Anderson v. Trustees of the California State University

[5] 6 UNITED STATES DISTRICT COURT [7] NORTHERN DISTRICT OF CALIFORNIA [9] 10 ADROA ANDERSON, 11 Plaintiff, No. C 19-06997 WHA 12 v. 13 BOARD OF TRUSTEES OF THE ORDER RE MOTION FOR CALIFORNIA STATE UNIVERSITY, SUMMARY JUDGMENT 14 JOHN LAWS, SCOTT BUCKOVIC, and KEITH BENDIXEN, [15] Defendants. [17] 18 INTRODUCTION 19 In this Section 1983 action for unlawful conduct by law enforcement, defendants move 20 for summary judgment on individual and Monell claims. For the reasons that follow, summary 21 judgment is GRANTED IN PART AND DENIED IN PART. 22 STATEMENT 23 The following facts are uncontroverted. On Christmas night, 2017, plaintiff Adroa 24 Anderson drove his Jeep to an ATM on the San Jose State University Campus, in San Jose, 25 California. He, an African-American man, was unfamiliar with the area (Crowley Decl. Exh. 26 G at 15, 25, 31, 51). [27] 1 Anderson parked his Jeep in front of the ATM, which was located on school property in a 2 plaza. Only service and emergency vehicles could lawfully drive on the plaza. Close to the 3 ATM, however, lay a parking lot accessible from the public street. No curb, lip, or raised 4 indicators separated the parking lot from the pedestrian-only plaza. No evidence has been 5 provided that the area around the ATM, which included the confluence of a walkway, the 6 Ninth Street access road, and a parking lot, had signs warning that cars could not drive on the 7 plaza. As seen below, the parking lot’s surfacing appeared gray while the plaza’s appeared 8 paler (Crowley Decl. Exhs. F (below); D at 25, 27; E at 32). [9] 10 Google Maps N a □ 8 NY i he es oe (ea fe 3 : eZ ee on □ gs 12 Wa See 2S. ie Sa CBO, Ce ae □□□ ee te OBR A GB, EN = Ls aS a □□ be ~ ii □□ ve DD Ire eG oN i rie Pay ce □ A 5 = v 14 x N ~~ ae 4 5 Ce © Be □□ 5 □ N A A ti ei ee Van □ 2 15 & wae ie Me ON ENN 5 Nee We □ ae 5 on a ve be rc nea at AERy has ae A ‘os eel a = □□ Sa yo i □□ i Ld if = . Se i ee oo. 9 a (Sareea a □ Jae 5 aes □ = eee = 17 rN □□ A x on Pp He Af □□ 5 a prenreM 5 a = es em LS a3 □□ a “a a a “eae □□□ 19 La eS aes PAS << ae. SS ll UR 0 Ce Cg □ 2] Map data @2020,Mapdata@2020 20ft 22 San Jose State University Sergeant John Laws noticed Anderson, stopped his patrol car, 23 began to approach Anderson, and switched on his body-worn camera (Hamoy Decl. Exh. 2 at 24 ll 43-44), 25 Officers’ body-worn cameras captured the exchange that came next. Laws approached 26 Anderson. Laws quizzed Anderson about whether Anderson knew where he was (Hamoy 27 || Decl. Exh. 3 at 00:50-00:53). [28] 1 Anderson explained that he had not realized he had driven into a pedestrian zone. Laws 2 countered that Anderson was on a “sidewalk” and asked if he had been drinking. Anderson 3 denied drinking. Laws used his radio to call in what sounded like a request. Anderson offered: 4 “I didn’t realize. I came from this direction.” Saying this, he pointed toward the parking lot, 5 behind himself and to the side of the ATM. Laws next asked for Anderson’s driver’s license, 6 Anderson asked why, and Laws repeated, “You’re driving on the sidewalk, that’s illegal.” 7 Anderson asked if he would be given a ticket. Laws said yes. Anderson said, “All right,” and 8 handed over his license. He explained that he was not from San Jose, and that he had not seen 9 any partition between the lot and the plaza. Anderson’s demeanor was normal. He spoke 10 calmly and clearly. He stood still, without losing his balance (id. at 00:53–01:40). 11 Laws asked whether Anderson had consumed “pot” or if he was under the influence of 12 anything else. Anderson answered “no.” Then, Laws asked him to perform a nystagmus test, 13 which is one of a battery of exams generally called field sobriety tests (FSTs): “Can you watch 14 my finger just with your eyes . . . ?” Anderson responded, “I’m not doing that.” Laws replied, 15 “Ok, then I can’t let you drive away.” After Laws provided information to dispatch, Corporal 16 Scott Buckovic can be seen pulling up. Laws next shone his flashlight into the Jeep’s closed 17 window and then returned to speak with Anderson. Laws told him, “Ok, sir, I’m really kind of 18 thinking you’re impaired.” Anderson repeated, “I don’t want to answer questions.” Laws told 19 him, “You couldn’t figure out that you’re on the sidewalk, um, so if you don’t let me go ahead 20 with tests, then I’m going to go ahead and base it on what you’ve given me, which is almost 21 nothing other than your disorientation, [and] your inability to differentiate between the street 22 and the sidewalk . . .” (id. at 01:40–04:50). 