ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Docket No. 52]
I. INTRODUCTION
This civil rights action involves allegations that officers of the San Francisco *1087 Police Department (“SFPD”) violated Plaintiffs constitutional right to be free from unreasonable seizure and excessive force. Defendants bring a motion for partial summary judgment (“the Motion”). All parties have consented to the jurisdiction of a United States magistrate judge, pursuant to 28 U.S.C. § 636(c). On Friday, February 26, a hearing on the Motion was held. For the reasons stated below, Defendants’ Motion is GRANTED in part and DENIED in part.
II. BACKGROUND
A. Facts
1. Events Leading up to Encounter Between Plaintiff and SFPD Officers
a. Malehki and Jemahl Loharsingh’s Accounts
According to Plaintiff Malehki Loharsingh, on September 22, 2007, he and Erica Spinks, his girlfriend and business partner, as well as Jemahl Loharsingh, his nephew, were passing out flyers in Oakland and Berkeley to promote the release of an upcoming album produced by Plaintiffs production and entertainment company. Plaintiffs Opposition to Defendants’ Motion for Partial Summary Judgment (“Opp’n”), Ex. A (Deposition of Malehki Loharsingh) at 41. Plaintiff testified that Jemahl’s girlfriend, Monique, told the group about a party in San Francisco and Plaintiff, Jemahl, and Spinks decided to go to the party to pass out flyers. Id.
According to Plaintiff, Spinks drove Plaintiff and Jemahl to San Francisco in her Cadillac. Id. at 43. When they were unable to locate the party, they parked at the intersection of 18th Street and Shot-well Street in San Francisco’s Mission District. Id. at 43, 46, 50. Plaintiff testified that the three continued searching for the party on foot and still could not find it so Monique met the group to help them look. Id. at 58. Plaintiff and Jemahl decided to wait in the car while Spinks and Monique continued to search for the party on foot. Id. at 58, 70. According to Plaintiff, he retrieved the keys from Spinks, sat in the driver’s seat of the Cadillac, and lowered the seat back, while Jemahl sat in the front passenger seat. Id. at 70-72. Plaintiff asserts that he placed the keys in the center console and turned on an iPod music player located in the car to listen to music, then placed the iPod between the center console and the driver’s seat cushion. Id. at 73, 77; Opp’n, Ex. B (Deposition of Jemahl Loharsingh) at 39. Jemahl had a bag of marijuana in his possession during this time, but Jemahl testified that Plaintiff did not know of the marijuana or that Jemahl used marijuana. Opp’n, Ex. B at 67.
b. Defendant SFPD Officers’ Accounts
On September 22, 2007, Officer Cristina Franco and Officer Wesley Villaruel were working on prostitution detail on foot in the Mission District of San Francisco. Defendants’ Reply Brief in Support of Motion for Partial Summary Judgment (“Reply”), Ex. L (Deposition of Cristina Franco) at 54. Officers Ernest Trapsi and Timothy Neves were also working in the Mission District in a marked police car. Declaration of Officer Ernest Trapsi in Support of Defendants’ Motion for Partial Summary Judgment (“Trapsi Deck”) ¶ 2. The officers were working in the area around 18th Street and Shotwell Street and claim that they knew it as an area with a high concentration of prostitution, assaults, batteries, thefts, robberies, narcotics use, and other crimes. Declaration of Sergeant Cristina Franco in Support of Defendants’ Motion for Partial Summary Judgment (“Franco Deck”) ¶ 2. According to Officer Franco, while investigating a suspected pimp and prostitute, she witnessed the suspects get into a white Honda Civic and begin driving away. Reply, Ex. L at 74. *1088 Officer Villaruel reportedly contacted Officer Trapsi and requested that he conduct a traffic stop of the Honda. Id. Officer Trapsi and Officer Neves pulled over the Honda at 18th Street and Shotwell Street and Officer Franco and Officer Villaruel arrived shortly thereafter on foot. Id. at 75. Officer Franco states that she was the only female officer present at the stop. Franco Decl. ¶ 10.
According to Officer Trapsi, as he prepared to approach the Honda he noticed Plaintiff and Jemahl sitting in the parked Cadillac with their seats reclined. Opp’n, Ex. E (Deposition of Officer Ernest Trapsi) at 23; Trapsi Decl. ¶ 3. Officer Trapsi states he saw Plaintiff make a quick movement as though he was trying to hide from the officers. Opp’n, Ex. E at 23. He described the movement as a quick slouching down and lying back that caused Plaintiffs body, head, and shoulders to lower. Id. at 20. Aside from leaning back, the only other movement Officer Trapsi asserts that he saw at that time was Plaintiff popping his head up, looking at Officer Trapsi, and then moving back down. Id. at 25-26. According to Officer Trapsi, Plaintiff made eye contact with him and then quickly looked away and ducked his head down. Trapsi Decl. ¶ 3. Officer Trapsi testified that he could not see Malehki or Jemahl Loharsingh’s hands and did not hear any sound coming from the Cadillac. Opp’n, Ex. E at 30. At that point, Officer Trapsi had no knowledge of whether Plaintiff was properly licensed to drive. Id. at 35.
Officer Franco testified that when she arrived on the scene, Officer Trapsi told her that there was a Cadillac parked next to the patrol car that appeared suspicious. Reply, Ex. L at 86. According to Officer Franco, Officer Trapsi told her that he had observed the occupants of the Cadillac ducking down and that he did not want to turn his back to the Cadillac to approach the Honda out of concern for the safety of the officers. Id. at 94; Opp’n, Ex. D (Deposition of Officer Cristina Franco) at 90. Officer Franco asserts that she, Officer Trapsi, and Officer Villaruel then decided to make contact with the occupants of the Cadillac while Officer Neves kept an eye on the Honda. Reply, Ex. L at 96. Officer Franco testified that she did not know at that time whether Plaintiff and Jemahl were committing a crime but that she thought the way they were slouching down was suspicious. Id. at 97.
