Case 3:06-cv-02426-MHP Document 28 Filed 03/27/2008 Page 1 of 24

UNITED STATES DISTRICT COURT
For the Northern District of California

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

DARNELL FOSTER, et al.,

10

Plaintiffs,

11

v.

OPINION No. C 05-3110 MHP

12 CITY OF OAKLAND, et al.,

13

Defendants.

14 This Document Relates To:
15 JAMES TAYLOR, et al.,
16 Plaintiffs,
17 v.
18 CITY OF OAKLAND, et al.,
19 Defendants.
20 JIMMY RIDER, et al.,
21 Plaintiffs,
22 v.
23 CITY OF OAKLAND, et al.,
24 Defendants.
25

No. C 04-4843 MHP No. C 05-3204 MHP

26

27

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 TYRONE MOORE,

2

Plaintiff,

3

v.

4 CITY OF OAKLAND, et al.,

5

Defendants.

6 JEFFRIE MILLER, et al.,

7

Plaintiffs,

8

v.

9 CITY OF OAKLAND, et al.,

10

Defendants.

11

No. C 06-2426 MHP No. C 07-1773 MHP /

12

Plaintiffs Darnell Foster, Rafael Duarte and Yancie Young have brought this action pursuant

13 to 28 U.S.C. section 1983 against the City of Oakland (“Oakland”); Richard Word, individually and

14 in his capacity as the Oakland Chief of Police; Oakland police officers J. Festag and William

15 Bergeron, individually and in their official capacities as police officers; and Does 1–25, alleging that

16 defendants violated plaintiffs’ constitutional rights through a policy and practice of performing strip

17 searches and body-cavity searches in public. Plaintiffs seek both injunctive relief and damages.

18 Foster v. City of Oakland, Case No. C 05-3110 MHP, has been related to four similar cases pending

19 in the Northern District of California, and this order applies to each of them.1 Now before the court

20 is plaintiffs’ motion for partial summary judgment. After considering the parties’ arguments and

21 submissions and for the reasons set forth below, the court rules as follows.

22

23 BACKGROUND2

24 I.

The Parties

25

The following order pertains to all of the parties in Foster and the related cases. A

26 description of the claims brought by the three plaintiffs in Foster is included below and is

27 representative of the claims in the related cases brought by plaintiffs James Taylor, Robert Forbes,

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 Jimmy Rider, Tyrone Moore, Deandre Wash, Jason Cagler, Jomal Reed, Curtis Freeman, Glenn

2 Lovely, Jeffrie Miller, Kevin Bradley and Richard Tillman.

3

4

A. Plaintiff Darnell Foster

5

Plaintiff Foster is an African-American man. On February 27, 2004 Foster was visiting a

6 friend in Oakland, California. At that time, he had served all but two months of a five year

7 unsupervised probation sentence without incurring any violations.

8

At around 3 p.m. of that day, Officer Festag and another unknown officer stopped Foster

9 outside the School Market on Oakland’s School Street near Pleitner Avenue. The officers asked

10 Foster for identification, which he showed to them. The officers also asked whether Foster was on

11 probation or parole, which he answered affirmatively. Officer Festag then handcuffed Foster and

12 forced him against the back of his patrol vehicle parked in front of the School Market. Foster was

13 ordered to spread his legs and Officer Festag searched Foster’s pockets. No contraband was found.

14 Officer Festag then guided Foster into the rear of the patrol vehicle. The officers ran a warrant

15 check and searched the area for evidence of illegal activity. The searches revealed no warrants or

16 evidence of wrongdoing.

17

Foster was then removed from the patrol vehicle by Officer Festag, who forced Foster over

18 the hood of the vehicle. Wearing a latex glove retrieved from the vehicle’s trunk, Officer Festag

19 pulled Foster’s pants and underwear down to his knees. Officer Festag proceeded to search around

20 Foster’s testicles using his gloved hand. The officer also spread Foster’s buttocks and visually

21 searched Foster’s anus, stating “I’m going to do a butt-crack search, see if you got crack in your

22 butt-crack.” Foster Compl. ¶ 5. No contraband was discovered.

23

The officers then pulled Foster’s pants and underwear back up and returned him to the rear of

24 the vehicle. Officer Festag drove about two blocks and stopped the patrol vehicle to request that

25 Foster make an undercover drug purchase. Foster refused to work undercover for the officers and

26 repeatedly denied wrongdoing. The officers then issued Foster a citation for loitering with the intent

27 to sell narcotics before releasing him.

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

Several months later, in May, Foster received a Notice to Appear in criminal court in

2 Oakland on the citation issued by Officer Festag. The charge was subsequently dismissed due to the

3 absence of both the officers to substantiate the allegation against Foster. Foster filed an Internal

4 Affairs complaint against Officer Festag in July 2004. On August 1, 2005 Foster and another

5 plaintiff filed a complaint alleging violations of their civil rights under 42 U.S.C. section 1983.

6

7

B. Plaintiff Rafael Duarte

8

Plaintiff Duarte is an Hispanic-American man. On the afternoon of March 9, 2005, while

9 driving, Duarte and a friend were forced to a stop on Oakland’s Baker Street, between 62nd and

10 63rd Streets.

11

Unknown officers emerged from two vehicles and pulled Duarte from the friend’s car

12 without giving any orders. Duarte was handcuffed and forced against the hood. Duarte was then

13 escorted by the first officer to the front of a nearby house, where several other unknown officers

14 were also present. The first officer repeatedly pat-searched Duarte, but the search yielded no

15 contraband.

16

A second officer then informed the first officer that he thought he had seen Duarte “stuff

17 something down his pants.” Foster Compl. ¶ 7. The officers pulled down Duarte’s pants and

18 ordered him to bend over. Duarte’s buttocks were spread, permitting visual inspection of his anus.

19 No contraband was found, but Duarte was placed in the rear of a police vehicle. The officers then

20 performed a strip and visual body cavity search on Duarte’s friend. That search also yielded no

21 contraband. During the searches of the two men, a crowd had begun to gather around the scene,

22 including some people with whom Duarte was acquainted. The individuals witnessed the searches

23 of both men.

24

Duarte was taken to Oakland City Jail and cited after about two hours in custody. No

25 charges were ever filed against Duarte. On August 1, 2005 Duarte and other plaintiffs filed charges

26 alleging violations of their civil rights under 42 U.S.C. section 1983.

27

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

C. Plaintiff Yancie Young

2

Plaintiff Young is an African-American man. At approximately 11:30 p.m. on September

3 30, 2003 Young was pulled over by Officer Bergeron around the 2800 block of West Street in

4 Oakland. Officer Bergeron opened Young’s car door, pulled him out of the car and handcuffed him.

5 Officer Bergeron asked Young if he was on probation or parole, which Young denied. Officer

6 Bergeron insisted that he smelled marijuana in Young’s car and suggested that Young was

7 smuggling large quantities of the drug.

8

Officer Bergeron then took Young to the back of a police car. While facing Young, he

9 pulled down Young’s pants and underwear, revealing Young’s genitalia. Then Officer Bergeron

10 shined a flashlight directed at Young’s genitalia, visually inspecting Young for up to a minute.

11 Officer Bergeron next performed a pat-search of Young, ordered Young to remove his shoes and felt

12 Young’s private area through his pants. Another officer searched Young’s car during the search of

13 Young’s person. No contraband was found.

14

Officer Bergeron seated a handcuffed Young in the back of a police car, where he sat for

15 over one hour. During that time, Officer Bergeron, other officers and a police canine searched

16 Young’s car. That search produced no evidence of criminal activity.

17

No charges were filed against Young. Young subsequently filed a complaint with the

18 Citizens’ Police Review Board. The Board found that Officer Bergeron performed an unlawful strip

19 search of Young. Young filed a complaint on August 1, 2005.

20

21

D. Defendants

22

Defendant Oakland is a municipal corporation, which operates the Oakland Police

23 Department (“OPD”) and employs the additional defendants named below. Defendant Richard

24 Word is Chief of Police for Oakland. Plaintiffs have sued him in both his individual and official

25 capacities. Defendants Brett Estrada, Steven Nowak, Chris Moreno, Leonel Sanchez, Sven

26 Hamilton, B.J. Festag, William Bergeron, Malcolm Miller, Douglas Keeley, Douglas Aitchison,

27 Gregory Loud, Sean Bowling, Wayne Tucker, R. Alcantar, O. Crum, J. Foreman, L. Leonis, S.

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 Valle and Does 1-25 were police officers for Oakland at all times mentioned herein. They have been

2 sued in both their individual and official capacities.3

3

1. Oakland Police Department’s Policy Before 2004

4

The Oakland Police Department’s 1998 policy, entitled “Strip Searches, Visual Body-Cavity

5 Searches, and Physical Body-Cavity Searches” appears in the OPD’s 1998 Training Bulletin.4

6 Defs.’ Opp., Exh. A (“1998 Policy”). The policy begins by defining the terms “strip search,”

7 “visual body-cavity search” and “physical body-cavity search.” Id. at 8. A strip search is “any

8 search that requires the officer to remove or arrange some or all of a person’s clothing to permit a

9 visual inspection of the subject’s underclothing, breasts, buttocks, or genitals.” Id. A visual body

10 cavity search is “a search which consists of the visual inspection of the subject’s rectal cavity and, if

11 the subject is a female, vagina. A visual body-cavity search does not include a search of the mouth.”

12 Id. A physical body cavity search is “a search which consists of the physical intrusion into a body

13 cavity for the purpose of discovering a concealed object.” Id. The policy next stipulates that four

14 requirements must be met before a strip search or a visual body cavity search may be performed: (1)

15 “[t]he person to be searched must be under arrest and ultimately booked;” (2) “[t]he arrest must be

16 for an offense involving weapons, controlled substances, or violence;” (3) “[t]he person conducting

17 the search must be of the same sex as the person searched;” and (4) “[t]he search must be conducted

18 in a private area where it cannot be observed by persons not participating in the search.” Id.

19 Additionally, the policy specifies that a physical body cavity search requires a warrant. Id.

20

The Bulletin also discusses the permissible scope of pat searches and the requirements for

21 searches incident to arrest. Id. at 2–8. To perform a search incident to arrest, three requirements

22 must be met: (1) “[t]he arrest must be legal;” (2) “[t]he search must be contemporaneous with the

23 arrest;” and (3) “[t]he arrest must be custodial.” Id. at 7. The policy on searches incident to arrest

24 also states that an officer may search a person for contraband with probable cause. Id.

25

2. Oakland Police Department’s Amended Policy

26

In 2004 the Oakland Police Department amended its policy on strip and body-cavity

27 searches. The amendments came in response to public concerns regarding the Department’s practice

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 of carrying out such searches. The Department publicly identified a “long-standing and problematic

2 practice of conducting strip searches in the field.” Burris Dec., Exh. C at 4.

3

Similar to the 1998 Policy, the 2004 Training Bulletin defines the three types of strip

4 searches, discusses the permissible scope of pat searches and outlines the requirements for searches

5 incident to arrest. Id., Exh. G (“2004 Policy”) at 1–6. Specifically, the 1998 requirements for

6 performing a strip search were significantly amended in 2004. Id. at 6. In the 2004 Bulletin, the

7 section relevant to strip searches is entitled “Strip Searches in the Field.” Id. The policy stipulates

8 that a “strip search incident to an arrest” may only be performed when: (1) “[i]t is reasonable to

9 believe that the arrestee is concealing a weapon;” or (2) “it is reasonable to believe that the arrestee

10 is concealing evidence or contraband;” and (3) “that evidence may be destroyed or ingested unless it

11 is immediately recovered.” Id. (emphases omitted). The policy goes on to say that warrantless strip

12 searches “are not justified by the arrest itself,” and that one must have “reasonable suspicion that the

13 arrestee has concealed a weapon, contraband or evidence.” Id. (emphasis omitted).

14

Additionally, the 2004 Policy states that a strip search in the field may not be performed

15 unless the following requirements are met: (1) the officer has “reasonable suspicion to believe the

16 arrestee is hiding or concealing evidence, a weapon, or contraband;” (2) the officer is “of the same

17 sex as the arrestee unless there is an exigency and an officer of the same sex is not available to

18 respond;” (3) the officer “may not have physical contact with the arrestee except contact that is

19 reasonably necessary to search for and recover items and to control or direct the arrestee;” (4) “the

20 search must be conducted so that the search cannot be easily observed by the public,” and

21 “reasonable efforts must be made to provide as much privacy as possible;” and (5) the officer “must

22 document the search and the need to conduct the search in the field in the appropriate report.” Id.

23 at 7 (emphases omitted). Notably, the 2004 Policy explicitly prohibits officers from ever conducting

24 a physical or visual body cavity search in the field. Id.

25

26

27

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

3. Oakland Police Department’s Alleged Practice

2

Plaintiffs allege that there is a widespread practice of public strip and body cavity searches

3 within the Oakland Police Department that deviates from the Department’s recently revised policy.

4 Plaintiffs claim that this practice occurs without regard to the privacy of subjects being searched.

5 Subjects’ genitalia, buttocks, and/or anuses are exposed, often without any screen from public view.

6 This practice allegedly targets racial minorities—especially Hispanic- and African-Americans.

7

8 II. Procedural History

9

Plaintiffs Foster and Duarte filed the present action on August 1, 2005. Pursuant to

10 stipulations, plaintiffs filed an amended complaint on September 22, 2005 adding plaintiff Young.

11 Additionally, the following actions were related to this action: (1) Rider v. City of Oakland, No. C

12 05-3204 MHP, related on October 6, 2005; (2) Taylor v. City of Oakland, No. C 04-4843 MHP,

13 related on October 6, 2005; (3) Moore v. City of Oakland, No. C 06-02426 MHP, related on July 12,

14 2006; and (4) Miller v. City of Oakland, No. C 07-1773 MHP, related on April 17, 2007.

15

Plaintiffs’ motion to certify a class was denied on January 27, 2007 for failure to satisfy the

16 requirement of numerosity. Docket No. 42. Plaintiffs now move for partial summary judgment on

17 the following grounds: 1) declaratory relief that the 1998 Policy is unconstitutional; 2) declaratory

18 relief that the 2004 amended Policy is unconstitutional; 3) judgment that any search in accordance

19 with either of the policies is unconstitutional; 4) summary judgment on the issue of liability in favor

20 of plaintiffs. Plaintiffs have not moved for summary judgment on claims related to the OPD’s

21 alleged practice.

22

23 LEGAL STANDARD

24

Summary judgment is proper when the pleadings, discovery and affidavits show that there is

25 “no genuine issue as to any material fact and that the moving party is entitled to judgment as a

26 matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the

27 case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving

2 party. Id. The party moving for summary judgment bears the burden of identifying those portions

3 of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material

4 fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party

5 will have the burden of proof at trial, the moving party need only point out “that there is an absence

6 of evidence to support the nonmoving party’s case.” Id.

7

Once the moving party meets its initial burden, the nonmoving party must go beyond the

8 pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a

9 genuine issue for trial.” Fed. R. Civ. P. 56(e). Mere allegations or denials do not defeat a moving

10 party’s allegations. Id.; Gasaway v. Nw. Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.

11 1994). The court may not make credibility determinations, and inferences to be drawn from the

12 facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New

13 Yorker Magazine, 501 U.S. 496, 520 (1991); Anderson, 477 U.S. at 249.

14

The moving party may “move with or without supporting affidavits for a summary judgment

15 in the party’s favor upon all [claims] or any part thereof.” Fed. R. Civ. P. 56(a). “Supporting and

16 opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be

17 admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the

18 matters stated therein.” Fed. R. Civ. P. 56(e).

19

20 DISCUSSION

21

Plaintiffs seek partial summary judgment on four grounds: 1) declaratory relief that the 1998

22 Policy is unconstitutional; 2) declaratory relief that the 2004 amended Policy is unconstitutional;

23 3) judgment that any search in accordance with either of the policies is unconstitutional; 4) summary

24 judgment on the issue of liability in favor of plaintiffs. The thrust of plaintiffs’ argument is that the

25 OPD policies should be found unconstitutional as a matter of law because the policies: 1) do not

26 allow for individualized suspicion; 2) permit invasive searches of an arrestee’s person upon less than

27

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 probable cause; 3) do not adequately protect a suspect’s constitutionally protected right to physical

2 privacy; and 4) permit warrantless searches in circumstances in which a warrant is required.

3

4 I. Fourth Amendment Requirements

5

The instant action presents an issue of first impression to the extent that it implicates Fourth

6 Amendment restraints on strip searches performed outside the traditional setting of a police station

7 or detention facility. Before addressing the constitutionality of the OPD’s 1998 and 2004 strip

8 search policies, it is useful to review the case law describing the requirements of the Fourth

9 Amendment in similar contexts. The Supreme Court has noted that there is no precise formula for

10 reconciling the competing interests of law enforcement and individual privacy with respect to

11 searches and seizures:

12

The test for reasonableness under the Fourth Amendment is not capable of

precise definition or mechanical application. In each case it requires a

13

balancing of the need for the particular search against the invasion of

personal rights that the search entails. Courts must consider the scope of

14

the particular intrusion, the manner in which it is conducted, the

justification for initiating it, and the place in which it is conducted.

15

Bell v. Wolfish, 441 U.S. 520, 559 (1979).

16

“State law is also relevant in analyzing the reasonableness of a search under the Fourth

17

Amendment.” Edgerly v. City and County of San Francisco, 495 F.3d 645, 656 (9th Cir. 2007).

18

The Ninth Circuit has had occasion to determine the constitutionality of various strip search

19

policies employed by law-enforcement agencies. See, e.g., Giles v. Ackerman, 746 F.2d 614 (9th

20

Cir. 1984); Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702 (9th Cir. 1990); Fuller v. M.G.

21

Jewelry, 950 F.2d 1437 (9th Cir. 1991). There are two significant differences between the policies

22

examined in this line of cases and the policy at issue in the instant action. First, the policies

23

considered in those cases were blanket strip search policies requiring that an arrestee be subjected to

24

a strip search if the arrestee met certain criteria, e.g., if the arrestee was arrested on suspicion of

25

committing a felony. See, e.g., Kennedy, 901 F.2d at 713 (holding that the Los Angeles Police

26

Department’s blanket cavity search policy for felony arrests was unconstitutional). The OPD

27

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 policies do not require that a strip search be performed at any time; they only define when a strip

2 search is permissible. 1998 Policy at 8; 2004 Policy at 6–7. Where the Ninth Circuit has found

3 blanket strip search policies to be unconstitutional, they have done so pursuant to the Supreme

4 Court’s balancing test articulated in Bell. To be clear, the OPD policies are not blanket strip search

5 policies, and therefore do not risk violating the Supreme Court’s balancing test on that ground.

6 Second, the previous cases have all considered strip search policies that contemplate searches

7 occurring post-arrest and pre-booking at a police station or other detention facility. See Giles, 746

8 F.2d at 617 (strip search of woman at county jail pursuant to a blanket jail policy held

9 unconstitutional); Kennedy, 901 F.2d at 713 (strip search of woman at jail pursuant to a blanket jail

10 policy held unconstitutional); Fuller, 950 F. 2d at 1449–50 (strip search of woman at Los Angeles

11 Police Department central station pursuant to a blanket policy held unconstitutional). None have

12 considered strip searches occurring in the field.5

13

The term “strip search” has been variously defined by applicable law. It is specifically

14 defined by the California Penal Code, section 4030(c) as “a search which requires a person to

15 remove or arrange some or all of his or her clothing so as to permit a visual inspection of the

16 underclothing, breasts, buttocks, or genitalia of such person.” (emphasis added). It is this definition

17 the court uses here. In fact, the Ninth Circuit in Edgerly described California’s definition of “strip

18 search” as reasonable and instructed that it “informs our Fourth Amendment Analysis.” 495 F.3d at

19 656.

20

Section 4030(d) of the California Penal Code defines other searches that are more instrusive:

21 “(2) ‘[v]isual body cavity search’ means visual inspection of a body cavity [defined as stomach,

22 rectal cavity or vagina]. (3) ‘[p]hysical body cavity search’ means physical intrusion into a body

23 cavity for the purpose of discovering any object concealed in the body cavity.”

24

Courts have taken note of the intrusive nature of strip searches, especially body cavity

25 searches, on numerous occasions. The Ninth Circuit observed that “[t]he intrusiveness of a body-

26 cavity search cannot be overstated. Strip searches involving the visual exploration of body cavities

27 is [sic] dehumanizing and humiliating.”6 Kennedy, 901 F.2d at 711. Justice Marshall remarked in

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 Bell that visual body cavity searches “represent one of the most grievous offenses against personal

2 dignity and common decency.” 441 U.S. at 576–77 (Marshall, J., dissenting). The majority in Bell

3 commented that “[a]dmittedly, this practice instinctively gives us the most pause.” Id. at 558.

4

The constitutional requirements for performing the three types of strip searches differ.

5 Physical body cavity searches are the most invasive, and, therefore, are subject to the strictest

6 requirements. California Penal Codes section 4030(k) requires that a physical body cavity search be

7 performed by an authorized medical professional. The Supreme Court has commented in the

8 context of searches and seizures that “serious questions . . . would arise if a search involving use of a

9 medical technique, even of the most rudimentary sort, were made by other than medical personnel or

10 in other than a medical environment—for example, if it were administered by police in the privacy

11 of the stationhouse.” Schmerber v. California, 384 U.S. 757, 771–72 (1966). The Ninth Circuit has

12 found physical body cavity searches of inmates to be unreasonable where they were performed by

13 inadequately trained medical assistants, holding that “issues of privacy, hygiene, and the training of

14 those conducting the searches are relevant to determining whether the manner of the search was

15 reasonable.” Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir. 1988). It is clear in this Circuit that

16 physical body cavity searches may only be conducted upon probable cause and, absent an

17 emergency, a search warrant is ordinarily required. Fuller, 950 F.2d at 1449. In Fuller, the Ninth

18 Circuit held that the Schmerber requirement that a warrant be obtained prior to performing a blood

19 test on an arrestee should apply with equal force to physical body cavity searches. Id. The court

20 concluded that “‘[t]he interests in human dignity and privacy’ invaded when a public official peers

21 inside a persons’s body cavity are at least as great as those invaded by a needle piercing the skin.”

22 Id. at 1449 (quoting Schmerber, 384 U.S. at 769–70).

23

With respect to visual body cavity searches, such searches may be conducted upon

24 reasonable suspicion that a particular arrestee harbors weapons or dangerous contraband. The

25 purpose of this policy is to ensure that weapons, drugs or other contraband that would pose a threat

26 to the safety or the security of the penal institution are not introduced into the facility. Thus, the

27 question of such a search arises when the arrestee is brought into a jail or similar institution. Here,

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 courts have distinguished among those being admitted into the general inmate population and those

2 who are awaiting bail or release. See, e.g., Dobrowolskyj v. Jefferson County, 823 F.2d 955 (6th

3 Cir. 1987) (strip search upheld where detainee was not searched until he was going to be moved to

4 general jail population); Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981) (strip search of detainee

5 was held unconstitutional where he was not to be admitted to general jail population).

6

In Fuller, the Ninth Circuit noted that institutional considerations—such as the safety of the

7 broader inmate population—justified visual body cavity searches on less than probable cause. 950

8 F.2d at 1447 (“[S]trip and body cavity searches of detainees may be conducted on reasonable

9 suspicion only where such searches are necessary to protect the overriding security needs of the

10 institution”). The court declined to extend the reasonable suspicion standard to body cavity searches

11 for stolen property, which did not implicate these institutional concerns. Id. at 1448. Thus, in Fuller

12 smuggling a ring into a detention facility was not considered a security concern, and, therefore, the

13 Ninth Circuit held that probable cause was required for such a search. Most recently the Ninth

14 Circuit reaffirmed in Edgerly that arrestees charged with only minor offenses may be subjected to

15 strip searches “‘only if jail officials possess a reasonable suspicion that the individual arrestee is

16 carrying or concealing contraband.’” 495 F.3d at 656 (quoting Fuller, 950 F.2d at 1446).

17

Courts have not often discussed the requirements for performing strip searches that do not

18 rise to the level of physical or visual body cavity searches. However, they often lump them all

19 together with visual body cavity searches as the court did in Fuller, finding that such searches may

20 be conducted in an institutional setting where there is reasonable suspicion that the arrestee

21 possesses weapons or dangerous contraband such as drugs but that probable cause is required for

22 body cavity searches for ordinary evidence. Most cases dealing with strip searches have involved

23 such searches occurring at a jail, police station or other place where the arrestee will be held in

24 custody. Courts have also made a distinction between arrestees being admitted into the general jail

25 population and those simply awaiting bail or other custodial arrangements requiring less security

26 concerns. Very few have involved strip searches performed in the field. Furthermore, all of the

27 cases speak to strip searches of persons who have been arrested. Courts have authorized what is

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UNITED STATES DISTRICT COURT
For the Northern District of California

1 called a “full search of the person” in the field, however, when that search has been incident to

2 arrest. United States v. Robinson, 414 U.S. 218, 235 (1973). The extent of the search in Robinson

3 was limited to a pat-down and examination of the arrestee’s pockets, with the Court noting that the

4 search was after a “full-custody arrest.” Id. at 237 n.6.

5

What is clear from a review of the case law is that a strip search may be conducted under the

6 following circumstances:

7

1) the subject has been arrested, brought to a jail or similar custodial situation and will be

8 placed in the general custodial population or under similar housing conditions;

9

2) there is a reasonable suspicion that the subject is secreting drugs or weapons and that

10 reasonable suspicion is based on the nature of the offense, the subject’s appearance and conduct and

11 the subject’s prior arrest record; and

12

3) the search complies with the necessary privacy and health precautions discussed above.

13

What is not clear is the extent to which a strip search may be conducted in the field. There is

14 no case law suggesting that such a search may be performed in the absence of an arrest. All of the

15 cases are premised on there being an arrest, not merely a detention or a stop for questioning. An

16 arrest must be based on probable cause and may thus justify some type of search depending on the

17 circumstances. However, detentions and stops that are short of an actual arrest will not support a

18 strip search or, indeed, any kind of search except for a Terry search when the standards of Terry v.

19 Ohio, 392 U.S. 1 (1968), justify a Terry stop. Given the limits on strip searches even in a jail

20 setting, certainly the limitations are greater when the search is in the field pursuant to a valid arrest.

21 It is clear that the “full search” authorized by Robinson is ordinarily conducted for the officers’

22 safety. A “full search” incident to arrest, however, does not permit a strip search or bodily intrusion.

23 Like the searches in Fuller, the searches in the instant case are unrelated to prison security. Field

24 strip searches by definition occur before a suspect has arrived at a detention facility. And even after

25 the arrestee has arrived at the facility, security concerns may not be great enough to justify invasive

26 searches upon reasonable suspicion if the detainee is not to be admitted to the general jail population

27 or the search is merely for evidence. Fuller, 950 F.2d at 1448. Only after an arrestee has arrived at

28 14

Case 3:06-cv-02426-MHP Document 28 Filed 03/27/2008 Page 15 of 24

UNITED STATES DISTRICT COURT
For the Northern District of California

1 a detention facility does institutional security become a factor, thereby permitting searches for

2 weapons or contraband based upon reasonable suspicion. Prior to his arrival at the facility, an

3 arrestee poses no threat to prison security, and officers in the field are adequately protected by their

4 ability to perform security searches incident to arrest.

5

Therefore, the court concludes that officers in the field are generally limited to a search

6 incident to arrest as described in Robinson and that strip and more invasive searches in the field may

7 only be performed under exigent circumstances and with probable cause which may, consistent with

8 the above, require a warrant. In sum, the court concludes that the Fourth Amendment requirements

9 for the three types of strip searches performed in the field—strip search, visual body cavity search

10 and physical body cavity search—are as follows:

11

1) there must be exigent circumstances;

12 2) the search may only be performed on persons who have been lawfully arrested on
13 probable cause and may not be performed on anyone for whom there is no
14 probable cause to arrest;
15 3) the search requires probable cause that is independent of the probable cause found
16 for the arrest;7
17

18

4) the search may only be performed when there is probable cause to believe that the

19

arrestee is in possession of weapons, drugs or dangerous contraband; and

20

5) additionally, physical body cavity searches require a warrant authorizing the

21

search and must be administered by an authorized medical professional.

22

23 II. 1998 Policy

24

Plaintiffs contend that the 1998 OPD Policy does not pass constitutional muster for four

25 reasons: 1) the policy fails the balancing test required by the Supreme Court in Bell; 2) the policy

26 permits invasive searches of an arrestee’s person upon less than probable cause; 3) the policy does

27

28 15

Case 3:06-cv-02426-MHP Document 28 Filed 03/27/2008 Page 16 of 24

UNITED STATES DISTRICT COURT
For the Northern District of California

1 not adequately protect a suspect’s constitutionally protected right to physical privacy; and 4) the

2 policy permits warrantless searches in circumstances in which a warrant is required.

3

Plaintiffs’ first argument is unpersuasive. As discussed above, only blanket policies

4 requiring strip searches at detention centers have been found unconstitutional under Bell, and the

5 1998 OPD Policy contains no such requirement. See, e.g., Giles, 746 F.2d at 617; Kennedy, 901

6 F.2d at 713; Fuller, 950 F.2d at 1449–50. Because the 1998 Policy outlines when a strip search may

7 be performed and requires individual determinations of suspicion, it allows for the balancing of

8 security and privacy interests required by Bell.

9

Plaintiffs’ second argument is that the 1998 Policy allows for strip searches on less than

10 probable cause. Plaintiffs claim that the policy allows strip searches to be performed upon the

11 satisfaction of only the four requirements outlined in the OPD’s Training Bulletin section entitled

12 “Strip Searches, Visual Body-Cavity Searches, and Physical Body-Cavity Searches:” (1) “[t]he

13 person to be searched must be under arrest and ultimately booked;” (2) “[t]he arrest must be for an

14 offense involving weapons, controlled substances, or violence;” (3) “[t]he person conducting the

15 search must be of the same sex as the person searched;” and (4) “[t]he search must be conducted in a

16 private area where it cannot be observed by persons not participating in the search.” 1998 Policy at

17 8. Defendants claim that the strip search section of the training bulletin cannot be read

18 independently of the entire bulletin; specifically, defendants claim that a strip search may be

19 performed only after the requirements of searches incident to arrest are met. The section entitled

20 “Searches Incident to an Arrest” of the OPD Training Bulletin, which appears on the page previous

21 to the section on strip searches, states that “[w]hen an officer has probable cause to believe that

22 contraband is on a person, an officer can search that person.” Id. at 7. Plaintiffs provide no support

23 for their argument that the sections of the training bulletin may be, or necessarily are, read

24 independently of one another. The court finds that the sections of the bulletin must be read together,

25 and therefore the 1998 OPD Policy does not violate the requirement that strip searches be performed

26 only with probable cause.8 The court notes, however, that pursuant to Way v. County of Ventura,

27 445 F.3d 1157 (9th Cir. 2006), and Edgerly, 495 F.3d at 656 n.17, this Circuit has clearly held since

28 16

Case 3:06-cv-02426-MHP Document 28 Filed 03/27/2008 Page 17 of 24

UNITED STATES DISTRICT COURT
For the Northern District of California

1 2006 that the inclusion of all drug offenses, without an attempt to distinguish under the influence

2 charges from distribution charges, would not pass muster.

3

Plaintiffs next argue that the OPD’s 1998 Policy permits strip searches of arrestees in public,

4 and therefore, fails to protect an arrestee’s Fourth Amendment right to physical privacy. The “place

5 in which [a search] is conducted” is one of the factors the courts must consider in determining the

6 reasonableness of a search. Bell, 441 U.S. at 559. Plaintiffs cite to a number of cases outside the

7 Ninth Circuit that found public strip searches to be unconstitutional for want of privacy. See, e.g.,

8 Iskander v. Village of Forest Park, 690 F.2d 126 (7th Cir. 1982); Logan v. Shealy, 660 F.2d 1007

9 (4th Cir. 1981); Timberlake by Timberlake v. Benton, 786 F. Supp. 676 (M.D. Tenn. 1992). The

10 issue of whether the OPD has conducted strip searches in public, and whether OPD officials

11 interpret the policy as permitting strip searches in public, is not before the court at this time. The

12 court must consider only whether the 1998 Policy itself violates an arrestee’s privacy interests as a

13 matter of law. The evidence suggests that an arrestee’s privacy interests are adequately protected by

14 the policy. The Training Bulletin’s fourth requirement when performing strip searches clearly states

15 that the search must be conducted in a private area, where it cannot be observed by persons not

16 participating in the search. 1998 Policy at 8. This requirement comports with California Penal Code

17 section 4030(m) and does not justify a finding that the policy violates privacy interests as a matter of

18 law. However, to the extent that field strip searches are inconsistent with the principles set forth

19 above, they are violative of the Fourth Amendment.

20

Plaintiffs’ final argument is that the 1998 Policy is unconstitutional because it permits

21 warrantless strip searches where a warrant is required. A warrant is required for physical body

22 cavity searches, absent exigent circumstances. Fuller, 950 F.2d at 1449–50; Schmerber, 384 U.S. at

23 770. Only physical body cavity searches require a warrant; other strip searches may be performed

24 without a warrant. See, e.g., United States v. Cameron, 538 F.2d 254, 259 (9th Cir. 1976); People v.

25 Wade, 208 Cal. App. 3d 304, 307 (1989). Defendants’ 1998 Policy plainly states that a physical

26 body cavity search requires a warrant. 1998 Policy at 8. Therefore, the 1998 Policy is not

27 unconstitutional on these grounds.

28 17

Case 3:06-cv-02426-MHP Document 28 Filed 03/27/2008 Page 18 of 24

UNITED STATES DISTRICT COURT
For the Northern District of California

1

As an additional matter, although the 1998 Policy requires warrants for physical body cavity

2 searches, it does not state that such searches must be performed by a medical professional.

3 California Penal Code section 4030(k) and federal common law require that a physical body cavity

4 search be performed by a medical professional. See Schmerber, 384 U.S. at 771–72; Vaughan, 859

5 F.2d at 741. Given the policy’s silence on the issue, the court must conclude that the policy contains

6 no such requirement. In this respect, the 1998 OPD Policy is unconstitutional and in violation of

7 California law.

8

In sum, the OPD 1998 strip search Policy is not unconstitutional for any of the reasons put

9 forth by plaintiffs in their motion for partial summary judgment. It is, however, unconstitutional

10 insofar as it allows physical body cavity searches to be performed by someone other than a medical

11 professional.

