Oxborrow v. City of Coalinga , 559 F. Supp. 2d 1072 ( 2008 )

(2008)

Dustin OXBORROW, Plaintiff,
v.
CITY OF COALINGA, Chief Patricia Medina, Officer Michael Tingley, CPL. Chris Simmons, and Does 1 through 10, inclusive, Defendants.

No. 1:07-CV-00237 OWW SMS.

United States District Court, E.D. California.

May 29, 2008.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 17)

OLIVER W. WANGER, District Judge.

1. INTRODUCTION

This matter comes before the court on Defendants' City of Coalinga ("City"), Chief Patricia Medina ("Chief Medina"), Officer Michael Tingley ("Tingley"), CPL. Chris Simmons ("Simmons") motion for summary judgment to adjudicate Plaintiff Dustin Oxborrow's ("Oxborrow") § 1983 claims under the Fourth and Fourteenth Amendment for unlawful use of force and right to be free from unreasonable searches and seizures. Oral argument was heard on May 5, 2008.

2. PROCEDURAL BACKGROUND

Plaintiff filed his complaint on February 13, 2007. (Doc. 1, Complaint) On March 31, 2008, Defendants filed a motion for summary judgment. (Doc. 17, Motion for Summary Judgment) Plaintiff opposed the motion on April 21, 2008. (Doc. 20, Opposition) Defendants filed their reply on April 28, 2008. (Doc. 23, Reply)

3. FACTUAL BACKGROUND

A. Undisputed Facts

On January 1, 2006, shortly after midnight, Dustin Oxborrow and Russ Bridges went to Outlaws Bar in Coalinga, California. (DSUF 1) While at Outlaws Bar both Mr. Oxborrow and Mr. Bridges drank alcoholic beverages. (DSUF 2) After being there a short time they decided to leave. (DSUF 3) Mr. Oxborrow and Mr. Bridges went to Mr. Oxborrow's parked car in the Outlaws Bar parking lot and sat in the vehicle, rather than leave immediately. (DSUF 4) The men were approached by Michelle Madrigal, whom they knew. (DSUF 5) Ms. Madrigal got into Mr. Oxborrow's car and sat in Mr. Bridges' lap. (DSUF 6) A witness, Jose Lopez, heard a commotion coming from Mr. Oxborrow's car and believed Ms. Madrigal was being sexually assaulted. (DSUF 7) Mr. Lopez then removed Ms. Madrigal from the car and took her to the front door of the bar, leaving her there with an employee of Outlaws Bar. (DSUF 8) Mr. Oxborrow and Mr. Bridges did not leave the parking lot. (DSUF 9) Several people approached Mr. Oxborrow's vehicle, including Mr. Lopez, David Deling and Sara Scott, who was the Outlaws Bar employee working at the door checking ID's. (DSUF 10) When Mr. Lopez, Mr. Deling and Ms. Scott returned to the car, Mr. Oxborrow had a gun, and he racked a bullet into the chamber. (DSUF 11)

A call came into dispatch on New Years Eve reporting that there was a man with a gun in the parking lot of the Outlaws Bar. (DSUF 21) Two of the witnesses interviewed by Officer Tingley stated they heard a noise and saw Plaintiff with a gun. (DSUF 22) One of the witnesses called 911 and reported the incident. (DSUF 23) Officer Tingley has testified that Plaintiff was clearly intoxicated at the time the police arrived, exhibiting a strong odor of alcohol, bloodshot watery eyes and Plaintiff admitted to the officers that he had been drinking. (DSUF 24) Plaintiff admitted that he had not driven from the scene as he was concerned about being too intoxicated to drive. (DSUF 25) Officer Tingley testified that he did not believe Plaintiff acted in self-defense as he had the opportunity to leave the parking lot either by foot or in the car and choose not to. Defendant Officer Tingley believed that someone in fear of their life would do just about anything to remove themself from such a situation. (DSUF 27) Plaintiff admitted he attempted to conceal the gun, and thought he had been successful. (DSUF 28)

