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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

ROBERT T. BROWN,

NO. CIV. S-04-2008 FCD PAN

Plaintiff,

v. MEMORANDUM AND ORDER

COUNTY OF SAN JOAQUIN, SHERIFF

BAXTER DUNN, DEPUTY RICHARD

DUNSLING, DEPUTY SEMILLO,

DEPUTY MENDEZ, LT. MENDOZA,

DOES I through X, inclusive,

Defendants.

----oo0oo----

This matter is before the court on the County of San

Joaquin’s (“County”), Sheriff Baxter Dunn’s (“Dunn”), Deputy

Richard Dunsing’s (“Dunsing”), Deputy Semillo’s (“Semillo”),

Deputy Mendez’s (“Mendez”), and Lt. Mendoza’s (“Mendoza”) motion

for summary judgment or, in the alternative, summary adjudication

of the issues. Plaintiff Richard T. Brown (“Brown”) opposes the

motion. On April 21, 2006, the court heard oral argument on the 

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1 Unless otherwise noted, the facts herein are

undisputed. (See Pl.’s Opp’n to Def.’s Stmt. of Undisp. Facts

(“UF”), filed Apr. 10, 2006).

2

matter. For the reasons set forth below, defendants’ motion is

GRANTED in part and DENIED in part. 

BACKGROUND1

In the fall of 2003, the administration of the Stanislaus

River Parks (“the administration”) was experiencing problems with

men hanging around the restrooms and trails of the McHenry Avenue

Recreation Area (“McHenry Avenue Park”) for the purposes of

engaging in or soliciting sexual behavior in areas of the park

reasonably accessible to the public. (UF ¶ 1). The Stanislaus

River Parks are operated by the United States Army Corps of

Engineers. (Id.) However, during the relevant time period, the

U.S. Army Corps did not provide law enforcement services to the

McHenry Avenue Park, but had a contract with the County of San

Joaquin’s Sheriff’s Department whereby the Corps paid the

Sheriff’s Department for performing normal law enforcement patrol

and any requested special operations. (UF ¶ 3).

Employees at the McHenry Avenue Park received complaints

from park staff, members of the public, visitors to the park, and

volunteer park hosts of public displays of sexual activity

between men at or near the restroom in the park. (Decl. of

Norman Winchester in Supp. of Mot. for Summ. J. (“Winchester

Decl.”), attached as Ex. 2 to Decl. of Daniel C. Cederborg in

Supp. of Mot. for Summ. J. (“Cederborg Decl.”), filed Mar. 21,

2006, ¶ 4; Decl. of James Hill in Supp. of Mot. for Summ. J.

(“Hill Decl.”), attached as Ex. 3 to Cederborg Decl., ¶ 3). One

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3

park employee personally observed men engaged in sexual activity

with each other in areas of the park accessible to the public. 

(Hill Decl. ¶ 4). In September 2003, the administration

requested that the Sheriff’s Department increase its presence in

the McHenry Avenue park to reduce the incidence of sexual

activity in public places and further requested an undercover

operation to discourage men from engaging in lewd or sexual

activity in public in the park. (Winchester Decl. ¶ 6). 

Defendant Dunsing was assigned to organize the undercover

operation. (UF ¶ 5). Defendants Dunsing, Semillo, and Mendex

were conducting an undercover operation at the McHenry Avenue

Park on October 8, 2003. (UF ¶ 6).

On October 8, 2003 at approximately 2:00 p.m., plaintiff

drove to the McHenry Avenue Park and parked near one of the

restroom facilities. (UF ¶ 7). Plaintiff got out of his

vehicle, but did not immediately walk into the restroom. 

Plaintiff contends that he was smoking a cigarette, and because a

sign on the restroom door read “no smoking,” he finished his

cigarette before entering the restroom. (Dep. of Robert T.

Brown, Jr. (“Brown Dep.”), attached as Ex. 1 to Cederborg Decl.,

76:7-77:7).

Plaintiff entered the restroom, followed shortly thereafter

by defendant Dunsing, dressed in plain clothes. (UF ¶ 10). 

Dunsing observed plaintiff standing at the urinal with his penis

in his hand. (Id.) Dunsing spent several minutes in the

restroom, walked back and forth behind plaintiff twice, and left

and reentered the restroom at least once. (UF ¶ 11). During the

entire time Dunsing was in the restroom, he saw plaintiff

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standing at the urinal with his penis in his hand. (UF ¶ 12). 

At no time, did plaintiff urinate while in the restroom. (Brown

Dep. 103:12-15). Defendant Dunsing contends that he believed

plaintiff was masturbating. (Decl. of Richard Dunsing in Supp.

of Mot. for Summ. J. (“Dunsing Decl.”), attached as Ex. 5 to

Cederborg Decl., ¶¶ 7-10). Plaintiff contends that he was not

masturbating, but that he could not urinate because he was

uncomfortable. (Brown Dep. 92:4-7; 103:15-17). When plaintiff

exited the restroom, he was arrested by defendant Dunsin without

incident on charges of lewd conduct and indecent exposure. (UF ¶

14).

