Case 28 BURKE, WILLIAMS E: SORENSEN, LLP ATTORNEYS AT LAW LOS ANGELES Susan E. Coleman SBN 171832) Email: scoleman bwslawcom Mitchell . Wrosc BN 262230) 444 South Flower Street, Suite 2400 Los An eles, CA 90071-2953 Tel: 21 236.0600 Attorne for Defendant DETE TION OFFICER J. ROMERO TUSHANA HOWARD, TAWNY HOWARD, TANEYA HOWARD, VACHEL JOWARD, JR., and SKYE HOWARD, SR., indlvidually and as successors-in?interest of VACHEL HOWARD. and, JOHNNIE HOWARD, SR., in individual capacity, Plaintiffs, V. CITY OF LOS ANGELES, Police Of?cer Richard Fox, Police Of?cer Maryann Bunag, Detention Officer Juan Romero, 1nd1v1dually, Police Chief CHARLIE BECK, in his indiVIdual and of?cial capacity, Defendants. AND CONSOLIDATED ACTIONS. LA #4813~0148-4324 v1 -1- Document 130 Filed 06/09/15 Page 1 of 27 Page ID #:1107 E?mail: BURKE, WILLI RENSEN, LLP Fax: 213.236.2700 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Case No. SJO (JEMX) (Master File) Consolidated with Nos. 2: 14-cvu03423? AND DEFENDANT NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT [Fed R. Cw. P. 56] Hearing: July 13, 2015 Time: 10:00 am. Courtroom: 1 Judge: Hon. S. James Otero TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 13, 2015, at 10:00 am, Defendant Detention Of?cer Juan Romero will move the Court for summary judgment, or in 2: SJO (JEMX) DEFENDANT MOTION FOR SI IMMA RV JUDGMENT Case Document 130 Filed 06/09/15 Page 2 of 27 Page ID #:1108 28 BURKE, WILLIAMS 8: SORENSEN, LLP ATTORNEYS AT LAW L05 ANGELES the alternative for partial summary adjudication, on all claims brought by Plaintiffs in these two consolidated cases: 1. Irma Howard - Interference with Parent-Child Relationship (42 U.S.C. 1983). 2. Tushana Howard, et al. - 13-cv-01847- SJO-JEM Unreasonable Use of Force (42 U.S.C. 1983). Deliberate Indifference to Medical Needs (42 U.S.C. 1983). Deprivation of Life without Due Process (42 U.S.C. 1983) Interference with Parent-Child Relationship (42 U.S.C. 1983). Wrongful Death (Cal. Civ. Proc. Code 377.6). Battery (Govt. Code 820). Negligence (Govt. Code 820). Violation of the Bane Act (Civil Code Fr 9? 9 .0 terror-er This motion is brought on the grounds that Of?cer Romero?s use of force was reasonable and in self-defense and/or defense of others, and his use of physical force was not unrelated to any legitimate law enforcement purpose. Given what were indisputably tense and rapidly evolving circumstances, Of?cer Romero?s decision to apply an upper body hold on the decedent was justified. The decedent was violently combative and posed a threat to Of?cer Romero?s safety. Of?cer Romero?s actions thus were not a violation of decedent?s or plaintiffs? civil rights or of state laws, as explained in more detail in the accompanying memorandum. Defendant Romero is also entitled to qualified immunity for his actions, which he reasonably believed were lawful. This motion addresses all of the claims brought by all of the Plaintiffs, which are identi?ed in Plaintiffs? operative Fourth Amended Complaint (Doc. #76) and Irma Howard?s Complaint (Doc. filed in their respective cases (now consolidated). This motion is based on this Notice of Motion and Motion, the attached SJO (JEMX) - 2 DEFENDANT MOTION FOR SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 3 of 27 Page ID #:1109 28 BURKE, WILLIAMS 6: SORENSEN, LLP ATTORNEYS-3 AT LAW Los ANGELHS Memorandum of Points and Authorities, the Separate Statement of Undisputed Facts and Conclusions of Law, the Declarations of Juan Romero and Susan Coleman and attached exhibits, the pleadings, files, and records of this action and any other arguments and evidence which may be presented at the time of the hearing. This motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on February 6, 2015, and February 13, 2015. (Coleman Decl.) This motion was previously ?led on February 23, 2015 (Doc. and was vacated by this Court (Doc. #102) after the parties ?led a Notice of Settlement. This Court reset the summary judgment hearing for July 13, 2015, after the settlement fell apart.1 (See Orders #35, 129.) Dated: June 9, 2015 BURKE, WILLIAMS SORENSEN, LLP By: Mitchell A. Wrosch Susan E. Coleman Mitchell A. Wrosch Attorne for Defendant DETE TION OFFICER J. ROMERO 1 Defendant Romero moved for summary judgment on February 23, 2015. (Doc. 95.) The instant motion is nearly identical to the previously ?led motion with the exception of an updated analysis of quali?ed immunity in light of the intervening Supreme Court case of City and County 0fSan Francisco, Calif v. Sheehan, 135 S. Ct. 1765 (2015). The evidence relied upon in support of this motion is identicai to the evidence ?led on February 23, 2015, and Defendant Romero therefore refers back to and relies upon the previously submitted evidence. (Doc. 95.) SJO (JEMX) - 3 - DEFENDANT MOTION FOR SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 4 of 27 Page ID #:1110 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION .. 4 II. STATEMENT OF FACTS .. 2 STANDARD FOR SUMMARY JUDGMENT .. 4 5 IV. OFFICER ROMERO DID NOT VIOLATE THE FOURTH 6 AMENDMENT .. 5 V. FOURTEENTH AMENDMENT CLAIM FOR 7 FAILURE TO PROVIDE MEDICAL CARE FAILS BECAUSE HOWARD RECEIVED IMMEDIATE MEDICAL CARE .. 7 8 VI. FOURTEENTH AMENDMENT CLAIM FAILS 9 BECAUSE OFFICER ACTIONS WERE IN FURTHERANCE OF A LEGITIMATE POLICE ACTION AND DID 10 NOT SHOCK THE CONSCIENCE .. 9 VII. OFFICER ROMERO IS ENTITLED TO 1SUALIFIED IMMUNITY 11 AS TO ALL CONSTITUTIONAL CLAI .. ll 12 PLAINTIFFS CANNOT ESTABLISH A CLAIM OF BATTERY .. 15 IX. WRONGFUL DEATH CLAIM FAILS BECAUSE I3 OFFICER ROMERO ACTED REASONABLY UNDER THE CIRCUMSTANCES .. 16 14 A. Plaintiffs? Wrongful Death is Analyzed Under the Fourth 15 Amendment Standard .. 17 B. Of?cer Romero is Entitled to Immunity on Plaintiffs? Wrongful 16 Death Claim. .. 17 17 X. PLAINTIFFS CANNOT ESTABLISH A BANE ACT VIOLATION .. 17 18 XI. CONCLUSION .. BURKE, WILLIAMS I 2: SJO (JEMX) ifii?f??f - 1 - DEFENDANT MOTION FOR Los ANGELES RI IMMARV Case Document 130 Filed 06/09/15 Page 5 of 27 28 BURKE, WILLIAMS SORENSEN, LLP ATTORNEYS AT LAW L05 ANGELS-IS Page ID #:1111 TABLE OF AUTHORITIES Page(s) Federal Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..4 Ashcroft v. aleida?, 131 S. Ct. 2074 (2011) ..11,13 Autry v. City and County of San Francisco, 2006 U.S. Dist. LEXIS 17128 (N.D. Cal. 2006) .. 