Mr. Bridges never considered driving himself and Plaintiff from Outlaws Bar. (DSUF 40) Plaintiff and his friend, Mr. Bridges both testified that they could have left the scene, through many options, but choose not to leave. (DSUF 41) When Plaintiff obtained his gun from the truck, there was no one present confronting him. (DSUF 42)

After completing his investigation, Officer Tingley cited Mr. Oxborrow with carrying a concealed weapon and exhibiting a firearm. (DSUF 14) The District Attorney filed charges against Mr. Oxborrow, including Penal Code section 12025(a)(1), concealed firearm in a vehicle, Penal Code section 417(a)(2), drawing or exhibiting a firearm, and Penal Code section 12031(a)(1) carrying a loaded firearm. (DSUF 16) A criminal trial was held and Mr. Oxborrow was acquitted of the charges. (DSUF 17) Shortly after, the trial judge made a finding of factual innocence and ordered the records sealed and eventually destroyed. (DSUF 16) After opening statements the prosecutor withdrew the first count, concealed firearm in a vehicle. (DSUF 19) The court acquitted Mr. Oxborrow of count 2, drawing or exhibiting a firearm and the jury found Mr. Oxborrow not guilty of the third count, carrying a loaded firearm. (DSUF 20)

Plaintiff has designated no experts. (DSUF 47) No discovery has been conducted on the issue of Defendant City of Coalinga discriminating against non-residents of Coalinga. (DSUF 50)^[1]

B. Disputed Facts

Plaintiff contends that Mr. Lopez, who approached the car where Plaintiff was located, is 6'2" and weighs 280 lbs. He was joined by a dozen persons initially, and the group quickly swelled to at least 18 or 20, who were calling Plaintiff and Mr. Bridges "rapists." They also yelled "we'll kill you." (PSUF 10)

Defendants contend that when Mr. Lopez, Mr. Deling and Ms. Scott returned to the car, Mr. Oxborrow had a gun, and he racked a bullet into the chamber. (DSUF 11) Plaintiff contends he did this because he feared for his life and that of Mr. Bridges and was calling 911. (PSUF 11)

Defendants contend that when the police arrived, with guns drawn, they detained all individuals around Plaintiffs vehicle. (DSUF 12) Plaintiff asserts that when Defendant Tingley arrived, he asked who had the gun. Plaintiff Oxborrow told him the gun was on the front seat of the car in plain view and Defendant Tingley saw the gun in plain view. (PSUF 12)

Plaintiff alleges that he volunteered to Defendant Officer Tingley that there was a gun, that it belonged to him, and that he had retrieved it from the trunk, and placed it in plain view on the front seat because he believed that the mob was about to kill him and Mr. Bridges. But he was arrested anyway. (PSUF 13) Defendant maintains that Plaintiff Oxborrow was placed under arrest for carrying a loaded firearm in a vehicle, after Mr. Oxborrow told Officer Tingley the gun in the car was his and he did not have a concealed weapons permit. (DSUF 13)

Plaintiff contends that Defendant Tingley in his probable cause declaration to justify the arrest, stated under oath that "Oxborrow admitted to chambering one round to protect his' life." And this is a complete defense to both charges and Defendant Tingley should have known that. (PSUF 14)

Defendants contend that Plaintiff was cited and released within a few hours. (DSUF 15) Plaintiff contends he was left handcuffed in an uncomfortable position desperately needing to urinate for an "immense amount of time." (PSUF 15)

Defendant Officer Tingley states that he did not believe Plaintiff was acting in self-defense as Plaintiff was not the target of the individuals at the scene. It was his friend who the individuals were addressing. (DSUF 26) Plaintiff contends that he believed that both he and Mr. Bridges' lives were threatened. (PSUF 26)

C. Curtis J. Cope: Former Police Instructor and Officer

Curtis J. Cope, was a member of the United States Army (2 years) and a Police Officer for twenty nine and half years in Santa Ana and Huntington Beach, California. (Doc. 17-6, p. 1:26-25-2:1) Mr. Cope also served as an instructor at the Regional Criminal Justice Training Center at Golden West College for twenty-seven years. (Id. at p. 2:15-17)