23 Anderson and Laws debated whether Anderson’s confusion about the legality of driving 24 on the plaza implied disorientation or poor urban planning. (Laws: “Ok but you can tell the 25 difference between a sidewalk and a roadway, correct?” Anderson: “Not when there’s, like, 26 there’s no leveling difference . . . I could not.”) Laws concluded, “So, you refused to provide 27 me any investigative leads to try and figure out if you’re impaired or not.” Anderson objected, 1 brings you down here tonight?” Anderson repeated, “I don’t answer these questions, sir,” and 2 added, “I’m not answering excessive questions.” Laws responded: “If you could go ahead and 3 put your hands behind your back for me, we’re going to go ahead and take you into custody for 4 driving under the influence.” Anderson announced he would be making a complaint against 5 Laws but complied (id. at 04:54–05:50). 6 Next, Buckovic gave Anderson a pat-search and Laws searched Anderson’s Jeep. 7 Anderson called out that he did not give consent to search the car. Laws located prescription 8 pill bottles made out to Anderson on the passenger side of the Jeep (id. at 05:56–09:05). 9 Officers captured portions of the remaining events on their body-worn cameras. Laws 10 performed a quick drug test on the tablets, which returned a positive result for 11 methamphetamine. After arriving at the station, Anderson continued to ask why he was being 12 detained, and to argue that he was not impaired. Anderson indicated that he would submit to 13 FSTs if a different officer administered them. Officer Keith Bendixen, who had not been 14 present earlier, administered the FSTs. After the tests, of which (officers contend) Anderson 15 passed three and failed two, Bendixen and Anderson spoke at some length. Eventually 16 Bendixen told Anderson (Crowley Supp. Decl. Exh. A at 01:17–01:29): 17 But I guarantee, you would have been a lot better if you were just cool with your mouth from the start. You know what I mean? I [18] think that’s what kind of caused all this stuff, you know what I 19 mean? (The parties do dispute the phrase in bold, as discussed below.) Anderson was eventually [20] released. Anderson’s tablets were sent for re-testing. They came back negative for illegal [21] substances. No charges were ever filed. [22] Defendants, individual officers and the Board of Trustees of the California State [23] University, now move for summary judgment. This order follows full briefing, responses to an [24] order requesting clarification, oral argument, and supplemental briefing. [25] ANALYSIS [26] Summary judgment is proper where the admissible evidence demonstrates that there is [27] 1 of law.” FRCP 56(a). In the instant motion, defendants move to dismiss all claims, which 2 allege, under Section 1983, Fourth Amendment violations for arrest, search, and excessive 3 force, and a Fourteenth Amendment violation due to race discrimination. Defendants also 4 move to dismiss the Monell claim. 5 1. FOURTH AMENDMENT AND QUALIFIED IMMUNITY. 6 This order finds that while officers violated Anderson’s Fourth Amendment rights, 7 qualified immunity shields them. Where officers assert qualified immunity, a Section 1983 8 analysis generally proceeds in two steps. First, a district court determines whether a violation 9 of a constitutional right occurred. Second, if so, the court determines whether the plaintiff’s 10 right to be free from official action “was clearly established.” Orn v. City of Tacoma, 949 F.3d 11 1167, 1178 (9th Cir. 2020). If the right was not clearly established, qualified immunity shields 12 official defendants. See ibid. “[E]xisting precedent must have placed the statutory or 13 constitutional question beyond debate.” Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) 14 (cleaned up). 15 Defendants assert that officers possessed reasonable suspicion for a stop. On the papers, 16 Anderson does not contest reasonable suspicion of the traffic violation. Defendants also assert 17 that officers possessed probable cause for an arrest under California Vehicle Code Section 18 23152(f). This order finds that a reasonable jury could disagree. Probable cause requires more 19 than a hunch, but less than “conclusive evidence of guilt.” Ramirez v. City of Buena Park, 560 20 F.3d 1012, 1023 (9th Cir. 2009). “[M]ere suspicion, common rumor, or even strong reason to 21 suspect are not enough.” Ibid. This order must evaluate not what Laws thought of probable 22 cause, but what a reasonable officer would have believed under these circumstances. See 23 Gordon v. Cty. of Orange, 6 F.4th 961 , 965 (9th Cir. 2021). Where probable cause exists, 24 “[s]ubjective intentions play no role . . . .” Whren v. United States, 517 U.S. 806, 813 (1996). 