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

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RON FRANKLIN,

Plaintiff,

v.

DENNIS MALLY,

Defendant.

Case No. 17-cv-00789-HSG 

ORDER GRANTING IN PART AND 

DENYING IN PART MOTION FOR 

SUMMARY JUDGMENT

Re: Dkt. No. 51

Plaintiff Ron Franklin (“Franklin”) brings this suit against Defendant Officer Dennis Mally 

(“Mally”), alleging claims under 42 U.S.C. § 1983 (“Section 1983”) for unlawful seizure, 

excessive force, and malicious prosecution, as well as various state law claims. Pending before 

the Court is Defendant’s motion for summary judgment as to all claims, briefing for which is 

complete. See Dkt. Nos. 51 (“Mot.”), 54 (“Opp.”), 56 (“Reply”). Having carefully considered the 

parties’ briefing, the relevant law, and the record presented in the briefing, the Court GRANTS IN 

PART and DENIES IN PART Defendant’s motion for summary judgment.

I. BACKGROUND1

On October 8, 2015, Plaintiff was running errands with his uncle Kevin Govan (“Govan”), 

in a blue Nissan. See Dkt. 54-1 Ex. A (“Franklin Dep.”) 11:2–12:1, 27:19–20, 45:3–7, 47:20–25. 

Plaintiff was approximately 17 or 18 years old at the time, and Govan was 30 or 31. Id. at 27:19–

22, 56:19–57:1. At first, Govan’s girlfriend and young daughter were both with Plaintiff and

Govan. Id. at 48:18–49:4, 51:16–18. After dropping Govan’s girlfriend off, Plaintiff was in the 

front passenger seat and Govan’s daughter was in the back seat. Id. at 58:1–10.

 

1 Except as where noted otherwise, relevant facts are undisputed.
2

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

United States District Court

Northern District of California

As they drove through San Leandro, Govan said something along the lines of, “Oh they’re 

behind us, what are they stopping me for?” Id. at 59:7–21. Govan stopped the vehicle and 

Plaintiff observed a police car behind them. Id. at 59:7–60:5. An officer approached the driver’s 

side door and told Govan that he was going to explain why he pulled him over. Id. at 61:7–17, 

62:5–17, 63:16–64:8. Govan then stepped on the accelerator and sped away. Id. at 62:21–63:3, 

64:13–19. Govan drove away at a speed above the speed limit and drove through stop signs. Id.

at 65:24–66:4.

That day, Defendant was on patrol in a marked San Leandro Police Department (“SLPD”) 

patrol car. See Dkt. No. 54-1 Ex. B (“Mally Dep.”) at 28:25–29:6, 33:22–24. At approximately 

12:42 p.m., Defendant heard radio traffic broadcast about a vehicle pursuit of individuals and a car 

suspected to be involved in a home invasion earlier that day. Id. at 29:11–15, 33:18–35:8. SLPD 

had received reports earlier that day about a home invasion, where the suspects were four black 

men in their early twenties driving a blue car, and where one of the suspects was believed to be 

armed with a firearm. Id. at 34:16–35:8. Defendant decided to join the pursuit, believing that the 

two men he was pursuing were suspects from the earlier home invasion, because the two 

individuals were young black men in a blue car. Id. at 33:18–34:9, 34:22–35:8. 

Defendant pursued the vehicle until Govan failed to negotiate a turn and crashed into a 

retaining wall. Id. at 35:24–37:17. Govan’s car stopped as a result of the crash, and Defendant

pulled up behind the car and stopped approximately fifteen feet behind the blue Nissan. Id. at 

37:9–17, 38:13–16. Due to the crash, the airbag in front of Plaintiff deployed and was in 

Plaintiff’s face. Franklin Dep. 68:9–69:2. The car was smoking, and Plaintiff claims that he 

opened his passenger side door for air and to get relief from the fumes and smoke. Id. at 69:3–

70:9. Govan told Plaintiff to stay with his daughter, Plaintiff agreed, and Govan quickly exited the 

car and ran away. Id. 71:1–19. According to Plaintiff, he was sitting in the car waiting for

instructions from an officer when a K9 suddenly entered the car, came across his body, and bit his 

left arm. Id. at 70:2–17, 73:2–74:12, 75:3–9.