During Mr. Cope's service in law enforcement, he served in the rank of police officer as a Patrol Officer, Motor Officer, Special Enforcement Team Officer, SWAT Officer, Field Training Officer, Defense Tactics Instructor for Huntington Beach P.D. and temporary assignments as background investigator and helicopter observer. (Id. at p. 2:1-4) Mr. Cope also attained the rank of Sergeant as a Patrol Supervisor, Motor Supervisor, Accident Investigation Supervisor, SWAT Team Supervisor, Special Enforcement Team Supervisor, Liaison to the Uniform Division Commander, Lead Defense Tactics Instructor and FTO Program Supervisor and many associated duties. (Id. at p. 2:4-7) Mr. Cope was promoted to the rank of Lieutenant as a Patrol Watch Commander, COP Area Commander, General Investigation Bureau Commander, SWAT Team Leader, Lead Defense Tactics Instructor, FTO Program Manager and many associated duties. (Id. at p. 2:7-10) Mr. Cope has participated in developing and serving search warrants in excess of 100 occasions. (Id. at p. 2:10-11)

Mr. Cope has trained over 9,000 police officers or, recruit trainees through his teaching career. (Id. at p. 2:17-18) Mr. Cope has taught and been a subject matter expert for Peace Officer Standards and Training (POST), developed curriculum, developed standards for training, developed and taught a wide range of law enforcement course work for over thirty-seven years. (Id. at p. 2:18-20) Mr. Cope has assisted in the development of and continues to administer and teach in California POST Institute of Criminal Investigations (ICI) Instructor Workshop Series, which provides training throughout California to law enforcement investigators or detectives. (Id. at p. 2:20-23)

Mr. Cope has professional certificates from the California Commission on Peace Officer Standards and Training (POST) in the following areas: Basic (1970); Intermediate (1975); Advanced (1977); Supervisory (1983); Management (1992); and Master Instructor (1994). (Id. at p. 2:13-15) Mr. Cope claims he has expertise in the use of force, arrest, control tactics, patrol procedures and practices, detective procedures and practices, supervision, report writing, training, adult learning and instructor development. (Id. at p. 2:25-27)

Mr. Cope has testified as an expert in over 100 law enforcement cases in Municipal, Superior and Federal Courts. Mr. Cope has given deposition or trial testimony in several state and federal courts. (Id. at p. 2:25-3:2) Mr. Cope has reviewed pertinent documents in this suit, including, the Complaint, the criminal trial transcript, depositions, police department records and the Commission on Peace Officer Standards and Training Basic Academy Workbook Series. (Id. at p. 3-16)

4. LEGAL BACKGROUND

A. Summary Judgment Standard

Summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). Therefore, to defeat a motion for summary judgment, the non-moving party must show (1) that a genuine factual issue exists and (2) that this factual issue is material. Id. A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Facts are "material" if they "might affect the outcome of the suit under the governing law." Campbell, 138 F.3d at 782 (quoting Anderson, 477 U.S. at 248, 106 S. Ct. 2505).

The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The more implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment. See United States ex tel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). Nevertheless, the evidence must be viewed in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S. Ct. 2505. A court's role on summary judgment is not to weigh evidence or resolve issues; rather, it is to determine whether there is a genuine issue for trial. See Abdul-Jabbar v. G.M. Corp., 85 F.3d 407, 410 (9th Cir.1996).

B. Summary Judgment in a Qualified Immunity Case

All individual Defendants invoke the defense of qualified immunity. Deciding qualified immunity entails a two-step analysis. First, whether a constitutional violation occurred at all. If the answer to this question is yes, the court must then inquire whether the right violated was "clearly established" by asking whether a reasonable officer could believe that the defendant's actions were lawful. See Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001).

The traditional summary judgment approach should be used in analyzing the first step of the Saucier analysis:

A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? Where the facts are disputed, their resolution and determinations of credibility are manifestly the province of a jury.

