Loharsingh v. City & County of San Francisco (696 F. Supp. 2d 1080, 2010)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Docket No. 52]

JOSEPH C. SPERO, United States Magistrate Judge.

I. INTRODUCTION

This civil rights action involves allegations that officers of the San Francisco 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. 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 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 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 Cadiliac 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 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”). 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 false imprisonment. In particular, Defendants argue that the false arrest/false imprisonment claims 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 ment of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

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. Plaintiff argues that the remaining federal claims should survive summary judgment, making the following specific arguments. First, as to the claims for 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., 95 Cal.App.4th 1325, 116 Cal.Rptr.2d 21 (2002) (holding that section 148 “must be applied with great care to speech”). As to California Penal Code section 272(a)(1) (contributing to the delinquency of a minor), Plaintiff argues that there is no evidence that Plaintiff knew his nephew had marijuana. Plaintiff also rejects Defendants’ assertion that there was probable cause to believe that Plaintiff was driving on a suspended license in violation of California Vehicle Code section 14601.1(a) because a jury could reasonably conclude that Plaintiff was not driving. Further, Plaintiff asserts that there is a fact question as to whether Plaintiffs statements after he was taken into custody constituted “threats” under California Penal Code sections 69 and 422. Finally, Plaintiff rejects Defendants’ reliance on the fact that Plaintiff was a parolee, asserting that this does not give rise to probable cause because the officers were unaware of this when they made the decision to arrest him.

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 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., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

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, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Nissan Fire & Marine Ins. Co. v. Fritz Cos. Inc., 210 F.3d 1099 (9th Cir.2000). Once the movant has made this showing, the burden shifts to the party opposing summary judgment to “designate specific facts showing there is a genuine issue for trial.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. To establish a “genuine” issue of fact when opposing summary judgment, a plaintiff must “produce at least some significant probative evidence tending to support” the allegations in the complaint. Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir.1990).

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, 392 U.S. 1, 17 n. 15, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (concluding that “the Fourth Amendment governs all intrusions by agents of the public upon personal security” but that reasonableness under the Fourth Amendment depends on the “scope of the particular intrusion, in light of all of the exigencies of the case”).

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, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868). A person is seized for investigative purposes within the meaning of Terry if “ ‘taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’” United States v. Washington, 490 F.3d 765, 769 (9th Cir.2007) (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). To determine whether reasonable suspicion exists a court “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). A seizure may only be justified by reference to factors that were present up to the time the stop was made. Montero-Camargo, 208 F.3d at 1130 n. 11.

“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, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). In cases where the court has relied on an individual’s presence in an area of criminal activity, it has been combined with other facts supporting the existence of reasonable suspicion. See id. Evasive behavior, furtive movements, and suspicious eye contact are all relevant factors in evaluating whether the totality of the circumstances supports reasonable suspicion. See id. (“nervous, evasive behavior is a pertinent factor in determining reasonable suspicion”); United States v. Montero-Camargo, 208 F.3d 1122, 1136 (9th Cir.2000) (eye contact, or the lack thereof, when evaluated in light of the circumstances, “may be considered as a factor establishing reasonable suspicion”); Kyles v. Erickson, 99 F.3d 1146 (9th Cir.1996) (furtive movement of suspect in car is a circumstance contributing to reasonable suspicion).

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, 490 U.S. at 7, 109 S.Ct. 1581 (“the level of suspicion for a Terry stop is obviously less demanding than that for probable cause”). The Supreme Court has held that probable cause is “knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). “While conclusive evidence of guilt is of course not necessary under this standard to establish probable cause, ‘[m]ere suspicion, common rumor, or even strong reason to suspect are not enough.’” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007) (quoting McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984)).

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, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)). Thus, probable cause supports an arrest so long as the arresting officers had probable cause to arrest the suspect for any criminal offense, regardless of their stated reason for the arrest. Devenpeck, 543 U.S. at 153-155, 125 S.Ct. 588. Under the collective knowledge doctrine, in determining whether probable cause exists for arrest, courts look to “the collective knowledge of all the officers involved in the criminal investigation although all of the information known to the law enforcement officers involved in the investigation is not communicated to the officer who actually” makes the arrest. United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir.2007).

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.

Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir.1996). While certain police actions will constitute an arrest in some circumstances, such as where the suspects are cooperative, those same actions may not constitute an arrest where the suspect is uncooperative or the police have specific reasons to believe that a serious threat to officer safety exists. Id. “The relevant inquiry is always one of reasonableness under the circumstances.” Id. (quoting Allen v. City of Los Angeles, 66 F.3d 1052, 1057 (9th Cir.1995)) (internal quotation marks omitted). Handcuffing, drawing weapons, and physical restriction of the suspect, as well as the number of police officers present, are all relevant factors in evaluating the intrusiveness of the stop. Id. at 1189-90. When the police have only reasonable suspicion to make an investigatory stop, drawing weapons and using handcuffs and other restraints may violate the Fourth Amendment. Id. at 1187 (finding detention was arrest where police ordered plaintiffs from their car at gunpoint; handcuffed, frisked, and placed plaintiffs in patrol cars; plaintiffs were compliant; and officers had merely a generalized concern that plaintiffs might be armed). However, a stop is not automatically converted into an arrest when officers point their weapons at a suspect, use handcuffs, and detain the suspect for questioning. Allen, 66 F.3d at 1056; see also Gallegos v. City of Los Angeles, 308 F.3d 987, 992 (9th Cir.2002) (finding Teri"y stop did not become arrest where officers ordered plaintiff from car at gunpoint; handcuffed, frisked, and placed plaintiff in a patrol car; plaintiff was compliant; and officers were not convinced a particularized danger existed).