12

13 III. 2004 Policy

14

Plaintiffs argue that defendants’ 2004 strip search Policy is unconstitutional for the same

15 reasons they believe the 1998 strip search Policy is unconstitutional. The court considers these

16 arguments with respect to the 2004 Policy in turn.

17

Plaintiffs’ argument that the 2004 Policy fails to allow for individual suspicion is again

18 unpersuasive. Like the 1998 Policy, the 2004 Policy is not a blanket strip search policy, and

19 therefore allows for the balancing of interests as required by Bell.

20

Plaintiffs contend that the 2004 Policy similarly allows for strip searches on less than

21 probable cause. While defendants contend that the field strip search section of the 2004 Training

22 Bulletin must be read together with the requirements of the other sections, the language of the 2004

23 Policy is somewhat contradictory. The Training Bulletin states that “[w]hen an officer has probable

24 cause to believe that contraband is on a person, an officer can search that person.” 2004 Policy at 5.

25 However, the section entitled “Strip Searches in the Field” states that a strip search in the field may

26 be conducted when it is “reasonable to believe” that an arrestee is carrying a weapon or contraband.

27 Id. at 6. This language appears to require only reasonable suspicion to conduct a strip search of an

28 18

Case 3:06-cv-02426-MHP Document 28 Filed 03/27/2008 Page 19 of 24

UNITED STATES DISTRICT COURT
For the Northern District of California

1 arrestee. While reasonable suspicion is adequate to justify a strip search in the context of a detention

2 facility when institutional security is a concern, in accordance with the above holding, it is

3 insufficient to justify a strip search in the filed. Because the language of the 2004 policy is unclear,

4 the court assumes that the policy requires only reasonable suspicion. In this respect the 2004 OPD

5 strip search Policy is unconstitutional.

6

Plaintiffs next argue that the 2004 Policy fails to protect an arrestee’s Fourth Amendment

7 right to physical privacy. Again, the court considers the “place in which [a search] is conducted”

8 when determining the reasonableness of a search. Bell, 441 U.S. at 559. The 2004 OPD strip search

9 Policy differs from the 1998 Policy with respect to an arrestee’s privacy. While the 1998 Policy

10 states that a strip search must be conducted in a private area where it cannot be observed by others,

11 the 2004 Policy states that “reasonable efforts must be made to provide as much privacy as possible

12 given the circumstances.” 2004 Policy at 7 (emphasis omitted). Although this language seems to

13 protect an arrestee’s privacy less effectively, the 2004 Policy also states that visual and physical

14 body cavity searches may never be conducted in the field. Id. Therefore, the only type of strip

15 search that is permitted in the field by the 2004 Policy is one that does not rise to the level of a

16 cavity search, and that is only a rearrangement of the clothing. The test for the constitutionality of a

17 strip search is reasonableness under the circumstances.9 Bell, 441 U.S. at 559. Because the 2004

18 Policy limits field searches to strip searches and requires “reasonable efforts” to protect a suspect’s

19 privacy, the policy does not violate an arrestee’s right to privacy as a matter of law.

20

Plaintiffs again argue that the 2004 Policy is unconstitutional because it permits warrantless

21 strip searches where a warrant is required. A warrant is required for physical body cavity searches,

22 absent exigent circumstances. Fuller, 950 F.2d at 1449–50; Schmerber, 384 U.S. at 770. Other strip

23 searches may be performed without a warrant. See Wade, 208 Cal. App. 3d at 307; Cameron, 538

24 F.2d at 259. Defendants’ 2004 Policy plainly states that a physical body cavity search requires a

25 warrant.10 2004 Policy at 7. Therefore, the 2004 Policy is not unconstitutional on these grounds.

26

In sum, the 2004 OPD strip search Policy is unconstitutional to the extent that it allows strip

27 searches of any kind in the field to be performed on less than probable cause.

28 19

Case 3:06-cv-02426-MHP Document 28 Filed 03/27/2008 Page 20 of 24

UNITED STATES DISTRICT COURT
For the Northern District of California

1 IV. Constitutionality of Individual Searches

2

Plaintiffs seek summary judgment declaring any search in accordance with either of the OPD

3 policies to be unconstitutional. The constitutionality of an individual search, however, does not turn

4 solely on the constitutionality of the policy pursuant to which it was performed. See Kennedy, 901

5 F.2d at 715. The Ninth Circuit observed in Kennedy that “a search, although not supportable under

6 an institutional policy, is not per se unconstitutional.” Id. And in Fuller, the court noted that “[t]he

7 fundamental question under the fourth amendment is whether ‘the grounds for a search . . . satisfy

8 objective standards’ of reasonableness.” 950 F.2d at 1446 (quoting Torres v. Commonwealth of

9 Puerto Rico, 442 U.S. 465, 471 (1979)) (emphasis omitted). Thus, even if a policy permitting a

10 search passes constitutional muster, an individual search must be evaluated based upon the above

11 standards. Where a policy permits searches that may be unconstitutional, an individual search must

12 still meet constitutional standards. Where the officer claims to rely on an unconstitutional policy,

13 the rules regarding qualified immunity apply and liability must depend upon the facts of the

14 particular case.

15

To the extent that the OPD policies are inconsistent with the foregoing standards, the court

16 must determine the appropriate relief.

17

18 V. Liability

19

Plaintiffs seek summary judgment on the issue of liability in favor of the plaintiffs. As noted

20 in the previous section, the court is presently unable to determine the constitutionality of any

21 particular search in the instant case until further evidence is submitted. To the extent that the court

22 has found certain policies do not meet constitutional standards, defendant Oakland must bring its

23 policies into compliance.

24

25 VI. Objections to Related Case

26

Defendants argue in one sentence in a footnote that the defendants in Miller v. City of

27 Oakland have not been served or have not yet appeared in the case, and therefore should not be

28 20

Case 3:06-cv-02426-MHP Document 28 Filed 03/27/2008 Page 21 of 24

UNITED STATES DISTRICT COURT
For the Northern District of California

1 included in this motion for partial summary judgment. Plaintiffs note that defendants Oakland and

2 Richard Word filed an answer in Miller on April 19, 2007. The court therefore finds that the parties

3 in Miller are proper parties to this motion.

4

5 VII. Evidentiary Issues

6

Defendants ask the court to take judicial notice of two separate sets of documents: 1) the

7 1998 and 2004 OPD strip search policies, and 2) documents in this case and in Cammerin K. Boyd

8 v. City of Oakland, Case No. 03-3391 JL (N.D. Cal.). Pursuant to Federal Rule of Evidence 201, the

9 court takes judicial notice of the 1998 and 2004 OPD policies as they are capable of accurate and

10 ready determination by resort to sources whose accuracy cannot reasonably be questioned. See Fed.

11 R. Evid. 201(b)(2); see also Hott v. City of San Jose, 92 F. Supp. 2d 996, 998 (N.D. Cal. 2000)

12 (Fogel, J.) (holding the court may take judicial notice of relevant documents). Plaintiffs have not

13 objected to defendants’ request for judicial notice. Accordingly, the court GRANTS the defendants’

14 request for judicial notice of the OPD policies. The court declines to take judicial notice of the

15 second set of documents because it has not considered them here.

16

Defendants have submitted a separate statement of genuine issues to which plaintiffs object.

17 Because the court has not considered this statement, the court need not address plaintiffs’ objections

18 at this time.

19 /////

20 /////

21 /////

22 /////

23 /////

24 /////

25 /////

26 /////

27

28 21

Case 3:06-cv-02426-MHP Document 28 Filed 03/27/2008 Page 22 of 24

UNITED STATES DISTRICT COURT
For the Northern District of California

1 CONCLUSION

2

For the reasons stated above, the court GRANTS IN PART plaintiffs’ motion for partial

3 summary judgment with respect to the request for declaratory relief that the 1998 and 2004 OPD

4 policies are unconstitutional in certain respects, and DENIES the motion for summary judgment on

5 liability and declaratory relief on the individual searches at issue.

6

The parties shall arrange a case management conference with the court to discuss the

7 remedies necessary to comply with this order and for further proceedings in this and the other related

8 cases.

9

IT IS SO ORDERED.

10 Dated: March 27, 2008 11 12

MARILYN HALL PATEL United States District Court Judge Northern District of California

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 22

Case 3:06-cv-02426-MHP Document 28 Filed 03/27/2008 Page 23 of 24

UNITED STATES DISTRICT COURT
For the Northern District of California

1

ENDNOTES

2 1. The four related cases are Taylor v. City of Oakland, C 04-4843 MHP; Rider v. City of
3 Oakland, C 05-3204 MHP; Moore v. City of Oakland, C 06-2426 MHP; and Miller v. City of Oakland, C 07-1773 MHP.
4 2. Unless otherwise noted, all facts are taken from the first amended complaint (the
5 “Complaint” or “FAC”).

6 3. This list of defendants includes defendants from Foster v. City of Oakland, Case No. C 05-

7 3110 MHP; Taylor v. City of Oakland, C 04-4843 MHP; Rider v. City of Oakland, C 05-3204 MHP; Moore v. City of Oakland, C 06-2426 MHP; and Miller v. City of Oakland, C 07-1773 MHP.
8

9

4. The words “Training Bulletin,” “Bulletin” and “policy” are used interchangeably in this order.

10 5.

The court understands “in the field” to mean a search conducted outside the privacy of a

11 police station or detention center, contrary to plaintiffs’ repeated implication that “in the field” is

12

synonymous with “in public.” Former OPD Chief Richard Word’s internal communication indicates that an appropriate place for a field search would be inside an unoccupied private or public

13 restroom; it would be a stretch to characterize a search conducted in such surroundings as a search

“in public.” Nisenbaum Dec., Exh. A at 33. 14

15

6. Since, as can be seen from this sentence, the term “strip search” has been used to denote a wide variety of search practices varying in their degree of intrusiveness, this court, as stated above,

16 uses the California Penal Code definitions.

17 7. In some rare instances, the probable cause for the arrest will also provide probable cause for 18 the invasive search.

19 8. Despite the contradictory language with respect to the requisite level of suspicion in the 2004 Policy discussed below in section III of this order, the 2004 Policy more clearly suggests that the
20 separate sections of the Training Bulletin must be read together by defining the requirements for

21

“strip searches incident to arrest.” 2004 Policy at 6 (emphasis added). This suggests that strip searches may only be performed when the requirements for searches incident to arrest are met.

22 While the 1998 Policy does not make this clear on its face, plaintiffs have presented no evidence to

the contrary, and the court accepts defendants’ argument that the sections must be read together. 23

24 9. While the Fourth Amendment requirement for conducting a strip search is reasonableness under the circumstances, California Penal Code section 4030(m) appears to require strict privacy:
25 “[a]ll strip, visual and physical body cavity searches shall be conducted in an area of privacy so that the search cannot be observed by persons not participating in the search.”
26

27 10. The 2004 OPD Policy notes in the same sentence that a physical body cavity search can only be conducted by an authorized medical professional. 2004 Policy at 7.
28 23

UNITED STATES DISTRICT COURT
For the Northern District of California

Case 3:06-cv-02426-MHP Document 28 Filed 03/27/2008 Page 24 of 24
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
24

 
 Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page1 of 13

1 JOHN L. BURRIS, Esq./ State Bar #69888 BENJAMIN NISENBAUM, Esq./State Bar #222173
2 LAW OFFICES OF JOHN L. BURRIS Airport Corporate Centre
3 7677 Oakport Street, Suite 1120 Oakland, California 94621
4 Telephone: (510) 839-5200 Facsimile: (510) 839-3882
5
Attorneys for Plaintiffs
6

7

UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

10 DARNELL FOSTER, individually; RAFAEL DUARTE, individually,
11

12

Plaintiffs,

Case No.
COMPLAINT FOR DAMAGES FOR VIOLATION OF CIVIL RIGHTS. JURY TRIAL DEMANDED

13

vs.

14 CITY OF OAKLAND, a municipal corporation; RICHARD WORD, in his capacity as Chief of
15 Police for the CITY OF OAKLAND; J. FESTAG, individually and in his capacity as a
16 police officer for the CITY OF OAKLAND; 17 and, DOES 1-25, inclusive,

18

Defendants.

19

/

20

21
JURISDICTION
22
1. This action arises under Title 42 of the United States Code, Section 1983. Jurisdiction
23
is conferred upon this Court by Title 28 of the United States Code, Sections 1331 and 1343. The
24
unlawful acts and practices alleged herein occurred in the County of Alameda, California, which is
25
within this judicial district.
26

27

28

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 1

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page2 of 13

1

PARTIES

2

2. Plaintiff herein, DARNELL FOSTER (“FOSTER”), is readily recognizable as an

3 African-American male and was at all times herein mentioned a citizen of the United States residing

4 in Alameda County in California.

5

3. Plaintiff herein, RAFAEL DUARTE (“DUARTE”), is readily recognizable as an

6 Hispanic-American was at all times herein mentioned a citizen of the United States residing in

7 Alameda County in California.

8

4. Defendant City of Oakland (“CITY”) is a municipal corporation, duly organized and

9 existing under the laws of the State of California. The City operates under its authority the Oakland

10 Police Department.

11

5. At all times mentioned herein, Defendant RICHARD WORD was employed by

12 Defendant CITY as Chief of Police for the Defendant CITY. He is being sued in his official capacity

13 as Chief of Police for the City.

14

6. At all times mentioned herein, Defendant officer J. FESTAG (“FESTAG”) was

15 employed by Defendant CITY as a police officer. He is being sued individually and in his official

16 capacity as a police officer for the City.

17

7. Plaintiffs are ignorant of the true names and capacities of Defendants DOES 1 through

18 25, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs are informed

19 and believe and thereon allege that each Defendant so named is responsible in some manner for the 20 injuries and damages sustained by Plaintiffs as set forth herein. Plaintiffs will amend their complaint

21 to state the names and capacities of DOES 1-25, inclusive, when they have been ascertained.

22

8. In engaging in the conduct described herein, Defendant police officers acted under the

23 color of law and in the course and scope of their employment with the City. In engaging in the

24 conduct described herein, Defendant police officers exceeded the authority vested in them as police

25 officers under the United States and California Constitutions and as police officers employed by

26 Defendant CITY.

27

28

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 2

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page3 of 13

1

STATEMENT OF FACTS

2

FACTUAL ALLEGATIONS REGARDING PLAINTIFF DARNELL FOSTER

3

9. On February 27, 2004, at around 3 p.m., Defendant Officer FESTAG stopped Plaintiff

4 FOSTER in front of a small market, the “School Market”, located near the corner of School Street

5 and Pleitner Avenue in Oakland, Caifornia.

6

10. Plaintiff FOSTER lived in Carson City, Nevada at the time, but was visiting friends

7 who lived in Oakland. Plaintiff FOSTER had purchased two Black and Mild cigars at the School

8 Market shortly before Defendant Officer FESTAG and one other unknown Oakland Police Officer

9 DOE stopped him. He possessed no contraband and was not engaged in any illegal activity

10 whatsoever. Defendant Officers stopped Plaintiff FOSTER as he walked out of the School Market

11 and asked him for his identification. Plaintiff FOSTER showed the officer his identification. The

12 officers then asked him whether he was on probation or parole. Plaintiff FOSTER honestly replied

13 that he was on probation. In fact, Plaintiff FOSTER, only two months remained of the five year

14 felony unsupervised probation sentence for possession for sale of marijuana. Plaintiff FOSTER had

15 served his probation sentence without incurring a single violation. Plaintiff FOSTER told Defendant

16 Officer FESTAG that he had only two months remaining on his probation.

17

11. Defendant Officer FESTAG handcuffed Plaintiff FOSTER without explanation and

18 escorted him to the back of his patrol vehicle, which was parked in front of the School Market.

19 Defendant Officer FESTAG forced Plaintiff FOSTER against the back of the patrol vehicle and

20 ordered him to spread his legs. Defendant Officer FESTAG searched Plaintiff FOSTER’s pockets

21 and found $22. Defendant Officer FESTAG told Plaintiff FOSTER that the $22 would be

22 confiscated. Even though Plaintiff FOSTER had committed no crime and was not involved in any

23 manner of illegal activity, Defendant Officer FESTAG informed Plaintiff FOSTER that the $22

24 found in Plaintiff FOSTER’s pocket was proceeds of narcotics sales. Defendant Officer FESTAG

25 claimed that Plaintiff FOSTER was engaged in narcotics sales. He handcuffed Plaintiff FOSTER and

26 placed him in the rear of the police vehicle.

27

12. The unknown Officer DOE ran Plaintiff FOSTER’s name for a warrant check. The

28 search revealed no warrants for Plaintiff FOSTER. Defendant Officer FESTAG searched the area

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 3

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page4 of 13

1 around the market and located no evidence of any illegal activity relating to Plaintiff FOSTER. In

2 spite of the circumstances, which overwhelmingly indicated that Plaintiff FOSTER had not

3 committed any crime, Defendant Officer FESTAG maliciously told Plaintiff FOSTER that he was

4 going to violate his probation. Defendant Officer FESTAG told Plaintiff FOSTER, “I think you’re

5 holding out on me,” even though there was no basis to believe that Plaintiff FOSTER was engaged in

6 illegal activity.

7

13. Defendant Officer FESTAG removed Plaintiff FOSTER, still handcuffed, from the

8 back of the patrol vehicle and bent him over the hood of the police car. Defendant Officer FESTAG

9 opened the patrol vehicle’s trunk and put on a purple latex glove. He then returned to Plaintiff

10 FOSTER and ordered him to bend over the hood of the patrol vehicle. Plaintiff FOSTER stood in the

11 gutter, between the sidewalk and the police car, handcuffed, while Defendant Officer FESTAG

12 yanked Plaintiff FOSTER’s gray sweat pants down to his knees. Defendant Officer FESTAG then

13 yanked Plaintiff FOSTER’s boxer shorts down to his knees, exposing Plaintiff FOSTER’s genitalia.

14 Humiliated and stunned, Plaintiff FOSTER felt Defendant Officer FESTAG’s hands reach under his

15 testicles. Consistent with Plaintiff FOSTER’s innocence, this offensive sexual battery showed that

16 Plaintiff FOSTER possessed no contraband at all.

17

14. To Plaintiff’s shock and disbelief, Defendant Officer FESTAG told Plaintiff FOSTER

18 “I’m going to do a butt-crack search, see if you got crack in your butt-crack.” Plaintiff FOSTER was

19 forced to comply with Defendant Officer FESTAG’s outrageous conduct. Defendant Officer

20 FESTAG spread Plaintiff FOSTER’s butt-cheeks with his right hand and exposed the anus. The

21 unknown Officer DOE was also present, and both officers inspected Plaintiff FOSTER’s anus.

22 Predictably, this unwarranted intrusive search failed to reveal any contraband.

23

15. Defendant Officers pulled Plaintiff’s underwear and sweat pants up and put him back

24 in the rear of the patrol vehicle. Despite the complete lack of evidence, Defendant Officer FESTAG

25 told Plaintiff that he was going to take him to jail for “loitering with the intent to sell narcotics.”

26 Plaintiff FOSTER denied loitering and told the officers that he had just gone to the store, and was not

27 involved in any drug activity.

28

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 4

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page5 of 13

1

16. Defendant Officer FESTAG drove about two blocks away and stopped the patrol

2 vehicle near the corner of Texas and Maple Streets. One of the Defendant Officers asked Plaintiff

3 FOSTER if he knew anyone who sold marijuana. When Plaintiff FOSTER said “no,” the officers

4 asked him to make an undercover drug purchase. After Plaintiff FOSTER refused to become a

5 snitch for the officers, Defendant Officer FESTAG told Plaintiff FOSTER “Help me so I can help

6 you.”

7

17. Plaintiff FOSTER again asked the officers what he had done, and they again claimed

8 that he had sold narcotics. When Plaintiff FOSTER truthfully stated that he had not sold narcotics,

9 the officers insisted that Plaintiff FOSTER sign a citation for violating an Oakland Municipal

10 Ordinance prohibiting loitering with the intent to sell narcotics. Plaintiff FOSTER signed the citation

11 and Defendant Officer released him. Defendant Officers kept Plaintiff FOSTER handcuffed

12 throughout the incident, which lasted nearly half an hour.

13

18. After being released, Plaintiff FOSTER returned to the same store, “School Market”

14 and spoke with the store clerk. The clerk told Plaintiff FOSTER that one of the officers had come in

15 and asked him how long Plaintiff FOSTER had been in the store. The clerk stated that he had told

16 the officer Mr. FOSTER had come into the store just before the police came.

17

19. Plaintiff FOSTER returned home to Carson City, Nevada. Several months later, in

18 May, Plaintiff FOSTER received a Notice to Appear in Criminal court in Oakland in September 2004

19 on the citation issued by Defendant Officer FESTAG. Plaintiff FOSTER called the Oakland Police

20 Department Internal Affairs Division and filed an Internal Affairs complaint against Defendant

21 Officer FESTAG sometime around July 2004. In order to defend against the false loitering charges,

22 Plaintiff FOSTER traveled from Nevada to Oakland and appeared in court in Oakland on September

23 24, 2004. The charge against him was dismissed when neither Officer FESTAG, nor any other

24 officer, appeared in court to substantiate the false allegation against Plaintiff FOSTER.

25

20. Plaintiff FOSTER alleges, on information and belief, that defendant officers had

26 insufficient information, and no particularized facts, to support their stop, detention, and search of

27 Plaintiff.

28

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 5

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page6 of 13

1

21. The detention, search, and arrest of Plaintiff FOSTER described herein was done

2 without any just provocation or cause, proximately causing Plaintiff FOSTER’s injuries and resulting

3 damages.

4

22. Plaintiff FOSTER alleges on information and belief that defendant officers performed

5 the public, intrusive anal-cavity search without probable or reasonable cause pursuant to an official or

6 de facto CITY OF OAKLAND policy condoning and/or ratifying such illegal searches

7

FACTUAL ALLEGATIONS REGARDING PLAINTIFF RAFAEL DUARTE

8

23. On the afternoon of March 9, 2005, Plaintiff RAFAEL DUARTE was a passenger in a

9 car driven by a friend of his, Deandre Wash. Mr. Wash drove a late-80s model Toyota Supra. Two

10 all-black Oakland Police vehicles, believed to be “task-force” vehicles, cut the Supra off without 11 warning, forcing the car to a sudden stop on Baker Street between, between 62nd and 63rd Street in

12 Oakland.

13

24. Although the Officers gave no orders to Plaintiff or Mr. Wash, at least one Defendant

14 Officer DOE opened the passenger side door and yanked Plaintiff DUARTE from the vehicle.

15 Although Plaintiff DUARTE had committed no crime, the DOE police officer forced him against the

16 Toyota’s hood and handcuffed him. The DOE police officer then walked Plaintiff DUARTE to the

17 front-side of a nearby house. Several other unknown Defendant Officer DOES were also present at

18 the scene. The DOE police officer pat-searched Plaintiff DUARTE several times and then searched

19 him thoroughly. The search yielded no contraband.

20

26. Plaintiff DUARTE protested, stating that he had not committed any crime and was not

21 in possession of any contraband. Even though the searches performed by Officer DOE confirmed

22 that Plaintiff DUARTE had committed no crime and possessed no contraband, one other Defendant

23 Officer DOE 2 told the first Officer DOE that he thought he had seen Plaintiff DUARTE “stuff

24 something in his pants.”

25

27. Defendant Officers pulled Plaintiff DUARTE’s pants down and ordered him to bend

26 over. To Plaintiff DUARTE’s shock and humiliation, one of the Defendant Officer DOES spread

27 Plaintiff DUARTE’s butt-cheeks exposing his anus. The search proved fruitless. Plaintiff DUARTE

28 possessed no contraband anywhere.

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 6

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page7 of 13

1

28. Plaintiff DUARTE was placed in the rear of the police vehicle. Defendant Officers

2 then removed Plaintiff’s friend, Mr. Wash, from the vehicle and performed the same type of anal-

3 cavity search on Mr. WASH. That search also yielded no contraband whatsoever. A crowd of

4 people had gathered during the search, and Plaintiff DUARTE was acquainted with some of the

5 people who witnessed the outrageous anal-cavity search of Plaintiff and his friend, Mr. Wash.

6

29. Plaintiff DUARTE was transported to Oakland City Jail where he was cited out after

7 about two hours in custody. Plaintiff DUARTE told the officer who took his fingerprints about the

8 anal-cavity search and was told by the officer to file an Internal Affairs complaint. He was also told

9 that his civil rights had been violated and that he should file a lawsuit. No charges were ever filed

10 against Plaintiff DUARTE.

11

30. Plaintiff DUARTE alleges, on information and belief, that defendant officers had

12 insufficient information, and no particularized facts, to support their stop, detention, and search of

13 Plaintiff.

14

31. The detention, search, and arrest of Plaintiff DUARTE described herein was done

15 without any just provocation or cause, proximately causing Plaintiff DUARTE’s injuries and

16 resulting damages.

17

32. Plaintiff DUARTE alleges on information and belief that defendant officers performed

18 the public, intrusive anal-cavity search without probable or reasonable cause pursuant to an official or

19 de facto CITY OF OAKLAND policy condoning and/or ratifying such illegal searches
20

21

DAMAGES

22

33. As a proximate result of Defendants’ conduct, Plaintiffs suffered severe and extreme

23 emotional distress, fear, terror, anxiety, humiliation, and loss of their sense of security, dignity, and

24 pride as United States citizens.

25

34. Plaintiffs were assaulted, detained, handcuffed, illegally searched in the anus in public,

26 and falsely arrested by the defendant officers noted herein without any just provocation or probable

27 cause. Plaintiff FOSTER defended against the false charge of loitering and traveled from Nevada to

28 Oakland to make a court appearance at which Defendant Officer FESTAG did not bother to appear.

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 7

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page8 of 13

1

35. The conduct of defendant officers was malicious, wanton, and oppressive. Plaintiffs

2 are therefore entitled to an award of punitive damages against said defendant police officers.

3

36. Plaintiffs found it necessary to engage the services of private counsel to vindicate his

4 rights under the law. Plaintiffs are therefore entitled to an award of all attorney’s fees incurred in

5 relation to this action for violation of their civil rights.

6

7

FIRST CAUSE OF ACTION

(42 U.S.C. Section 1983)

8

(Against Defendants FESTAG and DOES 1-10)

9
37. Plaintiffs hereby re-allege and incorporate by reference herein paragraphs 1 through
10

11 36 of this Complaint.

12

38. In doing the acts complained of herein, Defendants FESTAG and DOES 1-10,

13 inclusive, and/or each of them, acted under color of law to deprive Plaintiffs of certain

14
constitutionally protected rights, including, but not limited to:
15
a. The right to be free from unreasonable searches and seizures, as guaranteed by the
16

17

Fourth and Fourteenth Amendments to the United States Constitution;

18

b. The right not to be deprived of life or liberty without due process of law, as guaranteed

19

by the Fifth and Fourteenth Amendments to the United States Constitution;

20
c. The right to be free from the use of excessive force by police officers, which is
21
guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the United States
22

23

Constitution;

24

d. The right to equal protection of the laws, as guaranteed by the Fourteenth Amendment

25

to the United States Constitution; and/or,

26
e. The right to be free from interference within the zone of privacy, as protected by the
27

Fourth and Ninth Amendments to the United States Constitution;
28

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth.

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 8

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page9 of 13

1

SECOND CAUSE OF ACTION

(42 U.S.C. section 1983)

2

(Against Defendants CITY, RICHARD WORD, and DOES 11-25)

3
39. Plaintiffs hereby re-allege and incorporate by reference herein paragraphs 1 through
4

38 of this Complaint.
5

6

40. Plaintiffs are informed and believe and thereon allege that high ranking City of

7 Oakland officials, including high ranking police supervisors, such as Defendant Richard WORD,
8
DOES 11 through 25, and/or each of them, knew and/or reasonably should have known about
9
repeated acts of misconduct by Defendants FESTAG and DOES 1-10, and/or each of them, including
10
11 illegal public strip search and anal-cavity searches without any reasonable suspicion of criminal

12 activity to justify the complained of searches.

13

41. Despite having such notice, Plaintiffs are informed and believe and thereon allege that

14
Defendants WORD, DOES 11-25, and/or each of them, approved, ratified, condoned, encouraged
15
and/or tacitly authorized the continuing pattern and practice of misconduct and/or civil rights
16

17 violations by said officers.

18

42. Plaintiffs are further informed and believe and thereon allege that as a result of the

19 deliberate indifference, reckless and/or conscious disregard of the misconduct by Defendants
20
FESTAG and DOES 1-10, and/or each of them, Defendant WORD, DOES 11-25, and/or each of
21
them, encouraged these officers to continue their course of misconduct, resulting in the violation of
22
23 Plaintiffs’ rights as alleged herein.

24

43. The aforementioned acts and/or omissions and/or deliberate indifference by high

25
ranking City of Oakland officials, including high ranking City of Oakland Police Department
26
supervisors, Defendants WORD, DOES 11-25, and each of them resulted in the deprivation of
27
28 Plaintffs’ constitutional rights including, but not limited to, the following:

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 9

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page10 of 13

1

2

a. The right to be free from unreasonable searches and seizures, as guaranteed by the Fourth

3
and Fourteenth Amendments to the United States Constitution;
4

b. The right not to be deprived of life or liberty without due process of law, as guaranteed by
5

6

the Fifth and Fourteenth Amendments to the United States Constitution;

7

c. The right to be free from the use of excessive force by police officers, which is

8
guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the United States
9
Constitution;
10

11

d. The right to equal protection of the laws, as guaranteed by the Fourteenth Amendment to

12

the United States Constitution; and/or,

13

e. The right to be free from interference within the zone of privacy, as protected by the

14
Fourth and Ninth Amendments to the United States Constitution;
15
44. Said rights are substantive guarantees under the Fourth and/or Fourteenth
16

17 Amendments to the United States Constitution.

18

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth.

19

THIRD CAUSE OF ACTION

20

(42 U.S.C. section 1983)

(Against Defendant CITY OF OAKLAND)

21

45. Plaintiffs hereby reallege and incorporate by reference herein paragraphs 1 through 44
22

23 of this Complaint.

24

46. As against Defendant CITY, Defendant WORD and/or DOES 11-25 in his/their

25
capacity as official policy-maker(s) for the CITY OF OAKLAND, Plaintiffs further allege that the
26
acts and/or omissions alleged in the Complaint herein are indicative and representative of a repeated
27
28 course of conduct by members of the CITY OF OAKLAND Police Department tantamount to a

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 10

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page11 of 13

1 custom, policy or repeated practice of condoning and tacitly encouraging the abuse of police

2 authority, and disregard for the constitutional rights of citizens.
3
47. Plaintiffs are further informed and believe and thereon allege that the acts and
4
omissions alleged herein are the direct and proximate result of the deliberate indifference of
5
6 Defendants CITY, WORD, DOES 11-25, and each of them, to repeated acts of police misconduct,

7 including intrusive, humiliating, public anal cavity searches without probable or reasonable

8
suspicion of criminal wrongdoing, which were tacitly authorized, encouraged or condoned by the
9
Defendant CITY, Defendant WORD, DOES 11-25, and each of them.
10

11

48. The injuries and damages to Plaintiffs as alleged herein were the foreseeable and

12 proximate result of said customs, policies, patterns and/or practices of Defendant CITY, Defendant

13 WORD, DOES 11-25, and each of them.
14
49. Plaintiffs are further informed and believe and thereon allege that the damages
15
sustained as alleged herein were the direct and proximate result of municipal customs and/or policies
16
17 of deliberate indifference in the training, supervision and/or discipline of members of the Defendant

18 OAKLAND Police Department.

19

50. Plaintiffs are further informed and believe and upon such information and belief allege

20
that Plaintiffs’ damages and injuries were caused by customs, policies, patterns or practices of
21

Defendant CITY, Defendant WORD, DOES 11-25, and each of them, of deliberate indifference in
22

23 the training, supervision and/or discipline of Defendants FESTAG and DOES 1-10, and/or each of

24 them.
25
51. The aforementioned customs, policies or practices of Defendant CITY, Defendant
26
WORD, DOES 11-25, and each of them, resulted in the deprivation of Plaintiffs’ constitutional rights
27
28 including, but not limited to, the following:

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 11

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page12 of 13

1

a. The right to be free from unreasonable searches and seizures, as guaranteed by the Fourth

2

and Fourteenth Amendments to the United States Constitution;

3
b. The right not to be deprived of life or liberty without due process of law, as guaranteed by
4

the Fifth and Fourteenth Amendments to the United States Constitution;
5

6

c. The right to be free from the use of excessive force by police officers, which is guaranteed

7

by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution;

8
d. The right to equal protection of the laws, as guaranteed by the Fourteenth Amendment to
9
the United States Constitution; and/or,
10

11

e. The right to be free from interference within the zone of privacy, as protected by the

12

Fourth and Ninth Amendments to the United States Constitution.

13

52. Said rights are substantive guarantees under the Fourth and/or Fourteenth

14
Amendments to the United States Constitution.
15
WHEREFORE, Plaintiffs pray for relief as hereinafter set forth.
16

17

JURY DEMAND

18

53. Plaintiffs hereby demand a jury trial in this action.

19 ///

20 ///

21

22

23

24

25

26

27

28

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 12

Case3:05-cv-03110-MHP Document1 Filed08/01/05 Page13 of 13

1

PRAYER

2

WHEREFORE, Plaintiffs pray for relief, as follows:

3

1. For general damages in a sum of $1,000,000.00;

4

2. For special damages in a sum according to proof;

5

3. For punitive damages in a sum according to proof;

6

4. For reasonable attorney’s fees pursuant to 42 U.S.C. Section 1988;

7

5. For cost of suit herein incurred; and

8

6. For such other and further relief as the Court deems just and proper.

9

10 Dated: July 25, 2005
11

The Law Offices of John L. Burris

12

13

_______________________________

John L. Burris, Esq.

14

Attorney for Plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES - 13

 
 Case3:05-cv-03110-MHP Document79 Filed01/13/09 Page1 of 12

United States District Court For the Northern District of California

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

10 DARNELL FOSTER, et al.,

11

12

v.

Plaintiffs,

MEMORANDUM AND ORDER Re: Plaintiffs’ Renewed Motion for Class Certification

13 CITY OF OAKLAND, et al.,

No. C 05-3110 MHP

14

Defendants.