18 Barsamian v. City ofKingsburg, 597 F.Supp. 2d 1054 (ED. Cal. 2009) .. 17 Celotex Corporation v. Catreit, 477 U.S. 317 (1986) ..4 City and County of San Francisco, Calif 12. Sheehan, 135 1765 (2015) .. 14 Claybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000) .. 10 [egg v. alt Awareness Network, 18 F. 3d 752 (9th Cir. 1994) .. 18 County of Sacramento v. Lewis, 523 U.S. 833 (1988) ..9, 10 Eisenberg v. Insurance Company of North America, 815 F.2d 1285 (9th Cir. 1987) ..4 Estelle v. Gamble, 429 U.S. 97 (1986) .. 7, 8 Farmer v. Brennan, 511 U.S. 825 (1994) .. 8 Forrester v. City of San Diego, 25 F.3d 804 (9th Cir. 1994) .. 6 SJO (JEMX) DEFENDANT MOTION FOR RI IMMARV II LA #4813-0148-4324 v1 - ii - Case Document 130 Filed 06/09/15 28 BURKE, WILLIAMS SORENSEN, LLP ATTORNEYS AT LAW L05 ANGHH-ZS Page 6 of 27 Page ID #:1112 Graham v. Connor, 490 US. 386 (1989) ..5,14,15 Gregory v. County of Maui, 523 F.3d 1103 (9th Cir. 2008) .. 6, 7 Harlow v. Fitzgerald, 457 US 800Hudson v. McMillian, 503 US. 1 (1992) ..13, 14 Je?ers v. Gomez, 240 F.3d 845 (9th Cir. 2001) .. 12 Justin v. City and County ofS.F., 2008 US. Dist. LEXIS 36468 (ND. Cal. 2008) .. 18, 19 Maddox v. City of Los Angeles, 792 F.2d 1408 (9th Cir. 1986) .. 8 Moreland v. Las Vegas Metropolitan Police Dept, 159 F.3d 365 (9th Cir. 1998) .. 5, 9 Mueller v. Auker, 576 F.3d 979 (9th Cir. 2009) .. 12, 13 Padula v. Leimbach, 656 F.3d 595 (7th Cir. 2011) .. 6 Pearson v. Callahan, 555 US. 223 (2009) .. 11 Porter 12. Osborn, 546 F.3d 1131 (9th Cir. 2008) .. 10, 11 Price v. County of San Diego, 990 F.Supp 1230 (SD. Cal. 1998) ..17 Saucier v. Katz, 533 US 194 (2001) .. 12 Scott 1). Harris, 550 US. 372 (2007) .. 8 SJO (JEMX) DEFENDANT MOTION FOR SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 7 of 27 Page ID #:1113 Smith v. City ofHernet, 1 2 394 F.3d 689 (9th Cir. 2005) (en banc) .. 5 3 Smolen v. Deloitte, Haskins Sells, 4 921 F.2d 959 (9th Cir. 1990) .. 4 5 Tatum v. City and County of San Francisco, 6 441 F.3d 1090 (9th Cir. 2006) .. 8 7 Walker v. City of Hayward, 2008 US. Dist. LEXIS 44719 (N.D. Cal. 2008) .. 18 8 Wilkinson v. Torres, 9 610 F.3d 546 (9th Cir. 2010) ..10, 11 10 Wood 12. Housewright, 11 900 F.2d 1332 (9th Cir. 1990) .. 8 12 State Cases 13 Edson v. City ofAnaheim, 14 63 CA 4th 1269,74 614 ..15 15 Hernandez v. City of Pomona, 16 46 Cal. 4th 501 (2009) .. 16, 17 17 Jones v. Kmart Corp, 18 17 Cal. 4th 329 941 (1998) .. 17 19 Martinez v. County ofLos Angeles, 20 47 CA 4th 334People v. Rivera, 8 Ca1.App. 4th 1000 (1992) .. 17 22 Venagas v. County ofLos Angeles, 23 153 Cal. App. 4th 1230 (2007) .. 18 24 Federal Statutes 25 42 U.S.C. 1983 ..1, 17 26 27 State Statutes 28 Civ. Code 52.1 ..1,2,17,18,19 BURKE, WILLIAMS 2213CV-01847 SJO (JEMX) LLP iv - DEFENDANT MOTION FOR SUMMARY JUDGMENT LOS ANGELES Case Document 130 Filed 06/09/15 Page 8 of 27 Page ID #:1114 Code Civ. Proc. 377.60 .. 16 Gov. Code 820.2 .. 17 Pen. Code 835a .. 16 Rules Fed. R. Civ. P. Rule 56 .. 4 28 BURKE, WILLIAMS SJO (JEMX) SORENSEN, LLP - - DEFENDANT MOTION FOR ATTORNEYS AT LAW Los ANGELFS Case Document 130 Filed 06/09/15 Page 9 of 27 Page ID #:1115 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This motion is for summary judgment on the claims of Plaintiffs? Tushana HowardZ, Tawny Howard, Taneya Howard, Vachel Howard, Jr., Angela Nishikawa, 1 2 3 4 5 Skye Howard, Leseante Square3, Johnnie Howard, SL4, and Irma Howard5 6 (collectively ?Plaintiffs?) for alleged violations of the Fourth and Fourteenth 7 Amendments under 42 U.S.C. 1983, violations of the Bane Act (Civ. Code 8 52.1), for battery and negligence, and for negligent wrongful death arising out of 9 fatal encounter with Vachel Howard on June 4, 2012. 10 The incident occurred at the 77th Street Station Jail, when Howard became 11 violently combative with of?cers. Howard broke away from his escort and 12 advanced to within a few feet of a nurse. Several police of?cers, detention of?cers, 13 and detectives scuffled with Howard, attempting to gain control over him and place 14 him in handcuffs. Howard was tased several times, which was ineffective in 15 controlling him. After he was taken to the ground, Howard attempted to bite Of?cer 16 Romero, and continued to swing his arms and feet at the of?cers. During the 17 struggle, Of?cer Romero placed a modi?ed upper body control hold on Howard for 18 ?ve seconds when he felt that there was an imminent risk of harm to him and the 19 other of?cers. Howard did not lose consciousness and continued to resist after 20 Romero released the hold. Of?cers applied body weight to Howard and ultimately 21 placed him in hand cuffs and a Hobble restraint on his ankles. 22 After he was restrained, Howard became still and was breathing fast. Of?cer 23 Romero requested a nurse, who examined Howard, directed the of?cers to call 911, 24 and initiated CPR. Paramedics arrived and took Howard to the hospital where 25 resuscitation efforts failed and he expired. Defendants? medical expert concluded 26 2 Tushana Howard is a Plaintiff individually, and also is the Special Administrator of the Estate of Vachei Howard. 27 3 All of these Plaintiffs are children of decedent Vachel Howard. 4 Johnnie Howard, Sr., is the father of decedent Vachel Howard. 28 5 Irma Howard is decedent Vachel Howard?s mother, and she ?led a separate lawsuit. BUSRKE, 8: SJO (JEMX) ORENSEN: LA #4813_0148-4324 v1 1 DEFENDANT MOTION FOR ATTORN EYS AT LAW L05 ANGELES Case Document 130 Filed 06/09/15 Page 10 of 27 Page ID 28 BURKE, WILLIAMS (S: SORENSEN, LLP ATTORNEYS AT LAW Les ANGELES #11116 that Howard died from of a combination of cocaine intoxication, heart failure from a 95% occluded artery, and excited delirium from his violent struggle with law enforcement. Plaintiffs? Fourth Amendment and wrongful death claims fail because the use of force was reasonable under the circumstances. Given What were indisputably tense and rapidly evolving circumstances, the decision to apply an upper body hold was justi?ed. Likewise, Plaintiffs? Fourteenth Amendment claims fail because they cannot show that Of?cer Romero acted with a purpose to harm Howard that was unrelated to legitimate law enforcement objectives. Plaintiffs? Fourteenth Amendment claim for denial of medical care fails because Howard received emergency medical care, including CPR from Of?cer Romero, assistance from the nurses, and an EMT