Tuttelman v. City of San Jose

FILED
MAR 11 2011
NOT FOR PUBLICATION* MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 07-15241
DAVID M. TUTTELMAN,
D.C. No. CV-02-02656-(WHA)
Plaintiff-Appellant,
v.
MEMORANDUM*
CITY OF SAN JOSE, SAN JOSE POLICE
OFFICER ANTHONY LUISI, SAN JOSE
POLICE OFFICER RONALD BAYS,
Defendant-Appellees.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted November 2, 2010
San Francisco, California
Before: GOULD and CALLAHAN, Circuit Judges, and KORMAN,** District Judge.
This is an appeal from a judgment of the United States District Court for the
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior United States District Judge for the
Eastern District of New York, sitting by designation.
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Northern District of California, entered in favor of San Jose Police Officers Anthony
Luisi and Ronald Bays and the City of San Jose, after a jury returned a verdict in favor
of the defendants on plaintiff’s claims for excessive force, unlawful arrest, and
interference with plaintiff’s right of free speech. These claims, which invoked 42
U.S.C. § 1983 and Cal. Civil Code § 52.1, arose out of a routine traffic stop, late at
night on July 28, 1998.
David Tuttelman, who was driving his pickup truck in San Jose, California, was
pulled over by two San Jose police officers, Luisi and Bays, because the license plate
on Tuttelman’s truck was obstructed and unlit. Once Tuttelman was pulled over, he
exited his truck and walked back towards the patrol car. One word led to another and
ultimately to an attempted pat-down search by Luisi, followed by a scuffle, which led
to Tuttelman’s arrest for resisting, delaying, or obstructing a police officer, in
violation of Cal. Penal Code § 148. He was later formally charged with that offense
and with battery on a police officer, in violation of Cal. Penal Code § 243.
Tuttelman moved successfully to suppress the Officers’ testimony concerning
both charges on the ground that the attempted pat-down search, which set the
subsequent events in motion, was not justified by a reasonable suspicion that
Tuttelman was armed and dangerous. A subsequent appeal to the Appellate
Department of the Santa Clara County Superior Court resulted in a holding that: (1)
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the attempted pat-down search was unlawful; (2) Tuttelman could not be prosecuted
for either resisting arrest or battery on an officer because Luisi was not lawfully
performing his duties—a prerequisite for both charges; (3) Tuttelman could be
prosecuted for the charge of simple battery, which did not depend on proof that Luisi
was lawfully performing his duties; and (4) the testimony of the Officers was not
subject to suppression in connection with that charge.
After further proceedings on remand, Tuttelman pleaded guilty to having an
obstructed license plate on the night of the incident. Thereafter, he filed the civil
rights lawsuit at issue in this case, alleging various causes of action. This appeal
followed the entry of a final judgment in favor of the defendants.
In Jones v. Barnes, 463 U.S. 745 (1983), the Supreme Court observed that
“[e]xperienced advocates since time beyond memory have emphasized the importance
of winnowing out weaker arguments on appeal and focusing on one central issue if
possible, or at most on a few issues.” Id. at 751–52. The brief filed by Tuttelman in
this appeal takes the opposite course. Instead of winnowing out weaker arguments on
appeal, Tuttelman challenges virtually every pre-trial, trial, and post-trial ruling made
by the district judge.
I.
Tuttelman’s appeal principally challenges the district court’s grant of the
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Officers motion for summary judgment on the cause of action arising out of the
attempted pat-down search. We reject this challenge.
First, as a threshold matter, we reject Tuttelman’s contention that the Officers
are collaterally estopped from arguing that the attempted pat-down was supported by
reasonable suspicion. Under California law, “the party against whom preclusion is
sought must be in privity with the party to the former proceeding.” People v. Garcia,
141 P.3d 197, 201 (Cal. 2006). Indeed, Lynch v. Glass, 119 Cal. Rptr. 139 (Cal. Ct.
App. 1975), one of the leading cases, held that “[d]ue process requires that the
nonparty have had an identity or community of interest with, and adequate
representation by, the losing party in the first action.” Id. at 142; see also Clemmer
v. Hartford Ins. Co., 587 P.2d 1098, 1102 (Cal. 1978) (“[C]ollateral estoppel may be
applied only if due process requirements are satisfied.”). The Supreme Court has
similarly so held. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979)
(“It is a violation of due process for a judgment to be binding on a litigant who was
not a party or a privy and therefore has never had an opportunity to be heard.”).