2. Encounter Between Plaintiff and SFPD Officers
a. Malehki Loharsingh’s Account
According to Plaintiff, he and Jemahl were sitting in the Cadillac “free-styling” to the music when Plaintiff saw a patrol car drive by. Opp’n, Ex. A at 77. Plaintiff asserts that he turned off the iPod as he watched the patrol car make a U-turn and pull over another vehicle next to the Cadillac. Id. at 78-79. As Plaintiff looked to the left out of the driver’s side window to watch the traffic stop, he claims that he suddenly saw more than one police officer approaching the Cadillac and ordering him to “Get the fuck out of the car.” Id. at 86-87. Plaintiff testified that when the police approached the Cadillac he did not try to avoid eye contact. Id. at 119. When asked whether he slouched or did anything to evade detection Plaintiff answered, “No, but ... I think my seat might have been lowered down or whatever to where it could have appeared that way or whatever. I don’t know.” Reply, Ex. J (Deposition of Malehki Loharsingh) at 118.
Plaintiff does not remember how many officers approached him as he sat in the car. Opp’n, Ex. A at 87. According to Plaintiff, the officers drew their guns as they ordered Plaintiff to put his hands up and get out of the car. Id. at 89-90. Plaintiff asserts that from the time when *1089 the officers made the traffic stop to the time when they arrived at Plaintiffs door, his right hand was on the steering column under the steering wheel and his left hand was at his side. Id. at 96-97, 99; Reply, Ex. J at 98. The officers’ approach “happened quick” and Plaintiff estimated that it took only a “couple of minutes” from the time he saw the patrol car make the U-turn to when the police arrived at the driver’s door of the Cadillac. Opp’n, Ex. A at 86.
According to Plaintiff, when the officers ordered Plaintiff to put his hands up and get out of the car, Plaintiff put his hands up and asked, “What did we do? Why do we got to step out of the car?” Id. at 91. Plaintiff testified that he initially asked the officers why he was being ordered out of the car because he did not understand why he was being asked to get out of the car and wanted to clarify that he had not done anything wrong. Id. at 112. As the officers again ordered Plaintiff to “Get the fuck out of the car,” Plaintiff claims that he reached toward the door handle to open the door and exit the vehicle. Id. at 91. Before he opened the door an officer pulled the door open. Id. Plaintiff testified that more than one officer grabbed him by his upper body and pulled him out of the car. Id. at 101. According to Plaintiff, as he was being pulled out of the car he saw and felt a fist hit him in the side of his head but could not see which officer hit him. Id. at 102. Plaintiff claims he hit the ground face first and felt multiple kicks to the back of his head before he blacked out. Id. at 105. He testified that he did not see which officers kicked him and could not identify them. Id. at 105; Reply, Ex. J at 168.
b. Jemahl Loharsingh’s Account
According to Jemahl, he and Plaintiff were sitting in the car listening to the iPod and Jemahl was rapping when Jemahl saw the police car. Opp’n, Ex. B at 39. Jemahl asserts that he saw the police officers do a U-turn and make a traffic stop of another other car. Id. at 43. Jemahl testified that Plaintiff turned off the music when the officers were outside of the patrol car and approaching the other car. Id. He testified that the officers had their guns drawn as they were conducting the traffic stop of the other car when “out of nowhere, they just turn[ed] all their focus to [Jemahl and Plaintiff].” Id. at 44. Jemahl estimated the time between the police stop of the other car and when the officers began approaching the Cadillac was about one to two minutes. Id. He cannot remember how many police officers there were, but approximates that there were five or more. Id. at 48. According to Jemahl, neither he nor Plaintiff did anything to evade detection or stoop down, nor did they push their seats back. Id. at 49.
Jemahl testified that as the officers approached, a male officer ordered Plaintiff out of the car and Plaintiff and Jemahl put their hands up. Id. at 52-53. Jemahl states he did not see Plaintiff grab the steering wheel or steering column and he did not see Plaintiff do anything with the keys or the ignition as the officers approached. Id. at 53. An officer reportedly said, “Get the fuck out of the car,” and, “Open the fucking door.” Id. at 55. According to Jemahl, Plaintiff responded, “What is going on? What did we do?” and then reached with his left arm for the door handle to open the door. Id. Jemahl testified that as Plaintiff began to open the door, an officer pulled it open and pulled Plaintiff out of the car. Id. Jemahl saw an officer strike Plaintiff and testified that the officer who hit Plaintiff was the same officer who opened the driver’s side door. Id. at 55-56; Motion, Ex. B at 57. During deposition, Jemahl described the officer who struck Plaintiff as male, stating “he was an officer,” and “he hit him, like he *1090 knocked him down.” Motion, Ex. B (Declaration of Jemahl Loharsingh) at 57. Jemahl saw Plaintiff hit his head on the car as he fell to the pavement after being struck. Id. At this point, Jemahl could no longer see what was happening to Plaintiff because the police officers were blocking Plaintiff. Id. at 58. A police officer on the passenger side of the Cadillac told Jemahl to get out of the car and Jemahl informed the officer that he was a minor. Id. at 59. Jemahl testified that after he exited the car he looked over and saw the other officers “stomping” Plaintiff. Id. He could not tell which officers were engaged in this conduct or how many but testified that it was more than two. Id. at 62. Jemahl asserts that the kicking and stomping happened fast and lasted for less than a minute, during which time each officer stomped Plaintiff several times. Id. at 63; Opp’n, Ex. B at 64.
According to Jemahl, a male police officer questioned him as he stood on the sidewalk on the passenger side of the car and a female officer was near him as well. Motion, Ex. B at 60-61. Jemahl had the marijuana hidden in his mouth at this time. Id. at 67. He states that he gave the marijuana to the officer talking to him at the same time that the other officers were handcuffing Plaintiff. Id. at 69. Plaintiff appeared unconscious while he was being handcuffed and was not responding to Jemahl’s calls. Id. at 69; Opp’n, Ex. B at 71.
