Opinion
Case No. CV 21-00384-CJC (GJSx)
2022-09-19
Brooke FORTSON, Plaintiff, v. CITY OF LOS ANGELES; Chief Michel Moore; Officer Nicholas Illsley; Officer Jovanna Hernandez; and Does 3 through 10, inclusive, Defendants.
Vincent James DeSimone, Carmen D. Sabater, V. James DeSimone Law, Marina Del Rey, CA, Ryann Elizabeth Hall, Bohm Law Group Inc, Marina Del Rey, CA, for Plaintiff. Michael Nelson Feuer, Denise Christine Mills, Los Angeles City Attorneys Office, Affirmative Litigation Division, Los Angeles, CA, Thomas C. Hurrell, Farid Ahmed Sharaby, Jonathan Fang, Jordan Stern, Hurrell Cantrall LLP, Los Angeles, CA, for Defendants City of Los Angeles, Chief Michel Moore. Farid Ahmed Sharaby, Jonathan Fang, Jordan Stern, Thomas C. Hurrell, Hurrell Cantrell LLP, Los Angeles, CA, for Defendants Officer Nicholas Illsley, Officer Jovanna Hernandez.
Vincent James DeSimone, Carmen D. Sabater, V. James DeSimone Law, Marina Del Rey, CA, Ryann Elizabeth Hall, Bohm Law Group Inc, Marina Del Rey, CA, for Plaintiff. Michael Nelson Feuer, Denise Christine Mills, Los Angeles City Attorneys Office, Affirmative Litigation Division, Los Angeles, CA, Thomas C. Hurrell, Farid Ahmed Sharaby, Jonathan Fang, Jordan Stern, Hurrell Cantrall LLP, Los Angeles, CA, for Defendants City of Los Angeles, Chief Michel Moore. Farid Ahmed Sharaby, Jonathan Fang, Jordan Stern, Thomas C. Hurrell, Hurrell Cantrell LLP, Los Angeles, CA, for Defendants Officer Nicholas Illsley, Officer Jovanna Hernandez.
ORDER DENYING IN SUBSTANTIAL PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Dkt. 61]
CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
In this case, Plaintiff Brooke Fortson alleges that the City of Los Angeles, Los Angeles Police Department ("LAPD") Police Chief Michel Moore, and LAPD Officers Nicholas Illsley and Jovanna Hernandez (the "Officer Defendants") violated her civil rights in relation to an incident when she was hit by officers in a police car in an intersection while she was participating in a Black Lives Matter protest. (See Dkt. 37 [First Amended Complaint, hereinafter "FAC"].) At the time of the incident, the officers were on their way to respond to a robbery call. Plaintiff asserts claims under 42 U.S.C. Section 1983 for violations of her rights under the First and Fourth Amendments to the United States Constitution, including a claim against Chief Moore for his alleged ratification of the Officer Defendants' conduct, and Monell liability against the City. She also asserts state law claims against Defendants for assault and battery, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and violation of California Civil Code section 52.1 (the "Bane Act"). (See id.) Now before the Court is Defendants' motion for summary judgment. (Dkt. 61 [Motion, hereinafter "Mot."].) For the following reasons, the motion is DENIED IN SUBSTANTIAL PART. II. BACKGROUND
This case arises from an incident involving Officers Illsley and Hernandez in May 2020, just days after Minneapolis police officers killed George Floyd, spurring Black Lives Matter protests all across the country. In Los Angeles, enormous crowds gathered throughout the city daily to protest, with substantial looting and violence occurring as well. See Los Angeles Times, L.A. Reels from Looting and Arrests Not Seen in Decades (May 31, 2020), available at https://www.latimes.com/california/story/2020-05-31/l-a-reels-from-looting-and-arrests-not-seen-in-decades.