In Davis v. Eide, 439 F.2d 1077 (9th Cir. 1971), we held that two Los Angeles
police officers, who were defendants in a subsequent federal civil action, were not in
privity with the prosecution in a prior state criminal action; because “[t]he defendants
were city police officers not directly employed by the state [of California],” who “had
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no measure of control whatsoever over the criminal proceeding and no direct
individual personal interest in its outcome[,] . . . there was no privity sufficient to
invoke the doctrine of collateral estoppel.” Id. at 1078. These factors are consistent
with the factors that California courts have since recognized as the essence of privity
under California law. See, e.g., Clemmer, 587 P.2d at 1102; Lynch, 119 Cal. Rptr. at141–42.
Neither of the Officers had an identity or community of interest with, or were
represented by, the Santa Clara County District Attorney’s Office, which “represents
the State of California in the name of the ‘People’ at criminal prosecutions.” People
v. Sims, 651 P.2d 321, 333 (Cal. 1982) (citing Cal. Penal Code § 684). None of the
Officers’ personal interests were at stake in the suppression hearing. Obviously,
neither of the Officers had a proprietary or financial interest in or was in control of the
criminal prosecution of Tuttelman. Not only did the Officers and the City not join in
that action, they would not have been able to do so. Indeed, Bays was not even called
to testify at the suppression hearing. Under these circumstances, the Officers were not
in privity with the Santa Clara County District Attorney.
The only case Tuttelman cites for the proposition that both the Officers and the
City of San Jose are in privity with the prosecution in the prior state court case is
Miller v. Superior Court, 214 Cal. Rptr. 125 (Cal. Ct. App. 1985). Miller was a civil
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lawsuit for damages against a Los Angeles Police Department officer who had
previously been convicted of having raped the plaintiff-victim. Id. at 126. Because
the officer was a party to that proceeding, he was precluded from relitigating the jury’s
verdict finding him guilty. Although the City of Los Angeles was not a party to the
criminal proceeding, the Miller Court held that it was collaterally estopped from
litigating the issue whether the officer had raped the plaintiff-victim. Id. at 130–31.
In so holding, however, Miller conflated the doctrines of judicial and collateral
estoppel. The latter doctrine is based on privity “between the party to be estopped and
the unsuccessful party in the prior litigation . . . .” Sims, 651 P.2d at 333 (quoting
Clemmer, 587 P.2d at 1102) (emphasis added). Miller found that the “City [of Los
Angeles] was in privity with the People of the State of California,” 214 Cal. Rptr. at
129, represented by the district attorney, who was the successful party in the criminal
prosecution.
We are not aware of any authority supporting the proposition that, even
assuming the existence of privity, the doctrine of collateral estoppel bars the
successful party in a prior action from relitigating the issue on which he was
successful. The estoppel that Miller applied could only be the doctrine of judicial
estoppel. As Professors Wright, Miller, and Cooper observe:
Judicial estoppel has little to do with preclusion by
judgment, even when it requires reliance by a court on a
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prior inconsistent position. Courts do not relish the
prospect that an adept litigant may succeed in proving a
proposition in one action, and then succeed in proving the
opposite in a second. . . . The theories of judicial estoppel
that reduce these risks do not draw directly from the fact of
adjudication. Instead, they focus on the fact of
inconsistency itself.
18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice
and Procedure § 4477 (2d ed. 2002); see also Wagner v. Prof’l Eng’rs in Cal. Gov’t,
354 F.3d 1036, 1044 (9th Cir. 2004) (“Judicial estoppel is an equitable doctrine that
is intended to protect the integrity of the judicial process by preventing a litigant from
playing fast and loose with the courts.” (internal quotation marks omitted)).
By treating the City of Los Angeles and the People of the State of California as
one, Miller was effectively invoking the doctrine of judicial estoppel to prevent the
City from taking a position in the civil case that was inconsistent with the position that
the State of California, in the name of the People, took in the criminal case. Whether
this was a proper application of the doctrine of judicial estoppel is a matter of
California law that we need not resolve here. This case does not call for the
application of that doctrine and, even if it did, “[f]ederal law governs the application
of judicial estoppel in federal courts.” Johnson v. Oregon, 141 F.3d 1361, 1364 (9th
Cir. 1998).
We do note, however, that the considerations of policy that Miller also invoked
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to justify its holding are not applicable here. Specifically, Miller was concerned that
permitting the relitigation of the issue of rape would expose the plaintiff-victim to
vexatious litigation, reopen the question of the officer’s guilt, and destroy the finality
of a criminal prosecution concluded against the defendant by a jury beyond a
reasonable doubt. See Miller, 214 Cal. Rptr. at 131. But none of those prospects
loomed over Tuttelman’s civil lawsuit in the district court. The only criminal
prosecution and guilty verdict in this case were against Tuttelman.