15 This Document Relates To:
16

17 JAMES TAYLOR, et al.,

No. C 04-4843 MHP

18

Plaintiffs,

19

v.

20 CITY OF OAKLAND, et al.,

21

Defendants.

22 JIMMY RIDER, et al.,
23 Plaintiffs,
24 v.
25 CITY OF OAKLAND, et al.,
26 Defendants.
27

No. C 05-3204 MHP

28

Case3:05-cv-03110-MHP Document79 Filed01/13/09 Page2 of 12

United States District Court For the Northern District of California

1 TYRONE MOORE,

2

Plaintiff,

3

v.

4 CITY OF OAKLAND, et al.,

5

Defendants.

6 JEFFRIE MILLER, et al.,
7 Plaintiffs,
8 v.
9 CITY OF OAKLAND, et al.,
10 Defendants.
11

12 DAVID WARD, et al.,
13 Plaintiffs,
14 v.
15 CITY OF OAKLAND, et al.,
16 Defendants.
17

18 JOHN SMITH, et al.,

19

Plaintiffs,

20

v.

21 CITY OF OAKLAND, et al.,

22

Defendants.

23 TERRELL TURNER, et al.,
24 Plaintiffs,
25 v.
26 CITY OF OAKLAND, et al.,
27 Defendants.
28

No. C 06-2426 MHP No. C 07-1773 MHP No. C 07-4179 MHP No. C 07-6298 MHP No. C 08-3114 MHP 2

Case3:05-cv-03110-MHP Document79 Filed01/13/09 Page3 of 12

United States District Court For the Northern District of California

1 LAWRENCE COLEY, et al.,

No. C 08-4255 MHP

2

Plaintiffs,

3

v.

4 CITY OF OAKLAND, et al.,

5

Defendants.

/

6

7

Plaintiffs Darnell Foster, Rafael Duarte, and Yancie Young brought this action pursuant to

8 28 U.S.C., section 1983, against the following defendants: the City of Oakland (“Oakland”); Richard

9 Word, individually and in his capacity as the Oakland Chief of Police; Oakland police officers J.

10 Festag and William Bergeron, individually and in their official capacities as police officers; and

11 Does 1-25. Plaintiffs allege that defendants violated plaintiffs’ constitutional rights through a policy

12 and practice of performing strip searches and body-cavity searches in public. Plaintiffs seek both

13 injunctive relief and damages. This case, Foster v. City of Oakland, Case No. C 05-3110 MHP, has

14 been related to eight similar cases pending in the Northern District of California, and this order

15 applies to each of them.1 Now before the court is plaintiffs’ renewed motion for class certification.

16 After considering the parties’ arguments and submissions and for the reasons set forth below, the

17 court enters the following memorandum and order.

18

19 BACKGROUND

20 I. The Parties

21

A. Plaintiffs

22

The plaintiffs in Foster and each of the eight related cases allege that they have suffered

23 injuries to their civil rights as a result of strip searches, visual body cavity searches, or physical body

24 cavity searches administered in public by Oakland police officers at some time between August 1,

25 2003, and the present. A detailed description of the allegations of Foster, Duarte, and Young may be

26 found in the court’s March 27, 2008, order partially granting and partially denying plaintiffs’ partial

27 motion for summary judgment. See Docket No. 63 at 2-5. The total number of named plaintiffs in

28 the nine cases is forty. In addition, plaintiffs state that there are eleven class members who they

3

Case3:05-cv-03110-MHP Document79 Filed01/13/09 Page4 of 12

United States District Court For the Northern District of California

1 have identified but not yet named. Mot. at 10.2 One of the forty named plaintiffs, James Taylor (No.

2 C 04-4843 MHP), filed suit based upon a search that occurred in November 2002, about one year

3 prior to the period included in the class definition. Of the thirty-nine remaining named plaintiffs,

4 thirty-eight identify themselves as African-American and one (Duarte) identifies himself as Latino.

5

6

B. Defendants

7

Defendant Oakland is a municipal corporation that, among other things, operates the Oakland

8 Police Department (“OPD”) and employs the other defendants. Plaintiffs have variously named

9 current Chief of Police Wayne Tucker in his official capacity, former Chief of Police Richard Word

10 in both his individual and official capacities, and numerous individual Oakland police officers in

11 both their individual and official capacities.

12

13 II. The Incidents

14

Each named plaintiff in the nine related cases alleges that he was subjected to at least one

15 strip search. Twelve named plaintiffs allege that they were subjected to at least one visual body

16 cavity search. See Mot. at 8-9.3 Thirteen named plaintiffs allege they were subjected to at least one

17 physical body cavity search. See id. These groups overlap with one another: some plaintiffs allege

18 they were subjected to just one type of search, while others allege they were subjected to two or

19 even all three of the different search techniques. See id. The “type of search” conducted on each

20 plaintiff varies from plaintiff to plaintiff. The various types include: “unlawful detention,” “visible

21 public strip search,” “manipulation of testicles,” “manipulation of genital cavity,” “manipulation of

22 anal cavity,” “anal cavity penetration,” and combinations of these types. See Sherwin Dec., Exh. A.

23 Some but not all of the plaintiffs had outstanding warrants for their arrest at the time they were

24 subjected to search. Some but not all were on probation or parole and it remains to be determined

25 whether the detaining officers knew whether the subjects were on probation or parole. Numerous

26 officers are alleged to have been involved in the various strip searches, but no single officer was

27 involved in all or even most of the searches. See id.4

28

4

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United States District Court For the Northern District of California

1 III. Relevant Procedural History

2

Plaintiffs Foster and Duarte filed the present action on August 1, 2005. Pursuant to

3 stipulations, plaintiffs filed an amended complaint on September 22, 2005, adding plaintiff Young.

4 Plaintiffs’ motion to certify a class was denied on January 27, 2007, for failure to satisfy the

5 requirement of numerosity. Docket No. 42 (“January 2007 Order”). At that time, there were three

6 related cases,5 and plaintiffs had identified sixteen potential class members, almost all of whom lived

7 in Oakland.

8

On March 27, 2008, the court partially granted and partially denied plaintiffs’ partial motion

9 for summary judgment. Docket No. 63 (“March 2008 MSJ Order”). Plaintiffs moved for partial

10 summary judgment on the following grounds: declaratory relief that the OPD’s 1998 strip search

11 policy was unconstitutional; declaratory relief that the 2004 amended policy was unconstitutional;

12 judgment that any search in accordance with either of the policies was unconstitutional; and

13 summary judgment on the issue of liability in favor of plaintiffs.6 The court held the 1998 policy to

14 be unconstitutional insofar as it allowed physical body cavity searches to be performed by someone

15 other than a medical professional. Id. at 18. The 2004 policy was found to be unconstitutional to the

16 extent that it allowed strip searches of any kind to be performed in the field on less than probable

17 cause. Id. at 19. The other parts of plaintiffs’ motion for summary judgment were denied.

18

On September 9, 2008, plaintiffs filed the instant renewed motion for class certification.

19 Since the court’s denial of plaintiffs’ motion to certify a class in January 2007, five new cases have

20 been related to this case,7 bringing the total number of named plaintiffs meeting plaintiffs’ proposed

21 class definition to thirty-nine.

22

23 LEGAL STANDARD

24

A class may be certified in a case that meets the four prerequisites enumerated in Rule 23(a)

25 and at least one of the requirements of Rule 23(b). Fed. R. Civ. P. 23. Under Rule 23(a), the party

26 seeking class certification must establish numerosity, commonality, typicality, and adequacy of

27 representation. Fed. R. Civ. P. 23(a). In addition to the explicit requirements set out by Rule 23(a),

28

5

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United States District Court For the Northern District of California

1 the class definition must set forth a class which is adequately defined and clearly ascertainable. See

2 DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970).

3

The party seeking class certification bears the burden of establishing that the requirements of

4 Rule 23(a) and (b) have been met. Zinser v. Accufix Research Inst., 253 F.3d 1180, 1186 (9th Cir.

5 2001), amended by 273 F.3d 1266 (9th Cir. 2001); Hanon v. Dataproducts Corp., 976 F.2d 497, 508

6 (9th Cir. 1992). When adjudicating a motion for class certification, the court accepts the allegations

7 in the complaint as true so long as those allegations are sufficiently specific to permit an informed

8 assessment as to whether the requirements of Rule 23 have been satisfied. Blackie v. Barrack, 524

9 F.2d 891, 901 (9th Cir. 1975). The merits of the class members’ substantive claims are generally

10 irrelevant to this inquiry. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974); see also

11 Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983).

12

13 DISCUSSION

14

A proposed class cannot be certified unless it meets all four prerequisites of Rule 23(a), and

15 meets at least one requirement of Rule 23(b).

16

17 I. Rule 23(a) Numerosity

18

When plaintiffs brought their first motion to certify, their proposed class did not meet the

19 numerosity requirement. Five additional cases have been filed since that time. Plaintiffs note that

20 there are now thirty-nine named plaintiffs who would meet the class definition and further assert that

21 there are eleven more persons who have not yet been named. The numerosity requirement states that

22 a class action is appropriate “only if the class is so numerous that joinder of all members is

23 impracticable.” Fed. R. Civ. P. 23(a)(1). Both plaintiffs and defendants, as well as this court, have

24 taken note of one treatise’s observation that “[a] class of 41 or more is usually sufficiently

25 numerous.” Moore’s Federal Practice § 23.22[1][b]; see January 2007 Order at 8; Mot. at 10; Opp.

26 at 17. However, there is no magic number. The number of potential class members needed to

27 establish numerosity varies with other factors, such as geographical dispersion and the difficulty in

28 identifying class members. See Moeller v. Taco Bell, 220 F.R.D. 604, 608 (N.D. Cal. 2004)

6

Case3:05-cv-03110-MHP Document79 Filed01/13/09 Page7 of 12

United States District Court For the Northern District of California

1 (Jenkins, J.); Moore’s Federal Practice § 23.22[1][a] (noting that no single factor controls); see also

2 Allen v. Isaac, 99 F.R.D. 45 (N.D. Ill. 1983) (deciding that class of 17 satisfied numerosity

3 requirement); Joshlin v. Gannett River States Publ’g Corp., 152 F.R.D. 577, 579 (E.D. Ark. 1993)

4 (deciding that class of 95 failed to satisfy numerosity requirement).

5

Plaintiffs also propose certification of four subclasses. When appropriate, a class may be

6 divided into subclasses that are each treated as a class. Fed. R. Civ. P. 23(c)(5). Yet each subclass

7 “must independently meet the requirements of Rule 23 for the maintenance of a class action.” Estate

8 of Felts v. Genworth Life Ins. Co., 250 F.R.D. 512 (W.D. Wa. 2008), quoting Betts v. Reliable

9 Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981). The court must, then, determine not

10 only whether the numerosity requirement is met for the overall class, but whether each subclass

11 meets the requirement.

12

Including the as-of-yet unnamed individuals, the number of individuals so far identified as

13 potential members of each class and subclass are as follows:

14

C

Class: 50 individuals (39 named plaintiffs plus 11 other identified individuals);

15

C

Subclass (a) (strip searches): 50 individuals;

16

C

Subclass (b) (visual body cavity searches): 12 individuals;

17

C

Subclass (c) (physical body cavity searches): 13 individuals; and

18

C

Subclass (d) (race or national origin): 39 named plaintiffs plus some unspecified

19

number of individuals identified but not yet named.8

20

The claims of each plaintiff involve events that occurred in Oakland, so the potential for

21 geographic dispersion is low. There does not seem to be any particular difficulty in identifying

22 individuals with similar claims, since they have continued to come forward at a relatively steady

23 pace. The nature of the alleged offense distinguishes it from the sort of situation in which an

24 individual may not know that his rights have potentially been violated. Based on the specific factors

25 of this case, neither the proposed class nor any of the proposed subclasses meet the Rule 23(a)

26 numerosity prerequisite. For this reason alone, the instant motion should be denied. Lest plaintiffs

27 interpret this finding as an invitation to file a third request for class certification in the event that

28

7

Case3:05-cv-03110-MHP Document79 Filed01/13/09 Page8 of 12

United States District Court For the Northern District of California

1 more plaintiffs come forward, it is useful to note that the requirements of Rule 23(b) are not met

2 either.

3

4 II. Rule 23(b)

5

To be certified, a class definition must meet at least one of Rule 23(b)’s enumerated

6 requirements. As explained below, none are met in this case.

7

8

A. Rule 23(b)(1)

9

A class action may be certified under Rule 23(b)(1) if the prosecution of separate actions

10 would have the effect of establishing incompatible standards of conduct for the opposing party or if

11 separate actions would impair individual class members’ interests. Fed. R. Civ. P. 23(b)(1); see

12 generally Wright & Miller, Civil Practice & Procedure, §§ 1773 & 1774. In this case, there is no

13 danger of either. By its nature, any standard of conduct set forth for the OPD and its officers will be

14 a standard of general applicability. The individual right to be free from unlawful strip searches does

15 not vary from person to person. Plaintiffs raise the specter of multiple courts issuing conflicting

16 injunctions. There is no real danger of such occurring in this case. All incidents at issue have

17 occurred in Oakland, and every action has been filed in the Northern District of California and been

18 related to the others. Hypothetically, some related claims could be filed in state court, and the state

19 and federal courts could issue conflicting injunctions. Such a possibility exists regardless of whether

20 or not this action is treated on a class action basis. There is, in this case, no real danger of

21 establishing incompatible standards of conduct.

22

Neither is there a concern that separate actions would impair individual class members’

23 interests. The individual claims arise from very different individual factual circumstances. This is

24 not an instance in which the disposition of one plaintiff’s case will in some way impair the ability of

25 other plaintiffs to protect their interests. Classes are typically certified under Rule 23(b)(1)(B) when

26 a common fund of a limited amount exists to settle claims and the separate adjudication of claims

27 may leave those plaintiffs who later establish a right to payment with no funds left to satisfy that

28 right. See, e.g., In re Drexel Burnham Group, 960 F.2d 285, 292 (2d Cir. 1992) (certifying class

8

Case3:05-cv-03110-MHP Document79 Filed01/13/09 Page9 of 12

United States District Court For the Northern District of California

1 where limited amount of funds was available to pay victims). Cases not involving a common fund

2 but rather some other common interest have been found to merit class treatment in accordance with

3 this rule. See, e.g., Robertson v. Nat’l Basketball Ass’n, 556 F.2d 682, 685 (2d Cir. 1977)

4 (certifying class in antitrust suit where preventing merger of two competing basketball leagues

5 would affect interests of all professional basketball players). A judgment for one plaintiff against

6 the City of Oakland would not affect a different plaintiff’s ability to collect on his own judgment.

7

8

B. Rule 23(b)(2)

9

This rule is limited to cases in which “final injunctive relief or corresponding declaratory

10 relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Legal remedies

11 which are incidental to a request for injunctive relief may be included as a part of the claim.

12 Williams v. Owens-Illinois, Inc., 665 F.2d 918, 928 (9th Cir. 1982); see also Moeller, 220 F.R.D. at

13 610 (certifying class where the plaintiffs sought, in addition to injunctive relief, minimal statutory

14 damages to which they were entitled without proof of actual injury). The Foster plaintiffs and

15 plaintiffs in the related actions pray for substantial sums. The Foster plaintiffs have asked for $1

16 million each in general damages—plus special damages, punitive damages, attorneys’ fees, and

17 costs. See FAC at 17-18. There is no dispute that injunctive relief is important to plaintiffs, but the

18 request for damages is quite important as well. In any event, damages are not incidental, and the

19 determination of damages would require the sort of individualized proof not contemplated in a class

20 certified under this rule, which unlike Rule 23(b)(3) does not contain an opt-out provision.

21

Furthermore, class treatment is unnecessary to provide injunctive relief that would protect

22 the rights of the class as a whole. A grant of injunctive relief to one plaintiff that alters OPD’s

23 policies and practices would protect all purported class members.

24

25

C. Rule 23(b)(3)

26

Class certification pursuant to this rule requires that the court determine “that the questions

27 of law or fact common to the class members predominate . . .” and that a class action is “superior to

28 other available methods” for fairly adjudicating the controversy. Fed. R. Civ. P. 23(b)(3).

9

Case3:05-cv-03110-MHP Document79 Filed01/13/09 Page10 of 12

United States District Court For the Northern District of California

1 Plaintiffs’ moving papers observe that blanket strip search cases such as Bull v. City and County of

2 San Francisco, 539 F.3d 1193 (9th Cir. 2008), have been found suitable for class action treatment.

3 In the blanket strip search cases cited by plaintiffs, the complainants challenged a general policy to

4 strip search in a particular way all individuals meeting certain criteria. In such a case, a defendant’s

5 liability for violating the law can be determined on a class-wide basis. Plaintiffs in the related cases

6 at bar challenge individual searches conducted under specific attendant circumstances. The cases

7 involve individual alleged incidents in different parts of Oakland occurring over the course of

8 several years and involving many different police officers. Some plaintiffs had outstanding arrest

9 warrants; some did not. Some of the plaintiffs were on parole or probation; some were not. The

10 types of strip search allegedly performed on plaintiffs varies widely, from anal body cavity searches

11 to the lifting of the waistband or their undergarments. Determinations of liability cannot be made

12 without significant inquiry into the attendant facts of each alleged incident.

13

The fact that the alleged strip searches took place at a time when unconstitutional policies

14 were in effect is not enough in itself to establish that any particular search was unconstitutional. As

15 this court previously noted, the Ninth Circuit has observed that “a search, although not supportable

16 under an institutional policy, is not per se unconstitutional.” Kennedy v. Los Angeles Police Dept.,

17 901 F.2d 702, 715 (9th Cir. 1990), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224

18 (1991); see March 2008 MSJ Order at 20. There is a factual dispute over whether many or all of the

19 strip searches took place, and a finding that a particular search took place has no necessary relation

20 to whether any other search took place. Similarly, a finding that a given search was undertaken, for

21 example, with independent probable cause does not dispose of the question of whether any other

22 given search was or was not conducted with independent probable cause. Since the test for

23 constitutionality involves several fact-intensive inquiries specific to each incident, common

24 questions plainly do not predominate.

25

This is not to say that these cases involve no common questions of law or fact. Once

26 individual cases are brought to trial, it may become apparent that there is a basis for Monell claims

27 against the municipal defendants. See Monell v. Dep’t of Social Services of City of New York, 436

28 U.S. 658, 690 (1978) (holding that a municipality may be subject to section 1983 liability where

10

Case3:05-cv-03110-MHP Document79 Filed01/13/09 Page11 of 12

United States District Court For the Northern District of California

1 official policy or custom causes a constitutional tort). If so, a Monell hearing may be held. Class

2 certification would not, however, assist with such a determination.

3

4 CONCLUSION

5

For the foregoing reasons, plaintiffs’ renewed motion for class certification is DENIED.

6

7

IT IS SO ORDERED.

8

9 Dated: January 12, 2009
10
11

MARILYN HALL PATEL United States District Court Judge Northern District of California

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case3:05-cv-03110-MHP Document79 Filed01/13/09 Page12 of 12

United States District Court For the Northern District of California

1

ENDNOTES

2 1. The eight related cases are Taylor v. City of Oakland, C 04-4843 MHP; Rider v. City of Oakland, C 05-3204 MHP; Moore v. City of Oakland, C 06-2426 MHP; Miller v. City of Oakland, C 07-1773
3 MHP; Ward v. City of Oakland, C 07-4179 MHP; Smith v. City of Oakland, C 07-6298; Turner v. City of Oakland, C 08-3114 MHP; and Coley v. City of Oakland, C 08-4255 MHP.
4
2. Plaintiffs’ moving papers state that “Defendants” have identified eleven additional individuals, but 5 it is clear from the context that this was an error.

6 3. This figure and subsequent figures in this order do not include James Taylor, since Taylor cannot cannot be counted for the purposes of determining whether to grant class certification.
7
4. The record is incomplete at this time. Many of the named plaintiffs apparently cannot identify some 8 or all of the officers who searched them and have therefore referred to those officers as “Does.”
Regarding several plaintiffs, it is also apparently unknown to plaintiffs’ counsel at the present whether 9 there was an outstanding warrant for arrest for the plaintiff in question or whether the plaintiff in
question was on probation or parole. See Sherwin Dec., Exh. A. 10
5. Taylor v. City of Oakland, C 04-4843 MHP; Rider v. City of Oakland, C 05-3204 MHP; and Moore 11 v. City of Oakland, C 06-2426 MHP.

12 6. The provisions of the 1998 and 2004 policies are described in the court’s order of March 27, 2008, at 6-7.
13
7. Miller v. City of Oakland, C 07-1773 MHP; Ward v. City of Oakland, C 07-4179 MHP; Smith v. 14 City of Oakland, C 07-6298; Turner v. City of Oakland, C 08-3114 MHP; and Coley v. City of Oakland,
C 08-4255 MHP. 15
8. There is, as of yet, no evidence or allegation concerning the race or national origin of the eleven 16 identified individuals who are not named plaintiffs.

17

18

19

20

21

22

23

24

25

26

27

28

12

 
 Case3:05-cv-03110-MHP Document42 Filed01/29/07 Page1 of 10

UNITED STATES DISTRICT COURT
For the Northern District of California

1

2

3

4

5
UNITED STATES DISTRICT COURT
6
NORTHERN DISTRICT OF CALIFORNIA
7

8

DARNELL FOSTER, RAFAEL DUARTE,

9 and YANCIE YOUNG, each individually and

on behalf of all others similarly situated,

10

Plaintiffs,

11

v.

12 CITY OF OAKLAND ET AL.,

No. C 05-03110 MHP
MEMORANDUM & ORDER Re: Plaintiffs’ Motion for Class Certification

13

Defendants.

_____________________________________/

14

15 Plaintiffs Darnell Foster, Rafael Duarte, and Yancie Young have brought a putative class
16 action pursuant to 28 U.S.C. section 1983 against the City of Oakland (“Oakland”); Richard Word,
17 individually and in his capacity as the Oakland Chief of Police; Oakland police officers J. Festag,
18 William Bergeron, individually and in their official capacities as police officers; and Does 1–25,
19 alleging that defendants violated plaintiffs’ constitutional rights through a policy and practice of
20 performing strip searches and body-cavity searches in public. Plaintiffs seek certification of three
21 subclasses: 1) individuals subjected to a strip search and/or visual body-cavity search in public by
22 Oakland Police officers from August 1, 2003 to present and until this matter is adjudicated; 2)
23 individuals subjected to a physical body-cavity search in public by Oakland Police officers from
24 August 1, 2003 to present and until this matter is adjudicated; 3) individuals, based in part on their
25 race and/or national origin, subjected to a strip search, visual body-cavity search or physical body-
26 cavity search in public by Oakland Police officers from August 1, 2003 to the present and until this
27 matter is adjudicated. Plaintiffs seek both injunctive relief and damages on behalf of the putative
28 class. Now before the court is plaintiffs’ motion for class certification pursuant to Federal Rule of

Case3:05-cv-03110-MHP Document42 Filed01/29/07 Page2 of 10

UNITED STATES DISTRICT COURT
For the Northern District of California

1 Civil Procedure 23. After considering the parties’ arguments and submissions and for the reasons 2 set forth below, the court rules as follows.

3 4 BACKGROUND1

5 6 I.

The Parties

7

8

A. Plaintiff Darnell Foster

9

Plaintiff Foster is an African-American man. On February 27, 2004, Foster was visiting a

10 friend in Oakland, California. At that time, he had served all but two months of a five year

11 unsupervised probation sentence without incurring any violations.

12

At around 3 p.m. of that day, Officer Festag and another unknown officer stopped Foster

13 outside the School Market on Oakland’s School Street near Pleitner Avenue. The officers asked

14 Foster for identification, which he showed to them. The officers also asked whether Foster was on

15 probation or parole, which he answered affirmatively. Officer Festag then handcuffed Foster and

16 forced him against the back of his patrol vehicle parked in front of the School Market. Foster was

17 ordered to spread his legs and Officer Festag searched Foster’s pockets. No contraband was found.

18 Officer Festag then guided Foster into the rear of the patrol vehicle. The officers ran a warrant

19 check and searched the area for evidence of illegal activity. The searches revealed no warrants or

20 evidence of wrongdoing.

21

Foster was then removed from the patrol vehicle by Officer Festag, who forced Foster over

22 the hood of the vehicle. Wearing a latex glove retrieved from the vehicle’s trunk, Officer Festag

23 pulled Foster’s pants and underwear down to his knees. Officer Festag proceeded to search around

24 Foster’s testicles using his gloved hand. The officer also spread Foster’s buttocks and visually

25 searched Foster’s anus, stating “I’m going to do a butt-crack search, see if you got crack in your

26 butt-crack.” Compl. ¶ 5. No contraband was discovered.

27

The officers then pulled Foster’s pants and underwear back up and returned him to the rear of

28 2

Case3:05-cv-03110-MHP Document42 Filed01/29/07 Page3 of 10

UNITED STATES DISTRICT COURT
For the Northern District of California

1 the vehicle. Officer Festag drove about two blocks and stopped the patrol vehicle to request that

2 Foster make an undercover drug purchase. Foster refused to work undercover for the officers and

3 repeatedly denied wrongdoing. The officers then issued Foster a citation for loitering with the intent

4 to sell narcotics before releasing him.

5

Several months later, in May, Foster received a Notice to Appear in criminal court in

6 Oakland on the citation issued by Officer Festag. The charge was subsequently dismissed due to the

7 absence of both the officers to substantiate the allegation against Foster. Foster filed an Internal

8 Affairs complaint against Officer Festag in July 2004. On August 1, 2005 Foster and another

9 plaintiff filed a complaint alleging violations his civil rights under 42 U.S.C. section 1983.

10

11

B. Plaintiff Rafael Duarte

12

Plaintiff Duarte is an Hispanic-American man. On the afternoon of March 9, 2005, Duarte

13 and a friend were forced to a stop on Oakland’s Baker Street, between 62nd and 63rd Streets.

14

Unknown officers emerged from the two vehicles and pulled Duarte from the friend’s car

15 without giving any orders. Duarte was handcuffed and forced against the hood. Duarte was then

16 escorted by the first officer to the front of a nearby house, where several other unknown officers

17 were also present. The first officer repeatedly pat-searched Duarte, but the search yielded no

18 contraband.

19

A second officer then informed the first officer that he thought he had seen Duarte “stuff

20 something down his pants.” Compl. ¶ 7. The officers pulled down Duarte’s pants and ordered him

21 to bend over. Duarte’s buttocks were spread, permitting visual inspection of his anus. No

22 contraband was found. Duarte was placed in the rear of a police vehicle. The officers then

23 performed a strip and visual body cavity search on Duarte’s friend. That search also yielded no

24 contraband. During the searches of the two men, a crowd had begun to gather around the scene,

25 including some people with whom Duarte was acquainted. The individuals witnessed the searches

26 of both men.

27

Duarte was taken to Oakland City Jail and cited after about two hours in custody. No

28 3

Case3:05-cv-03110-MHP Document42 Filed01/29/07 Page4 of 10

UNITED STATES DISTRICT COURT
For the Northern District of California

1 charges were ever filed against Duarte. On August 1, 2005, Duarte and other plaintiffs filed charges 2 alleging violations his civil rights under 42 U.S.C. section 1983.

3

4

C. Plaintiff Yancie Young

5

Plaintiff Young is an African-American man. At approximately 11:30 p.m. on September

6 30, 2003, Young was pulled over by Officer Bergeron around the 2800 block of West Street in

7 Oakland. Officer Bergeron opened Young’s car door, pulled him out of the car, and handcuffed

8 him. Officer Bergeron asked Young if he was on probation or parole, which Young denied Officer

9 Bergeron insisted that he smelled marijuana in Young’s car and suggested that Young was

10 smuggling large quantities of the drug.

11

Officer Bergeron then took Young to the back of a police car. While facing Young, he

12 pulled down Young’s pants and underwear, revealing Young’s genitalia. Then Officer Bergeron

13 shined a flashlight directed at Young’s genitalia, visually inspecting Young for up to a minute.

14 Officer Bergeron next performed a pat-search of Young, including ordering Young to remove his

15 shoes and feeling Young’s private area through his pants. Another officer searched Young’s car

16 during the search of Young’s person. No contraband was found.

17

Officer Bergeron seated Young in the back of a police car, still handcuffed, where he sat for

18 over one hour. During that time, Officer Bergeron, other officers, and a police canine searched

19 Young’s car. That search produced no evidence of criminal activity.

20

No charges were filed against Young. Young subsequently filed a complaint with the

21 Citizens’ Police Review Board. The Board found that Officer Bergeron performed an unlawful strip

22 search of Young. Young filed a complaint on August 1, 2005.

23

24

D. Defendants

25

Defendant City of Oakland is a municipal corporation, operating the Oakland Police

26 Department and employing the additional defendants named below. Defendant Richard Word is

27 Chief of Police for the City of Oakland. Plaintiffs have sued him in both his individual and official

28 4

Case3:05-cv-03110-MHP Document42 Filed01/29/07 Page5 of 10

UNITED STATES DISTRICT COURT
For the Northern District of California

1 capacities. Defendants J. Festag, William Bergeron, and defendants Does 1-25 were police officers

2 for the City of Oakland at all times mentioned herein. They have been sued in both their individual

3 and official capacities.

4

1. Oakland Police Department’s Policy Before 2004.

5

The Oakland Police Department’s 1998 policy, entitled “Strip Searches, Visual Body-Cavity

6 Searches, and Physical Body-Cavity Searches,” barred such searches in public, unless there was an

7 urgent need to perform the search and no privacy was reasonably available. Pls.’ Am. Mot. for Class

8 Certification at 11. According to Captain Israel, who wrote that policy and trained fellow officers in

9 enacting it, searching suspects in the “V” of a car door was acceptable where justified by some

10 “urgent need.” Israel Dep., Pls.’ Exh. E at 28:11-29:14. Captain Israel stated that examples of an

11 “urgent need” to perform such searches included the possibilities of the suspect concealing a weapon

12 or some contraband that might be ingested or forced into the rectum. Id. at 30:2-30:10. The policy

13 did not require reasonable suspicion or probable cause. Id. at 31:3-31:9. There was also no

14 consideration as to the types of charges for which the suspect was being arrested. Id. at 31:15-31:18.

15

2. Oakland Police Department’s Amended Policy.

16

In 2004, the Oakland Police Department amended its policy on strip and body-cavity

17 searches. The amendments came in response to public concerns regarding the Department’s practice

18 of carrying out such searches. The Department publicly identified a “long-standing and problematic

19 practice of conducting strip searches in the field.” Pls.’ Exh. C at 4.

20

The revised policy added requirements for reasonable suspicion that the subject is concealing

21 a weapon or contraband. Additionally, the revised policy addressed the subject’s privacy, stating

22 that strip searches and body-cavity searches “must be conducted so that the search cannot be easily

23 observed by the public.” The policy required that “reasonable efforts must be made to provide as

24 much privacy as possible given the circumstances.” Pls.’ Exh. E, Israel Dep. at 80:23-81:9.

25

3. Oakland Police Department’s Alleged Practice.

26

Plaintiffs allege that there is a widespread practice of public strip and body-cavity searches

27 within the Oakland Police Department that deviates from the Department’s recently revised policy.

28 5

Case3:05-cv-03110-MHP Document42 Filed01/29/07 Page6 of 10

UNITED STATES DISTRICT COURT
For the Northern District of California

1 Plaintiffs claim that this practice occurs without regard to the privacy of subjects being searched. 2 Subjects genitalia, buttocks, and/or anuses are exposed, often without any screen from public view. 3 This alleged practice targets racial minorities—especially Hispanic- and African-Americans.

4

5 II. Procedural History

6

Plaintiffs Foster and Duarte filed the present action on August 1, 2005. Pursuant to

7 stipulations, plaintiffs filed an amended complaint on September 22, 2005 adding plaintiff Young.

8 Additionally, the following actions were related to this action: (1) Rider v. City of Oakland, No. C

9 05-3204 MHP, related on October 6, 2005; (2) Taylor v. City of Oakland, No. C 04-4843 MHP,

10 related on October 6, 2005; (3) Moore v. City of Oakland, No. C 06-02426 MHP, related on July 12,

11 2006.

12

On behalf of themselves and a group of similarly-situated persons, plaintiffs charge that

13 defendants have a pattern and practice of public body-cavity searches, violating plaintiffs’

14 constitutionally guaranteed rights including due process, freedom from unreasonable searches and

15 seizures, freedom from excessive use of forces by police officers, equal protection of the laws, and

16 freedom from interference within their zones of privacy.

17

18 LEGAL STANDARD

19

A party seeking to certify a class must satisfy the four prerequisites enumerated in Rule

20 23(a), as well as at least one of the requirements of Rule 23(b). Under Rule 23(a), the party seeking

21 class certification must establish: (1) that the class is so large that joinder of all members is

22 impracticable (i.e., numerosity); (2) that there are one or more questions of law or fact common to

23 the class (i.e., commonality); (3) that the named parties’ claims are typical of the class (i.e.,

24 typicality); and (4) that the class representatives will fairly and adequately protect the interests of

25 other members of the class (i.e., adequacy of representation). Fed. R. Civ. P. 23(a). In addition to

26 satisfying these prerequisites, parties seeking class certification must show that the action is

27 maintainable under Rule 23(b)(1), (2) or (3). See Rule 23(b); Amchem Products, Inc. v. Windsor,

28 6

Case3:05-cv-03110-MHP Document42 Filed01/29/07 Page7 of 10

UNITED STATES DISTRICT COURT
For the Northern District of California

1 521 U.S. 591, 614 (1997). Rule 23(b)(2) permits class actions for declaratory or injunctive relief

2 where the party opposing the class “has acted or refused to act on grounds generally applicable to

3 the class.” Rule 23(b)(2).

4

The party seeking class certification bears the burden of establishing that the requirements of

5 Rules 23(a) and 23(b) have been met. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180,

6 1188 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir. 2001); Hanon v. Dataproducts Corp., 976

7 F.2d 497, 508 (9th Cir. 1992). However, in adjudicating a motion for class certification, the court

8 accepts the allegations in the complaint as true so long as those allegations are sufficiently specific

9 to permit an informed assessment as to whether the requirements of Rule 23 have been satisfied.