Plaintiff contends that he did not resist the K9, which pulled Plaintiff out of the vehicle and 

toward Defendant. Id. at 79:15–25. As the K9 was biting Plaintiff, Defendant shouted commands 
3

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

United States District Court

Northern District of California

at Plaintiff to get down on the ground, lay flat on his stomach, and put his hands behind his back. 

Id.; Mally Dep. 47:2–16. Plaintiff got on the ground, but had difficulty getting on his stomach 

because the K9 was biting his arm. Franklin Dep. 84:10–85:20. Plaintiff eventually was able to 

get on his stomach, after which Mally released the K9. Id. at 83:12–19, 85:19–86:21; Mally Dep. 

47:2–16, 52:7–18, 66:2–17.

Plaintiff was handcuffed and then later treated and transported to the hospital for medical 

clearance. Franklin Dep. 87:1–3, 87:16–22, 88:9–12, 89:11–21. Plaintiff was then transported to 

jail, where he was booked and cited for violation of California Penal Code Section 148 (“Section 

148”) (resisting, delaying or obstructing a peace officer). Mally Dep. 58:15–59:16, 67:25–68:9. 

Mally testified that the only reason he cited Plaintiff with a violation of Section 148 is because

Plaintiff fled from the car after he was told to stop. Id. at 67:25–68:9. The District Attorney filed 

charges against Plaintiff for a violation of Section 148(a)(1), but later dismissed the charges. See 

Opp. at 6.

II. LEGAL STANDARD

Summary judgment is proper when a “movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is evidence in the 

record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. The 

Court views the inferences reasonably drawn from the materials in the record in the light most 

favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 

574, 587–88 (1986), and “may not weigh the evidence or make credibility determinations,” 

Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled on other grounds by Shakur v. 

Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008).

The moving party bears both the ultimate burden of persuasion and the initial burden of 

producing those portions of the pleadings, discovery, and affidavits that show the absence of a 

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the 

moving party will not bear the burden of proof on an issue at trial, it “must either produce 
4

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

United States District Court

Northern District of California

evidence negating an essential element of the nonmoving party's claim or defense or show that the 

nonmoving party does not have enough evidence of an essential element to carry its ultimate 

burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 

(9th Cir. 2000). Where the moving party will bear the burden of proof on an issue at trial, it must 

also show that no reasonable trier of fact could not find in its favor. Celotex Corp., 477 U.S. at 

325. In either case, the movant “may not require the nonmoving party to produce evidence 

supporting its claim or defense simply by saying that the nonmoving party has no such evidence.” 

Nissan Fire & Marine Ins. Co., 210 F.3d at 1105. “If a moving party fails to carry its initial 

burden of production, the nonmoving party has no obligation to produce anything, even if the 

nonmoving party would have the ultimate burden of persuasion at trial.” Id. at 1102–03.

“If, however, a moving party carries its burden of production, the nonmoving party must 

produce evidence to support its claim or defense.” Id. at 1103. In doing so, the nonmoving party 

“must do more than simply show that there is some metaphysical doubt as to the material facts.” 

Matsushita Elec. Indus. Co., 475 U.S. at 586. A nonmoving party must also “identify with 

reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 

F.3d 1275, 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its 

claim or defense, courts enter summary judgment in favor of the movant. Celotex Corp., 477 U.S. 

at 323.

III. DISCUSSION

Plaintiff’s suit alleges seven causes of action: (1) violation of Section 1983 for an unlawful 

seizure due to a false arrest; (2) violation of Section 1983 for excessive force; (3) violation of 

Section 1983 for malicious prosecution; (4) violation of the California Bane Act; (5) negligence;

(6) battery; and (7) intentional infliction of emotional distress. See Dkt. No. 28 ¶¶ 22–54. 