response. Plaintiff 3 claim for a violation of the Bane Act fails because Of?cer Romero did not threaten, intimidate, or coerce Howard. Finally, Of?cer Romero is entitled to quali?ed immunity because he believed his actions were lawful and because there is no clearly established authority that prohibits the use of an upper body control hold against a resistive and combative inmate. II. STATEMENT OF FACTS On June 4, 2012, Howard was pulled over for swerving through traf?c. (Doc. 95; SSUF l, 2.) Of?cers Fox and Bunag performed a traf?c stop, but Howard drove away after initially pulling over. (Id. 3, 4.) When he ?nally did pull over, Howard nearly fell over when he exited the vehicle. (Id. 5.) He then forcefully resisted being placed in handcuffs. (Id. 7.) Howard appeared delusional and to be experiencing a cocaine (Id. 9, 10.) At the jail, Howard continued to act bizarre and appeared to be hallucinating. (Id. 12?14, 17, 18.) When Of?cers Romero and Fox attempted to escort him to the dispensary for a medical examination during processing, he began ?going crazy? and ?freaking out.? (Id. 20.) He was also increasingly agitated and verbally abusive. He was yelling belligerently and ?ailing his arms to break free from his escort. (Id. SJO (JEMX) DEFENDANT MOTION FOR SUMMARY JUDGMENT -2- Case Document 130 Filed 06/09/15 Page 11 of 27 Page ATTORNEYS AT LAW Los Am: #11117 21.) Howard was kicked out of the dispensary for being nonmcompliant during his examination, but he resisted his escort out by stiffening his body. (Id. 22?24.) Of?cer Romero radioed for assistance. (Id. 25.) He also repeatedly ordered Howard to comply with being handcuffed, but Howard refused. Howard then broke free from Romero and Fox and advanced quickly toward Nurse Mader, who screamed. (Id. 26.) The of?cers tried to pull Howard back and he tried to push Romero away. He also grabbed onto Romero?s uniform, and Romero became concerned that he would pull off his metal badge or wrap his radio cord around Romero?s neck. (Id. 28.) Howard then threw Romero off and tried to elbow him in the chest. (Id. 29, 30.) Howard was like the ?Hulk? and had ?super human strength.? (Id. 32, 33.) Of?cer Bunag tased him, but it was ineffective. (Id. 34.) The of?cers continued to try to get control of Howard?s arms, but he was literally pulling and dragging them through the hallway. (Id. 35.) Howard then punched Of?cer Noriega with a closed ?st, knocking him against the wall. (Id. 36.) Howard was then taken to the floor to better control his movements and more easily place him in restraints. (Id. 37- 39.) On the ?oor, the of?cers could not get the upper-hand and Howard ?ailed his right arm, placed his left arm under his body, and kicked his legs, while still exhibiting extreme strength. (Id. 40.) While Romero was trying to gain control of Howard?s arm, his hand slipped off of Howard, in front of his face, and Howard tried to bite him. (Id. 43.) Romero attempted to place Howard in an upper body hold for approximately ?ve seconds. (Id. 45?52.) Howard?s resistance, however, and the size of his neck, prevented Romero from effectively placing the hold, and he released it as soon as Detective Zorilla put his body weight on Howard?s upper body. (Id. 52, 53.) Howard continued to resist, but Of?cers were able to handcuff him. (Id. 55.) Because he was still kicking at of?cers, a hobble restraint was placed around his ankles. (Id. 56.) After he was fully restrained, Howard began breathing fast. (Id. 57.) SJO (JEMX) DEFENDANT MOTION FOR SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 12 of 27 Page BURKE, WILLIAMS ATTORNEYS AT LAW Los ANGELES #11118 Romero yelled for medical aid and a Nurse immediately came to Howard?s assistance. (Id. 58.) The nurse and Romero performed CPR until paramedics arrived and took Howard to a hospital. (Id. 59?65.) Ultimately, resuscitation efforts failed and Howard expired. Howard died from a combination of cocaine intoxication, heart failure (from a 95% occluded artery), and excited delirium from his violent struggle with law enforcement. (Id. 75.) STANDARD FOR SUMMARY JUDGMENT Rule 56 of the Federal Rules of Civil Procedure states that summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In Celotex Corporation v. Catrett, 477 US. 317 (1986), the Supreme Court stated that: In our view, the plain language of Rule 56(0) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing suf?cient to establish the existence of an element essential to the party?s case, and on which that party will bear the burden of proof at trial. Id. at 322?323. The failure of the non?moving party to prove an essential element of its claim renders all other facts immaterial. Id. at 323. In Anderson v. Liberty Lobby, Inc., 477 US 242, 248 (1986) (decided on the same day as Celotex), the Supreme Court made it clear that a party opposing a motion for summary judgment must af?rmatively show that a dispute about a material fact is genuine, such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. This standard requires that this Court grant this motion if the evidence produced against defendants? motion is ?merely colorable? or ?not significantly probative.? Id. at 249; Eisenberg v. Insurance Company of North America, 815 F.2d 1285, 1288 (9th Cir. 1987). Thus, to avoid summary judgment, a plaintiff must ?produce at least some significant probative evidence tending to support the Complaint.? Smolen v. Deloitte, Haskins Sells, 921 F.2d SJO (JEMX) - 4 - DEFENDANT MOTION FOR SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 13 of 27 Page BURKE, WILLIAMS SORENSEN, LLP ATTORNEYS AT LAW Los ANGELES #11119 959, 963 (9th Cir. 1990). Given the matter at issue here, this requires Plaintiffs to produce evidence that Of?cer Romero?s actions were unlawful under the circumstances. Plaintiffs cannot do so because the evidence establishes that Of?cer Romero acted reasonably under the circumstances presented. IV. OFFICER ROMERO DID NOT VIOLATE THE FOURTH AMENDMENT Plaintiff Tushana Howard seeks to recover for the death of Vachel Howard (?Howard?) on his behalf, the operative Complaint alleges she is the Special Administrator of his Estate, and is therefore his successor in interest. Under Ninth Circuit precedent, Plaintiff Tushana Howard?s ?survival? claims on behalf of Howard will be analyzed under the Fourth Amendment. More/and v. Las