10 See Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975), cert. denied, 429 U.S. 816 (1976).

11 The merits of the class members’ substantive claims are generally irrelevant to this inquiry. Eisen v.

12 Carlisle & Jacquelin, 417 U.S. 156, 177–78 (1974); Moore v. Hughes Helicopters, Inc., 708 F.2d

13 475, 480 (9th Cir. 1983).

14

15 DISCUSSION

16

Plaintiffs seek certification of three subclasses: 1) individuals subjected to a strip search

17 and/or visual body-cavity search in public by Oakland Police officers from August 1, 2003 to

18 present and until this matter is adjudicated; 2) individuals subjected to a physical body-cavity search

19 in public by Oakland Police officers from August 1, 2003 to present and until this matter is

20 adjudicated; 3) individuals, based in part on their race and/or national origin, subjected to a strip

21 search, visual or physical body-cavity search in public by Oakland Police officers from August 1,

22 2003 to the present and until this matter is adjudicated. They ask the court to certify their claims for

23 damages as well as injunctive relief under Rule 23(b)(1) and 23(b)(2).

24

25

26

27

28 7

Case3:05-cv-03110-MHP Document42 Filed01/29/07 Page8 of 10

UNITED STATES DISTRICT COURT
For the Northern District of California

1

Pursuant to Rule 23, the class must be “so numerous that joinder of all members is

2 impracticable.” Fed. R. Civ. P. 23(a)(1). As a general rule, classes numbering greater than forty-

3 one individuals satisfy the numerosity requirement. See 5 James Wm. Moore et al., Moore’s Federal

4 Practice § 23.22[1][b] (3d ed. 2004). Although plaintiffs need not allege the exact number or

5 identity of class members to satisfy the numerosity prerequisite, mere speculation as to the number

6 of parties involved is not sufficient to satisfy the numerosity requirement. See Freedman v.

7 Louisiana-Pac. Corp., 922 F. Supp. 377, 398 (D. Or. 1996); 7 Wright, Miller, & Kane, Federal

8 Practice and Procedure § 1762 (3d ed. 1995). Here, plaintiffs have identified sixteen potential class

9 members who were subject to either a public strip search and/or a public body-cavity search. Nine

10 plaintiffs in this case and related cases have filed suit based on the alleged practice of public strip

11 and body-cavity searches by the Oakland Police Department; one case has been dismissed. Seven

12 additional potential class members have been disclosed in the production of Internal Affairs

13 complaints filed by alleged subjects of public strip searches. Word Dep. at 8:10–10: 10. As

14 defendants note, one of the putative class members, James Taylor, filed suit based on a search that

15 occurred on November 13, 2002, one year prior to the dates in the class definition. According to this

16 tally, plaintiffs have presented evidence of a sixteen alleged victims that meet the class definition.

17 They further speculate that more potential class members are likely to be uncovered but provide no

18 evidence as to how many more class members there may be.

19

While there is no specific numerical requirement in the text of Rule 23, courts have

20 repeatedly held that classes of less than twenty members do not satisfy the numerosity requirement.

21 See, e.g., General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330 & n.14 (1980)

22 (citing, with approval, cases in which numerosity was not met with as many as forty class members);

23 Harik v. Cal. Teacher’s Ass’n, 326 F.3d 1042, 1052 (9th Cir. 2003) (vacating certification of

24 classes with less than ten members). Plaintiffs have produced no evidence that the size of the

25 potential class is larger than fifteen members. The text of Rule 23(a)(1) instructs the court to certify

26 a class only where joinder of all of the potential plaintiffs would be impracticable. In this case,

27 joinder seems viable: all potential plaintiffs are in the same geographic area, and the small number

28 8

Case3:05-cv-03110-MHP Document42 Filed01/29/07 Page9 of 10

UNITED STATES DISTRICT COURT
For the Northern District of California

1 of potential class members suggests that doing so would not be unduly burdensome. Accordingly,

2 the court finds that plaintiffs have not satisfied the numerosity requirement at this time.

3

Therefore, the court DENIES plaintiffs’ motion for class certification without prejudice to

4 their filing another such motion at a later time if plaintiffs can present evidence of a sufficiently

5 large number of potential class members.

6

7 CONCLUSION

8

Based upon the foregoing, plaintiffs’ motion to certify a class is DENIED.

9 10 IT IS SO ORDERED.

11 12 Dated: 13 14 15

January 27, 2007

_______________________________
MARILYN HALL PATEL United States District Court Judge Northern District of California

16

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18

19

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21

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24

25

26

27

28 9

Case3:05-cv-03110-MHP Document42 Filed01/29/07 Page10 of 10

UNITED STATES DISTRICT COURT
For the Northern District of California

1

ENDNOTE

2 1. Unless otherwise noted, all facts are taken from the first amended complaint (the “Complaint” or “FAC”).
3

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28 10

 
 Case3:05-cv-03110-SI Document6 Filed09/22/05 Page1 of 18

1 JOHN L. BURRIS, Esq./ State Bar #69888 BENJAMIN NISENBAUM, Esq./State Bar #222173
2 LAW OFFICES OF JOHN L. BURRIS Airport Corporate Centre
3 7677 Oakport Street, Suite 1120 Oakland, California 94621
4 Telephone: (510) 839-5200 Facsimile: (510) 839-3882
5
Attorneys for Plaintiffs Darnell Foster and 6 Rafael Duarte

7 MICHAEL J. HADDAD (State Bar No. 189114) JULIA SHERWIN (State Bar No. 189268)
8 HADDAD & SHERWIN 505 Seventeenth Street
9 Oakland, California 94612 Telephone: (510) 452-5500
10 Fax: (510) 452-5510

11 Attorneys for Plaintiff Yancie Young
12

13

UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

16 DARNELL FOSTER, RAFAEL DUARTE, and Case No. 3:05-cv-3110 TEH

YANCIE YOUNG, each individually and on 17 behalf of all others similarly situated,
18
Plaintiffs,
19
vs.

FIRST AMENDED COMPLAINT FOR CLASS ACTION AND INDIVIDUAL RELIEF FOR INJURIES AND VIOLATION OF CIVIL RIGHTS. JURY TRIAL DEMANDED

20
CITY OF OAKLAND, a municipal corporation;

21 RICHARD WORD, individually and in his

official capacity as Chief of Police for the CITY 22 OF OAKLAND; J. FESTAG, individually and in

23 his capacity as a police officer for the CITY OF OAKLAND; WILLIAM BERGERON #7828,

24 individually and in his capacity as a police

officer for the CITY OF OAKLAND; and, 25 DOES 1-25, inclusive,

26

Defendants.

27

/

28

FIRST AMENDED COMPLAINT FOR CLASS ACTION AND INDIVIDUAL RELIEF FOR INJURIES AND VIOLATION OF

CIVIL RIGHTS

1

Case3:05-cv-03110-SI Document6 Filed09/22/05 Page2 of 18

1

JURISDICTION

2

1. This action arises under Title 42 of the United States Code, Sections 1983 and 1988.

3 Jurisdiction is conferred upon this Court by Title 28 of the United States Code, Sections 1331 and

4 1343. The unlawful acts and practices alleged herein occurred in the County of Alameda, California,

5 which is within this judicial district.

6

7

PARTIES

8

2. Plaintiff herein, DARNELL FOSTER (“FOSTER”), is readily recognizable as an

9 African-American male and was at all times herein mentioned a citizen of the United States residing

10 in Alameda County in California.

11

3. Plaintiff herein, RAFAEL DUARTE (“DUARTE”), is readily recognizable as an

12 Hispanic-American was at all times herein mentioned a citizen of the United States residing in

13 Alameda County in California.

14

4. Plaintiff herein, YANCIE YOUNG (“YOUNG”), is readily recognizable as an

15 African-American male and was at all times herein mentioned a citizen of the United States residing

16 in Alameda County in California.

17

5. Defendant City of Oakland (“CITY”) is a municipal corporation, duly organized and

18 existing under the laws of the State of California. The City operates under its authority the Oakland

19 Police Department.

20

6. At all times mentioned herein, Defendant RICHARD WORD was employed by

21 Defendant CITY as Chief of Police for the Defendant CITY. As Chief of Police, Defendant Word
22
was a policy-making official for the City of Oakland with the power to make official or final policy
23
24 for the Oakland Police Department. Defendant Word is being sued in his individual and official

25 capacities.

26

7. At all times mentioned herein, Defendant officer J. FESTAG (“FESTAG”) was

27 employed by Defendant CITY as a police officer. He is being sued individually and in his official

28 capacity as a police officer for the City.

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1

8. At all times mentioned herein, Defendant officer WILLIAM BERGERON #7828

2 (“BERGERON”) was employed by Defendant CITY as a police officer. He is being sued

3 individually and in his official capacity as a police officer for the City.

4

9. Plaintiffs are ignorant of the true names and capacities of Defendants DOES 1 through

5 25, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs are informed

6 and believe and thereon allege that each Defendant so named is responsible in some manner for the

7 injuries and damages sustained by Plaintiffs as set forth herein. Plaintiffs will amend their complaint

8 to state the names and capacities of DOES 1-25, inclusive, when they have been ascertained.

9

10. In engaging in the conduct described herein, Defendant police officers and the Chief

10 of Police acted under the color of law and in the course and scope of their employment with the City.

11 In engaging in the conduct described herein, Defendant police officers exceeded the authority vested

12 in them as police officers under the United States and California Constitutions and as police officers

13 employed by Defendant CITY.

14

11. The acts and omissions of Defendants as set forth herein at all material times were

15 pursuant to the actual customs, policies, practices and procedures of the City of Oakland and its

16
police department.
17

18

12. This complaint may be pled in the alternative pursuant to FRCivP 8(e)(2).

19

STATEMENT OF FACTS

20

FACTUAL ALLEGATIONS REGARDING PLAINTIFF DARNELL FOSTER

21

13. On February 27, 2004, at around 3 p.m., Defendant Officer FESTAG stopped Plaintiff

22 FOSTER in front of a small market, the “School Market”, located near the corner of School Street

23 and Pleitner Avenue in Oakland, Caifornia.

24

14. Plaintiff FOSTER lived in Carson City, Nevada at the time, but was visiting friends

25 who lived in Oakland. Plaintiff FOSTER had purchased two Black and Mild cigars at the School

26 Market shortly before Defendant Officer FESTAG and one other unknown Oakland Police Officer

27 DOE stopped him. He possessed no contraband and was not engaged in any illegal activity

28 whatsoever. Defendant Officers stopped Plaintiff FOSTER as he walked out of the School Market

and asked him for his identification. Plaintiff FOSTER showed the officer his identification. The

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page4 of 18

1 officers then asked him whether he was on probation or parole. Plaintiff FOSTER honestly replied

2 that he was on probation. In fact, Plaintiff FOSTER, only two months remained of the five year

3 felony unsupervised probation sentence for possession for sale of marijuana. Plaintiff FOSTER had

4 served his probation sentence without incurring a single violation. Plaintiff FOSTER told Defendant

5 Officer FESTAG that he had only two months remaining on his probation.

6

15. Defendant Officer FESTAG handcuffed Plaintiff FOSTER without explanation and

7 escorted him to the back of his patrol vehicle, which was parked in front of the School Market.

8 Defendant Officer FESTAG forced Plaintiff FOSTER against the back of the patrol vehicle and

9 ordered him to spread his legs. Defendant Officer FESTAG searched Plaintiff FOSTER’s pockets

10 and found $22. Defendant Officer FESTAG told Plaintiff FOSTER that the $22 would be

11 confiscated. Even though Plaintiff FOSTER had committed no crime and was not involved in any

12 manner of illegal activity, Defendant Officer FESTAG informed Plaintiff FOSTER that the $22

13 found in Plaintiff FOSTER’s pocket was proceeds of narcotics sales. Defendant Officer FESTAG

14 claimed that Plaintiff FOSTER was engaged in narcotics sales. He handcuffed Plaintiff FOSTER and

15 placed him in the rear of the police vehicle.

16

16. The unknown Officer DOE ran Plaintiff FOSTER’s name for a warrant check. The

17 search revealed no warrants for Plaintiff FOSTER. Defendant Officer FESTAG searched the area

18 around the market and located no evidence of any illegal activity relating to Plaintiff FOSTER. In

19 spite of the circumstances, which overwhelmingly indicated that Plaintiff FOSTER had not

20 committed any crime, Defendant Officer FESTAG maliciously told Plaintiff FOSTER that he was

21 going to violate his probation. Defendant Officer FESTAG told Plaintiff FOSTER, “I think you’re

22 holding out on me,” even though there was no basis to believe that Plaintiff FOSTER was engaged in

23 illegal activity.

24

17. Defendant Officer FESTAG removed Plaintiff FOSTER, still handcuffed, from the

25 back of the patrol vehicle and bent him over the hood of the police car. Defendant Officer FESTAG

26 opened the patrol vehicle’s trunk and put on a purple latex glove. He then returned to Plaintiff

27 FOSTER and ordered him to bend over the hood of the patrol vehicle. Plaintiff FOSTER stood in the

28 gutter, between the sidewalk and the police car, handcuffed, while Defendant Officer FESTAG

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page5 of 18

1 yanked Plaintiff FOSTER’s gray sweat pants down to his knees. Defendant Officer FESTAG then

2 yanked Plaintiff FOSTER’s boxer shorts down to his knees, exposing Plaintiff FOSTER’s genitalia.

3 Humiliated and stunned, Plaintiff FOSTER felt Defendant Officer FESTAG’s hands reach under his

4 testicles. Consistent with Plaintiff FOSTER’s innocence, this offensive sexual battery showed that

5 Plaintiff FOSTER possessed no contraband at all.

6

18. To Plaintiff’s shock and disbelief, Defendant Officer FESTAG told Plaintiff FOSTER

7 “I’m going to do a butt-crack search, see if you got crack in your butt-crack.” Plaintiff FOSTER was

8 forced to comply with Defendant Officer FESTAG’s outrageous conduct. Defendant Officer

9 FESTAG spread Plaintiff FOSTER’s butt-cheeks with his right hand and exposed the anus. The

10 unknown Officer DOE was also present, and both officers inspected Plaintiff FOSTER’s anus.

11 Predictably, this unwarranted intrusive search failed to reveal any contraband.

12

19. Defendant Officers pulled Plaintiff’s underwear and sweat pants up and put him back

13 in the rear of the patrol vehicle. Despite the complete lack of evidence, Defendant Officer FESTAG

14 told Plaintiff that he was going to take him to jail for “loitering with the intent to sell narcotics.”

15 Plaintiff FOSTER denied loitering and told the officers that he had just gone to the store, and was not

16 involved in any drug activity.

17

20. Defendant Officer FESTAG drove about two blocks away and stopped the patrol

18 vehicle near the corner of Texas and Maple Streets. One of the Defendant Officers asked Plaintiff

19 FOSTER if he knew anyone who sold marijuana. When Plaintiff FOSTER said “no,” the officers

20 asked him to make an undercover drug purchase. After Plaintiff FOSTER refused to become a

21 snitch for the officers, Defendant Officer FESTAG told Plaintiff FOSTER “Help me so I can help

22 you.”

23

21. Plaintiff FOSTER again asked the officers what he had done, and they again claimed

24 that he had sold narcotics. When Plaintiff FOSTER truthfully stated that he had not sold narcotics,

25 the officers insisted that Plaintiff FOSTER sign a citation for violating an Oakland Municipal

26 Ordinance prohibiting loitering with the intent to sell narcotics. Plaintiff FOSTER signed the citation

27 and Defendant Officer released him. Defendant Officers kept Plaintiff FOSTER handcuffed

28 throughout the incident, which lasted nearly half an hour.

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page6 of 18

1

22. After being released, Plaintiff FOSTER returned to the same store, “School Market”

2 and spoke with the store clerk. The clerk told Plaintiff FOSTER that one of the officers had come in

3 and asked him how long Plaintiff FOSTER had been in the store. The clerk stated that he had told

4 the officer Mr. FOSTER had come into the store just before the police came.

5

23. Plaintiff FOSTER returned home to Carson City, Nevada. Several months later, in

6 May, Plaintiff FOSTER received a Notice to Appear in Criminal court in Oakland in September 2004

7 on the citation issued by Defendant Officer FESTAG. Plaintiff FOSTER called the Oakland Police

8 Department Internal Affairs Division and filed an Internal Affairs complaint against Defendant

9 Officer FESTAG sometime around July 2004. In order to defend against the false loitering charges,

10 Plaintiff FOSTER traveled from Nevada to Oakland and appeared in court in Oakland on September

11 24, 2004. The charge against him was dismissed when neither Officer FESTAG, nor any other

12 officer, appeared in court to substantiate the false allegation against Plaintiff FOSTER.

13

24. Plaintiff FOSTER alleges, on information and belief, that defendant officers had

14 insufficient information, and no particularized facts, to support their stop, detention, and search of

15 Plaintiff.

16

25. The detention, search, and arrest of Plaintiff FOSTER described herein was done

17 without any just provocation or cause, proximately causing Plaintiff FOSTER’s injuries and resulting

18 damages.

19

26. Plaintiff FOSTER alleges on information and belief that defendant officers performed

20 the public, intrusive anal-cavity search without probable or reasonable cause pursuant to an official or

21 de facto CITY OF OAKLAND policy condoning and/or ratifying such illegal searches. Plaintiff

22 further alleges he was singled out for this conscience-shocking search at least in part due to his race.

23

FACTUAL ALLEGATIONS REGARDING PLAINTIFF RAFAEL DUARTE

24

27. On the afternoon of March 9, 2005, Plaintiff RAFAEL DUARTE was a passenger in a

25 car driven by a friend of his, Deandre Wash. Mr. Wash drove a late-80s model Toyota Supra. Two

26 all-black Oakland Police vehicles, believed to be “task-force” vehicles, cut the Supra off without

27 warning, forcing the car to a sudden stop on Baker Street between, between 62nd and 63rd Street in

28 Oakland.

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page7 of 18

1

28. Although the Officers gave no orders to Plaintiff or Mr. Wash, at least one Defendant

2 Officer DOE opened the passenger side door and yanked Plaintiff DUARTE from the vehicle.

3 Although Plaintiff DUARTE had committed no crime, the DOE police officer forced him against the

4 Toyota’s hood and handcuffed him. The DOE police officer then walked Plaintiff DUARTE to the

5 front-side of a nearby house. Several other unknown Defendant Officer DOES were also present at

6 the scene. The DOE police officer pat-searched Plaintiff DUARTE several times and then searched

7 him thoroughly. The search yielded no contraband.

8

29. Plaintiff DUARTE protested, stating that he had not committed any crime and was not

9 in possession of any contraband. Even though the searches performed by Officer DOE confirmed

10 that Plaintiff DUARTE had committed no crime and possessed no contraband, one other Defendant

11 Officer DOE 2 told the first Officer DOE that he thought he had seen Plaintiff DUARTE “stuff

12 something in his pants.”

13

30. Defendant Officers pulled Plaintiff DUARTE’s pants down and ordered him to bend

14 over. To Plaintiff DUARTE’s shock and humiliation, one of the Defendant Officer DOES spread

15 Plaintiff DUARTE’s butt-cheeks exposing his anus. The search proved fruitless. Plaintiff DUARTE

16 possessed no contraband anywhere.

17

31. Plaintiff DUARTE was placed in the rear of the police vehicle. Defendant Officers

18 then removed Plaintiff’s friend, Mr. Wash, from the vehicle and performed the same type of anal-

19 cavity search on Mr. Wash. That search also yielded no contraband whatsoever. A crowd of people

20 had gathered during the search, and Plaintiff DUARTE was acquainted with some of the people who

21 witnessed the outrageous anal-cavity search of Plaintiff and his friend, Mr. Wash.

22

32. Plaintiff DUARTE was transported to Oakland City Jail where he was cited out after

23 about two hours in custody. Plaintiff DUARTE told the officer who took his fingerprints about the

24 anal-cavity search and was told by the officer to file an Internal Affairs complaint. He was also told

25 that his civil rights had been violated and that he should file a lawsuit. No charges were ever filed

26 against Plaintiff DUARTE.

27

28

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page8 of 18

1

33. Plaintiff DUARTE alleges, on information and belief, that defendant officers had

2 insufficient information, and no particularized facts, to support their stop, detention, and search of

3 Plaintiff.

4

34. The detention, search, and arrest of Plaintiff DUARTE described herein was done

5 without any just provocation or cause, proximately causing Plaintiff DUARTE’s injuries and

6 resulting damages.

7

35. Plaintiff DUARTE alleges on information and belief that defendant officers performed

8 the public, intrusive anal-cavity search without probable or reasonable cause pursuant to an official or

9 de facto CITY OF OAKLAND policy condoning and/or ratifying such illegal searches. Plaintiff

10 further alleges he was singled out for this conscience-shocking search at least in part due to his race.

11

FACTUAL ALLEGATIONS REGARDING PLAINTIFF YANCIE YOUNG

12

36. On September 30, 2003, at approximately 11:30 p.m., Defendant BERGERON made a

13 traffic stop of Plaintiff YOUNG at approximately the 2800 block of West Street in the City of

14 Oakland. This traffic stop was without probable cause or other legal justification.

15

37. Defendant BERGERON opened Plaintiff’s door, pulled Plaintiff YOUNG out of his

16 car, and handcuffed him. This arrest was without probable cause or other legal justification.

17

38. Defendant BERGERON asked Plaintiff YOUNG if Plaintiff was on probation or

18 parole, which Plaintiff denied. Defendant BERGERON told Plaintiff YOUNG that he “smelled

19 marijuana” in Plaintiff’s car and accused Plaintiff YOUNG of “smuggling pounds” of marijuana.

20 Defendant BERGERON walked Plaintiff to the back of a police car, and while Plaintiff YOUNG was

21 facing Defendant BERGERON, Defendant BERGERON pulled Plaintiff YOUNG’s pants and

22 underwear open and away from his body exposing Plaintiff’s private parts. Defendant BERGERON

23 shined his flashlight on Plaintiff YOUNG’s privates, visually strip searching Plaintiff YOUNG for

24 several seconds up to a minute. Next, Defendant BERGERON performed a pat down search of

25 Plaintiff YOUNG, including feeling Plaintiff’s private area through his pants. Defendant

26 BERGERON also ordered Plaintiff YOUNG to remove his shoes, which Defendant BERGERON

27 then searched. Defendant BERGERON found no contraband on Plaintiff YOUNG. Another officer,

28

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8

Case3:05-cv-03110-SI Document6 Filed09/22/05 Page9 of 18

1 Bernard Ortiz #8132, searched the interior of Plaintiff YOUNG’s car while Defendant BERGERON

2 searched Plaintiff.

3

39. Defendant BERGERON placed Plaintiff YOUNG in the back of a police car, still

4 handcuffed, for well over one hour, during which time, Defendant BERGERON, other officers, and a

5 police canine thoroughly searched Plaintiff’s car. No drugs or other contraband were found in

6 Plaintiff YOUNG’s car.

7

40. Defendant BERGERON filled out a “field contact card” and released Plaintiff

8 YOUNG with no charges recommended. Defendant BERGERON laughed as he released Plaintiff

9 YOUNG and said he would “Catch you for something later.” As Plaintiff YOUNG was surveying

10 his ransacked car, Plaintiff YOUNG told Defendant BERGERON and other officers that he was

11 going to file a complaint against them. Defendant BERGERON replied, “Go ahead, I’ll just get

12 acquitted like my Rider buddies!”

13

41. Plaintiff YOUNG did file a complaint against Defendant BERGERON with the

14 Oakland Citizen’s Police Review Board (CPRB), which investigated and sustained Plaintiff’s

15 complaint, finding that Defendant “BERGERON performed an unlawful strip search on Mr.

16 YOUNG.” The CPRB recommended to Defendant Chief of Police WORD that Defendant

17 BERGERON receive training and a reprimand.

18

42. Defendant BERGERON is among a group of only 10 Oakland police officers who

19 received four or more complaints against them with the CPRB between January 1, 2003 and June 30,

20 2005.

21

43. Defendants’ seizure and search of Plaintiff YOUNG was without a Warrant and

22 without other legal cause. Defendants’ use of force against Plaintiff YOUNG was excessive and

23 objectively unreasonable under the circumstances.

24

44. Defendants’ unreasonable seizures, uses of excessive force, and public strip search of

25 Plaintiff were done at least in part because of Plaintiff’s race and/or ethnicity. Plaintiff is African-

26
American.
27

28

45. At all material times, and alternatively, the actions and omissions of each defendant

with respect to each plaintiff herein were intentional, wanton and/or willful, conscience shocking,

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page10 of 18

1 reckless, malicious, deliberately indifferent to Plaintiff’s rights, done with actual malice, grossly

2 negligent, negligent, and objectively unreasonable.

3

DAMAGES

4

46. As a proximate result of Defendants’ conduct, Plaintiffs suffered severe and extreme

5 emotional distress, fear, terror, anxiety, humiliation, invasion of privacy and bodily integrity, and loss

6 of their sense of security, dignity, and pride as United States citizens.

7

47. Plaintiffs were assaulted, detained, handcuffed, illegally searched in the anus and

8 privates in public, and falsely arrested by the defendant officers noted herein without any just

9 provocation or probable cause. Plaintiff FOSTER defended against the false charge of loitering and

10 traveled from Nevada to Oakland to make a court appearance at which Defendant Officer FESTAG

11 did not bother to appear.

12

48. The conduct of defendant officers was malicious, wanton, reckless, and oppressive.

13 Plaintiffs are therefore entitled to an award of punitive damages against said defendant police

14 officers.

15

49. Plaintiffs found it necessary to engage the services of private counsel to vindicate his

16 rights under the law. Plaintiffs are therefore entitled to an award of all attorney’s fees incurred in

17 relation to this action for violation of their civil rights.

18

CLASS ALLEGATIONS

19

50. Plaintiffs are informed and believe, and thereon allege, that Defendants have followed,

20
and continue to follow, a custom, policy, and/or practice of strip searching individuals on public
21

22 streets without legal cause and in violation of the United States and California Constitutions and other

23 statutes and regulations. In addition to the types of strip searches described by Plaintiffs herein,

24 Plaintiffs are informed and believe and thereon allege that other individuals further have been
25
subjected to physical body cavity searches, including anal penetration, by Defendants and/or other
26
officers of the Oakland Police Department, including but not limited to as alleged by plaintiffs in
27
28 Taylor, et. al. v. City of Oakland, Officer B. Estrada, et. al., no. C-04-4843 MHP, and Rider v. City of

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page11 of 18

1 Oakland, Officer B. Estrada, Officer William BERGERON, et. al., No. C-05-3204 MHP. Plaintiffs
2 are informed and believe, and thereon allege, that Defendants have disproportionately singled out
3
young men of color, predominantly African-American and Latino, for such illegal searches and
4
5 seizures. Additionally, Defendant City of Oakland’s police training program and written policies
6 with respect to public strip searches, including both visual and physical body cavity searches, has

7 been, and continues to be unconstitutional and deliberately indifferent to the rights and safety of
8
Plaintiffs, the class described herein, and the public.
9
51. The conduct of Defendants with respect to Plaintiffs FOSTER, DUARTE, AND
10
11 YOUNG, as described herein, was also pursuant to the customs, policies, and/or practices set forth in

12 the preceding paragraphs and as further described below.

13

52. Plaintiffs FOSTER, DUARTE, and YOUNG bring this action on their own behalf and

14
on behalf of all persons similarly situated pursuant to FRCivP 23.
15
53. The proposed class consists of all persons, in the period from and including August 1,
16

17 2003 to the present and continuing until this matter is adjudicated and the unlawful customs, policies,

18 and/or practices complained of herein cease, who were seized and subjected to one or more strip

19 and/or visual body cavity and/or physical body cavity searches in public without legal basis.
20
54. In accordance with F.R.Civ.P. 23, Plaintiffs are informed and believe and thereon
21
22 allege, that the class is so numerous that joinder of all members is impracticable. Plaintiffs do not
23 know the exact number of class members.

24

55. Plaintiffs are informed and believe and thereon allege, these inappropriate and illegal

25
searches and customs, policies, and/or practices have existed for years and will continue to affect
26
more potential class members in the future.
27

28

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page12 of 18

1

56. There are questions of law and fact common to the class of plaintiffs, including but not

2 limited to: the legality of strip searching individuals in public and the legality of Defendant City of
3
Oakland’s training program and written policies with respect to public strip searches, including both
4
5 visual and physical body cavity searches.

6

57. The claims of the representative Plaintiffs FOSTER, DUARTE and YOUNG, are

7 typical of the claims of the class of plaintiffs. Representative Plaintiffs FOSTER, DUARTE, and
8
YOUNG have the same interests and has suffered the same types of injuries as all of the class
9
members. The claims of Plaintiffs FOSTER, DUARTE, and YOUNG and the class members arise
10
11 from the same customs, policies, and/or practices of the Defendants that have damaged all class

12 members. Plaintiff FOSTER, DUARTE, and YOUNG’s interests are consistent with, and not

13 antagonistic to, the interests of the class.
14
58. The named Plaintiffs will fairly and adequately represent and protect the interests of
15
the members of the class. Plaintiffs’ counsel are experienced in litigating federal civil rights cases,
16
17 including cases against the City of Oakland, alleging unlawful and inappropriate searches. Counsel

18 have the resources and expertise to prosecute this action.

19

59. The prosecution of separate actions by individual members of the class would create a

20
risk of inconsistent or varying adjudications with respect to individual members of the class, and
21

22 would establish incompatible standards of conduct for Defendants.

23

60. Defendants have acted or refused to act on grounds generally applicable to the class,

24 thereby making final injunctive and declaratory relief with respect to the class as a whole appropriate.
25
61. Additionally, prosecution of separate actions would create a risk of adjudications with
26
respect to individual members of the class that would, as a practical matter, be dispositive of the
27

28

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page13 of 18

1 interests of the other members who are not parties, or would substantially impair or impede their
2 ability to protect their interests.
3

4

5

6

FIRST CAUSE OF ACTION

(42 U.S.C. Section 1983)

7

(Against Defendants FESTAG, BERGERON, and DOES 1-10)

8

62. Plaintiffs hereby re-allege and incorporate by reference herein all other paragraphs of

9
this Complaint.
10
63. In doing the acts complained of herein, Defendants FESTAG, BERGERON, and
11

12 DOES 1-10, inclusive, and/or each of them, acted under color of law to deprive Plaintiffs of certain

13 constitutionally protected rights, including, but not limited to:

14

a. The right to be free from unreasonable searches and seizures, as guaranteed by the

15
Fourth and Fourteenth Amendments to the United States Constitution;
16
b. The right not to be deprived of life or liberty without due process of law, as guaranteed
17

18

by the Fourteenth Amendment to the United States Constitution;

19

c. The right to be free from the use of excessive force by police officers, which is

20

guaranteed by the Fourth and Fourteenth Amendments to the United States

21
Constitution;
22

23

d. The right to equal protection of the laws, as guaranteed by the Fourteenth Amendment

24

to the United States Constitution; and/or,

25

e. The right to be free from interference within the zone of privacy, as protected by the

26

Fourth, Ninth, and Fourteenth Amendments to the United States Constitution;

27
WHEREFORE, Plaintiffs pray for relief as hereinafter set forth.
28

SECOND CAUSE OF ACTION

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page14 of 18

1

(42 U.S.C. section 1983)

2

(Against Defendants CITY, RICHARD WORD, and DOES 11-25)

3

64. Plaintiffs hereby re-allege and incorporate by reference herein all other paragraphs of

4 this Complaint.

5

65. Plaintiffs are informed and believe and thereon allege that high ranking City of

6
Oakland officials, including high ranking police supervisors, such as Defendant Richard WORD,
7

8 DOES 11 through 25, and/or each of them, knew and/or reasonably should have known about

9 repeated acts of misconduct by Defendants FESTAG, BERGERON, and DOES 1-10, and/or each of

10 them, including illegal public strip search and anal-cavity searches without legal justification.
11
66. Despite having such notice, Plaintiffs are informed and believe and thereon allege that
12
Defendants WORD, DOES 11-25, and/or each of them, approved, ratified, condoned, encouraged
13
14 and/or tacitly authorized the continuing pattern and practice of misconduct and/or civil rights

15 violations by said officers.

16

67. Plaintiffs are further informed and believe and thereon allege that as a result of the

17
deliberate indifference, reckless and/or conscious disregard of the misconduct by Defendants
18
FESTAG, BERGERON, and DOES 1-10, and/or each of them, Defendant WORD, DOES 11-25,
19

20 and/or each of them, encouraged these officers to continue their course of misconduct, resulting in the

21 violation of Plaintiffs’ rights as alleged herein.

22

68. The aforementioned acts and/or om issions and/or deliberate indifference by high

23
ranking City of Oakland offici als, including high ranking City of Oakland Police Departm ent
24

25 supervisors, Defendants W ORD, DOES 11-25, and each of them resulted in the dep rivation of

26 Plaintiffs’ constitutional rights including, but not limited to, the following:

27

28

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CIVIL RIGHTS

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page15 of 18

1

a. The right to be free from unreasonable searches and seizures, as guaranteed by the Fourth

2

and Fourteenth Amendments to the United States Constitution;

3
b. The right not to be deprived of life or liberty without due process of law, as guaranteed by
4

5

the Fifth and Fourteenth Amendments to the United States Constitution;

6

c. The right to be free from the use of excessive force by police officers, which is

7

guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution;

8
d. The right to equal protection of the laws, as guaranteed by the Fourteenth Amendment to
9
the United States Constitution; and/or,
10

11

e. The right to be free from interference within the zone of privacy, as protected by the

12

Fourth, Ninth, and Fourteenth Amendments to the United States Constitution;

13

69. Said rights are substantive guarantees under the Fourth and/or Fourteenth

14
Amendments to the United States Constitution.
15
WHEREFORE, Plaintiffs pray for relief as hereinafter set forth.
16

17

THIRD CAUSE OF ACTION

(42 U.S.C. section 1983)

18

(Against Defendant CITY OF OAKLAND)

19

70. Plaintiffs hereby reallege and incorporate by reference herein all other paragraphs of

20
this Complaint.
21

22

71. As against Defendant CITY, Defendant WORD and/or DOES 11-25 in his/their

23 capacity as official policy-maker(s) for the CITY OF OAKLAND, Plaintiffs further allege that the

24 acts and/or omissions alleged in the Complaint herein are indicative and representative of a repeated
25
course of conduct by members of the CITY OF OAKLAND Police Department tantamount to a
26
custom, policy or repeated practice of condoning and tacitly encouraging the abuse of police
27
28 authority, and disregard for the constitutional rights of citizens.

