Defendants’ Motion for Summary Judgment

Case No. 17-cv-00056-EDL

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DENNIS J. HERRERA, State Bar #139669

City Attorney

CHERYL ADAMS, State Bar #164194

Chief Trial Deputy

RENÉE E. ROSENBLIT, State Bar #304983

NEWTON OLDFATHER, State Bar #281227

Deputy City Attorney

Fox Plaza

1390 Market Street, 6th Floor

San Francisco, California 94102-5408

Telephone: (415) 554-3853

Facsimile: (415) 554-3837

E-Mail: renee.erickson@sfgov.org

Attorneys for Defendants

CITY AND COUNTY OF SAN FRANCISCO AND

POLICE OFFICER ANTHONY ASSERETO

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

GLENN BERRY,

Plaintiff,

vs.

CITY AND COUNTY OF SAN FRANCISCO 

and POLICE OFFICER ANTHONY 

ASSERETO,

Defendants.

Case No. 17-CV-00056-EDL

DEFENDANTS’ NOTICE OF MOTION AND 

MOTION FOR SUMMARY JUDGMENT

Hearing Date: November 28, 2017

Time: 9:00 a.m.

Place: 450 Golden Gate Avenue, 

Courtroom E, 15th Floor. 

San Francisco, CA 94102

Trial Date: May 14, 2018

Case 3:17-cv-00056-EDL Document 42 Filed 10/24/17 Page 1 of 19
Defendants’ Motion for Summary Judgment

Case No. 17-cv-00056-EDL

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

NOTICE OF MOTION AND MOTION .........................................................................................1

I. INTRODUCTION ...................................................................................................2

II. FACTS .....................................................................................................................2

A. The 911 Calls and Dispatch .........................................................................2

B. The Detention and Search of Plaintiff .........................................................3

C. Plaintiff’s Testimony Regarding The Incident And The Force ...................4

1. The Attempted Drug Purchase.........................................................4

2. The Alleged Kick To The Ground...................................................5

3. The Alleged Kicking On The Ground .............................................6

4. The Alleged Gun To The Head........................................................8

III. ARGUMENT...........................................................................................................8

A. PLAINTIFF HAS NOT CHALLENGED PROBABLE CAUSE ...............8

B. PLAINTIFF’S EXCESSIVE FORCE CLAIM FAILS ...............................8

1. OFFICER ASSERETO USED REASONABLE FORCE TO 

DETAIN AN INDIVIDUAL SUSPECTED OF ASSAULT 

WITH A FIREARM ........................................................................9

a. The Type And Amount of Force Was Minimal...................9

b. A 911 Call Of Assault With A Deadly Weapon Is A 

Severe Crime......................................................................10

c. Plaintiff Posed A Serious Risk To Officer and Public 

Safety .................................................................................11

2. OFFICER ASSERETO IS ENTITLED TO QUALIFIED 

IMMUNITY...................................................................................11

C. THE BANE ACT CLAIM FAILS.............................................................12

1. PLAINTIFF FAILS TO SHOW A CONSTITUTIONAL 

VIOLATION..................................................................................13

2. PLAINTIFF FAILS TO SHOW INTIMIDATION, COERCION, 

FORCE SEPARATE FROM THE CONSTITUTIONAL 

VIOLATION..................................................................................13

D. THE STATE TORT CLAIMS FAIL.........................................................14

1. THE CITY IS ENTITLED TO JUDGMENT BECAUSE 

OFFICER ASSERETO USED REASONABLE FORCE.............14

IV. CONCLUSION......................................................................................................14

Case 3:17-cv-00056-EDL Document 42 Filed 10/24/17 Page 2 of 19
Defendants’ Motion for Summary Judgment

Case No. 17-cv-00056-EDL

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TABLE OF AUTHORITIES

State Cases

Allen v. City of Sacramento

234 Cal.App.4th 41 (2015) ........................................................................................................13

Bender v. County of Los Angeles

217 Cal. App. 4th 968 (2013) ....................................................................................................14

Edson v. City of Anaheim

63 Cal.App.4th 1269 (1998) ......................................................................................................14

Shoyoye v. Cty. of L.A.

203 Cal.App.4th 947 (2012) ......................................................................................................13

State Statutes & Codes

Cal. Civ. Code § 52.1(a) ................................................................................................................13

California Civil Code 52.1...................................................................................................1, 13, 14

California Penal Code 835a .......................................................................................................1, 14

Federal Cases

Annan–Yartey v. Honolulu Police Dept.

