Simmons v. Superior Court of San Diego County , 212 Cal. Rptr. 3d 884 ( 2016 )

Filed 12/29/16 Certified for partial publication 1/25/17 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KENNETH SIMMONS, D070734
Petitioner, (San Diego County
Super. Ct. No. 37-2015-00012269-CU-
v. CR-CTL)
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
THE CITY OF SAN DIEGO, et al.,
Real Parties in Interest.
PROCEEDINGS in mandate after the superior court granted summary
adjudication in favor of real parties in interest. Gregory W. Pollack, Judge. Petition
granted in part, denied in part.
Sias | Carr, Peter L. Carr, IV, NaShaun L. Neal; Filer | Palmer and Justin A.
Palmer for Petitioner.
No appearance for Respondent.
Jan I. Goldsmith, City Attorney, Daniel F. Bamberg, Assistant City Attorney,
Keith W. Phillips, Deputy City Attorney, for Real Parties in Interest.
San Diego police officers Carlos Robles and Kyle Williams initiated contact with
plaintiff Kenneth Simmons for being in a city park after it closed and for riding a bicycle
in the dark without a headlight. Simmons fled. The officers pursued, detained, and
searched him, finding a plastic baggie containing rock cocaine. Simmons was charged
with possessing a controlled substance, using a weapon in a fight, and resisting an officer.
A jury was unable to reach a verdict on the drug possession count and acquitted him on
the others.
Simmons then brought a civil action against the City of San Diego (the City) and
the officers (collectively, defendants) asserting (among others) claims under the Tom
Bane Civil Rights Act (Bane Act; Civ. Code,1 § 52.1), which authorizes civil actions by
individuals whose federal or state rights have been interfered with by "threat,
intimidation, or coercion"; and under the Ralph Civil Rights Act of 1974 (Ralph Act;
§ 51.7), which authorizes civil actions by individuals subjected to violence or
intimidation because of their membership in a protected class. Simmons, who is African-
American, alleged the officers violated these statutes by using excessive force during his
arrest, pulling his underwear into a "wedgie" while searching him, and conducting a
nonconsensual physical body cavity search of his rectum.
1 Undesignated statutory references are to the Civil Code.
2
Defendants moved for summary adjudication of the Bane Act and Ralph Act
claims. The trial court granted the motion. Simmons filed a petition for writ of mandate,
which defendants opposed. We issued an order to show cause why we should not grant
the requested relief. For reasons we will explain, we grant the petition as to Simmons's
Bane Act claim, but deny it as to his Ralph Act claim.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Underlying Incident and Simmons's Criminal Case2
On the night of May 17, 2014, San Diego police officers Robles and Williams
were patrolling Memorial Park (the park). They observed Simmons straddling his
bicycle next to four Hispanic males who were standing by a park bench. The officers
activated the emergency lights on their patrol vehicle and told another group of people
that the park was closed. Simmons fled on his bicycle and the officers pursued him in
their vehicle. After 10 to 20 seconds, Williams exited the vehicle and pursued Simmons
on foot. When Williams caught up about 10 seconds later, he "bear hug[ged]" Simmons
to the ground.3 The officers handcuffed Simmons, searched him, and found a baggie
containing rock cocaine. Simmons was arrested and later charged with possessing a
controlled substance (Health & Saf. Code, § 11350, subd. (a)); resisting an executive
officer (Pen. Code, § 69); using a deadly weapon in a fight (Pen. Code, § 417, subd.
2 We take judicial notice of the Superior Court's records in People v. Kenneth
Dewayne Simmons (Super. Ct. San Diego County, No. SCD256148). (Evid. Code,
§§ 452, subd. (d), § 459, subd. (a).)
3 Williams testified Simmons pulled a pocketknife on him but he was able to elbow
it out of Simmons's hand.
3
(a)(1)); and willfully resisting, delaying, or obstructing a peace officer (Pen. Code, § 148,
subd. (a)(1)).
Simmons moved to suppress the prosecution's evidence on the basis the officers'
warrantless detention and search of him was presumptively unreasonable. The motion
was denied.
In October 2014, a jury hung on the drug possession count and acquitted Simmons
on the remaining counts. During deliberations in the criminal trial, the jury submitted the
following question: "If the defendant willfully resisted a peace officer while the officer
was lawfully performing his duties (and the defendant knew the officer was performing
his duties and was an officer), but the officer subsequently performed his duties
unlawfully during the same encounter, is the defendant guilty of Pen. Code § 148 in
Count 2 (the lesser offense [to resisting an executive officer]?" (Italics added.)