25 Vehicle Code Section 23152(f) prohibits driving while impaired by drugs. Parties agree 26 that the arrest occurred upon handcuffing, so this order considers the facts then known to the 27 arresting officer. See John v. City of El Monte, 505 F.3d 907, 911 (9th Cir. 2007). 1 Defendants claim probable cause to arrest for driving under the influence (DUI), based 2 on the following observations of drug intoxication (Opp. Br. at 3, 7; Reply Br. at 7; Hamoy 3 Decl. Exh. 2 at 51–54, 59–61): [4] First, Plaintiff had committed a traffic violation by driving from the 5 parking lot onto the pedestrian walkway. Second, Plaintiff appeared disoriented and could not explain how he ended up parking on the 6 pedestrian walkway. Third, Plaintiff refused to perform any field sobriety test to demonstrate whether or not he was safe to drive. [7] 8 First, as to the traffic violation, the undisputed record clearly shows that the plaza lacked 9 signs or a curb indicating that it had begun, or that it only served pedestrians. “[We] can 10 appropriately recognize certain driving behaviors as sound indicia of drunk driving,” such as 11 “weaving all over the roadway,” “cross[ing] over the center line,” and “driving in the median.” 12 Navarette v. California, 572 U.S. 393, 402 (2014) (citing cases). The same logic applies for 13 drug DUI. “Of course, not all traffic infractions imply intoxication.” For example, “reports of 14 driving without a seatbelt or slightly over the speed limit” do not support reasonable suspicion 15 of driving under the influence. Ibid. Laws knew that it was nighttime (therefore difficult to 16 see); that Anderson had never visited the ATM before; and that the plaza lacked signs, curbs, 17 or rumble strips. Furthermore, ATMs directly abut parking lots in the vast majority of 18 American strip malls. This suggests that the area’s layout was simply confusing. Driving a 19 very short distance into the pedestrians-only plaza did not provide suspicion of intoxication. 20 Second, Anderson’s purported “disorientation” did not amount to an objective sign of 21 intoxication. Our court of appeals has approved a chorus of symptoms as evidence of drug 22 DUI: “[u]ncontrollable sleepiness”; “irritability and rapid breathing”; a quickened heart rate; 23 at least one failed FST; and a less-than-believable explanation that the defendant was napping 24 in his car even though his home lay a mile away. Ramirez, 560 F.3d at 1023. If Anderson 25 appeared confused or disoriented at any time on Laws’ video, it came at the outset of the 26 encounter, in response to Laws’ confusing first question (Br. at 8; Hamoy Decl. Exh. 3 at 27 00:33–00:58): Anderson: I don’t understand. [1] Laws: You drove this, right? [2] Anderson: Where are we going? I — I came to the ATM (gestures 3 at the ATM). 4 Laws: Ok, look down. What does that look like? 5 Anderson looks down: What do — [shrugs] can you just get to the point? Like, I don—. [6] Laws: You’re on the sidewalk. [7] Anderson: I didn’t realize. I came from this direction (pointing to 8 the parking lot). 9 Third, the refusal to perform FSTs may be held against a suspect in the absence of an 10 affirmative right to refuse and in the absence of coercion, the Fifth Amendment 11 notwithstanding. In South Dakota v. Neville, 459 U.S. 553, 564 (1983), the Supreme Court 12 held that performing an FST “after a police officer has lawfully requested it, is not an act 13 coerced by the officer, and thus is not protected by the privilege against self-incrimination. . . 14 .” Neither an affirmative right to refuse nor coercion here appear. Nevertheless, absent other 15 signs of intoxication, Anderson’s refusal to do the nystagmus test did not evince guilty 16 conscience. This record does not support a reasonable inference that Anderson refused due to 17 intoxication and a desire to get away with DUI. See Price, 200 F.3d at 1248; Cf. Bochner v. 18 Munoz, 2013 WL 1087818 , at *3 (E.D. Cal. Mar. 14, 2013) (Judge Carolyn K. Delaney) 19 (report and recommendation adopted, 2013 WL 5708622 (E.D. Cal. Oct. 11, 2013)) (smell of 20 alcohol plus refusal of FST supported arrest). (This order does not rely on the medications 21 seized from the Jeep because the relevant facts are those known to the officer at the time of the 22 arrest. Laws searched the Jeep and found the medications after the arrest.) 