Wall v. County of Orange, 364 F.3d 1107, 1110-1111 (9th Cir.2004) (internal citations and quotations omitted). In the second step, the court must ask whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted. Although this inquiry is primarily a legal one, where the reasonableness of the officer's belief that his conduct was lawful "depends on the resolution of disputed issues of fact . . . summary judgment is not appropriate." Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003) (citing Saucier, 533 U.S. at 216, 121 S. Ct. 2151 (Ginsburg J., concurring).)

C. Civil Rights Claims Under 42 U.S.C. Section 1983

"Section 1983 provides for liability against any person acting under color of law who deprives another `of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir.2003) (quoting 42 U.S.C. § 1983). "The rights guaranteed by section 1983 are `liberally and beneficently construed.'" Id. (quoting Dennis v. Higgins, 498 U.S. 439, 443, 111 S. Ct. 865, 112 L. Ed. 2d 969 (1991)). Pursuant to 42 U.S.C. § 1983, Plaintiff may bring a civil action for deprivation of rights under the following circumstances:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

To establish personal liability in a § 1983 action, it is enough to show that the official, "acting under color of state law, caused the deprivation of a federal right." Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991) (internal quotations omitted). Public officials sued in their personal capacity may assert personal liability defenses, such as qualified immunity. Dittman v. California, 191 F.3d 1020, 1027 (9th Cir.1999).

5. DISCUSSION

A. § 1983 Fourth Amendment Unreasonable Search and Seizure

I. Claims Against Defendants Chief Patricia Medina and Defendant CPL. Chris Simmons

Plaintiff Oxborrow"s Opposition to Defendants' Statement of Undisputed Facts, states: "Plaintiff does not dispute the facts regarding Sergeant Simons and Chief Medina. He therefore will stipulate to their dismissal." (Doc. 19, p. 4:20-22). Plaintiff provides no evidence relating to Defendant Simons and Medina on the first claim under the Fourth and Fourteenth Amendment, second claim under Section 1983, Policy and Custom and third claim, Section 1983, Equal Protection under the Fourteenth Amendment. Defendants' Motion for Summary Judgment as to these claims for Defendants Simons and Medina is GRANTED.

II. Official Capacity

Plaintiff brings suit under § 1983 for violation of his civil rights to be free from unreasonable search and seizure under the Fourth Amendment (First Claim) and violation of equal protection of the laws under the Fourteenth Amendment (Third Claim) against Defendant Officer Tingley in his official capacity.

When state officials are sued in their official-capacities, the suit is treated as against the state. Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir.1997). "1983 claims against government officials in their official capacities are really suits against the governmental employer because the employer must pay any damages awarded." Butler v. Elle, 281 F.3d 1014, 1023 fn. 8 (9th Cir.2002). In such suits, the real party in interest is the entity for which the official works. Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991). By contrast, "[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions [taken] under color of state law." Graham, 473 U.S. at 165, 105 S. Ct. 3099.

A suit against Defendant Tingley, in his official capacity is the same as a suit against the payor of any damages that may be awarded, therefore the proper defendant is Defendant City of Coalinga.

Plaintiffs § 1983 claim against Defendant Tingley in his official capacity is DISMISSED from the suit WITH PREJUDICE, it is redundant.

III. Fourth Amendment: Unreasonable Search and Seizure

"It is not disputed that the Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense." Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979). "The validity of the arrest does not depend on whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest. We have made clear that the kinds and degree of proof and the procedural requirements necessary for a conviction are not prerequisites to a valid arrest." Id. "`[P]robable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Id. at 37, 99 S. Ct. 2627.

There is no dispute that Officer Tingley was acting under color of state law when he arrested Plaintiff. Plaintiff must also prove deprivation of a federal constitutional or federal statutory right. Plaintiff contends that his misdemeanor arrest for alleged violations of California Penal Code Sections 12025 and 417, both misdemeanors in California, violated his Fourth Amendment rights because the alleged crimes were not committed in Defendant Officer Tingley's presence. Plaintiff also contends that Defendant Officer Tingley did not have probable cause to, arrest him because Plaintiff told Tingley that he was the owner of the gun, the gun was in plain view and he had the gun in plain view because he feared for his life, and needed it for self-defense.