II. Simmons's Civil Complaint
In April 2015, Simmons filed a civil lawsuit against the City, the San Diego Police
Department,4 and the officers, asserting causes of action for battery (officers only),
sexual assault (officers only), violating the Bane Act (all defendants), violating the Ralph
Act (all defendants), intentional infliction of emotional distress (all defendants), negligent
supervision (City only), and negligence (all defendants). His operative second amended
complaint alleges the following narrative.
4 Simmons eventually dismissed the department on the basis it is not an entity
separate from the City.
4
About 10:20 p.m. on May 17, 2014, Simmons was lawfully riding his bicycle and
listening to music in the park when he was profiled by Robles and Williams. Without
reasonable suspicion or probable cause, the officers "allegedly trailed behind [him] to
inform him about the need of using a bike light [with] which his bike was already
equipped." Simmons did not hear the officers trailing behind him because he was
wearing earphones and listening to music. The officers approached Simmons without
reasonable suspicion or probable cause and accused him of attempting to evade them
because he allegedly possessed drugs. "After [Simmons] repeatedly denied that he
possessed drugs, [the officers] then told [him] that they believed that he inserted the
drugs [into] his rectum and that they were going to retrieve them with their hands.
[Simmons] begged [the officers] not to violate him in that way." The officers "conducted
anal cavity searches on [Simmons]'s body without his consent on at least two separate
occasions: once while on the side of the street and [again] when [the officers] placed him
in the patrol vehicle." The officers also hit Simmons repeatedly in the head and torso
"causing multiple contusions and partially causing [Simmons] to defecate on himself."
In support of his Bane Act claim, Simmons alleged the officers "violated [his]
right to be free of unreasonable searches" by conducting warrantless and nonconsensual
physical body cavity searches. Invoking the statutory language, Simmons alleged the
officers (1) threatened "that they were going to perform an illegal anal cavity search . . .
and carried out that threat"; (2) intimidated Simmons "by handcuffing him, punching and
kicking him in the stomach and face and pulling down his pants prior to forcefully
conduc[t]ing an anal cavity search . . ."; and (3) coerced him when he "was held against
5
his will and beaten by [the officers] while they forcefully conducted an anal cavity search
on him." Simmons alleged the officers' conduct was "deliberate and spiteful and
specifically aimed [at] depriving him of his [F]ourth [A]mendment right[s]."
In support of his Ralph Act claim, Simmons alleged the officers interfered with the
exercise or enjoyment of his statutory and constitutional rights "by the unreasonable use
of excessive force perpetrated on him in a racially motivated manner."
III. Defendants' Summary Adjudication Motion
The City and the officers moved for summary adjudication of Simmons's Bane Act
and Ralph Act causes of action.
A. Defendants' Moving Papers
1. Bane Act Claim
Defendants argued they were entitled to summary adjudication of Simmons's Bane
Act claim because no liability arises under the act when an arrest is lawful. They asserted
the officers had probable cause to arrest Simmons, were entitled to use force in doing so,
and did not threaten Simmons beyond telling him to stop resisting.
Defendants maintained the officers had probable cause to detain Simmons for
three reasons. First, "for being in a City park after it was closed." They submitted
evidence showing (1) the officers encountered Simmons at approximately 10:20 p.m.; (2)
the park closed at 10:00 p.m.; and (3) it is a violation of the San Diego Municipal Code to
be in a city park after it has closed.
Second, defendants argued the officers "had separate probable cause to detain
[Simmons] for riding a bicycle in a time of darkness without a light in violation of
6
Vehicle Code section 21202."5 Each officer submitted a declaration stating the
following: "I saw [Simmons] riding his bicycle at approximately 10:20 p.m. I did not
see any lamp emitting white light on the ground or sidewalk in front of Simmons as he
was riding a bicycle that night. Even after arresting [Simmons], I did not see a lamp
emitting white light on Simmons'[s] bicycle or on Simmons himself." Defendants
submitted as an exhibit a video captured by Williams's body-worn camera during the
incident to show that it was dark when Simmons was riding his bicycle.
Third, defendants asserted the officers "had probable cause to detain [Simmons]
for willfully resisting, delaying and obstructing a peace officer in violation of Penal Code
section 148." The officers' declarations stated: "We activated our patrol vehicle's
overhead blue and red lights while trailing behind Simmons on his bicycle to stop him.
Simmons looked back, did not yield and kept pedaling his bicycle away from us as fast as
he could. [Simmons] proceeded to ride his bicycle into a dark alleyway. When we
finally caught Simmons, he fought our efforts to arrest and search him, presumably to
prevent us from searching his right front pocket where we found his crack cocaine. The
body camera video footage shows our search of [Simmons] and our removing a baggie
with crack cocaine from Simmons['s] right front coin pocket . . . ." Although the officers
5 The version of Vehicle Code section 21201, subdivision (d)(1) in effect on May
17, 2014 provides in part: "A bicycle operated during darkness upon a highway, a
sidewalk . . . , or a bikeway . . . , shall be equipped with [¶] . . . [¶] [a] lamp emitting a
white light that, while the bicycle is in motion, illuminates the highway, sidewalk, or
bikeway in front of the bicyclist and is visible from a distance of 300 feet in front and
from the sides of the bicycle."
