Ruiz v. City of Sacramento

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- [11] 12 DANIEL GARZA, JOSHUA RUIZ, No. 2:20-cv-01229 WBS JDP ELISABETH CROUCHLEY, STEVEN 13 PASSAL, RUSSELL VREELAND, ANTHONY PIRES, JOHN RUFFNER, and 14 JENNIFER LORET DE MOLA, on ORDER RE PLAINTIFFS’ MOTION behalf of themselves and a class FOR CLASS CERTIFICATION 15 of similarly situated persons, 16 Plaintiffs, 17 v. 18 CITY OF SACRAMENTO, SACRAMENTO POLICE DEPARTMENT, DANIEL HAHN, 19 and DOES 1 to 225, 20 Defendants. [21] 22 ----oo0oo---- 23 Plaintiffs Daniel Garza, Joshua Ruiz, Elisabeth 24 Crouchley, Steven Passal, Russell Vreeland, Anthony Pires, John 25 Ruffner, and Jennifer Loret de Mola (“plaintiffs”) brought this 26 putative class action against defendants City of Sacramento (the 27 “City”), Sacramento Police Department, Daniel Hahn, and Does 128 225 (collectively, “defendants”) alleging violations of 1 constitutional, statutory, and common law rights based on 2 Sacramento police and other law enforcement officers’ use of 3 “less-lethal” impact weapons against them during protests on May 4 30 and 31, 2020. (See First Am. Compl. (“FAC”) (Docket No. 4).) 5 Specifically, in the operative complaint, plaintiffs assert both 6 individual and class-wide claims for (1) excessive force under 7 the Fourth Amendment to the United States Constitution; 8 (2) excessive force under the Fourteenth Amendment to the United 9 States Constitution; (3) retaliation under the First Amendment to 10 the United States Constitution; (4) violation of equal protection 11 under the Fourteenth Amendment to the United States Constitution, 12 (5) violation of the Rehabilitation Act, 29 U.S.C. § 701 , et 13 seq.; (6) violation of the Americans with Disabilities Act, 42 14 U.S.C. § 12101 , et seq.; (7) excessive force under Article I, 15 Section 13 of the California Constitution; (8) excessive force 16 under Article I, Section 7(a) of the California Constitution; 17 (9) retaliation under the California Constitution; (10) violation 18 of equal protection under the California Constitution; 19 (11) violation of the Tom Bane Act, Cal. Civ. Code § 52.1 ; 20 (12) assault and battery; (13) intentional infliction of 21 emotional distress; and (14) negligence. (Id. at ¶¶ 194-296.) 22 Plaintiffs now move for certification of a class 23 defined as: 24 All persons present on May 30, 2020, and May 31, 2020, at the demonstrations in downtown Sacramento, who were 25 injured by less-lethal impact weapons, referred to as “beanbag rounds,” “baton rounds,” or “rubber bullets,” 26 fired by Sacramento Police Department’s officers and/or mutual aid partners. [27] 28 (Mot. at 10 (Docket No. 13-1).) 1 I. Factual and Procedural Background1 2 On May 26, 2020, a white Minneapolis police officer 3 killed George Floyd, a black man, sparking nationwide protests. 4 (FAC at ¶¶ 21, 23-24.) These included protests that occurred in 5 Sacramento on May 30 and May 31, 2020. (Id. at ¶¶ 26-164.) 6 Plaintiffs were each present at these protests at varying times, 7 at varying locations in the city, and in varying capacities -- as 8 protesters, as legal observers, or as bystanders. (See id.) For 9 example, plaintiff Garza was present on May 30, acting as a legal 10 observer, and travelled from I Street and 7th Street to 21st 11 Street, and plaintiff Ruiz was present on May 31 while “attending 12 a demonstration occurring in downtown Sacramento near Capitol 13 Avenue and L street.” (Id. at ¶¶ 26-44, 79.) Multiple 14 plaintiffs were present in “the early hours of May 31, 2020 . . . 15 in downtown Sacramento” on J street between 13th Street and 21st 16 Street, while “attending a demonstration,” while “present at a 17 demonstration,” while “observing a demonstration,” or while 18 “present near a demonstration.” (Id. at ¶¶ 90, 103, 113, 118, 19 136, 153.) 