Plaintiffs contention that his Fourth Amendment rights were violated because he was arrested for misdemeanor violations not committed in the presence of Officer Tingley, is not sustainable. Barry v. Fowler, 902 F.2d 770 (9th Cir.1990) acknowledges that under California law, an officer may make a warrantless arrest only if he has reasonable cause to believe that a person has committed a misdemeanor in his presence under Cal.Penal Code § 836, subd. 1, however "section 1983 action is not dependent on whether [the Officer] was present when [the plaintiff] committed the misdemeanor. Rather, the crucial inquiry is whether [the Officer] had probable cause to make the arrest." Id. at 772 (emphasis added) (no Fourth Amendment violation in § 1983 case when plaintiff arrested in violation of a state law.) The question of whether the officer had probable cause based on the disputed facts is generally a question for the jury. McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984).

Plaintiff cites Atwater v. City of Logo Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001) for the principle that a presence requirement is necessary, but there however the Court specifically stated it was not addressing this requirement: "We need not, and thus do not, speculate whether the Fourth Amendment entails an `in the presence' requirement for purposes of misdemeanor arrests." Id. at 341 n. 11, 121 S. Ct. 1536.

Plaintiff also brings his Section 1983 suit claiming the arrest was not grounded in state law. It is proper to look to state law in determining whether or not an arrest was constitutional. Bingham v. City of Manhattan Beach, 341 F.3d 939, 950 (9th Cir.2003); Edgerly v. City & County of San Francisco, 495 F.3d 645, 655 (9th Cir.2007). "To determine whether the Officers had probable cause at the time of the arrest, we consider `whether at that moment the facts and circumstances within [the Officers'] knowledge . . . were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.'" Edgerly, 495 F.3d at 651, quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). "[P]robable cause supports an arrest so long as the arresting officers had probable cause to arrest the suspect for any criminal offense, regardless of their stated reason for the arrest. . . however, an arrest is still unlawful unless probable cause existed under a specific criminal statute." Id. at 651-652 [citations omitted].

Here, Officer Tingley claims he had probable cause to arrest Plaintiff for carrying a concealed weapon, under California Penal Code § 12025 and exhibiting a firearm, under California Penal Code § 417(a)(2) and recommended charges be filed on these two violations. The District Attorney filed three charges against Plaintiff: violation of California Penal Code section 12025(a)(1), concealed firearm in vehicle; California Penal Code section 417(a)(2), drawing or exhibiting a firearm; and California Penal Code section 12031(a)(1), carrying a loaded firearm.

California Penal Code Section 12025(a)(1), titled "Carrying weapon concealed within vehicle or on person; offense; arms in holster or sheath," provides^[2]:

(a) A person is guilty of carrying a concealed firearm when he or she does any of the following:

(1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.

Cal.Penal Code § 12025(a)(1).

California Penal Code Section 417(a)(2), titled "Drawing, exhibiting, or using firearm or deadly weapon; self defense; peace officers," provides:

(1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:

(A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.

(B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.

Cal.Penal Code § 417(a)(2).

Plaintiff contends that as to probable cause for arrest under California Penal Code § 12025, it is undisputed that the weapon in issue was found in plain view on the front seat of the auto, therefore nothing criminal was observed by Officer Tingley.

As to probable cause for arresting Plaintiff in violation of California Penal Code § 417(a)(2), Plaintiff argues that Officer Tingley was aware that Plaintiff had accessed and loaded the weapon in lawful self-defense of himself and others. Officer Tingley arrived on the scene and asked who had the gun. Plaintiff states that he told Officer Tingley that the gun was his, Officer Tingley saw that the gun was in plain view in the front seat of his vehicle, and Plaintiff had the gun in plain view because he feared for his life. Plaintiff also asserts that he did not exhibit his weapon in a rude or angry manner either in or out of Officer Tingley's presence. Plaintiff relies on a published opinion by former California Attorney General Stanley Mosk, which opines in regards to Penal Code Section 12025, that it "does not prohibit the carrying of a concealable firearm on the seat of automobile so long as the weapon is exposed to plain view." 38 Cal. Op.Atty.Gen. 199. Plaintiff provides no case law supporting this opinion. This is not a clearly established area of the law.