23 Officers violated the Fourth Amendment when they arrested Anderson for this conduct. 24 Defendants do not argue that any probable cause independently existed to search the car, nor 25 does the right to search the car stem from search incident to arrest or the need to inventory the 26 Jeep. Thus, officers also violated the Fourth Amendment by searching the Jeep. Finally, 27 however, Anderson does not oppose summary judgment on excessive force, so defendants are 1 These conclusions do not end the inquiry. Anderson does not identify (nor has this Court 2 identified) controlling authority with similar facts that militates in Anderson’s favor. Cf. 3 Ramirez, 560 F.3d at 1024. Citing Vohra v. City of Placentia, 683 F. App’x 564, 566 (9th Cir. 4 2017), Anderson argues that when the record viewed in the light most favorable to the 5 nonmoving party lacks evidence of a critical element of the offense (here, presumably, 6 evidence of intoxication), this order must deny summary judgment on qualified immunity. Yet 7 Vohra is unpublished and, furthermore, Anderson has failed to provide a case on point that 8 found no probable cause for intoxication under these circumstances. He has also failed to 9 provide a case showing that the search was plainly unlawful; in fact, an officer might have 10 reasonably believed that the arrest gave them the right to conduct an inventory search. 11 Next, Anderson argues that if the law was clearly established, a factual parallel is not 12 required. See Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013). Given recent 13 Supreme Court rulings involving the Fourth Amendment and qualified immunity, this order 14 remains convinced that a close factual precedent would be required to overcome qualified 15 immunity. See Rivas-Villegas v. Cortesluna, No. 20-1539, 2021 WL 4822662 (U.S. Oct. 18, 16 2021); City of Tahlequah, Oklahoma v. Bond, No. 20-1668, 2021 WL 4822664 (U.S. Oct. 18, 17 2021). 18 Summary judgment is, on liability for the excessive force claim, GRANTED to all 19 defendants. Qualified immunity on all other Fourth Amendment claims must be GRANTED to 20 the individual defendants. 21 2. THE EQUAL PROTECTION CLAUSE. 22 The equal protection claim against Laws will go to a jury. Defendants did not 23 specifically discuss summary judgment on this claim in their initial motion, though they moved 24 for entry of judgment on all claims in their favor (Br. at 7). But, due to Anderson’s failure to 25 object, briefing from both sides on this claim after an order seeking clarification, and vigorous 26 debate on this topic at the hearing, this order will reach the issue. 27 Where no Fourth Amendment violation appears, “the constitutional basis for objecting to [1] 517 U.S. at 813 . A qualified immunity defense does not apply as to the equal protection claim 2 because, “The right to non-discriminatory administration of” policing “is clearly established.” 3 Elliot-Park v. Manglona, 592 F.3d 1003, 1008 (9th Cir. 2010); see also Flores v. Pierce, 617 4 F.2d 1386 , 1392 (9th Cir. 1980). In any case, defendants do not claim qualified immunity as to 5 the equal protection claim. 6 A reasonable jury could find that Bendixen’s statement supplied an inference that Laws 7 reacted to Anderson’s argumentativeness and arrested him at least in part because of 8 Anderson’s race. “To state a claim under [Section 1983] for a violation of 9 the Equal Protection Clause of the Fourteenth Amendment[,] a plaintiff must show that the 10 defendants acted with an intent or purpose to discriminate against the plaintiff based upon 11 membership in a protected class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). 12 Discriminatory intent may be proven by direct or circumstantial evidence. See Washington v. 13 Davis, 426 U.S. 229 , 239–40 (1976). 14 The parties dispute a portion of Bendixen’s statement. Anderson proposes, “cool with 15 your mouth from the start” while defendants contend that the phrase was, “cool with him 16 out at the stop” (Surrep. Br. at 1). The Court listened to the recording during the telephonic 17 hearing. A reasonable jury could conclude that Bendixen said “cool with your mouth from the 18 start” (Crowley Supp. Decl. Exh. A at 01:17–01:29; Crowley Decl. ¶ 6, emphasis added). 