Vegas Metropolitan Police Dept, 159 F.3d 365, 369 (9th Cir. 1998). Claims of excessive force which arise in the context of an arrest, investigative stop or other seizure of a person are analyzed under a reasonableness standard. Graham 12. Connor, 490 US. 386, 395 (1989). The reasonableness of a particular use of force must be judged from the perspective of a reasonable of?cer on the scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must embody an allowance for the fact that police of?cers are often forced to make split second judgments-in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation. Graham, 490 US. at 396?97. The factors considered in determining the reasonableness of the of?cer?s conduct are: (1) the severity of the underlying offense; (2) whether the suspect poses an immediate threat to the safety of the of?cer or others; and (3) whether the suspect is actively resisting arrest. Graham, 490 US. at 396. Ultimately, the ?most importan Graham factor is whether the suspect posed an ?immediate threat to the safety of the of?cers or others.? Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc) (quoting Chew 12. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)). SJO (JEMX) DEFENDANT MOTION FOR SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 14 of 27 Page ID #11120 1 Here, the undisputed evidence shows that Of?cer Romero acted reasonably 2 when he applied the ?ve-second-hold on Howard and the Graham factors weigh in 3 his favor, as explained below. 4 First, Howard?s underlying offense was severe. Howard was driving under 5 the in?uence of narcotics and resisted arrest by driving away from Of?cer Fox, 6 putting the public in danger. (SSUF 1-7.) 7 Second, Howard posed an immediate threat to Of?cer Romero?s safety. 8 Howard was clearly troubled and appeared to be hallucinating throughout the 9 incident. (Id. 9-10, 12?13, 17.) He was combative and resistive and broke free from 10 of?cers and advanced toward a nurse. (Id. 24, 26.) The of?cers? verbal commands 11 were repeatedly ignored and a taser did nothing to slow him down. (Id. 34.) Howard 12 was erratic and had ?super human strength.? (Id. 31?32.) Howard punched Of?cer 13 Noriega, and grabbed, pushed, elbowed, and tried to bite Of?cer Romero. (Id. 27? 14 29, 36, 41.) For these reasons, Romero reasonably believed he faced an imminent 15 risk of harm when he applied the ?ve?second-hold. (Id. 69.) 16 Third, Howard actively resisted arrest. He refused verbal commands, 17 Violently fought with of?cers, and dragged and pulled them around the jail hallway 18 like he was the ?Hulk.? (Id. 33, 36.) Thus, the government interest in using force 19 was substantial. See, e. g. Padula v. Leimbach, 656 F.3d 595, 603 (7th Cir. 2011) 20 (holding that of?cers reasonably used ?stern? but not ?severe? baton strikes to 21 control a noncompliant suspect); Forrester v. City of San Diego, 25 F.3d 804, 807 22 (9th Cir. 1994) (of?cers use of ?pain compliance techniques? to arrest 23 demonstrators was objectively reasonable). 24 The factual scenario of this case is similar to one addressed by the Ninth 25 Circuit in Gregory v. County of Maui, 523 F.3d 1103 (9th Cir. 2008). There, the 26 decedent Gregory was an unwanted visitor at a music studio. Id. at 1105. He would 27 not leave and was acting and aggressive. Police arrived and Gregory 28 acted aggressively toward. them. Gregory had a pen in his hand and did not drop it at -6- DEFENDANT ??ifE?tgi?ti?i?i??tai SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 15 of 27 Page ID #11121 1 when ordered to do so. The police grabbed his arm, knocked the pen from his hand, 2 and wrestled him to the ground. Of?cers tried to control his arm, neck, and back, all 3 the while telling him to relax. An officer used a hold around Gregory?s head and 4 neck to restrain him. After he was restrained, Gregory had a heart attack. Despite 5 immediate efforts to resuscitate him, he later died. The medical evidence showed 6 that Gregory died of a heart attack, that he had severe heart disease, and that he was 7 under the in?uence of drugs. Gregory?s medical expert opined that the heart attack 8 was likely triggered by excited delirium. Id. There was no physical evidence that 9 Gregory died from choking or from a direct use of force. Id. at 1108. 10 There are many similarities between Howard and Gregory?s death. Like 11 Gregory, Howard was incredibly strong, struggled violently, kicked his legs, and 12 tried to break free from attempts to handcuff him (but unlike Gregory, Howard 13 punched Officer Noriega and tried. to bite Romero). The two were also intoxicated 14 and belligerent. Further, as in Gregory, Of?cer Romero applied a restraint hold (not 15 a choke hold. 50]) on Howard?s head and neck to restrain him. Finally, like 16 Gregory, medical evidence shows that Howard died of cocaine intoxication, heart 17 disease, and excited delirium. (Id. 75.) 18 As the Ninth Circuit found the officers? actions in Gregory were objectively 19 reasonable, so too should this Court find that Officer Romero?s actions were 20 objectively reasonable in the circumstances presented. 21 V. FOURTEENTH AMENDMENT CLAIM FOR 22 FAILURE PROVIDE MEDICAL CARE FAILS BECAUSE 23 HOWARD RECEIVED IMMEDIATE MEDICAL CARE 24 Plaintiffs allege that Officer Romero failed to render timely medical aid to 25 Howard. To support this claim under the Fourteenth Amendment, Plaintiffs must 26 establish that Officer Romero was deliberately indifferent to Howard?s serious 27 medical needs. Estelle v. Gamble, 429 US. 97, 104 (1986). To demonstrate 28 ?deliberate indifference,? Plaintiffs are required to show: (1) a purposeful act or reruns -7 - DEFENDANT SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 16 of 27 Page ID ?aw-wawOKDOOQONM-war-?o 28 BURKE, WILLIAMS SORENSEN, LLP ATTORNEYS AT LAW L05 ANGELES #11122 failure to respond to a prisoner?s pain or possible medical need; and (2) harm caused by the indifference. Id. To be held liable, a defendant must know of and disregard an excessive risk to a detainee?s health. Farmer v. Brennan, 511 US 825, 837 (1994). Proof of negligence, even gross negligence, will not suf?ce. Wood 12. Housewrighz?, 900 F.2d 1332, 1334 (9th Cir. 1990). The evidence in this case, which includes video, shows Howard was provided immediate medical care once the struggle ended. When