2007 WL 2238858 (D .Haw. July 31, 2007) .............................................................................12

Ashcroft v. al-Kidd

131 S.Ct. 2074 (2011)..........................................................................................................11, 12

Barragan v. City of Eureka

2016 WL 4549130 (N.D. Cal. Sept. 1, 2016)............................................................................13

Brosseau v. Haugen

543 U.S. 194 (2004)...................................................................................................................11

Brown v. City of Oakland

2006 WL 1760747 (N.D. Cal. 2006) .........................................................................................10

Butz v. Economou

438 U.S. 478 (1978)...................................................................................................................11

Chew v. Gates

27 F.3d 1432 (9th Cir. 1994) .....................................................................................................10

Fox v. Jordan

2008 WL 11355543 (C.D. Cal. Mar. 21, 2008)...........................................................................9

Franklin v. Fox

312 F.3d 423 (9th Cir. 2002) .....................................................................................................11

Case 3:17-cv-00056-EDL Document 42 Filed 10/24/17 Page 3 of 19
Defendants’ Motion for Summary Judgment

Case No. 17-cv-00056-EDL

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Garvey v. Gibbons

2008 WL 4500011 (C.D. Cal. 2008) .........................................................................................10

Han v. City of Los Angeles

2016 WL 2758241 (C.D. Cal. May 12, 2016)...........................................................................13

Hinz v. City of Everett

2010 WL 3212001 (W.D.Wash. Aug. 10, 2010).........................................................................9

Hunter v. City & Cty. of San Francisco

2012 WL 4831634 (N.D. Cal. Oct. 10, 2012) ...........................................................................13

I.A. v. City of Emeryville

2017 WL 952894 (N.D. Cal. Mar. 13, 2017).............................................................................13

Jones v. Cty. of Contra Costa

2016 WL 1569974 (N.D. Cal. Apr. 19, 2016)...........................................................................13

Kassim Abdulkhalik v. City of San Diego

2009 WL 4282004 (S.D.Cal. Nov. 25, 2009)............................................................................12

Miller v. Clark Cty.

340 F.3d 959 (9th Cir. 2003) .......................................................................................................8

Morgan v. City of Pleasant Hill,

2005 WL 3454143 (N.D.Cal. Dec.16, 2005)...............................................................................9

Osborne v. Vancouver Police

2017 WL 1049479 (W.D. Wash. 2017).....................................................................................10

Pearson v. Callahan

555 U.S. 223 (2009)...................................................................................................................11

Plumhoff v. Rickard

134 S. Ct. 2012 (2014)...........................................................................................................8, 12

Ramirez v. City of Buena Park

560 F.3d 1012 (9th Cir. 2009) ...................................................................................................11

Reynolds v. County of San Diego

84 F.3d 1162 (9th Cir.1996) ......................................................................................................13

Saman v. Robbins

173 F.3d 1150 (9th Cir. 1999) .....................................................................................................9

Saucier v. Katz

533 U.S. 194 (2001)...................................................................................................................11

Sheridan v. Trickey

2010 WL 5812678 (D. Or. Dec. 16, 2010)................................................................................12

Case 3:17-cv-00056-EDL Document 42 Filed 10/24/17 Page 4 of 19
Defendants’ Motion for Summary Judgment

Case No. 17-cv-00056-EDL

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Smith v. City of Hemet

394 F.3d 689 (9th Cir. 2005) .....................................................................................................11

Stubblefield v. City of Novato

2016 WL 192539 (N.D. Cal. Jan. 15, 2016)..............................................................................13

United States v. LaVallee

439 F.3d 670 (10th Cir. 2006) ....................................................................................................10

Rules

Federal Rule of Civil Procedure 56 .................................................................................................1

Case 3:17-cv-00056-EDL Document 42 Filed 10/24/17 Page 5 of 19
Defendants’ Motion for Summary Judgment

Case No. 17-cv-00056-EDL

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NOTICE OF MOTION AND MOTION

TO PLAINTIFF AND TO HIS COUNSEL OF RECORD: 

PLEASE TAKE NOTICE that on November 28, 2017 at 9:00 a.m., in the United States 

District Court for the Northern District of California, 450 Golden Gate Ave., 15th Floor, Courtroom E, 

San Francisco, California, Defendants City and County of San Francisco (“the City”) and Defendant 

San Francisco Police Officer Anthony Assereto will, and hereby do, move the Court for summary 

judgment under Federal Rule of Civil Procedure 56 on all claims for relief contained in the Complaint 

in this action. Defendants base this motion on the following grounds:

1. Plaintiff’s excessive force claim fails as a matter of law and undisputed fact because the 

officers used reasonable force in light of the emergency nature of the 911 call, and because plaintiff’s 

lack of any injury demonstrates that plaintiff’s colloquial descriptions of the force are not competent 

evidence of excessive force. 

2. The defendant officer enjoys qualified immunity on the First Claim for Relief;

3. The Second Claim for relief alleging a violation of California Civil Code 52.1 fails as a 

matter of law and undisputed fact because there was no underlying constitutional violation, and 

because plaintiff has not shown evidence of threats, intimidation, or coercion that is separate and apart 

from plaintiff’s force allegations.

4. The Third Claim for relief and the Fourth Claim for relief both fail because the force 

was reasonable and therefore privileged under California Penal Code 835a.

Defendants base their motion on this notice of motion and motion, the memorandum of points 

and authorities in support thereof, the declarations, papers and other evidence submitted herewith, and 

such argument as may be heard. 