Defendant moves for summary judgment on all causes of action.

A. Unlawful Seizure

To succeed on a Section 1983 claim based on false arrest, a plaintiff must show that the 

defendant lacked probable cause for the arrest. Cabrera v. City of Huntington Park, 159 F.3d 374, 

380 (9th Cir. 1998). “Probable cause to arrest exists when officers have knowledge or reasonably 
5

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

United States District Court

Northern District of California

trustworthy information sufficient to lead a person of reasonable caution to believe that an offense 

has been or is being committed by the person being arrested.” United States v. Lopez, 482 F.3d 

1067, 1072 (9th Cir. 2007). “Probable cause requires only a fair probability or substantial chance 

of criminal activity, and [courts] determine the existence of probable cause by looking at ‘the 

totality of the circumstances known to the officers at the time.’” United States v. Alaimalo, 313 

F.3d 1188, 1193 (9th Cir. 2002) (quoting United States v. Bishop, 264 F.3d 919, 924 (9th Cir. 

2001)). “Probable cause is an objective standard and the officer’s subjective intention in 

exercising his discretion to arrest is immaterial in judging whether his actions were reasonable for 

Fourth Amendment purposes.” John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008). 

“Whether probable cause exists depends upon the reasonable conclusion to be drawn from the 

facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 

152 (2004).

Plaintiff argues that his arrest was not supported by probable cause primarily because, 

viewing the facts in the light most favorable to him, Defendant lacked a sufficient basis to arrest 

Plaintiff for a violation of Section 148, the only violation for which Plaintiff was cited. Opp. at 

10–11. As Plaintiff notes, his characterization of the incident is that he made no attempt to flee; 

rather, after the vehicle crashed, he opened the door and “was simply seated in the vehicle when 

the K9 apprehended him.” Id. As Plaintiff also notes, Defendant admitted that he only cited 

Plaintiff with a Section 148 violation for allegedly fleeing the vehicle after being told to stop. Id.; 

see also Mally Dep. at 68:5–7 (“Q. Why did you cite him with that violation? A. For fleeing from 

the vehicle after I told him to stop.”). 

Plaintiff’s dispute with Defendant over the basis for the Section 148 citation partially

misses the mark, as Defendant does not move for summary judgment on the basis that he had 

probable cause to arrest Plaintiff based on him attempting to flee. Defendant instead maintains 

that probable cause existed because, based on the totality of the circumstances, there was a fair 

probability that Plaintiff was involved in the earlier-reported home invasion armed robbery, or 

some other illegal conduct, given the identification of the armed robbery suspects as young black 

men in a blue car and because Plaintiff’s uncle had just led Defendant on a high-speed pursuit. 
6

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

United States District Court

Northern District of California

See Mot. at 9–11. 

The Court finds Defendant has not established by uncontroverted evidence that he had 

probable cause to arrest Plaintiff so as to warrant summary judgment on Plaintiff’s unlawful 

seizure claim. For one, Defendant cites no case law to support the proposition that general 

descriptions of suspects involved in a crime as “Black males who appeared to be in their twenties 

. . . seen in a blue vehicle” would give rise to an objectively reasonable basis to arrest young black 

men in a blue vehicle. See Reply at 3. Even if this information might create reasonable suspicion 

for an investigatory stop—which the Court does not here consider—the information is not enough 

to support an objectively reasonable basis to arrest a suspect. Second, Defendant’s reliance on the 

purported “unprovoked flight” in this situation proves too much. Not only does Defendant’s sole 

case2on this point only address the reasonableness of an investigatory stop, and not an arrest, but 

it also is inapposite to the current facts, as Plaintiff was merely a passenger in a fleeing vehicle.3 

Cf. Wardlow, 528 U.S. at 123 (“This case, involving a brief encounter between a citizen and a 

police officer on a public street, is governed by the analysis we first applied in Terry [v. Ohio, 392 

U.S. 1 (1968)]”). Construing the facts in the light most favorable to Plaintiff, he engaged in no 

“unprovoked flight” whatsoever. 