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Case3:05-cv-03110-SI Document6 Filed09/22/05 Page16 of 18

1

72. Plaintiffs are further informed and believe and thereon allege that the acts and

2 omissions alleged herein are the direct and proximate result of the deliberate indifference of
3
Defendants CITY, WORD, DOES 11-25, and each of them, to repeated acts of police misconduct,
4
5 including intrusive, humiliating, public visual and physical anal cavity searches without probable or

6 reasonable suspicion of criminal wrongdoing, which were tacitly authorized, encouraged or condoned

7 by the Defendant CITY, Defendant WORD, DOES 11-25, and each of them.
8
73. The injuries and damages to Plaintiffs as alleged herein were the foreseeable and
9
proximate result of said customs, policies, patterns and/or practices of Defendant CITY, Defendant
10
11 WORD, DOES 11-25, and each of them.

12

74. Plaintiffs are further informed and believe and thereon allege that the damages

13 sustained as alleged herein were the direct and proximate result of municipal customs and/or policies

14
of deliberate indifference in the training, supervision and/or discipline of members of the Defendant
15
OAKLAND Police Department.
16

17

75. Plaintiffs are further informed and believe and upon such information and belief allege

18 that Plaintiffs’ damages and injuries were caused by customs, policies, patterns or practices of

19 Defendant CITY, Defendant WORD, DOES 11-25, and each of them, of deliberate indifference in
20
the training, supervision and/or discipline of Defendants FESTAG, BERGERON, and DOES 1-10,
21
22 and/or each of them.

23

76. The aforementioned customs, policies or practices of Defendant CITY, Defendant

24 WORD, DOES 11-25, and each of them, resulted in the deprivation of Plaintiffs’ constitutional rights

25
including, but not limited to, the following:

26
a. The right to be free from unreasonable searches and seizures, as guaranteed by the Fourth
27

28

and Fourteenth Amendments to the United States Constitution;

FIRST AMENDED COMPLAINT FOR CLASS ACTION AND INDIVIDUAL RELIEF FOR INJURIES AND VIOLATION OF

CIVIL RIGHTS

16

Case3:05-cv-03110-SI Document6 Filed09/22/05 Page17 of 18

1

b. The right not to be deprived of life or liberty without due process of law, as guaranteed by

2

the Fourteenth Amendment to the United States Constitution;

3
c. The right to be free from the use of excessive force by police officers, which is guaranteed
4

5

by the Fourth and Fourteenth Amendments to the United States Constitution;

6

d. The right to equal protection of the laws, as guaranteed by the Fourteenth Amendment to

7

the United States Constitution; and/or,

8
e. The right to be free from interference within the zone of privacy, as protected by the
9
Fourth, Ninth, and Fourteenth Amendments to the United States Constitution.
10

11

77. Said rights are substantive guarantees under the Fourth and/or Fourteenth

12 Amendments to the United States Constitution.

13

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth.

14
JURY DEMAND
15
78. Plaintiffs hereby demand a jury trial in this action.
16

17
PRAYER
18
WHEREFORE, Plaintiffs pray for relief, as follows:
19
1. For general damages in a sum of $1,000,000.00 each;
20
2. For special damages in a sum according to proof;
21
3. For punitive damages in a sum according to proof;
22
4. For reasonable attorney’s fees pursuant to 42 U.S.C. Section 1988 and other applicable
23
law;
24
5. For cost of suit herein incurred; and
25
6. For injunctive relief, including but not limited to the following:
26

27

i. An order declaring Respondents’ customs, policies, and/or

practices concerning strip and/or visual body cavity searches of

28

people detained and/or arrested by Oakland Police law

enforcement officers and/or employees to be unlawful;

FIRST AMENDED COMPLAINT FOR CLASS ACTION AND INDIVIDUAL RELIEF FOR INJURIES AND VIOLATION OF

CIVIL RIGHTS

17

Case3:05-cv-03110-SI Document6 Filed09/22/05 Page18 of 18

1

2

ii. An order prohibiting Respondents and their officers from

unlawfully interfering with the rights of Claimant, class members,

3

and other people to be free from unreasonable searches and

4

seizures and serious invasions of privacy;

5

iii. An order requiring Respondents to rescind any and all of their

6

policies, practices, procedures, and/or customs allowing unlawful

7

strip and/or visual body cavity searches of people detained and/or arrested by Oakland Police law enforcement officers and/or

8

employees;

9

iv. An order requiring Respondents to institute and enforce

10

appropriate and lawful policies and procedures prohibiting

11

unlawful strip and/or visual body cavity searches of people

detained and/or arrested by Oakland Police law enforcement

12

officers and/or employees;

13

v. An order requiring Respondents to train all officers and personnel

14

of the Oakland Police Department concerning unlawful strip and/or

15

visual body cavity searches of people detained and/or arrested by

Oakland Police law enforcement officers and/or employees.

16

17

7. For such other and further relief as the Court deems just and proper.

18

19 Dated: September 20, 2005

The Law Offices of John L. Burris

20

21

______/s/_________________________

John L. Burris, Esq.

22

Attorney for Plaintiffs Foster, Duarte,

23

and class members

24
Dated: September 20, 2005
25 26 27 28

Haddad & Sherwin
_______/s/________________________ Michael J. Haddad, Esq. Attorney for Plaintiffs Young and class members

FIRST AMENDED COMPLAINT FOR CLASS ACTION AND INDIVIDUAL RELIEF FOR INJURIES AND VIOLATION OF

CIVIL RIGHTS

18

 
 Case3:05-cv-03110-SI Document99 Filed12/14/09 Page1 of 18

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UNITED STATES DISTRICT COURT

8
NORTHERN DISTRICT OF CALIFORNIA

9

10 DARNELL FOSTER, et aI.,

MEMORANDUM & ORDER

11

Plaintiffs,

v.

12

CITY OF OAKLAND, et aI.,

13

Defendants.

14

Re: Plaintiff Young's Motion for Partial Summary Judgment
No. C 05-3110 MHP

15 This Document Relates To:

16 JAMES TAYLOR, et aI.,
17 Plaintiffs,
18 v.
19 CITY OF OAKLAND, et aI.,
20 Defendants.
21

No. C 04-4843 MHP

22 JIMMY RIDER, et aI.,

No. C 05-3204 MHP

23

Plaintiffs,

24

v.

25 CITY OF OAKLAND, et aI.,

26

Defendants.

27 JOINT CAPTION CONTINUED ON NEXT PAGE

28

Case3:05-cv-03110-SI Document99 Filed12/14/09 Page2 of 18

Case3:05-cv-03110-SI Document99 Filed12/14/09 Page3 of 18

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1 LAWRENCE COLEY, et at.,

No. C 08-4255 MHP

2

Plaintiffs,

3

v.

4 CITY OF OAKLAND, et at,

5

Defendants.

------------------------------~/

6

7

Plaintiffs Darnell Foster, Rafael Duarte and Yancie Young brought this against municipal and

8 individual defendants, including Oakland police officer William Bergeron, pursuant to 28 U.S.c.

9 section 1983. Plaintiffs allege various violations of their constitutional rights through a policy and

10 practice of performing strip searches and body-cavity searches in public. Now before the court is a

11 motion for partial summary judgment on behalf of plaintiff Young only. Young seeks a declaratory

12 judgment and finding of liability against defendant Bergeron as to Young's Fourth Amendment

13 claim for unreasonable search and seizure. Having considered the parties' arguments and

14 submissions, the court enters the following memorandum and order.

15

16 BACKGROUND

17 I.

Events of September 30, 2003

18

On September 30, 2003, at approximately 11 :30 p.m., defendant Bergeron pulled plaintiff

19 Young over at approximately the 2800 block of West Street, in Oakland, California. Young is an

20 African-American man and was wearing blue jeans, a belt, a shirt and shoes. Docket No.1 03'

21 (Haddad Dec.), Exh. A (Young Depo.) at 19. Young was not on probation or parole. Bergeron, who

22 was driving his patrol car with a partner, Officer Bernard Ortiz, first observed Young's car as it

23 turned from 29th Street onto West Street. Id., Exh. B (Bergeron Dep.) at 24. According to

24 Bergeron, Young's car seemed to have been traveling "faster than it should have been for having to

25 stop at a stop sign." Bergeron admits that he did not actually see Young roll through the stop sign

26 and did not witness any sort of moving violation at the area of the stop sign. Id. Bergeron did notice

27 an air freshener hanging from Young's rearview mirror. The air freshener was, according to

28 Bergeron, "one ofthe Christmas tree or the tree-shaped air fresheners." According to Bergeron, the

3

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1 dimensions of the air freshener were four to five inches long by two to four inches wide. Id. at 25.

2 Bergeron believed that the air freshener hanging from Young's rearview mirror constituted a

3 violation of California Vehicle Code 26708(a)(2), which prohibits the driving of a vehicle "with any

4 object or material placed ... in or upon a vehicle that obstructs or reduces the driver's clear view

5 through the windshield or side windows." [d.; see Cal. Veh. Code § 26708(a)(2). For this reason,

6 Bergeron pulled Young over. Bergeron Dep. at 24-25.

7

After Young pulled his car over, Bergeron approached the driver's side window of Young's

8 car. Bergeron told Young why he had been stopped, stated that Bergeron needed to remove the air

9 freshener, and asked for Young's driver's license, registration and insurance. !d. at 25, 28. During

10 this process, Bergeron smelled a strong odor of fresh marijuana coming from inside the vehicle. He

11 also observed a bunch of small pieces of what he believed to be marijuana crumbs on the front of

12 Young's shirt. [d. at 28-29. Bergeron believed there was probable cause to arrest Young for

13 possession of marijuana for use or distribution. The odor emanating from the car was so strong that

14 Bergeron believed there to be more marijuana in the car or on Young's person. !d. at 29-30. It

15 smelled like a significant amount. [d. at 61. Ortiz also smelled a very potent smell of marijuana

16 emanating from Young's car. Docket No. 108 (Def.'s Supporting Evid.), Exh. 4, Attachment 3

17 (Ortiz Depo.) at 5-6. According to Bergeron, Young admitted at some point that he had smoked

18 marijuana earlier that day. !d., Attachment 1, Exh. 2 (comment on field contact report); Bergeron

19 Depo. at 60. Bergeron did not know Young and had never heard of him prior to stopping him.

20 Bergeron Depo. at 61.

21

Young was asked to step out of his car. !d. at 32. After Bergeron handcuffed Young, he

22 recovered the substance from Young's shirt by scraping it off with an assignment card. Id. at 30.

23 Later, Bergeron packaged the substance in an Oakland Police Department ("OPD") Criminalistics

24 Section envelope, but Bergeron does not know if the substance was ever tested to confirm whether it

25 was marijuana. [d. at 32.

26

Bergeron took Young to the rear of the police car on the driver's side. [d. at 33. Using a

27 grasping hand technique, Bergeron conducted a pat-down search of Young's entire body, with

28 Young facing away from Bergeron and toward the police car. The pat-down did not reveal any

4

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marijuana or other contraband. Id. at 35. Bergeron does not recall requiring Young to take his shoes

2 off. Id. at 43. Based on the continuing marijuana smell, the apparent pieces of marijuana on the

3 front of Young's shirt, and Bergeron's experience and training, Bergeron suspected Young had

4 concealed marijuana under his clothing. Id. at 35-38. Bergeron turned Young around and grabbed

5 the front of Young's pants. According to Bergeron's version of what followed, which must be

6 accepted as true for purposes of the instant motion, Bergeron pulled the front of Young's pants out

7 and shined his flashlight down the front. Bergeron did not pull Young's underwear out so as to see

8 Young's privates. The visual inspection lasted "less than ten seconds for sure." Id. at 40.

9

At the same time that Bergeron shined his flashlight down Young's pants, Ortiz was

10 searching "every part of [Young's] car that [he] could think of." Ortiz Depo. at 11. Bergeron placed

11 Young in the patrol car and then conducted a records check of Young via the vehicle computer in the

12 police car. Bergeron Depo. at 58-59. The records check showed that Young did not have any

13 warrants at that time. Id. at 59. Bergeron then assisted Ortiz in searching Young's vehicle. Id. No

14 contraband was found~ despite what smelled like a significant amount of fresh marijuana. Id. at 60-

15 61. Unable to find the source of the smell, Bergeron and Ortiz conferred with a sergeant who was

16 not on the scene. The officers decided to call a canine officer, Diane Nichelini, to the scene. !d. at

17 62. Nichelini arrived and could smell the marijuana from ten feet away. Def.'s Supporting Evid.,

18 Exh. 4, Attachment 4 (Nichelini Depo.) at 6-8. During a ten-to-fifteen minute search, her dog got a

19 "hit" in the rear ofthe car, but the dog did not give Nichelini a "true alert." The officers checked the

20 rear seat area of the car but were again unable to locate any contraband. Id. at 9-10; Bergeron Depo.

21 at 63. After completing their search, the officers released Young pursuant to California Penal Code

22 section 849(b). Id.; see Cal. Penal Code § 849(b) (allowing release from custody without booking of

23 individual arrested without warrant where officer is satisfied insufficient grounds exist for making a

24 criminal complaint). Although Bergeron thought the substance found on Young's shirt was

25 marijuana, Bergeron concluded that it was not a "usable amount" and therefore was not enough to

26 provide the basis for a citation. Bergeron Depo. at 32. The OPD Computer Aided Dispatch (CAD)

27 report indicates that Bergeron pulled Young over at 11 :33 p.m. and that Bergeron left the scene at

28 1: 11 a.m. Haddad Dec., Exh. C (CAD Report); see Bergeron Depo. at 63-66.

5

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1 II. The 1998 OPD Strip Search Policy

2

At the time of the incident, Bergeron did not believe the type of search he performed on

3 Young was a "strip search." Id. at 43, 48. At that time, OPD had a policy in place entitled "The

4 Legal Aspects of Searching Persons." This policy had been in place since 1998. Haddad Dec.,

5 Exh. D (1998 Policy) at 1. It defined a strip search as "any search that requires the officer to remove

6 or arrange some or all ofa person's clothing to permit a visual inspection of the subject's

7 underclothing, breasts, buttocks, or genitals." Id. at 8. The policy further instructed,

8

A strip search or visual body-cavity search may be conducted only if all of the

following conditions are met:

9

•

The person to be searched must be under arrest and ultimately booked.

•

The arrest must be for an offense involving weapons, controlled substances, or

10

violence.

•

The person conducting the search must be of the same sex as the person

11

searched .

•

The search must be conducted in a private area where it cannot be observed by

12

persons not participating in the search.

13 Id. Bergeron admits the he was required to be knowledgeable of all official policies of the OPD.

14 Bergeron Dec. at 7-8. He also specifically admits that he was required to be knowledgeable of the

15 1998 policy on strip searches in effect at the time of the incident. Id. at 9-10.

16 Ill. Relevant Procedural History

17

Plaintiffs Foster and Duarte filed the present action on August 1, 2005. Pursuant to

18 stipulations, plaintiffs filed an amended complaint on September 22,2005, adding plaintiff Young.

19 On March 27, 2008, the court partially granted and partially denied plaintiffs' partial motion for

20 summary judgment. Docket No. 71 ("March 2008 Order"). Plaintiffs moved for partial summary

21 judgment on the following grounds: declaratory relief that the OPD's 1998 strip search policy was

22 unconstitutional; declaratory relief that the 2004 amended policy was unconstitutional; judgment that

23 any search in accordance with either of the policies was unconstitutional; and summary judgment on

24 the issue of liability in favor of plaintiffs. The court held the 1998 policy to be unconstitutional

25 insofar as it allowed physical body cavity searches to be performed by someone other than a medical

26 professional. Id. at 18. The 2004 policy was found to be unconstitutional to the extent it allowed

27 strip searches of any kind to be performed in the field on less than probable cause. Id. at 19. The

28

6

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1 other parts of plaintiffs' motion for summary judgment were denied. Plaintiff Young thereafter filed

2 the instant motion.

3

4 LEGAL STANDARD

5

Summary judgment may be granted only when, drawing all inferences and resolving all

6 doubts in favor of the non-moving party, there are no genuine issues of material fact and the moving

7 party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(c); see generally Anderson v.

8 Liberty Lobby, Inc., 477 U.S. 242,247-255 (1986). A fact is "material" ifit may affect the outcome

9 of the proceedings, and an issue of material fact is "genuine" if the evidence is such that a reasonable

lO jury could return a verdict for the non-moving party. !d. at 248. The court may not make credibility

11 determinations. Id. at 255. The moving party bears the burden of identifying those portions of the

12 pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact.

13 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets its initial burden,

14 the non-moving party must go beyond the pleadings and, by its own affidavits or discovery, set forth

15 specific facts showing that there is a genuine issue for trial. Fed R. Civ. P. 56(e); see Anderson, 477

16 U.S. at 250.

17

18 DISCUSSION

19

Plaintiff Young seeks summary judgment on his claim that defendant Bergeron violated his

20 Fourth Amendment right to be free from unreasonable search and seizure. Young focuses his

21 arguments on three actions taken by Bergeron: (1) the initial stop of Young on the basis of California

22 Vehicle Code subsection 26708(a)(2); (2) the arrest of Young on the suspicion he possessed 23 marijuana; and (3) the alleged strip search ofYoung.2 Bergeron argues that his actions were lawful

24 and that he is, in any event, protected from liability by the doctrine of qualified immunity.

25 1.

The Investigatory Stop

26

Young argues that Bergeron unlawfully stopped his vehicle on the basis of an alleged

27 violation of California Vehicle Code 26708(a)(2) ("subsection (a)(2)"). "Under the Fourth

28 Amendment, government officials may conduct an investigatory stop of a vehicle only if they

7

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1 possess reasonable suspicion: a particularized and objective basis for suspecting the particular person

2 stopped of criminal activity. Such reasonable suspicion requires specific, articulable facts which,

3 together with objective and reasonable inferences, form a basis for suspecting that a particular person

4 is engaged in criminal conduct." United States v. Twilley, 222 F.3d 1092, 1095 (9th Cir. 2000)

5 (citations and internal quotation marks omitted).

6

On February 27,2003, approximately seven months before the incident at issue on this

7 motion, the California Court of Appeal held a vehicle stop based on the same vehicle code provision

8 and the same type of air freshener as Young's to have been umeasonable. People v. White, 107 Cal.

9 App. 4th 636 (2003). In that case, a patrol officer stopped a car with a tree-shaped air freshener

10 hanging from the rearview mirror.3 Id. at 640-641. Upon making contact with the driver of the

11 vehicle, the officer smelled marijuana and subsequently discovered over five pounds of marijuana

12 and other contraband. An occupant of the vehicle, White, was convicted oftransporting marijuana in

13 violation of California law. He appealed the trial court judge's denial of his suppression motion. Id.

14 at 639-640.

15

The Court of Appeal reversed the lower court, holding that reasonable suspicion was lacking.

16 The court found that subsection (a)(2) does not flatly prohibit hanging any object from a rearview

17 mirror. Rather, subsection (a)(2) proscribes the placement of articles in or upon the vehicle which

18 "obstruct or reduce the driver's clear view through the windshield or side windows." See Cal. Veh.

19 Code § 26708(a)(2). The officer never testified that he believed the air freshener obstructed the

20 driver's view. He also did not testify to specific and articulable facts, like erratic driving, that might

21 suggest the driver's view was impeded. Moreover, an expert had testified that the air freshener

22 covered less that 0.05 percent of the windshield of the car at issue. Id. at 642. The court held, "[o]n

23 this record," that it was not objectively reasonable to believe the air freshener obstructed or reduced

24 the driver's clear view through the windshield in violation of the vehicle code. Id.

25

Bergeron does not dispute Young's contention that his air freshener was the same

26 "ubiquitous" air freshener at issue in White. According to Young, Bergeron should have known at

27 the time of the incident with Young that a tree-shaped air freshener hanging from a rearview mirror

28 cannot be the factual basis for a violation of subsection (a)(2). Young's reading of White is too

8

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1 narrow.4 White rejects a construction of the code section that would flatly prohibit hanging a tree-

2 shaped air freshener from a rearview mirror; however, it does not adopt the position that such an

3 item can never provide the basis for a stop. Aside from Bergeron's very general description of the

4 air freshener, neither party has submitted evidence pertaining to the size of his windshield, the exact

5 size of the air freshener or any other factor that would shed light on whether the air freshener reduced

6 Young's view. While Bergeron admitted he did not see any moving violation, he testified in his

7 deposition that Young's car looked as if it had been traveling "faster than it should have been for

8 having to stop at a stop sign." Whether these facts are sufficiently specific and articulable to support

9 "reasonable suspicion" depends upon the credibility of Bergeron and must be weighed by the finder

10 of fact rather than decided on summary judgment.

11 II. The Arrest

12

The parties agree that Bergeron placed Young under arrest at the point Bergeron handcuffed

13 Young while Young sat in the driver's seat of his car. See Bergeron Depo. at 29. While it is not

14 clear whether this was technically an arrest, it was a seizure for Fourth Amendment purposes.

15 Young contends that Bergeron lacked probable cause. The Fourth Amendment requires that a law

16 enforcement officer have "probable cause" to arrest an individual without a warrant. United States v.

17 Jensen, 425 F.3d 698, 704 (9th Cir. 2005), cert. denied, 126 S.Ct. 1664. "The test for whether

18 probable cause exists is whether 'at the moment of arrest the facts and circumstances within the

19 knowledge of the arresting officers and of which they had reasonably trustworthy information were

20 sufficient to warrant a prudent man in believing that the petitioner had committed or was committing

21 an offense.'" Id. (quoting United States v. Bernard, 623 F.2d 551, 559 (9th Cir. 1980). "A

22 determination as to whether probable cause exists requires a practical, common-sense decision based

23 on the totality ofthe circumstances, including the veracity, basis of knowledge and reliability of the

24 information provided by informants." ld. (internal quotation marks omitted) (citing Illinois v. Gates,

25 462 US. 213, 214 (1983)). "Hunches" or "gut feelings" are insufficient to establish reasonable

26 suspicion, let alone probable cause. United States v. Johnson, 256 F.3d 895, 905 (9th Cir. 2001) (en

27 banc).

28

9

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For the purposes of this motion, the court accepts as true Bergeron's testimony that he

2 smelled a strong scent of fresh marijuana and that he saw crumbs on Young's shirt that looked like

3 manJuana. Young objects that Bergeron had no definitive proof that any such crumbs were

4 manJuana. He contends that any odor Bergeron smelled, combined with the crumbs, was not enough

5 to constitute probable cause that Young had committed a crime. In Young's view, Bergeron merely

6 had a hunch that Young had large quantities of marijuana.

7

It must first be noted that Bergeron was not required to have probable cause to suspect Young

8 had "large quantities" of marijuana, as Young's counsel repeatedly characterizes the inquiry. A more

9 proper question is whether Bergeron had probable cause to believe Young had enough marijuana to

10 violate the law. A second important question is whether at the time of the arrest Bergeron believed

11 he had probable cause to arrest Young for a felony or only a misdemeanor, which is a citable offense

12 under California Penal Code section 853.6. An odor, by itself, can be the basis for probable cause if

13 the affiant is qualified to know the odor and it is one sufficiently distinctive to identifY a forbidden

14 substance. See United States. v. DeLeon, 979 F.2d 761,765 (9th Cir. 1992) (citing Johnson v.

15 United States, 333 U.S. 10, 13 (1948)). Bergeron has been a sworn peace officer since 1990 and

16 spent approximately three years assigned to OPD's Vice Nareotics Unit prior to the incident with

17 Young. Bergeron Depo. at 5. Bergeron and the two other officers who were on the scene have

18 testified that they smelled marijuana. Young has not challenged the respective qualifications of any

19 ofthese police officers to recognize the scent of fresh marijuana. Drawing inferences in favor of the

20 non-moving party, the court must conclude that the officers were qualified to recognize the distinct

21 odor of marijuana.

22

Young's assertions that Bergeron arrested him simply on a "hunch" are unpersuasive.

23 Bergeron was confronted with the strong evidence of his senses, not simply a gut feeling. The strong

24 scent of fresh marijuana coupled with the sight of a substance the officer believed to be marijuana

25 warranted the belief that Young had committed or was committing an offense. But, if Bergeron did

26 not have probable cause to arrest Young for a felony rather than a citable misdemeanor, the extent of

27 the search of Young's person conducted thereafter may be affected. It would appear on the facts in

28 this record that Bergeron did not have probable cause to arrest for a felony since the only evidence he

10

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1 had was the collection of crumbs found on Young. Although the parties have stipulated this was an

2 arrest, the facts suggest that it was more likely a detention. Nonetheless, this presents other problems

3 with the validity of the strip search. Without full development of the facts at trial the court cannot

4 determine whether the seizure was an arrest or detention.

5 III. 6

The Strip Search Finally, Young argues that Bergeron conducted an unlawful strip search ofhim.5 This court's

7 March 2008 order used the definition of"strip search" provided in section 4030(c) of the California

8 Penal Code, which defines "strip search" as "a search which requires a person to remove or arrange

9 some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts,

10 buttocks, or genitalia of such person." March 2008 Order at 11; see Cal. Penal Code § 4030(c). 11 Defendant Bergeron now urges that this definition is too broad.6 According to Bergeron, simply

12 pulling back Young's pants, but not his underwear, to visually inspect inside his pants does not

13 constitute a "strip search" and should not be subject to the Fourth Amendment test for

14 constitutionality of strip searches in the field. According to Bergeron, the sort of search he

15 performed on Young is "minimally intrusive," indeed in some ways even less intrusive than a pat-

16 down search. Bergeron relies upon a recent California Court of Appeal case. See People v. Smith,

17 172 Cal. App. 4th 1354 (2009). In that case, criminal defendant Smith appealed denial of a

18 suppression motion, arguing he was subject to an unconstitutional strip search. On patrol, the

19 officers in that case had spotted a man trying to open the window of a hotel room in a high-crime

20 neighborhood. They then saw a second man, Smith, sitting in the driver's seat of a car parked

21 directly in front of the same hotel room. An officer approached Smith and asked ifhe was on parole.

22 Smith answered in the affirmative and gave permission for the officers to search his car. The officers

23 conducted a pat-down search of Smith and a thorough search of his car, and found no contraband.

24 Because of the high incidence of drug activity in the area, Smith's own history of selling drugs, and

25 the officers own "feeling" Smith had contraband in his underwear, one ofthe officers removed

26 Smith's belt, unzipped his pants, pulled them down "a foot or so," and pulled the elastic waistband

27 out away from Smith's body. Tho officer saw a large bag the size of a baseball sitting "right on top

28

11

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1 of his penis.,,7 The officer retrieved the bag, which contained several smaller baggies of heroin,

2 cocaine and methamphetamine. Id. at 1357-1358.

3

The court held the search to have been reasonable, relying heavily on the fact that Smith was

4 a parolee. See id. at 1360 ("Here, this analysis turns on Smith's status as a parolee."), 1363 ("We

5 agree with the trial court's conclusion that Smith was not SUbjected to a public strip search..... We

6 deem the intrusiveness of the search even less significant in light of our conclusion that Smith had a

7 sharply diminished expectation ofprivacy as a parolee."). For this reason, Smith is inapposite to the

8 instant case, where Young was not on probation or parole and the officers knew nothing about any

9 drug-related activities of Young. Furthermore, the Smith court found that the officers had taken steps

10 such as conducting the search "in an area that did not face the street, was fenced-off on at least one

11 side, and was not heavily frequented." Id. at 1363. The officers also placed Smith inside the crook

12 between the door ofthe patrol car and the body of the car, and stood around him to obstruct

13 visibility. Id. Bergeron does not contend that he took any of these steps. Finally, it is worth noting

14 that the sequence of Bergeron's search differed markedly from the Smith search. Believing that

15 Smith had contraband, the officers first patted down Smith and throughly searched his vehicle. It

16 was only when they were unable to find contraband in any other location that they concluded any

17 contraband Smith had must be stashed in his underwear. In the instant case, Bergeron believed that

18 there was fresh marijuana either in Young's car or on Young's person. Bergeron Depo. at 30. Yet

19 Bergeron searched Young's underwear before the search of the car was completed. Id. at 58-59. In

20 short, even if Smith were controlling, it would be distinguishable on its facts. Although the Smith

21 court couched the question rhetorically as a definitional one-i.e., was Smith subjected to a "strip

22 search"?-the inquiry undertaken by the court was actually a substantive analysis of whether the

23 specific circumstances in that case amounted to a Fourth Amendment violation. The case did not

24 tum on the issue of whether the nomenclature of "strip search" applied.

25

Neither do the federal cases relied upon by Smith support Bergeron's assertion that the search

26 of Young was not a "strip search" and was therefore permissible under the Fourth Amendment. In

27 United States v. Williams, 477 F.3d 974 (8th Cir. 2007), the officers had obtained a search warrant

28 for the suspect's home. After observing the suspect, Williams, drive away from his home, the

12

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1 officers conducted a traffic stop. A pat-down search revealed something in Williams's pants. The.

2 officers took Williams into custody, placed him in a squad car, and drove him several blocks to the

3 police department's precinct building. They searched Williams in the parking lot and reached into

4 his underwear to retrieve a large amount of crack and cocaine near his genitals. Id. at 975. The court

5 did not consider this search to be a "full-blown strip search" and found the search to be reasonable

6 under the circumstances. !d. at 976. While instructive, this case is inapposite because the pat-down

7 search had given the officers reason to believe that Williams had hidden contraband in his

8 underwear. Moreover, the court found that the officers had taken a number of effective steps to

9 protect Williams's privacy. See id. at 977. Similarly, the officer in United States v. Ashley, 37 F.3d

10 678 (D.C. Cir. 1994), had proceeded to open the suspect's pants only after feeling an object his

11 training indicated was a bag of crack cocaine during a pat-down search. Id. at 679-680. Bergeron

12 cites these cases for the proposition that a "reach in" or a visual inspection of the underwear is not a

13 "strip search." Yet the result of neither case turns on the terminology employed.

14

Bergeron provides no support, either in the form of evidence or legal authority, to buttress his

15 contention that a person would ordinarily find a visual search of undergarments to be less intrusive

16 than a pat-down search. In summary, there is no reason for this court to conclude that a visual

17 inspection of Young's underwear was not a "strip search," a conclusion which would conflict with

18 the definition of the phrase found not only in California Penal Code section 4030(C)8 but also the

19 OPD's own policy in place in 2003.

20

The next question is whether the strip search of Young violated his Fourth Amendment right

21 to be free of unreasonable search and seizure. The constitutionality ofa search is assessed by

22 balancing the need for the particular search against the invasion of personal rights that the search

23 entails. This requires the court to weigh the scope of the particular intrusion, the manner in which it

24 is conducted, the justification for initiating it, and the place in which it is conducted. Way v. County

25 a/Ventura, 445 F.3d 1157,1160 (9th Cir. 2006) (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).

26 "The test of reasonableness under the Fourth Amendment is not capable of precise definition or

27 mechanical application. In each case it requires a balancing of the need for the particular search

28 against the invasion of personal rights that the search entails." Bell, 441 U.S. at 559.

13

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1

Based on a detailed review of the case law concerning strip searches and body cavity

2 searches, this court articulated Fourth Amendment requirements for strip searches in the field, in the

3 context of determining whether a given police department policy is constitutional. Because the

4 Fourth Amendment test is not a bright line rule, this list is non-exhaustive when applied to questions

5 of liability arising out of particular incidents; other factors must be considered as appropriate to the

6 individual circumstances. In order to justify a strip search in the field: (1) there must be exigent

7 circumstances; (2) the search may only be performed on persons who have been lawfully arrested on

8 probable cause and may not be performed on anyone for whom there is no probable cause to arrest;

9 (3) the search requires probable cause that is independent of the probable cause found for the arrest;

10 and (4) the search may only be performed when there is probable cause to believe that the arrestee is

1] in possession of weapons, drugs or dangerous contraband. Order of March 2008 at 15 (and

12 authorities cited therein).

13

In the instant case, Bergeron does not even attempt to argue in his opposition that the strip

14 search of Young met these requirements. Bergeron does not assert that exigent circumstances

15 obtained, and indeed it is difficult to imagine how Young would have ingested, hidden or destroyed

16 any narcotics in his underwear while securely handcuffed in the back of the squad car. Nor does

17 Bergeron point to any genuine issue of material fact regarding independent probable cause to strip

18 search Young. There is no evidence that Bergeron had reason to believe Young was secreting

19 marijuana in his underwear, other than a hunch or a gut feeling. Bergeron has testified that he saw

20 Young make "furtive movements" inside the vehicle before Bergeron approached the car, but this

21 statement lacks specificity and is partially contradicted by Bergeron's deposition testimony that he 22 never saw Young trying to destroy marijuana.9 Bergeron Depo. at 38. This is insufficient to create a

23 genuine issue of fact. Moreover, Bergeron himself testified that the smell of marijuana emanated

24 either from Young's car or from Young. As noted, Bergeron searched Young before completing the

25 search of the car, undermining the assertion that Bergeron had some specific reason to believe the

26 marijuana must be on Young's person, as opposed to lying undiscovered in the car.

27

The manner in which the search was performed, with apparent disregard for any privacy

28 interest of the suspect also points to the umeasonableness ofthe search. Unlike officers in cases like

14

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1 Williams, Bergeron did not take any steps to protect Young's privacy such as taking Young to a

2 private location or even searching him in the crook of the car door. Bergeron instead pulled out

3 Young's pants and looked into them in the middle of the street.

4

In summary, Bergeron has raised no genuine issue of material fact that exigent circumstances

5 obtained or that independent probable cause existed to believe Young was hiding drugs in his

6 underwear. Nor has he provided evidence that any steps were taken to protect Young's privacy or

7 pointed to any other factors specific to this case that weigh against a finding of a Fourth Amendment

8 violation. Even accepting Bergeron's version ofthe events as true, the search conducted on Young

9 violated Young's Fourth Amendment rights.

10 IV. Qualified Immunity

11

Even if a law enforcement officer violates an individual's constitutional rights, the officer

12 may be protected by the doctrine of qualified immunity. Qualified immunity shields a public official

13 from individual liability for civil damages under 42 US.C. section 1983 so long as his conduct does

14 not "violate clearly established statutory or constitutional rights of which a reasonable person would

15 have known." Harlow v. Fitzgerald, 457 US. 800, 818 (1982). "Qualified immunity balances two

16 important interests~-the need to hold public officials accountable when they exercise power

17 irresponsibly and the need to shield officials from harassment, distraction, and liability when they

18 perform their duties reasonably. The protection of qualified immunity applies regardless of whether

19 the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed

20 questions of law and fact." Pearson v. Callahan, _ U.S. _ , _ , 129 S.Ct. 808, 815 (2009)

21 (citation and internal quotation marks omitted). Qualified immunity "provides ample protection to

22 all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 US.