7
found drugs in Simmons's possession, they did not cite suspicion of drug possession as a
basis for probable cause to detain him.
Defendants maintained that because the officers had probable cause to detain or
arrest Simmons, they were "entitled to use coercion and threats and intimidation" in
doing so. They nevertheless denied making any threats (beyond telling Simmons to stop
fleeing and resisting) or using excessive force (as demonstrated by the footage from the
body-worn camera).
Defendants' motion did not reference Simmons's allegations that the officers had
conducted nonconsensual physical body cavity searches.
2. Ralph Act Claim
Defendants argued Simmons's Ralph Act claim failed because he had no evidence
the officers' conduct was racially motivated. The officers' declarations asserted they
"never considered Simmons'[s] race, color, ancestry, or national origin when [they] made
[their] decision to contact Simmons and to ultimately detain and arrest him." Defendants
also lodged Simmons's interrogatory responses in which he (1) identified the officers as
the only persons having knowledge of why they arrested him; and (2) stated he was
"unable to read the mind[s] of" the officers "and as such, is unable to answer" the
interrogatory asking him to "[d]escribe in detail all reasons why [the officers] arrested
[him]." Defendants also cited as an admission the allegation in Simmons's complaint that
the officers "trailed behind [him] to 'inform him about the need of using a bike light.' "
8
B. Simmons's Opposition
1. Bane Act Claim
Simmons argued his Bane Act claim survived summary adjudication because
factual disputes existed regarding whether the officers had probable cause to arrest him
and whether they engaged in the requisite coercion, intimidation, or threats.
Regarding probable cause for the municipal code violation, Simmons did not
dispute that (1) he was in the park at about 10:20 p.m., (2) the park had closed at 10:00
p.m., and (3) it was a violation of the municipal code to be in a city park after it closed.
However, he cited testimony from Williams's deposition in which Williams said he
considered Simmons free to ride his bicycle away when the officers began to drive
toward him, thereby "[i]mplicit[ly] . . . admi[tting] . . . the officers did not have probable
cause to arrest" Simmons for the municipal code violation.
As to probable cause for the Vehicle Code violation, Simmons did not dispute the
requirements of the Vehicle Code or that he was riding his bicycle in the dark. However,
he cited his deposition testimony to establish that he had a headlight "on the handlebars,
like [he] always put it." He acknowledged the body-worn camera footage did not show
such a light, but he surmised it fell off during the pursuit. Simmons also cited the
officers' deposition testimony to establish that, at the precise moment the officers began
9
pursuing him for an alleged Vehicle Code violation, neither officer could determine
whether Simmons had a headlight on the front of his bicycle.6
Regarding probable cause for resisting the officers, Simmons explained he initially
fled when he saw the officers because of an incident that occurred near the park a few
weeks earlier. Simmons said he was riding his bicycle with a friend when Robles and his
partner (possibly Williams) conducted a nonconsensual search of Simmons and beat him
for two to three minutes in the back of their patrol vehicle before releasing him without
charges. Thus, when he saw the officers on May 17, he feared for his life and rode off as
fast as he could.
6 Williams initially testified in his deposition that he saw the bicycle's handlebars as
Simmons rode off: "Q: So you are behind Mr. Simmons as he's riding his bike?
[¶] . . . [¶] A: Correct. [¶] . . . [¶] Q: Okay. So you had no idea whether there was a
bike light violation at that time, right?" [¶] A: Well, from my side of the police car, I
remember it being offset. And from the passenger's seat, I could see onto the front of the
bicycle where, for the California law, where the light should be attached to it."
However, after being shown a transcript of his testimony from Simmons's criminal
trial, Williams revised his testimony: "Yeah, it refreshes my memory. I know from
reading my testimony that I didn't see the bicycle light until we got in behind him."
Robles testified in his deposition that he was not able to see the front of Simmons's
bicycle as he rode off: "Q: Okay. And when [Simmons] . . . turned away and . . . started
pedaling it away . . . from you, were you able to see the front of his bike? [¶] A: Not at
the point that he was pedaling away from us, because we were, I would say, maybe 15
feet away. [¶] Q: Okay. So if he had . . . activated lights on his bike when he started
pedaling away, you would not have been able to see that, correct? [¶] . . . [¶] A: I would
be able to see the rear light but not the front light. [¶] . . . [¶] Q: Okay. And do you
recall seeing that there were three lights on the bike? [¶] A: I did not see any lights lit
on his bike. [¶] Q: Oh, okay. But I'm saying, did you see that there were three lights on
his bike? [¶] A: Not lit. That's the best answer I could give you. So if they were on his
bike, I do not recall seeing lights . . . lit on his bike."