c. Officer Franco’s Account
Officer Franco and Officer Villaruel assert that they approached the driver’s side of the Cadillac while Officer Trapsi approached the passenger side. Reply, Ex. L at 97. According to Officer Franco, as she approached Plaintiff was slouched down in the reclined car seat and then sat up and swung both hands underneath the steering wheel. Opp’n, Ex. D at 99. Officer Franco states that she identified herself as police and repeatedly ordered Plaintiff and Jemahl to raise their hands. Id. at 100, 102. She asserts that Plaintiff did not comply with her orders to raise his hands and continued to move his hands in his lap or between his legs inside the vehicle. Id. at 102-03. Officer Franco described Plaintiffs movement as “[b]ody movement forward as if he was reaching for something.” Id. at 103. Concerned that Plaintiff might be reaching for a weapon, she states that she opened the driver’s side door of the Cadillac and attempted to control Plaintiffs movements. Id. at 107-08. Officer Franco did not see Plaintiff reach for the door handle. Id. at 106. Officer Franco testified that she was the first officer to make physical contact with Plaintiff, grabbing his left arm with both hands. Id. at 107-08. According to Officer Franco, Plaintiff resisted her attempts to control his arms and pulled away, so Officer Villaruel reached into the car to assist her in getting Plaintiff out of the car. Id. at 110. As the officers tried to remove him from the vehicle, Plaintiff allegedly tried to lunge over to the passenger seat, which Officer Franco testified was empty at that time. Id. at 108, 110. Officer Franco testified that Jemahl stepped out of the car right at the time when she opened Plaintiffs door and reached in to pull him out. Id. at 109. Officer Franco asserts that at no time did any officer strike or kick Plaintiff. Id. at 113. After Plaintiff was handcuffed, the officers reportedly sat him upright, at which point Officer Franco went to the passenger side of the car to assist Officer Trapsi with Jemahl. Id. at 120-21. Officer Franco testified that she later learned that Plaintiffs eyes were closed and he was not responding to questions and an ambulance was called. Id. at 122.
d. Officer Trapsi’s Account
According to Officer Trapsi, as he approached the passenger side of the Cad *1091 iliac he heard the other officers instructing Plaintiff to raise his hands. Opp’n, Ex. E at 39, 41. Officer Trapsi asserts that he instructed Jemahl to exit the vehicle and escorted him to the sidewalk to talk to him. Id. at 45, 47. He does not remember if the driver was still in the Cadillac when Jemahl got out of the vehicle. Id. at 48. As Officer Trapsi spoke to Jemahl he noticed that there was an object in his mouth and asked him to remove it. Id. at 48-49. Jemahl removed two bags of marijuana from his mouth and handed them to Officer Trapsi. Id. at 49. Officer Trapsi asserts that at no time did he punch, kick, stomp on, or strike Plaintiff or anyone else. Trapsi Decl. ¶ 6.
e. Officer Neves and Officer Villaruel
Officer Neves and Officer Villaruel did not submit declarations, nor was deposition testimony from the officers offered by either party.
3. Events After Alleged Excessive Force
According to Plaintiff, when he came to after blacking out he was in handcuffs, seated on the pavement, and leaning against the side of the Cadillac. Opp’n, Ex. A at 115-16. Plaintiff asserts that the officers told him that he had a seizure. Id. at 116. Plaintiff claims he has no history of seizures or loss of consciousness. Id. at 119. The officers had called an ambulance to treat Plaintiff which arrived shortly after Plaintiff regained consciousness. Id. at 116.
The medic who treated Plaintiff, Nicholas Brady, does not remember anything about the incident. Motion, Ex. D (Deposition of Nicholas Brady) at 19. His testimony is based entirely on what was written in his medical report. Id. The report states that the ambulance was called to the scene for a “syncopal episode” but does not contain any notes about a possible seizure. Id. at 18; Opp’n, Ex. C (Deposition of Nicholas Brady) at 52. The report states that the police reported Plaintiff was fighting with them, lost consciousness, and was sitting on the ground complaining of dizziness and aware that he had passed out when Brady arrived. Motion, Ex. D at 27. During a medical assessment, Brady normally asks a patient whether anything is bothering him or he is hurting anywhere. Id. at 28. No chest pain, shortness of breath, abdominal pain, nausea or vomiting, headache, or head, neck, back, or pelvic pain were noted in Brady’s report on Plaintiff. Id. Brady testified that he performed a physical exam and found no indication of pain or injury anywhere he examined. Id. at 35. He also wrote “marijuana” in the report, indicating that someone told him that Plaintiff had smoked marijuana, that he had smelled marijuana, or that there were other symptoms of marijuana intoxication. Id. at 19-20.
Sometime after Plaintiff was handcuffed the officers discovered that he was on parole and that his license was suspended. Motion at 13, & Ex. A at 117; Opp’n, Ex. D at 127. Officer Villaruel contacted Plaintiffs parole agent who placed a parole hold on Plaintiff pursuant to California Penal Code section 3056. Franco Decl. ¶ 12. No weapons were found inside the Cadillac, and no other contraband was found besides the marijuana in Jemahl’s mouth. Opp’n, Ex. D at 103.
According to Plaintiff, when he was at the police station he said to two or three officers, “God doesn’t like ugly, and I didn’t do nothing wrong, you know, so God is going to make you pay.” Opp’n, Ex. A at 165. Plaintiff denies saying, “Pm going to make you pay for it,” “You’re going to pay for it,” or “You’re going to find out who I am.” Id. at 166. Officer Franco disputes this, alleging that Plaintiff became irate at the police station and stated, ‘You are all going to pay for this,” “I’m somebody you guys will find out soon *1092 enough,” “It’s going to come around. I’m not just nobody. You guys wait and see,” and “I’m going to get all the arresting officers’ names.” Franco Decl. ¶ 13. Officer Franco understood these statements to be threats of violence against her and other officers. Id.
B. The Complaint
Plaintiff filed this action on October 14, 2008. He names as Defendants SFPD Officers Ernest Trapsi and Cristina Franco (“the SFPD Individual Defendants”). 1 In addition, he names as Defendants Heather Fong, in her official capacity as Chief of the San Francisco Police Department, and the City and County of San Francisco.
Plaintiff asserts the following claims in his complaint.
Claim One: Unreasonable Seizure and Excessive Force — Federal Law (42 U.S.C. § 1983); asserted against all Defendants. Complaint, ¶¶ 23-24.
Claim Two: Denial of Due Process, Equal Protection and Right to Be Free from Pre-conviction Punishment — Federal Law (42 U.S.C. § 1983); asserted against all Defendants. Complaint, ¶¶ 25-29.
Claim Three: Denial of Right to Familial Relationship — Federal Law (42 U.S.C. § 1983); asserted against all Defendants. Complaint, ¶¶ 30-32.
Claim Four: Denial of Due. Process— State Law (California Constitution, Art. I, § 7(a)); asserted against all Defendants. Complaint, ¶¶ 33-34.
Claim Five: Denial of Equal Protection — State Law (California Constitution, Art. I, § 7(a)); asserted against all Defendants. Complaint, ¶¶ 35-36.
Claim Six: Violation of California Civil Rights — State Law (California’s Bane Act, Cal. Civ.Code §§ 52.1); asserted against all Defendants. Complaint, ¶¶ 37-38.
