Cervantes v. Zimmerman

JAIRO CERVANTES, et al., Plaintiffs, v. SAN DIEGO POLICE CHIEF SHELLEY ZIMMERMAN, et al., Defendants.

BRYAN PEASE, Plaintiff, v. SAN DIEGO COUNTY SHERIFF WILLIAM GORE, et al., Defendants.

Case No. 17-cv-01230-BAS-AHG

Case No. 18-cv-01062-BAS-AHG

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

September 25, 2020

CONSOLIDATED ACTIONS:

ORDER:

(1) GRANTING IN PART AND DENYING IN PART CITY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 126);

(2) GRANTING COUNTY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 127);

(3) DENYING PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT (ECF No. 139);

AND

(4) DISMISSING REMAINING STATE LAW CLAIMS WITHOUT PREJUDICE

The claims in these consolidated civil rights actions arise from protests at a campaign rally for then-presidential candidate Donald Trump at the San Diego Convention Center on May 27, 2016. Plaintiffs Jairo Cervantes, Madison Goodman, Brandon Steinberg, Nancy Sanchez, and Bryan Pease ("Plaintiffs") allege that several officials with the San Diego Police Department ("SDPD") and the San Diego Sheriff's Department ("SDSD" or "Sheriff's Department") violated their civil rights by preventing their peaceful assembly and arbitrarily arresting "anyone who happened to be in their way, including Plaintiffs." (See generally, Fourth Am. Compl., ECF No. 89.) Plaintiffs name as defendants Chief of Police Shelley Zimmerman, Lieutenant Ricky Radasa, Officer Samuel Euler, and the City of San Diego ("City Defendants"), and Sheriff William Gore, Captain Charles Cinnamo, and the County of San Diego ("County Defendants").¹

City and County Defendants have separately moved for summary judgment on Plaintiffs' claims. (See City Defs.' Mot. for Summ. J. ("City Defs.' Mot."), ECF No. 126; Cty. Defs.' Mot. for Summ. J. ("Cty. Defs.' Mot."), ECF No. 127.) Plaintiffs filed a combined Opposition to Defendants' Motions and a Cross-Motion for Summary Judgment regarding their constitutional claims, Monell claims, and claim under the California Bane Act. (Pls.' Opp'n and Cross-Mot. for Summ. J. ("Pls.' Opp'n & Cross-Mot."), ECF No. 139.)

For the reasons below, the Court GRANTS IN PART and DENIES IN PART City Defendants' Motion, GRANTS County Defendants' Motion, DENIES Plaintiffs' Cross-Motion, and DISMISSES WITHOUT PREJUDICE the remaining state law claims.

BACKGROUND

I. Factual Background

A. The Rally

On May 27, 2016, then-presidential candidate Donald Trump held a rally at the San Diego Convention Center. (Jt. Stm. Of Undisputed Facts ("JSUF") ¶ 1, ECF No. 145.) In response to a request from the SDPD for assistance, the Sheriff's Department dispatched to the rally "a mobile booking team, two mobile field force platoons, an Emergency Response Assistance Team, and their Special Enforcement Detail." (Id. ¶¶ 3-4.)

A command post was set up near Petco Park where different law enforcement agencies assembled as a "unified command" throughout the event. (Dep. of ShelleyZimmerman ("Zimmerman Dep.") 38:2-7, 23-24.)² Chief of Police Shelley Zimmerman was in charge of the unified command. (Id. 40:25-41:5, 16-17.) Zimmerman was there for the entirety of the event, along with other executives, assistant chiefs, and captains. (Dep. of Adam Sharki ("Sharki Dep.") 8:18-9:4.)³ The leadership at the command post, including Sheriff's Department Captain Cinnamo, were watching an intermittent live video feed of the area outside the rally from the Airborne Law Enforcement ("ABLE") helicopter, as well as media feeds from news stations and other live-streaming sites. (Sharki Dep. 10:16-11:10; JSUF ¶ 6.) When the SDPD required assistance, SDPD officials would relay instructions to Cinnamo at the command post, which he would then dispatch to SDSD's deputies on the ground. (Dep. of Chad M. Boudreau ("Boudreau Dep.") 32:23-34:3; 34:14-21; 35:24-36:4, Ex. 2 to Pease Decl., ECF No. 139-2.) Then-Sergeant Radasa (now Lieutenant Radasa) was in charge of a team providing security inside the Convention Center. (Dep. of Ricky Radasa ("Radasa Dep.") 13:9-18.)⁴

Both supporters and protestors gathered outside the venue during the rally. Several hundred police officers were either monitoring or actively policing the event. (Zimmerman Dep. 43:6-14.) Law enforcement's "main focus was to keep the groups separated[.]" (Id. 60:9.) Law enforcement ultimately shut down Harbor Drive for safety reasons. (Id. 66:8-14.)

B. Unlawful Assembly

At 4:29 PM, due to escalating violence, law enforcement was directed to make an unlawful assembly declaration. (City Defs.' Supp. Evid., Video No. 4.)⁵ Consequently, law enforcement declared an unlawful assembly around 4:30 PM using a long-range acoustic device ("LRAD") and the police helicopter. (JSUF ¶ 9.)

