Johnson v. Bay Area Rapid Transit (790 F. Supp. 2d 1034, 2011)

MEMORANDUM & ORDER

MARILYN HALL PATEL, District Judge.

The Estate of Oscar Grant III, Wanda Johnson, Sophina Mesa as guardian ad litem of minor, T.G., Jack Bryson, Jr., Nigel Bryson, Michael Greer, Carlos Reyes, Fernando Anicete Jr., Oscar Grant Jr. and Johntue Caldwell, (collectively “plaintiffs”), filed this action against the Bay Area Rapid Transit (“BART”), BART Police Chief Gary Gee, BART Manager Dorothy Dugger and BART officers Johannes Mehserle, Anthony Pirone, Mary-sol Domenici, Jon Woffinden and Emery Knudtson, (collectively “defendants”), for civil rights violations under federal and state law. Before the court are the parties’ cross-motions for summary judgment. Having considered the parties’ submissions and arguments, the court enters the following memorandum and order.

BACKGROUND

I. The Incident

The unfortunate events underlying this action occurred in the early morning hours of January 1, 2009. Oscar Grant III (“Grant”), Jack Bryson Jr. (“J. Bryson”), his younger brother, Nigel Bryson (“N. Bryson”), Caídos Reyes (“Reyes”), Michael Greer (“Greer”), Fernando Anicete Jr. (“Anicete”), Johntue Caldwell (“Caldwell”) and several friends were returning home to the East Bay via BART, having celebrated New Year’s Eve in San Francisco. BART is a governmental entity, organized under the laws of the state of California and provides train services throughout the San Francisco Bay Area. Plaintiffs rode in the lead car of a Dublin-Pleasanton-bound train, which traveled eastward from San Francisco into the East Bay. A fight broke out on the train sometime between its stop at the Lake Merritt Station and its subsequent stop at the Fruitvale Station. A concerned passenger alerted the train operator via intercom of the altercation, and the train operator radioed the information to BART officials.

BART officer Anthony Pirone (“Pirone”) and Marysol Domenici (“Domenici”) were assigned to the Frnitvale Station that evening. As the train pulled into the Fruit-vale Station, Pirone and Domenici received a call over their police radios alerting them to the fact that an alleged misdemeanor battery, as codified at California Penal Code section 242, was in progress. Pirone ran up the stairs to the train platform in order to investigate the matter. By the time Pirone reached the platform, the train had already arrived and passengers were disembarking. Pirone noticed Grant, Greer, J. Bryson, N. Bryson and Reyes standing and talking outside the lead car. He drew and armed his Taser and ordered the five young men to sit down against the platform’s retaining wall. Neither Grant, Greer, J. Bryson, N. Bryson nor Reyes complied with Pirone’s order. Instead, Grant and Greer re-boarded the now idling train, and J. Bryson, N. Bryson and Reyes continued walking past Pirone. Pirone next threatened to tase J. Bryson, N. Bryson and Reyes if they did not comply with his order, at which point all three young men sat down against the wall.

After detaining J. Bryson, N. Bryson and Reyes, Pirone radioed to Domenici for assistance on the platform. Domenici arrived shortly thereafter and pulled her Taser. Pirone directed her to continue the detention of J. Bryson, N. Bryson and Reyes so that Pirone could proceed to detain Grant and Greer, who were now both aboard the still-idling train. Having returned to the idling train, Pirone located Grant through a train window and remaining outside the train, focused the laser beam of his Taser on Grant as a means of coercing Grant into compliance. Faced with the threat, Grant got off the train and cooperated with Pirone as he escorted Grant over to the retaining wall to sit alongside J. Bryson, N. Bryson and Reyes. Pirone then focused his attention on Greer. He shouted into the train for anyone involved in the alleged fight to come off. Greer, standing with his back to Pirone, did not comply with this order. Pirone located Greer and removed him from the train by force. Pirone used a “hair pull leg-sweep” to bring Greer to the ground and proceeded to handcuff Greer.