20 At varying points while at or near the protests, 21 plaintiffs were each struck at least once by a projectile weapon 22 fired by Sacramento police officers. Plaintiff Garza was shot by 23 Defendant Doe 2 at approximately 2100 J Street, after observing 24 that another person had thrown an object toward the police line 25 that had formed there, and was shot again by one or more of 26 Defendants Doe 1 through 25 while he was seeking medical [27] 1 All facts recited herein are as alleged in the First 28 Amended Complaint. 1 attention in a nearby parking lot. (Id. at ¶¶ 45-55, 62-70.) He 2 sustained a concussion from having been shot in the head, 3 continues to experience pain and swelling in the part of his face 4 where he was shot, and has since experienced difficulties with 5 his memory and cognition. (Id. at ¶¶ 58, 77-78) 6 Plaintiff Ruiz was shot multiple times by one or more 7 of Defendants Doe 26 through 50 near Capitol Avenue and L Street, 8 after those defendants “began indiscriminately to fire their 9 weapons into the crowd of protestors.” (Id. at ¶¶ 79-84.) He 10 sustained several cuts and bruises, as well as lacerations to his 11 liver from the impact of defendants’ weapons, and continues to 12 experience pain from his injuries. (Id. at ¶¶ 87-88.) 13 Plaintiff Crouchley was shot six times from behind by 14 one or more of Defendants Doe 51 through 75 near 20th Street and 15 J Street. (Id. at ¶¶ 90-97.) She was struck while running away 16 from officers who had begun shooting at other protestors, with 17 her hands above her head, after she saw that others had been 18 shot. (Id. at ¶¶ 93-97.) She sustained a laceration to the back 19 of her head, requiring two staples to close the wound, as well as 20 severe bruising. (Id. at ¶¶ 99, 101.) 21 Plaintiff Passal was not involved in a demonstration 22 but rather was merely observing one, near 21st Street and J 23 Street. (Id. at ¶¶ 103, 106.) While watching a standoff between 24 demonstrators and Defendants Doe 76 through 100 there, he was 25 shot three times from behind by these defendants, after they had 26 “forcibly moved demonstrators.” (Id. at ¶¶ 104-09.) He has 27 since experienced headaches, back problems, and trouble sleeping. 28 (Id. at ¶ 111.) 1 Plaintiff Vreeland was shot once in the abdomen by one 2 of Defendants Doe 101 through 125 near 21st Street and J Street. 3 (Id. at ¶¶ 113-15.) He sustained bruises, suffered a hematoma 4 lasting several weeks, and continues to experience pain, anxiety, 5 and insomnia from the experience. (Id. at ¶¶ 116-17.) 6 Plaintiff Pires was shot multiple times by one or more 7 of Defendants Doe 126 through 150 near 13th Street and J Street, 8 while he was standing “off to the side of the demonstration” and 9 filming officers, after officers ordered demonstrators to 10 disperse and began advancing toward them. (Id. at ¶¶ 118-32.) 11 He sustained bruises, continues to experience pain from his 12 injuries, and now experiences anxiety among crowds. (Id. at 13 ¶¶ 134-35.) 14 Plaintiff Ruffner was shot multiple times by one or 15 more of Defendants Doe 151 through 175 near 15th Street and J 16 Street while helping a demonstrator who was being shot while on 17 the ground, after Ruffner gestured to officers to indicate he 18 intended to move the demonstrator out of harm’s way. (Id. at 19 ¶¶ 136-145.) These defendants continued to shoot at him as other 20 demonstrators dragged him away. (Id. at ¶ 145.) He was 21 initially unable to walk and sustained bruising. (Id. at ¶¶ 14622 47, 151.) 23 Plaintiff Loret de Mola was shot once by Defendant Doe 24 176 near 15th Street and J Street. (Id. at ¶¶ 153, 159.) While 25 participating in a demonstration and holding her hands up, her 26 mask fell off of her face, prompting Doe 176 to demand she put it 27 back on. (Id. at ¶¶ 154-57.) When she did, Doe 176 shot her 28 from approximately six feet away, causing her to sustain bruising 1 and soreness. (Id. at ¶¶ 158-63.) 2 II. Discussion 3 A class action is “an exception to the usual rule that 4 litigation is conducted by and on behalf of the individual named 5 parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) 6 (citation omitted). “To come within the exception, a party 7 seeking to maintain a class action ‘must affirmatively 8 demonstrate his compliance’ with [Federal] Rule [of Civil 9 Procedure] 23.” Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 10 U.S. 338, 350 (2011)). Consequently, a class action will be 11 certified only if it meets the four prerequisites identified in 12 Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and 13 (4) adequacy of representation. Fed. R. Civ. P. 23(a). If these 14 requirements are met, the action must also fit within one of the 15 three subdivisions of Rule 23(b). See id. at 23(b). Here, 16 plaintiffs seek certification under Rule 23(b)(3), which requires 17 both (a) “that the questions of law or fact common to class 18 members predominate over any questions affecting only individual 19 members,” and (b) “that a class action is superior to other 20 available methods for fairly and efficiently adjudicating the 21 controversy.” Id. at 23(b)(3). 22 “Rule 23 does not set forth a mere pleading standard.” 23 Wal-Mart Stores, 564 U.S. at 350. “[C]ertification is proper 24 only if the trial court is satisfied, after a rigorous analysis,” 25 that the necessary prerequisites have been satisfied. Id. at 26 350-51 (citations and internal quotation marks omitted). The 27 court may consider the merits of plaintiffs’ underlying claims 28 only to the extent they are relevant to determining whether the 1 prerequisites for class certification are satisfied. Amgen Inc. 2 v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013) 3 (citation omitted). 4 In opposing class certification, defendants argue that 5 numerosity, predominance, and superiority are not satisfied; they 6 do not appear to challenge commonality, typicality, or adequacy 7 of representation. (See Opp. (Docket No. 16).) 8 A. Predominance 9 The court agrees that the predominance requirement, 10 which plaintiffs are required to establish when seeking 11 certification under Rule 23(b)(3), is not satisfied in this case. 12 “The predominance inquiry focuses on the relationship between the 13 common and individual issues and tests whether proposed classes 14 are sufficiently cohesive to warrant adjudication by 15 representation.” Senne v. Kansas City Royals Baseball Corp., 934 16 F.3d 918, 927 (9th Cir. 2019) (citation and internal quotation 17 marks omitted). The requirement “ensures that ‘common questions 18 present a significant aspect of the case’ such that ‘there is 19 clear justification’ -- in terms of efficiency and judicial 20 economy -- for resolving those questions in a single 21 adjudication.” Romero v. Securus Techs., Inc., 331 F.R.D. 391 , 22 410 (S.D. Cal. 2018) (quoting Hanlon v. Chrysler Corp., 150 F.3d 23 1011, 1022 (9th Cir. 1998)). 24 “In determining whether the predominance requirement is 25 met, courts have a ‘duty to take a close look at whether common 26 questions predominate over individual ones’ to ensure that 27 individual questions do not ‘overwhelm questions common to the 28 class.’” Senne, 934 F.3d at 927 (quoting Comcast Corp., 569 U.S. 1 at 34 ). In other words, it “requires courts to ask ‘whether the 2 common, aggregation-enabling issues in the case are more 3 prevalent or important than the non-common, aggregation4 defeating, individual issues.’” Id. at 938 (quoting Tyson Foods, 5 Inc. v. Bouaphakeo, 577 U.S. 442 , 453 (2016)). 6 Here, plaintiffs -- the proposed class representatives 7 -- note that they seek class certification only as to class-wide 8 claims alleging municipal liability against the City, rather than 9 for their individual claims alleging, inter alia, excessive force 10 and retaliation against them by individual defendant officers. 11 (See Mot. at 15; Reply at 4 (Docket No. 17); FAC at ¶¶ 196-97, 12 202-03, 208-09, 214-15, 221-22, 228-29, 234-35, 241-42, 248-49, 13 255-56, 262-69, 271-72, 278-79, 285-86, 292-93 (delineating 14 individual claims alleging violation of constitutional, 15 statutory, and common law rights, and separately asserting class16 wide claims alleging municipal policies caused those alleged 17 violations).) 