All told, viewing “the totality of the circumstances” in the light most favorable to Plaintiff, 

Defendant has failed to establish that the uncontroverted facts show there was a “substantial 

chance of criminal activity” by Plaintiff to establish probable cause to support Plaintiff’s arrest. 

See Alaimalo, 313 F.3d at 1193. Accordingly, Defendant is not entitled to summary judgment on 

this claim.

//

//

 

2 Defendant mis-cites United States v. Brigoni-Ponce, 422 U.S. 873, 885 (1975) for the following 

statement: “Headlong flight . . . is the consummate act of evasion: It is not necessarily indicative 

of wrongdoing, but it is certainly suggestive of such.” See Reply at 3. This quote is in fact from 

Illinois v. Wardlow. 528 U.S. 119, 124 (2000).

3 The Ninth Circuit recently explained why flight alone may not give rise to reasonable suspicion 

to support even an investigatory stop. See United States v. Brown, No. 17-30191, 2019 WL 

2364504 (9th Cir. June 5, 2019).
7

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

United States District Court

Northern District of California

B. Excessive Force

A claim that a law enforcement officer used excessive force during a seizure is reviewed 

under the Fourth Amendment’s “objective reasonableness” standard. See Graham v. Connor, 490 

U.S. 386, 388 (1989). And to evaluate the reasonableness of Defendant’s action, the Court “must 

balance the severity of the intrusion on the individual’s Fourth Amendment rights against the 

government’s need to use force.” See Newmaker v. City of Fortuna, 842 F.3d 1108, 1116 (9th Cir. 

2016). In doing so, the Court considers the following factors set forth in Graham: “the severity of 

the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or 

others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S.

at 396. Whether the suspect poses an immediate threat is the “most important factor.” See Jones 

v. Las Vegas Metro. Police Dep’t, 873 F.3d 1123, 1130 (9th Cir. 2017). “However, a simple 

statement by an officer that he fears for his safety or the safety of others is not enough; there must 

be objective factors to justify such a concern.” Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th 

Cir. 2001). And “[a] desire to resolve quickly a potentially dangerous situation is not the type of 

governmental interest that, standing alone, justifies the use of force that may cause serious injury.” 

Id. As to the use of police dogs in particular, their use “may be reasonable as a general policy to 

bring an arrestee under control, but in a situation in which an arrestee surrenders and is rendered 

helpless, any reasonable officer would know that a continued use of the [K9] or a refusal without 

cause to alleviate its harmful effects constitutes excessive force.” See LaLonde v. Cty. of 

Riverside, 204 F.3d 947, 961 (9th Cir. 2000).

Plaintiff here alleges that he was a passenger in a crashed vehicle when Defendant’s K9

entered the vehicle and bit him. Opp. at 12. Plaintiff then alleges that Defendant continued to 

permit his K9 to bite and hold Plaintiff, all while Plaintiff posed no immediate threat to Defendant 

or anyone else. Id. Plaintiff adds that Defendant admitted during his deposition that he never 

observed Plaintiff with a weapon and did not hear Plaintiff make any verbal threats. Id.; see also

Mally Dep. at 40:13–19.

Viewing all facts in the light most favorable to Plaintiff, a reasonable jury could find that 

Defendant was not justified in using a K9 to subdue a complying suspect, and allowing the K9 to 
8

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

United States District Court

Northern District of California

continue to bite and hold Plaintiff when he showed no signs of resistance. In fact, Defendant’s 

only stated justification for using a K9 to subdue Plaintiff was because Plaintiff purportedly was 

fleeing, and continued to permit his K9 to bite and hold Plaintiff because Plaintiff was “[n]ot 

complying with [his] orders, and at one point [he] could not see [Plaintiff’s] hand.” See, e.g., id. at 

47:17–22, 49:3–6. Those facts are disputed, and a reasonable jury could reject Defendant’s

characterization of the incident.