Finally, our review of the record satisfies us that the attempted pat-down search
was justified by reasonable suspicion and did not violate the Fourth Amendment. “To
justify a patdown of the driver or a passenger during a traffic stop[,] . . . the police
must harbor reasonable suspicion that the person subjected to the frisk is armed and
dangerous.” Arizona v. Johnson, 129 S. Ct. 781, 784 (2009). The determination of
reasonable suspicion involves consideration of “the totality of the circumstances
surrounding the stop,” United States v. Burkett, 612 F.3d 1103, 1107 (9th Cir. 2010)
(internal quotation marks omitted), and “must be based on commonsense judgments
and inferences about human behavior,” Illinois v. Wardlow, 528 U.S. 119, 125 (2000).
Considering the totality of the circumstances—instead of analyzing them
piecemeal, as the state court did—Luisi’s attempted pat-down search of Tuttelman
was reasonable. The Officers stopped Tuttelman at approximately 11:00 p.m.
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Tuttelman immediately exited his pickup truck and walked towards the rear of his
vehicle; was agitated and loud; failed to produce his drivers license; walked past Bays
and began to return to his truck; failed to comply with Bays’s instruction to stop
walking away; and had a discernible bulge in his left front pants pocket.3
Ample precedent supports a finding of reasonable suspicion here. See, e.g.,
Wardlow, 528 U.S. at 124 (“[N]ervous, evasive behavior is a pertinent factor in
determining reasonable suspicion.”); Ramirez v. City of Buena Park, 560 F.3d 1012,
1022 (9th Cir. 2009) (stating that “an officer’s observation of a visible bulge in an
individual’s clothing” supports reasonable suspicion); United States v. Brown, 273
F.3d 747, 748 (7th Cir. 2001) (“A nighttime traffic stop, especially in an area where
crime is not a stranger, is more fraught with potential danger to an officer than would
be a stop during the light of day.”); United States v. Baker, 78 F.3d 135, 137 (4th Cir.
1996) (“Based on the inordinate risk of danger to law enforcement officers during
traffic stops, observing a bulge that could be made by a weapon in a suspect’s clothing
reasonably warrants a belief that the suspect is potentially dangerous, even if the
suspect was stopped only for a minor violation.”); United States v. Holifield, 956 F.2d
3Tuttelman argues that “Luisi’s suppression hearing testimony reveals an
understanding [at the time of the traffic stop] that the item [creating the bulge in
Tuttelman’s clothing] was a wallet.” Luisi’s testimony in fact states that the shape of
the bulge, which gave rise in the circumstances to his suspicion that Tuttelman might
be armed, “could be consistent with a wallet gun,” the possession of which is
specifically prohibited by Cal. Penal Code § 12020(a)(1).
9
665, 667 (7th Cir. 1992) (“The officers could have had a reasonable belief that [the
suspect] presented a danger to themselves and others. Their belief was not based upon
a ‘hunch’ but upon [the suspect’s] boisterous, aggressive approach to the squad car.”).
II.
Tuttelman challenges the district court’s grant of summary judgment to the City
of San Jose. But Tuttelman does not have a claim against the City because respondeat
superior is not a theory of municipal liability under § 1983. See Monell v. Dep’t of
Soc. Serv. of N.Y., 436 U.S. 658, 691 (1978). Instead, “[t]o establish [municipal]
liability [under 42 U.S.C. § 1983], [the plaintiff] must show that (1) [he] was deprived
of a constitutional right; (2) the [municipality] had a policy; (3) the policy amounted
to a deliberate indifference to [his] constitutional right; and (4) the policy was the
moving force behind the constitutional violation.” Mabe v. San Bernardino Cnty.,
Dept. of Public Soc. Servs., 237 F.3d 1101, 1110–11 (9th Cir. 2001) (internal
quotation marks omitted).
The district court correctly determined that Tuttelman’s Monell claim was
without merit. Tuttelman arguments to the contrary are sufficiently meritless as to
obviate the need for additional discussion. Moreover, notwithstanding the fact that
the City had previously withdrawn its summary judgment motion, the district court
did not abuse its discretion by dismissing the Monell claim before trial. The district
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court warned Tuttelman at two separate pre-trial conferences that his claim against the
City would be dismissed unless he articulated a triable Monell theory. Indeed,
Tuttelman concedes that the arguments his counsel made at the pre-trial conferences
on the Monell claim “were exactly those he could have made at a hearing on the City’s
prior summary judgment motion.” Under these circumstances, the dismissal of
Tuttelman’s Monell claim was proper. See Celotex Corp. v. Catrett, 477 U.S. 317,
326 (1986).