Officer Tingley in response states that he was responding to a New Years Eve 911 call, reporting that there was a man with a gun in the parking lot of Outlaws bar. In opposition to Plaintiffs self-defense assertion, Officer Tingley responds that Plaintiff appeared intoxicated, that Plaintiff stated to him that he had an opportunity to leave but choose not to because he was too intoxicated. All this weighed in Officer Tingley's determination that there was no valid self-defense claim. Officer Tingley states that if Plaintiff was in fear of his life and safety, one would do pretty much "everything and anything to remove themself from the situation if, in fact, the person is in fear for his life." (Doc. 17, Decl. Hager, Exhibit L, Depo. Tingley, p. 56:20-25-57:1-23) Defendant Officer Tingley alleges that Plaintiff had the opportunity to slowly walk away or run away from the scene because Mr. Lopez, who was posing all the threat (including against Mr. Bridges), had left the scene. But Plaintiff and Mr. Bridges remained sitting in their vehicle for a period of time when they had the opportunity to leave. (Id., p. 60:10-16) Further, two of the witnesses Officer Tingley interviewed stated they heard a noise and saw Plaintiff holding a gun. Plaintiff admitted he attempted to conceal the gun and thought he had been successful. Plaintiffs gun was loaded and it was not in plain view. Plaintiff admitted to Officer Tingley that he did not have a concealed weapons permit. Plaintiff did not have the gun in plain sight nor did Plaintiff have the gun in a locked box within his car. Defendant also argues that while Plaintiff argues the gun was in plain sight, on the front seat of the car, Plaintiff testified that he was trying to conceal the gun. Defendant argues that whether an officer had probable cause to arrest is determined at the time of the arrest not the facts thereafter.

There are disputed issues of material fact concerning whether Plaintiff acted in self-defense, acted in a rude and threatening manner, and concealed a weapon. The disputed issues of material fact relate to the question of whether Defendant Officer Tingley had probable cause to arrest Plaintiff for carrying a concealed firearm, and exhibiting a firearm, as it is disputed whether the offenses were committed in the officers' presence.

IV. Qualified Immunity

Defendant Tingley also asserts that he is entitled to qualified immunity on Plaintiffs Section 1983 claim. "In order to be entitled to qualified immunity, the officers must show that their discretionary conduct did not violate any clearly established rights of which a reasonable person should have known." Penilla v. City of Huntington Park, 115 F.3d 707, 709 (9th Cir.1997). "Summary judgment on qualified immunity is not proper unless the evidence permits only one reasonable conclusion. Where `conflicting inferences may be drawn from the facts, the case must go to the jury.'" Munger v. City of Glasgow Police Dept., 227 F.3d 1082, 1087 (9th Cir. 2000) (quoting LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir.2000)). Defendant Officer Tingley has the burden to show that "`a reasonable officer could have believed, in light of the settled law, that he was not violating a constitutional or statutory right.'" Id. (quoting Collins v. Jordan, 110 F.3d 1363, 1369 (9th Cir. 1996)). "If the right is clearly established, the court must determine whether the defendant's conduct was `objectively legally reasonable' given the information possessed by the defendant at the time of his or her conduct." Lawrence v. U.S., 340 F.3d 952, 955 (9th Cir.2003) (citing Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). "[Q]ualified immunity shields agents . . . if 'a reasonable officer could have believed [the action] to be lawful, in light of clearly established law and the information the [arresting] officers possessed.'" Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991) (quoting Anderson, 483 U.S. at 641, 107 S. Ct. 3034.)

Nevertheless, the evidence must be viewed in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S. Ct. 2505.

It is clearly established law that arresting an individual without probable cause constitutes unreasonable search and seizure under the Fourth Amendment. The qualified immunity analysis reduces to a single particularized inquiry: whether "a reasonable officer could have believed that probable cause existed [for the] arrest" under the circumstances. Edgerly, 495 F.3d at 654. If so, Officer Tingley is entitled to qualified immunity. If the reverse, then Officer Tingley is not entitled to immunity under the law. Hunter, 502 U.S. at 227, 112 S. Ct. 534.