Claim Seven: Assault — State Law (California common law); asserted against all Defendants. Complaint, ¶¶ 39-42.
Claim Eight: Battery — State Law (California common law); asserted against all Defendants. Complaint, ¶¶ 43^16.
Claim Nine: False Imprisonment— State Law; asserted against all Defendants. Complaint, ¶¶ 47-50.
Claim Ten: Negligence — State Law (California common law); asserted against all Defendants, including the City and County of San Francisco. Complaint, ¶¶ 51-53.
Claim Eleven: Negligent Infliction of Emotional Distress — State Law (California common law); asserted against all Defendants. Complaint, ¶¶ 54-56.
Claim Twelve: Intentional Infliction of Emotional Distress — State Law (California common law); asserted against all Defendants. Complaint, ¶¶ 57-59.
Claim Thirteen: Negligent Hiring, Training, Supervision and Discipline — State Law (California Common Law); asserted against all Defendants. Complaint, ¶¶ 60-63.
C. The Motion
In the Motion, Defendants seek summary judgment on several grounds. First, Defendants assert that they are entitled to summary judgment as to Claims One through Three to the extent those claims are based on false arrest and/or *1093 false imprisonment. In particular, Defendants argue that the false arrest/false imprisonment claims 2 fail, as a matter of law, because the undisputed evidence shows that: 1) the SFPD Individual Defendants had a reasonable suspicion to conduct an investigative detention for officer safety purposes; and 2) there was probable cause to arrest Plaintiff. Defendants argue that there was probable cause based on California Penal Code section 148 (resisting, delaying or obstructing a peace officer), California Penal Code section 272(a)(1) (contributing to the delinquency of a minor), California Vehicle Code section 14601.1(a) (driving on a suspended license) and California Penal Code sections 69 and 422 (threats to a police officer).
Second, Defendants contend that summary judgment should be granted on Plaintiffs excessive force claims to the extent that they are asserted against Officers Franco and Trapsi because the undisputed evidence shows that these officers were not involved in the alleged punching and kicking of Plaintiff. Rather, Defendants assert, these officers were on the other side of the car talking to Jemahl while this was occurring. In further support of this argument, Defendants assert that any use of force prior to the alleged punching and kicking, namely, the force used to pull Plaintiff out of the car, was reasonable, as a matter of law.
Third, Defendants argue that Claim Two, based on the alleged denial of Plaintiffs right to due process and equal protection, fails because there is no evidence of discriminatory intent.
Fourth, Defendants assert that Plaintiffs claim for loss of familial relations (Claim Three) fails because there is no evidence that Plaintiff was separated from his children.
Fifth, Defendants assert that the officers are entitled to qualified immunity because the undisputed evidence shows that the officers could have reasonably believed that their conduct was lawful.
Sixth, summary judgment should be entered on all federal claims against the City and County of San Francisco because Plaintiff has not offered any evidence of a policy or custom sufficient to give rise to municipal liability under
Monell v. Depart
*1094
ment of Social Services,
Seventh, Defendants are entitled to summary judgment on all of Plaintiffs state law claims because Plaintiff did not comply with the pre-filing requirements of the California Government Code. In particular, before bringing suit against a public entity based on an alleged tort, a claimant must file with the public entity a claim for personal injury within six months of the accrual of the cause of action. Cal. Gov’t Code § 911.2. If the public entity determines that the claim was untimely, it may return the claim without acting upon it. Id. § 911.3(a). In that ease, the claimant must seek permission to file a late claim. Id. § 911.4(a). If that request is denied, the claimant must obtain an order from the Superior Court allowing the claimant to file suit despite the fact that the claim was untimely. Id. § 946.6. Here, it is undisputed that: 1) Plaintiffs claim was rejected as untimely; 2) his subsequent late claim application was denied; and 3) Plaintiff did not obtain an order from the Superior Court allowing him to file suit.
Eighth, Defendants assert that Claims Four and Five for denial of due process and equal protection under state law fail because California law does not contain a private right of action for the alleged violations.
Ninth, Defendants assert that Claim Six fails because the Bane Act, which prohibits a defendant from “interfer[ing] by threats, intimidation, or coercion” with a plaintiffs exercise or enjoyment of his constitutional or statutory rights, cannot be predicated on alleged excessive force alone. Rather, it requires that the defendant intended to interfere with a separate state or federal right. Defendants assert that Plaintiff has not pointed to evidence of intentional interference with any such separate right.
Tenth, Defendants assert that Plaintiffs state law claims for assault, battery and false imprisonment fall within the privilege established under California Penal Code sections 835a and 836.5(b) and therefore fail to the same extent as do Plaintiffs federal claims.
Eleventh, Defendants argue that Plaintiffs negligence claims — Claims Ten, Eleven and Thirteen — fail as a matter of law because there is no evidence of negligence in the record.
Twelfth, Defendants assert that Claim Eleven, for negligent infliction of emotional distress, fails for the additional reason that there is no tort of negligent infliction of emotional distress that is independent of negligence.
Thirteenth, Defendants seek summary judgment on Plaintiffs claim for intentional infliction of emotional distress on the basis that it is “duplicative, superfluous and unsubstantiated.”
Fourteenth, Defendants seek summary judgment as to Claim Thirteen, for negligent hiring, because the City and County of San Francisco has already admitted that the officers were acting within the course and scope of their employment and therefore, the City is vicariously liable for the officers’ conduct.
In his Opposition, Plaintiff concedes that his state law claims are barred. Plaintiff also withdraws Claim Three for loss of familial relations and all Monell claims against the City and County of San Francisco. 3 Plaintiff argues that the remaining federal claims should survive summary judgment, making the following specific arguments. First, as to the claims for *1095 false imprisonment, Plaintiff argues that there are factual disputes relating to the encounter and that as a result, a reasonable juror could conclude that there was no probable cause to arrest Plaintiff, or even reasonable suspicion to detain him.
With respect to the specific crimes for which Defendants assert there was probable cause, Plaintiff argues that Defendants’ probable cause arguments are deficient on several grounds. As to Defendants’ reliance on California Penal Code section 148 (resisting, delaying, or obstructing a peace officer), Plaintiff argues that when viewed in the light most favorable to Plaintiff, the evidence shows that Plaintiff complied with the officers’ requests and that his question, “Why do we have to get out of the car?” was rhetorical rather than resistant. Plaintiff notes that section 148 is usually applied to acts of physical resistance, citing
In re Muhammed C.,
Second, Plaintiff rejects Defendants’ assertion that summary judgment should be granted on Plaintiffs excessive force claims as to Officers Trapsi and Franco. Plaintiff argues that there is a triable issue of fact as to which officers committed which acts and therefore, neither officer is entitled to summary judgment. In addition, with respect to Officer Franco, Plaintiff argues that there is evidence from which a reasonable juror could conclude that she used excessive force before any punching or kicking occurred.