At some point during the detention of Grant and Greer, several BART officers, including named defendants Johannes Mehserle (“Mehserle”), Jon Woffinden (“Woffinden”) and Emery Knudtson (“Knudtson”) arrived to provide back-up to the quickly-evolving situation. Having detained all five of the plaintiffs that he perceived to be suspects in the fight, Pirone ordered the back-up officers, including Mehserle, to continue the detention of Grant, Greer, J. Bryson, N. Bryson and Reyes. Pirone once again left the group to speak with the train operator, whose booth was adjacent to the lead car. Pirone spoke briefly with the train operator and then returned to the group. Upon his return, he indicated to Mehserle that Grant and Greer were to be arrested for obstructing an officer and resisting arrest pursuant to California Penal Code section 148. Greer had previously been handcuffed by Pirone, and Mehserle proceeded to handcuff J. Bryson before turning his attention to Grant, who at this point had risen to his knees and was engaged in some verbal exchange with Pirone.

Anieete and Caldwell, neither of whom had been detained at this point, watched the unfolding events from the platform. At some point during this time Knudtson tackled Anieete and handcuffed him. Mehserle and Pirone proceeded to use physical force to handcuff Grant. Mehserle pushed Grant from his kneeling position onto his back but also across the legs of Reyes, who sat to Grant’s right. Mehserle and Pirone maneuvered Grant onto his belly, away from Reyes’ legs, and continued to attempt to handcuff Grant. After a very brief time, Mehserle, who was kneeled over the bottom half of Grant’s body, ordered Pirone to stand back, pulled his service pistol, stood and fired a single bullet into Grant’s back.

After the shot, Mehserle handcuffed Grant for a brief period of time. BART officers ordered the still-idling train to finally depart the station. Reyes and N. Bryson, who at that point had not been handcuffed, were handcuffed by unknown BART officers, and J. Bryson, N. Bryson, Reyes, Greer and Anicete were detained in BART police cars parked around the Fruitvale station area. They all ultimately were transported to BART Police Headquarters, where they remained handcuffed at least for the next four hours without any arrest.

II. The Complaints

This action is comprised of four consolidated cases. See Docket No. 83.

1. The Johnson Complaint

Having originally filed a complaint on March 2, 2009, Wanda Johnson, the Estate of Oscar Grant III and Sophina Mesa as guardian ad litem of minor, T.G., filed a first amended complaint (“FAC”) on November 19, 2009, pleading the following causes of action: (1) on behalf of Oscar Grant III, unreasonable seizure in violation of the Fourth Amendment under 42 U.S.C. § 1983; (2) on behalf of Oscar Grant III, unlawful detention in violation of the Fourth Amendment under 42 U.S.C. § 1983; (3) on behalf of Oscar Grant III, unlawful arrest in violation of the Fourth Amendment under 42 U.S.C. § 1983; (4) on behalf of Oscar Grant III, excessive force in violation of the Fourth Amendment under 42 U.S.C. § 1983; (5) on behalf of Oscar Grant III, deliberate indifference to medical needs in violation of the Fourteenth Amendment under 42 U.S.C. § 1983; (6) on behalf of Oscar Grant III, conspiracy to violate civil rights under 42 U.S.C. § 1985; (7) wrongful death as a result of the violation of civil rights under 42 U.S.C. § 1983; (8) on behalf of Wanda Johnson and T.G., denial of familial relationship in violation of the Fourteenth Amendment under 42 U.S.C. § 1983; (9) municipal liability for the violation of civil rights under 42 U.S.C. § 1983; (10) on behalf of Oscar Grant III, pain and suffering as a result of civil rights violations under 42 U.S.C. § 1983; (11) on behalf of T.G., wrongful death pursuant to CaLCode of Civ. P. §§ 377.60 and 377.61; (12) on behalf of Oscar Grant III, a violation of Cal. Civ.Code § 52.1; (13) on behalf of Oscar Grant III, a violation of Cal. Civ. Code § 51.7; (14) intentional infliction of emotional distress; and (15) on behalf of Oscar Grant III, assault and battery. See Docket No. 43(FAC).

2. The Grant Jr. Complaint

On August 28, 2009, Grant’s father, Oscar Julius Grant Jr., filed a complaint pleading a single cause of action: (1) denial of familial relationship in violation of Fourteenth Amendment under 42 U.S.C. § 1983. See CV-09-04014 MHP, Docket No. 1 (Grant Jr. Complaint).