On May 31, 2020, Officer Illsley was driving an LAPD patrol vehicle in Downtown Los Angeles with his training officer, Officer Hernandez, riding in the front passenger seat. (See Dkt 66-3 [Plaintiff's Statement of Uncontroverted Facts, hereinafter "SUF"] ¶ 1.) The two were on their way to respond as the secondary unit to a robbery call when they encountered a peaceful protest obstructing the southbound lanes at the intersection of Hill Street and 5th Street. (Id. ¶¶ 3, 6; Dkt. 68-1 [Defendants' Response to Plaintiff's Additional Undisputed Facts, hereinafter "ASUF"] ¶ 5.) When the light turned green, there were still protestors in the crosswalk, with "easily over 100 people in the vicinity." (SUF ¶ 4; ASUF ¶¶ 9, 19-22, 26.) Nevertheless, Officer Illsley drove into the intersection. (ASUF ¶ 17.) Officer Illsley chirped the car's siren and activated the amber rear facing lights (which were visible from the side and rear of the vehicle, but not from the front) before he drove into the intersection. (ASUF ¶¶ 28-29; Dkt 61-2, Ex. C [Dashcam Footage] at 30:57-31:04.)
As Officer Illsley drove across the crosswalk, a woman walked in front of the car, stopped directly in front of it, turned to face the officers, and raised her middle fingers. (SUF ¶ 11; ASUF ¶ 30; Dashcam Footage at 31:01-02.) Hernandez gestured to the woman to get out of the way, but she refused to move. (SUF ¶¶ 13-14; ASUF ¶ 32.) Officer Illsley continued driving forward until he made contact with the woman, bumping her torso with the front of the car. (Dashcam Footage at 31:04.) The woman stumbled backward briefly but remained standing in front of the car with her middle fingers raised. (Id. at 31:05.)
Image materials not available for display.
At the same time, Plaintiff was in the intersection filming an Instagram live video. (SUF ¶ 16.) As shown in the image below, the Officer Defendants were stopped in the middle of the crosswalk while Plaintiff was walking outside of the crosswalk.
Image materials not available for display. (Dkt 61-2, Ex. F [Overhead Footage].)
Officer Hernandez began repeatedly instructing Officer Illsley to "rev it." (Dashcam Footage at 31:06; ASUF ¶ 31.) The woman who had been raising her middle fingers began moving out of the way of the car. (Id. at 31:11; ASUF ¶ 35.) Officer Illsley accelerated forward. (Id. at 31:12.) Although the woman raising her middle fingers got out of the way of the car, the car struck Plaintiff. (SUF ¶ 21.) The impact caused Plaintiff to fly backwards, landing approximately twelve feet away. (SUF ¶ 70.)
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Plaintiff alleges that as a result of the incident, she suffered numerous bruises and abrasions, severe headaches, neck and back injuries including spasms in her spinal area and strangling muscles around her spine, loss of sleep, anxiety, and depression. (See FAC ¶¶ 41-42.) III. LEGAL STANDARD
Summary judgment may be granted on "each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Fed. R. Civ. P. 56(a). Summary judgment is proper where the pleadings, the discovery and disclosure materials on file, and any affidavits show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. A factual issue is "genuine" when there is sufficient evidence such that a reasonable trier of fact could resolve the issue in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" when its resolution might affect the outcome of the suit under the governing law, and is determined by looking to the substantive law. Id. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 249, 106 S.Ct. 2505.
Where the movant will bear the burden of proof on an issue at trial, the movant "must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). In contrast, where the nonmovant will have the burden of proof on an issue at trial, the moving party may discharge its burden of production by either (1) negating an essential element of the opposing party's claim or defense, Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), or (2) showing that there is an absence of evidence to support the non-moving party's case, Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. Once this burden is met, the party resisting the motion must set forth, by affidavit, or as otherwise provided under Rule 56, "specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505.
A party opposing summary judgment must support its assertion that a material fact is genuinely disputed by (i) citing to materials in the record, (ii) showing the moving party's materials are inadequate to establish an absence of genuine dispute, or (iii) showing that the moving party lacks admissible evidence to support its factual position. Fed. R. Civ. P. 56(c)(1)(A)-(B). But the opposing party must show more than the "mere existence of a scintilla of evidence"; rather, "there must be evidence on which the jury could reasonably find for the [opposing party]." Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
In considering a motion for summary judgment, a court must examine all the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. See id.; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). The court does not make credibility determinations, nor does it weigh conflicting evidence. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). But conclusory and speculative testimony in affidavits and moving papers is insufficient to raise triable issues of fact and defeat summary judgment. Thornhill Publ'g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
IV. DISCUSSION
The Court first addresses Plaintiff's Section 1983 claims and then addresses her state law claims.