Case 3:17-cv-00056-EDL Document 42 Filed 10/24/17 Page 6 of 19
Defendants’ Motion for Summary Judgment

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I. INTRODUCTION

On December 2, 2016, San Francisco Police Officers Assereto, Hope, Taft, and McEachern

used reasonable force to detain plaintiff Glenn Berry on suspicion of assault with a firearm. After 

dispatch radioed a call of an assault with a firearm and a description of the suspect, the officers raced 

to the scene, pointed firearms at plaintiff, forced him to the ground, and held him there while they 

searched for a firearm. Though a likely unpleasant experience, plaintiff did not suffer any injury. 

In today’s age of gun violence, the officers acted commendably. An emergency call of a 

violent suspect with a gun is a terrifying call, raising a critically important government interest. There 

is no time for polite questioning or patience. Officers must respond rapidly with overwhelming force 

to ensure that no one discharges a firearm on a busy city block. Fortunately, this is exactly what these 

officers did. The officers used physical control holds to immediately overwhelm plaintiff, force him to 

a prone position, and ensure there was no firearm. 

Plaintiff’s entire case rests on hyperbolic descriptions of being taken to the ground, including 

“kicking” and “stomping.” But no matter how plaintiff describes the force, the undisputed evidence is 

that he was slow to get to the ground and suffered no injury. This lack of injury is dispositive 

evidence that shows the type and nature of force was minimal in relation to the overwhelming 

government interest. No reasonable jury could find excessive force. All of plaintiff’s claims must fail.

II. FACTS

A. The 911 Calls and Dispatch

On December 2, 2016, two citizens called 911 to report a fight at Hyde and O’Farrell Streets. 

First, a woman called 911 at approximately 12:38 p.m. and reported two African American men 

physically fighting in the street. (911 Call at 1238-1239 dt04.wav [Walker Decl. at Ex. A].) The 

woman identified one suspect as wearing a black sweater and black pants. (Id.) She identified the 

other suspect as wearing light denim jeans and a navy blue blazer. (Id.) 

Second, at approximately 12:39 p.m., a man called 911 and reported being attacked by an 

African American man. (911 Call. at 1239-1242 dt31.wav [Walker Decl. at Ex. B].) The man 

reported that his assailant was “armed with a gun” and wearing “black hood, black pants,” and a 

“black T-shirt.” (Id.) Dispatch asked if the man saw a gun, and the man replied in the affirmative and 

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Defendants’ Motion for Summary Judgment

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that the suspect “pull[ed] out the gun on me.” (Id.) The man stayed on the phone with 911 until police 

arrived, and the recording captured the audio of the man identifying the suspect to the officers. (Id.)

Dispatch began putting out the emergency information over the police radio as soon as it 

received the 911 calls. (Dispatch Audio Recording at 1237-1252 dt12.wav [Walker Decl. at Ex. C].)

Dispatch relayed to officers the following information:

“Dispatch: 2 bmas, one is wearing a black sweater, black pants, number 2 a 

navy blue blazer and light jeans, Hyde and O’Farrell... .”

(Id. at 1:35-1:46.)

...

“Dispatch: “They were in a physical, now it’s a verbal.”

(Id. at 2:10-2:15.)

...

“Dispatch: “Clear the air, the call at O’Farrell and Hyde, now we are getting 

that the one of the persons, one of the suspects, is a 221, and the 221 is a bma 

wearing a black hoodie, black pants, black t-shirt and he is now running on 

Ellis. He turned left on Ellis. The gun was seen ... .”

(Id. at 3:15-3:40.)

B. The Detention and Search of Plaintiff

After receiving the call of a fight from dispatch, Officer Daniel Tafts and Ryan McEachern 

travelled to Hyde and O’Farrell streets together. (McEachern Depo. at 17:12-18 [Oldfather Decl. Ex 

A].) As they approached the scene, a man, later identified as the 911 caller Morais, flagged them 

down. (Id. at 19:5-8.) Morais directed the officers’ attention to a person walking eastbound on Ellis 

Street, and Morais identified the person as being involved and having a gun. (Id. at 21:3-22:7.) 

Officer Meachern notified dispatch that the suspect had a gun. (Id. at 27:20-24.) 

Officer Meachern and Taft approached the suspect, plaintiff, from behind, with their firearms 

pointed at him. (Id. at 33:15-25.) When they were about 30 feet away, the officers told Berry to raise 

his hands and get on the ground. (Id. at 33:17-19, 35:3-10.) Berry did not get on the ground. (Id. at 

35:9-14.) 

At the same time, Officer Anthony Assereto and Micah Hope arrived and began approaching 

Berry. (Meachern Depo. at 38:7-10.) Officer Assereto had heard over the radio that the suspect had a 

gun. (Assereto Depo. at 39:25-40:2 [Oldfather Decl. Ex. B].) As Officer Assereto approached, he saw 

Officer McEachern with his firearm pointed at Berry. (Id. at 66:13-18.)