23 335,341 (1986). As qualified immunity provides immunity from suit and is not merely a defense to

24 liability, it is important to "resolv[e] immunity questions at the earliest possible stage in litigation."

25 See Hunter v. Blyant, 502 U.S. 224,227 (1991).

26

In Saucier v. Katz, 533 US. 194 (2001), the Supreme Court articulated an inquiry for

27 determining whether qualified immunity is appropriate. For an official to benefit from qualified

28 immunity, two requirements must be met. First, the court must determine whether, taken in the light

15

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1 most favorable to the party asserting the injury, the facts alleged show the officer's conduct violated

2 a constitutional right. Id. at 201. Second, the court must consider whether any constitutional right

3 that was violated was so clearly established that a reasonable officer would understand that what he

4 is doing violates that right. Id. at 202. The second inquiry is particularized, as it occurs in the

5 specific context of the situation confronted by the official. Id.; see also Rudebusch v. Hughes, 313

6 F.3d 506, 514 (9th Cif. 2002). The Saucier inquiry articulated the first question as a threshold

7 question; however the Court recently held that lower courts may "exercise their sound discretion in

8 deciding which of the two prongs of the qualified immunity analysis should be addressed first in

9 light of the circumstances in the particular case at hand." Pearson, 129 S.Ct. at 818.

10

Bergeron points out that this court recognized in March 2008 "What is not clear is the extent

11 to which a strip search may be conducted in the field." See March 2008 Order at 14. Indeed, as the

12 court noted, there has been very little case law both on strip searches in the field and on the

13 requirements for performing strip searches that do not rise to the level of physical or visual body

14 cavity searches. While the Ninth Circuit has had occasion to determine the constitutionality of

15 various strip search policies, those cases dealt with blanket strip searches conducted at a police

16 station or other detention facility. See, e.g., Giles v. Ackerman, 746 F.2d 614 (9th Cif. 1984)

17 (holding unconstitutional pre-booking search of arrestee for minor traffic violation conducted

18 pursuant to blanket strip search policy), overruled on other grounds by, Hodgers-Durgin v. de la

19 Vina, 199 F.3d 1037, 1040 n.l (9th Cif. 1999); Kennedy v. Los Angeles Police Dep 't, 901 F.2d 702

20 (9th Cir. 1990) (holding unconstitutional city's blanket policy of performing visual body cavity

21 searches on all felony arrestees), overruling on other grounds recognized in, Act Up!/Portland v.

22 Bagley, 971 F.2d 298, 301 (9th Cif. 1992); Fuller v. M.G. Jewelry, 950 F.2d 1437 (9th Cir. 1991)

23 (holding unconstitutional strip search at police station pursuant to blanket policy).

24

Bergeron argues that ifthe parameters of a permissible strip search in the field were not yet

25 established in 2008, they could not have been clearly established in the mind of a reasonable police

26 officer in 2003. Young contends that Bergeron should have known that the conditions for

27 conducting a strip search on the street are logically more stringent than those for conducting a strip

28 search in ajail facility. Young also argues that Bergeron was on notice that his actions were

16

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1 unconstitutional because they violated the OPD's own strip search policy. Where a police

2 department has articulated an institutional policy pertaining to a practice, such policy is a factor in

3 determining both whether the officer acted reasonably and whether he was on notice that actions

4 transgressing the policy violated an established right. See Drummond v. City ofAnaheim, 343 F.3d

5 1052, 1061-1062 (9th Cir. 2003) (holding police department training materials' discussion of danger

6 of compression asphyxia relevant to both reasonableness and notice practice was unconstitutional);

7 Headwaters Forest Defense v. County ofHumboldt, 276 F.3d 1125, 1] 31 (9th Cir. 2002) (holding

8 right clearly established in part through regional and state-wide police practice). Bergeron plainly

9 violated the OPD's policy regarding strip searches insofar as he did not ultimately book Young and

10 did not conduct the search in a private area where the search could not be observed by persons not

11 participating in the search.1O Furthermore, despite the agreement ofthe parties, it is not clear on the

12 record before the court whether the seizure of Young can be characterized as an arrest.

13

This is not the sort of case in which qualified immunity has been, or could have been,

14 successfully invoked early in the litigation. Important disputes of material fact as to what actually

15 happened during the incident in question remain unresolved. Based on the foregoing, the court

16 cannot make a ruling at this time on the qualified immunity issue.

17

18 CONCLUSION

19

For the foregoing reasons, plaintiff Young's motion is GRANTED only as to the finding that

20 defendant Bergeron violated as a matter oflaw plaintiff's Fourth Amendment rights by conducting

21 an unlawful strip search on plaintiff. Plaintiff's motion is in all other respects DENIED. Remaining

22 issues concerning the investigatory stop and arrest, qualified immunity, and any damages that may be

23 due to plaintiff cannot be adjudicated on this summary judgment motion.

24

25

IT IS SO ORDERED.

&t. 1 ~: Dated:

It ~

28

17

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1

ENDNOTES

2 1. Unless otherwise indicated, all references to docket numbers refer to the docket in Case No.

C 04-4843.

3

2. Plaintiff does not challenge the constitutionality of the search of his vehicle.

4

3.

In White, the officer also cited a second, independent ground for stopping the vehicle: the absence

5 ofa front licence plate. The car was licensed in Arizona, a state that issues only a rear license plate. The

court found that California law did not require a front license plate for a car registered in another state

6 when that state did not require a front plate. 107 Cal. App. 4th at 643. The court also held there to be

no good faith exception to the exclusionary rule for police who enforce a legal standard that does not

7 exist. Id. at 644.

8 4. Indeed, a later California Court ofAppeal case, again addressing the same section ofthe vehicle
code and the same Ubiquitous tree-shaped air freshener, distinguished White and denied a suppression 9 motion. People v. Colbert, 157 Cal. App. 4th 1068 (2007). As Young notes, Colbert is irrelevant to the
question ofwhether Bergeron reasonably thought he could stop Young in 2003. Yet the case is relevant, 10 as persuasive authority, to the question whether such a stop violates the Fourth Amendment at all.

11 5. To be clear, Young does not contest the pat-down search but rather the portion of the search involving the rearrangement ofhis clothing. As to the latter portion ofthe search, Bergeron and Young
12 have differing recollections of the invasiveness and duration of the search. As noted, Bergeron's
testimony is accepted as true for the purposes of Young's motion for summary judgment. 13
6. The court relied in part upon Edgerly v. City & County ofSan Francisco, 495 F.3d 645 (9th Cir. 14 2007), which had discussed the California definition approvingly. See id. at 656. Inexplicably, counsel
for Bergeron failed to point out in their opposition that the Edgerly opinion has since been withdrawn 15 pending rehearing by the panel. See Edgerlyv. City & County ofSan Francisco, 527 F.3d 841 (9th Cir.
2008) (granting panel rehearing and withdrawing earlier opinion). 16
7. The opinion does not indicate how the pat-down failed to reveal the baseball-sized object in 17 Smith's underwear.

18 8.

The definition found at California Penal Code section 4030 was enacted before 2003.

19 9. "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th
20 Cir. 1991). There is even more reason to disregard an affidavit that has been contradicted by later deposition testimony. Young has objected to the two Bergeron declarations filed by defendant. To the
21 extent that these declarations contradict Bergeron's deposition testimony, the obj ection is SUSTAINED. The court also SUSTAINS Young's objection to the admission of the unsworn recorded interview of
22 Leron Habebullah. This interview was not taken under oath, and Bergeron has not indicated that Habebullah is unavailable for the purposes of filing a declaration or being deposed.
23
10. The Citizens' Police Review Board and the OPD Internal Affairs Division also found that 24 Bergeron violated the policy. See Haddad Dec., Exhs. F & G.

25

26

27

28

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1

2

UNITED STATES COURT OF APPEALS

3

FOR THE NINTH CIRCUIT

4 In re: WILLIAM BERGERON.
5

6 WILLIAM BERGERON,

7

Petitioner,

No. 09-74059
D.C. No. 3:05-cv-03110-MHP Northern District of California, San Francisco

8 v. UNITED STATED DISTRICT COURT
9 FOR THE NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO),
10 Respondent,
11 DARNELL FOSTER,
12
13 ___________R_e_a_l P_a_r_ty__in_I_n_te_re_s_t._______1

ORDER OF CLARIFICATION

14 This order is intended to clarify the posture of the above-captioned matter and to identify the
15 proper real party in interest. The district court order that is the subject of William Bergeron's
16 emergency petition for a writ of mandamus affected only one of a number of related actions
17 currently pending before the district court. The real party in interest for the order at issue is Yancie
18 Young, not Darnell Foster. The record should be changed to reflect that Yancie Young is the real
19 party in interest in the above-captioned matter.
20

21

22
I 23 ~. Dated: .f; ~
24 25

M

ALL PATEL

Un' ed States District Court Judge

Northern District of California

26

27

28

 
 Case: 09-74059 01/13/2010 Page: 1 of 2 DktEntry: 7193808
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JAN 13 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

In re: WILLIAM BERGERON.
WILLIAM BERGERON, Petitioner,
v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO),
Respondent, YANCIE YOUNG,
Real Party in Interest.

No. 09-74059 D.C. No. 3:05-cv-03110-MHP Northern District of California, San Francisco
ORDER

Before: SILVERMAN, PAEZ and BEA, Circuit Judges. Petitioner has not demonstrated that this case warrants the intervention of
this court by means of the extraordinary remedy of mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977). The posture of the case did not require the district judge to rule on qualified immunity. The district court

ec/MOATT

Case: 09-74059 01/13/2010 Page: 2 of 2 DktEntry: 7193808
had before it only the real party in interest’s motion; there was no cross-motion by petitioner. Accordingly, the petition is denied.
In denying the petition for writ of mandamus, we in no way preclude the petitioner from seeking a ruling by the district court on his affirmative defense of qualified immunity either by a properly filed motion for summary judgment or at trial.
Petitioner’s alternative request to construe this petition as a notice of appeal of the district court’s December 14, 2009 order, entered December 15, 2009, and a motion for stay of district court proceedings is denied.
BEA, Circuit Judge: I dissent. The district court erred in entering partial summary judgment in
favor of real party in interest Young with respect to his 42 U.S.C. § 1983 claim of an unconstitutional search without having determined the issue of qualified immunity, vel non. See Pearson v. Callahan, 129 S. Ct. 808 (2009); Saucier v. Katz, 121 S. Ct. 2151 (2001).

ec /M O A T T

2

09-74059

 
 Case3:05-cv-03110-SI Document112 Filed03/04/10 Page1 of 4

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

10 JAMES TAYLOR, et al.

)

)

11

Plaintiffs,

)

)

12

v.

)

)

13 CITY OF OAKLAND, et al.

)

)

14

)

Defendants.

)

15 ____________________________________)

JIMMY RIDER, et al.

)

16

)

Plaintiffs,

)

17

)

v.

)

18

)

CITY OF OAKLAND, et al.

)

19

)

)

20

Defendants.

)

____________________________________)

21 DARNELL FOSTER AND CLASS

)

MEMBERS, et al.,

)

22

)

Plaintiffs,

)

23

)

v.

)

24

)

CITY OF OAKLAND, et al.

)

25

)

)

26

Defendants.

)

____________________________________)

27

No. C-04-4843 MHP ORDER RELATING CASES AND DEEMING CLAIMS MISJOINED No. C-05-3204 MHP
No. C-05-3110 MHP

28

JOINT CAPTION CONTINUED ON NEXT PAGE

Case3:05-cv-03110-SI Document112 Filed03/04/10 Page2 of 4

1 TYRONE MOORE, et al.

)

)

2

Plaintiffs,

)

)

3

v.

)

)

4 CITY OF OAKLAND, et al.

)

)

5

)

Defendants.

)

6 ____________________________________)

JEFFRIE MILLER, et al.

)

7

)

Plaintiffs,

)

8

)

v.

)

9

)

CITY OF OAKLAND, et al.

)

10

)

)

11

Defendants.

)

____________________________________)

12 TERRELL TURNER, et al.

)

)

13

Plaintiffs,

)

)

14

v.

)

)

15 CITY OF OAKLAND, et al.

)

)

16

)

Defendants.

)

17 ____________________________________)

LAWRENCE COLEY, et al.

)

18

)

Plaintiffs,

)

19

)

v.

)

20

)

CITY OF OAKLAND, et al.

)

21

)

)

22

Defendants.

)

____________________________________)

23

No. C-06-2426 MHP No. C-07-1773 MHP No. C-08-3114 MHP No. C-08-4255 MHP

24

The court has reviewed the filings in the foregoing cases referring particularly to C-08-4255

25 and C-09-5316. It appears that the latter action was related to the constellation of cases related to

26 C-04-4843 by order dated February 17, 2010, but that the earlier of the two cases was not related

27 although it had been assigned to this judge. Apparently no proposed order was submitted and no

28 //

2

Case3:05-cv-03110-SI Document112 Filed03/04/10 Page3 of 4

1 action was actually taken relating that case. Therefore, IT IS HEREBY ORDERED that C-08-

2 4255MHP is deemed related to C-04-4843MHP.

3

The court also notes in reviewing these two cases that a disturbing pattern seems to be

4 emerging. Claims are being misjoined, for in both of these cases there are individuals making

5 claims that although they may be related as to common questions of law, do not allege incidents

6 occurring on the same date or involving the same facts, persons or officers. Each of the incidents

7 complained of in these cases is separate and distinct.

8

Federal Rule of Civil Procedure 18(a) provides that “[a] party asserting a claim...may

9 join...as many claims as it has against an opposing party.” Whether claims are misjoined is

10 governed by Rule 21 which adverts to Rule 20(a)(1) when determining whether separate persons

11 may join in a single action. That rule states that such claims may be joined if “(A) they assert any

12 right to relief jointly, severally, or in the alternative with respect to or arising out of the same

13 transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or

14 fact common to all plaintiffs will arise in the action.” These two conditions are in the conjunctive.

15 Any claims failing to meet these conditions are “misjoined”. The court finds that the claims in C-

16 08-4255 and C-09-5316 are misjoined.

17

In accordance with Rule 21, the remedy may be the dropping of some of the parties from the

18 complaint or the severance of claims. The court finds that the better procedure, since these plaintiffs

19 should not all be joining in the same action, is for the court to give plaintiffs in these actions twenty

20 (20) days to drop all but one of the plaintiffs in each of these actions and file new actions as to each

21 of the dropped plaintiffs. The court will consider the dates of the original filings as being the dates

22 of filings for the new actions. In other words, the statute of limitations is deemed tolled as of the

23 date of original filing and will continue tolled until the new actions are filed, if they are filed within

24 the twenty days or, if extended by the court, within the extended time.

25 //

26 //

27 //

28 //

3

Case3:05-cv-03110-SI Document112 Filed03/04/10 Page4 of 4

1

In the future, counsel for plaintiffs are instructed that any new actions shall comply with the

2 preceding paragraphs. The court will not allow the joining of claims that do not meet the provisions

3 of Rule 20(a)(1).

4

THE FOREGOING IS SO ORDERED.

5

6 Dated: March 3, 2010 7

_________________________ MARILYN HALL PATEL United States District Court Judge

8

9

10

11

12

13

14

15

16

17

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20

21

22

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24

25

26

27

28

4

 
 Case3:05-cv-03110-SI Document141 Filed04/18/13 Page1 of 21

1 JOHN L. BURRIS (State Bar No. 69888)

BENJAMIN NISENBAUM (State Bar No. 222173)

2 LAW OFFICES OF JOHN L. BURRIS

Airport Corporate Centre

3

7677 Oakport Street, Suite 1120 Oakland, California 94621

4

Telephone: (510) 839-5200 Facsimile: (510) 839-3882

5 Attorneys for Plaintiffs

6 MICHAEL J. HADDAD (State Bar No. 189114)

JULIA SHERWIN (State Bar No. 189268)

7 GINA ALTOMARE (State Bar No. 273099)

HADDAD & SHERWIN

8 505 Seventeenth Street Oakland, California 94612

9

Telephone: (510) 452-5500 Fax: (510) 452-5510

10 Attorneys for Plaintiffs

11
UNITED STATES DISTRICT COURT 12

NORTHERN DISTRICT OF CALIFORNIA 13

14 JAMES TAYLOR, et. al.,

15 vs.

Plaintiffs,

) Related Case No. C-04-4843 SI ) ) Hon. Susan Illston )

16 CITY OF OAKLAND, et. al.,

17

Defendants,

18 AND ALL RELATED CASES

) ) )

STIPULATION AND (PROPOSED) ORDER RE:

) SETTLEMENT OF INJUNCTIVE

) RELIEF CLAIMS, WITH

) CONTINUING DISTRICT

19 JIMMY RIDER, 20 vs. Plaintiff,

) COURT JURISDICTION FOR ) ENFORCEMENT ) )

21 CITY OF OAKLAND, et. al.,

) )

22

Defendants.

) )

23 (Case No. C-05-3204 SI)

) )

24

) )

25

) )

26

) )

)

27 28

JOINT CAPTION CONTINUED ON NEXT PAGE

) )

Related Case No. C-04-4843 SI: STIPULATION AND (PROPOSED) ORDER RE: SETTLEMENT OF INJUNCTIVE RELIEF

CLAIMS, WITH CONTINUING DISTRICT COURT JURISDICTION FOR ENFORCEMENT

1

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page2 of 21

1 DARNELL FOSTER AND CLASS MEMBERS, et. )

al.,

)

2

)

3

Plaintiffs, vs.

) ) )

4

)

CITY OF OAKLAND, et al.,

)

5

)

Defendants.

)

6

)

7 (Case No. 3:05-cv-3110 SI)

) )

)

8

)

TYRONE MOORE, et al.,

)

9

)

10

Plaintiffs, vs.

) ) )

11

)

CITY OF OAKLAND, et. al.

)

12

)

Defendants,

)

13

)

14 (Case No. C-06-2426 SI)

) )

)

15 JEFFRIE MILLER, et. al.,

)

)

16

Plaintiffs,

)

17

vs.

) )

)

18 CITY OF OAKLAND, et al.,

)

)

19

Defendants.

)

)

20 (Case No. C-07-1773 SI)

)

)

21

)

WARD, et. al.,

)

22

)

Plaintiffs,

)

23

vs.

)

)

24 CITY OF OAKLAND, et al.,

) )

25

)

Defendants.

)

26

)

(Case No. C-07-4179 SI)

)

27

)

)

28 Related Case No. C-04-4843 SI: STIPULATION AND (PROPOSED) ORDER RE: SETTLEMENT OF INJUNCTIVE RELIEF

CLAIMS, WITH CONTINUING DISTRICT COURT JURISDICTION FOR ENFORCEMENT

2

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page3 of 21

1 JOINT CAPTION CONTINUED ON NEXT PAGE )

SMITH, et. al.,

)

2

)

3

vs.

Plaintiffs,

) ) )

4

)

CITY OF OAKLAND, et al.,

)

5

)

Defendants.

)

6

)

7 (Case No. C-07-6298 SI)

) )

)

8

)

TURNER, et. al.,

)

9

)

10

vs.

Plaintiffs,

) ) )

11

)

CITY OF OAKLAND, et al.,

)

12

)

Defendants.

)

13

)

14 (Case No. C-08-3114 SI)

) )

)

15 COLEY,

)

)

16

Plaintiff,

)

17

vs.

) )

)

18 CITY OF OAKLAND, et al.,

)

)

19

Defendants.

)

)

20 (Case No. C-08-4255 SI)

)

)

21

)

KOUNTZ,

)

22

)

Plaintiff,

)

23

vs.

)

)

24 CITY OF OAKLAND, et al.,

) )

25

)

Defendants.

)

26

)

(Case No. C-09-5316 SI)

)

27

)

)

28 Related Case No. C-04-4843 SI: STIPULATION AND (PROPOSED) ORDER RE: SETTLEMENT OF INJUNCTIVE RELIEF

CLAIMS, WITH CONTINUING DISTRICT COURT JURISDICTION FOR ENFORCEMENT

3

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page4 of 21

1

)

JOINT CAPTION CONTINUED ON NEXT PAGE )

2

)

3 B.M.,

) )

)

4

Plaintiff,

)

vs.

)

5

)

CITY OF OAKLAND, et al.,

)

6

)

7

Defendants.

) )

)

8 (Case No. C-11-4903 SI)

)

)

9

)

10 BROWN,

) )

)

11

Plaintiff,

)

vs.

)

12

)

CITY OF OAKLAND, et al.,

)

13

)

14

Defendants.

) )

)

15 (Case No. C-11-4904 SI)

)

)

16

)

17 JOHNSON,

) )

)

18

Plaintiff,

)

vs.

)

19

)

CITY OF OAKLAND, et al.,

)

20

)

21

Defendants.

) )

)

22 (Case No. C-11-4905 SI)

)

)

23

)

)

24

)

)

25

)

)

26

)

JOINT CAPTION CONTINUED ON NEXT PAGE )

27

)

)

28 Related Case No. C-04-4843 SI: STIPULATION AND (PROPOSED) ORDER RE: SETTLEMENT OF INJUNCTIVE RELIEF

CLAIMS, WITH CONTINUING DISTRICT COURT JURISDICTION FOR ENFORCEMENT

4

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page5 of 21

1 NOBLE,

)

)

2

Plaintiff,

)

3

vs.

) )

)

4 CITY OF OAKLAND, et al.,

)

)

5

Defendants.

)

)

6 (Case No. C-11-4906 SI)

)

)

7

)

)

8 OKOLI,

)

)

9

Plaintiff,

)

10

vs.

) )

)

11 CITY OF OAKLAND, et al.,

)

)

12

Defendants.

)

)

13 (Case No. C-11-4907 SI)

)

)

14

)

)

15 ROMERSON,

)

)

16

Plaintiff,

)

17

vs.

) )

)

18 CITY OF OAKLAND, et al.,

)

)

19

Defendants.

)

)

20 (Case No. C-11-4908 SI)

)

)

21

)

)

22 SMITH,

)

)

23

Plaintiff,

)

24

vs.

) )

)

25 CITY OF OAKLAND, et al.,

)

)

26

Defendants.

)

)

27 (Case No. C-11-4909 SI)

)

)

28 Related Case No. C-04-4843 SI: STIPULATION AND (PROPOSED) ORDER RE: SETTLEMENT OF INJUNCTIVE RELIEF

CLAIMS, WITH CONTINUING DISTRICT COURT JURISDICTION FOR ENFORCEMENT

5

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page6 of 21

1

All parties through their counsel of record in Taylor v. City of Oakland, No. C-04-4843, and

2 all related cases, hereby request that, pursuant to this Court’s Order of Conditional Dismissal

3 (Taylor, Doc. 223), this court vacate that conditional dismissal and restore this matter to the court

4 docket for the purposes set forth below. All parties herein stipulate to, and request this Court to
5
order, the following settlement of injunctive and declaratory relief claims in this matter: 6

7

1. The City of Oakland, through the Oakland Police Department (OPD), will institute,

8

promulgate, enforce, and train its officers on the new policy and training bulletin

9

concerning strip searches conducted in the field, attached as Exhibit A to this Order,

10

which will supersede and replace all prior OPD policies concerning strip searches in

11 the field, effective from the date of entry of this Order;
12 2. The City of Oakland will apprise Plaintiffs’ counsel of any proposed revisions to
13
OPD’s policy concerning strip searches in the field before finalizing and/or 14

15

instituting such revisions for the period of two years from entry of this order;

16

3. The Oakland Police Department will capture and retain (a) all complaints about strip

17

searches conducted in the field, and (b) all reports of such searches, for a period of

18

two years from entry of this order; those reports, complaints, and any investigation

19 and disposition thereof, will be reviewed by a commanding officer and forwarded to
20 Plaintiffs’ counsel semiannually (every six months) for the period of two years from
21

22

entry of this order;

23

4. This Court will maintain jurisdiction over these related actions for the limited

24

purpose of enforcing the City of Oakland’s compliance with this Stipulation and

25

Order for the period of two years from entry of this order. In the absence of any

26

further order from this Court or pending motion by any party to this agreement, these

27

28 Related Case No. C-04-4843 SI: STIPULATION AND (PROPOSED) ORDER RE: SETTLEMENT OF INJUNCTIVE RELIEF

CLAIMS, WITH CONTINUING DISTRICT COURT JURISDICTION FOR ENFORCEMENT

6

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page7 of 21

1

related matters will be fully and finally dismissed with prejudice upon the passing of

2

two years from entry of this order.

3 STIPULATED AND AGREED.
4 DATED: April 17, 2013
5

HADDAD & SHERWIN

6 7 8 DATED: April 17, 2013

By: /s/ Michael J. Haddad Attorneys for Plaintiffs
LAW OFFICES OF JOHN L. BURRIS

9
10
11 DATED: April 17, 2013
12

By: /s/ John L. Burris Attorneys for Plaintiffs
OFFICE OF THE CITY ATTORNEY

13

By: /s/ Arlene Rosen

Attorneys for Defendants

14

City of Oakland, et al.

15

16

17

ORDER

18

Pursuant to stipulation of the parties, IT IS SO ORDERED.

19 Dated: ____A__p_ri_l_1_7_,______, 2013. 20

21

22

_________________________________________ HON. SUSAN ILLSTON

23

UNITED STATES DISTRICT COURT

24

25

26

27

28 Related Case No. C-04-4843 SI: STIPULATION AND (PROPOSED) ORDER RE: SETTLEMENT OF INJUNCTIVE RELIEF

CLAIMS, WITH CONTINUING DISTRICT COURT JURISDICTION FOR ENFORCEMENT

7

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page8 of 21

OFFICE OF CH IEF OF POLICE OAKLAND POLICE DEPARTMENT
MEMORAND UM

TO: All Personnel

DATE: 02 Apr 13

SUBJECT :

Revision of Departmental Tra ining Bulletin I-O.02, LEGAL ASPECTS OF SEARCHING PERSONS (Rev. 05 Oct 10).

The subject order has been revised to update Departmental policy and procedures regarding The Legal Aspects of Searching Persons.

Provisions of this Training Bulletin have been revised to include the following Departmental publications which are hereby canceled:

• Information Bull etin 24 Ap r 06 - Searches during a detention (patdown/Frisks) ;
• Information Bulletin 23 Dec 08 -Searches during a detention ;
• Special Order 8982 - Legal standa rd to conduc t strip searches in the field (amended to reflect current language in the TB); and
• Training Bulletin I-O .04 - Legal aspects on search ing person s on parole and probation.

The Evaluation Coordinator for this order shall be the Training Section Commander, who, without further notice, shall forward the required report to the Chief of Police on or by 02 Apr 16.
The Evaluation Coordinator shall forward a copy of the six-month evaluation report , along with the comment s/recommendations received, to the Bureau of Risk Management to be maintained in the appropriate Departmental Trai ning Bulletin archive folder.
Personnel shall acknowledge receipt, review, and understanding of this directive in accordance with the provisions of DGO A-1 , DEPARTMENTAL PUBLICATIONS.
By order of

Howard A. Jordan Chief of Police

Date Signed:

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page9 of 21

TRAINING

BULLETIN

Date of Issue / Revision 02 Apr 13

Index Number: I-O.02 Alpha Index: Legal Aspects of
Searching Persons
Evaluation Coordinator: Training Section Commander Automatic Revision Cycle: 3 Years

³'HSDUWPHQW7UDLQLQJ%XOOHWLQVVKDOOEHXVHGWRDGYLVHPHPEHUVRIFXUUHQWSROLFHWHFKQLTXHVDQG procedures and shall conVWLWXWHRIILFLDOSROLF\´

THE LEGAL ASPECTS OF SEARCHING PERSONS
I. INTRODUCTION
The purpose of this Training Bulletin is to identify the circumstances under which an officer may search detainees, arrested persons, and their possessions.
The Fourth Amendment protects people against unreasonable searches and seizures. It is essential that officers understand the limitations the law imposes upon their conduct of a search. Police officers must constantly be aware of and comply with case law that describes conditions allowing searches and seizures by the government.
State and Federal courts do not support and routinely suppress evidence that result from searches that unreasonably infringe on the reasonable expectation of privacy of the person searched. Additional consequences include violations of Departmental policy and claims of civil rights violations.
The intrusiveness of a search is just one element of a search but easily the single most important in the reasonableness analysis conducted by State and Federal courts. For exampOHPRYLQJFORWKHVWRYLVXDOO\LQVSHFWXQGHUFORWKHVRU³SULYDWH SDUWV´RIDSHUVRQPD\FRQVWLWXWHDYHU\VHULRXVYHU\LQWUXVLYHJRYHUQPHQWDODFWLRQ that must be justified with articulable facts that support the reasonableness of the search.
Searches of people can be justified by a warrant, consent, exigency, or established case law decisions allowing such searches (e.g., incident to an arrest). Always assess the totality of circumstances surrounding a warrantless search and consider whether or not the search is reasonable under the circumstances. Case law regarding search and seizure can change each time a court decision is made. Officers are not expected to be able to cite court decisions but they are expected to understand what constitutes a reasonable search and seizure. When in doubt, call a supervisor to the scene.