3. The Bryson Complaint

On October 13, 2009, J. Bryson, N. Bryson, Reyes, Greer and Anicete filed a complaint alleging the following causes of action: (1) unreasonable seizure in violation of the Fourth Amendment under 42 U.S.C. § 1983; (2) unlawful arrest in violation of the Fourth Amendment under 42 U.S.C. § 1983; (3) excessive force in violation of the Fourth Amendment under 42 U.S.C. § 1983; (4) conspiracy to violate civil rights under 42 U.S.C. § 1985; (5) municipal liability for the violation of civil rights under 42 U.S.C. § 1983; (6) a violation of Cal. Civ.Code § 52.1; (7) a violation of Cal. Civ.Code § 51.7; (8) intentional infliction of emotional distress; and (9) assault and battery. See CV-09-04385 MHP, Docket No. 1 (Bryson Complaint).

4. The Caldwell Complaint

Lastly, on January 4, 2010, Caldwell filed a complaint pleading the following causes of action: (1) a violation of the Fourth Amendment pursuant to 42 U.S.C. § 1981; (2) unreasonable seizure in violation of the Fourth Amendment under 42 U.S.C. § 1983; (3) unlawful detention in violation of the Fourth Amendment under 42 U.S.C. § 1983; (4) excessive force in violation of the Fourth Amendment under 42 U.S.C. § 1983; (5) conspiracy to violate civil rights under 42 U.S.C. § 1985; (6) failure to intervene under 42 U.S.C. § 1986; and (7) municipal liability for the violation of civil rights under 42 U.S.C. § 1983. See CV-10-00005 MHP, Docket No. 1 (Caldwell Complaint).

Now before the court are plaintiffs’ consolidated motion for summary judgment; Pirone, Mehserle and Domenici’s individual motions for summary judgment; BART, Gee, Dugger, Knudtson and Woffinden’s consolidated motion for summary judgment; and Knudtson and Woffinden’s motion for summary judgment.

LEGAL STANDARD

Summary judgment may be granted only when, drawing all inferences and resolving all doubts in favor of the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-55, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it may affect the outcome of the proceedings, and an issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248, 106 S.Ct. 2505. The court may not make credibility determinations. Id. at 255, 106 S.Ct. 2505. The moving party bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. Fed R. Civ. P. 56(c); see Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

DISCUSSION

At the outset, plaintiffs, in their moving papers, move to dismiss their claims with respect to conspiracy under 42 U.S.C. § 1985 and 42 U.S.C. § 1986, deliberate indifference to medical needs under 42 U.S.C. § 1983 and all claims asserted against defendant Dorothy Dugger. Accordingly, these claims as asserted in Count 4 and Count 5 (only as to Dugger) of the Bryson Complaint, Counts 5, 6 and 7 (only as to Dugger) of the Caldwell Complaint and Counts 5, 6 and 9 (only as to Dugger) of the Johnson Complaint are DISMISSED with prejudice.

At the hearing, plaintiffs moved to dismiss their claim for intentional infliction of emotional distress (“IIED”) under state law, and their claim under Cal. Civ.Code section 51.7 except as it is pled against defendant Pirone on behalf of the Estate of Oscar Grant. Accordingly, these claims as asserted in Count 8 (IIED) of the Bryson Complaint, Count 14 (IIED) of the Johnson Complaint and Count 7 (section 51.7) of the Bryson Complaint are DISMISSED with prejudice.

Lastly, at the hearing, plaintiff Caldwell moved to dismiss his claim under 42 U.S.C. § 1981 as asserted in Count 1 of the Caldwell Complaint. Accordingly, this claim is DISMISSED with prejudice. The court now considers the parties’ respective motions.