19 Anderson argues, “Bendixen’s statement implies that Anderson was the victim of the 20 subjective whim of Defendants’ enforcement of California Vehicle Code Section 23152. This 21 is classic, direct evidence of an improper motive for questioning, arrest and detention based 22 upon Anderson’s race” (Opp. Br. at 14). Defendants contend that the statement is race-neutral, 23 irrelevant under Rules 401 and 402, inadmissible under Rule 602, and, anyway, Bendixen was 24 absent from the arrest (id. at 2). 25 This order finds instructive Price v. Kramer, 200 F.3d 1237 , 1242–43, 1251 (9th Cir. 26 2000). In the events precipitating that Section 1983 suit, an officer stopped two young 27 African-American men on thin allegations of non-moving traffic violations. The stop occurred 1 something on the tip of your tongue that you want to say, why don’t you say it?”; “What are 2 you doing out here?”; “You’re not supposed to be here”; and “[G]et the hell out of here.” The 3 young men sued. Defendants defeated the equal protection claim at a jury trial, but in light of 4 the officers’ statements (and absence of similar statements to the white boy with them), the 5 district court granted plaintiffs’ post-trial motion and entered judgment for the plaintiffs. Our 6 court of appeals approved. Though our facts appear less egregious, the remedy Anderson 7 seeks is correspondingly less extraordinary: Anderson only wants a jury trial. 8 Viewing the record in the light most favorable to Anderson, as we must, it is plausible 9 that Bendixen learned about the encounter from Laws. The parties conceded at the hearing that 10 the record is silent on this point. Bendixen’s statement, a reasonable jury could find, meant 11 that Laws shared details of the events with Bendixen, which details suggested that Laws 12 arrested Anderson due to not being cool with his mouth, meaning a Black shouldn’t talk back 13 like that to an officer. Contrary to defendants’ arguments, this interpretation of the statement is 14 nonspeculative and is relevant to the equal protection claim. Of course, a jury could also find 15 that no racial animus was intended. At summary judgment, all that is required is that a fact16 finder could draw a reasonable inference, a possibility which here exists. A jury must decide 17 the ultimate question. Summary judgment on the equal protection claim is, as to Laws, 18 DENIED. 19 Bendixen and Buckovic, however, moved for judgment in their favor on all claims (Br. at 20 6). Anderson raised no objections about whether defendants adequately developed their 21 argument for summary judgment on the Fourteenth Amendment claim. Finally, Anderson did 22 not develop any argument in opposition to summary judgment on the equal protection claim as 23 to the pair. Summary judgment on the equal protection claim as to Bendixen and Buckovic is 24 therefore GRANTED. 25 3. MONELL. 26 While municipalities are not subject to qualified immunity, the Board of Trustees is 27 entitled to summary judgment as to the Fourth Amendment violation because no evidence of a 1 mentioned comes from California Police Officer Standards and Training (Crowley Decl. Exh. 2 B. at 9-10). Anderson has not, however, introduced evidence to suggest that the Board 3 adopted it. “The inadequacy of police training may” also “serve as the basis for § 1983 4 liability only where the failure to train amounts to deliberate indifference to the rights of 5 persons with whom the police come into contact.” Price v. Sery, 513 F.3d 962, 973 (9th 6 Cir.2008), quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989) (cleaned up). Anderson 7 cites Irwin v. City of Hemet, 22 Cal. App. 4th 507 (1994), for the proposition that defendants 8 must produce some affirmative evidence of training to defeat a failure-to-train theory at 9 summary judgment. There, however, the defendants lost at summary judgment because they 10 argued that the complaint had inadequately alleged causation between a municipal policy and 11 the harm (and they were wrong). Jd. at 527. Here, defendants have pointed to a record that 12 lacks evidence of “deliberate indifference,” a critical element of a failure-to-train Monell claim. 5 13 Anderson has failed to introduce evidence of inadequate training sufficient to generate a 14 genuine material dispute. 15 The Monell claim also fails as to the equal protection claim for lack of an identified 16 policy, procedure, or failure to train (Opp. Br. at 21). Summary judgment is GRANTED on the || Monell claim. CONCLUSION 19 Anderson’s equal protection claim under the Fourteenth Amendment may proceed to trial 20 against Laws. Summary judgment is GRANTED to defendants on the remaining claims. [21] 22 IT IS SO ORDERED. [23] 24 Dated: October 29, 2021. ls Pee 26 = LIAM ALSUP 27 UNITED STATES DISTRICT JUDGE