A. Section 1983 Claims
Plaintiff brings claims under Section 1983 for violations of her First Amendment and Fourth Amendment rights. Under 42 U.S.C. Section 1983, "[e]very person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." To recover under Section 1983, Plaintiff must prove that Defendants "(1) deprived [her] of a right secured by the Constitution, and (2) acted under color of state law." Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989). Defendants argue summary judgment should be granted because (1) Defendants did not violate Plaintiff's constitutional rights, and (2) even if Plaintiff's constitutional rights were violated, Defendants are entitled to qualified immunity.
The parties do not appear to dispute that Defendants were acting under color of state law during the events giving rise to this case.
1. Violations of Plaintiff's Constitutional Rights
a. First Amendment
Plaintiff alleges that the Officer Defendants unlawfully retaliated against her for engaging in a peaceful protest against police brutality, in violation of her First Amendment rights. "[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out." Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). If a government official hurts someone in retaliation for engaging in protected activity, "the injured person may generally seek relief by bringing a First Amendment claim." See Nieves v. Bartlett, — U.S. —, 139 S. Ct. 1715, 1722, 204 L.Ed.2d 1 (2019) (internal quotation omitted). To succeed on her First Amendment retaliation claim, Plaintiff must show that (1) she was engaged in a constitutionally protected activity, (2) the officers' actions would "chill a person of ordinary firmness from continuing to engage in the protected activity," and (3) "the protected activity was a substantial or motivating factor in [the officers'] conduct." Index Newspapers LLC v. United States Marshals Serv., 977 F.3d 817, 827 (9th Cir. 2020).
As to the first element, being engaged in a constitutionally protected activity, Defendants argue that Plaintiff was "unlawfully walking outside the crosswalk and right in front of oncoming traffic," and thus her conduct was not constitutionally protected. (Dkt. 68 [Reply in Support Notice of Motion and Motion for Summary Judgment, hereinafter "Reply"] at 7-8.) But public demonstrations and protests are clearly constitutionally protected activity. Index Newspapers, 977 F.3d at 830 ("Public demonstrations and protests are clearly protected by the First Amendment."). Indeed, the protection of the First Amendment "applies with particular force" to "march[es] and other protest activities." See United States v. Baugh, 187 F.3d 1037, 1042 (9th Cir. 1999). "This is particularly true where the march takes place in the streets" and " 'have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' " Seattle Affiliate of Oct. 22nd Coal. to Stop Police Brutality, Repression & Criminalization of a Generation v. City of Seattle, 550 F.3d 788, 797 (9th Cir. 2008) (citing Hague v. Comm. for Indus. Org., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)). Plaintiff was participating in, and filming, one of innumerable protests occurring nationwide, with hundreds of people in the streets near where Plaintiff was. That she was not in the crosswalk does not change that Plaintiff was engaged in constitutionally protected activity at the time of the incident.
As to the second element, Defendants argue that the Officer Defendants' conduct would not deter a person of ordinary firmness from engaging in the protected activity. (Reply at 7-8.) The Court disagrees. Being hit by a police car while attending a protest against police brutality would certainly deter a person of ordinary firmness from engaging in future protests.
Finally, as to the third factor, Defendants argue that Plaintiff has not demonstrated that her conduct was a substantial motivating factor for the allegedly retaliatory action. (Reply at 7-8.) The third factor often "involves questions of fact that normally should be left for trial," and that is the case here. Index Newspapers, 977 F.3d at 827. Defendants contend that Officer Illsley went into the intersection in order to get to the robbery call quickly. (SUF ¶ 5; Illsley Decl. ¶ 5.) Plaintiff, on the other hand, contends that there was no legitimate law enforcement purpose to go into the intersection when and how Officer Illsley did, which she contends was reckless and willfully indifferent to her safety and right to protest. (Id.) A jury will have to determine the true motivating factors for Officer Illsley's actions. Summary judgment is not warranted on Plaintiff's Section 1983 claim for violation of the First Amendment.
b. Fourth Amendment
Plaintiff alleges that the Officer Defendants used excessive force against her in violation of the Fourth Amendment. "An excessive force claim is a claim that a law enforcement officer carried out an unreasonable seizure through a use of force that was not justified under the relevant circumstances." Cnty. of Los Angeles, Calif. v. Mendez, 581 U.S. 420, 137 S. Ct. 1539, 1547, 198 L.Ed.2d 52 (2017). To determine whether force was excessive under the Fourth Amendment, courts employ an objective standard: the " 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2473, 192 L.Ed.2d 416 (2015) ("A court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight."). Courts assess reasonableness using the nonexhaustive Graham factors: "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. 1865. The most important factor is whether the suspect posed an immediate threat. See Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011). When the reasonableness of the officer's conduct turns on disputed issues of material fact, the question is one that should be left for the jury. See Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).