C. Malicious Prosecution

As to Plaintiff’s malicious prosecution claim, the parties agree that Plaintiff’s claim 

requires demonstrating that Defendant prosecuted Plaintiff with malice, without probable cause, 

and that Defendant did so for the purpose of denying Plaintiff his equal protection or another 

constitutional right. See Mot. at 13; Opp. at 13. Defendant, however, seeks summary judgment 

based on the “Smiddy presumption.” See Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981) 

(Smiddy I), overruled on other grounds by Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 

2008). Smiddy I stands for the principle that there is “a rebuttable presumption that a prosecutor 

exercises independent judgment regarding the existence of probable cause in filing a complaint.” 

Smiddy v. Varney, 803 F.2d 1469, 1471 (9th Cir. 1986) (Smiddy II). “The presumption can be 

overcome,” however, “by evidence that the officer[] knowingly submitted false information,”

which caused the filing of the complaint. Id. Otherwise, the presumption “insulates the arresting 

officers from liability for harm suffered after the prosecutor initiated formal prosecution.” Id. The 

Ninth Circuit has explained, though, that “a plaintiff’s account of the incident in question, by 

itself, does not overcome the presumption of independent [prosecutorial] judgment.” Newman v. 

Cty. of Orange, 457 F.3d 991, 994 (9th Cir. 2006).

The Court finds summary judgment on Plaintiff’s malicious prosecution claim is not 

warranted based on the Smiddy presumption because Plaintiff has put forth sufficient evidence to 

create a material factual dispute as to whether Defendant knowingly submitted false information 

that led to a prosecutor initiating formal prosecution. Plaintiff here does not rest his malicious 

prosecution claim on his account of the incident alone. Cf. Newman, 457 F.3d at 994. Plaintiff

instead submitted a video of the incident that constitutes evidence that Defendant “knowingly 
9

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

United States District Court

Northern District of California

submitted false information” in his police report. See Smiddy II, 803 F.3d at 1471. Defendant 

purportedly cited Plaintiff with a violation of Section 148 because Plaintiff emerged from the 

crashed vehicle, fled on foot, and continued to flee after he was commanded to stop. Mally Dep. 

67:25–68:9. The video, however, shows Plaintiff being bitten by Defendant’s dog just feet away 

from the crashed vehicle, and between the crashed car and Defendant’s police vehicle.

Defendant counters that the video is “insufficient to show malicious prosecution,” because 

it “is not competent evidence to show Plaintiff did not flee from the car because the recording 

captures only part of the incident, depicts Plaintiff only after he already was bitten by the K9 and 

fails to show Plaintiff’s actions leading up to the bite.” Reply at 11. Defendant asks too much at 

the summary judgment stage. Although the Smiddy presumption imposes a burden on Plaintiff to 

present some independent evidence that Mally knowingly submitted false information that gave 

rise to the contested prosecution, Plaintiff has met that burden. Based on the video evidence, it is 

amply possible that Defendant’s characterization of the factual basis for citing Plaintiff with a 

violation of Section 148 was knowingly false, when submitted.

D. Qualified Immunity

Defendant argues that summary judgment is further warranted on Plaintiff’s excessive 

force and malicious prosecution claims, because Defendant is entitled to qualified immunity. Mot. 

at 20–21.4 The defense of qualified immunity protects “government officials . . . 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.” Harlow v. Fitzgerald, 457 

U.S. 800, 818 (1982). A court considering a claim of qualified immunity makes a two-pronged 

inquiry: (1) whether the plaintiff has alleged the deprivation of a constitutional right, and (2) 

 

4 Defendant’s motion for summary judgment did not argue that he was entitled to summary 

judgment due to qualified immunity as to Plaintiff’s unlawful seizure claim. See Mot. at 20–21. 