On September 27, 2004, plaintiff filed this action, seeking

declaratory and injunctive relief and damages pursuant to 42

U.S.C. §§ 1983, 1985, and 1988, 18 U.S.C. § 1961 et seq., the

First, Fourth, and Fourteenth Amendments to the United States

Constitution, the corresponding provisions of the California

Constitution, California Civil Codes §§ 51, 51.5, 52, 52.1, and

common law. The parties have stipulated to the dismissal of the

following claims with prejudice: (1) all class action

allegations; (2) all claims asserted against Sheriff Baxter Dunn,

Sheriff’s Deputy Mendex, and Sheriff’s Deputy Semillo; (3)

plaintiff’s § 1983 claim based upon First Amendment Free Speech

against all defendants; (4) plaintiff’s claims for conspiracy

under federal civil rights statutes against all defendants; and

(5) plaintiff’s claims for violations of Unruh and Tome Bane

Civil Rights Act against all defendants. (Stipulation and Order

Dismissing Certain Claims and Parties, filed May 3, 2006). On

March 21, 2006, defendants filed a motion for summary judgment,

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or in the alternative, summary adjudication, of the remaining

claims. 

STANDARD

Summary judgment is appropriate when it is demonstrated that

there exists no genuine issue as to any material fact, and that

the moving party is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970).

Under summary judgment practice, the moving party

always bears the initial responsibility of informing

the district court of the basis of its motion, and

identifying those portions of "the pleadings,

depositions, answers to interrogatories, and admissions

on file together with the affidavits, if any," which it

believes demonstrate the absence of a genuine issue of

material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the

nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be made

in reliance solely on the ‘pleadings, depositions, answers to

interrogatories, and admissions on file.’” Id. at 324. Indeed,

summary judgment should be entered against a party who fails to

make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party

will bear the burden of proof at trial. Id. at 322. In such a

circumstance, summary judgment should be granted, “so long as

whatever is before the district court demonstrates that the

standard for entry of summary judgment, as set forth in Rule

56(c), is satisfied.” Id. at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

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genuine issue as to any material fact actually does exist. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.

253, 288-289 (1968). In attempting to establish the existence of

this factual dispute, the opposing party may not rely upon the

denials of its pleadings, but is required to tender evidence of

specific facts in the form of affidavits, and/or admissible

discovery material, in support of its contention that the dispute

exists. Fed. R. Civ. P. 56(e). The opposing party must

demonstrate that the fact in contention is material, i.e., a fact

that might affect the outcome of the suit under the governing

law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986),

and that the dispute is genuine, i.e., the evidence is such that 

a reasonable jury could return a verdict for the nonmoving party,

Id. at 251-52.

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue

of fact conclusively in its favor. It is sufficient that “the

claimed factual dispute be shown to require a jury or judge to

resolve the parties’ differing versions of the truth at trial.” 

First Nat’l Bank, 391 U.S. at 289. Thus, the “purpose of summary

judgment is to ‘pierce the pleadings and to assess the proof in

order to see whether there is a genuine need for trial.’” 

Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory

committee’s note on 1963 amendments).

In resolving the summary judgment motion, the court examines

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

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56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir.

1982). The evidence of the opposing party is to be believed, and

all reasonable inferences that may be drawn from the facts placed

before the court must be drawn in favor of the opposing party. 

Anderson, 477 U.S. at 255. Nevertheless, inferences are not

drawn out of the air, and it is the opposing party’s obligation

to produce a factual predicate from which the inference may be

drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224,

1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

“must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as a

whole could not lead a rational trier of fact to find for the

nonmoving party, there is no ‘genuine issue for trial.’” 

Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356.

ANALYSIS

A. Section 1983 Claims

Plaintiff brings claims against defendants pursuant to 42

U.S.C. § 1983. Plaintiff asserts that the defendants Dunsing and

Mendoza acted under color of law to deprive him of his Fourth

Amendment constitutionally protected right to be free from

unreasonable search and seizure. Plaintiff also asserts that

defendants Dunsing and Mendoza deprived him of his rights to

Equal Protection under the law by using decoys to target

male/male public sex, and not male/female or female/female public

sex. Plaintiff also asserts that the County is liable for

maintaining a policy, practice, or custom that violated his civil

rights. Defendants move for summary judgment on the ground that

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the claims fail as a matter of law and that the defendant

officers are entitled to qualified immunity.

1. Unreasonable Search and Seizure

Plaintiff asserts that defendants Dunsing and Mendoza

violated his Fourth Amendment rights because they did not have

probable cause to arrest him. Defendants contend that there was

probable cause to arrest plaintiff.

Plaintiff was arrested for engaging in lewd or dissolute

conduct in a public place in violation of California Penal Code §

647(a) and indecent exposure in violation of California Penal

Code § 314(1). Plaintiff asserts that defendants Dunsing and

Mendoza did not have probable cause to arrest him. “Probable

cause exists when, under the totality of the circumstances known

to the arresting officers (or within the knowledge of the other

officers at the scene), a prudent person would believe the

suspect had committed a crime.” Dubner v. City and County of San

Francisco, 266 F.3d 959, 966 (9th Cir. 2001) (citing United

States v. Garza, 980 F.2d 546, 550 (9th Cir. 1992). “In

evaluating a custodial arrest executed by state officials,

federal courts must determine the reasonableness of the arrest in

reference to state law governing the arrest.” Pierce v.