From about 4:40 PM to 4:54 PM, repeated unlawful assembly announcements, in both English and Spanish and with varying degrees of audibility, can be heard in the background of body-worn camera footage. (Pls.' Supp. Evid., Video Nos. 3, 4, 7, 11.) The announcements command the crowd to immediately disperse, first toward "L Street east" and onto Harbor Drive. (Id.; see also San Diego Regional Officer's Report ("SDRO Rep."), Ex. 6 to Richardson Decl., ECF No. 126-9.)⁶ Body-worn camera footage from officers in and around the plaza near the Convention Center (sometimes referred to as "Tin Fish Plaza") shows officers directing individuals in the plaza to "move out" alternatively toward 6th and 7th Street or toward Harbor Drive. Then, from 4:50 PM until about 5:00 PM, officers begin moving a crowd away from the eastern part of L Street into Tin Fish Plaza. (Pls.' Supp. Evid., Video Nos. 3-6, 8.)

There is some attendant confusion about where and how people were supposed to disperse. Some people ask officers how to leave; one is directed down a street but returns to inform officers that "they're not letting people out that way," and in one exchange, both officers and a civilian appear unclear about whether people not protesting can remain inthe plaza. (Pls.' Supp. Evid., Video Nos. 4-6, 14.) Nonetheless, in the 45 minutes after the first unlawful assembly declaration, the crowd is significantly smaller, indicating that most people did, in fact, leave the area. (City Defs.' Supp. Evid., Video No. 5.)

The Cervantes Plaintiffs were all present near the Convention Center at the time the unlawful assembly was announced. Plaintiffs Sanchez, Steinberg, and Goodman all testified that they heard at least one (or part of one) unlawful assembly announcement at this time and understood that they needed to leave the area. (Dep. of Nancy Sanchez ("Sanchez Dep.")⁷ 31:23-25; Dep. of Madison Goodman ("Goodman Dep.")⁸ 38:1-25; Dep. of Brandon Steinberg ("Steinberg Dep.")⁹ 39:14-16; 41:8-15.) Plaintiff Cervantes alleges that he heard the unlawful assembly declaration only once on the Harbor Drive overpass, minutes before his arrest almost two hours after the first declaration was made. (Dep. of Jairo Cervantes ("Cervantes Dep.")¹⁰ 29:11-16; 72:5-9.)

The Cervantes Plaintiffs also state—and Defendants do not dispute—that they were unable to get to their cars at some unspecified point after the unlawful assembly declaration. Plaintiff Sanchez was directed south toward Chicano Park and was prevented from crossing the pedestrian bridge to return to her car on the eastside of Petco Park. (Sanchez Dep. 44:2-25.) Similarly, Plaintiffs Steinberg and Goodman were prevented from getting to their car because officers on motorcycles had blocked the street where their car was parked; they were instructed by officers to wait. (Steinberg Dep. 46:1-11; Goodman Dep. 35:10-35:18.) Plaintiff Cervantes asked an officer if he could get past thepolice perimeter but was denied, and he subsequently asked if he could cross the pedestrian bridge to get to his car and was again denied. (Cervantes Dep. 29:2-6; 31:18-22.)

C. Skirmish Line and the Push Down Harbor Drive

Around 5:17 PM, police were instructed to "arrest people not going with the program." (Pls.' Supp. Evid., Video No. 19.) The ABLE helicopter footage shows a much smaller crowd in the plaza at this time. (City Defs.' Supp. Evid., Video No. 7.) The police begin forming a perimeter around protestors and funneling them across the trolley tracks and onto Harbor Drive in front of the Convention Center. (Id., Video No. 5.) A dispatch over the radio can be heard warning other officers that people are throwing rocks. (Id., Video No. 6.)

At around 5:29 PM, law enforcement began using a skirmish line to push the crowd south on Harbor Drive, away from the front of the Convention Center and toward the Harbor Drive overpass. (JSUF ¶ 12; City Defs.' Supp. Evid., Video No. 8.) Law enforcement continued to push the crowd at a slow pace down Harbor Drive and onto the overpass into the Barrio Logan neighborhood. The express purpose of the line was to prevent members of the crowd from returning to the Gaslamp District. (Sharki Dep. 29:3-11; 30:11-15.) At 5:32 PM, officers were instructed to shut down the pedestrian bridge. (City Defs.' Supp. Evid., Video No. 9.)

Officers can be seen making a few other arrests during the push down Harbor Drive. One individual can be seen throwing a projectile, and there are reports that full water bottles are being thrown at officers, though this is not seen on the footage. (Id., Video Nos. 12, 13, 16; see also Lt. Sharki's Timeline, Ex. 3 to Richardson Decl., ECF 126-6.) Pepper-balls are deployed at some point in response to an individual tossing traffic cones in the direction of officers. (Id., Video No. 13.)

D. Arrests

At 6:33 PM, about an hour after the push down Harbor began and a mile from the Convention Center, police made another unlawful assembly declaration. They instructed the crowd, which had gathered near the center median on the Harbor Drive overpass, todisperse "eastbound down Harbor" or be arrested. (City Defs.' Supp. Evid., Video No. 15.) Plaintiff Pease, who arrived only minutes before this declaration, made an announcement on his megaphone that police were...