In Defendant’s reply brief, however, he states in passing that qualified immunity also applies to 

Plaintiff’s unlawful seizure claim. See Reply at 13 (arguing that “Plaintiff fails to identify clearly 

established law prohibiting Mally from detaining or arresting Plaintiff”). The Court finds this 

argument waived due to Defendant’s failure to raise it in his opening motion for summary 

judgment. See Smith v. City of Santa Clara, 876 F.3d 987, 995 (9th Cir. 2017) (argument raised 

for first time in reply brief is waived); Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010)

(same); see also Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1083 (9th Cir. 2013) (finding 

Sheriff’s officers “waived the argument raised in their reply brief that there was no seizure”).
10

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

United States District Court

Northern District of California

whether such right was clearly established at the time of the deprivation. See Pearson v. 

Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz, 535 U.S. 194, 201 (2001)). The 

court may exercise its discretion in deciding which prong to address first, in light of the particular 

circumstances of each case. Id. at 236 (noting that while the Saucier sequence is often appropriate 

and beneficial, it is no longer mandatory). “[U]nder either prong, courts may not resolve genuine 

disputes of fact in favor of the party seeking summary judgment,” and must, as in other cases, 

view the evidence in the light most favorable to the nonmovant. See Tolan v. Cotton, 572 U.S.

650, 656 (2014).

“[A] right is clearly established only if its contours are sufficiently clear that a reasonable 

official would understand that what he is doing violates that right. In other words, existing 

precedent must have placed the statutory or constitutional question beyond debate.” Carroll v. 

Carman, 574 U.S. 13 (2014) (internal quotation marks and citation omitted). The inquiry into

whether a constitutional right was clearly established must be undertaken in light of the “specific 

context” of the case, not as a broad general proposition. Saucier, 533 U.S. at 202. The relevant, 

dispositive inquiry in determining whether a right is clearly established is whether it would be

clear to a reasonable officer that the challenged conduct was unlawful in the situation the officer

confronted. Id. “Such specificity is especially important in the Fourth Amendment context, where 

the Court has recognized that it is sometimes difficult for an officer to determine how the relevant 

legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” 

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks and brackets omitted). 

A court determining whether a right was clearly established looks to “Supreme Court and 

Ninth Circuit law existing at the time of the alleged act.” Cmty. House, Inc. v. City of Boise, 623 

F.3d 945, 967 (9th Cir. 2010) (citing Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996)). In the 

absence of binding precedent, the court should look to all available decisional law, including the 

law of other circuits and district courts. See id. Unpublished district court decisions may also 

“inform” the court’s analysis. Sorrels v. McKee, 290 F.3d 965, 971–72 (9th Cir. 2002). It will, 

however, “be a rare instance in which, absent any published opinions on point or overwhelming 

obviousness of illegality, [a court] can conclude that the law was clearly established on the basis 
11

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

United States District Court

Northern District of California

of unpublished decisions only.” Id. Post-incident cases generally are not relevant unless they 

determine the law at the time of the incident. See Osolinski, 92 F.3d at 936. Finally, “there can be 

the rare ‘obvious case,’ where the unlawfulness of the officer's conduct is sufficiently clear even 

though existing precedent does not address similar circumstances.” Dist. of Columbia v. Wesby, 

138 S. Ct. 577, 581 (2018).

Having found a genuine issue of fact as to whether Defendant’s actions violated the 

Constitution as to Plaintiff’s alleged excessive force and malicious prosecution claims, the Court 

addresses whether the contours of the asserted right were clearly established at the time of 

Defendant’s conduct. See Pearson, 555 U.S. at 232. In analyzing this prong, the Court is mindful 

of the Supreme Court’s caution against articulating general formulations rather than identifying 

specific precedent that addresses similar circumstances. See City of Escondido v. Emmons, 139 S. 