10
Apart from the lawfulness of his arrest, Simmons argued the officers engaged in
coercive, intimidating, and threatening conduct "independent from" and "separate from
the initial arrest." Citing his own deposition testimony (and other evidence), Simmons's
opposition provided the following narrative.
When Simmons realized after riding away on his bicycle that the officers were
pursuing him, he stopped in an alleyway, inserted a baggie containing rock cocaine into
his rectum, and kneeled on the ground. Williams grabbed him, threw him to the ground,
and punched him. As Williams attempted to handcuff Simmons without explaining that
he was under arrest, a "struggle ensued" during which Williams struck Simmons several
times. Robles caught up and joined in, striking Simmons in the face, kicking him in the
back, and hitting him in the head several times with a flashlight. The officers handcuffed
Simmons and removed a knife from his waistband. Williams put on black latex gloves
and the officers began to search Simmons. During the search, Robles asked Simmons if
his friend from the previous police encounter was in the park that night.
Robles then escorted Simmons down the alley toward the patrol vehicle. On the
way, Robles said, "We're going to do a cavity search on you." Simmons responded, "No,
I'm not a [Fourth Amendment] waiver, you can't do that." Williams stated, "Yes, we
are." Robles leaned Simmons on the hood of the patrol vehicle, but Simmons fell to the
ground. Robles then got on top of Simmons and repeatedly struck him in the abdomen.
Williams pressed Simmons's head against the concrete.
After Simmons repeatedly denied that he possessed any drugs, the officers stated
they believed he inserted them in his rectum. The officers searched Simmons's pockets
11
and removed a plastic baggie. Williams pulled Simmons's underwear into a "wedgie"
and inserted an unknown number of fingers into Simmons's rectum. Robles also
penetrated Simmons's rectum. Simmons said the officers penetrated him as many as four
times and to a depth that hurt and caused him to defecate a little in his underwear.
Simmons submitted excerpts from the deposition of Denise Phillips, the mother of
his child. She said she heard Simmons yelling for help during the incident and responded
to the scene. She saw that Williams had his gloved "hand near [Simmons's] butt crack"
and "was searching around his private areas." She said Robles told her Simmons is "not
as innocent as [you] fuckin' think he is."
In his opposition, Simmons argued that the facts in this narrative established the
coercion, intimidation, or threats necessary to establish a Bane Act claim. Specifically,
he argued the officers coerced him by (1) punching him several times when he posed no
danger to the officers, (2) "pull[ing] [his] underwear into a wedgie," and (3) Williams
"plac[ing] his hand into Simmons'[s] rectum to perform an anal cavity search. This
conduct was not necessary to perform a search incident to arrest." Simmons argued
Robles intimidated him by asking whether his friend from their previous encounter was
among the group of men at the bench, which Simmons asserted "was a dog whistle to
remind Simmons about being roughed up by [Robles] and his partner . . . ." Finally,
Simmons argued the officers threatened him by (1) telling him they were going to
perform a physical body cavity search, to which he objected, and (2) pulling his
underwear into a wedgie and saying they were going to do a physical body cavity search.
12
2. Ralph Act Claim
Simmons argued his Ralph Act claim survived summary adjudication because,
apart from the officers' self-serving declarations, circumstantial evidence indicated they
were racially motivated. That is, the officers pursued Simmons—the only African-
American male in the group of men at the bench—when "there was no reason for the
officers to follow Simmons over the [four] Hispanic" men. Thus, he reasoned, "a
reasonable jury could find based on targeting the sole African-American in a group, that
the officers[ ] singled-out Simmons because of his race."
Simmons argued the inference of racial motivation was bolstered by "his past
experiences with racial profiling by the San Diego Police Department." Phillips testified
in her deposition that she had observed such profiling of Simmons and had experienced it
herself.
Finally, for the same reasons he argued the officers lacked probable cause to arrest
him, Simmons argued the officers could not use the alleged municipal code or Vehicle
Code violations as post hoc justifications for singling him out.
C. Defendants' Reply
In reply, defendants reiterated their argument there was no Bane Act violation
because the officers had three grounds of probable cause to arrest Simmons and,
therefore, were entitled to use reasonable force to overcome his resistance and take him
into custody. Further, they reasoned that because the officers were entitled to arrest
Simmons, they were entitled to search him incident to arrest. Finally, defendants argued
there was no factual issue regarding whether a physical body cavity search occurred:
13
"The video does not lie and does not create a triable issue of fact because it shows the
officers did not search Simmons'[s] rectum."