Defendants argue that summary judgment is appropriate because Plaintiff was not "seized" for Fourth Amendment purposes because the Officer Defendants did not intend to hit her, and thus they "did not intentionally acquire physical control over her." (Reply at 9; see also Mot. at 9-11.) But when a show of police authority "includes the application of physical force, a seizure has occurred." Nelson v. City of Davis, 685 F.3d 867, 876 (9th Cir. 2012) (emphasis in original); see also Alexander v. City & Cnty. of S.F., 29 F.3d 1355, 1365 n.10 (9th Cir. 1994) (explaining that "physical force constitutes a seizure under the Fourth Amendment"). There is no dispute that Officer Illsley drove forward into the intersection and that his car hit Plaintiff. (SUF ¶ 21.) And although the Officer Defendants contend that they did not intend to hit Plaintiff, a reasonable jury could conclude otherwise. Indeed, multiple people were still in the intersection when Officer Illsley accelerated into it.
Whether the Officer Defendants' use of force was reasonable under the circumstances is likewise a question of fact that a jury will have to decide. When the evidence viewed in the light most favorable to the plaintiff could support a finding of excessive force, the defendants are not entitled to summary judgment. See Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). "Because [the excessive force inquiry] nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom," the Ninth Circuit has "held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly." Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002).
Here, the evidence viewed in the light most favorable to Plaintiff could support a finding of excessive force. Officer Illsley, at Officer Hernandez's urging, drove a car into an intersection when people were still in it. He did not turn on his lights or sirens, order the protestors to disperse over the car's loudspeaker, drive forward more slowly, or reverse or turn out of the intersection. When watching the Overhead Footage, a juror could view Officer Illsley's acceleration as unnecessarily fast and dangerous, especially since Plaintiff was not engaging in any criminal activity or posing any immediate threat or danger to the officers' safety.
A jury will also have to determine witness' credibility at trial, which the Court cannot do on summary judgment. For example, Defendants claim that Officer Illsley accelerated forward rapidly because protestors were attacking the car, but the video footage does not show any violent behavior by the protestors before the car hit Plaintiff. See Soto v. Gaudett, 862 F.3d 148, 161 (2d Cir. 2017) (denying summary judgment on Fourth Amendment claim because "a factfinder's assessment of a party's credibility may be influenced by internal inconsistencies in his factual presentation, and there are several here in the defense descriptions of the collision"); see also Rivera v. City of Santa Ana, 2011 WL 717369, *3 (C.D. Cal. Feb. 18, 2011) ("Given the wildly different stories concerning Plaintiff's conduct, the Court finds that genuine issues of material fact are in dispute . . . The conflicting accounts offered by each party leaves the Court with a classic he-said-she-said scenario. It must be left to a jury to determine which portions of which witnesses' testimony to accept."). In short, numerous questions of fact preclude summary judgment on Plaintiff's Section 1983 claim for violation of her Fourth Amendment rights.
c. Officer Hernandez's Liability
Defendants argue that Plaintiff's claims against Officer Hernandez fail "because she was not driving, and she did not tell Illsley to strike plaintiff." (Mot. at 8.) Plaintiff responds that Officer Hernandez may be held liable as an integral participant in the constitutional violations. (See Opp. at 14-15.) For an officer who did not actually perform the unlawful conduct to be liable for that conduct, the officer must have been an "integral participant" in the conduct. Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th Cir. 2004). " "[I]ntegral participation" does not require that each officer's actions themselves rise to the level of a constitutional violation," but it does require some level of participation and support. Id.