Multnomah County, 76 F.3d 1032, 1938 (9th Cir. 1996) (internal

quotations omitted). California law requires that the court look

to the totality of the circumstances known by the officer to

decide whether the officer’s determination of probable cause was

reasonable. See People v. Guajardo, 23 Cal. App. 4th 1738

(1994); Agar v. Superior Court, 21 Cal. App. 3d 24, 29 (1971). 

///// 

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a. California Penal Code § 647(a)

California Penal Code § 647(a) provides that it is a

misdemeanor to “solicit[] anyone to engage in or [to] engage[] in

lewd or dissolute conduct in any public place or in any place

open to the public or exposed to public view.” Cal. Penal Code §

647(a) (West 2006). The California Supreme Court has examined

this section under a challenge of its validity on the grounds of

vagueness. Pryor v. Municipal Court, 25 Cal. 3d 238 (1979). The

court found that the section as construed by prior decisions

rendered the section unconstitutionally vague, creating “the

danger that police, prosecutors, judges, and juries will lack

sufficient standards to reach their decisions, [and] opening the

door to arbitrary or discriminatory enforcement of the law.” Id.

at 252. The court found that the danger of discriminatory

enforcement was particularly important in that case because of

studies revealing that the overwhelming majority of 647(a)

arrests in the area involved male homosexuals. Id. For the same

reasons, the concern with the danger of discriminatory

enforcement is present in this case as well. However, in order

to uphold the statute, the California Supreme Court adopted a

limited and specific construction consistent with the function of

§ 647(a). Id. at 244. As such, the court held that the section

prohibits 

only the solicitation or commission of conduct in a

public place or one open to the public or exposed to

public view, which involved that touching of the

genitals, buttocks, or female breast, for purposes of

sexual arousal, gratification, annoyance or offense, by

a person who knows or should know of the presence of

persons who may be offended by the conduct.

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Id. Therefore, subsection (a) prohibits only the solicitation or

commission of sexual touching done with specific intent when

persons may be offended by the act. Id. at 257; see also People

v. Superior Court (Caswell), 46 Cal. 3d 381 (1988) (holding that

“[a] person is subject to arrest under [§ 647(d)] only if his or

her conduct gives rise to probable cause to believe that he or

she is loitering in or about a public restroom with the

proscribed illicit intent”). “[T]he state has little interest in

prohibiting that conduct if there are no persons present who may

be offended.” Id. at 256. The requirement that an individual

knows or should know of the presence of a person who may be

offended has two parts: (1) a factual question whether the

individual knew or should have known of the other person’s

presence; and (2) a factual question whether the individual knew

or should have known that the observer may be offended by such

conduct. People v. Rylaarsdam, 130 Cal. App. 3d Supp. 1, 9

(1983). The focus of the inquiry is the state of mind of the

individual. Id.

Defendants present evidence that the McHenry Avenue Park,

including the restroom used by plaintiff, was known as a public

meeting place for men wishing to engage in sexual activity. 

(Winchester Decl. ¶ 5; Hill Decl. ¶ 4). Defendants also present

evidence that, based upon his observation of plaintiff standing

outside the restroom as well as his observation of plaintiff’s

mannerisms in the urinal, defendant Dunsing believed that

plaintiff was masturbating. (Dunsing Decl. ¶ 7). Irrespective

of whether plaintiff was or was not masturbating, this evidence

may be sufficient to give rise to probable cause that plaintiff

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2 Defendants also present undisputed evidence that

plaintiff knew of defendant Dunsing’s presence in the restroom. 

(UF ¶¶ 10-12).

11

engaged in an act of sexual arousal for the purposes of sexual

arousal or gratification.2 

Defendants however do not present evidence that establish

that they had probable cause to believe that plaintiff knew or

should have known that any alleged masturbation would have been

offensive to defendant Dunsing. See Caswell 46 Cal. 3d at 395-96

(listing several examples of circumstances giving rise to

probable cause of intent in § 647(d), a similarly phrased

statute). The undisputed evidence reveals that defendant Dunsing

spent several minutes in the restroom, walked back and forth

behind plaintiff twice, and left and reentered the restroom at

least once. (UF ¶ 11). Plaintiff provides evidence that he saw

defendant Dunsing staring at him. (Brown Dep. 77:15-17). 

Plaintiff also testified that Dunsing twice asked him if he was

okay while standing at the urinal. (Brown Dep. 77:18-25). This

evidence creates a factual issue of whether there was probable

cause to believe that plaintiff knew or should have known that

any alleged masturbation would be offensive to Dunsing. Given

the lack of determinative evidence proffered by defendants, as

well as plaintiff’s evidence regarding the circumstances of the

incident, there is certainly a triable issue of fact regarding

whether defendants had probable cause to believe that plaintiff

knew or should have known that any masturbatory conduct would be

offensive to defendant Dunsing. 

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b. California Penal Code § 314(1)

California Penal Code § 314(1) provides that “every person

who willfully and lewdly . . . exposes his person, or the private

parts thereof, in any public place, or in any place where there

are present other persons to be offended or annoyed thereby . . .

is guilty of a misdemeanor.” Cal. Pen. Code § 314(1) (West

2006). The requirement of lewd intent in § 314 means that the

conduct must be sexually motivated. In re Smith, 7 Cal. 3d 362,

366 (1972); In re Dallas, 85 Cal. App. 4th 937 (2001). As such,

the individual must not have intended only to expose himself, but

also “to direct public attention to his genitals for the purposes

of sexual arousal, gratification, or affront.” Id.