Probable cause existed if "at the moment the arrest was made . . . the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing" that Officer Tingley had probable cause to arrest Oxborrow for carrying a concealed weapon and exhibiting a firearm. Id. at 228, 112 S. Ct. 534. Here, Officer Tingley was responding to a New Years Eve 911 call regarding a man in the parking lot of Outlaws Bar with a gun. Officer Tingley approached the scene in search of a man with a gun. After Officer Tingley and his colleagues detained all subjects in the parking lot at gunpoint, Oxborrow stated to a passing officer he had a loaded gun in his car. Officer Tingley approached Plaintiff and asked Plaintiff where the weapon was located. Plaintiff Oxborrow told Officer Tingley that the gun was in the front seat. Officer Tingley found a loaded gun in Plaintiffs vehicle capable of being fired. Officer Tingley then asked Plaintiff if he had a concealed weapons permit and Plaintiff responded in the negative. Officer Tingley interviewed two independent witnesses who stated they heard a noise and saw Plaintiff holding a gun. Officer Tingley and other officers performed an investigation at the scene, interviewed witnesses, suspects and made conclusions regarding the crimes committed.

Plaintiff's expert, former law enforcement officer and instructor, Curtis J. Cope, opines that under California law enforcement standards, an officer is taught that the officer may make a warrantless arrest of a person whenever the officer has probable cause to believe that the person to be arrested committed a misdemeanor in their presence which includes carrying a loaded firearm on an individual person's or in a vehicle while in any public place or on any public street. (Doc. 17-6, Cope Decl., p. 4:14-18) Mr. Cope further opines "that a reasonable officer would have considered that there was probable cause to arrest plaintiff at that time." (Id. at p. 4:17-18) The time of arrest, is the standard for addressing qualified immunity and a reasonable officer would have reason to believe that Officer Tingley, with the information known to him, had probable cause to arrest Plaintiff Oxborrow based upon California Penal Code section 12025(a)(1) which states, "A person is guilty of carrying a concealed firearm when he or she does any of the following: Carries concealed within any vehicle which is under his control or direction any pistol, revolver, or other firearm capable of being concealed upon the person." (Id. at p. 4:14-17)

A reasonable officer would have reason to believe that with the information known to Officer Tingley, probable cause existed to arrest Plaintiff Oxborrow based upon California Penal Code section 417(a)(2), which states, in part, "Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable . . ." Two of the witnesses Officer Tingley interviewed told him they heard a noise and saw Plaintiff holding a gun. Plaintiff admitted to Officer Tingley the gun was his. Plaintiff admitted he attempted to conceal the gun and thought he had been successful. The officers found the gun loaded.

Defendant Officer Tingley disputes Plaintiffs self-defense assertion and responds that Plaintiff appeared intoxicated. Plaintiff stated to him that he had an opportunity to leave but choose not to because he was too intoxicated. When Plaintiff obtained the gun from the trunk of his vehicle, no one was present. All this weighed in Officer Tingley's determination that there was no valid self-defense claim. Officer Tingley states that if Plaintiff was in fear of his life and safety, one would do pretty much "everything and anything to remove themself from the situation if, in fact, the person is in fear for his life." (Doc. 17, Decl. Hager, Exhibit L, Depo. Tingley, p. 56:20-25-57:1-23) Defendant Officer Tingley alleges that Plaintiff had the opportunity to slowly walk away or run away from the scene because Mr. Lopez, who posed the threat had left the scene. But Plaintiff and Mr. Bridges remained sitting in their vehicle for a period of time when they had the opportunity to leave. (Id., p. 60:10-16)

Officer Tingley had reasonable, trustworthy information from percipient witnesses on the scene, to believe Plaintiff Oxborrow had committed the offenses. Even if Officer Tingley reasonably but mistakenly concluded that probable cause was present, he is entitled to qualified immunity. Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991) ("The qualified immunity standard 'gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'")

Defendants' motion for summary judgment on Plaintiffs § 1983 Fourth Amendment unreasonable search and seizure claim on qualified immunity grounds is GRANTED.