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Defendants’ Motion for Summary Judgment

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Officer Assereto approached plaintiff with his gun by side, pointed at the ground. (Id. at 

72:25-73:4.) Officers Taft and Hope were telling plaintiff to put his hands in the air and get on the 

ground. (Id. at 71:22-72:4.) Plaintiff put his hands in the air but did not get on the ground. Officer 

Assereto described it as “[h]e put his hands in the air. He was instructed to lay on the ground. He did 

so very slow. He had his butt in the air and kept, like, moving like, from side to side and refused to 

put his – I guess, like belly button prone on the concrete. And he was reacting very slow to, like, 

everything we were telling him to do.” (Id. at 74:23-75:4.) Officer Hope also remembers plaintiff 

refusing to lay all the way onto the ground. (Hope Depo. at 50:9-51:7 [Oldfather Decl. at Ex. C].)

Officer Assereto then used force to push plaintiff from a halfway down position to a prone 

position. Officer Assereto put his left foot on plaintiff’s buttocks and pushed him to a prone position, 

with plaintiff’s stomach touching the ground. (Assereto Depo. at 77:18-22). The maneuver took two 

to three seconds. (Id. at 78:15-79:7.) Officer Assereto did not otherwise kick or stomp on plaintiff. 

(Id. at 80:5-11, 89:25-90:7.) Officers Taft and Hope held plaintiff on the ground while they 

handcuffed him. (Hope Depo. at 50:25-51:18.) Officer Hope had to struggle with plaintiff to force 

plaintiff’s arms behind his back and into handcuffs. (Id.) 

Officers never found a gun. Plaintiff was released from the scene. 

C. Plaintiff’s Testimony Regarding The Incident And The Force

1. The Attempted Drug Purchase

Plaintiff testified that he was sitting at a bus stop with his cousin, getting ready to smoke 

marijuana, when an unknown individual approached them and asked to buy marijuana. (Plf.’s Depo. 

at 38:24-25, 40:7-11 [Oldfather Decl. Ex. D].) Plaintiff refused to sell the man any marijuana, and an 

argument ensued. (Id. at 42:24-25.) Plaintiff testified that the man made some kind of threat. (Id. at 

43:10-45:7.) Plaintiff then punched the man in the face. (Id.) The two scuffled for about 30 seconds. 

(Id.) 

About two to three minutes after the scuffle, plaintiff saw the man flagging down the police. 

(Id. at 67:15-68:23.) The next thing plaintiff knew, Officer Assereto approached plaintiff with his gun

drawn and said “get on the ground, get on the ground, get on the fucking ground” (id. at 83:2-10) and 

suddenly police officers “came from everywhere” (id. at 85:23-86:14.).

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Defendants’ Motion for Summary Judgment

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2. The Alleged Kick To The Ground

Plaintiff testified that Officer Assereto kicked him to the ground. (Plf.’s Depo. at 91:18-19) 

(“I got kicked to the ground.”) However, a close examination of plaintiff’s testimony reveals that 

plaintiff is referring to Officer Assereto using his foot to push plaintiff’s hips down, not being kicked 

from a standing position. 

Plaintiff makes a couple admissions that shows he was not obeying officer’s commands and he 

was slowly getting on the ground when he was “kicked.” Plaintiff testified that he was “getting to the 

ground slowly.” (Id. at 85:11). Plaintiff said he put his hands up “in an angle” and started to kneel 

“one leg at a time.” (Id. at 86:23-87:18). Plaintiff admits that it “may have looked like [he] was 

turning a certain way probably,” but that he was “getting on the ground.” (Id. at 89:3-10.) Plaintiff 

also admits that by the time Officer Assereto had reached him, his knees had still not touched the 

ground. (Id. at 90:11-25.) Plaintiff said that he was at a “kneeling point,” with his knees about to 

touch the ground but not yet touching, when Officer Assereto kicked him down to the ground. (Id. at 

91:20-92:4.) Plaintiff also admits that ten seconds had passed between Officer Assereto telling him to 

get on the ground and plaintiff finally being forced to the ground. (Id. at 108:19-24.) 

Describing the kick, plaintiff said “when I got kicked, all I remember, I felt a jolt, and before I 

knew it, I was on my stomach.” (Id. at 97:23-98:1.) Plaintiff also described the force as fast and kind 

of happening all at once. (Id. at 89:14-16) (“A: It happened so fast. Like, I – you know, I really don’t 

– from, like, once he got close to kicking me, everything just happened so fast and -- .”)

Assereto’s testimony is substantially the same as plaintiff’s. Assereto stated that plaintiff was 

slow getting to the ground, and that, while plaintiff’s “chest was facing the ground,” (similar to 

plaintiff’s testimony of being at a “kneeling point”), Officer Assereto put his left foot on plaintiff’s 

buttock area and pushed his waist to the ground. (Assereto Depo. at 82:16-17.) 

Plaintiff and Officer Assereto are both describing the same thing – a basic takedown. Officer 

Assereto used his foot to force plaintiff into a prone position from a crouched or “kneeling point” 

position. Even accepting plaintiff’s characterization that the push was more of a kick than a push, the 

difference is immaterial in light of the fact that the force did not cause any injury, the crime was 

severe, and both descriptions – a push or a kick – show force motivated by the legitimate lawful 

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Defendants’ Motion for Summary Judgment

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purpose of forcing plaintiff into a prone position after he failed to get on the ground despite multiple 

commands and despite that ten seconds had passed. 