There are genuine disputes of material fact regarding whether Officer Hernandez sufficiently participated in and supported the alleged constitutional violations here to be held liable for them. While looking at the evidence in the light most favorable to Plaintiff, Officer Hernandez repeatedly instructed Officer Illsley to "rev it" when there were still people in the intersection. (Dashcam Footage at 31:06; ASUF ¶ 31.) When Officer Illsley began to proceed into the intersection, she did not tell him to stop. Nor did she tell him to turn on his siren, flash lights that could be seen from the front, use the loudspeaker, or take any other alternative action. Because a reasonable jury could find Officer Hernandez liable for any constitutional violations based on her statements and inaction, summary judgment is not appropriate on the claims against her.
d. Chief Moore's Liability
Chief Moore was not present during the incident. (SUF ¶ 31.) However, in a later interview with KTLA news regarding the incident, the newscaster played the video for Chief Moore and asked, "do you have any information on this and the tactics that were employed here?" Chief Moore defended the Officer Defendants' conduct and stated, "Given the information I have, I defend that officer's actions." (Dkt. 66-21 [Ex. O to DeSimone Declaration, hereinafter "KTLA Segment"] at 00:00-00:23.) He continued, "I don't know the people who want us to do something different. What would they have us do?" (Id. at 1:30-35; ASUF ¶ 109.)
Under Section 1983, a supervisory official is not liable for the actions of his subordinates on any theory of vicarious liability. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). A supervisor may be liable for a subordinate's constitutional violation only if there is either (1) personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). Since Chief Moore was not present during the incident, (SUF ¶ 31), he can only be liable if there is a sufficient causal connection between his wrongful conduct and the constitutional violation.
A sufficient causal connection requires that the supervisor either set in motion or knowingly refused to terminate acts by others which he knew or had reason to know inflict constitutional injury. Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); see Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ("A supervisor is only liable for constitutional violations of his subordinates if [he] participated in or directed the violations, or knew of the violations and failed to act to prevent them."). A post-incident statement alone generally does not have a sufficient causal connection to the wrongful acts to justify liability. See Jones v. Cty. of Sacramento, 2010 WL 2843409, at *7 (E.D. Cal. July 20, 2010) (explaining that "a supervisor's isolated and subsequent ratification of an officer's conduct" is not "sufficient to show that the supervisor caused the officer's conduct"). Rather, for an after-the-fact statement to create liability, "allegations of knowledge of ongoing wrongdoing and a subsequent failure to intervene are required." Hunt, 749 F. App'x at 525.
Plaintiff has provided no evidence that Chief Moore had knowledge of ongoing wrongdoing similar to the alleged incident and failed to intervene. Rather, she relies solely on Chief Moore's statement to KTLA that he "defend[ed] that officer's actions." (ASUF ¶ 109.) This after-the-fact statement is not enough to hold Chief Moore liable as an individual for the Officer Defendants' alleged violations of Plaintiff's constitutional rights. See, e.g., Hunt v. Davis, 749 F. App'x 522, 524 (9th Cir. 2018) (holding that sheriff's "statements generally standing by and commending his department's work" after the alleged constitutional violation "do not plausibly suggest the requisite causal connection" with alleged violation because they "do not suggest that he directed or knew of at the time and failed to prevent either the detective's use of a misleading affidavit to obtain the search warrant or the manner in which the search was conducted"); Ochoa v. City of San Jose, 2021 WL 7627630, at *10 (N.D. Cal. Nov. 17, 2021) (holding that police chief's conduct after an incident could not "plausibly have a 'sufficient causal connection' to the alleged constitutional violations" to find supervisory liability); see also Wolniak v. Cty. of Sacramento, 2017 WL 6558095, at *5 (E.D. Cal. Dec. 22, 2017) ("[Plaintiff] has not pleaded how post-conduct ratification of the alleged excessive force caused [him] harm."). The Court therefore GRANTS summary judgment in favor of Defendants on Plaintiff's Section 1983 claims against Chief Moore.
2. Qualified Immunity
"The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (quotations omitted). "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects 'all but the plainly incompetent or those who knowingly violate the law.' " Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011); see also Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (explaining that qualified immunity is "an immunity from suit rather than a mere defense to liability"). When determining whether an officer is entitled to qualified immunity at summary judgment, courts consider (1) "whether the facts, taken in the light most favorable to the party asserting the injury, show the officer's conduct violated a federal right" and (2) "whether the right in question was 'clearly established' at the time of the violation." Tolan v. Cotton, 572 U.S. 650, 656, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (alterations omitted). As already described, taking the facts in the light most favorable to Plaintiff, a jury could conclude that the Officer Defendants' conduct violated Plaintiff's constitutional rights. The question therefore becomes whether those rights were clearly established at the time of the violation.
