Some of plaintiffs’ claims as to actions against protestors constituting allegations of herding by force, unreasonable use of tear gas and pepper spray, and shooting them with nonlethal projectiles while they were not doing anything unlawful except not moving survive defendants’ motions for summary judgment. Rauen v. City of Miami, 2007 U.S. Dist. LEXIS 14931 (S.D. Fla. March 2, 2007):
This action arose from the events surrounding the Free Trade of the Americas (“FTAA”) ministerial hearings, which took place in Miami, Florida in November 2003. Plaintiffs, Holly Rauen (“Rauen”) and Nikki Hartman (“Hartman”), contend that a concerted effort by all Defendants to unlawfully limit protest at the FTAA resulted in multiple violations of Plaintiffs’ constitutional rights by various law enforcement agencies and their officers. Plaintiffs also assert state common law tort claims for battery and negligence against the various law enforcement agencies.
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Plaintiffs allege that each of the agencies that was part of the JLEC was instrumental in devising the policies that allegedly resulted in violations of Plaintiffs’ constitutional rights and that those agencies, in essence, acted as a single entity, particularly in their agreed-upon use of force and arrest protocols. (See id. PP 8, 24). Through the implementation of the joint operational security plan, Plaintiffs allege, Defendants intentionally disrupted core political speech and other expressive activity “through the wrongful ‘herding’ of unarmed, peaceful demonstrators, and the systemic use of para-military tactics and offensive weapons.” (Id. P 1). Plaintiffs allege that Defendants’ activities resulted in egregious violations of their First and Fourth Amendment rights and that the implementation of the joint operational security plan resulted in a “de facto suspension of constitutional rights in Miami” during the FTAA meetings. (Id. P 1).
Although the TAC [Third Amended Complaint] alleges that the entire operational plan was unlawful, it primarily focuses upon the activities surrounding the “herding” of protestors and the unprovoked attack by law enforcement officers upon peaceful protestors on Biscayne Boulevard and near the Bayfront Amphitheater on November 20, 2003. Specifically, Plaintiffs allege that they were subjected to “herding,” “political profiling,” and unreasonable force, in violation of the First and Fourth Amendments, all without individualized suspicion. (Id. P 20).
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C. Existence of Fourth Amendment “Seizure”
The [Third Amended Complaint] contains eleven counts predicated upon what Plaintiffs assert were actions by the Defendants that constituted “herding” of the Plaintiffs and the use of force and excessive force in violation of the Fourth Amendment’s proscription against unreasonable seizure. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . .” U.S. Const. amend. IV. The eleven counts are grouped into four categories: Monell liability against the Municipal Defendants, supervisory liability against specific Individual Defendants for directing acts that resulted in alleged violations of the Fourth Amendment, supervisory liability against specific Individual Defendants for failure to intervene to prevent alleged violations of the Fourth Amendment, and conspiracy by the Municipal Defendants to violate Plaintiffs’ Fourth Amendment rights.
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In Coles, plaintiffs were at an anti-war demonstration and alleged that Oakland police officers used excessive force without warning, firing projectiles, including wooden dowels, using, often at close range, “flexible batons” or bean bags, clubs, and sting ball grenades filled with rubber pellets and tear gas, and charging plaintiffs with motorcycles. See No. C03-2962 TEH at 2. The allegations stated that police herded plaintiffs from the port area to a station more than a mile away. See id. The court addressed whether plaintiffs had sufficiently alleged an “other seizure” sufficient to trigger Fourth Amendment protections. See id. at 4 (citing Graham v. Connor, 490 U.S. 386, 395 (1989) (“other seizure” to trigger the Fourth Amendment and its “reasonableness” standard) and County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (where there is no search or seizure, use of force is unconstitutional only if it “shocks the conscience” under the Fourteenth Amendment)).
In its review of applicable law, the court in Coles found persuasive the statement in Brower, 489 U.S. at 596-97, that a Fourth Amendment seizure occurs “only when there is a governmental termination of freedom of movement through means intentionally applied.” In agreeing with the analysis employed by the court in Marbet, and consistent with the Brower definition of a seizure, the court in Coles found that defendants had allegedly terminated plaintiffs’ freedom of movement through means intentionally applied. See No. C03-2962 TEH at 10-11. It was not fatal to the sufficiency of the Fourth Amendment claims that plaintiffs were not rendered completely immobile or forced to remain in one location; what was required was that a person’s freedom of movement had been terminated, not that the person’s movement itself had been terminated. See id. at 8.
Marbet and Coles present factual scenarios virtually indistinguishable from the allegations asserted by Plaintiffs here. The TAC alleges that Defendants employed a tactic of “herding” in which they created a large “encirclement perimeter” and used hundreds of heavily-armed, riot gear-clad officers in SWAT units and FTAA-specific “field forces” in a skirmish line to force demonstrators in a desired direction through use of intensely excessive force. (See TAC P 40). During the course of Defendants’ activities, Hartman was allegedly engaged in a prayer vigil on the lawn on the east side of Biscayne Boulevard and was shot without reason on multiple occasions by law enforcement officers. (See id. P 6). Rauen was allegedly standing peacefully on the grass near the Bayfront Amphitheater when she was shot without reason by officers. (See id. P7).