3. The Alleged Kicking On The Ground

Plaintiff also alleges that someone repeatedly “kicked” him while he was on the ground. (Plf.’s 

Depo at 96:19-97:2) (“And then I remember just being spread out, my whole body just being spread 

out. And the next thing you know, I’m still getting kicked, like, repeatedly, over and over.”) Again, a

close examination of plaintiff’s testimony demonstrates that plaintiff’s “kicks” were likely some

minor, incidental touching as a result of holding plaintiff on the ground. 

Plaintiff’s description of the kicks is vague. Plaintiff said he was kicked “several times” in his 

“lower back.” (Id. at 109:19-24.) When asked to be specific about where he was kicked, plaintiff 

said, “I mean, wherever the space was open, where he had space to kick me at, that’s where he was 

kicking me. So, yeah, within this area all up in the left – like left side, whatever.” (Id. at 110:12-16.) 

When asked to clarify again, plaintiff said, “middle, lower back; everything.” (Id. at 110:17-18.) 

When asked how many times he was kicked, plaintiff could not give a number. (Id. at 112:6-19.) 

Rather, plaintiff said the kicks were “simultaneous kicks,” and that they were coming “from above,” 

like a “stomp out, riding me out now.” (Id. at 112:23-113:3.) 

Plaintiff never described the kicking as the kind of kick one sees in a football game or soccer 

match. Rather, plaintiff’s description focuses oddly on the foot. (Id. at 111:24-112:5) (“I’m still 

getting that same foot. I kept feeling the same person kicking me. Like, I knew he had – he was the 

only one kicking me. There was only one foot I felt kicking me over and over. ... .”) 

These vague descriptions of force are not competent evidence of “kicking” that warrants a jury

inquiry. Plaintiff admits that officers were surrounding him, holding him on the ground, and that an 

officer had a knee in his back. If anything, plaintiff likely felt the foot of the officer who was using his 

knee to exert pressure on plaintiff’s upper back. (Id. at 102:21-103:2 (“[I] got a knee in my back ”); 

110:19-23 (“somebody is holding me on my right side with a knee in my back.”).) This would explain 

why plaintiff could not state where he was kicked; it would also explain plaintiff’s description of a 

“stomp out,” “riding me out;” and it would explain why these alleged “kicks” didn’t cause any injury. 

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Defendants’ Motion for Summary Judgment

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Notably, plaintiff admits that he did not actually see Officer Assereto “kicking” him. (Id. at 113:14-

15.) 

Finally, most importantly, these “kicks” did not cause any injury at all. Plaintiff admits that he 

did not even suffer bruising: 

Q: What part or parts of your body were injured as a result of this incident?

A: My lower-back area.

Q: Any other part of your body?

A: No.

Q: Legs?

A: No.

Q: Feet?

A: No.

Q: Arms?

A: No.

Q: Hands?

A: No.

Q: Pelvis?

A: No.

Q: Head?

A: No.

Q: Neck?

A: No.

Q: Just your lower back; right?

A: Just my lower back area.

Q: Not your upper back?

A: No.

Q: Okay. And what kind of injury did you have to your lower back?

A: I guess probably, like, I don’t know. Bruising or something. Bruising.

Q: Did you have a bruise?

A: I didn’t see. They said they didn’t see any bruises.

Q: Who is “they?”

A: I’m guessing the ambulance people, the doctors. You couldn’t see my 

bruises. I don’t think they could see. I felt – I still felt pain.

Q: I understand you felt pain, but you couldn’t see any bruises?

A: I couldn’t.

Q: You couldn’t. And the doctor said they couldn’t see bruises?

A: I don’t think so. I didn’t see the report, but I don’t think they did see any 

bruises.”

(Plf.’s Depo at 164:9-165:24.) 

Plaintiff also said he did not feel any pain until later in the day, after he had walked a “good 

distance.” (Id. at 166:15-16) (“Q: So when did you first feel pain in your lower back? A: Once I 

started walking a good distance from the job, making my way to 20 Jones.”)

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Defendants’ Motion for Summary Judgment

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4. The Alleged Gun To The Head

Plaintiff also alleged that an officer put a gun to his head and threatened to kill him if he did

not stop moving. (Plf.’s Depo. at 115:22-24) (“I felt something like a gun or something behind my 

head – behind the neck/head area. That’s all I remember feeling.”) When asked if plaintiff could tell 

what the object was, plaintiff responded that he only knew it was an object. (Id. at 116:4-13) (“It was 

definitely a barrel. It wasn’t a finger, because you can poke somebody with a finger. You can feel 

that. No, this is not a finger. This thing was solid. I could feel something solid, and I couldn’t 

directly tell, but I knew it was an object. It wasn’t a person’s limbs or fingers or fist. No, this was 

something you use, a tool.”) In the end, this allegation is immaterial because even if plaintiff could 

establish that the object was a gun, plaintiff admits that he does not know who said the statement. (Id.

at 197:21-25 (“Q: But you don’t know what officer did that? A: No. But I’m claiming it had to be 

Officer Assereto. ... I just felt everything come from him.”); 197:7-10 (“Q: Did you see that officer? 