Of?cer Romero noticed Howard breathing fast he yelled for Detective Zorilla to get off of Howard?s upper back. (SSUF 57.) He then called for a nurse. (1d. 58.) Nurse Mader came to the scene in less than a minute. The video shows that Howard?s restraints were removed so that a Registered Nurse could perform chest compressions and CPR. (Id. 61.) It also shows Of?cer Romero performing CPR and pumping the Ambu bag valve mask. (Id) It is undisputed that 911 was called and that EMTs arrived and took over resuscitation efforts before taking Howard to a hospital. (Id. 65.) Of?cer Romero?s actions exceeded what the constitution required of him. See Tatum, 441 F.3d at 1099 (Holding that a police of?cer who summoned necessary medical assistance acted reasonably); Maddox v. City ofLos Angeles, 792 F.2d 1408, 1415 (9th Cir. 1986) (?We have found no authority suggesting that the due process clause establishes an af?rmative duty on the part of police of?cers to render CPR in any and all circumstances?). There is no genuine dispute of material fact as to this claim, and Of?cer Romero is entitled to judgment as a matter of law. See Scott v. Harris, 550 US. 372, 380 (2007) (?When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment?) SJO (JEMX) DEFENDANT MOTION FOR SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 17 of 27 Page ID 28 BURKE, WILLIAMS SORENSEN, LLP ATTORNEYS AT LAW L05 Amman-:5 #11123 Plaintiffs also allege that ?unknown of?cers?, not Romero, ?withheld information regarding the application of the choke hold.?6 (Fourth Amended Complaint at 5.) However, Dr. Ekstein, the Defendants? expert in Emergency Medicine and Resuscitation, testi?ed that the failure to advise first responders of the use of the control hold was of no consequence to the resuscitative efforts - ?it wouldn?t change anything.? (SSUF 74.) Nurse Rowe also testi?ed that, had she been advised that Howard was placed in the upper body hold, it would not have changed the method of CPR she provided to him. (SSUF 71.) In sum, there is no genuine dispute of material fact as to Plaintiffs? claim that Of?cer Romero (or indeed any City employees) failed to provide timely medical care to Howard. The care that Romero provided exceeded what is necessary under Ninth Circuit precedent. VI. FOURTEENT AMENDMENT CLAIM FAILS BECAUSE OFFICER ACTIONS WERE IN FURTHERANCE OF A LEGITIMATE POLICE ACTION AND DID NOT SHOCK THE CONSCIENCE Plaintiffs have asserted claims under the Fourteenth Amendment for interference with the parent-child relationship. The standard for recovery for this claim is higher than the requirements of the Fourth Amendment. In order to prevail under the substantive due process clause, Plaintiffs? must prove not only that Officer Romero violated Howard?s Fourth Amendment rights, but also that his actions ?shock the conscience? under the Fourteenth Amendment?s due process clause. County of Sacramento v. Lewis, 523 US 833, 846 (1988); Moreland, supra, 159 F.3d at 372. Moreover, when a police officer is confronted with urgent circumstances that require a quick reaction and do not allow for deliberation, the officer?s actions do 6 Of?cer Romero did not apply a choke hold. It is factually inaccurate and misleading to refer to the upper body hold as a choke hold. (SSUF 48.) SJO (JEMX) - 9 DEFENDANT MOTION FOR SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 18 of 27 Page ID #11124 1 not ?shock the conscience? unless there is evidence of ?intent to harm.? Porter v. 2 Osborn, 546 F.3d 1131, 1137-40 (9th Cir. 2008). Put another way, for Plaintiffs to 3 show that Of?cer Romero?s ?vensecond-hold shocks the conscience under the 4 purpose to harm standard of culpability, they must prove that his purpose was ?to 5 cause harm unrelated to the legitimate object of arrest.? Lewis, supra, 523 U.S. at 6 836; see also, Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000). 7 Plaintiffs will argue that the circumstances pertaining to the five?second-hold 8 should be evaluated under the deliberate indifference standard. But, the video 9 makes clear that this was not a case where deliberation was possible. In Porter 12. 10 Osborn, the Ninth Circuit found that actual deliberation was not practical where a 11 S-minute altercation between the of?cers and victim evolved quickly and forced 12 the of?cers to make ?repeated split-second decisions.? Porter, 546 F.3d 1139. The 13 Court noted that ?deliberation? should not be interpreted in the narrow, technical 14 sense, reasoning that the Supreme Court had rejected the deliberate indifference 15 standard even in cases where an of?cer could have deliberated while pursuing the 16 suspect. Id. at 1139-1140. Instead, the heightened purpose?to?harm standard applies 17 where a suspect?s evasive actions force the of?cers to act quickly. Id. at 1140; 18 Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). 19 Here, Of?cer Romero was forced to make a snap judgment in an escalating 20 situation. (SSUF 69.) Howard broke free from_the of?cers and advanced toward a 21 nurse. (Id. 26.)The officers could not control Howard?s arms, and after he was taken 22 to the ground he attempted to bite Officer Romero. (Id. 43.) Of?cer Romero was 23 afraid they were not going to be able to control Howard because, despite the use of 24 a taser, which typically incapacitates people, they still could not restrain him. (Id. 25 44.) Romero then applied the upper body hold for ?ve seconds until Detective 26 Zorilla placed his body weight on Howard?s upper body, and Of?cer Romero 27 released the hold. (Id. 52.) These circumstances were rapidly evolving and tense 28 as shown in the video. - 10 - DEFENDANT ridifsggig?gigdi?g: SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 19 of 27 Page ID 28 BURKE, WILLIAMS 8: SORENSEN, LLP ATTORNEYS AT LAW Los ANGELES #11125 In the absence of evidence that Of?cer Romero acted with a purpose to harm Howard that was unrelated to a legitimate law enforcement objective, this claim cannot survive summary judgment. Wilkinson, 610 F.3d at 554; Porter, 546 F.3d at 1140. The sole purpose for Of?cer Romero?s applying the ?ve-second-hold was to restrain a combative inmate who was resisting handcuffs and who posed a threat to Of?cer Romero?s safety, to wit - the attempted biting. (S SUF 65-66.) Additionally, a ?purpose to harm? is rebutted by the fact that