Luong v. City & County of San Francisco Police Department
Opinion of the Court
MEMORANDUM
Kimberly Luong and Vicky Luong appeal from the jury verdict in their 42 U.S.C. § 1983 action alleging excessive force claims against various officers of the San Francisco Police Department. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
The district court properly granted summary judgment on Plaintiff Kimberly Duong’s unlawful arrest and Plaintiff Vicky and Kimberly Luong’s seizure claims because Plaintiffs failed to a raise genuine dispute of material fact as to whether defendants had probable cause to seize the video camera, given that the officers were working as a team and collectively possessed knowledge that the camera was potential evidence, and whether defendants had probable cause to arrest Plaintiffs under California Penal Code § 148(a)(1) for obstructing defendants in the performance of their duties at the crime scene. See Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013) (setting forth standard of review); see also Riley v. California, — U.S. -, 134 S.Ct. 2473, 2494, 189 L.Ed.2d 430 (2014) (explaining a “well-recognized exception” to this warrant requirement of the Fourth Amendment is that the “exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless ... [seizure] is objectively reasonable under the Fourth Amendment”); United States v. Ramirez, 473 F.3d 1026, 1032-33 (9th Cir. 2007) (explaining this court has applied the collective knowledge doctrine “regardless of whether [any] information [giving rise to probable cause] was actually communicated to” the officer performing the arrest; suggesting, but not requiring, communication among officers as a way to distinguish which officers are part of an investigation, and which are not); see also Cal. Pen.Code § 148(a)(1) (making a violation every person who “willfully resists, delays, or obstructs any ... peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment”).
The district court did not abuse its discretion in denying Plaintiffs’ oral request for leave to amend their complaint to add a First Amendment retaliation claim because Plaintiffs unduly delayed in seeking amendment so close to the trial date and Defendants would have been prejudiced had leave to amend been granted. See Hall v. City of Los Angeles, 697 F.3d 1059, 1079 (9th Cir. 2012) (setting forth standard of review); see also Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (explaining that a district court takes into account five factors in determining whether to grant leave to amend: “bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint”).
Despite what Plaintiffs contend, the district court did not abuse its discretion in its various in limine rulings. See United States v. Dorsey, 677 F.3d 944, 951 (9th Cir. 2012) (setting forth standard of review for in limine rulings). Evidence of
The district court did not abuse its discretion in its instruction to the jury, and its rejection of Plaintiffs’ numerous proposed jury instructions. See United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (setting forth standard of review). The district court properly instructed the jury that the seizure of the camera was not an issue at trial and that the officers had authority to seize the camera. Without the instruction, the jury would have been confused or misled into believing that these issues were not resolved. The district court also properly instructed the jury to consider Plaintiffs’ resistance to the police’s attempts to seize evidence because the Model Instructions only mentioned the Plaintiffs’ resistance to arrest.
To the extent that Plaintiffs sufficiently raised this issue on appeal, the district court did not err in granting Defendants’ motion for judgment as a matter of law at the close of evidence because Plaintiffs either failed to show personal participation, or actionable conduct on the part of Officers Ciudad, Moriyama and Chea as to certain excessive force claims brought by Plaintiffs. See Torres v. City of Los Angeles, 548 F.3d 1197, 1205-06 (9th Cir. 2008) (setting forth standard of review); see also Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc) (liability for violation of a constitutional right requires defendants’ personal participation in the violation).
The- district court did not abuse its discretion in denying Plaintiffs’ motion for new trial because the jury verdict was supported by substantial evidence. See Kode v. Carlson, 596 F.3d 608, 611 (9th Cir. 2010) (setting forth standard of review); Mueller v. Auker, 700 F.3d 1180, 1193-94 (9th Cir. 2012) (“The district court’s denial of a motion for a new trial is reversible only if the record contains no evidence in support of the verdict or if the district court made a mistake of law.”) (citation and internal quotation marks omitted). Specifically, the undisputed evidence shows that Vicky and Kimberly refused to hand over the camera to defendants, when asked, and prevented the officers from obtaining the camera, which the defendants, had a lawful right to seize. The evidence further shows that Kimberly and Vicky were resisting arrest, prompting defendants to use force to subdue them. There was no evidence presented that the officers used more force than what was needed. Nor did the evidence support Kimberly’s or Vicky’s account of the force used to arrest them. Plaintiffs’ arguments to the contrary rest mainly on a credibility determination, which is not reviewable on appeal.
Since Plaintiffs did not demonstrate any constitutional violations, Plaintiffs’ arguments regarding the dismissal of its state law claim under Cal. Civ.Code § 52.1 are moot.
Since Plaintiffs did not raise any arguments concerning the false arrest of Vicky in their Opening Brief, we deem that issue waived on appeal. See Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012) (“We review only issues which are argued specifically and distinctly in a party’s opening brief.” (citation and internal quotation marks omitted)).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Dissenting Opinion
dissenting:
I respectfully dissent from the portion of the court’s disposition affirming summary judgment as to the Luongs’ unlawful arrest and seizure claims. Our circuit has only applied the collective knowledge doctrine where there has been some communication between officers working together on an investigation. United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007) (“[W]e have been willing to aggregate the facts known to each of the officers involved at least when there has been communication among agents.” (internal quotation marks, alterations, and citations omitted)). Here the district court correctly identified that there was a triable issue of fact concerning whether the officers who saw the camera being used inside the home communicated with the officers who seized the camera and arrested the Luongs. The district court was under the impression that this issue of fact did not prevent the entry of summary judgment because it read Ramirez to permit application of the collective knowledge doctrine whether there had been communication or not. Because that ruling represents an expansion of the doctrine that our court has never endorsed, I would reverse this portion of the district court’s order' and remand for further proceedings.
Reference
- Full Case Name
- Kimberly LUONG; Et Al., Plaintiffs-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO POLICE DEPARTMENT; Et Al., Defendants-Appellees
- Status
- Unpublished