Again, defendants present evidence that Dunsing believed

that he observed plaintiff masturbating in the urinal. (Dunsing

Decl. ¶ 7). Plaintiff presents evidence that he was not

masturbating in the urinal, but that he simply could not urinate

because he was made uncomfortable, presumably by Dunsing’s

lingering presence and conduct. (Brown Dep. 92:4-7; 103:15-17). 

Based upon this conflicting evidence, there is a triable issue of

fact regarding whether Dunsing’s belief that plaintiff was

masturbating was reasonable in the totality of the circumstances. 

Further, for the reasons discussed in relation to the probable

cause determination under § 647(a), there is certainly a triable

issue of fact regarding whether defendants had probable cause to

believe that plaintiff knew or should have known that Dunsing

would be offended or annoyed by any alleged sexual touching. 

Thus, based upon the foregoing analysis, there are triable

issues of fact regarding whether defendant officers had probable

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cause to arrest Brown. Therefore, defendants’ motion for summary

judgment regarding plaintiff’s claims against defendants Dunsing

and Mendoza based upon unreasonable search and seizure in

violation of the Fourth Amendment is DENIED.

2. Equal Protection

Plaintiff contends that his right to equal protection under

the law was violated based upon the fact that defendants targeted

of “men who are interested in non-monetary, intimate association

with other men” by use of decoys, while the San Joaquin Sheriff’s

Department never used decoys to target male/female public sex. 

Plaintiff argues that defendants’ specific targeting of male/male

public sex constitutes selective prosecution in violation of the

Fourteenth Amendment and his arrest was as a result of this

alleged intentional invidious discrimination. Defendants contend

that the undercover operation at McHenry Avenue Park was not a

violation of equal protection, but was based upon specific

complaints about male/male sexual acts occurring in the park.

“Selectivity in the enforcement of criminal laws is subject

to constitutional constraints.” Wayte v. United States, 470 U.S.

598, 608 (1985) (quoting United States v. Batchelder, 442 U.S.

114, 125 (1979)). The enforcement of criminal laws cannot be

based upon “an unjustifiable standard such as race, religion, or

other arbitrary classification.” Id. (quoting Bordenkircher v.

Hayes, 434 U.S. 357, 364 (1978)). Selective prosecution claims

are evaluated according to ordinary equal protection standards;

the plaintiff must show that a passive enforcement system “had a

discriminatory effect and that it was motivated by a

discriminatory purpose.” Id. An invidious discriminatory

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3 The California Supreme Court’s opinion in Baluyut is

informative on the standard for establishing selective

enforcement in the context of arrests pursuant to § 647(a). In

Baluyut, the court held that defendants arrested for violations

of § 647(a) by undercover decoy law enforcement personnel need

not show “intent to punish” to establish a defense of

discriminatory prosecution. 

14

purpose is one “that is arbitrary and thus unjustified because it

bears no rational relationship to legitimate law enforcement

interests.” Baluyut v. Superior Court,

3 12 Cal. 4th 826, 830-31

(1996). However, “[a] showing of discriminatory intent is not

necessary when the equal protection claim is based on an overtly

discriminatory classification.” Wayte, 470 U.S. at 608 n.10

(citing Strauder v. West Virginia, 100 U.S. 303 (1880)). 

The Central District of California recently addressed this

issue under similar factual circumstances in the unpublished

opinion of Hope v. City of Long Beach, CV 04-4249 (C.D. Cal. Aug.

16, 2005). In Hope, the plaintiff class argued that the City of

Long Beach and the Long Beach Police Department engaged in

impermissible selective prosecution by targeting male/male sexual

conduct with decoys, specifically in the Junipero Bathroom. The

court found that the plaintiff class was subject to different

treatment under the law if the police target only male/male

sexual conduct with decoys without targeting male/female and

female/female conduct. Hope at 13 (citing Baluyut v. Superior

Court, 12 Cal. 4th at 830-31). The court also held that because

the Long Beach police department’s policy was “designed to

ensnare only those individuals interested in engaging in illegal

homosexual acts while allowing those interested in engaging in

illegal heterosexual acts to proceed unfettered,” plaintiff class

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4 The police reports indicate that there were nine (9)

lewd conduct reports for male/male conduct as a result of a decoy

operation, but no such reports for male/female or female/female

conduct. (Reports at 2). The reports also indicate that there

were two (2) lewd conduct reports for male/male conduct that were

not a result of a decoy operation, eight (8) reports for

male/female conduct that were not a result of a decoy operation,

and no such reports for female/female conduct. Id. 

15

had created a triable issue of fact the classification is overtly

discriminatory, negating the need to make a showing of

discriminatory intent or motive. Id. at 14-15 (citing Lawrence

v. Texas, 539 U.S. 558, 565 (2003)). Finally, the court held

that defendants’ argument that the police department was not

targeting a specific class of people, but responding to citizens’

complaints did not render summary judgment appropriate, but

merely created another triable issue of fact regarding

plaintiffs’ selective enforcement claims. Id. at 15.