1

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page10 of 21
Legal Aspects of Searching Persons, Index Number I-O.02
Questions regarding search and seizure can also be made to the Training Section for a referral to the appropriate subject matter expert.
II. SEARCH DEFINITIONS
A. ³)XOOERG\´VHDUFKLQFident to an arrest where the arrestee is going to be transported to the jail or the hospital) means a pat-down and thorough H[DPLQDWLRQRIWKHDUUHVWHH¶VFORWKLQJDQGFRQWDLQHUVLQKLVRUKHU possession. When multiple garments (jackets, pants, etc.) are worn, the outer garment may be removed for examination and to allow for examination of garments below the outer layer.
Example: Front pants pockets are pulled out (reversed) and examined. Back pockets are entered by reaching inside and contents are removed. Hats, gloves, and shoes are removed and examined. Waistbands are examined. If suspected evidence, weapons, or contraband is discovered during a routine full body search, a more intrusive search (strip search) is allowed for the purpose of removing the item.
B. ³6WULSVHDUFK´PHDQVDVHDUFKWKDWUHTXLUHVDSHUVRQWRUHPRYHRUDUUDQJH some or all of his or her clothing so as to permit a visual inspection of the underwear, brassiere, breasts, buttocks, or genitalia of such a person.
C. ³%RG\FDYLW\´PHDQVWKHrectal cavity of a person, and vagina of a female person. The ear canals, nostrils, and throat are not body cavities.
D. ³9LVXDOERG\FDYLW\´VHDUFKPHDQVYLVXDOLQVSHFWLRQRIDERG\FDYLW\
E. ³3K\VLFDOERG\FDYLW\´VHDUFKPHDQVSK\VLFDOLQWUXVLRQLQWRDERdy cavity for purpose of discovering any object concealed in the body cavity.
III. FUNDAMENTAL SEARCH AND SEIZURE GUIDELINES
A. $QRIILFHUPD\VHDUFKDSHUVRQDIWHUREWDLQLQJWKHSHUVRQ¶VFRQVHQW;
B. An officer may search a person incident to arrest;
C. An officer may search a person after obtaining a warrant authorizing such a search; or
D. $QRIILFHUPD\VHDUFKDSHUVRQSXUVXDQWWRWKHVXEMHFW¶VSDUROHRUSUREDWLRQ search clause.
2

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page11 of 21
02 Apr 13 2DNODQG3ROLFH'HSDUWPHQW
E. An officer may search wLWKRXWDSHUVRQ¶VFRQVHQWDQGZLWKRXWDZDUUDQW only within the limits prescribed by law for the circumstances at hand.
IV. CURSORY SEARCHES
During a detention, you have no power to conduct a general, full, exploratory search of the suspect. However, you may conduct a patdown or limited weapons search of someone you have detained, but only:
For weapons, Of the person¶s outer clothing, and If you have specific facts which make you feel in danger.
³6WDQGDUGSURFHGXUH´is not good enough. You must reasonably suspect that the person is armed or may be armed, although you do not need to be positive. The courts are quite supportive of your safety. But at the very least you need a potentially dangerous situation to justify a patdown search. Dealing with a suspected dangerous felon is by definition enough cause. However, pat searching the passenger of a vehicle stopped for a traffic infraction, with nothing more, is not justified.
Examples:
A. While on routine patrol one morning, two officers spotted a young man looking into two parked cars in an alley where many complaints of criminal activity²including vehicle tampering²had originated. As the officers drove by slowly, the suspect tried to stay out of view behind a dumpster. When they approached him and began talking to him, he became very nervous, boisterous, angry, and antagonistic²³ERUGHUOLQHFRPEDWLYH´7KH court said it was proper to pat him down (hHZDVQHDUO\¶WDOOOEV ³8QGHUVXFKFLUFXPVWDQFHVWKH\ZHUHQRWUHTXLUHGWRDZDLWDQDFWXDO assault before assuring themselves that the detainee was not armed with a OHWKDOZHDSRQ´0LFKDHO6 (1983) 141 Cal.App3d 814.)
B. An officer was justified in patting down a suspect for weapons where he and his partner were outnumbered, had a basis for believing the suspect was dealing drugs, knew that drug dealers often carry weapons, and had firsthand knowledge about the prevalence of drugs and weapons in the area. ³7KHFRQQHFWLRQEHWZHHQZHDSRQVDQGDQDUHDFDQSURYLGHIXUWKHU justification for a pat-VHDUFK´µIt is not unreasonable to assume that a dealer in narcotLFVPLJKWEHDUPHG¶ and subject to a pat-VHDUFK´/LPRQ Cal.App.4th 524, 534-535; see also §109,179 (9th Cir. 2000) 228 F.3d 1080, 1086, where the Ninth Circuit, in talking about a suspected drug
3

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page12 of 21
Legal Aspects of Searching Persons, Index Number I-O.02
GHDOHUVDLGWKDWWKHRIILFHU¶VH[SHULHQFH³SURYLded him with the knowledge that narcotics suspects are often armed and dangerous...´
V. SEARCHES INCIDENT TO AN ARREST
A. Legal Requirements
There are three requirements for a lawful search incident to an arrest:
1. The arrest must be legal.
2. The search must be contemporaneous with the arrest. As a general UXOH³FRQWHPSRUDQHRXV´PHDQVWKHVHDUFKPXVWWDNHSODFHDWWKH same general time and the same general location as the arrest. However, the courts have allowed exceptions when the time lapse between arrest and search were attributable to reasonable police necessities. During a narcotics arrest, for example, when a hostile crowd gathered, police were allowed to interrupt the search of the suspect to move to a safer location in order to protect themselves and the arrested person.
3. The arrest must be custodial. For the purpose of this Training %XOOHWLQ³FXVWRGLDO´PHDQVWKHDUUHVWHGSHUVRQZLOOEHWUDQVSRUWHG It is the custodial nature of the arrest and not the charge for which a person is arrested which justifies the search. Searches incident to an arrest are not permissible when the arrest is not custodial and will be disposed of by a mere citation.
B. Scope and Type of Search Allowed
1. Scope of Search Allowed
Generally, the scope of a search incident to an arrest is governed by the following rule: An officer may conduct a full body search of the DUUHVWHHDQGWKHDUHDZLWKLQWKHDUUHVWHH¶VLPPHGLDWHFRQWURO contemporaneous to an arrest ZLWKWKHH[FHSWLRQRIWKHDUUHVWHH¶V vehicle as defined in Arizona v. Gant7KH³DUHDRILPPHGLDWH FRQWURO´LVGHILQHGDVWKHDUHDIURPZKLFKDZHDSRQPD\EH obtained or in which evidence may be destroyed.
2. Type of Search Allowed
Incident to an arrest, officers may conduct a full body search of a person for:
4

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page13 of 21
02 Apr 13 2DNODQG3ROLFH'HSDUWPHQW
a. Instrumentalities used to commit crime;
b. Fruits of a crime;
c. Evidence;
d. Contraband; and
e. Weapons which can be used to assault arresting officers or to affect an escape.
Officers may conduct full body searches of arrestees who are going to be transported to jail. Other searches which are incident to an arrest (i.e., containers, vehicles, surrounding areas) are also permissible and are discussed in Training Bulletin I-O.1 THE LEGAL ASPECTS OF SEARCHING VEHICLES.
3. Cell Phone Searches Incident to Arrest
If a cell phone is seized during a search incident to arrest, officers may activate the device so as to reveal any stored information. As QRWHGLQ86Y2UWL]³>,@WLVLPSHUDWLYHWKDWODZHQIRUFHPHQW RIILFHUVKDYHWKHDXWKRULW\WRLPPHGLDWHO\µVHDUFK¶RUUHtrieve, incident to a valid arrest, information from a pager in order to SUHYHQWLWVGHVWUXFWLRQDVHYLGHQFH´,WLVDOVRDUJXDEle that officers may search PDAs and other types of handheld data storage devices because they are tantamount to a wallet or briefcase.
VI. SEARCHES OF PAROLEES AND PROBATIONERS
Officers shall be respectful when engaging and providing service to the community. To help eliminate negative perceptions of peace officers¶ conduct, officers are encouraged to focus on developing a rapport with community members and refrain from immediately asking if a person is on probation or parole. Such a question, especially if it is the first question asked, infers that the community member must have some sort of criminal history. Community members may view this line of questioning as disrespectful and as an assumption without merit.
5

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page14 of 21
Legal Aspects of Searching Persons, Index Number I-O.02
2IILFHUV¶SULPDU\PRWLYDWLRQWRFRQGXFWDSDUROHRUSUREDWLRQVHDUFKVKDOOVHUYHDV a legitimate law enforcement or rehabilitative interest. A parole or probation search shall not be:
Arbitrary; Capricious; or Harassing
A. Necessary Requirements
There are three requirements necessary to invoke a search clause of a parolee or probationer:
1. Knowledge of search condition: Prior to a probation or parole search, an oIILFHUPXVWEHDZDUHRIWKHSHUVRQ¶VVHDUFKFRQGLWLRQV,I the parolee advises that he/she is on parole, or a probationer advises that he/she is on probation with an appropriate search clause, officers do not need to independently verify their status prior to conducting the search.
2. Rehabilitative or law enforcement motivation: The search must be reasonably related to the purpose of WKHSHUVRQ¶V probation or parole status, making certain he/she is adhering to the appropriate legal guidelines set forth. A paUROHHRUSUREDWLRQHU¶VVWDWXVLVVDQFWLRQHG by the courts to prevent recidivism and encourage accountability. The motivation behind invoking a parole or probation search shall not be to re-incarcerate an individual. It is, rather, an accountability mechanism to prevent any future criminal behavior.
3. Scope and intensity: The search must be reasonable in its scope and intensity.
B. Verifying Status
To verify the status of a parolee or probationer, AWS, CRIMS, and CORPUS are available.
There have been numerous incidents where there is a discrepancy as to the GDWHRIWHUPLQDWLRQRIDSUREDWLRQHU¶VFRQGLWLRQVDVFDOFXODWHGDQGGLVSOD\HG in AWS, CRIMS, and CORPUS.
If an officer has no prior personal knowledge or has not been verbally advised by the parolee or probationer confirming his/her status prior to conducting a probation search of an individual and/or their property, the
6

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page15 of 21
02 Apr 13 2DNODQG3ROLFH'HSDUWPHQW
officer shall ensure there are no status inconsistencies that may later jeopardize an investigation. In these cases, the officer shall verify the status of a parolee or probationer via AWS and CRIMS. In the event that an inconsistency is discovered, an officer shall rely on CRIMS as the verifying information.
1RWH:KHQDVXEMHFW¶VSUREDWLRQLV³UHYRNHG´KHVKHLVVWLOOFRQVLGHUHGWR be on active probation. The revoked status extends the Probation Termination Date, which may indicate different termination dates in the databases.
If the parolee advises that he/she is on parole, or a probationer advises that he/she is on probation with an appropriate search clause, it is not mandatory to confirm his/her status prior to the search. Officers shall, however, always FRQILUPWKHSDUROHHSUREDWLRQHU¶VVWDWXVDIWHUWKHVHDUFKLVFRPSOHWHGDQG document the findings in his/her applicable report. This step is necessary in the event the person is not actually on parole or probation to prevent future searches based on inaccurate information from the person and to mitigate risk to the officer and the City.
After the search of the parolee/probationer is complete, officers shall document the following in an appropriate offense report and/or Field Interview Report (via FBR):
1. What led to the consensual encounter/detention of the subject;
2. How it was determined that the subject was on parole or searchable probation;
3. How parole or probation status was verified. If verified via AWS or CRIMS from an accessible computer terminal, officers shall cut and paste the information from the computer into the Field Based Reporting offense report and/or Field Interview Report. If verified via CORPUS and/or no accessible computer terminal is available to access AWS or CRIMS, officers shall document that the paroleeSUREDWLRQHU¶VVWDWXVZDVYHULILHGYLDWKHVHUYLFHFKDQQHO
VII. STRIP SEARCHES IN THE FIELD
A. PURPOSE
Field strip searches are significantly restricted by law. Officers may be subject to liability under state and federal law for constitutional violations. Under Penal Code Section 4030, officers who use, participate in, or allow
7

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page16 of 21
Legal Aspects of Searching Persons, Index Number I-O.02
other officers to conduct field strip searches without justification or in a capricious or arbitrary manner may face criminal liability.
The purpose of this policy is to:
1. Ensure compliance with legal standards applicable to field strip searches;
2. Establish policy requirements; and
3. Provide officers with guidelines for determining when and under what limited conditions the use of field strip searches are authorized by law and this policy.
B. POLICY
The Department recognizes the intrusiveness of strip searches on individual privacy and the significant legal restrictions imposed by State and Federal law. The use of strip searches may, under certain limited conditions, be necessary to protect the safety of officers and the public, and to detect and secure evidence of criminal activity. Consistent with the law, the Department discourages the use of strip searches in the field. It is the policy of the Department that strip searches in the field shall be conducted only under exigent circumstances and with the proper authority and justification. Field strip searches shall be conducted in accordance with the procedural guidelines as set forth in this policy and with due recognition and deference for the human dignity and privacy rights of those being searched.
C. DEFINITIONS
1. Strip Search
A strip search is a search which requires a person to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of such person (Penal Code 4030(c).)
2. Exigent Circumstances
Exigent circumstances are circumstances where the immediate need to perform a field strip search outweighs the need to transport the prisoner to a jail facility and perform a strip search in the facility in accordance to PC 4030.
8

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page17 of 21
02 Apr 13 2DNODQG3ROLFH'HSDUWPHQW
The following are examples of exigent circumstances that may prompt a field strip search:
a. The arrestee is making overt attempts to remove the concealed narcotics and orally ingest them. Ingestion of the narcotics can lead to choking or other medical emergency.
b. The arrestee is making overt movements to remove the concealed narcotics and destroy them.
c. The arrestee is suspected of concealing a weapon.
3. Field Strip Search
A field strip search is a strip search as discussed above which is conducted outside of a jail facility and not as part of the booking process.
D. REQUIREMENTS AND PROCEDURES
1. Field strip searches shall be conducted only on persons who are arrested, when an officer has independent probable cause to believe that the arrestee is concealing weapons or contraband, and under exigent circumstances where the life of officers or civilians may be at risk or evidence may be destroyed. The following requirements must be met:
a. Arrestee
The person on whom the strip search is conducted must be an arrestee. This also applies to probationers and parolees.
b. Probable Cause for Believing the Arrestee Is Concealing Evidence
There must be probable cause to believe that the arrestee is concealing weapons, narcotics, or contraband and the strip search will lead to the discovery of items.
c. Urgency
There must be an urgency requiring the recovery of the items in the field to safeguard officers and the public from harm, and to protect evidence from being destroyed.
9

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page18 of 21
Legal Aspects of Searching Persons, Index Number I-O.02
d. Privacy
The searching officer(s) must ensure that the arrestee is afforded sufficient privacy so that undergarments or private body parts are not exposed to other persons or uninvolved personnel.
Officers shall take all reasonable opportunities to avoid circumstances that may publicly embarrass individuals and take all reasonable steps to diminish the invasion of an LQGLYLGXDO¶VSULYDF\
The search must be conducted so that it cannot be observed by the public or personnel not participating in the search. Officers shall provide sufficient privacy to the person being search (which may include moving the arrestee to a secure and private location). Only those officers reasonably necessary for conducting a safe search shall view, assist in, or participate in the search.
e. Professional Manner
The search must be conducted in a professional manner. Searches shall be conducted respectfully, lawfully and professionally in order to maintain the integrity and values of WKH'HSDUWPHQWDVZHOODVWKHFRPPXQLW\¶VWUXVW
The officer conducting the search shall be of the same sex as the person being searched unless an exigency exists which threatens the safety of officers or the public.
The officer shall avoid having physical contact with the DUUHVWHH¶VEXWWRFNVJHQLWDOLDRUIHPDOHEUHDVWVZKLOH performing a field strip search, unless the contact is reasonably necessary to seize the evidence.
f. Limited Scope
Officers shall search only those in areas where they have cause to believe weapons or drugs are being hidden. Officers shall attempt to avoid touchinJWKHDUUHVWHH¶VSULYDWH body parts and avoid having physical contact with the SHUVRQ¶VEXWWRFNVJHQLWDOLDRUEUHDVWVIHPDOHZKLOH performing a field strip search.
10

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page19 of 21
02 Apr 13 2DNODQG3ROLFH'HSDUWPHQW
If a strip search in the field is justified, officers shall conduct only limited, reach-in type strip searches. Body cavity searches are prohibited.
g. Less Intrusive Searches
Officers shall attempt to conduct less invasive searches first before proceeding to conduct a field strip search, unless the exigent circumstances warrant use of a field strip search to protect the safety of officers or the public.
h. Obtain Supervisory Approval
Officers are required to obtain supervisory approval prior to conducting a field strip search. The only exception is if a weapon or other situation requires immediate action to protect the safety of officers or the public. The approval may be verbal. If prior approval is not possible due to exigency, officers shall inform a supervisor as soon as possible after the search.
i. Communications Notification
When a field strip search is conducted, officers shall notify the Communications Division by using disposition code FSSC (Field Strip Search Conducted).
j. Documentation
The use of field strip searches shall be documented in the appropriate report and the report shall be approved by the field supervisor. The following information shall be documented:
1) Probable cause for the underlying arrest.
2) Probable cause for believing that the arrestee is concealing a weapon, drugs or other contraband.
3) Exigency that required the immediate recovery of the items.
4) Identity of the supervisor contacted and whether prior approval was obtained or not.
11

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page20 of 21
Legal Aspects of Searching Persons, Index Number I-O.02
5) Identity of officer who conducted the strip search or witnessed it.
6) Privacy afforded and the steps taken to ensure privacy.
7) Less intrusive searches conducted or efforts made.
8) Scope and mechanics of the strip search conducted (the extent to which clothing was manipulated/readjusted, whether private body parts were exposed, the time involved, etc.).
9) Result of the search. 10) 9JGVJGTCPQHHKEGTŏU2&4&YCUCEVKXCVGFFWTKPIVJG
incident. 2. Jail Strip Search
Arrestees transported to a jail facility and booked for housing within the general jail population may be searched as authorized by PC 4030 or applicable State and Federal case law. A strip search of an arrestee in the jail facility shall be performed by the Alameda &RXQW\6KHULII¶V2IILFH3ULRUWRERRNLQJPHPEHUVQHHGWR communicate the circumstances leading to their belief that an arrestee is concealing weapons, drugs, or other contraband to Alameda County personnel.
VIII. OTHER SEARCHES
A. Use of Emetics
An emetic is a substance which induces vomiting. An emetic can be DGPLQLVWHUHGWRDVXVSHFWRQO\XSRQDSK\VLFLDQ¶VRUGHURIPHGLFDO necessity or pursuant to a search warrant. An officer cannot request or order a doctor to administer an emetic.
For example, courts have ruled that the forced ingestion of an emetic solution which caused the defendant to vomit seven balloons containing heroin vLRODWHGWKHGHIHQGDQW¶VFRQVWLWXWLRQDOULJKWV
12

Case3:05-cv-03110-SI Document141 Filed04/18/13 Page21 of 21
02 Apr 13 2DNODQG3ROLFH'HSDUWPHQW
B. Obtaining Blood Samples Reasonable force can be used to obtain a blood sample from an arrestee when obtaining a blood sample is necessary to preserve evidence. Using reasonable force to obtain a blood sample may be justified, for example, in DUI incidents that result in property damage, injury, and/or a fatality. With WKHH[FHSWLRQRI'8,¶Vall other circumstances where consent is not given, a warrant is required to obtain a blood sample. As a general rule, a sample of blood may be obtained whether or not the defendant is conscious.
13

 
 Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 1 of 14
ADRMOP,CLOSED,E−Filing,REFSET−NC,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:05−cv−03110−SI

Foster et al v. City Of Oakland et al Assigned to: Hon. Susan Illston Referred to: Magistrate Judge Nathanael M. Cousins (Settlement) Demand: $25,000 Relate Case Cases: 3:04−cv−04843−SI
3:07−cv−01773−SI
3:06−cv−02426−SI
3:05−cv−03204−SI
3:09−cv−05316−SI Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/01/2005 Date Terminated: 03/07/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Darnell Foster TERMINATED: 07/28/2010

represented by Benjamin Nisenbaum Law Offices of John L. Burris 7677 Oakport Street, Suite 1120 Oakland, CA 94621 (510) 839−5200 Fax: (510) 839−3882 Email: bnisenbaum@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John L. Burris Law Offices of John L. Burris 7677 Oakport Street, Ste 1120 Oakland, CA 94621 510−839−5200 Fax: 510−839−3882 Email: john.burris@johnburrislaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Sherwin Haddad &Sherwin 505 17th Street Oakland, CA 94612 (510) 452−5500 Fax: 510−452−5100 Email: haddad.sherwin@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Rafael Duarte

represented by Benjamin Nisenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John L. Burris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Sherwin (See above for address)

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 2 of 14

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gina N. Altomare Haddad and Sherwin 505 Seventeenth Street Oakland, CA 94612 510−452−5500 Fax: 510−452−5510 Email: gina.altomare@sbcglobal.net (Inactive) ATTORNEY TO BE NOTICED

Plaintiff YANCIE YOUNG

represented by Julia Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Haddad Haddad &Sherwin 505 17th Street Oakland, CA 94612 510−452−5500 Fax: 510−452−5510 Email: haddad.sherwin@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gina N. Altomare (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Estate of Darnell Foster

represented by Gina N. Altomare (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
City Of Oakland a municipal corporation

represented by Arlene Marcia Rosen Office of the City Attorney One Frank H. Ogawa Plaza, 6th Floor Oakland, CA 94612 510/637−0360 Email: arosen@oaklandcityattorney.org TERMINATED: 11/12/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kandis Arianne Westmore City Attorney's Office One Frank Ogawa Plaza , 6th Floor Oakland, CA 94612 510− 238−3589 Fax: 510− 238−6500 Email: kawestmore@oaklandcityattorney.org

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 3 of 14

LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Jeffrey Verber Burnham Brown 1901 Harrison Street 14th Floor Oakland, CA 94612 510 444 6800 6817 Fax: 510 835 6666 Email: jverber@burnhambrown.com ATTORNEY TO BE NOTICED

Defendant Police Chief Richard Word

Defendant
J. Festag Police Officer for the City of Oakland

represented by Aimee G. Hamoy−Perera Burnham Brown, A Professional Law Corporation 1901 Harrison Street , 14th Floor P.O. Box 119 Oakland, CA 94604 510−444−6800 Fax: 510−835−6666 Email: ahamoy−perera@burnhambrown.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arlene Marcia Rosen (See above for address) TERMINATED: 11/12/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Jeffrey Verber (See above for address) ATTORNEY TO BE NOTICED

Defendant William Bergeron #7828

represented by Arlene Marcia Rosen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/01/2005
08/01/2005
08/01/2005

# Docket Text
1 CIVIL RIGHTS COMPLAINT against defendants J. Festag, City Of Oakland, Richard Word ( Filing fee $ 250, receipt number 4411378.). Filed by plaintiffDarnell Foster, Rafael Duarte. Jury demand, summons issued.42:USC 1983 (db, COURT STAFF) (Filed on 8/1/2005) Additional attachment(s) added on 8/16/2005 (rbe, COURT STAFF). (Entered: 08/02/2005)
2 ADR SCHEDULING ORDER: Case Management Statement due by 11/28/2005. Case Management Conference set for 12/5/2005 01:30 PM.. Signed by Judge Thelton E. Henderson on 12/24/04. (db, COURT STAFF) Additional attachment(s) added on 9/8/2005 (db, COURT STAFF). Additional attachment(s) added on 9/8/2005 (db, COURT STAFF). (Entered: 08/02/2005)
CASE DESIGNATED for Electronic Filing. (db, COURT STAFF) (Filed on 8/1/2005) (Entered: 08/02/2005)

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 4 of 14

08/24/2005 09/02/2005 09/02/2005 09/22/2005
09/30/2005 09/30/2005 10/06/2005 10/07/2005 10/30/2005 11/18/2005 11/23/2005 12/28/2005 01/09/2006 01/20/2006
02/21/2006 02/22/2006

3 CERTIFICATE OF SERVICE by Darnell Foster re 1 Complaint,, 2 ADR Scheduling Order, (Burris, John) (Filed on 8/24/2005) (Entered: 08/24/2005)
4 CERTIFICATE OF SERVICE by Darnell Foster J. FESTAG (Burris, John) (Filed on 9/2/2005) (Entered: 09/02/2005)
5 CERTIFICATE OF SERVICE by Darnell Foster ; TO CITY OF OAKLAND (Burris, John) (Filed on 9/2/2005) (Entered: 09/02/2005)
6 AMENDED COMPLAINT FIRST AMENDED COMPLAINT FOR CLASS ACTION AND INDIVIDUAL RELIEF FOR INJURIES AND VIOLATION OF CIVIL RIGHTS against William Bergeron #7828, J. Festag, City Of Oakland, Richard Word. Filed byYANCIE YOUNG, Darnell Foster, Rafael Duarte. (Burris, John) (Filed on 9/22/2005) (Entered: 09/22/2005)
7 AMENDED DOCUMENT by Darnell Foster. SUMMONS AND. (Attachments: # 1)(Burris, John) (Filed on 9/30/2005) (Entered: 09/30/2005)
8 AMENDED DOCUMENT by Darnell Foster. FIRST AMENDED SUMMONS. (Attachments: # 1)(Burris, John) (Filed on 9/30/2005) (Entered: 09/30/2005)
9 ORDER RELATING CASE to C 04−4843 MHP; Case reassigned to Judge Marilyn H. Patel for all further proceedings; Signed by Judge Marilyn Hall Patel on 10/5/2005. (awb, COURT−STAFF) (Filed on 10/6/2005) (Entered: 10/06/2005)
10 CLERK'S NOTICE: Case Management Conference set for 11/21/2005 03:00 PM before the Honorable Marilyn Hall Patel; Case Management Statement due by 11/10/2005. (awb, COURT−STAFF) (Filed on 10/7/2005) (Entered: 10/07/2005)
11 NOTICE of Appearance by Michael J. Haddad for Plaintiff Yancie Young and Class Members (Haddad, Michael) (Filed on 10/30/2005) (Entered: 10/30/2005)
12 STIPULATION TO CONTINUE CASE MANAGEMENT CONFERENCE by Darnell Foster, Rafael Duarte. (Burris, John) (Filed on 11/18/2005) (Entered: 11/18/2005)
13 STIPULATION AND ORDER: Further Case Management Conference set for 1/9/2006 04:00 PM; Signed by Judge Marilyn Hall Patel on 11/22/2005. (awb, COURT−STAFF) (Filed on 11/23/2005) (Entered: 11/23/2005)
14 CLERK'S NOTICE: Status Conference reset for 1/19/2006 03:00 PM. Joint Status Report due by 1/9/2006. (awb, COURT−STAFF) (Filed on 12/28/2005) (Entered: 12/28/2005)
15 JOINT CASE MANAGEMENT STATEMENT filed by YANCIE YOUNG. (Haddad, Michael) (Filed on 1/9/2006) (Entered: 01/09/2006)
16 Minute Entry:Status Conference before the honorable Marilyn Hall Patel; (Date Filed: 1/20/2006). Related case order previously filed; Actions to be consolidated for discovery purposes; Defendant to submit declaration re organization of IA files re search parameters within 30 days; Plaintiffs to propose class representatives within thirty days; Stipulated protective order to be submitted; Briefing schedules as follows: Class Certification Motions to be filed by 3/21/2006; Oppositions to be filed by 6/26/2006; Status Conference set for 7/10/2006 at 3:00 pm, with a joint statement to be filed by 7/5/2006; Further discovery dates to be discussed at the status conference; Status Conference set for 7/10/2006 03:00 PM in Courtroom 15, 18th Floor, San Francisco. (Court Reporter Belle Ball.) (awb, COURT−STAFF) (Date Filed: 1/20/2006) (Entered: 01/20/2006)
17 MOTION to Certify Class PLAINTIFFS' PROPOSED CLASS REPRESENTATIVES filed by YANCIE YOUNG, Darnell Foster, Rafael Duarte. (Burris, John) (Filed on 2/21/2006) (Entered: 02/21/2006)
18 Answer to Amended Complaint DEFENDANTS CITY OF OAKLAND, J. FESTAG, AND W. BERGERON'S ANSWER TO FIRST AMENDED COMPLAINT byJ. Festag, William Bergeron #7828, City Of Oakland. (Rosen, Arlene) (Filed on 2/22/2006) (Entered: 02/22/2006)

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 5 of 14

03/06/2006 03/15/2006 03/20/2006
03/20/2006
03/23/2006 03/24/2006 05/07/2006 06/30/2006 07/06/2006 07/12/2006 08/01/2006
08/04/2006 08/29/2006 12/04/2006 12/04/2006
12/04/2006

Summons Issued as to Richard Word. (First Amended Summons) (gba, COURT STAFF) (Filed on 3/6/2006) (Entered: 03/10/2006)
19 SUMMONS Returned Executed by Darnell Foster, Rafael Duarte. Richard Word served on 3/10/2006, answer due 3/30/2006. (Burris, John) (Filed on 3/15/2006) (Entered: 03/15/2006)
20 *** FILED IN ERROR. PLEASE SEE DOCKET # 21 . *** MOTION to Certify Class filed by Darnell Foster, Rafael Duarte. Motion Hearing set for 4/24/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Burris, John) (Filed on 3/20/2006) Modified on 3/21/2006 (ewn, COURT STAFF). (Entered: 03/20/2006)
21 CORRECTED MOTION to Certify Class CORRECTION OF DOCKET #(20) filed by Darnell Foster, Rafael Duarte. Motion Hearing set for 4/24/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Attachments: # 1 Exhibit A# 2 Proposed Order)(Burris, John) (Filed on 3/20/2006) Modified on 3/21/2006 (gba, COURT STAFF). (Entered: 03/20/2006)
22 Declaration of Ben Nisenbaum in Support of 21 MOTION to Certify Class CORRECTION OD DOCKET #(20) filed byYANCIE YOUNG, Darnell Foster, Rafael Duarte. (Attachments: # 1 Exhibit A)(Related document(s) 21 ) (Burris, John) (Filed on 3/23/2006) (Entered: 03/23/2006)
23 NOTICE by Darnell Foster, Rafael Duarte NOTICE TO VACATE HEARING DATE (Burris, John) (Filed on 3/24/2006) (Entered: 03/24/2006)
24 NOTICE by YANCIE YOUNG of Unavailability of Counsel for Any Purpose from May 8−24, 2006 (Haddad, Michael) (Filed on 5/7/2006) (Entered: 05/07/2006)
25 MOTION to Related Case NOTICE AND ADMINISTRATIVE MOTION TO DETERMINE WHETHER CASES SHOULD BE RELATED filed by Darnell Foster, Rafael Duarte. (Burris, John) (Filed on 6/30/2006) (Entered: 06/30/2006)
26 STIPULATION AND ORDER: Status Conference reset for 7/31/2006 03:00 PM in Courtroom 15, 18th Floor, San Francisco; Signed by Judge Marilyn Hall Patel on 7/5/2006. (awb, COURT−STAFF) (Filed on 7/6/2006) (Entered: 07/06/2006)
27 ORDER by Judge Marilyn Hall Patel granting 25 Motion to Relate Case C 06−2426 MJJ to this action. (awb, COURT−STAFF) (Filed on 7/12/2006) (Entered: 07/12/2006)
28 Minute Entry: Status Conference before the Hon. Marilyn Hall Patel; Outstanding discovery discussed; Stipulated protective order to be filed within the week; Depositions of plaintiffs to be completed by end of Oct/2006; Amended motion(s) for class cert to be filed by 12/4/2006, with hearing 2:00 pm on 1/22/2007; (Date Filed: 8/1/2006).(Court Reporter Sahar McVicker.) (awb, COURT−STAFF) (Date Filed: 8/1/2006) (Entered: 08/01/2006)
29 Proposed Order STIPULATED PROTECTIVE ORDER by City Of Oakland. (Rosen, Arlene) (Filed on 8/4/2006) (Entered: 08/04/2006)
30 STIPULATED PROTECTIVE ORDER; Signed by Judge Marilyn Hall Patel on 8/28/2006. (Attachments: # 1)(awb, COURT−STAFF) (Filed on 8/29/2006) (Entered: 08/29/2006)
31 Declaration of Michael J. Haddad In Support of Plaintiffs' Amended Motion for Class Certification filed byYANCIE YOUNG. (Haddad, Michael) (Filed on 12/4/2006) (Entered: 12/04/2006)
32 MOTION to Certify Class PLAINTIFFS' AMENDED NOTICE, MOTION, AND MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION filed by Darnell Foster, Rafael Duarte. Motion Hearing set for 1/22/2007 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Burris, John) (Filed on 12/4/2006) (Entered: 12/04/2006)
33 Declaration of JOHN L. BURRIS in Support of 32 MOTION to Certify Class PLAINTIFFS' AMENDED NOTICE, MOTION, AND MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION filed byYANCIE

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 6 of 14

12/05/2006 12/29/2006 12/29/2006 01/02/2007 01/02/2007 01/08/2007 01/08/2007
01/24/2007
01/29/2007 02/14/2007 03/05/2007
03/05/2007 04/02/2007 04/04/2007

YOUNG, Darnell Foster, Rafael Duarte. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Related document(s) 32 ) (Burris, John) (Filed on 12/4/2006) (Entered: 12/04/2006)
34 Proposed Order re 32 MOTION to Certify Class PLAINTIFFS' AMENDED NOTICE, MOTION, AND MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION by YANCIE YOUNG, Darnell Foster, Rafael Duarte. (Burris, John) (Filed on 12/5/2006) (Entered: 12/05/2006)
35 AFFIDAVIT in Opposition TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION filed byJ. Festag, William Bergeron #7828, City Of Oakland, Richard Word. (Westmore, Kandis) (Filed on 12/29/2006) (Entered: 12/29/2006)
36 DECLARATION of ARLENE M. ROSEN IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION filed byJ. Festag, William Bergeron #7828, City Of Oakland, Richard Word. (Westmore, Kandis) (Filed on 12/29/2006) (Entered: 12/29/2006)
37 Letter from Arlene M. Rosen dated January 2, 2007. (Westmore, Kandis) (Filed on 1/2/2007) (Entered: 01/02/2007)
38 MEMORANDUM in Opposition to Plaintiffs' Motion for Class Certification (Amended) filed byJ. Festag, William Bergeron #7828, City Of Oakland, Richard Word. (Westmore, Kandis) (Filed on 1/2/2007) (Entered: 01/02/2007)
39 Reply to Opposition re 32 MOTION to Certify Class PLAINTIFFS' AMENDED NOTICE, MOTION, AND MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION filed byYANCIE YOUNG. (Haddad, Michael) (Filed on 1/8/2007) (Entered: 01/08/2007)
40 Declaration of Michael J. Haddad in Support of 39 Reply to Opposition (Supplemental Haddad Decl.) filed byYANCIE YOUNG. (Attachments: # 1 Exhibit A, Young Deposition Excerpts# 2 Exhibit B, Rider Complaint# 3 Exhibit C, Taylor First Amended Complaint)(Related document(s) 39 ) (Haddad, Michael) (Filed on 1/8/2007) (Entered: 01/08/2007)
41 Minute Entry: Motion Hearing held on 1/22/2007 before Judge Marilyn Hall Patel (Date Filed: 1/24/2007). Motion for Class Certification denied without prejudice. Case Management Statement due by 2/26/2007. Case Management Conference set for 3/5/2007 03:00 PM. (Court Reporter Leo Mankiewicz.) (epb, COURT STAFF) (Date Filed: 1/24/2007) (Entered: 01/24/2007)
42 ORDER by Judge Marilyn Hall Patel denying 32 Motion to Certify Class. Signed by Judge Marilyn Hall Patel 1/27/07. (epb, COURT STAFF) (Filed on 1/29/2007) (Entered: 01/29/2007)
43 ADR Clerks Notice re: Non−Compliance with Court Order. (tjs, COURT STAFF) (Filed on 2/14/2007) (Entered: 02/14/2007)
44 Minute Entry: Status Conference before the Honorable Marilyn Hall Patel; (Date Filed: 3/5/2007) (Date Filed: 3/5/2007); Briefing schedules as follows: Motions to be filed by 5/29/2007; Responses due by 6/18/2007; Replies due by 6/25/2007; Motion Hearing set for 7/9/2007 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Court Reporter Juanita Gonzales.) (awb, COURT−STAFF) (Date Filed: 3/5/2007) (Entered: 03/05/2007)
Set/Reset Hearings: Status Conference set for 8/6/2007 03:00 PM in Courtroom 15, 18th Floor, San Francisco before Hon. Marilyn H. Patel. (awb, COURT−STAFF) (Filed on 3/5/2007) (Entered: 03/05/2007)
45 MOTION to Related Case Notice and Administrative Motion to Determine Whether Cases Should Be Related (Civil L.R. 3−12) filed by YANCIE YOUNG, Darnell Foster, Rafael Duarte. (Burris, John) (Filed on 4/2/2007) (Entered: 04/02/2007)
Cases associated. (gba, COURT STAFF) (Filed on 4/4/2007) (Entered: 04/04/2007)

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 7 of 14

04/17/2007 04/19/2007 05/29/2007 05/29/2007 05/30/2007
06/18/2007 06/18/2007 06/18/2007
06/21/2007 06/21/2007 06/28/2007 06/28/2007