A: I couldn’t really see, but I listened to the voice. It may have been him, but I’m not for certain 

because, like I said, I’m looking at a gate.”).)

III. ARGUMENT

A. PLAINTIFF HAS NOT CHALLENGED PROBABLE CAUSE

Plaintiff has not challenged the officer’s probable cause to detain and arrest plaintiff. There is 

no false arrest claim.

B. PLAINTIFF’S EXCESSIVE FORCE CLAIM FAILS

A claim that law-enforcement officers used excessive force to effect a seizure is governed by 

the Fourth Amendment’s “reasonableness” standard. Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 

(2014). The Ninth Circuit has created a three step analytical framework to evaluate reasonableness. 

Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir. 2003). First, “we assess the gravity of the particular 

intrusion on Fourth Amendment interests by evaluating the type and amount of force inflicted.” Id.

Second, “we assess the importance of the government interests at stake by evaluating: (1) the severity 

of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or 

others; and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by 

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Defendants’ Motion for Summary Judgment

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flight.” Id. Third, “we balance the gravity of the intrusion on the individual against the government’s 

need for that intrusion to determine whether it was constitutionally reasonable. Id. 

1. OFFICER ASSERETO USED REASONABLE FORCE TO DETAIN AN 

INDIVIDUAL SUSPECTED OF ASSAULT WITH A FIREARM

a. The Type And Amount of Force Was Minimal

Police officers pointed their firearms at plaintiff, forced him to the ground, and held him down 

to secure him. All of these actions are entirely reasonable ways of responding to an unknown, armed 

assailant, especially when, as plaintiff admits, the suspect did not immediately obey the officer’s 

commands to get on the ground. See e.g., Saman v. Robbins, 173 F.3d 1150, 1157 (9th Cir. 1999)

(holding that forcing a potentially armed suspect to the ground and a single kick were reasonable 

efforts to incapacitate him.); Morgan v. City of Pleasant Hill, No. C–04–04865–CRB, 2005 WL 

3454143 (N.D.Cal. Dec.16, 2005) (holding officers' drawing and pointing of firearms at suspects not 

excessive force where officers believed plaintiff “was in the midst of committing a serious felony” at 

night and a reasonable officer would believe one committing such crime at night “could very well be 

armed”): Hinz v. City of Everett, No. C10–0347–JCC, 2010 WL 3212001 (W.D.Wash. Aug. 10, 2010)

(finding no excessive force when an officer investigating an assault pulled his gun on a suspect sitting 

in a lawn chair because the officer had a reasonable suspicion that the suspect was armed and was 

unable to see whether the suspect had a weapon within reach); Fox v. Jordan, No. CV 04-3073-

ODW(CW), 2008 WL 11355543, at *6 (C.D. Cal. Mar. 21, 2008) (finding reasonable that officers 

jumped on suspect, forcibly held him down, twisted his arms to handcuff him, and “jumped on his 

lower right leg” because there was no injury.) 

In sum, officers are entitled to take measures to protect themselves. These officers did not use 

batons, pepper spray, or any tool other than basic takedown maneuvers that did not cause injury. 

Although plaintiff claims there was “kicking” and “stomping,” these descriptions do not create 

a dispute of material fact. As described above in section II.C.3., plaintiff is not describing a series of 

events that officers deny occurred. Rather, plaintiff is describing the same events but describing them 

with hyperbole, changing every touching to a kick or stomp. 

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Defendants’ Motion for Summary Judgment

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Plaintiff’s lack of injury demonstrates why the Court should reject plaintiff’s hyperbolic and 

conclusory descriptions of “kicking” or “stomping.” Although injury is not a requirement for an 

excessive force claim, the degree of injury is “highly relevant to the determination of the 

unreasonableness of the force used.” See United States v. LaVallee, 439 F.3d 670, 688 (10th Cir. 

2006)(noting that “the degree of injury may be highly relevant to the determination of the 

unreasonableness of the force used.”); see also Osborne v. Vancouver Police, 2017 WL 1049479 at *7 

(W.D. Wash. 2017) (rejecting plaintiff’s claim that he was kneed in the stomach and thrown on the 

ground because he could not show the requisite injury); Brown v. City of Oakland, 2006 WL 1760747, 

at *6 (N.D. Cal. 2006) (the “severity of the plaintiff’s injury” can be “evidence of minimal use of 

force”); Garvey v. Gibbons, 2008 WL 4500011, at *11 (C.D. Cal. 2008) (finding that minor soreness 

and bruising shows the force was not excessive).