I. Defendants’Motions

A. Initial Seizure

1. Pirone

Pirone seeks summary judgment as to plaintiffs’ claim that Pirone’s initial seizure of plaintiffs J. Bryson, N. Bryson, Reyes, Grant and Greer was unconstitutional for lack of articulable suspicion. Generally, the Fourth Amendment prohibits an officer from effecting an unwarranted seizure absent probable cause. The Supreme Court, however, has “held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “While reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. The officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.” Id. (internal citations and quotation marks omitted). Moreover, “to establish reasonable suspicion, an officer cannot rely solely on generalizations that, if accepted, would cast suspicion on large segments of the law-abiding population. Seemingly innocuous behavior does not justify an investigatory stop unless it is combined with other circumstances that tend cumulatively to indicate criminal activity.” United States v. Manzo-Jurado, 457 F.3d 928, 935 (9th Cir.2006) (citing United States v. Montero-Camargo, 208 F.3d 1122, 1129-33 (9th Cir.2000)).

Pirone argues that his detention of plaintiffs was lawful because he allegedly relied upon several facts that, taken together, establish a reasonable suspicion that the plaintiffs were engaged in criminal activity. Plaintiffs, however, proffer evidence which supports the inference that Pirone’s seizure was unreasonable given the totality of the circumstances presented to him. For example, plaintiffs proffer Pirone’s deposition testimony, taken in preparation for this action, as well as Pirone’s testimony in the matter of the People v. Johannes Mehserle. By Pirone’s own account, he first received a report over his police radio that there was a potential misdemeanor battery pursuant to California Penal Code section 242. Docket No. 135-2 (Pirone Testimony) at 2784:5-13. After receiving the call on his police radio, Pirone, who was in the outside, unpaid area of the Fruitvale station at the time of the first call, made his way into the paid area of the station and moved toward the stairs that lead up to the train platform. On his way up the stairs toward the platform, Pirone received a second call over his police radio, which related more information regarding the alleged misdemeanor fight. This second call related the following information: “It’s the lead car, no weapons, all black clothing, large group of BMs is all we have.” Id. at 2789:12-22. Armed with this information alone, Pirone arrived on the platform and proceeded to act.

Pirone testified that upon arrival on the platform, he saw the plaintiffs standing outside the lead car. He testified that they did not appear to be engaged in any illegal activity, were not speaking with raised voices and were not fighting with any other individual on the platform. Docket No. 127 (Rapoport Dec.), Exh. 1 (Pirone Depo.) at 48:21-51:19. Pirone also conceded that he passed through a second group that matched the description of the individuals allegedly involved in the fight, but that he made no attempt to stop this group, given his singular focus on plaintiffs. Id. at 2793:18-2794:4. Pirone testified that prior to reaching the group and without any questioning of the group or of any other individuals located on the platform as to what had actually occurred, including the train operator whose head was visible outside the train operator’s booth, Pirone pulled and armed his Taser with the intent of forcing plaintiffs, through “intimidation,” to comply with Pirone’s attempts to detain them. Id. at 2799:1-11. Plaintiffs started walking toward Pirone in order to exit the BART station. As they and Pirone drew closer to one another, Pirone, with armed Taser pulled and pointed at plaintiffs, ordered plaintiffs to sit down against the retaining wall of the Fruitvale BART station. Id. at 2791:19-2792:7; 2799:20-2803:12; Pirone Depo. at 51:4-16.

Pirone argues that at this point all five plaintiffs took evasive action, which makes the stop legal pursuant to Illinois v. Ward- low, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). In Wardlow, the petitioner took off running in response to seeing officers drive past him. Id. at 121-22, 120 S.Ct. 673. Relying on this “unprovoked flight,” the respondent officers pursued petitioner, seized him and conducted a pat down, which in turn resulted in the discovery of an illegal weapon. Id. at 125, 120 S.Ct. 673. The Court held that this unprovoked flight from the officers, in conjunction with the petitioner’s presence in a high crime neighborhood supported the officers’ reasonable suspicion that petitioner may have been involved in some criminal conduct. Id. at 124, 120 S.Ct. 673 (“[I]t 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.”)