Third, Plaintiff argues that summary judgment should not be granted on Plaintiffs equal protection and due process claims because the incident was “rife with racial overtones” and therefore, there is a triable issue of fact as to whether the arrest was racially motivated. Plaintiff points in particular to evidence that: 1) Plaintiff and his nephew are African-American; 2) the Defendant officers were investigating an African-American woman who they believed to be a prostitute; and 3) the officers were investigating whether Plaintiff was the suspect’s pimp.
Fourth, Plaintiff argues that the SFPD Individual Defendants are not entitled to qualified immunity because a reasonable juror could conclude from the evidence that Plaintiff was doing nothing suspicious and that there was no probable cause to arrest him. As it is clearly established that probable cause, or at least, reasonable suspicion, was required to detain Plaintiff, the officers are not entitled to qualified immunity.
III. ANALYSIS
A. Legal Standard under Rule 56(c)
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together
*1096
with affidavits, if any, show that there are no genuine issues 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). A “genuine” issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc.,
In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party’s claim, or to a defense on which the nonmoving party will bear the burden of persuasion at trial.
Celotex Corp. v. Catrett,
B. The False Imprisonment Claim under 42 U.S.C. § 1983
Defendants assert that they are entitled to summary judgment on Plaintiffs federal false imprisonment claim because the undisputed evidence shows that the officers had a reasonable suspicion as to Plaintiff. In addition, Defendants argue that, as a matter of law, they had probable cause to arrest Plaintiff. The Court concludes that Defendants are not entitled to summary judgment on these claims because there are factual disputes with respect to both reasonable suspicion and probable cause.
1. Fourth Amendment Requirements
In cases where officers make an arrest without a search warrant, the Fourth Amendment imposes limitations on both the initial stop and the subsequent arrest.
See Terry v. Ohio,
In
Terry,
the Supreme Court held that “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”
United States v. Sokolow,
“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”
Illinois v. Wardlow,
Once officers have decided to arrest an individual, the Fourth Amendment i?'':poses the more demanding requirement that the officers have probable cause.
See Sokolow,
The standard for judging probable cause is objective; the existence of probable cause does not depend on the subjective intentions of the arresting officers.
Id.
(citing
Devenpeck v. Alford,
To determine whether a police action constitutes a Terry stop or an arrest, courts look at the totality of the circumstances:
There is no bright line rule to determine when an investigatory stop becomes an arrest.... In looking at the totality of the circumstances, we consider both the intrusiveness of the stop, i.e., the aggressiveness of the police methods and how much the plaintiffs liberty was restricted, and the justification for the use of such tactics, i.e., whether the officer had sufficient basis to fear for his safety to warrant the intrusiveness of the action taken.
*1098
Washington v. Lambert,
2. Reasonable Suspicion
Defendants argue that they are entitled to summary judgment on Plaintiffs false imprisonment claim because the officers had reasonable suspicion to detain Plaintiff out of concern for officer safety and to determine whether Plaintiff was engaged in criminal activity. To support the officers’ reasonable suspicion, Defendants point to the officers’ testimony that: 1) they were conducting a traffic stop in a high-crime neighborhood when they encountered Plaintiff; 2) Plaintiff was reclining in his seat and appeared to be attempting to avoid detection; 3) as the police approached his vehicle, Plaintiff was making furtive movements such as slouching in his seat and thrusting his hand between the driver’s seat and center console; 4) Plaintiff was nervously glancing to and from the officers; 5) as the officers came closer, Plaintiff “inexplicably” placed his hand behind the steering column; 6) Jemahl was hiding bags of marijuana in his mouth. The Court concludes that Defendants are not entitled to summary judgment on this basis because there are fact questions as to whether the officers had reasonable suspicion to detain Plaintiff at the point he was seized.
The question of whether Defendants had reasonable suspicion to detain Plaintiff cannot be resolved without determining at what point in Plaintiffs encounter with the police he was seized, for the purposes of
Terry.
As to that question, much of the evidence relating to the initial encounter between Plaintiff and the Defendant officers is disputed. Plaintiff claims that immediately after the officers made the traffic stop of the Honda they approached his vehicle with their guns drawn and ordered him to “Get the fuck out of the car.” Opp’n, Ex. A at 86-90. Drawing all reasonable inferences in favor of Plaintiff, a jury could conclude based on this evidence that the seizure occurred immediately upon the officers’ approach toward Plaintiffs car because a reasonable person in Plaintiffs position would have believed he was not free to leave at that point.
See, e.g., United States v. Reyes,
Next, assuming the jury concluded that the Terry stop began at the point when the officers approached Plaintiffs car with guns drawn, there also are material disputes of fact with respect to whether the officers had reasonable suspicion to detain Plaintiff at that time. In particular, Plaintiffs account differs significantly from the accounts of the officers. In contrast to the testimony of the officers that Plaintiff slouched down in his seat, avoided eye contact with them, and made movements with his hands that might have suggested he was reaching for a gun, Plaintiff testified that he did not lower his seat upon the officers’ approach or do anything to evade detection, did not avoid eye contact and kept his hands on the steering column from the time the officers made the traffic stop of the Honda until the time he raised his hands in response to the approaching officers’ commands. Id. at 96-99, 118-119. Viewing the evidence in the light most favorable to Plaintiff, a jury could conclude that Plaintiff was not making furtive movements, attempting to evade detection, or avoiding eye contact with the officers up to the time the stop was made. Nor is the evidence that Jemahl had hidden bags of marijuana in his mouth sufficient to give rise to reasonable suspicion at the time of the seizure because there is no evidence that the officers were aware of this fact when they approached Plaintiffs car.
Further, the fact that Plaintiffs car was parked in a high-crime area with his seat reclined does not entitle Defendants to summary judgment because this evidence, though undisputed, would not be sufficient, as a matter of law, to support a reasonable and particularized suspicion of Plaintiff. In those cases where a court has relied on presence in an area of criminal activity, it has been combined with another fact such as attempting to flee.