Plaintiff had no injuries from the force. Plaintiff said he was sore, but admitted there was no 

bruising. Plaintiff also admitted that he did not feel pain until sometime after the incident, after he got 

up and walked around. This lack of injury proves that what plaintiff calls a kick was really a push, and 

what he calls a stomp is a step, or just pressure. Had the force occurred as plaintiff describes – being 

kicked more than five times while he lay on the ground defenseless – plaintiff would have had broken 

bones or, at the very least, significant hemorrhaging. This Court need not credit testimony that 

requires the suspension of science. 

b. A 911 Call Of Assault With A Deadly Weapon Is A Severe Crime

The Ninth Circuit has indicated that the most important factor to determine the “severity” of a 

crime is whether it involves violence or an armed suspect. Chew v. Gates, 27 F.3d 1432, 1441 (9th 

Cir. 1994).

In the case before the Court, the officers received information from dispatch that plaintiff was 

armed and attacked someone. This is a severe crime that greatly affects public safety. The 

government interest in apprehending plaintiff quickly and without further conflict weighs heavily in 

favor of the defendants.

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c. Plaintiff Posed A Serious Risk To Officer and Public Safety

Safety of officers and others is one of the most important factors to consider when evaluating a 

use of force. Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005).

Obviously, a call of an armed assailant on a City street poses a great risk of harm to the officers 

and civilians nearby. Upon approaching an armed suspect, police officers in uniform immediately

become targets. In addition, if officers do not move quickly, a resulting shootout on a City street can 

easily mean bullets hitting civilians. A call of an assailant with a gun poses a very grave safety risk 

and weighs heavily in favor of the defendants. 

2. OFFICER ASSERETO IS ENTITLED TO QUALIFIED IMMUNITY

An officer is entitled to qualified immunity unless “existing precedent [has] placed the 

statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2081 (2011); 

see also Pearson v. Callahan, 555 U.S. 223, 231 (2009). The purpose of qualified immunity is to 

ensure that officers, before they are held liable for constitutional violations, have “fair notice that 

[their] conduct was unlawful.” See Brosseau v. Haugen, 543 U.S. 194, 198 (2004). Even when an 

officer makes a reasonable mistake about either the state of the law or the facts, a Court should grant 

qualified immunity. Butz v. Economou, 438 U.S. 478, 507 (1978); Haynie v. County of Los Angeles, 

339 F.3d 1071, 1077-78 (9th Cir. 2003) (citing Saucier v. Katz, 533 U.S. 194, 200 (2001)). 

Ninth Circuit district courts traditionally evaluate a defendant’s qualified immunity defense 

using a two-step inquiry based on Saucier. See Ramirez v. City of Buena Park, 560 F.3d 1012, 1020 

(9th Cir. 2009). Although Saucier’s two-step inquiry is no longer “an inflexible requirement,” 

generally, under the first step of Saucier, the issue is whether on the undisputed facts, the officers 

violated a constitutional right. Pearson, 555 U.S. at 231. Under the second step of Saucier, the issue 

is whether that right was “clearly established” in the specific factual context confronting the Officers. 

Saucier, 533 U.S. at 202. Thus, even if any of the individual Defendants violated federal law, the 

Court must consider whether the law was clearly established as it applied to their situation. “If an 

official could reasonably have believed her actions were legal in light of clearly established law and 

the information she possessed at the time, she is protected by qualified immunity.” Franklin v. Fox, 

312 F.3d 423, 437 (9th Cir. 2002) (citing Saucier). 

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Defendants’ Motion for Summary Judgment

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In the context of excessive force, it is error to construe the right simply as the right to be free 

from excessive force. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2087 (2011) (“We have repeatedly told 

courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of 

generality.”); see also City & Cnty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1776 (2015)

(“Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the 

right to be free from unreasonable searches and seizures.”) Plaintiff must prove that clearly 

established federal law placed the specific situation confronted by the official “beyond debate,” and 

that any reasonable official in the defendant’s shoes would have understood he was violating the 

Constitution. Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2012). 

In short, plaintiff cannot show a clear rule that it was unconstitutional for Officer Assereto to 

use a takedown maneuver on a person he suspects is armed and who is not getting on the ground, and 

that takedown maneuver causes no injury whatsoever. Indeed, case law in this Circuit has held exactly 

the opposite. Kassim Abdulkhalik v. City of San Diego, No. 08CV1515–MMA (NLS), 2009 WL 

4282004, at *7 (S.D.Cal. Nov. 25, 2009) (takedown maneuver accomplished through a headlock in 

and off itself not excessive force as a matter of law); Annan–Yartey v. Honolulu Police Dept., No. CV 

06–00166 DAE–BMK, 2007 WL 2238858, at *4–5 (D .Haw. July 31, 2007) (granting summary 

judgment in favor of the officer who effectuated a takedown—no serious injuries resulted from the 

maneuver); Sheridan v. Trickey, No. CIV. 10-06034-AC, 2010 WL 5812678, at *9 (D. Or. Dec. 16, 

2010) (“[A] reasonable officer, in a situation where an arrestee is resisting arrest and/or creating an 

immediate threat, would believe that the decision to execute a controlled takedown maneuver is 

lawful.”)