Ct. 500, 504 (2019) (“[W]e have stressed the need to identify a case where an officer acting under 

similar circumstances was held to have violated the Fourth Amendment. . . . While there does not 

have to be a case directly on point, existing precedent must place the lawfulness of the particular 

[action] beyond debate.”) (quoting Wesby, 138 S. Ct. at 581).

Defendant argues that qualified immunity applies to both Plaintiff’s excessive force and 

malicious prosecution claims. Mot. at 21. As to the former, Defendant argues that there is no 

authority involving “officers [who] are involved in a high speed pursuit of a vehicle and 

individuals believed to be suspects in a violent, armed home invasion robbery, possibly armed 

with a firearm, and possibly involved in a reported carjacking, the suspect vehicle stops only when 

it crashes, the driver runs from the car and the involved passenger appears to be exiting the car to 

flee, yet police were prohibited from using a police K9 to protect themselves from suspects who 

were not in custody and had not yet been searched.” Id. at 20. As to Plaintiff’s malicious 

prosecution claim, Defendant argues that Plaintiff “cannot identify any authority clearly 

prohibiting Mally from preparing a truthful, accurate statement of probable cause that differs from

a suspect’s version of the incident under circumstances similar to this case.” Id. at 21.

In response, Plaintiff fails to proffer any authority whatsoever—and thus no authority 

under similar circumstances—as binding precedent from which the Court could conclude that 
12

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

United States District Court

Northern District of California

pertinent law related to his Section 1983 excessive force claim was clearly established, such that 

qualified immunity does not apply. Instead, Plaintiff merely states that “[a]t all times relevant to 

this action, it was clearly established that the use of force in releasing a police K9 was reasonable 

only if an officer had cause to believe that the suspect posed a significant threat of harm to the 

officer or others or to overcome active resistance or flight.” Opp. at 15. Absent some binding 

precedent under similar circumstances, qualified immunity only applies in the rare “obvious case” 

where the unlawfulness of the officer’s conduct is sufficiently clear. See Wesby, 138 S. Ct. at 590. 

This is not such a case with respect to Plaintiff’s excessive force claim.

Although the Court finds that Plaintiff’s excessive force claim is not one of the “obvious 

cases” precluding qualified immunity, Plaintiff’s malicious prosecution claim presents a different 

situation. Unlike measuring the reasonableness of an officer’s level of force—ordinarily a 

difficult issue given that officers must make snap-judgment decisions in high-stress situations—it 

is obvious to any reasonable officer that they cannot cite a suspect based on knowingly false 

information, from which a prosecutor would file charges. See Blankenhorn v. City of Orange, 485 

F.3d 463, 480–83 (9th Cir. 2007) (reversing summary judgment finding on malicious prosecution 

claim and finding that qualified immunity did not apply). Viewing all of the facts in the light most 

favorable to Plaintiff, that is what Defendant did. And Defendant’s argument that Plaintiff 

“cannot identify any authority clearly prohibiting Mally from preparing a truthful, accurate 

statement of probable cause that differs from a suspect’s version of the incident under 

circumstances similar to this case” is beside the point, as that is not a characterization of the facts 

in the light most favorable to Plaintiff. 

For these reasons, the Court finds that Defendant is entitled to qualified immunity as to 

Plaintiff’s excessive force claim, but not as to Plaintiff’s malicious prosecution claim.

E. Bane Act

Defendant next argues that he is entitled to summary judgment on Plaintiff’s Bane Act 

claim because he did not commit the underlying excessive force violation. The Bane Act “protects 

individuals from conduct aimed at interfering with rights that are secured by federal or state law, 

where the interference is carried out by threats, intimidation, or coercion.” Reese v. Cty. of 
13

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

United States District Court

Northern District of California

Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018) (internal quotation marks omitted). California 

Civil Code Section 52.1 “provides [the] cause of action for violations of a plaintiff’s state or 

federal civil rights committed by threats, intimidation, or coercion.” Id. (internal quotation marks 

omitted). “Claims under section 52.1 may be brought against public officials who are alleged to 

interfere with protected rights, and qualified immunity is not available for those claims.” Id. at 

1040–41. 