III.
Tuttelman argues that he “is entitled to judgment as a matter of law on his state
law section 52.1 claim for unlawful search.” This claim is not specifically asserted
under the § 52.1 count in his complaint, and Tuttelman admits that he is “rais[ing] the
issue for the first time on appeal.” The failure to specifically articulate the state law
claim for unlawful search in the district court proceedings precludes Tuttelman from
raising it on appeal. See Ohel Rachel Synagogue v. United States, 482 F.3d 1058,
1060 n.4 (9th Cir. 2007) (declining to remand with leave to amend complaint where
plaintiffs “neither relied on this proposed cause of action below nor sought leave of
the district court to amend their complaint to add it”). His argument that he should be
excused for not having specifically presented his claim to the district court, because
he mistakenly believed that it would have been subject to the defense of qualified
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immunity under California law, is premised upon a simple misreading of the case law
he cites. Indeed, the post-judgment case he relies upon for an alleged change in
California law on this issue, Venegas v. Cnty. of Los Angeles, 63 Cal. Rptr. 3d 741(Cal. Ct. App. 2007), expressly followed earlier precedents such as Ogborn v. City of
Lancaster, 124 Cal. Rptr. 2d 238, 246 (Cal. Ct. App. 2002) (“The doctrine of qualified
governmental immunity is a federal doctrine that does not extend to state tort claims
against government employees.”). The latter case itself followed earlier cases.
IV.
Tuttelman argues that the district court should have given jury instructions that
the attempted pat-down search was unlawful, and that he had “the right to forcibly
resist an unlawful search attempt” incident to a lawful arrest. We reject these
arguments because, as we have explained, the attempted pat-down search was lawful.
V.
Tuttelman also argues that the district court erred by denying his motion for
summary judgment on his excessive force claim.4 Specifically, he argues that the
4
As the Supreme Court recently reinforced, Ortiz v. Jordan, 131 S. Ct. 884, 891–92
(2011), we will not review a denial of summary judgment where a genuine dispute of
material fact precluded entry of judgment as a matter of law for the movant.
Nonetheless, we construe Tuttelman’s arguments related to his excessive force claim
to raise a “purely legal issue,” id., which we may review, see Banuelos v. Constr.
Laborers’ Trust Funds for S. Cal., 382 F.3d 897, 902 (9th Cir. 2004), and which we
must consider regardless in order to address his argument concerning the jury
instructions.
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district court should have assumed that any use of force by the officers was
unreasonable as a matter law because Tuttelman’s conduct had not created “exigent”
circumstances and because the officers failed to consider or avail themselves of “less
intrusive alternatives to force.” This claim is without merit.
Here, Luisi grasped Tuttelman’s right wrist, in anticipation of the attempted pat-
down search, only after Tuttelman had refused to comply with Officer Luisi’s
instructions to put his hands above his head and, instead, kept his hands down at this
sides and clenched his fists. This sort of de minimis use of force cannot ground an
excessive force claim under the Fourth Amendment. See Graham v. Connor, 490 U.S.
386, 396 (1989) (“Not every push or shove, even if it may later seem unnecessary in
the peace of a judge’s chambers, violates the Fourth Amendment.” (internal quotation
marks and citation omitted)) ; United States v. Alverez-Tejeda, 491 F.3d 1013, 1017
(9th Cir. 2007) (“While the police may not use excessive force in conducting a search
or seizure, the force here was minimal.” (internal citation omitted)).
The cases Tuttelman cites are easily distinguished. Tuttelman’s conduct was
not analogous to the conduct of either: passive political protesters, “sitting
peacefully” and presenting no physical resistance to police, who nonetheless used
pepper spray against them, cf. Headwaters Forest Def. v. Cnty. of Humboldt, 276 F.3d
1125, 1127 (9th Cir. 2002); or a motorist who informed the officers that he was
13
physically incapable of placing his hands behind his back but was nonetheless
slammed onto the hood of his car, cf. Winterrowd v. Nelson, 480 F.3d 1181, 1186 (9th
Cir. 2007); or a mentally ill person thirty-feet away from the defendant officer and
surrounded by other officers, including a canine team, who was nonetheless shot in
the face with a lead-filled beanbag round, cf. Deorle v. Rutherford, 272 F.3d 1272,
1285 (9th Cir. 2001); or a cooperative and calm man, presenting no indication of a
concealed weapon, at whose head a police officer pointed his gun when the man
approached, cf. Robinson v. Solano Cnty., 278 F.3d 1007, 1010 (9th Cir. 2002).5
AFFIRMED.
5
We have considered Tuttelman’s remaining arguments and find them likewise to be
without merit.
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