"To be clearly established, a right must be sufficiently clear that every reasonable official would have understood what he is doing violates that right." Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016) (quoting Taylor v. Barkes, 575 U.S. 822, 135 S. Ct. 2042, 2044, 192 L.Ed.2d 78 (2015)) (per curiam) (emphasis in original). "Although a plaintiff need not find 'a case directly on point, existing precedent must have placed the . . . constitutional question beyond debate.' " Id. at 1091 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). A court must make its inquiry "in light of the specific context of the case, not as a broad general proposition." Mullenix v. Luna, 577 U.S. 7, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
"[W]here the officers' entitlement to qualified immunity depends on the resolution of disputed issues of fact in their favor, and against the non-moving party, summary judgment is not appropriate." Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003); see also Orn v. City of Tacoma, 949 F.3d 1167, 1181 (9th Cir. 2020) (denying qualified immunity because "[w]hat [the defendant] most forcefully contests is whether his alternative account of the shooting should be accepted as true," and explaining that "actual disputes of that order must be resolved by a jury, not by a court adjudicating a motion for summary judgment"). Here, finding the Officer Defendants entitled to qualified immunity would require resolving factual disputes in their favor. Specifically, Defendants argue that no clearly established law showed that an officer violates the First or Fourth Amendment rights of a person he inadvertently hits trying to escape violent protestors. (Mot. at 8-9, 12.) But to agree with Defendants would mean to find that the Officer Defendants inadvertently hit Plaintiff, and that the protestors were violent before the Officer Defendants hit Plaintiff. Those are factual questions a jury must decide. And if the jury resolves those questions in Plaintiff's favor—finding, for example, that the Officer Defendants did see Plaintiff before they hit her, intended to hit her, and intended to retaliate against her for protesting or to use unreasonable force against her—that would support a finding that the Officer Defendants violated her clearly established rights to be free from retaliation and unreasonable seizure by excessive force. Defendants are therefore not entitled to qualified immunity.
3. Municipal Liability
Plaintiff asserts a municipal liability claim against the City of Los Angeles. A local governing body may be liable under Section 1983 only when "action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipalities can be held liable only for their own illegal acts, and may not be held liable based on respondeat superior. Id. "Rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee." Bryan County v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). There are three ways to establish municipal liability under Section 1983: (1) by showing a longstanding practice or custom which constitutes the municipality's standard operating procedure, (2) by showing that that an official with final policymaking authority made the decision, or (3) by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. Ulrich v. City & Cty. of S.F., 308 F.3d 968, 984-85 (9th Cir. 2002).
Plaintiff argues that municipal liability attaches here based on Chief Moore's ratification of the officers' conduct. (Opp. at 25-26 [discussing Chief Moore's individual liability and the City's Monell liability together].) A municipality can be liable for an isolated constitutional violation if the final policymaker "ratified" a subordinate's actions. Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). To establish Monell liability on a ratification theory, a plaintiff must provide evidence that an official policymaker made a deliberate choice from among various alternatives to follow a particular course of action and that the policymaker approved a subordinate's decision and the basis for it. Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992).
A reasonable jury could certainly interpret Chief Moore's statements to mean that he considered alternative courses of conduct available to the Officer Defendants and approved the Officer Defendants' decision and the basis for it. See id. Indeed, Chief Moore said that he "would look at each incident with a clear eye and a calm head and . . . judge them," and as to this incident, he "defend[ed] that officer's actions." (KTLA Statement at 00:50-00:55, 2:15-2:20.) He continued, "I don't understand the people who want us to do something different. What would they have us do? Have the officers remain there?" (Id. at 1:30-35.) Chief Moore described how he saw what happened—that protesters were "swarming and attacking that unit," and that the Officer Defendants "[t]ook evasive action and in the course of that struck an individual . . . and fled that area." (Id. at 00:35-50; see 2:40-3:00.) He defended the officers' conduct in the context of the extensive Black Lives Matter protests of the time, saying, "we've seen assaults on police officers," "we've seen what's happened to those vehicles," "we've seen vehicles set on fire," and "we will not stand and have officers injured or killed by assailants in groups." (Id. at 00:53-1:04, 1:38-1:45.) He said he was "sorry for that protestor," but said "I see that unit under attack" and "officers have a right to defend themselves." (Id. at 1:13-20, 2:10-2:15, 2:40-2:48.)