To establish a Bane Act claim, Plaintiff must ultimately prove “both (1) a violation of a 

‘state or federal constitutional or legal right’; and (2) that the violation was achieved through 

‘threats, intimidation, or coercion.’” Inman v. Anderson, 294 F. Supp. 3d 907, 928–29 (N.D. Cal. 

2018) (quoting Allen v. City of Sacramento, 183 Cal. Rptr. 3d 654, 676 (Ct. App. 2015)). And the 

Ninth Circuit has recently clarified that “[n]othing in the text of the [Bane Act] requires that the 

offending ‘threat, intimidation or coercion’ be ‘independent’ from the constitutional violation 

alleged.” Reese, 888 F.3d at 1043 (quoting Cornell v. City & Cty. of S.F., 225 Cal. Rptr. 3d 356,

383 (Ct. App. 2017)). Although the Ninth Circuit held that “the Bane Act does not require the 

threat, intimidation or coercion element of the claim to be transactionally independent from the 

constitutional violation alleged,” the Bane Act does require “a specific intent to violate the 

arrestee’s right to freedom from unreasonable seizure.” Id. (internal quotation marks omitted). 

Thus, evidence of an unreasonable use of force alone does not satisfy the Bane Act’s intent 

requirement. Instead, a plaintiff must show the officer “intended not only the force, but its 

unreasonableness, its character as ‘more than necessary under the circumstances.’” Id. at 1045 

(quoting United States v. Reese, 2 F.3d 870, 885 (9th Cir. 1993)). All told, summary judgment as 

to a Section 1983 excessive force claim due to qualified immunity does not compel summary 

judgment as to a Bane Act claim, but requires a heightened showing of intent.

As discussed above, there is a material dispute of fact as to whether Defendant acted 

unreasonably in releasing his K9 and permitting the K9 to continue to bite and hold Plaintiff under 

the circumstances, such that Plaintiff’s Fourth Amendment rights were violated. Further, at this 

stage, and viewing the evidence in the light most favorable to Plaintiff, the Court cannot conclude 

that that no reasonable jury could find that Defendant acted with at least a reckless disregard to the 
14

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

United States District Court

Northern District of California

unreasonableness of releasing a K9 on a suspect who was seated in a crashed vehicle and was not 

attempting to flee. And given that qualified immunity does not apply to a Bane Act claim, the 

Court finds that Defendant is not entitled to summary judgment on this claim.

F. Remaining State Law Claims

Finally, Defendant moves for summary judgment as to Plaintiff’s state law (1) negligence, 

(2) battery, and (3) intentional infliction of emotional distress claims. Mot. at 22–25. Defendant’s 

sole argument in favor of summary judgment on these claims, however, is that his use of a K9 was 

reasonable. See Reply at 14 (moving for summary judgment as to Plaintiff’s negligence claim 

because “[t]he undisputed evidence establishes that Mally’s conduct was objectively reasonable”); 

id. at 15 (moving for summary judgment as to Plaintiff’s battery claim because “Mally’s use of the 

K9 on Plaintiff was objectively reasonable under the totality of the circumstances”); id. (moving 

for summary judgment as to Plaintiff’s intentional infliction of emotional distress claim because 

“Mally’s use of force was objectively reasonable under the circumstances”). But for reasons 

discussed above, material facts exist such that the reasonableness of Defendant’s conduct is in 

dispute. Defendant’s basis for summary judgment on the remaining state law claims is thus 

unwarranted.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED as to 

the Section 1983 claim for excessive force. The motion for summary judgment is DENIED as to 

Plaintiff’s Section 1983 claims for unlawful seizure and malicious prosecution, as well as 

Plaintiff’s Bane Act, negligence, battery, and intentional infliction of emotional distress claims.

IT IS SO ORDERED.

Dated:

HAYWOOD S. GILLIAM, JR.

United States District Judge

 6/20/2019