Even if the Court credits plaintiff’s hyperbole of “kicks” and “stomps,” the fact that he was not 

injured entitles Officer Assereto to qualified immunity. 

C. THE BANE ACT CLAIM FAILS

California’s Bane Act provides a private right of action against a person or persons who 

interfere by “threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or 

coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the 

Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this 

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state[.]” Cal. Civ. Code § 52.1(a). “There are two distinct elements for a section 52.1 cause of action. 

A plaintiff must show (1) intentional interference or attempted interference with a state or federal 

constitutional or legal right, and (2) the interference or attempted interference was by threats, 

intimidation or coercion.” Allen v. City of Sacramento, 234 Cal.App.4th 41, 67 2015. In other words, 

“[a] defendant is liable if he or she interfered with or attempted to interfere with the plaintiff's 

constitutional rights by the requisite threats, intimidation, or coercion.” Shoyoye v. Cty. of L.A., 203 

Cal.App.4th 947, 956 (2012).

Whether excessive force alone can support both prongs of a Bane Act Claim is an open 

question. Defendants acknowledge that the majority of courts in the Northern District of California 

have held that it can, Barragan v. City of Eureka, 2016 WL 4549130, at *8 (N.D. Cal. Sept. 1, 2016)

Stubblefield v. City of Novato, 2016 WL 192539, at *11 (N.D. Cal. Jan. 15, 2016)); see I.A. v. City of 

Emeryville, 2017 WL 952894, at *11 (N.D. Cal. Mar. 13, 2017); Jones v. Cty. of Contra Costa, 2016 

WL 1569974, at *6 (N.D. Cal. Apr. 19, 2016), but because the Ninth Circuit and California Supreme 

Court have not yet ruled on the issue, defendants wish to preserve the argument that it cannot. 

1. PLAINTIFF FAILS TO SHOW A CONSTITUTIONAL VIOLATION

As described above, the officers used reasonable force, which means the Bane Act claim fails 

because there is no underlying constitutional violation. Reynolds v. County of San Diego, 84 F.3d 

1162, 1170 (9th Cir.1996) (“Section 52.1 does not provide any substantive protections; instead, it 

enables individuals to sue for damages as a result of constitutional violations.”)

2. PLAINTIFF FAILS TO SHOW INTIMIDATION, COERCION, FORCE 

SEPARATE FROM THE CONSTITUTIONAL VIOLATION

California Code of Civil Procedure 52.1 has two, distinct, separate elements. Defendants agree 

with a federal district court in the central district that held the “Bane Act required additional coercion” 

that goes “beyond the allegations of [a plaintiff’s] § 1983 violations.” Han v. City of Los Angeles,

2016 WL 2758241, *1 (C.D. Cal. May 12, 2016); see also Hunter v. City & Cty. of San Francisco, No. 

11-4911 JSC, 2012 WL 4831634, at *6 (N.D. Cal. Oct. 10, 2012) (granting judgment on 52.1 because 

taunting during allegedly excessive force was not enough to support the Bane Act). A two part

framework is best in keeping with the California Court of Appeal’s analysis in Bender v. County of 

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Defendants’ Motion for Summary Judgment

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Los Angeles, 217 Cal. App. 4th 968 (2013), in which the court went out of its way to explain that the 

Bane Act requires a “showing of coercion independent from the coercion inherent in the wrongful 

detention.” Defendants do not believe that the California Legislature passed 52.1 with an intention to 

create a new state cause of action for excessive force that omitted qualified immunity. 

In this case, because plaintiff does not allege that Officer Assereto used intimidation, coercion, 

or force separate and apart from the force inherent in his excessive force claim, the 52.1 claim 

automatically fails.

D. THE STATE TORT CLAIMS FAIL

1. THE CITY IS ENTITLED TO JUDGMENT BECAUSE OFFICER 

ASSERETO USED REASONABLE FORCE

California Penal Code 835a privileges officers to use reasonable force. Pen. Code § 835a. 

Plaintiff’s negligence claim fails because the officers used reasonable force, and plaintiff’s intentional 

infliction of emotional distress claim fails because the officers used reasonable force and their conduct 

was not extreme or outrageous. Edson v. City of Anaheim, 63 Cal.App.4th 1269, 1272–73

(Cal.Ct.App. 1998) (no state tort liability for reasonable force). 

IV. CONCLUSION

An armed assailant presents a very difficult situation. The officers had every right to take 

plaintiff to the ground, pin him there, and handcuff him while they searched for a weapon. That 

plaintiff suffered no injury proves that these officers acted commendably and well within their 

Constitutional authority. 

Dated: October 24, 2017

DENNIS J. HERRERA

City Attorney

CHERYL ADAMS

Chief Trial Deputy

RENÉE E. ROSENBLIT

NEWTON OLDFATHER

Deputy City Attorneys

By: /s/ Newton Oldfather

NEWTON OLDFATHER

Attorneys for Defendants

CITY AND COUNTY OF SAN FRANCISCO AND

POLICE OFFICER ANTHONY ASSERETO

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