See Wardlow,
In sum, viewing the evidence in the light most favorable to Plaintiff, the Court finds that genuine issues of material fact exist regarding whether the officers possessed a reasonable suspicion that Plaintiff posed a safety threat or was engaging in criminal activity. Accordingly, Defendants’ request for summary judgment as to the question of whether reasonable suspicion existed to seize Plaintiff for purposes of an investigatory stop is DENIED.
3. Probable Cause
Defendants argue that, as a matter of law, their actions also did not violate Plaintiffs Fourth Amendment rights because the officers had probable cause to arrest Plaintiff for four different violations: 1) delaying and obstructing a peace officer in the performance of his or her duties in violation of California Penal Code section 148; 2) contributing to the delinquency of a minor in violation of California Penal Code section 272(a)(1); 3) driving on a suspended license in violation of California Vehicle Code section 14601.1(a); and 4) threats to a police officer in violation of California Penal Code sections 69 and 422.
*1100 a. California Penal Code § 148 (resisting, delaying, or obstructing a peace officer)
California Penal Code section 148(a)(1) prohibits a person from “willfully resisting], delaying], or obstructing] any ... peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment.” The legal elements of a violation of section 148(a) are “(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.”
In re Muhammed C.,
Although section 148 is most often applied to the physical acts of a defendant, such as physical resistance, hiding, or running away from a police officer, it is not limited to nonverbal conduct.
Id.
at 1329-30,
Here, there are factual disputes relating to whether Plaintiff resisted arrest. Defendants cite to testimony by the officers that Plaintiff did not immediately comply with the officers’ instructions to exit his vehicle and instead argued with them by asking what was going on and why he was being ordered to get out of the car. According to Defendants, Plaintiff then physically resisted the officers’ attempts to remove him from the car. Defendants contend that given the high-crime neighborhood, Plaintiffs furtive movements, and the fact that the officers were attempting to conduct a traffic stop of the Honda, Plaintiffs nonresponsiveness to the officers’ instructions delayed and obstructed their attempts to investigate the Honda and to ensure officer safety by confirming that Plaintiff was not armed. In contrast, Plaintiff contends that he immediately complied with the officers’ orders to raise his hands, even though he asked “what did we do” and “why do we got to step out of the car,” and then reached toward the door handle to open the door and exit the vehicle, as instructed. Viewing the evidence in the light most favorable to Plaintiff, a jury could reasonably conclude that Plaintiff did not resist arrest in violation of section 148.
See Quiroga,
b. California Penal Code § 272(a)(1) (contributing to the delinquency of a minor)
Under California Penal Code § 272(a)(2), any person who “commits any *1101 act or omits the performance of any duty, which act or omission causes or tends to cause or encourage” the delinquency of any person under the age of 18 years is guilty of a misdemeanor. Defendants note that Jemahl was seventeen years old, on juvenile probation, and concealing two bags of marijuana in his mouth while he was sitting in the parked Cadillac with Plaintiff. On this basis, Defendants argue that the officers had probable cause to arrest Plaintiff for contributing to the delinquency of a minor in violation of section 272(a)(1). This argument fails because, viewing the evidence in the light most favorable to plaintiff, a jury could reasonably conclude that the Terry stop turned into an arrest before the officers learned that Jemahl was a minor or that he had the marijuana in his possession. In that case, there could not have been probable cause under section 272(a)(1) at the time of the arrest.
Further, the mere fact that Jemahl possessed marijuana — even if it were known to the officers at the time of Plaintiffs arrest — is insufficient, under California law, to give rise to probable cause for contributing to the delinquency of a minor.
See People v. Superior Court,
c. California Vehicle Code § 14601.1 (driving on a suspended license)
California Vehicle Code section 14601.1(a) states that “[n]o person shall drive a motor vehicle when his or her driving privilege is suspended or revoked for any reason ... if the person so driving has knowledge of the suspension or revocation.” In order for Defendants to have had probable cause under this statute, then, Defendant officers would have needed probable cause to believe both that Plaintiff had been driving the car and that Plaintiff knew that his driver’s license had been suspended when he was driving.
As to the first question, the undisputed evidence provides sufficient grounds upon which to find, as a matter of law, that the officers had probable cause to believe that Plaintiff had been driving the car. The California Vehicle Code defines “driver” broadly to include “a person who drives or
is in actual physical control of
a vehicle.” Cal. Vehicle Code § 305 (emphasis added). California courts have held that this broad standard is met where an individual is seated in the driver’s seat of a parked car.
See Adler v. Dep’t of Motor Vehicles,
The evidence is disputed, however, on the question of whether the Officers knew that Plaintiff was driving on a suspended license at the time of the arrest. In particular, as discussed above, there are factual disputes relating to the point at which the investigative detention of Plaintiff *1102 turned into an arrest. Because the Court cannot resolve that question as a matter of law, it also cannot find on summary judgment that probable cause existed under California Vehicle Code section 14601.1. Therefore, Defendants are not entitled to summary judgment on this basis. 4
d. California Penal Code §§ 69 and 422 (threats to a police officer)
California Penal Code section 69 prohibits the “attempt[], by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law,” and section 422 prohibits willful threats “to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement ... is to be taken as a threat.” Defendants contend that Plaintiff threatened Officer Franco and the other police officers while in police custody, thereby creating probable cause to arrest Plaintiff for making criminal threats in violation of section 69 and section 422.
It is uncontested that Plaintiffs alleged threats did not occur until he was in custody at the police station and therefore already under arrest.
See United States v. Parr,
e. Conclusion
For the reasons stated above, the Court concludes that there are genuine issues of material fact with regard to whether the SFPD Individual Defendants had probable cause to arrest Plaintiff under any of the provisions discussed above. Therefore, Defendants’ request for summary judgment on this ground is DENIED.
4. Plaintiffs Parole
Defendants assert that Plaintiff “cannot challenge any portion of his detention after the parole hold was put in place,” citing California Penal Code section 3067. Under that provision, “[a]ny inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Defendants further cite to case law holding that “[u]nder California and federal law, probable cause is not required to arrest a parolee for a violation of parole.”
U.S. v. Butcher,
Plaintiff is correct that an officer must know of a detainee’s parole status before that person can be detained and searched pursuant to a parole condition.