Chief Moore's statements "tend to show that [he] endorsed or approved the unconstitutional conduct of individual officers." Dorger v. City of Napa, 2012 WL 3791447, at *5 (N.D. Cal. Aug. 31, 2012). He considered what else the officers could have done, and decided that what they did was the best course of conduct under the circumstances. See Gillette, 979 F.2d at 1348. This is sufficient evidence to create a genuine dispute of material fact on Monell liability. See Dorger, 2012 WL 3791447, at *5; see also Christie, 176 F.3d at 1240 ("holding that Monell liability may be appropriate if a representative of the municipality "affirmatively approved" of the allegedly unconstitutional conduct"); Hernandez v. City of San Jose, 241 F. Supp. 3d 959, 979-80 (N.D. Cal. 2017), aff'd in part, dismissed in part, 897 F.3d 1125 (9th Cir. 2018) (holding that the police chief's statements praising the actions of his officers were "sufficient to state a claim that the City is liable for the police officers' allegedly unconstitutional actions"). The Court therefore DENIES Defendants' motion for summary judgment on Plaintiff's Monell claim.
B. State Law Claims
Defendants also move for summary judgment on Plaintiff's state law claims for violation of the Bane Act, assault and battery, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress.
1. Bane Act
The Bane Act makes it unlawful for any person to "interfere[ ] by threat, intimidation, or coercion . . . with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States." Cal. Civ. Code § 52.1. Although the elements of an excessive force claim under the Bane Act are similar to those under Section 1983, the Bane Act requires an additional element of specific intent. See Reese v. County of Sacramento, 888 F.3d 1030, 1044-45 (9th Cir. 2018); Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018) ("[I]n excessive force cases, [the Bane Act] does not require proof of coercion beyond that inherent in the underlying violation."). To violate the Bane Act, a defendant must have "intended not only the force, but its unreasonableness [and] its character as more than necessary under the circumstances." Reese, 888 F.3d at 1045 (quotations omitted). There does not need to be proof that a defendant was "thinking in constitutional or legal terms at the time of the incidents." Id. (emphasis omitted). "[A] reckless disregard for a person's constitutional rights is evidence of a specific intent to deprive that person of those rights." Id.
Genuine disputes of material fact make summary judgment inappropriate on Plaintiff's Bane Act claim. Defendants contend that the Officer Defendants did not intend to use any force against Plaintiff at all, much less unreasonable force. (Mot. at 15.) They assert that Officer Illsley did not see Plaintiff before hitting her, that he drove into the intersection to respond quickly to the robbery call, that he was in fear for his and Officer Hernandez's lives, and that neither Officer Illsley nor Officer Hernandez intentionally violated any of Ms. Fortson's constitutional rights that day. (SUF ¶¶ 5, 17, 22; Dkt. 61-2 [Declaration of Nicholas Illsley] ¶ 5; Dkt. 61-3 [Declaration of Jovanna Hernandez] ¶ 5.) But Plaintiff disputes all of these facts, asserting that the Officer Defendants intended to hit Plaintiff and intended to use unreasonable force against her. (See SUF ¶¶ 5, 17, 22.) They contend that the protestors were not violent before the Officer Defendants hit Plaintiff, and point out that Officer Illsley drove into an intersection while people were still in it, with his supervisor Officer Hernandez saying "rev it." (See id.) Because a jury will have to determine which version of the facts is the truth, summary judgment is not appropriate.
2. Assault and Battery
"Proving claims for assault and for battery against a police officer . . . requires a showing that the officer used unreasonable force." Quyen Kim Dang v. City of Garden Grove, 2011 WL 3419609, at *11, 2011 U.S. Dist. LEXIS 85949, at *33 (C.D. Cal. Aug. 2, 2011). "The test employed under California law to determine if the force used was unreasonable is identical to the test employed under federal law applying Section 1983." Id. Because there are genuine disputes of material fact regarding whether the Officer Defendants' use of force was reasonable, summary judgment is not appropriate on Plaintiff's assault and battery claim.