In this case, it is undisputed that between 2001 and 2003,

the San Joaquin County Sheriff’s Department conducted four to

five undercover decoy operations, focusing upon male/male conduct

in county parks. (UF ¶ 15). Plaintiff produces evidence that in

spite of eight incident reports involving male/female lewd

conduct over a two year period, the Sheriff’s Department never

conducted a lewd conduct sting operation in the Park targeting

male/female lewd conduct and that no arrests were made as a

result of decoy operations focused upon male/female conduct

during that same two year period. (Dunsing Decl. ¶ 4; Stipulated

Categorization of Sheriff’s Reports Regarding Mot. for Summ. J.

(“Reports”), filed June 2, 2006, at 2).4 Further, plaintiff

presents evidence that when the Sheriff’s Department would

conduct sting operations using female decoys posing as

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prostitutes, if an individual tried to solicit sex for free, that

individual would be told to take a walk. (Dep. of Larry Mendoza,

attached as Ex. C to Nickerson Decl., 41:2-20). The decoy

operation would not target lewd conduct in violation of § 647(a). 

This evidence demonstrates that the use of undercover decoy

operations is designed to ensnare only those individuals

interested in engaging in illegal homosexual acts. The evidence

presented by plaintiff indicates a singling out of this group,

and creates a triable issue of fact that the classification is

overtly discriminatory. As such, plaintiff does not need to make

a showing of discriminatory intent or motive. See Hope at 15. 

However, even if plaintiff were required to present evidence

of discriminatory purpose by defendants, plaintiff has done so. 

As set forth above, plaintiff presents evidence that the San

Joaquin Sheriff’s Department only targets male/male sexual

conduct with undercover decoy operations involving § 647(a) and

that no arrests were made based upon undercover decoy operations

targeting male/female sexual conduct involving § 647(a). 

Further, the undercover operation in this case was initiated for

the specific purpose of targeting male/male conduct that violated

§ 647(a). As such, plaintiff has pointed to evidence that

creates a triable issue that the failure to proceed only against

male/male violators and not male/female violators was

intentional, and not “simple laxity of enforcement or

nonarbitrary selective enforcement.” Cf. Oyler v. Boyles, 368

U.S. 448, 456 (1962) (finding no equal protection violation where

the allegations set out no more than a failure to prosecute based

upon lack of knowledge, not the result of a deliberate policy of

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proceeding against only a specific class of persons). Therefore,

plaintiff has presented sufficient evidence to raise a triable

issue of fact regarding discriminatory intent based upon the

statistical evidence as well as the clearly structured decoy

operation. 

Defendants argue that the San Joaquin Sheriff’s Department

did not send decoys into McHenry Avenue Park to target a certain

class of people, but rather in response to complaints about

male/male sexual conduct in public areas of the park. (See

Dunsing Decl. ¶ 4; Mendoza Decl. ¶ 7). While this presents

evidence of a legitimate law enforcement interest, there remains

a triable issue of fact regarding whether defendants’ policy of

only involving decoys to target male/male conduct in violation of

§ 647(a) is invidiously discriminatory and thus,

unconstitutional.

Therefore, defendants’ motion for summary judgment relating

to plaintiff’s claim for violations of equal protection based

upon selective enforcement of criminal laws is DENIED.

3. Qualified Immunity 

Defendants Dunsing and Mendoza argue that they are immune

from suit based upon the doctrine of qualified immunity because a

reasonable peace office in their position would not have believed

they were violating any of plaintiff’s rights. The doctrine of

qualified immunity protects from suit when government officers

who do not knowingly violate the law. Gasho v. United States, 39

F.3d 1420, 1438 (9th Cir. 1994). Qualified immunity is a

generous standard designed to protect “all but the plainly

incompetent or those who knowingly violate the law.” Burns v.

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Reed, 500 U.S. 478, 495 (1991) (citation omitted). A law officer

can establish qualified immunity by demonstrating (1) that the

law governing the officer’s conduct was not clearly established

at the time of the challenged actions, or (2) that under the

clearly established law, an officer could reasonably have

believed that the alleged conduct was lawful. See Katz v. United

States, 194 F.3d 962, 967 (9th Cir. 1999); Mendoza v. Block, 27

F.3d 1357, 1360 (9th Cir. 1994); see also Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982) (observing that police officers “are

shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known”).

The question of immunity generally is not one for the jury. 

Qualified immunity “‘is an immunity from suit rather than a mere

defense to liability’ . . . . [Therefore,] [i]mmunity ordinarily

should be decided by the court long before trial.” Hunter v.

Bryant, 502 U.S. 224, 228 (1991) (citation omitted). However, if

a genuine issue of material fact exists regarding the

circumstances under which the officer acted, then the court

should make the determination after the facts have been developed

at trial. Act Up!\Portland v. Bagley, 988 F.2d 868, 873 (9th

Cir. 1993). 

The initial inquiry that the court must make to determine

whether an official is entitled to qualified immunity is whether,

“[t]aken in the light most favorable to the party asserting the

injury, do the facts alleged show the officer’s conduct violated

a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201

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(2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). 

Based upon the court’s above analysis of defendants’ potential

liability, the court has found that there are triable issues of

fact regarding whether a constitutional violation occurred. 

If, as in this case, a violation could be made out on a

favorable view of the parties’ submissions, the next inquiry is

whether the constitutional right was clearly established. Id.