Moreno v. Baca,
C. Excessive Force Claims Against Officers Trapsi and Franco
Defendants argue that they are entitled to summary judgment on Plaintiffs excessive force claims as to Officers Franco and Trapsi because these officers were not involved in the alleged punching and kicking of Plaintiff. Defendants further assert that any force used prior to the alleged punching and kicking to remove Plaintiff from the car was reasonable as a matter of law.
“A claim against law enforcement officers for excessive force is analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.”
Arpin v. Santa Clara Valley Transportation Agency,
In evaluating the nature and quality of the intrusion, courts must consider “the type and amount of force inflicted.”
Chew v. Gates, 27
F.3d 1432, 1440 (9th Cir.1994). Relevant factors to consider in determining whether the use of force is supported include “whether a warrant was used, whether the plaintiff resisted or was armed, whether more than one arrestee or officer was involved, whether the plaintiff was sober, whether other dangerous or exigent circumstances existed at the time of the arrest, and the nature of the arrest charges.”
Id.
at 1440 n. 5. In cases involving investigatory stops, drawing weapons and using handcuffs or other restraints is unreasonable in many situations.
See, e.g., Robinson v. Solano County, 278
F.3d 1007, 1015 (9th Cir.2002) (recognizing “as a general principle that pointing a gun to the head of an apparently unarmed suspect during an investigation can be a violation of the Fourth Amendment, especially where the individual poses no particular danger”);
Washington,
1. Officer Franco
Defendants argue that summary judgment should be granted as to all excessive force claims against Officer Franco because the officers who allegedly punched *1104 or kicked Plaintiff were male. There is conflicting testimony regarding Officer Franco’s participation in the alleged punching and kicking of Plaintiff. According to Officer Franco, she was the only female officer present during the encounter with Plaintiff. Jemahl testified that the officer who opened the driver’s side door was the officer who punched Plaintiff, and his testimony indicates that the officer who punched Plaintiff was male. When asked about the officer who struck Plaintiff Jemahl responded “he was an officer,” and “he hit him, he knocked him down.” Motion, Ex. B at 57. He also testified that while he was on the sidewalk on the passenger side of the car talking to a male officer, a female officer was nearby him, and it was during this time that Jemahl saw the other officers kicking Plaintiff. On the other hand, Officer Franco’s testimony is that she opened the driver’s side door of the Cadillac and participated in removing Plaintiff from the car, taking him to the ground, and attempting to gain control of him in order to handcuff him. Plaintiffs own testimony is that one officer punched him as he was being pulled out of the car and he felt multiple kicks to the back of the head after he hit the ground. Plaintiff does not know which officers punched or kicked him and testified that he could not identify any of the officers in the encounter.
Viewing the facts in the light most favorable to Plaintiff, a reasonable jury could conclude that Officer Franco participated in the alleged punching and kicking of Plaintiff. Jemahl testified that he was inside the car while Plaintiff was pulled out and struck, and he did not see a female officer on the passenger side of the car until after Plaintiff was already on the ground. It is unclear how long Plaintiff had been on the ground when Jemahl saw the female officer. Officer Franco’s own testimony is that she opened Plaintiffs door and took him to the ground, therefore a jury could conclude that Jemahl was mistaken when he described the officer who punched Plaintiff as male. Although Plaintiff cannot attribute specific blows to each officer, he has presented sufficient evidence to create a genuine issue of material fact as to whether Officer Franco used excessive force against him by punching or kicking him.
See Fisher v. City of Pittsburg,
No. C 05-2774 CW (PR),
Even if the evidence is not sufficient to show that Officer Franco punched or kicked Plaintiff, as discussed below a reasonable jury could still find that the force she used to pull Plaintiff from the car before she moved to the passenger side of the car was excessive. The Court finds that Officer Franco is not entitled to summary judgment on the excessive force claim and therefore DENIES Defendants’ request for summary judgment on this issue.
2. Officer Trapsi
Plaintiff has failed to produce any evidence to support his excessive force claim against Officer Trapsi. Both Jemahl’s and Officer Trapsi’s testimony is that Officer Trapsi was on the passenger side of the car talking to Jemahl while Plaintiff was being pulled out of the vehicle and during the alleged kicking and punching. Plaintiff has failed to raise a genuine issue of fact regarding Officer Trapsi’s alleged use of force, therefore Officer Trapsi is entitled to summary judgment on the excessive force claim as a matter of law. The Court GRANTS summary judgment *1105 as to Plaintiffs claim of excessive force against Officer Trapsi. 6
3. All Conduct Other Than the Alleged Punches and Kicks
Defendants also seek summary judgment as to any force used prior to the alleged punching or kicking to remove Plaintiff from the car on the basis that it was reasonable as a matter of law. According to Defendants, the officers approached Plaintiffs car based on their suspicion that Plaintiff was armed or posed a safety threat, Plaintiff failed to comply with their orders to raise his hands and exit the car, and Plaintiff resisted being physically removed from the vehicle; Plaintiffs contest this, alleging that the officers approached the Cadillac with no basis for reasonable suspicion that Plaintiff posed a safety threat, the officers’ guns were drawn, Plaintiff complied with their orders to raise his hands, and the officers forcibly removed Plaintiff from the vehicle at gunpoint as Plaintiff as he was attempting to get out on his own. Taking Plaintiff’s allegations as time, the only circumstance favoring the use of force was Plaintiff’s presence in an area of expected criminal activity. A rational jury could find that Plaintiff posed no immediate threat to the officers, that Plaintiff complied with the officers’ orders, and that Plaintiff was not resisting the officers. The Court finds that the question of whether the force used by the officers prior to the alleged punching or kicking of Plaintiff was reasonable raises issues of material fact that must be decided by a jury. Accordingly, summary judgment on the issue of excessive force prior to the alleged punching or kicking is DENIED.
D. Equal Protection Claims
Plaintiff alleges that his right to equal protection of the laws under the Fourteenth Amendment was violated based on the fact that he and Jemahl are African-American males. In the Motion, Defendants contend that Plaintiff has provided no evidence of discrimination and therefore that summary judgment should be granted in their favor on Plaintiffs equal protection claim. The Court agrees with Defendants that Plaintiffs equal protection claim fails as a matter of law.
The Equal Protection Clause provides that no state shall “deny any person within its jurisdiction the equal protection of the law.” U.S. Const. Amend. XIV, § 1. The Equal Protection Clause “is basically a direction that all persons similarly situated should be treated alike.”
City of Cleburne v. Cleburne Living Center,
A long line of Supreme Court cases makes clear that the Equal Protection Clause requires proof of discriminatory intent or motive.