Of?cer Romero released the hold as soon as Detective Zorilla came to his assistance (id. 52), and by Romero later performing CPR on Howard. (Id. 61.) There are no gratuitous acts of Violence such as kicking, punching, or other unnecessary force. Thus, there is no evidence that Of?cer Romero acted to harm Howard or that his actions were unrelated to a legitimate law enforcement objective. Nor did his FID interview or deposition reveal any evidence that Of?cer Romero harbored an intent to harm Howard. Quite the opposite, Of?cer Romero made clear that he acted in order to restrain Howard. Thus, Of?cer Romero did not violate Plaintiffs? substantive due process rights when he applied the ?ve-seconduhold because he was responding to a threat to his safety and was attempting to restrain a resistant and combative inmate. As there is no evidence to the contrary, Of?cer Romero is entitled to judgment on Plaintiffs? Fourteenth Amendment claims. VII. OFFICER ROMERO IS ENTITLED TO QUALIFIED IMMUNITY AS TO ALL CLAIMS Quali?ed immunity gives government of?cials ?breathing room to make reasonable but mistaken judgments about open legal questions.? Ashcroft v. al- Kida?, 131 S. Ct. 2074, 2085 (2011). The doctrine encompasses mistakes of fact and law. Pearson v. Callahan, 555 US. 223, 230 (2009). ?When properly applied, it protects all but the plainly incompetent or those who knowingly violate the law.? al-Kidd, 131 S. Ct. at 2085. Otherwise, the threats of liability ?for reasonable mistakes might unnecessarily paralyze [of?cers] ability to make dif?cult decisions (JEMX) DEFENDANT MOTION FOR SUMMARY JUDGMENT -11- Ca 28 BURKE, WILLIAMS 8: SORENSEN, LLP ATTORNEYS AT LAW L05 ANGELES se Document 130 Filed 06/09/15 Page 20 of 27 Page ID #11126 in challenging situations, thus disrupting the effective performance of their public duties.? Mueller v. Auker, 576 F.3d 979, 993 (9th Cir. 2009). Constitutional requirements are not always clear?cut at the time that action is required by of?cials. Saucier v. Katz, 533 U.S. 194, 205-206, 121 S. Ct. 2151, 2159, 150 L. Ed. 2d 272, 284 (2001). But quali?ed immunity ensures that of?cials are on notice that their conduct is unlawful before they are subjected to suit. Id. It thus prevents of?cials from being distracted from their governmental duties or inhibited from taking necessary discretionary action. Harlow v. Fitzgerald, 457 U.S. 800 at 816, 102 S. Ct. at 2737, 73 L. Ed. 2d at 409. It also prevents ?deterrence of able people from public service.? Id. In prisons and jails, it allows of?cials to use their expertise to maintain order without fear of liability for doing what seemed ?reasonable? at the time. Je?ers v. Gomez, 240 F.3d 845, 860 (9th Cir. 2001). In Saucier v. Katz, the Supreme Court explained that an of?cial is entitled to quali?ed immunity unless: (1) the plaintiff alleged facts showing a constitutional violation; and (2) it was clearly established, at the time, that the conduct was unconstitutional. Saucier, 533 U.S. at 201, 121 S. Ct. at 2156, 150 L. Ed. 2d at 281. ?If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning quali?ed immunity.? Id. Under the second prong, the inquiry is as to whether the right was clearly established, meaning that the contours of the right were sufficiently clear that a reasonable of?cial would understand that what he is doing violates that right. Id. The dispositive inquiry is ?whether it would be clear to a reasonable of?cer that his conduct was unlawful in the situation he confronted.? Id. ?If the of?cer?s mistake as to what the law requires is reasonable, the of?cer is entitled to the immunity defense.? 533 U.S. at 205, 121 S. Ct. at 2158, 150 L. Ed. 2d at 284. SJO (JEMX) DEFENDANT MOTION FOR SUMMARY JUDGMENT -12- Case Document 130 Filed 06/09/15 Page 21 of 27 Page ID 28 BURKE, WILLIAMS 8: SORENSEN, LLP ATTORNEYS AT LAW L03 ANCELHS #:1127 At a minimum, the second prong of the quali?ed-immunity analysis gives Of?cer Romero room to make reasonable but mistaken judgments about factual events. Mueller, 576 F.3d at 993. Judged from the perspective of an of?cer forced to make a split~second decision based on the events described above, a reasonable of?cer in Of?cer Romero?s position could have believed immediate force was necessary to gain compliance and restore order. See Hudson v. McMillian, 503 US. l, 6 (1992) officers must make their decisions in haste, under pressure, and frequently without the luxury of a second chance?). Quali?ed immunity also gives Of?cer Romero room ?to make reasonable but mistaken judgments about open legal questions.? al-Kidd, 131 S. Ct. at 2085. Here, Howard refused to follow verbal commands. He was intoxicated, hallucinating, experiencing a cocaine refused to comply with instructions, initiated a violent confrontation with of?cers, broke free from their grasp, and advanced toward a nurse. (SSUF 9?10, 25.) Of?cers Romero and Fox tried to restrain Howard, but it was as though he was the ?Hulk? and pulled and dragged the of?cers around the hallway. (Id. 34.) Despite repeated requests to stop resisting, Howard punched an of?cer, then grabbed Romero?s shirt, pushed him, tried to elbow him, and attempted to bite his hand. (Id. 28, 36, 43.) Based on Romero?s training and experience, Howard was incredibly strong and the amount of time he continued to struggle was unusually long. Romero was afraid that he and the other of?cers were not going to be able to control Howard and they still had not been able to put him in cuffs, despite use of the taser, which typically incapacitates people, and signi?cant efforts on Romero?s part to restrain him. (S SUF 45.) Although Romero was aware that other of?cers had arrived to the area, he did not know where they were or if they were also struggling with Howard. In any event, they seemed to have made little progress in controlling him. Romero believed that he faced a risk of serious bodily harm, as Howard tried to bite Romero and continued to resist and struggle, with no sign of him deciding to comply or SJO (JEMX) DEFENDANT MOTION FOR SUMMARY JUDGMENT -13- Case Document 130 Filed 06/09/15 Page 22 of 27 Page ID 28 BURKE, WILLIAMS 8: SORENSEN, LLP ATTORNEYS AT LAW Los ANGELES #11128 tiring out. (Id. 46.) Given Howard?s active resistance to all attempts at restraint, Romero attempted to place Howard in an upper body hold. (Id. 