This inquiry must be taken in the light of the specific context

of the case. The contours of the right must be sufficiently

clear that a reasonable official would understand that what he is

doing violates that right. Id. However, this does not mean that

an official action is protected by qualified immunity unless the

very action in question has previously been held unlawful, but,

rather, in light of pre-existing law, the unlawfulness must be

apparent. Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal

citations omitted). The salient question is whether the law at

the time of the disputed conduct gave defendants “fair warning

that their alleged treatment of plaintiffs was unconstitutional.” 

See id. at 741. There must exist a clearly established rule so

that “it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.” Saucier, 533 U.S.

at 205-06.

The conduct in question surrounds the arrest of plaintiff on

October 8, 2003. At this time, the law regarding the fundamental

right to be protected from unlawful arrests was clear. 

Individuals have a right to be free from unreasonable seizures

unless there is probable cause to arrest. See Caswell, 46 Cal.

3d 381; Pryor, 25 Cal. 3d 238. In this case, because defendants

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have not provided sufficient evidence that they had probable

cause to believe that plaintiff had the necessary intent pursuant

to § 647 of the California Penal Code, the officers arrest of

plaintiff under § 647 would not be reasonable. See Saucier, 533

U.S. at 205-06. The California Supreme Court held in Pryor and

Caswell that police officers must have probable cause to believe

that an individual had the requisite specific illicit intent

prior to an arrest. Caswell, 46 Cal. 3d at 394; see Pryor, 25

Cal. 3d at 256-27. Without the incorporation of such specific

intent into the interpretation and enforcement of the statute,

the statutory language would be unconstitutionally vague and

create the danger that police may execute arbitrary and

discriminatory enforcement of the law. Pryor, 25 Cal. 3d at 252;

see Caswell, 46 Cal.3d at 392. The Caswell court also listed

several examples as to what might constitute probable cause to

believe that an individual harbors the requisite intent. Id.

395-96. For example, an officer may personally know that an

individual has repeatedly solicited or committed lewd acts at the

same location in the past; an officer might have information from

a reliable information that an individual has disclosed his

intent to attempt to solicit or commit lewd acts in a certain

restroom; or the officer may have received complaints from

citizens that a certain individual was lingering inside a

restroom engaging in suggestive conduct. Id. Defendants have

not presented sufficient evidence that they were operating under

the same type of circumstances as those set forth in Caswell. 

Thus, if the officers did not have probable cause as to

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plaintiff’s specific intent, a reasonable officer would know that

an arrest would be unconstitutional.

At this time, the law regarding the right to be free from

enforcement of the laws based upon an arbitrary classification

was clear. Wayte, 470 U.S. at 608. A reasonable police officer

would know that his conduct was unlawful if the selection of an

individual or a class of persons was based upon an arbitrary

classification. See id. Further, the California Supreme Court

has squarely addressed the issue of discriminatory enforcement

against homosexual individuals in the context of § 647. In

Caswell, the court stated that “the police must apply equal

standards to both homosexuals and heterosexuals” in making

arrests pursuant to § 647. Caswell, 46 Cal. 3d at 401. In 1996,

the California Supreme Court revisited the issue of

discriminatory enforcement. Baluyut v. Superior Court of Santa

Clara County, 12 Cal. 4th 826. In Baluyut, petitioners sought

dismissal of § 647 charges on the basis that the officers who

arrested them engaged in a pattern of discriminatory arrests and

prosecution of homosexuals under the statute. 14 Cal. 4th at

829. The evidence presented by petitioners in support of their

motion to dismiss was 10 arrest reports spanning a 2-year period

that demonstrated that the arrests were made pursuant to decoy

operations that “focused solely on persons who had a proclivity

to engage in homosexual conduct.” Id. at 830. As a result, the

charges against defendants were dropped. Id. at 829. The Court

held that 14th Amendment Equal Protection clause principals

applied and that a defendant did not have to show specific intent

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to punish a person singled out as a member of a class in order to

prevail. Id. at 838. 

In light of the established state of the law at the time in

question, defendant officers had “fair warning” that the arrest

of plaintiff without probable cause of his intent was

unconstitutional. See Hope, 536 U.S. at 741. Defendant officers

also had “fair warning” that the arbitrary targeting of

individuals with a proclivity to engage in homosexual conduct

would violate the Equal Protection Clause of the Constitution. 

Because there are triable issues of fact as to whether the

officers had probable cause to arrest plaintiff and whether the

officers’ decoy operation violated plaintiff’s Equal Protection

rights, and because defendants had notice that their alleged

conduct was unconstitutional, the court cannot find that

defendants Dunsing and Mendoza are entitled to qualified immunity

at this stage of the litigation.

4. Policy, Custom, or Practice

Plaintiff asserts that defendant County is liable under §

1983 because the County allegedly maintained a policy, custom, or

practice that caused the violation of plaintiff’s rights. Under

Monell and its progeny, a plaintiff may hold a municipality

liable under section 1983 if his injury was inflicted pursuant to

city policy, regulation, custom, or usage. Chew v. Gates, 27

F.3d 1432, 1444 (9th Cir. 1994) (citing Monell, 436 U.S. at 690-

91, 694). The existence of a city policy may be established in

one of three ways:

First, the plaintiff may prove that a city employee

committed the alleged constitutional violation pursuant

to a formal governmental policy or a longstanding

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practice or custom which constitutes the standard

operating procedure of the local governmental entity. 