3. Negligence
"The elements of a negligence cause of action are: (1) a legal duty to use due care; (2) a breach of such legal duty; (3) the breach was the proximate or legal cause of the resulting injury; and (4) actual loss or damage resulting from the breach of the duty of care." Megargee v. Wittman, 550 F. Supp. 2d 1190, 1209 (E.D. Cal. 2008). Defendants argue that the Officer "Illsley had no duty to plaintiff to remain stationary as the protesters were attacking the patrol vehicle and he and Hernandez had no duty to get out of the patrol vehicle and provide medical care to plaintiff while being viciously attacked by the protesters." (Mot. at 19.) They argue that Plaintiff "foolishly and illegally walked . . . while filming on Instagram , right in front of the vehicle as it was moving . . . giving Illsley no time to react," and that it was Plaintiff that created the risk of harm, not Officer Illsley. (Id. at 18-19 [emphasis in original].) But as discussed, there are genuine disputes of material fact regarding whether a dangerous situation actually existed at the time Officer Illsley accelerated and the reasonableness of the parties' behavior. Summary judgment is not appropriate on Plaintiff's negligence claim.
4. Intentional Infliction of Emotional Distress
Plaintiff alleges a claim for intentional infliction of emotional distress ("IIED") based on Defendants' actions. To state a claim for IIED, Plaintiff must show that (1) she was subjected to extreme and outrageous conduct by Defendants; (2) Defendants intended to cause, or recklessly disregarded the probability of causing, emotional distress; (3) Plaintiff suffered severe or extreme emotional distress; and (4) Defendants' outrageous conduct was the actual and proximate cause of Plaintiff's emotional distress. See Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, 593, 156 Cal.Rptr. 198, 595 P.2d 975 (1979). To be outrageous, conduct "must be so extreme as to exceed all bounds of that usually tolerated in a civilized society." Trerice v. Blue Cross of Cal., 209 Cal. App. 3d 878, 883, 257 Cal.Rptr. 338 (1989).
Plaintiff also asserted a negligent infliction of emotional distress claim, but now "agrees with Defendants that the negligent infliction of emotional distress claim should be dismissed." (Dkt. 66 at 30 fn. 14.)
Defendants argue that "the video evidence shows he did not engage in any extreme or outrageous conduct." (Mot. at 22.) But there are genuine disputes of material fact regarding whether Defendants' conduct was extreme and outrageous. As discussed, a jury will have to determine what the Officer Defendants' intent was, whether the Officer Defendants were in danger at the time they hit Plaintiff, and whether the amount of force they used was reasonable. Viewing the facts in the light most reasonable to Plaintiff, a reasonable jury could conclude that Defendants' conduct was extreme and outrageous. Defendants' motion for summary judgment on Plaintiff's claim for intentional infliction of emotional distress is DENIED.
C. Punitive Damages
To recover for punitive damages against an individual officer in a Section 1983 case, a plaintiff must show that the officers' conduct is "motivated by evil motive or intent" or "involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). The Ninth Circuit has also explained that "[t]he standard for punitive damages under § 1983 mirrors the standard for punitive damages under common law tort cases," which extends to "malicious, wanton, or oppressive acts or omissions." Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005).
The standard for punitive damages under California law is similar. Punitive damages may be appropriate if a plaintiff establishes "by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." Cal. Civ. Code § 3294(a). Malice may be shown where the defendant exhibits "the motive and willingness to vex, harass, annoy, or injure," Nolin v. Nat'l Convenience Stores, Inc., 95 Cal. App. 3d 279, 285, 157 Cal. Rptr. 32 (1979) (quoting Davis v. Hearst, 160 Cal. 143, 162, 116 P. 530 (1911)), or a "conscious disregard of the rights and safety of others," Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1000, 25 Cal.Rptr.2d 550, 863 P.2d 795 (1993).
As discussed previously, there is a dispute of material fact as to whether the Officer Defendants intended to hit Plaintiff, retaliate against her, or use excessive force. For similar reasons, there are genuine disputes of material fact regarding whether the Officer Defendants acted with an evil motive or intent or with malice. Defendants' motion for summary judgment on the issue of punitive damages is therefore DENIED.
V. CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is DENIED IN SUBSTANTIAL PART. Defendants' motion is GRANTED with respect to Plaintiff's (1) claims against Chief Moore, and (2) negligent infliction of emotional distress claim. Defendants' motion is DENIED with respect to Plaintiff's (1) Section 1983 claims against the Officer Defendants for violation of her First and Fourth Amendment rights, (2) Monell claim, (3) Bane Act claim, (4) assault and battery claim, (5) negligence claim, (6) intentional infliction of emotional distress claim, and (7) prayer for punitive damages.