See, e.g., Washington v. Davis,
Here, the only evidence Plaintiff cites to support an equal protection violation is his race, and Plaintiffs own testimony is that none of the officers made any derogatory racial remarks to Plaintiff. Motion, Ex. A, 111:8-11. Conclusory allegations that Plaintiffs constitutional rights were violated because of his race not supported by any factual evidence are not sufficient to defeat summary judgment.
Fisher v. City of Pittsburg,
No. C 05-2774,
E. Due Process Claims
Plaintiff alleges that Defendants violated his “right not to be deprived of life or liberty” and his right to be “free from preconviction punishment” under the Due Process Clause of the Fourteenth Amendment. Compl. ¶¶ 26a, 26c. Defendants argue that Plaintiffs due process claims fail as a matter of law because claims of false imprisonment and excessive force during arrest are properly analyzed under the Fourth Amendment. The Court agrees.
A claim under the Fourteenth Amendment implicates a substantive due process analysis, and the Supreme Court is “reluctant to expand the concept of substantive due process.”
County of Sacramento v. Lewis,
Pursuant to Graham, Plaintiffs claims for false imprisonment and exces *1107 sive force must be analyzed under the Fourth Amendment. Defendants’ Motion for summary judgment as Plaintiffs Due Process claims is therefore GRANTED.
F. Qualified Immunity
Defendants assert that even if they are not entitled to summary judgment on Plaintiffs Fourth Amendment claims, they are entitled to qualified immunity on the claims of false imprisonment and excessive force because the conduct of the officers did not violate clearly established law. To the extent that Plaintiff asserts that the officers mistakenly interpreted Plaintiffs actions as threatening or criminal, Defendants argue that the officers are entitled to qualified immunity because such a mistake of fact was objectively reasonable under the circumstances. The Court disagrees.
1. Standard Governing Qualified Immunity
Under the doctrine of qualified immunity, even if a constitutional violation occurred, governmental officials are immune if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald,
The inquiry as to this second question must be “particularized.”
Id.
It is not' enough that the general rule is established.
Id.
Rather, “[t]he relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.” Id.
at 202,
Where a plaintiff asserts a Fourth Amendment violation based on the absence of probable cause, the relevant inquiry with respect to the “clearly established” prong of the qualified immunity analysis is “whether a ‘reasonable officer could have believed that probable cause existed to arrest the plaintiff.’”
Sorgen v. City and County of San Francisco,
2. Application of Standard to Facts
As discussed above, the Court finds that Plaintiffs facts, if proven true,
*1108
would establish constitutional violations under the Fourth Amendment on the basis of Plaintiffs false imprisonment and the officers’ use of excessive force. The next question for the Court is whether the rights violated were clearly established at the time Defendants acted.
Saucier,
With respect to Plaintiffs false imprisonment claim, the Fourth Amendment right to be free from seizure without reasonable suspicion and arrest without probable cause is clearly established.
See Sokolow,
With respect to Plaintiffs excessive force claim, the right to be free from excessive force and the general principle that “force is only justified when there is a need for force” are clearly established.
See Blankenhom v. City of Orange,
IV. CONCLUSION
For the reasons stated above, Defendants’ Motion is GRANTED in part and DENIED in part. The Court dismisses with prejudice the following claims: 1) Claim One as to Officer Trapsi to the extent it is based on excessive force; 2) Claim Two as to all Defendants. Plaintiff has stipulated to the dismissal of his Monell claim against the City and County of San Francisco as well as Claims Three through Thirteen, therefore the Court also dismisses these claims with prejudice.
IT IS SO ORDERED.
Notes
. The Complaint also names Officer Timothy Neves and Does 1-100 as Defendants but does not name Officer Wesley Villaruel. At the February 26 hearing, Plaintiff stipulated to the dismissal of Officer Neves as a Defendant.
. Both Defendants and Plaintiff refer to Plaintiff's “false arrest and false imprisonment claims'' without distinguishing between the two types of claims. The Supreme Court has explained the relationship between these two claims as follows:
False arrest and false imprisonment overlap; the former is a species of the latter. “Every confinement of the person is an imprisonment, whether it be in a common prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets; and when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is.” M. Newell, Law of Malicious Prosecution, False Imprisonment, and Abuse of Legal Process § 2, p. 57 (1892) (footnotes omitted). See also 7 S. Speiser, C. Krause, & A. Gans, American Law of Torts § 27:2, ¶ . 940-942 (1990). We shall thus refer to the two torts together as false imprisonment. That tort provides the proper analogy to the cause of action asserted against the present respondents for the following reason: The sort of unlawful detention remediable by the tort of false imprisonment is detention without legal process, see, e.g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 11, p. 54, § 119, ¶. 885-886 (5th ed.1984); 7 Speiser, supra, § 27:2, at 943-944, and the allegations before us arise from respondents' detention of petitioner without legal process in January 1994. They did not have a warrant for his arrest.
Wallace v. Kato,
. At the February 26 hearing, Plaintiff stipulated to the dismissal of all state law claims, the claim for loss of familial relations, and the Monell claim.
. At oral argument, Plaintiff conceded, however, that if at some later time there were probable cause for arrest, then damages based on the alleged false arrest would be cut off at that point.
. The Court notes, however, that Plaintiff has not specifically challenged Defendants' assertion that Plaintiff's false arrest claim became non-actionable once his parole officer instructed the Defendant officers to place a parole hold on him. Nor has the Court found any authority suggesting that Plaintiff’s false arrest claim would be viable after that point. Rather, the Court concludes that Plaintiff is not entitled to recover damages on his false arrest claim for any detention after the officers became aware that Plaintiff was a parolee and had been instructed to place a hold on Plaintiff.
. Defendants' Motion specifically requests that the Court grant summary judgment on the excessive force claim asserted against Officer Trapsi. At the February 26 hearing, Defendants, for the first time, requested summary judgment on Plaintiff's false imprisonment claim against Officer Trapsi as well, citing evidence that he was on the passenger side of the car during the encounter between Plaintiff and the officers. Because Defendants did not request summary judgment on Plaintiff’s false imprisonment claim against Officer Trapsi in their Motion, the Court denies summary judgment on that claim on the basis that the request was untimely.
. In
Pearson v. Callahan,
the Supreme Court clarified that the order of the two-step inquiry is not mandatory. Rather, courts should “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” - U.S. -,