Second, the plaintiff may establish that the individual

who committed the constitutional tort was an official

with final policy-making authority and that the

challenged action itself thus constituted an act of

official governmental policy. Whether a particular

official has final policy-making authority is a

question of state law. Third, the plaintiff may prove

that an official with final policy-making authority

ratified a subordinate’s unconstitutional decision or

action and the basis for it.

Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting

Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992)

(citations and internal quotations omitted)). Assuming that a

plaintiff can establish one of these three circumstances, he must

then demonstrate that the municipal policy “caused” the

constitutional deprivation. Id. A municipal policy “causes”

injury where it is the “moving force” behind the violation. 

Chew, 27 F.3d at 1444 (citing Monell, 436 U.S. at 690-91, 694).

Plaintiff argues that the County’s actions in targeting only

male/male conduct with undercover decoy operations was a policy,

custom or practice that resulted in his arrest and violated his

rights to equal protection under the law. Defendants argue that

the fact that the County engaged in four or five undercover

operations targeting male/male lewd conduct over the span of two

years is not evidence of some ongoing practice or established

policy. Defendants assert that this is particularly true where

the undercover operations in question were done at the request of

regional and federal park personnel for a specific criminal

problem. 

The court disagrees. Plaintiff has presented evidence that

only male/male lewd conduct was targeted by the County, despite

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police reports involving heterosexual lewd conduct. (Reports at

2). Plaintiff’s evidence shows that there were eight separate

incident reports that were not as a result of a decoy operation

involving male/female conduct while there were two such incident

reports for male/male conduct. Id. Further, defendants’

argument that four or five undercover operations within two years

is not evidence of a policy, practice, or custom is unavailing. 

The facts are undisputed that the undercover decoy operations

conducted by the San Joaquin Sheriff’s Department only

specifically targeted male/male conduct. This fact, in

conjunction with plaintiff’s evidence that violations were not

enforced for similar conduct by heterosexual men and that no

similar operations were conducted in response to reports of

heterosexual lewd conduct, creates a triable issue of fact

regarding whether defendant County had a policy, custom, or

practice of selectively enforcing criminal laws against an

arbitrary class. 

Plaintiff also argues that defendant County’s failure to

train deputies in the elements of lewd conduct resulted in his

unlawful arrest. A policy of inadequate police training may

serve as the basis for section 1983 liability only where “the

failure to train amounts to deliberate indifference to the rights

of persons with whom the police come into contact,” and where the

identified training deficiencies are “closely related” to the

plaintiff’s ultimate injury. See City of Canton v. Harris, 489

U.S. 378, 388-91 (1989).

Defendants argue that there is no evidence of a lack of

training in the San Joaquin Sheriff’s Department as to the legal

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elements of a lewd conduct offense. Defendants rely upon the

declarations of defendants Mendoza, Dunsing, and Semillo

pertaining to their knowledge of the elements of a lewd conduct

defense. Plaintiff’s sole evidence of lack of training is the

deposition testimony of defendants Mendoza and Dunsing. 

Defendant Dunsing stated that he did not recall any specific

portion of the vice investigation training at the police academy

that was specifically devoted to lewd conduct. (Dunsing Dep.

11:13-21). Defendant Mendoza stated that he could not recall any

training specific to lewd conduct enforcement. (14:22-15:3). 

Plaintiff does not provide any expert testimony, training

manuals, or individual evidence relating to an absence of

training in lewd conduct. “Proof of a single incident of

unconstitutional activity is not sufficient to impose liability

under Monell.” City of Oklahoma v. Tuttle, 417 U.S. 808, 823-24

(1985); Ramirez v. County of Los Angeles, 397 F. Supp. 2d 1208,

1228 (holding that plaintiff failed to create a triable issue of

fact to survive summary judgment where the sole piece of evidence

was the deposition of a named defendant that he had no training

with respect to the violation at issue). Thus, plaintiff has not

presented evidence to create a triable issue of fact in regards

to its Monell claim based upon a failure to train.

Therefore, based upon the foregoing analysis, defendants’

motion for summary judgment regarding plaintiff’s claims under

Monell based upon a policy, practice, or custom of selective

prosecution is DENIED. Defendants’ motion for summary judgement

regarding plaintiff’s claim under Monell based upon a failure to

train is GRANTED. 

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5 In his opposition, plaintiff did not address

defendants’ motion for summary judgment on his state law claims. 

At the hearing held April 21, 2006, the court ordered plaintiff

to submit supplemental briefing including, inter alia, any

opposition to defendants’ motion for summary judgment regarding

plaintiff’s state law claims. In his supplemental opposition,

“[p]laintiff urges this court to exercise its pendency

jurisdiction and decide two closely related state claims,”

plaintiff’s claims of false arrest and intentional infliction of

emotional distress. (Pl.’s Supp. Opp’n, filed May 1, 2006, at

8). 

In light of the court’s orders and plaintiff’s response, the

court interprets plaintiff’s supplemental briefing as a nonopposition to defendants’ motion for summary judgment as to

plaintiff’s claims for violations of California Civil Code §

52.1. Therefore, defendants’ motion in regards to plaintiff’s §

52.1 claim is GRANTED. 