46 ORDER RELATING CASES C 04−4843 MHP, C 05−3110 MHP, C 05−3204 MHP, C 06−2426 MHP, and C 07−1773 EDL; Signed by Judge Marilyn Hall Patel on 4/13/2007. (awb, COURT−STAFF) (Filed on 4/17/2007) (Entered: 04/17/2007)
47 CLERK'S NOTICE: Further Case Management Conference set for 7/2/2007 03:00 PM before the Honorable Marilyn Hall Patel; Case Management Statement due by 6/22/2007. (awb, COURT−STAFF) (Filed on 4/19/2007) (Entered: 04/19/2007)
48 MOTION for Partial Summary Judgment Plaintiffs' Notice, Motion, And Memorandum Of Law In Support Of Motion For Partial Summary Judgment filed by YANCIE YOUNG, Darnell Foster, Rafael Duarte. Motion Hearing set for 7/9/2007 02:00 PM. (Attachments: # 1 Proposed Order)(Burris, John) (Filed on 5/29/2007) (Entered: 05/29/2007)
49 Declaration of JOHN J. RYAN in Support of 48 MOTION for Partial Summary Judgment Plaintiffs' Notice, Motion, And Memorandum Of Law In Support Of Motion For Partial Summary Judgment filed byDarnell Foster. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 48 ) (Burris, John) (Filed on 5/29/2007) (Entered: 05/29/2007)
50 Declaration of Benjamin Nisenbaum in Support of 48 MOTION for Partial Summary Judgment Plaintiffs' Notice, Motion, And Memorandum Of Law In Support Of Motion For Partial Summary Judgment filed byDarnell Foster. (Attachments: # 1 Exhibit A Deposition of Richard Word# 2 Exhibit EXH B Deposition of Jeffrey Israel pgs 1−49# 3 Exhibit EXH B Deposition of Jeffrey Israel pgs 50−102# 4 Exhibit EXH B Deposition of Jeffrey Israel Exhibits 1 and 2# 5 Exhibit EXH B Deposition of Jeffrey Israel Exhibit 3# 6 Exhibit EXH B Deposition of Jeffrey Israel Exhibits 4 and 5)(Related document(s) 48 ) (Burris, John) (Filed on 5/30/2007) (Entered: 05/30/2007)
51 Memorandum in Opposition DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT filed byCity of Oakland. (Westmore, Kandis) (Filed on 6/18/2007) (Entered: 06/18/2007)
52 Letter Brief re (50 in 3:04−cv−04843−MHP) Memorandum in Opposition STATEMENT OF GENUINE ISSUES IN OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT filed byCity of Oakland. (Westmore, Kandis) (Filed on 6/18/2007) (Entered: 06/18/2007)
53 EXHIBITS re (51 in 3:04−cv−04843−MHP) Letter Brief, (50 in 3:04−cv−04843−MHP) Memorandum in Opposition DEFENDANTS' SUPPORTING EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT; INDEX OF EXHIBITS filed byCity of Oakland. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit A# 13 Exhibit B)(Westmore, Kandis) (Filed on 6/18/2007) (Entered: 06/18/2007)
54 Letter Brief LETTER TO JUDGE MARILYN HALL PATEL IN RESPONSE TO THE DECLARATION OF MICHAEL J. HADDAD FILED ON JUNE 19, 2007 filed byCity of Oakland. (Westmore, Kandis) (Filed on 6/21/2007) (Entered: 06/21/2007)
55 Declaration of ARLENE M. ROSEN IN SUPPORT OF 51 OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT filed by City of Oakland. (Westmore, Kandis) (Filed on 6/21/2007) Modified on 6/22/2007 (gba, COURT STAFF). (Entered: 06/21/2007)
56 CLERK'S NOTICE: Further Case Management Conference reset for 7/9/2007 02:00 PM. (awb, COURT−STAFF) (Filed on 6/28/2007) (Entered: 06/28/2007)
57 Request for Judicial Notice IN SUPPORT OF 51 DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT filed by City of Oakland. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Westmore, Kandis) (Filed on 6/28/2007) Modified on 6/29/2007 (gba, COURT STAFF). (Entered: 06/28/2007)

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 8 of 14

06/29/2007 06/29/2007 06/29/2007
06/29/2007
07/10/2007 03/19/2008 03/27/2008
05/06/2008 06/06/2008 06/11/2008
09/09/2008 09/09/2008

Set Deadlines/Hearings: Further Case Management Conference set for 7/9/2007 02:00 PM. (gba, COURT STAFF) (Filed on 6/29/2007) (Entered: 06/29/2007)
58 MOTION for Partial Summary Judgment and Memorandum of Law In Support (erroneously filed in related case No. C−05−3110 MHP) filed by James Taylor. Motion Hearing set for 7/9/2007 02:00 PM. (Attachments: # 1 Proposed Order)(Burris, John) (Filed on 6/29/2007) Modified on 7/3/2007 (gba, COURT STAFF). (Entered: 06/29/2007)
59 Declaration of John J. Ryan in Support of (63 in 3:04−cv−04843−MHP) MOTION for Partial Summary Judgment and Memorandum of Law In Support (erroneously filed in related case No. C−05−3110 MHP) MOTION for Partial Summary Judgment and Memorandum of Law In Support (erroneously filed in related case No. C−05−3110 MHP) filed by James Taylor. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Supplement C)(Burris, John) (Filed on 6/29/2007) Modified on 7/3/2007 (gba, COURT STAFF). (Entered: 06/29/2007)
60 Declaration of Benjamin Nisenbaum in Support of (63 in 3:04−cv−04843−MHP) MOTION for Partial Summary Judgment and Memorandum of Law In Support (erroneously filed in related case No. C−05−3110 MHP) MOTION for Partial Summary Judgment and Memorandum of Law In Support (erroneously filed in related case No. C−05−3110 MHP) filed byJames Taylor. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit B pages 50−102# 4 Exhibit B Attachments 1 and 2# 5 Exhibit B Attachment 3−1# 6 Exhibit B Attachment 3−2# 7 Exhibit C with Exhibits A−D# 8 Exhibit C with Exhibits E−G)(Burris, John) (Filed on 6/29/2007) Modified on 7/3/2007 (gba, COURT STAFF). (Entered: 06/29/2007)
61 Minute Entry: Motion Hearing held on 7/9/2007 before Hon. Marilyn Hall Patel (Date Filed: 7/10/2007) re plaintiffs' motion for partial summary judgment (Court Reporter Sahar McVicker.) (awb, COURT−STAFF) (Date Filed: 7/10/2007) (Entered: 07/10/2007)
62 ORDER RELATING CASE C 07−6298 JCS to C 04−4843 MHP; Signed by Judge Marilyn Hall Patel on 3/18/2008. (awb, COURT−STAFF) (Filed on 3/19/2008) (Entered: 03/19/2008)
63 OPINION by Judge Marilyn Hall Patel: The court GRANTS IN PART plaintiffs motion for partial summary judgment with respect to the request for declaratory relief that the 1998 and 2004 OPD policies are unconstitutional in certain respects, and DENIES the motion for summary judgment on liability and declaratory relief on the individual searches at issue; The parties shall arrange a case management conference with the court to discuss the remedies necessary to comply with this order and for further proceedings in this and the other related cases. (awb, COURT−STAFF) (Filed on 3/27/2008) (Entered: 03/27/2008)
64 Minute Entry: Status Conference held on 5/5/2008 before the Hon. Marilyn Hall Patel (Date Filed: 5/6/2008 (Court Reporter Jim Yeomans.) (awb, COURT−STAFF) (Date Filed: 5/6/2008) (Entered: 05/06/2008)
65 JOINT CASE MANAGEMENT STATEMENT filed by YANCIE YOUNG, Darnell Foster, Rafael Duarte. (Attachments: # 1 Chart of Actions, # 2 Map of Locations)(Burris, John) (Filed on 6/6/2008) (Entered: 06/06/2008)
66 Minute Entry: Status Conference held on 6/11/2008 before the Hon. Marilyn Hall Patel; (Date Filed: 6/11/2008); Class cert motions to be filed by 9/15/2008; Responses due by 10/15/2008; Replies due by 11/15/2008; Motion Hearing set for 12/1/2008 02:00 PM; Final Pretrial Conference set for 2/19/2009 02:30 PM; Jury Trial set for 3/3/2009 08:30 AM;(Court Reporter Lydia Zinn.) (Attachments: # 1 Supplement) (awb, COURT−STAFF) (Date Filed: 6/11/2008) (Entered: 06/13/2008)
67 RENEWED MOTION to Certify Class filed by YANCIE YOUNG, Darnell Foster, Rafael Duarte. Motion Hearing set for 12/1/2008 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Sherwin, Julia) (Filed on 9/9/2008) Modified on 10/16/2008 (gba, COURT STAFF). (Entered: 09/09/2008)
68 Declaration of Julia Sherwin in Support of 67 MOTION to Certify Class PLAINTIFFS' RENEWED MOTION FOR CLASS CERTIFICATION filed

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 9 of 14

10/15/2008 10/15/2008 10/16/2008 11/14/2008 11/17/2008 11/17/2008 11/17/2008
11/17/2008 11/25/2008 12/09/2008 12/17/2008 01/12/2009

byYANCIE YOUNG, Darnell Foster, Rafael Duarte. (Attachments: # 1 Exhibit A, Chart of Plaintiffs, # 2 Exhibit B, Sample Class Notice &Claim Forms, # 3 Exhibit C, Bynum Class Cert Order, # 4 Exhibit D, Fallehy Deposition, # 5 Exhibit E, CJSC Statistics, # 6 Exhibit F, Word Deposition, # 7 Exhibit G, Oakland Police Monitors' Report, # 8 Exhibit H, OPD 1998 Strip Search Policy, # 9 Exhibit I, OPD 2004 Strip Search Policy)(Related document(s) 67 ) (Sherwin, Julia) (Filed on 9/9/2008) (Entered: 09/09/2008)
69 Memorandum of Points and Authorities in Opposition to 67 PLAINTIFFS RENEWED MOTION FOR CLASS CERTIFICATION filed by City Of Oakland. (Westmore, Kandis) (Filed on 10/15/2008) Modified on 10/16/2008 (gba, COURT STAFF). (Entered: 10/15/2008)
70 DECLARATION of ARLENE ROSEN IN SUPPORT OF 69 DEFENDANTS' OPPOSITION TO PLAINTIFFS' RENEWED MOTION FOR CLASS CERTIFICATION filed by City Of Oakland. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Rosen, Arlene) (Filed on 10/15/2008) Modified on 10/16/2008 (gba, COURT STAFF). (Entered: 10/15/2008)
71 CERTIFICATE OF SERVICE by City Of Oakland re 70 Declaration in Opposition, 69 Memorandum in Opposition (Westmore, Kandis) (Filed on 10/16/2008) (Entered: 10/16/2008)
72 STIPULATION AND ORDER EXTENDING FACT AND EXPERT DISCOVERY CUT−OFFS: Fact discovery extended to 1/6/2009; Expert designation by 1/13/2009; Signed by Judge Marilyn Hall Patel on 11/14/2008. (awb, COURT−STAFF) (Filed on 11/14/2008) (Entered: 11/14/2008)
73 Reply to Opposition re 67 MOTION to Certify Class PLAINTIFFS' RENEWED MOTION filed byYANCIE YOUNG, Darnell Foster, Rafael Duarte. (Sherwin, Julia) (Filed on 11/17/2008) (Entered: 11/17/2008)
74 Proposed Order (PROPOSED) ORDER DENYING PLAINTIFFS RENEWED MOTION FOR CLASS CERTIFICATION by City Of Oakland. (Westmore, Kandis) (Filed on 11/17/2008) (Entered: 11/17/2008)
75 Declaration of Julia Sherwin [SUPPLEMENTAL DECLARATION] in Support of 73 Reply to Opposition, 67 MOTION to Certify Class PLAINTIFFS' RENEWED MOTION filed byYANCIE YOUNG, Darnell Foster, Rafael Duarte. (Attachments: # 1 Exhibit A, Testimony of Shirley Poe CDC East Bay District Administrator, # 2 Exhibit B, CDC 2007 Report Re: Parolees, # 3 Exhibit C−1, OPD 2007 1st Watch Report, # 4 Exhibit C−2, OPD 2007 2nd Watch Report, # 5 Exhibit C−3, OPD 2007 3rd Watch Report, # 6 Exhibit D, San Francisco Chronicle re: OPD Racial Profiling, # 7 Exhibit E, Counsel Correspondence)(Related document(s) 73 , 67 ) (Sherwin, Julia) (Filed on 11/17/2008) (Entered: 11/17/2008)
76 Proposed Order re 67 MOTION to Certify Class PLAINTIFFS' RENEWED MOTION FOR CLASS CERTIFICATION, (PROPOSED) ORDER GRANTING by YANCIE YOUNG, Darnell Foster, Rafael Duarte. (Sherwin, Julia) (Filed on 11/17/2008) (Entered: 11/17/2008)
77 CLERKS NOTICE: Hearing on plaintiffs' motion (renewed) for class certification reset from 12/1/2008 to 12/8/2008 02:00 PM in Courtroom 15, 18th Floor, San Francisco before the Hon. Marilyn Hall Patel (awb, COURT−STAFF) (Filed on 11/25/2008) (Entered: 11/25/2008)
78 Minute Entry: Motion Hearing held on 12/8/2008 before Hon. Marilyn Hall Patel (Date Filed: 12/9/2008) re (67 in 3:05−cv−03110−MHP) MOTION to Certify Class; CASE REFERRED to a Magistrate Judge for Settlement Conference, to be completed within the next 60 days; (Court Reporter Connie Kuhl.) (awb, COURT−STAFF) (Date Filed: 12/9/2008) (Entered: 12/09/2008)
CASE REFERRED to Magistrate Judge James Larson for Settlement (cmw, COURT STAFF) (Filed on 12/17/2008) (Entered: 12/17/2008)
80 Minute Entry: A conference was held in the case. (Date Filed: 1/12/2009). () (jlsec, COURT STAFF) (Date Filed: 1/12/2009) (Entered: 01/14/2009)

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 10 of 14

01/13/2009 01/20/2009 03/18/2009 06/03/2009 06/10/2009 06/17/2009 07/17/2009 07/23/2009 07/23/2009 07/23/2009
07/28/2009 08/26/2009 09/04/2009 09/04/2009 09/21/2009

79 MEMORANDUM AND ORDER by Judge Marilyn Hall Patel denying (67) Motion to Certify Class in case 3:05−cv−03110−MHP (awb, COURT−STAFF) (Filed on 1/13/2009) (Entered: 01/13/2009)
81 STIPULATION AND ORDER CONTINUING PRETRIAL AND TRIAL DATES: Jury Trial reset for 6/30/2009 08:30 AM; Pretrial Conference set for 6/17/2009 02:30 PM; Signed by Judge Marilyn Hall Patel on 1/16/2009. (awb, COURT−STAFF) (Filed on 1/20/2009) (Entered: 01/20/2009)
82 Minute Entry: A Further Settlement Conference was held on 3/18/09. Parties are negotiating. (Date Filed: 3/18/2009). (Court Reporter n/a.) (jlsec, COURT STAFF) (Date Filed: 3/18/2009) (Entered: 03/19/2009)
83 Order Setting Settlement Conference before Magistrate Judge James Larson. Further Settlement Conference set for 6/10/2009 02:00 PM. Signed by Judge James Larson on 6/3/09. (jlsec, COURT STAFF) (Filed on 6/3/2009) (Entered: 06/03/2009)
84 Minute Entry: A Further Settlement Conference was held on 6/10/09. The parties continue to negotiate. (Date Filed: 6/10/2009). (Court Reporter n/a.) (jlsec, COURT STAFF) (Date Filed: 6/10/2009) (Entered: 06/17/2009)
85 Minute Entry: A Further Telephone Settlement Conference was held on 6/17/09. The parties continue to negotiate. (Date Filed: 6/17/2009). (Court Reporter n/a.) (jlsec, COURT STAFF) (Date Filed: 6/17/2009) (Entered: 06/17/2009)
86 CLERKS NOTICE: Further Status Conference set for 10/26/2009 03:00 PM before the Hon. Marilyn Hall Patel; Joint Case Management Statement due by 10/16/2009; Jury Trial reset for 2/9/2010 08:30 AM in Courtroom 15, 18th Floor, San Francisco. (awb, COURT STAFF) (Filed on 7/17/2009) (Entered: 07/17/2009)
87 MOTION for Partial Summary Judgment on Behalf of Plaintiff Yancie Young filed by YANCIE YOUNG. Motion Hearing set for 8/31/2009 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Haddad, Michael) (Filed on 7/23/2009) (Entered: 07/23/2009)
88 Proposed Order re 87 MOTION for Partial Summary Judgment on Behalf of Plaintiff Yancie Young by YANCIE YOUNG. (Haddad, Michael) (Filed on 7/23/2009) (Entered: 07/23/2009)
89 Declaration of Michael J. Haddad in Support of 87 MOTION for Partial Summary Judgment on Behalf of Plaintiff Yancie Young filed byYANCIE YOUNG. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Related document(s) 87 ) (Haddad, Michael) (Filed on 7/23/2009) (Entered: 07/23/2009)
90 Minute Entry: A further telephone conference was held on 7/28/09. (Date Filed: 7/28/2009). (Court Reporter n/a.) (jlsec, COURT STAFF) (Date Filed: 7/28/2009) (Entered: 08/10/2009)
91 STIPULATION AND ORDER RESETTING Hearing on Motion (101 in 3:04−cv−04843−MHP)(87 in 3:05−cv−03110−MHP) MOTION for Partial Summary Judgment to 9/21/2009 02:00 PM; Signed by Judge Marilyn Hall Patel on 8/26/2009. (awb, COURT STAFF) (Filed on 8/26/2009) (Entered: 08/26/2009)
92 Reply Memorandum re 87 MOTION for Partial Summary Judgment on Behalf of Plaintiff Yancie Young filed byYANCIE YOUNG. (Haddad, Michael) (Filed on 9/4/2009) (Entered: 09/04/2009)
93 OBJECTIONS to re 87 MOTION for Partial Summary Judgment on Behalf of Plaintiff Yancie Young (Plaintiff Yancie Young's Objections to Defendant's Evidence) by YANCIE YOUNG. (Haddad, Michael) (Filed on 9/4/2009) (Entered: 09/04/2009)
94 Minute Entry: Motion Hearing held on 9/21/2009 before Hon. Marilyn Hall Patel (Date Filed: 9/21/2009) re (87 in 3:05−cv−03110−MHP) MOTION for Partial Summary Judgment on Behalf of Plaintiff Yancie Young filed by YANCIE YOUNG, (101 in 3:04−cv−04843−MHP) MOTION for Partial Summary Judgment on Behalf of Plaintiff Yancie Young filed by Jimmy Rider: ( Status Conference

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 11 of 14

10/26/2009
11/10/2009 11/12/2009
12/07/2009
12/14/2009
01/05/2010 01/06/2010 01/06/2010 01/06/2010 01/14/2010 01/14/2010 01/14/2010
01/29/2010
02/02/2010 02/17/2010 02/18/2010

confirmed for 10/26/2009 03:00 PM in Courtroom 15, 18th Floor, San Francisco)(Court Reporter Margo Garule.) (awb, COURT STAFF) (Date Filed: 9/21/2009) (Entered: 09/22/2009)
95 Minute Entry: Status Conference held on 10/26/09 before the Hon. Marilyn Hall Patel (Date Filed: 10/26/2009); Pretrial Conference set for 1/27/2010 02:30 PM in Courtroom 15, 18th Floor, San Francisco. (Court Reporter Jim Yeomans.) (awb, COURT STAFF) (Date Filed: 10/26/2009) (Entered: 10/27/2009)
96 NOTICE of Substitution of Counsel by John Jeffrey Verber for Defendant Sean Festag (Verber, John) (Filed on 11/10/2009) (Entered: 11/10/2009)
97 ORDER of SUBSTITUTION OF COUNSEL: Attorney John Jeffrey Verber for City Of Oakland added for defendants City of Oakland, Sean Festag; Attorney Arlene Marcia Rosen terminated; Signed by Judge Marilyn Hall Patel on 11/12/2009. (awb, COURT STAFF) (Filed on 11/12/2009) (Entered: 11/12/2009)
98 Minute Entry: Motion Hearing held on 12/7/2009 before Hon. Marilyn Hall Patel (Date Filed: 12/7/2009) re MOTION for New Trial NOTICE OF MOTION AND MOTION FOR SEPARATE TRIALS filed by City of Oakland. (Court Reporter Sahar McVickara.) (awb, COURT STAFF) (Date Filed: 12/7/2009) (Entered: 12/07/2009)
99 MEMORANDUM &ORDER Re: Plaintiff Young's Motion for Partial Summary Judgment by Judge Marilyn Hall Patel in case 3:06−cv−02426−MHP; granting in part and denying in part (101) Motion for Partial Summary Judgment in case 3:04−cv−04843−MHP; granting in part and denying in part (87) Motion for Partial Summary Judgment in case 3:05−cv−03110−MHP, C07−4179 MHP and C08−4255 MHP. (ls, COURT STAFF) (Filed on 12/14/2009) (Entered: 12/15/2009)
100 ORDER OF CLARIFICATION re Appeal 09−74059; Signed by Judge Marilyn Hall Patel on 1/4/2010. (awb, COURT STAFF) (Filed on 1/5/2010) (Entered: 01/05/2010)
101 USCA Number 09−74059 for a writ of mandamus (gba, COURT STAFF) (Filed on 1/6/2010) (Entered: 01/06/2010)
102 USCA Order (gba, COURT STAFF) (Filed on 1/6/2010) (Entered: 01/06/2010)
103 Letter from Defendant Sean Festag to Hon. Marilyn Hall Patel. (Verber, John) (Filed on 1/6/2010) (Entered: 01/06/2010)
104 EQUIPMENT ORDER; Signed by Judge Marilyn Hall Patel on 1/13/2010. (awb, COURT STAFF) (Filed on 1/14/2010) (Entered: 01/14/2010)
105 USCA ORDER (gba, COURT STAFF) (Filed on 1/14/2010) (Entered: 01/14/2010)
106 Minute Entry: Status Conference held on 1/14/2010 before the Hon. Marilyn Hall Patel (Date Filed: 1/14/2010); Pretrial Conference continued to 2/4/2010 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Court Reporter Christine Triska.) (awb, COURT STAFF) (Date Filed: 1/14/2010) (Entered: 01/15/2010)
107 ORDER granting re (145 in 3:04−cv−04843−MHP) Stipulation To Continue Pretrial Conference filed by City of Oakland Pretrial Conference set for 2/18/2010 02:30 PM in Courtroom 15, 18th Floor, San Francisco.. Signed by Judge Marilyn Hall Patel on 1/28/10. (fj, COURT STAFF) (Filed on 1/29/2010) (Entered: 01/29/2010)
Set/Reset Hearings: Jury Trial set for 3/2/2010 08:30 AM in Courtroom 15, 18th Floor, San Francisco. (gba, COURT STAFF) (Filed on 2/2/2010) (Entered: 02/02/2010)
108 ORDER RELATING C 09−5316 JCS TO THIS ACTION AND PREVIOUSLY RELATED ACTIONS by Judge Marilyn Hall Patel (awb, COURT STAFF) (Filed on 2/17/2010) (Entered: 02/17/2010)
109 Minute Entry: Interim Pretrial Conference held on 2/18/2010 before the Hon. Marilyn Hall Patel; (Date Filed: 2/18/2010) Final Pretrial Conference set for

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 12 of 14

02/22/2010 02/24/2010 03/04/2010 03/04/2010 03/10/2010 03/25/2010
03/29/2010 04/21/2010
06/28/2010 06/28/2010 07/28/2010 07/28/2010 07/29/2010

2/24/2010 03:00 PM in Courtroom 15, 18th Floor, San Francisco. Jury Trial RESET for 3/9/2010 08:30 AM in Courtroom 15, 18th Floor, San Francisco. (Court Reporter Lydia Zinn.) (awb, COURT STAFF) (Date Filed: 2/18/2010) (Entered: 02/19/2010)
110 NOTICE of Change In Counsel by Aimee G. Hamoy−Perera Notice of Change of Handling Attorney (Hamoy−Perera, Aimee) (Filed on 2/22/2010) (Entered: 02/22/2010)
111 Minute Entry: Interim Pretrial Conference held on 2/24/2010 before the Hon. Marilyn Hall Patel (Date Filed: 2/24/2010); Bench Trial set for 3/9/2010 09:00 AM in Courtroom 15, 18th Floor, San Francisco. (Court Reporter Lydia Zinn.) (awb, COURT STAFF) (Date Filed: 2/24/2010) (Entered: 02/24/2010)
112 ORDER RELATING CASES AND DEEMING CLAIMS MISJOINED; Plaintiffs are granted twenty days to drop misjoined plaintiffs in actions addressed in order; Signed by Judge Marilyn Hall Patel on 3/3/2010. (awb, COURT STAFF) (Filed on 3/4/2010) (Entered: 03/04/2010)
113 Letter from Arlene M. Rosen. (Rosen, Arlene) (Filed on 3/4/2010) (Entered: 03/04/2010)
114 ORDER for and WRIT OF TESTIFICANDUM as to Mark Engram to be produced for testimony for the dates from 3/17/2010 thru 3/19/2010; Signed by Judge Marilyn Hall Patel on 3/10/2010. (awb, COURT STAFF) (Filed on 3/10/2010) (Entered: 03/10/2010)
115 Transcript of Proceedings held on 03/12/2010, before Judge Marilyn Hall Patel. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 6/23/2010. (Zinn, Lydia) (Filed on 3/25/2010) (Entered: 03/25/2010)
116 Statement Noting A Party's Death by Darnell Foster. (Burris, John) (Filed on 3/29/2010) (Entered: 03/29/2010)
117 STIPULATION AND ORDER AMENDING SUBMISSIONS DEADLINE; Deadline for submitting Memoranda of findings of fact and law continued to 4/26/2010; Further hearing re Bench Trial continued to 4/30/2010 09:30 AM in Courtroom 15, 18th Floor, San Francisco; Signed by Judge Marilyn Hall Patel on 4/21/2010. (awb, COURT STAFF) (Filed on 4/21/2010) (Entered: 04/21/2010)
118 MOTION to Substitute Party PLAINTIFFS NOTICE OF MOTION AND MOTION TO SUBSTITUTE DARNELL FOSTERS ESTATE filed by Darnell Foster. Motion Hearing set for 8/2/2010 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Burris, John) (Filed on 6/28/2010) (Entered: 06/28/2010)
119 Request for Judicial Notice IN SUPPORT OF 118 PLAINTIFFS MOTION TO SUBSTITUTE DARNELL FOSTERS ESTATE filed by Darnell Foster. (Attachments: # 1 Exhibit A)(Burris, John) (Filed on 6/28/2010) Modified on 6/30/2010 (gba, COURT STAFF). (Entered: 06/28/2010)
120 Proposed Order re 118 MOTION to Substitute Party PLAINTIFFS NOTICE OF MOTION AND MOTION TO SUBSTITUTE DARNELL FOSTERS ESTATE by Darnell Foster. (Burris, John) (Filed on 7/28/2010) (Entered: 07/28/2010)
121 ORDER by Judge Marilyn Hall Patel granting 118 Motion to Substitute Party Estate of Darnell Foster for plaintiff Darnell Foster (awb, COURT STAFF) (Filed on 7/28/2010) (Entered: 07/28/2010)
***Deadlines terminated. Release of Transcript Restriction date of 06/23/2010 Date Terminated 115 Transcript. (gba, COURT STAFF) (Filed on 7/29/2010) (Entered: 07/29/2010)

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 13 of 14

06/01/2011
06/02/2011 10/21/2011 12/01/2011 12/29/2011 01/23/2012 01/24/2012 01/24/2012 01/26/2012 01/30/2012
01/30/2012
02/09/2012 03/20/2012

Magistrate Judge James Larson no longer assigned to case. Due to Magistrate Judge James Larson's retirement, this case is re−referred to Magistrate Judge Nathanael M. Cousins for settlement. All matters scheduled before, and deadlines set by, Judge Larson are hereby vacated. All future settlement matters should be addressed to Judge Cousins unless otherwise ordered by the presiding judge. Until Judge Cousins takes the bench on July 5, 2011, any urgent settlement issues requiring immediate judicial attention should be addressed to Acting Chief Magistrate Judge Joseph C. Spero by contacting his courtroom deputy, Karen Hom, at (415) 522−2035. (aaa, COURT STAFF) (Filed on 6/1/2011) (Entered: 06/01/2011)
***Deadlines terminated*** Bench Trial date of 04/30/2010 Date Terminated 117 Stipulation and Order, Set Deadlines/Hearings. (gba, COURT STAFF) (Filed on 6/2/2011) (Entered: 06/02/2011)
122 NOTICE of Appearance by Gina N Altomare (Altomare, Gina) (Filed on 10/21/2011) (Entered: 10/21/2011)
Case reassigned to Hon. Susan Illston. Hon. Marilyn H. Patel no longer assigned to the case. (ha, COURT STAFF) (Filed on 12/1/2011) (Entered: 12/01/2011)
123 CLERKS NOTICE Initial Case Management Conference set for 2/17/2012 02:30 PM in Courtroom 10, 19th Floor, San Francisco. THIS IS A TEXT ONLY DOCKET ENTRY, THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE(tfS, COURT STAFF) (Filed on 12/29/2011) (Entered: 12/29/2011)
124 CLERKS NOTICE A telephone Conference has been set for 1/25/2012 04:45 PM before Hon. Susan Illston. Counsel shall initiate this conference call and may obtain the Judge's number by contacting the clerk. This is a text docket entry only and there is no document associated with this notice. (tf, COURT STAFF) (Filed on 1/23/2012) (Entered: 01/23/2012)
125 ORDER granting extension of time to file motion for fees. Signed by Judge Illston on 1/19/12. THIS IS A TEXT DOCKET ENTRY ONLY, THERE IS NO DOCUMENT ASSOCIATED WITH THIS ORDER. (tf, COURT STAFF) (Filed on 1/24/2012) Modified on 1/24/2012 (tf, COURT STAFF). (Entered: 01/24/2012)
126 CLERKS NOTICE Further Case Management Conference set for 2/1/2012 04:00 PM. text docket entry only, there is no document associated with this notice(tf, COURT STAFF) (Filed on 1/24/2012) (Entered: 01/24/2012)
127 CASE MANAGEMENT STATEMENT filed by J. Festag. (Hamoy−Perera, Aimee) (Filed on 1/26/2012) (Entered: 01/26/2012)
128 CLERKS NOTICE VACATING THE 2/1/12 CASE MANAGEMENT CONFERENCE. THE 2/17/12 INITIAL CASE MANAGEMENT CONFERENCE REMAINS ON CALENDAR AS PREVIOUSLY SCHEDULED. THIS IS A TEXT DOCKET ENTRY ONLY, THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE. (tf, COURT STAFF) (Filed on 1/30/2012) (Entered: 01/30/2012)
129 ORDER in case 3:06−cv−02426−SI; granting (15) Motion ; granting (20) Stipulation in case 3:11−cv−04906−SI; granting (14) Motion ; granting (19) Stipulation in case 3:11−cv−04907−SI; granting (11) Motion ; granting (16) Stipulation in case 3:11−cv−04908−SI; granting (16) Motion ; granting (21) Stipulation in case 3:11−cv−04903−SI; granting (15) Motion ; granting (20) Stipulation in case 3:11−cv−04905−SI; granting (13) Motion ; granting (18) Stipulation in case 3:11−cv−04909−SI; granting (17) Motion ; granting (22) Stipulation in case 3:11−cv−04904−SI signed by Judge Illston on 1/30/12. This is a text docket entry only, there is no document associated with this order. (tf, COURT STAFF) (Filed on 1/30/2012) (Entered: 01/30/2012)
130 ORDER in case 3:06−cv−02426−SI; granting (209) Stipulation in case 3:04−cv−04843−SI signed by SI on 2/8/12(tf, COURT STAFF) (Filed on 2/9/2012) (Entered: 02/09/2012)
131 ORDER Initial Case Management Conference set for 6/15/2012 02:30 PM in Courtroom 10, 19th Floor, San Francisco.. Signed by Judge Illston on 3/20/12. (tfS,

Case: 3:05-cv-03110-SI As of: 03/21/2014 05:46 PM PDT 14 of 14

06/20/2012 11/06/2012
12/17/2012 12/18/2012 12/21/2012 02/04/2013 02/06/2013 03/07/2013
03/07/2013 04/11/2013 04/18/2013

COURT STAFF) (Filed on 3/20/2012) (Entered: 03/20/2012)
132 Minute Entry: Further Case Management Conference held on 6/15/2012 before Susan Illston (Date Filed: 6/20/2012). Further Case Management Conference set for 11/2/2012 03:00 PM in Courtroom 10, 19th Floor, San Francisco. () (tfS, COURT STAFF) (Date Filed: 6/20/2012) (Entered: 06/20/2012)
133 Minute Entry: Further Case Management Conference held on 11/2/2012 before Susan Illston (Date Filed: 11/6/2012). Further Case Management Conference set for 12/17/2012 04:00 PM in Courtroom 10, 19th Floor, San Francisco. The settlement will be presented to the City Council on 11/13/12 for approval. Counsel shall notify the Court of the Councils decision.(Court Reporter n/a.) (tfS, COURT STAFF) (Date Filed: 11/6/2012) (Entered: 11/06/2012)
134 Minute Entry: Further Case Management Conference held on 12/17/2012 before Judge Susan Illston, CASE REFERRED to Magistrate Judge Nathanael Cousins for Settlement Conference. (not reported.) (tmi, COURT STAFF) (Date Filed: 12/17/2012) (Entered: 12/17/2012)
CASE REFERRED to Magistrate Judge Nathanael M. Cousins for Settlement. (rmm2S, COURT STAFF) (Filed on 12/18/2012) (Entered: 12/18/2012)
135 NOTICE OF SETTLEMENT CONFERENCE AND ORDER − Settlement Conference set for 2/8/2013 09:30 AM in Courtroom A, 15th Floor, San Francisco. Signed by Judge Nathanael Cousins on 12/21/12. (Attachments: # 1 Standing Order)(lmh, COURT STAFF) (Filed on 12/21/2012) (Entered: 12/21/2012)
136 ORDER re: continuation of settlement conference and motion filing deadline.. Signed by Judge Susan Illston on 2/4/13. (tfS, COURT STAFF) (Filed on 2/4/2013) (Entered: 02/04/2013)
137 NOTICE AND ORDER CONTINUING Settlement Conference to 3/8/2013 10:30 AM in Courtroom A, 15th Floor, San Francisco. Signed by Judge Nathanael Cousins on 2/6/13. (lmh, COURT STAFF) (Filed on 2/6/2013) (Entered: 02/06/2013)
138 ORDER of Dismissal upon Settlement with prejudice. Within 120 days from the date hereof, that settlement has not in fact occurred, the foregoing order shallbe vacated and this cause shall forthwith be restored to the calendar for further proceedings. Signed by Judge Susan Illston on 3/6/13. (ysS, COURT STAFF) (Filed on 3/7/2013) (Entered: 03/07/2013)
139 ORDER CONTINUING Settlement Conference to 4/19/2013 01:30 PM in Courtroom A, 15th Floor, San Francisco. Signed by Judge Nathanael Cousins on 3/7/13. (lmh, COURT STAFF) (Filed on 3/7/2013) (Entered: 03/07/2013)
140 CLERKS NOTICE VACATING the Further Settlement Conference scheduled for 4/19/2013 before Magistrate Judge Cousins. This is a text−only entry. There is no document associated with this notice. (lmh, COURT STAFF) (Filed on 4/11/2013) (Entered: 04/11/2013)
141 ORDER by Judge Susan Illston in case 3:06−cv−02426−SI; granting (226) Stipulation in case 3:04−cv−04843−SI ORDER RE: SETTLEMENT OF INJUNCTIVE RELIEF CLAIMS, WITH CONTINUING DISTRICT COURT JURISDICTION FOR ENFORCEMENT (FILED IN ALL RELATED CASES) (tfS, COURT STAFF) (Filed on 4/18/2013) (Entered: 04/18/2013)