Defendants argued there were no triable issues of fact on the Ralph Act claim
because it was undisputed Simmons was the only person by the bench who was on a
bicycle and who "rode away as fast as he could." They clarified that although the officers
could not immediately tell that Simmons did not have a headlight on his bicycle, probable
cause arose "after Simmons fled, riding away as fast as he could, [when] the Officers saw
he did not have a forward facing bicycle light at night." (Underscoring omitted.)
D. Trial Court's Ruling
The trial court construed the Bane Act as providing that so long as the officers had
probable cause to arrest Simmons, no Bane Act liability could arise from their conduct in
association with that lawful arrest. The court based its interpretation entirely on Bender
v. County of Los Angeles (2013) 217 Cal. App. 4th 968 (Bender) and the cases discussed
therein.
The court then found the officers "had probable cause to detain Simmons, or even
arrest him, based upon either or both the Municipal Code violation and the Vehicle Code
violation."7 Regarding the former, the court found it was undisputed that Simmons
violated the municipal code by being in the park after it closed. Regarding the latter, the
court noted the officers' testimony they did not see light emitting from the front of
Simmons's bicycle, and observed that the video showed there was no light on the bicycle
7 The court remarked that its probable cause finding "shouldn't shock anyone" in
light of the denial of Simmons's suppression motion in his criminal case.
14
when the officers finally apprehended Simmons. Significantly, the court found that
Simmons's testimony that he had a headlight on his bicycle did not create a triable issue
because it did not establish the light, "if, indeed, he even had one, was such that it could
provide illumination from 300 feet away as required . . . ." The court made no findings
with respect to Simmons's assertion the officers had conducted nonconsensual physical
body cavity searches.
The court also found Simmons's Ralph Act claim failed. Defendants met their
initial burden when the officers "den[ied] that race played any role in their decision to
contact, detain, or arrest plaintiff. Simmons, himself, concede[d] that he [did] not know
what was going on in the mind[s] of Williams and Robles." As for Simmons's theory that
the officers singled him out of a group containing four Hispanic males because he was
the lone African-American, the trial court explained "it was only Simmons, on a bicycle,
who sped off as fast as he could upon witnessing [the officers'] arrival. Under these
circumstances, it cannot be said that [the officers'] decision to follow Simmons was
racially motivated. That Simmons is African-American and Williams and Robles are not,
alone, does not give rise to a reasonable inference that Williams'[s] and Robles'[s] actions
were substantially motivated by race."
E. Writ Proceedings
Simmons filed a petition for writ of mandate seeking an order compelling the trial
court to vacate its summary adjudication ruling. Defendants filed an informal response.
We issued an order to show cause why we should not grant the relief requested. Our
order provided that, "[a]bsent objection . . . , the informal response filed by [defendants]
15
will be deemed [the respondent court's] return to the order to show cause. In the event of
an objection, [defendants] may file a return to the order to show cause . . . . [Simmons]
may file a reply . . . ." Neither defendants nor Simmons submitted any further briefing.
DISCUSSION
I. Summary Adjudication Principles
A defendant moving for summary adjudication "bears the burden of persuasion
that there is no triable issue of material fact and that [the defendant] is entitled to
judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826,
850 (Aguilar); Serri v. Santa Clara University (2014) 226 Cal. App. 4th 830, 859 (Serri).)
To meet this burden, the defendant must show one or more elements of the cause of
action cannot be established, or that there is a complete defense to that cause of action.
(Ibid.) The defendant may make this showing by relying on the plaintiff's "factually
devoid discovery responses." (Union Bank v. Superior Court (1995) 31 Cal. App. 4th 573,
590.) If the defendant does not present sufficient evidence to meet its initial burden, the
court must deny the summary adjudication motion. (Aguilar, at p. 850.)
Once the defendant satisfies its burden, " 'the burden shifts to the plaintiff . . . to
show that a triable issue of one or more material facts exists as to that cause of action or a
defense thereto.' " (Aguilar, supra, 25 Cal.4th at p. 849.) The plaintiff may not rely upon
the mere allegations or denials of his pleadings to show a triable issue of material fact
exists. (Ibid.)
We review a summary adjudication de novo. (Buss v. Superior Court (1997) 16
Cal. 4th 35, 60.) "In practical effect, we assume the role of a trial court and apply the
16
same rules and standards which govern a trial court's determination of a motion for
summary judgment." (Lenane v. Continental Maritime of San Diego (1998) 61
Cal. App. 4th 1073, 1079.) Thus, we apply the same three-step analysis trial courts use:
"First, we identify the issues framed by the pleadings. Second, we determine whether the
moving party has established facts justifying judgment in its favor. Finally, in most
cases, if the moving party has carried its initial burden, we decide whether the opposing
party has demonstrated the existence of a triable issue of material fact." (Serri, supra,
226 Cal.App.4th at pp. 858-859.) In doing so, "[w]e liberally construe the evidence in
support of the party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party." (Wilson v. 21st Century Ins. Co. (2007) 42 Cal. 4th 713,
717.) Because "[s]ummary judgment is a drastic measure that deprives the losing party
of a trial on the merits . . . [,] [a]ny doubts as to the propriety of granting the motion
should be resolved in favor of the party opposing the motion." (Molko v. Holy Spirit
Assn. (1988) 46 Cal. 3d 1092, 1107, superseded by statute on other grounds as stated in
Aguilar, supra, 25 Cal.4th at p. 853, fn. 19.)