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, 225 Fed.Appx. 699, 700 (9th Cir.2007) (when a police officer “immediately exited his police car, ordered [plaintiff] to put his hands on the steering wheel, and instructed the occupants of the [car parked next to plaintiffs car] to leave,” plaintiff was seized for Fourth Amendment purposes, therefore the officer needed to have reasonable suspicion).

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, 528 U.S. at 124, 120 S.Ct. 673 (“In this ease, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police.”). Plaintiffs lowered car seat, however, is not comparable to an attempt to flee and does not amount to evasive behavior that, when combined with the high-crime neighborhood, would justify finding, as a matter of law, that Defendants had reasonable suspicion that Plaintiff posed a safety threat to the officers or may have been engaged in criminal activity.

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.

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., 95 Cal.App.4th 1325, 1329, 116 Cal.Rptr.2d 21 (2002).

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, 116 Cal.Rptr.2d 21. Courts have noted, however, that “ ‘it surely cannot be supposed that Penal Code section 148 criminalizes a person’s failure to respond with alacrity to police orders.’ ” Id. at 1330, 116 Cal.Rptr.2d 21 (quoting People v. Quiroga, 16 Cal.App.4th 961, 966, 20 Cal.Rptr.2d 446 (1st Dist.1993)). Although section 148 proscribes resisting, delaying, or obstructing a police officer, “ ‘the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.’ ” Id. at (quoting Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)). “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Houston, 482 U.S. at 462-63, 107 S.Ct. 2502.

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, 16 Cal.App.4th at 964, 966, 20 Cal.Rptr.2d 446 (finding “nothing in [defendant’s] conduct that might justify a charge of violating Penal Code section 148” where defendant was uncooperative, argued before complying with an officer’s orders, and was slow to comply). Accordingly, Defendants are not entitled to summary judgment on the basis that probable cause existed under section 148.

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 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, 14 Cal.App.3d 935, 949-50, 92 Cal.Rptr. 545 (1st Dist.1971) (minor passenger’s possession of drug paraphernalia and an open can of beer insufficient to support arrest for contributing to the delinquency of a minor); People v. Simon, 45 Cal.2d 645, 649, 290 P.2d 531 (1955) (the mere fact that defendant was walking down the street with a 20 year old friend who had a bottle of liquor did not constitute reasonable suspicion to believe that defendant was contributing to the delinquency of a minor). Therefore, the Court denies Defendants’ request for summary judgment on this basis.

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, 228 Cal.App.3d 252, 258, 279 Cal.Rptr. 28 (2d Dist.1991) (holding that plaintiff was the “driver” of a vehicle under section 305 on the basis, of evidence that she was seated in the driver’s seat of a parked car when she opened the door of the car and hit a bicyclist, even though she was not seen actually driving the car). The undisputed fact that Plaintiff was sitting in the driver’s seat of the car is enough to establish probable cause to believe he was driving.

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 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.

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, 843 F.2d 1228, 1231 (9th Cir.1988) (“a distinction between investigatory stops and arrests may be drawn at the point of transporting the defendant to the police station”). Because Plaintiff did not make the allegedly threatening statements until after he was already under arrest, Defendants did not have probable cause based on these statements at the time Plaintiff was arrested. Further, the evidence regarding Plaintiffs statements is disputed. Accordingly, Defendants are not entitled to summary judgment as to the question of whether probable cause existed under this statute.

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, 926 F.2d 811, 814 (9th Cir.1991). Plaintiff does not contest that he was a parolee at the time of the relevant events, or that he was subject to the requirements of section 3067. He argues, however, that his status as a parolee cannot retroactively give rise to probable cause for his arrest.

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, 431 F.3d 633, 641 (9th Cir.2005). “Police officers cannot justify a suspicionless search and arrest on the basis of an after-the-fact discovery of an arrest warrant or a parole condition.” Id. Thus, to the extent a jury could reasonably conclude that Plaintiff was arrested before the officers learned that Plaintiff was a parolee, Defendants are not entitled to summary judgment on Plaintiffs false arrest claim on the basis of the fact that Plaintiff was on parole.

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, 261 F.3d 912, 921 (9th Cir.2001). Determining whether the force used was reasonable “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. Moreover, “ ‘[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” Id.

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, 98 F.3d at 1187(“[u]nder ordinary circumstances, when the police have only reasonable suspicion to make an investigatory stop, drawing weapons and using handcuffs and other restraints will violate the Fourth Amendment”).

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 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