18 Accordingly, the court evaluates whether issues 19 pertaining to the municipal liability claims that are alleged to 20 be common to all putative class members, such as the existence of 21 a municipal policy or custom that caused the alleged violations 22 of plaintiffs’ and other putative class members’ civil rights, 23 predominate over individual questions that must be resolved when 24 determining the existence of municipal liability. See Senne, 934 25 F.3d at 927, 938; (Mot. at 12). In other words, even if there 26 indeed are issues common to all putative class members, such that 27 those issues may be resolved uniformly on a class-wide basis, 28 predominance will not be satisfied if the significance and number 1 of those issues is substantially outweighed by the significance 2 and number of other issues requiring individualized proof. 3 Because § 1983 does not provide for vicarious 4 liability, a local government “may not be sued under § 1983 for 5 an injury inflicted solely by its employees or agents.” Monell 6 v. Dept. of Soc. Servs. of the City of N.Y., 436 U.S. 658 , 694 7 (1978). “Liability may attach to a municipality only where the 8 municipality itself causes the constitutional violation through 9 ‘execution of a government’s policy or custom, whether made by 10 its lawmakers or by those whose edicts or acts may fairly be said 11 to represent official policy.’” Ulrich v. City & Cnty. of San 12 Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (quoting Monell, 436 13 U.S. at 694). 14 That particular challenged acts “may be fairly said to 15 represent official policy,” thereby demonstrating the existence 16 of a § 1983 claim for municipal liability, may be shown in 17 multiple ways relevant to plaintiffs’ claims: (1) identifying an 18 express policy, see Monell, 436 U.S. at 690 ; (2) “prov[ing] the 19 existence of a widespread practice that, although not authorized 20 by written law or express municipal policy, is so permanent and 21 well settled as to constitute a custom or usage with the force of 22 law,” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) 23 (plurality opinion) (citation and internal quotation marks 24 omitted); (3) showing that a subordinate officer’s 25 unconstitutional decision was “subject to review by the 26 municipality’s authorized policymakers” who “approve[d] [the] 27 subordinate’s decision and the basis for it,” id.; and 28 (4) demonstrating that the municipality failed to adequately 1 train employees so as to avoid the constitutional violations that 2 allegedly occurred, see City of Canton v. Harris, 489 U.S. 378 , 3 388 (1989). (See FAC at ¶¶ 165-178, 192-93, 197, 203, 209, 215, 4 222, 229, 235, 242, 249, 256, 263, 265, 267, 269, 272, 279, 286, 5 293 (alleging existence of municipal policies based on these four 6 theories).) 7 Regardless of the form a “policy” takes for purposes of 8 municipal liability, it must also be a legal cause of the injury 9 or injuries of which a plaintiff complains. See Harris, 489 U.S. 10 at 385 (municipal liability requires “a direct causal link 11 between a municipal policy or custom and the alleged 12 constitutional deprivation”); id. at 389 (“[A] municipality can 13 be liable under § 1983 only where its policies are the ‘moving 14 force behind the constitutional violation.’”) (quoting Monell, [15] 436 U.S. at 694 ) (alterations adopted); Monell, 436 U.S. at 694 16 (municipal liability exists only “when execution of a 17 government’s policy or custom . . . inflicts the injury”); see 18 also Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397 , 19 405 (1997) (“Where a plaintiff claims that the municipality has 20 not directly inflicted an injury, but nonetheless has caused an 21 employee to do so, rigorous standards of . . . causation must be 22 applied to ensure that the municipality is not held liable solely 23 for the actions of its employee.”) (citations omitted). 