II. Simmons's Bane Act Claim
A. Bane Act Overview
The Bane Act provides a civil cause of action against anyone who "interferes by
threat, intimidation, or coercion, or attempts 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, or of the rights secured by the
17
Constitution or laws of this state." (§ 52.1, subd. (a); see §52.1, subd. (b).)8 Although
initially enacted "to stem a tide of hate crimes" (Jones v. Kmart Corp. (1998) 17 Cal. 4th
329, 338), "a plaintiff need not allege the defendant acted with discriminatory animus or
intent; a defendant is liable if he or she interfered with the plaintiff's constitutional rights
by the requisite threats, intimidation, or coercion" (Austin B., supra, 149 Cal.App.4th at
p. 882; see Venegas v. County of Los Angeles (2004) 32 Cal. 4th 820, 841-843). "The
essence of a Bane Act claim is that the defendant, by the specified improper means (i.e.,
'threats, intimidation or coercion'), tried to or did prevent the plaintiff from doing
something he or she had the right to do under the law or to force the plaintiff to do
something that he or she was not required to do under the law." (Austin B., at p. 883.)
Shoyoye v. County of Los Angeles (2012) 203 Cal. App. 4th 947 (Shoyoye) clarified
that the Bane Act requires that the challenged conduct be intentional. There, the plaintiff
sued a county after he was lawfully arrested but inadvertently overdetained by 16 days
due to a paperwork error. (Shoyoye, at p. 951.) Based on "multiple references to
8 Section 52.1 provides in part: "(a) If a person or persons, whether or not acting
under color of law, interferes by threat, intimidation, or coercion, or attempts 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, or of the
rights secured by the Constitution or laws of this state, the Attorney General, or any
district attorney or city attorney may bring a civil action for injunctive and other
appropriate equitable relief in the name of the people of the State of California, in order
to protect the peaceable exercise or enjoyment of the right or rights secured. . . . [¶] (b)
Any individual whose exercise or enjoyment of rights secured by the Constitution or laws
of the United States, or of rights secured by the Constitution or laws of this state, has
been interfered with, or attempted to be interfered with, as described in subdivision (a),
may institute and prosecute in his or her own name and on his or her own behalf a civil
action for damages . . . ."
18
violence or threats of violence" in other subdivisions of section 52.1, the court concluded
the statute "was intended to address only egregious interferences with constitutional
rights, not just any tort. The act of interference with a constitutional right must itself be
deliberate or spiteful." (Id. at p. 959.) The court also "conclude[d] that where coercion is
inherent in the constitutional violation alleged, i.e., an overdetention in [c]ounty jail, the
statutory requirement of 'threats, intimidation, or coercion' is not met. The statute
requires a showing of coercion independent from the coercion inherent in the wrongful
detention itself." (Ibid.)
Bender, supra, 217 Cal. App. 4th 968—the sole case cited in the trial court's
summary adjudication ruling—applied Shoyoye in the context of an unlawful arrest
accompanied by the use of excessive force. There, the plaintiff sued a sheriff's deputy
and county after he was arrested without probable cause and beaten and pepper sprayed
while handcuffed and not resisting arrest. (Id. at pp. 972-973.) The jury found for the
plaintiff on his Bane Act claim, and the trial court denied the defendants' posttrial
motions. (Bender, at pp. 975-976.) The court of appeal affirmed, "conclud[ing] the Bane
Act does not require a showing of a violation of a constitutional right separate from the
Fourth Amendment violation . . . ." (Id. at p. 977, fn. 4.) The court explained "the Bane
Act applie[d] because there was a Fourth Amendment violation—an arrest without
probable cause—accompanied by the beating and pepper spraying of an unresisting
plaintiff, i.e., coercion that is in no way inherent in an arrest, either lawful or unlawful."
(Id. at p. 978, italics added.) The court "emphasize[d]," however, that this was not "a
case involving the use of excessive force during an otherwise lawful arrest based on
19
probable cause." (Ibid., italics added.) The court concluded it "need not weigh in on
th[at] question . . . ." (Ibid.)