26

B. State Law Claims5

1. False Arrest

Plaintiff also claims that defendants are liable under state

law for false arrest. For the reasons provided in the court’s

analysis of plaintiff’s § 1983 claims against defendants,

plaintiff has raised a triable issue of fact that the defendant

officers lacked probable cause to arrest him. Therefore,

California Civil Code § 43.55, which provides immunity to

officers who detains a suspect based upon probable cause that he

committed a crime, is inapplicable.

Plaintiff asserts that the officers committed the alleged

acts within the course and scope of their employment as police

officers for the city. Therefore, the city is vicariously

liable. Cal. Gov. Code § 815.2(a). Section 815.2(a) provides

that a city is liable for acts and omissions of its employees

under the doctrine of respondeat superior to the same extent as a

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6 Unlike the rule against municipal liability under

federal law set out Monell, California imposes liability on

municipalities under the doctrine of respondeat superior. 

Robinson, 278 F.3d at 1016.

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private employer.6 Under California law, a county’s immunity

depends upon whether the officers are immune. Cal. Gov. Code §

815.2(b). 

Defendant officers assert that they are entitled to immunity

pursuant to § 820.2 of the California Government Code, which

provides that public employees are not liable for injuries caused

by a discretionary act. Cal. Gov’t Code § 820.2 (West 2006). 

The Ninth Circuit has recognized that this discretionary immunity

“protects ‘basic policy decisions,’ but does not protect

‘operational’ or ‘ministerial’ decisions that merely implement a

basic policy decision.” Martinez v. City of Los Angeles, 141

F.3d 1373, 1379 (9th Cir. 1998) (quoting Johnson v. State of

California, 69 Cal. 2d 782, 796 (1968)). However, discretionary

act immunity does not protect police officers from liability for

claims of false arrest or imprisonment. Id. Specifically, §

820.4 of the California Government Code provides that 

[a] public employee is not liable for his act or

omission, exercising due care, in the execution or

enforcement of any law. Nothing in this section

exonerates a public employee from liability got false

arrest or false imprisonment.

Cal. Gov’t Code § 820.4 (West 2006). Therefore, discretionary

act immunity does not insulate defendant officers from

plaintiff’s state law tort claim of false arrest. See Martinez,

141 F.3d at 1379. Because defendant officers are not immune from

liability, the County is also not immune from liability. See

Cal. Gov’t Code § 815.2(b). Accordingly, defendants’ motion for

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summary judgment regarding plaintiff’s state law claim of false

arrest and imprisonment is DENIED.

2. Intentional Infliction of Emotional Distress

Finally, plaintiff asserts that defendants are liable for

intentional infliction of emotional distress. To succeed on a

claim of intentional infliction of emotional distress, plaintiff

must demonstrate: 

(1) extreme and outrageous conduct by the defendant with the

intention of causing, or reckless disregard of the

probability of causing, emotional distress; (2) the

plaintiff’s suffering severe or extreme emotional distress;

and (3) actual and proximate causation of the emotional

distress by the defendants’ outrageous conduct. 

Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991). 

“Outrageous conduct” requires that the conduct must be so extreme

“as to exceed all bounds of that usually tolerated in a civilized

community.” Id. California courts have held that the question

of whether the conduct alleged in the complaint is sufficiently

“extreme and outrageous” is generally a factual issue for the

jury. See Angie M. v. Superior Court, 37 Cal. App. 4th 1217,

1226 (1995).

Plaintiff’s claim for intentional infliction of emotional

distress is derivative of his claims of violations of his civil

rights under federal law and false arrest under state law. 

Because there are triable issues of fact regarding these claims,

specifically regarding the existence of probable cause to arrest

plaintiff, this claim survives as well. Further, because this

claim is derivative of plaintiff’s claim for false arrest,

discretionary immunity does not apply to insulate defendant

officers. See Martinez, 141 F.3d at 1381-82. As such, the

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County is also not immune from liability for this claim. See

Cal. Gov’t Code § 815.2(b). Therefore, defendants’ motion for

summary judgment regarding plaintiff’s state law claim of

intentional infliction of emotional distress is DENIED. 

CONCLUSION

Based on the foregoing analysis, the court makes the

following orders:

1. Defendant officers’ motion for summary judgment is:

(a) DENIED as it applies to plaintiff’s § 1983 claims based

upon violations of his Fourth Amendment rights;

(b) DENIED as it applies to plaintiff’s § 1983 claims based

upon violations of his Fourteenth Amendment rights;

(c) DENIED as it applies to plaintiff’s false arrest

claims;

(d) DENIED as it applies to plaintiff’s intentional

infliction of emotional distress claims; and

(e) GRANTED as it applies to plaintiff’s § 52.1 claims.

2. Defendant County’s motion for summary judgment is:

(a) DENIED as it applies to plaintiff’s § 1983 claims based

upon policy, practice or custom;

(b) GRANTED as it applies to plaintiff’s § 1983 claims

based upon failure to train;

(c) DENIED as it applies to plaintiff’s false arrest

claims;

(d) DENIED as it applies to plaintiff’s intentional

infliction of emotional distress claims; and

(e) GRANTED as it applies to plaintiff’s § 52.1 claims. 

/////

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IT IS SO ORDERED.

DATED: June 13, 2006

/s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL, Jr.

UNITED STATES DISTRICT JUDGE

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