24 Plaintiffs contend that their class-wide claims for 25 municipal liability depend on common showings such as “the 26 legality of the use of ‘less-lethal’ impact weapons against 27 protesting demonstrators, and the existence of a policy or custom 28 permitting the practice.” (Mot. at 15.) Based on these asserted 1 points of commonality, they contend that predominance is 2 satisfied because “the elements of Plaintiffs’ [municipal 3 liability] claim rely on proof involving Defendants’ policies and 4 practices, and will not require facts individual to each class 5 member’s claims.” (Id. (citation omitted, alterations adopted).) 6 However, as explained, to establish municipal 7 liability, plaintiffs, as proposed class representatives, are 8 required not only to identify and prove the existence of a 9 challenged policy, but also to demonstrate that each class 10 member’s rights were in fact violated and that the challenged 11 policy (or implementation thereof) was the cause of those 12 violations. See Harris, 489 U.S. at 385, 389 ; Monell, 436 U.S. 13 at 694. The latter inquiries are necessarily individual. 14 Assuming the existence of one or more of the challenged policies 15 were established, to determine liability the court would then be 16 required to consider what particular injury a given class member 17 suffered, whether that injury amounted to a deprivation of that 18 individual’s rights, and whether the injury was actually caused 19 by one or more challenged policy and did not have some other, 20 independent cause. 21 For example, one asserted policy challenged by 22 plaintiffs allegedly “authorizes officers to use force against 23 non-threatening demonstrations,” providing that “[i]f a display 24 of officers accompanied by a dispersal order does not result in 25 voluntary dispersal, more forceful action may be employed.” (FAC 26 at ¶ 167.) However, whether such a policy was the cause of a 27 given class member’s injuries would require an individualized 28 determination of the particular circumstances faced by the 1 officer who used force against that individual, including the 2 individual’s conduct -- for example, whether a dispersal order 3 had in fact been given, and if so, whether the class member had 4 complied with that order. If one class member failed to disperse 5 after an order was issued, an injury he or she subsequently 6 sustained might be attributable to the policy, whereas if a 7 second class member did disperse and was nonetheless injured, 8 such injury would not be attributable to the policy by the 9 policy’s own terms, which require a failure to disperse. 10 Similarly, although plaintiffs allege the policy authorizes the 11 use of force against “non-threatening demonstrations,” whether 12 the policy caused a given class member’s injury would require a 13 particularized determination of whether that individual, and/or 14 other demonstrators surrounding him or her, engaged in conduct 15 that might be considered threatening.2 16 Plaintiffs likewise allege that the City and the 17 Department “maintain an unofficial custom whereby their officers 18 are permitted to employ unconstitutional tactics against persons 19 in or around the area of a demonstration/protest -- particularly 20 as it relates to demonstrations/protests concerning the subject [21] 22 2 The result might be different if, for example, plaintiffs alleged that the City maintained a policy 23 affirmatively requiring officers to shoot less-lethal weapons into crowds indiscriminately whenever responding to protests. 24 The existence of such a policy would tend to negate many of the individualized inquiries the court has identified, since it would [25] indicate that officers shot a given class member simply because that individual was part of a crowd during a protest and not [26] because of any threat he or she appeared to pose to officers or 27 others under the circumstances. Here, however, plaintiffs have not identified a policy that would foreclose the need for 28 individualized inquiries into causation in that way. 1 of police violence.” (FAC at ¶ 170.) Other than establishing 2 the existence of this alleged custom, proving liability here 3 would again involve individualized considerations: Plaintiffs 4 would be required to show that unconstitutional tactics were 5 indeed employed, and each class member would be required to 6 demonstrate that they were subject to police violence because of 7 those tactics -- rather than because of other, constitutionally 8 compliant crowd control methods that may have been employed at 9 the particular protest they attended, or because of threatening 10 conduct by that particular individual. 