The parties have not cited, and we have not found, a California case that addresses
the precise question presented here: whether a Bane Act claim arises from excessive
force or an unlawful search following a lawful arrest. However, the majority of federal
district courts in California have held that "[w]here Fourth Amendment unreasonable
seizure or excessive force claims are raised and intentional conduct is at issue, there is no
need for a plaintiff to allege a showing of coercion independent from the coercion
inherent in the seizure or use of force."9 (Dillman v. Tuolumne County (E.D. Cal., May
7, 2013, No. 1:13-CV-00404-LJO-SKO) 2013 WL 1907379, at *21 [applying rule to
"unreasonable strip search"]; see Morse v. County of Merced (E.D. Cal., June 13, 2016,
No. 1:16-CV-00142-DAD-SKO) 2016 WL 3254034, at *12 [this rule is "the weight of
authority among District Courts in California"]; Mann v. County of San Diego (S.D. Cal.
2015) 147 F. Supp. 3d 1066, 1092 ["the majority of courts" follow this rule].)
B. Analysis
We need not determine whether a plaintiff can establish Bane Act liability without
showing the challenged conduct is separate and independent from inherently coercive
underlying conduct (like an arrest). Even assuming the officers had probable cause to
9 "Because many Ralph Act and Bane Act claims are alleged along with a federal
claim under 42 U.S.C.A. § 1983 or one of the other federal civil rights statutes, it is quite
common for claims under the Ralph Act and Bane Act to be filed in or removed to
federal court." (Cal. Civil Practice (Thomson Reuters 2011) Civil Rights Litigation,
§ 3:28.)
20
arrest Simmons, the complained-of conduct asserted here—multiple nonconsensual,
roadside, physical body cavity searches—is necessarily intentional conduct that is
separate and independent from a lawful arrest for being in a park after it closed, for
riding a bicycle in the dark without a headlight, or for resisting a peace officer.
Defendants do not contend otherwise.10 Indeed, their response to Simmons's writ
petition makes absolutely no mention of the physical body cavity searches. Thus, so long
as Simmons has shown that a triable issue of fact exists with respect to whether the
searches occurred, summary adjudication of his Bane Act claim is not proper.
Although defendants make no mention of the searches on appeal, they argued
below that Williams's body-worn camera footage "does not lie and does not create a
triable issue of fact because it shows the officers did not search Simmons'[s] rectum."
We have reviewed the video and find that it is not so conclusive as to entitle defendants
to summary adjudication. It begins shortly after Williams bear-hugged Simmons to the
ground and runs continuously for eight minutes 44 seconds until the officers placed him
in the patrol vehicle. About one minute into the video, Williams puts on black latex
gloves. At about the 3:40 mark, Simmons pulls the left side of his underwear into a
wedgie and Robles grabs the underwear with his bare hand to stop him. One officer asks,
"Did you get it?" The other responds, "I think he shoved it in his ass." Williams then
pulls the right side of Simmons's underwear into a wedgie (exposing both sides of
10 Nor do defendants attempt to explain how the alleged searches complied with the
strict statutory regulations that govern physical body cavity searches. (See, e.g., Pen.
Code, § 4030, subd. (j) ["A physical body cavity search shall be conducted under sanitary
conditions, and only by [specified medical personnel]."].)
21
Simmons's buttocks) and manipulates the upper part of the underwear with his hand. At
about the 5:00 mark, Williams removes a plastic baggie from Simmons's right front coin
pocket. One officer asks, "Is it an empty bag? Or have you checked?" There is no
audible response. At about the 6:55 mark, Williams tells Simmons, "Stop trying to shove
it up you." Simmons responds, "I'm not. I'm not trying to shove nothing." The officers
then stand Simmons up, search his sweatshirt, and place him in the patrol vehicle. The
video does not appear to depict either officer digitally penetrating Simmons's rectum as
he claims occurred. However, the video does not constantly display both officers' hands
and Simmons's buttocks, and does show the officers manipulating his underwear using
their hands in the vicinity of his partially exposed buttocks. Thus, we cannot find the
video conclusively establishes that no physical body cavity searches or other potentially
actionable conduct occurred. Because Simmons established a triable issue of fact on this
issue, the trial court erred in granting summary adjudication on his Bane Act claim.
III. Ralph Act
Simmons contends the trial court also erred by summarily adjudicating his Ralph
Act claim because a factual issue exists regarding whether the officers' conduct was
racially motivated. We disagree.
The Ralph Act provides that "[a]ll persons within the jurisdiction of this state have
the right to be free from any violence, or intimidation by threat of violence, committed
against their persons or property because of," among other things, their race. (§§ 51.7,
22
51, subd. (b).)11 The elements of a Ralph Act cause of action are: (1) the defendant
committed a violent act against the plaintiff or his property; (2) a motivating reason for
that conduct was his perception of the plaintiff's race; (3) the plaintiff was harmed; and
(4) the conduct was a substantial factor in causing the plaintiff's harm. (Austin B., supra,
149 Cal.App.4th at pp. 880-881; see CACI No. 3063.) We are concerned here with the
second element.