47.) His intent was to use that restraint to control Howard?s movements to the point where he would stop resisting long enough for them to gain control of his arms and legs and to place him in handcuffs not to harm him. (Id. 48, 69.) In any event, Howard continued to resist, and the size of Howard?s neck and continuous movement prevented Romero from completing the hold in an effective manner, based on his use of force training. Romero also saw Detective Zorilla come to his assistance and place his body weight on Howard?s upper body, and Romero therefore released the attempted hold. (Id. 54-55.) Romero?s attempt to use an upper body hold seemed to have little effect on Howard, as after it ended, Howard continued to resist being handcuffed. (Id. 54.) Although the right to be free from unreasonable force generally was established by Graham v. Connor, even if Officer Romero carefully read that decision, he would not have been on notice that his actions under the circumstances presented in this case would violate the Fourth or Fourteenth Amendments. The United States Supreme Court recently cautioned against applying general legal principles to quali?ed immunity analyses. See City and County ofSarz Francisco, Calif v. Sheeharz, 135 S. Ct. 1765, 1776 (2015) (?Even a cursory glance at the facts of Graham confirms just how different that case is from this one. That case did not involve a dangerous, obviously unstable person making threats, much less was there a weapon involved. There is a world of difference between needlessly withholding sugar from an innocent person who is suffering from an insulin reaction, see Graham, 490 US. at 388?3 89, and responding to the perilous situation [the SF. Police Department] confronted. Graham is a nonstarter.?) To the best of Officer Romero?s knowledge, there is no Supreme Court or Ninth Circuit case which addresses head-on the use of an upper body hold or the modified carotid hold that Romero attempted to apply. Nor is there a single case from these Courts which finds that the attempted use of the upper body hold against SJO (JEMX) DEFENDANT MOTION FOR SUMMARY JUDGMENT -14- Case Document 130 Filed 06/09/15 Page 23 of 27 Page ID 28 BURKE, WILLIAMS SORENSEN, LLP ATTORNEYS AT LAW L05 ANGELES #:1129 an inmate who disobeys verbal commands, attempts to assault an of?cer, and violently resists of?cers? attempts to restrain him, is unconstitutional. As the Supreme Court recently held in Sheehan, in the absence of precedent clearly establishing that there was no objective need for Of?cer Romero to apply the ?ve second hold, he was not on notice that his actions were unlawful. Id. (internal citations omitted) (?Graham holds only that the ?objective reasonableness? test applies to excessive-force claims under the Fourth is far too general a proposition to control this case. We have repeatedly told courts. . .not to de?ne clearly established law at a high level of generality. Quali?ed immunity is no immunity at all if ?clearly established? law can simply be de?ned as the right to be free from unreasonable searches and seizures?) Likewise, in the absence of precedent clearly establishing that the ?ve-second?hold shocks the conscience and is unrelated to a legitimate law enforcement objective, Of?cer Romero was not on notice that his actions would violate the Fourteenth Amendment. Id; Wilkinson, 610 F.3d at 554; Porter, 546 F.3d at 1140. In sum, there does not appear to be any comparable Fourth or Fourteenth Amendment authority from the Ninth Circuit or U.S. Supreme Court. Of?cer Romero thus was not on notice that utilizing an upper body hold for ?ve seconds (without causing any loss of consciousness) would violate the constitution under the circumstances presented. Sheehan, 135 S. Ct. 1776. He is therefore entitled to quali?ed immunity on all of Plaintiffs? constitutional claims. PLAINTIFFS CANNOT ESTABLISH A CLAIM OF BATTERY A plaintiff bringing a battery claim against a police officer has the burden of proving unreasonable use of force as an element of the tort. Edson v. City of Anaheim, 63 CA 4th 1269, 1272, 74 614 (1998). Excessive force claims are analyzed under the ?reasonableness? standard. The test of reasonableness in this context is an objective one, viewed from the vantage point of a reasonable of?cer on the scene. Martinez v. County ofLos Angeles, 47 CA 4th 334, 343, 54 772 2:13cv-01347 SJO (JEMX) 15 - DEFENDANT MOTION FOR SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 24 of 27 Page ID 28 BURKE, WILLIAMS 8: SORENSEN, LLP ATTORNEYS AT LAW Los ANGELES #11130 (1996). The calculus of reasonableness must embody allowance for the fact that police of?cers are often forced to make split?second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation. Id. at 349?350. It is also highly deferential to the police of?cer?s need to protect themselves and others. Id. at 343. Here, Of?cer Romero reasonably believed Howard posed a risk to his safety. (SSUF 66.) In light of an of?cer?s authority to use reasonable force to effect an arrest, prevent an escape, or overcome resistance (Pen. Code 835a), and the circumstances confronting him at the time he applied the ?ve-second-hold, his use of force was objectively reasonable. See Martinez, 47 CA 4th at 343 (Courts ?must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policeman face every day. What constitutes ?reasonable? action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure?) As Howard broke free from the of?cers? grasps, advanced toward a nurse, dragged of?cers wit ?super human strength? and attempted to bite Of?cer Romero, Of?cer Romero was in fear of harm, and reasonably applied the ?ve-second-hold. Thus, for the same reasons as detailed above in the Fourth Amendment argument, Romero is entitled to judgment. IX. WRONGFUL DEATH CLAIM FAILS BECAUSE OFFICER ROMERO ACTED REASONABLY UNDER THE CIRCUMSTANCES Plaintiff Tushana Howard asserts a wrongful death claim under California Code of Civil Procedure 377.60. This state law claim is essentially for negligence, and it fails because Of?cer Romero?s use of force was reasonable under the circumstances, especially in light of the ?split second judgment? he was forced to make under tense and rapidly evolving circumstances. Of?cer Romero is also entitled to statutory immunity on this claim. SJO (JEMX) DEFENDANT MOTION FOR SUMMARY