11 As the factual allegations recited at the outset of 12 this Order show, however, the proposed class representatives were 13 present at or near protests at different times, at different 14 locations, and in different capacities. They each appear to 15 allege that different officers caused their injuries. (Compare 16 FAC at ¶¶ 26-69 (alleging plaintiff Garza was shot by one or more 17 of defendants Does 1 through 25), with id. at ¶¶ 79-84 (alleging 18 plaintiff Ruiz was shot by one or more of defendants Does 26 19 through 50).) Each suffered different injuries from one another 20 under different circumstances, after engaging in different 21 conduct from one another. And plaintiffs have not suggested or 22 provided the court with any reason to believe that these and 23 other disparities would not exist between most or all members of 24 the putative class, which plaintiffs contend consists of over one 25 hundred individuals. (See Mot. at 11; Reply at 2-3.) 26 Thus, even if the alleged policies were established on 27 a class-wide basis, to determine the existence of municipal 28 liability based on those policies the court would in effect be 1 required to conduct a “mini-trial” for each class member 2 evaluating complex and fact-intensive issues of causation and 3 injury based on the fourteen constitutional, statutory, and 4 common law claims that form asserted bases for municipal 5 liability. (See FAC at ¶¶ 194-296); Patel v. Facebook, Inc., 932 6 F.3d 1264 , 1275-76 (9th Cir. 2019) (acknowledging that need for 7 numerous “mini-trials” on individual issues may defeat 8 predominance); United Steel, Paper & Forestry, Rubber, Mfg. 9 Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO, CLC 10 v. ConocoPhillips Co., 593 F.3d 802, 809 (9th Cir. 2010) (same) 11 (citation omitted).3 12 Because the “non-common, aggregation-defeating, 13 individual issues” inherent in plaintiffs’ municipal claims are 14 therefore “more prevalent . . . than the common, aggregation15 enabling issues” in the case, the court concludes that, were it 16 to certify the proposed class, these “individual questions 17 [would] overwhelm questions common to the class.” Senne, 934 18 F.3d at 927, 938 (citations and internal quotation marks 19 omitted). Plaintiffs have therefore failed to show “that the [20] 3 Moreover, the class proposed by plaintiffs is defined [21] to include not only individuals shot with less-lethal weapons by 22 Sacramento police officers, but also those shot with such weapons by “mutual aid partners” from jurisdictions other than the City. 23 (See Mot. at 10.) The policies plaintiffs identify, however, are City policies, which would be inapplicable to officers from other 24 jurisdictions unless those jurisdictions maintain identical policies, which plaintiffs have not alleged is the case. This [25] introduces additional individualized considerations, since to determine municipal liability based on a given class member’s [26] injuries the court would need to determine that the shooting 27 officer was in fact a Sacramento police officer and not a mutual aid partner bound by another jurisdiction’s policies. [28] eee en eee eee IE IID I OS NO OD eee eee 1 questions of law or fact common to class members predominate over 2 any questions affecting only individual members.” Fed. R. Civ. 3 P. 23 (b6) (3). The court will therefore deny plaintiffs’ motion 4 for class certification.? 5 IT IS THEREFORE ORDERED that plaintiffs’ Motion for 6 Class Certification (Docket No. 13-1) be, and the same hereby is, 7 | DENIED. 8 | Dated: July 14, 2022 a hho A hh WILLIAM B. SHUBB 9 UNITED STATES DISTRICT JUDGE [26] 27 4 Because the predominance inquiry is dispositive, the court does not consider the other relevant factors under Rule 28 | 23(a) and Rule 23(b) (3).