The encirclement perimeter consisted of the following: on the southern boundary, the skirmish line formed from Biscayne Bay on the east to the buildings on Biscayne Boulevard on the west side, with a huge FTAA-specific security fence surrounding the Intercontinental Hotel to the rear of the skirmish line. (See id. P 41). The eastern boundary was Biscayne Bay near the Intercontinental Hotel, a little north of that the Bayfront Amphitheater was the eastern boundary, and north of the Amphitheater, several armored personnel carriers and the Hialeah Police Department field force blocked off access to Bayside and the port area to the east. (See id.). The western boundary of this encirclement perimeter was a line of riot police and bicycle response platoons blocking movement. (See id.). Finally, the northern boundary consisted of the Miami-Dade County Police Department blocking movement. (See id.).
In the process of herding the demonstrators, the officers used batons to beat them and sprayed pepper spray up and down the lines, while using bean bags, pepper spray balls, OC spray rounds, and tear gas. (See id. P 43). Hartman, who was praying while seated in the lotus position on the grass, was shot in the head, back and legs on multiple occasions. (See id.). Hartman submitted to the show of authority after being shot by moving northbound in an effort to retreat from the oncoming skirmish line. (See id.). An officer shot Rauen in the chest at close range with a projectile. (See id.). She, too, submitted to Defendants’ show of authority by moving eastbound, closer to the Amphitheater, as police began shooting demonstrators and discharging chemical weapons. (See id.).
It can hardly be disputed that the TAC sufficiently alleges that Plaintiffs’ freedom of movement was terminated by the deliberate use of force and skirmish lines to herd and then encircle Plaintiffs in an area in which they otherwise would not have been. Construing the allegations in the light most favorable to Plaintiffs, the undersigned finds that Plaintiffs have sufficiently alleged an unreasonable seizure within the meaning of the Fourth Amendment.
Defendant officers were entitled to qualified immunity from suit for detaining plaintiff under California Welfare & Institutions Code § 5150 where a 911 call from an interested third party alleged that plaintiff was a danger to herself. Officers picked her up and delivered her for a mental examination. Section 5150 has been on the books for 40 years, requires probable cause, and is presumptively constitutional, and plaintiff’s claim it was unconstitutional was undeveloped and got nowhere. Duarte v. Begrin, 2007 U.S. Dist. LEXIS 14872 (N.D. Cal. March 1, 2007):
Additionally, plaintiff faults the officers for not making an independent evaluation of plaintiff’s mental state once they arrived at her apartment. Specifically, plaintiff claims that she was calm in her home, that she denied being suicidal, and that the officers did not personally observe anything that would give rise to probable cause. Again, plaintiff mischaracterizes the applicable legal requirements. The officers acted reasonably in relying on Petrillo’s emergency call. Section 5150 does not mandate that police officers second-guess the evaluation of a trained healthcare provider by verifying the provider’s claims with their own independent assessment. See Peng v. Mei Chin Penghu, 335 F.3d 970,977-78 (9th Cir. 2003) (“[T]he business of policemen and firemen is to act, not to speculate or meditate on whether the report [of recent crime] is correct.”) (internal quotations omitted).
In conclusion, the officers acted fully within the bounds of the law prescribed by Section 5150, and are entitled to qualified immunity for their detention of plaintiff.
B. Search
Plaintiff claims that the warrantless search of her purse and residence violated her constitutional rights. Having arrived at plaintiff’s apartment on a showing of probable cause that plaintiff was suicidal, the officers performed a brief and limited search for weapons in order to protect plaintiff. This search was justified by the perceived exigency of the situation and was therefore reasonable as a matter of law. See United States v. Black, 466 F.3d 1143, 1145 (9th Cir. 2006) (where a warrantless “welfare search” was directed at rescue, rather than a search for evidence of a crime, the court would not “second-guess the officers [sic] objectively reasonable decision” in performing the search).
C. Excessive Force
In determining whether the application of force in effecting a seizure is excessive, “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). In making this determination, “the ‘calculus of reasonableness must embody allowance for the fact that police officers 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.'” Robinson v. Solano County, 278 F.3d 1007, 1009 (9th Cir. 2002) (quoting Graham, 490 U.S. at 396-97). With respect to qualified immunity in the excessive force context, “the standard of reasonableness for purposes of qualified immunity is distinct from the standard of reasonableness embodied in the Fourth Amendment.” Robinson, 278 F.3d at 1012 (9th Cir. 2002) (citing Saucier, 533 U.S. at 206). As with other qualified immunity cases, qualified immunity is vitiated only if the violated constitutional right was clearly established at the time of the violation.
Plaintiff’s sole allegation of excessive force is that the officers “grabbed [her] by the arms and took [her] out of the apartment.” Duarte Dec. P 16. Plaintiff’s declaration indicates that this application of force was in response to some degree of resistance by plaintiff–plaintiff demanded, in Spanish, that the officers show her a warrant, asked them to leave, told them that she could drive herself to see the doctor and told them that she did not want to go with them. Id. P 14. In light of the officers’ reasonable belief in the urgent need to get plaintiff to a medical facility where she could be evaluated, taking her by the arms into a police car in response to her resistance was not so unreasonable as to defeat qualified immunity, or amount to a constitutional violation.