Unlike in Wardlow, however, the plaintiffs here were not in a high crime area and viewing Pirone’s testimony in the light most favorable to plaintiffs, the trier of fact could reasonably infer that plaintiffs were not engaged in evasive action similar to that observed in Wardlow. Indeed, J. Bryson, N. Bryson and Reyes did not run away from Pirone, but instead walked from the lead car toward Pirone as they had to in order to exit the train station. Meanwhile, Grant and Greer simply re-boarded the train. The trier of fact could reasonably infer that plaintiffs’ actions here were not evasive, but calculated to avoid what appeared to be an unmotivated detention. See id. at 120, 120 S.Ct. 673 (citing Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (“[Wjhen an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a -right to ignore the police and go about his business”)); (“any ‘refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.’ ” (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991))). Viewing the facts in the light most favorable to plaintiffs, the facts suggest that plaintiffs merely refused to cooperate with Pirone’s order to get against the wall and attempted to avoid contact with Pirone. And, “even if [an officer] reasonably suspected that [p]laintiff[s were] avoiding him, such noncooperation, without more, does not support a suspicion that [p]laintiff[s were] engaged in criminal activity.” Liberal v. Estrada, 632 F.3d 1064, 1078 (9th Cir.2011).

Pirone argues that even if the detention was unconstitutional, he is entitled to qualified immunity. “A finding of qualified immunity depends on a two-part inquiry by the court.” Peng v. Mei Chin Penghu, 335 F.3d 970, 976 (9th Cir.2003) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). The court must determine whether the facts alleged, “taken in the light most favorable to the party asserting the injury,” show the violation of a constitutional right, and whether the right was clearly established at the time of the violation. Id.; see Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir.2007) (citing Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir.2004) (“Defendants are entitled to such relief only if the facts alleged and evidence submitted ... show that their conduct did not violate a federal right; or, if it did, the scope of that right was not clearly established at the time.”)). In analyzing the two-pronged qualified immunity standard, the court may consider either prong first, however “it is often beneficial” to determine whether a constitutional right was violated prior to considering whether the scope of the right was clearly established. Pearson, 555 U.S. at 236, 129 S.Ct. at 818 (“The judges of the district courts and the courts of appeal should be permitted to 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.”). Having concluded that the trier of fact could reasonably infer that Pirone’s initial detention violated plaintiffs’ Fourth Amendment rights, the court addresses whether plaintiffs’ right was clearly established.

“Whether a right is clearly established for purposes of qualified immunity is an inquiry that must be undertaken in light of the specific context of the case, not as a broad general proposition. In other words, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Blankenhorn, 485 F.3d at 476 (internal quotation marks and citations omitted). Pirone testified that as he arrived on the platform, he saw plaintiffs standing and talking outside of the lead car. He testified that they did not appear to be engaged in any illegal activity, and they did not appear to be fighting. According to Pirone, however, they met the physical description of the suspected persons allegedly involved in the fight and consequently Pirone drew his Taser and proceeded to detain them. Thus, Pirone’s suspicions appear to have been largely aroused by his perception that the plaintiffs matched the physical description of the suspected fighters; namely, plaintiffs are five Black or dark-skinned men, who were wearing dark clothing on the evening in question. It is well-established law, however, that general appearance, including racial characteristics that reflect a significant portion of the population, is of little probative value absent a more particularized set of circumstances that would indicate the possibility that the suspects are engaged in criminal activity. See Unites States v. Montero-Camargo, 208 F.3d 1122, 1131-36 (9th Cir.2000). Accordingly, it would be clearly established to a reasonable officer in Pirone’s situation that conducting a brief, investigatory stop without particularized, articulable suspicion beyond plaintiffs’ alleged physical and racial resemblance to the suspects would not comport with plaintiffs’ constitutional rights. Thus, Pirone is not entitled to qualified immunity, and summary judgment as to plaintiffs’ claims with respect to the initial detention is DENIED.

2. Remaining Defendant Officers

Domenici and Mehserle argue that they are not liable for Pirone’s alleged constitutional violation under the collective knowledge doctrine. Under the collective knowledge doctrine, “[w]here one officer knows facts constituting reasonable suspicion or probable cause (sufficient to justify action under an exception to the warrant requirement), and he communicates an appropriate order or request, another officer may conduct a warrantless stop, search, or arrest without violating the Fourth Amendment.” United States v. Ramirez, 473 F.3d 1026, 1037 (9th Cir.2007). Domenici and Mehserle argue that they reasonably relied on Pirone’s determination of reasonable suspicion and consequently detained plaintiffs upon Pirone’s order. However, because there is a genuine issue of material fact as to whether the totality of the circumstances supported Pirone’s determination of reasonable suspicion, the collective knowledge doctrine absolves neither Domenici nor Mehserle of liability at this stage of the action.