B. Section 1983 Monell Liability

Plaintiff's Complaint alleges a claim against the City of Coalinga under Section 1983 for their custom, practice and policy of discrimination against persons who are not local residences. However, Plaintiff in its Opposition papers, to Defendants' Motion for Summary Judgment provides no argument nor evidence to survive a summary judgment challenge to any Monell claims. Local governments are "persons" subject to suit for "constitutional tort[s]" under 42 U.S.C. § 1983. Haugen v. Brosseau, 339 F.3d 857, 874 (9th Cir. 2003) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 n. 55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)) "[O]ur holding . . . that local governments can be sued under § 1983 necessarily decides that local government officials sued in their official capacities are `persons' under § 1983 in those cases in which, as here, a local government would be suable in its own name." Monell, 436 U.S. at 691 n. 55, 98 S. Ct. 2018. "Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional, implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers . . . [or for] deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. at 690-91, 98 S. Ct. 2018.

To prevail on a § 1983 complaint against a local government under Monell, a plaintiff must satisfy a three-part test: (1) The official(s) must have violated the plaintiffs constitutional rights; (2) The violation must be a part of policy or custom and may not be an isolated incident; and (3) A nexus must link the specific policy or custom to the plaintiffs injury. See Monell, 436 U.S. at 690-92, 98 S. Ct. 2018. There are three ways to show a policy or custom of a municipality:

(1) By showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity;

(2) By showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision or

(3) By showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.

Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir.2005).

Plaintiff advised at oral argument that he was not pursuing a Monell claim. Defendants' motion for summary adjudication as to Plaintiffs Section 1983 policy and custom claim against Defendant City of Coalinga based on Monell is GRANTED.

C. Section 1983: Fourteenth Amendment Equal Protection Under the Laws

Equal Protection is a right secured by the United States Constitution. See, e.g., Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) (Equal Protection clause intended to protect every person within a state from intentional and arbitrary discrimination). A claim for equal protection under § 1983 requires Plaintiffs to show that Defendant Tingley, under color of law, "acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class," in violation of Plaintiffs right to equal protection of the laws under the Fourteenth Amendment. Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir.1998) (citing Washington v. Davis, 426 U.S. 229, 239-40, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976))

Plaintiff provides no evidence or any argument in support of his third claim for Section 1983 violation of his Fourteenth Amendment Equal Protection of the Laws that he is a member of a cognizable class. Plaintiffs Complaint alleges that Officer Tingley violated his right to equal protection of the laws under the Fourteenth Amendment because he targeted persons who were non-residents for arrest without probable cause. Neither party objected to the dismissal of this claim at oral argument.

Defendants' motion for summary adjudication of Plaintiffs § 1983 Equal Protection under the Fourteenth Amendment claim is GRANTED.

6. CONCLUSION

For all the reasons stated above,

Defendants' motion for summary judgment as to claims brought against Defendants Simons and Medina is GRANTED.

Defendant' Tingley's motion for summary judgment on Plaintiffs § 1983 Fourth Amendment claim is GRANTED on qualified immunity grounds.

Defendants' motion for summary adjudication on Plaintiffs § 1983 Monell policy and custom claim against the City of Coalinga is GRANTED. Judgment shall be entered against Plaintiff in favor of the City of Coalinga.

Defendants' motion for summary adjudication on Plaintiffs § 1983 Equal Protection under the Fourteenth Amendment claim is GRANTED.

Counsel for Defendants shall prepare and lodge a form of order and judgment reflecting the ruling made in this Memorandum Decision within 5 days of the filing date of this Memorandum Decision.

IT IS SO ORDERED.

NOTES

[1] Defendants' facts 29-39, 43-46, 48-49 are undisputed facts concerning Defendant Sergeant Simmons and Defendant Chief Medina. Plaintiff does not dispute these facts because he has indicated in his Opposition that he will stipulate to their dismissal. The facts pertinent to these Defendants are omitted from the fact section.

[2] Plaintiff also cites and addresses California Penal Code § 12031: "(a)(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory." However, Officer Tingley did not claim probable cause to arrest Plaintiff for this offense.