Defendants carried their initial summary adjudication burden by submitting (1) the
officers' declarations asserting they did not consider Simmons's race in deciding to detain
or arrest him; and (2) Simmons's discovery responses proclaiming his inability to read the
officers' minds and identifying them as the only people who know why they arrested him.
Thus, the burden shifted to Simmons to show the existence of a triable issue of material
fact. (Aguilar, supra, 25 Cal.4th at p. 849.) He failed to do so.
First, we are unpersuaded that the officers' pursuit of Simmons over the four
Hispanic males at the park bench establishes racially motivated disparate treatment.
Although all five men were in the park after it closed and thus the officers would have
11 Section 51.7, subdivision (a) provides in part: "All persons within the jurisdiction
of this state have the right to be free from any violence, or intimidation by threat of
violence, committed against their persons or property because of political affiliation, or
on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51,
or position in a labor dispute, or because another person perceives them to have one or
more of those characteristics."
Section 51, subdivision (b) provides: "All persons within the jurisdiction of this
state are free and equal, and no matter what their sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic information, marital status, sexual
orientation, citizenship, primary language, or immigration status are entitled to the full
and equal accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever." (Italics added.)
23
been justified in detaining any or all of them, it is undisputed that Simmons was the only
one on a bicycle and the only one who fled from the officers. Williams testified in his
deposition that based on his "training and experience, most people who run end up having
warrants for their arrest or they don't want any sort of police contact."
Simmons's characterization of the officers' pursuit of him for a Vehicle Code
violation as a post hoc rationalization is unavailing. The officers' declarations assert they
"did not see any lamp emitting white light on the ground or sidewalk in front of Simmons
as he was riding a bicycle," and they found no light on his bicycle or body when they
arrested him. Simmons's suggestion that the officers could not immediately see the front
of his bicycle from their vantage points ignores how brief the pursuit was—10 to 20
seconds—and the fact the officers spoke not only of not seeing a headlight but also of not
seeing light emitted on the ground. The allegation in Simmons's complaint that the
officers "trailed behind [him] to inform him about the need of using a bike light" further
undermines the suggestion they were following him because of his race.12 Finally, as the
trial court noted, Simmons's testimony that he had a headlight on his bicycle did not
establish that it complied with the Vehicle Code requirements.
12 Simmons objected below on the basis that "[a]llegations in the complaint [are] not
evidence." However, " ' "A defendant moving for summary judgment may rely on the
allegations contained in the plaintiff's complaint, which constitute judicial admissions.
As such they are conclusive concessions of the truth of a matter and have the effect of
removing it from the issues." [Citations.]' [Citation.]" (Mark Tanner Construction, Inc.
v. HUB Internat. Ins. Servs., Inc. (2014) 224 Cal. App. 4th 574, 586-587.)
24
Simmons also notes he and the officers are of different races. However, he cites
no authority and offers no persuasive argument why this fact, standing alone, establishes
the officers were racially motivated.
Finally, Simmons's assertion that he and Phillips have prior experiences being
racially profiled by the police is insufficient to overcome defendants' evidence regarding
these officers' mental state on May 17, 2014. Relatedly, Phillips's assertion that Robles
told her Simmons is "not as innocent as [she] fuckin' think[s] he is" sheds no light on
whether Robles's pursuit of Simmons was racially motivated.
Because Simmons failed to meet his burden of demonstrating the existence of a
triable issue of fact regarding the motive element of his Ralph Act claim, the trial court
properly granted summary adjudication of this claim in favor of defendants.
DISPOSITION
Let a writ of mandate issue commanding the superior court to vacate the portion of
its summary adjudication order to the extent it granted summary adjudication in
defendants' favor on Simmons's Bane Act claim. The parties shall bear their own costs
on appeal.
HALLER, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
25
Filed 1/25/17
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KENNETH SIMMONS, D070734
Petitioner, (San Diego County
Super. Ct. No. 37-2015-00012269-CU-
v. CR-CTL)
THE SUPERIOR COURT OF SAN ORDER GRANTING PARTIAL
DIEGO COUNTY, PUBLICATION
Respondent;
THE CITY OF SAN DIEGO, et al.,
Real Parties in Interest.
THE COURT:
The opinion in this case filed December 29, 2016, was not certified for
publication. It appearing the opinion meets the standards for partial publication specified
in California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for
publication is GRANTED in part.
IT IS HEREBY CERTIFIED that the opinion meets the standards for partial
publication specified in California Rules of Court, rule 8.1105(c); and
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part III.
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in part in the
Official Reports.
HALLER, Acting P. J.
Copies to: All parties
2