JUDGMENT -16- Case Document 130 Filed 06/09/15 Page 25 of 27 Page ID 28 - BURKE, WILLIAMS SORENSEN, LLP ATTORNEYS AT LAW L05 ANGELES #11131 A. Plaintiffs? Wrongful Death is Analyzed Under the Fourth Amendment Standard. Under California law, a wrongful death claim arising from an of?cer?s use of force hinges on whether the officer?s actions were objectively reasonable, taking into account the facts and circumstances confronting him. Hernandez v. City of Pomona, 46 Cal. 4th 501, 513 (2009). This analysis is the same as is required under the Fourth Amendment. Id. at 513-614. Accordingly, Officer Romero is entitled to summary judgment on this claim because Howard posed a threat to his safety, justifying the ?ve-second-hold under the circumstances presented, as noted above. B. Of?cer Romero is Entitled to Immunity on Plaintiffs? Wrongful Death Claim. California Government Code 820.2 provides that ?a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of exercise of the discretion vested in him, whether or not such discretion be abused.? Cal. Gov. Code ?820.2. Section 820.2 affords police of?cers immunity on a wrongful death claim unless they used excessive force. Price 12. County of San Diego, 990 F.Supp 1230, 1244 (SD. Cal. 1998); see also, People v. Rivera, 8 Cal.App. 4th 1000, 1007 (1992) (police of?cer are privileged to use force against assailants when the officers reasonably believe the assailants to be armed, and when of?cers reasonably believe their own safety is in jeopardy). Here, Of?cer Romero is entitled to immunity from the state law claim because his actions, taken in response to fear for his safety, were obj ectively reasonable. X. PLAINTIFFS CANNOT ESTABLISH A BANE ACT VIOLATION Plaintiffs assert they are entitled to damages for alleged state statutory violations under California Civil Code 52.1 (?Bane Act?). (PAC at 15.) In order to establish a violation of the Bane Act, Plaintiffs are required to show that Of?cer Romero interfered with or attempted to interfere with a constitutional right, accompanied by threats, intimidation, or coercion. Jones 12. Kmart Corp, 17 Cal. SJO (JEMX) DEFENDANT MOTION FOR SUMMARY JUDGMENT -17- Case Document 130 Filed 06/09/15 Page 26 of 27 Page ID 28 BURKE, WILLIAMS 8: SORENSEN, LLP ATTORNEYS AT LAW L05 ANGELES #11132 4th 329, 334, 949 P.2s 941 (1998). The Bane Act is distinct from section 1983. To sustain a claim under the Bane Act based on an alleged constitutional violation Plaintiffs must demonstrate: (1) that the violation occurred; and (2) that the violation was accompanied by threats, intimidation, or coercion. Barsamian v. City ofKingsburg, 597 F.Supp. 2d 1054, 1064 (ED. Cal. 2009); see also Venagas v. County ofLos Angeles, 153 Cal. App. 4th 1230, 1242 (2007). Plaintiffs allege that ?Defendants interfered by threats, intimidation, or coercion with Mr. Howard?s rights under state and federal (FAC at 15.) They do not, however, identify the alleged threats, intimidation, or coercion they attribute to Officer Romero, and none were uncovered through discovery. The allegations in the operative Complaint essentially repeat the standard for stating a claim under the Bane Act, with nothing more. See Clegg v. Cult Awareness Network, 18 F. 3d 752, 754-55 (9th Cir. 1994). (The Court is ?not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged?) To the extent that Plaintiffs intend to rely upon their excessive force allegations for proof of a violation of the Bane Act, they cannot do so. In Autry v. City of and County of San Francisco, the plaintiff based his Bane Act allegations on his claim that he was subjected to excessive force. Autry v. City and County of San Francisco, 2006 US. Dist. LEXIS 17128, at *20?21 (ND. Cal. 2006). There, the court noted that ?plaintiff reliance on the excessive force allegations for proof of a violation under section 52.1 ignores the requirement that plaintiff must demonstrate both the requisite ?threats, intimidation, or coercion,? and any interference with a constitutional rights.? Id; see also, Walker 12. City of Hayward, 2008 US. Dist. LEXIS 44719, at *20 (ND. Cal. 2008) false arrest claim, without more, is not enough? to state a claim under the Bane Act.); Justin v. City and County ofS.F., 2008 US. Dist. LEXIS 36468, at *26 (ND. Cal. 2008) (Bane Act ?does not apply to plaintiff? allegation of use of excessive force absent a showing that the act was SJO (JEMX) - 18 - DEFENDANT MOTION FOR SUMMARY JUDGMENT Case Document 130 Filed 06/09/15 Page 27 of 27 Page ID #11133 I done to interfere with a separate state or federal constitutional right?). 2 Of?cer Romero did not threaten, coerce, or intimidate Howard. (SSUF 64.) 3 With the exception of offering Howard a hot meal (id. 16), the only statements he 4 made to Howard were ?stop resisting? and an advisement that he would be tased if 5 he did not cease his resistant behavior. (Id. 63.) There is no evidence that Romero 6 coerced, threatened, or intimidated Howard, particularly in order to interfere with 7 Howard?s exercise of a constitutional right or in retaliation for such, and Plaintiffs? 8 allegations of excessive force are not enough to maintain their Bane Act claim. 9 x1. CONCLUSION 10 Plaintiffs cannot prove any Fourth or Fourteenth Amendment, battery, Bane 11 Act, or wrongful death claims because Of?cer Romero only brie?y placed Howard 12 in the ?ve-second-hold after he violently resisted the of?cers and tried to bite 13 Of?cer Romero. Romero was faced with the dilemma of acting assertively, under 14 incredible pressure, and without the bene?t of a second chance, when Howard 15 continued to resist being restrained even after he was taken to the ground. The 16 evidence shows Romero reasonably believed Howard posed an imminent risk to his 17 safety after he failed to respond to the taser or of?cers? body weight. For these 18 same reasons, Of?cer Romero is entitled to quali?ed immunity. Romero believed 19 his actions were lawful and there is no clearly established authority that prohibits 20 the temporary use of an upper body control hold against a resistive and combative 21 inmate experiencing a cocaine 22 Dated: June 9, 2015 BURKE, WILLIAMS SORENSEN, LLP 23 By: Mitchell A. Wrosch 24 Susan E. Coleman 25 Mitchell A. Wrosch 26 J. ROMERO 27 28 Emma. WILLIAMS a SJO (JEMX) LLP - 19 - DEFENDANT MOTION FOR SUMMARY JUDGMENT