Domenici and Mehserle next argue that even if the continued seizure was unlawful, they are entitled to qualified immunity because their actions were reasonable given the circumstances. Pirone testified that after detaining the Bryson brothers and Reyes against the platform wall, he radioed to Domenici requesting her assistance on the platform. After Domenici arrived on the platform, Pirone asked her to stand guard over the plaintiffs, without telling her more. Domenici relied on Pirone’s assessment of the situation in continuing to detain plaintiffs. Once Pirone pulled Grant and Greer off the train, Domenici then continued to assist in their seizure as well. Although Domenici did not question the legality of the seizure, there was no indication at that point that the seizures were in fact unlawful. She relied upon Pirone’s assessment of the situation and, taking his directive, continued the detentions. Pirone similarly ordered the BART back-up officers, including Mehserle, Woffinden and Knudtson, to keep watch over plaintiffs. They complied with Pirone’s order without questioning the nature of Pirone’s articulable suspicion.

Pirone then left Domenici, Mehserle, Woffinden and Knudtson to guard plaintiffs while he walked back to the train to question the train operator as to the alleged fight. When Pirone returned, he simply instructed that Grant and Greer be arrested for a violation of section 148, but said nothing more about his investigation of the alleged section 242 violation. According to defendants, Pirone merely pointed generally in the direction of Grant and Greer. Because J. Bryson was positioned immediately beside Grant, however, defendants contend that Mehserle reasonably believed that Pirone was referring to J. Bryson for arrest. Accordingly, Mehserle proceeded to arrest J. Bryson while officers Domenici, Woffinden, Knudtson continued to participate in the detention of Grant, Greer, N. Bryson and Reyes.

Given the totality of the circumstances presented to Domenici, Mehserle, Woffinden and Knudtson, while a reasonable officer may not have questioned the validity of the detentions up until the point that Pirone returned and ordered that Grant and Greer be arrested, the trier of fact could conclude that a reasonable officer could not have believed that the continued detention of the Bryson brothers and Reyes was reasonable. Pirone gave no orders as to them, and neither Domenici nor Mehserle had any independent reason to suspect that any of the three young men had engaged in criminal activity. This rationale applies to Woffinden and Knudtson as well.

Accordingly, Domenici, Mehserle, Woffinden and Knudtson are entitled to qualified immunity as to Grant and Greer’s detention and arrest and as to the detention of J. Bryson, N. Bryson and Reyes up to the time that Pirone announced his intent to arrest Grant and Greer. To the extent that the finder of fact determines that defendants participated in the extended detention of plaintiffs beyond Pirone’s announcement that Grant and Greer were to be arrested, defendants are not entitled to qualified immunity. Accordingly, summary judgment as to this claim is GRANTED in part in favor of defendants Domenici, Mehserle, Woffinden and Knudtson and DENIED in part.

B. Unlawful Arrest

1. Pirone

a. Grant and Greer

Pirone moves for summary judgment as to plaintiffs’ claim of unlawful arrest. Pirone concedes that he placed Greer and Grant under arrest upon returning to the retaining wall after his brief discussion with the train operator. He subsequently directed Mehserle to arrest Grant and Greer. Greer was already in handcuffs, and Pirone ordered Mehserle to handcuff Grant. It was during the course of this attempt to handcuff Grant that Mehserle shot Grant in the back. After the shooting, Pirone persisted by . ordering Mehserle to handcuff the fatally wounded Grant. Pirone Testimony at 2931:7-19. Pirone argues that he had probable cause to arrest Grant and Greer for a violation of section 148 because both Greer and Grant reboarded the train in response to Pirone’s attempts to detain the group, allegedly tried to conceal themselves amidst the “crush load” on the idling train and came off the train only after Pirone threatened Grant with a Taser and after Pirone physically removed Greer from the train. According to Pirone, Grant and Greer’s actions obstructed his “work as a police officer.” Docket No. 152 (Pirone Motion for Summary Judgment) at 25:18.

