECF No. 29.; cf. Deorle, 272 F.3d at 1283 (“where it is or should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor that must be considered”).
In sum, taking the evidence in the light most favorable to M.F., a reasonable fact-finder could conclude the officers' use of force was unreasonable and therefore constitutionally excessive. Mattos, 661 F.3d at 445-46 (concluding a reasonable factfinder could conclude being tased in drive-stun mode was constitutionally excessive where the plaintiff “did not pose an immediate threat to the safety of the officers or others, ” despite the fact that she “actively resisted arrest insofar as she refused to get out of her car when instructed to do so and stiffened her body and clutched her steering wheel to frustrate the officers' efforts to remove her from her car”).
F. Whether the Right Was Clearly Established
The United States Supreme Court has described the qualified immunity doctrine as follows:
The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citations, internal quotation marks omitted).
The analysis of whether a government official is entitled to qualified immunity is a two-step inquiry. Saucier v. Katz, 533 U.S. 194, 201 (2001). “First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right.” Pearson, 555 U.S. at 232 (citations omitted). Second, “the court must decide whether the right at issue was ‘clearly established' at the time of defendant's alleged misconduct.” Id. (quoting Saucier, 533 U.S. at 201).
Following Pearson, courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 236. That approach, however, is not without criticism. See Joanna C. Schwartz, After Qualified Immunity, 120 Colum. L. Rev. 309, 318 (2020) (“Commentators observe that when courts grant qualified immunity without first ruling on the scope of the underlying constitutional right . . . [it] often leave[s] important, recurring, and non-fact-bound constitutional questions needlessly floundering in the lower courts . . . particularly acute for constitutional claims regarding novel practices and technologies, like Tasers and drones, for which there are few pre-Pearson decisions, and it can take many cases over many years for circuits to issue clarifying rulings.”) (citation and quotation marks omitted).
A right is clearly established if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and internal quotations omitted). “[Officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. at 741. The dispositive inquiry is whether the officers had “fair warning” that the force used was excessive. Id. at 740 (citation omitted); see also Mullenix v. Luna, 577 U.S. 7, 12 (2015) (“[w]e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate”) (citation and internal quotations omitted).
As discussed above, a reasonable factfinder could conclude that Defendants violated M.F.'s constitutional rights when they tased him to the ground. Therefore, for purposes of the Court's qualified immunity analysis, the Court assumes a constitutional violation and proceeds to the second prong of the qualified immunity analysis.
Here, Defendants would have had “fair warning” that tasing an individual-who had not committed a serious offense and “engaged in some resistance” but posed no real safety threat to officers-would violate the Constitution based on the Ninth Circuit's decision in Mattos. 661 F.3d at 445-46; see also Kaady, 2008 WL 5111101 at *19-21 (“police officers had reasonable notice that they may not use a Taser against an individual suspect who does not pose a threat and has merely failed to comply with commands”). Cf. Byam v. Cain, No. 2:18-cv-1030-SI, 2019 WL 3779508, at *3 (D. Or. Aug. 12, 2019) (“Ninth Circuit precedent clearly establishes that using a taser in dart[-]mode against an individual who does not pose an ‘immediate threat to the safety of the officers or others' is a constitutional violation.”); Price v. City of Sutherlin, 945 F.Supp.2d 1147, 1157 (D. Or. 2013) (“Viewing the facts in the light most favorable to plaintiff, a reasonable officer would have had ‘fair warning' that the use of painful, albeit non-lethal, force to restrain or subdue a non-threatening, nonresistant, unarmed suspect was excessive.”) (citations omitted); Turner v. City of Los Angeles, 2020 WL 4284970, at *7 (CD. Cal. July 24, 2020) (“In sum, by 2017, it was sufficiently clear that the tasing, let alone repeated tasing, of a suspect who was face down on the ground with three officers on top of him was an excessive use of force.”).
Accordingly, the Court should find that Defendants are not entitled to qualified immunity and their motion for summary judgment should be denied.
II. Monell Liability
There are three methods by which a plaintiff may establish municipal liability under Monell v. Dep 't of Soc. Servs., 436 U.S. 658, 690-91 (1978). First, a local government may be liable where the “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflict[s] the injury.” Rodriguez v. City of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018) (quoting Monell, 436 U.S. at 694). Second, a local government can fail to train employees in a manner that amounts to “deliberate indifference” to a constitutional right, such that “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [government entity] can reasonably be said to have been deliberately indifferent to the need.” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). Third, a local government may be held liable if “the individual who committed the constitutional tort was an official with final policy-making authority or such an official ratified a subordinate's unconstitutional decision or action and the basis for it.” Id. at 802-03 (quoting Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097 (9th Cir. 2013)). The first method is relevant here. See Board of Cnty. Comm 'rs of Bryan Cnty. v. Brown, 520 U.S. 383, 407-08 (1997) (local government units may be liable if policy or custom caused a constitutional violation).
For municipal liability to attach to a “policy or custom” constitutional violation, a plaintiff must show the violation was: (1) “pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity”; and (2) that the policy was “the cause in fact [and] proximate cause of the constitutional deprivation.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), modified on other grounds by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). Municipal liability “may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino, 99 F.3d at 918. In other words, an unwritten policy or custom must be so “persistent and widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)). Further, a “municipality may be held liable when execution of a government's policy or custom . . . inflicts the injury.” Los Angeles Cty v. Humphries, 562 U.S. 29, 36 (2010) (emphasis added; quotation marks omitted).
Plaintiff broadly argues that the City's policies are unconstitutional because they “set no hard-limits on officers' authority to use force-under the circumstances presented here and in cases such as Mattos [] where courts have set constitutional limits on officers' use of force.” Pl.'s Opp'n 14-15. The argument, however, fails to present evidence sufficient to create an issue of fact giving rise to traditional Monell liability. Edgerly v. City & Cty. of San Francisco, 599 F.3d 946, 960 (9th Cir. 2010) (“liability attaches only where the entity's policies evince a ‘deliberate indifference' to the constitutional right and are the “moving force behind the constitutional violation”); Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (explaining that the nonmoving party must go beyond the pleadings and designate facts showing a triable issue); Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (“A single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or custom.”); Davis v. Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989) (manner of one arrest insufficient to establish policy).
To the extent Plaintiff could argue the policies are facially unconstitutional, that theory fails to withstand summary judgment as well. The Ninth Circuit has explained:
[A] policy may be facially unconstitutional, like a city's policy of discriminating against pregnant women in violation of the Fourteenth Amendment. Or the constitutional violation may be the result of a direct order from a policymaking official, like a policymaker's order to its employees to serve capiases in violation of the Fourth Amendment.Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1144-45 (9th Cir. 2012) (citation, quotation, and footnotes omitted). Despite the fact that the individual officers potentially violated the Constitution in applying the policies at issue here, on their face the policies do not explicitly violate the Constitution. In other words, the policies themselves do not direct law enforcement to repeatedly tase unarmed individuals accused of non-serious offenses. As such, Plaintiff's Monell claim lacks merit.
RECOMMENDATION
For the reasons discussed above, Defendants' motion for summary judgment (ECF No. 19) should be GRANTED as to Plaintiff's Monell claim but DENIED in all other respects.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed. R. Civ. P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).