Plaintiffs proffer evidence that Pirone formed the intent to place Grant and Greer under arrest pursuant to section 148 • after he spoke with the train operator. Pirone Testimony at 2888:2-25. The record reflects that Pirone personally placed Greer, the last plaintiff to be detained, in handcuffs prior to walking to the lead car ostensibly to check for victims of the alleged fight and to question the train operator as to what she had witnessed. Id. at 2879:17-2881:18. Plaintiffs proffer evidence that Pirone simply asked the train operator, “What do we have here?”, to which the train operator simply replied, “Some bs.” Docket No. 134-1 (Williams Testimony) at 3025:4-3026:13. Indeed, the train operator’s testimony reflects that Pirone did not ask her if there were any victims; did not ask her if anyone had come forward regarding the alleged fight; did not ask her if she could identify anyone involve in the alleged fight; did not ask if anyone appeared to be wounded; did not ask her to identify the five plaintiffs as suspects; did not ask her if anyone else was involved; and did not ask her if she knew if any weapons were involved. Id. at 3027:1-3028:28. Nor did the train operator share any of this information with Pirone or express the opinion that plaintiffs were in fact involved in the alleged fight. Id. at 3029:1-16. Pirone himself testified that he did not ask the train operator to step out of her booth to make an identification of the detained plaintiffs. Pirone 2882:24-2883:17. Instead, he walked away from this brief interaction with her, having formed the intent to arrest Grant and Greer for resisting his efforts to detain them for suspicion of misdemeanor fighting. Pirone Testimony at 2887:20-2888:28. Accordingly, upon returning to the group, Pirone instructed Mehserle to arrest both the already-handcuffed Greer and to handcuff and arrest Grant. Pirone 2888:10-21.

Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir.2007) is instructive as to the lawfulness of Pirone’s arrest of Grant and Greer pursuant to section 148. In Blankenhom, the Ninth Circuit considered the lawfulness of plaintiffs arrest for a violation of section 148 stemming from an alleged trespass. The court instructed that arrest for resisting arrest is not lawful if the arrest for the underlying criminal violation is unwarranted. Id. at 472 (citing Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 920 (9th Cir.2001) (“If there was no probable cause to arrest Blankenhom for trespassing in the first place, it makes no difference for present purposes if he resisted arrest.”)).

“ ‘Probable cause exists when, under the totality of the circumstances known to the arresting officers (or within the knowledge of the other officers at the scene), a prudent person would believe the suspect had committed a crime.’ ” Blankenhorn, 485 F.3d at 471-72 (quoting Dubner v. City & County of San Francisco, 266 F.3d 959, 966 (9th Cir.2001)). Here, Pirone had no probable cause to believe that Grant or Greer were involved in the alleged misdemeanor fight or any other criminal activity for that matter. Having detained the plaintiffs and having instructed the back-up BART officers to continue the detention so that he could then conduct his investigation, Pirone made no reasonable attempt to uncover any evidence linking plaintiffs to the alleged criminal conduct. Indeed, he testified that he did not even attempt to perform any investigation of the scene of the alleged crime, namely, the lead car of the train. According to Pirone, he merely glanced into the lead car, but never entered to ascertain if anyone was injured or to collect evidence of the alleged criminal activity. Pirone Testimony at 2883:22-2884:12.

Viewing Pirone’s account of the events in the light most favorable to plaintiffs, the trier of fact could reasonably infer that Pirone lacked probable cause to believe that any of the plaintiffs committed a violation of section 242 of the Penal Code or any other criminal violation. Per Blankenhorn, without probable cause to believe that plaintiffs had committed any underlying criminal violation, and without reasonable suspicion to detain plaintiffs for investigatory purposes, Pirone lacked probable cause to arrest plaintiffs pursuant to section 148.

Pirone also argues that Grant violated section 148 by interfering with Pirone’s attempts to arrest Greer. Pirone contends that Grant, the Bryson brothers and Reyes all engaged in a “concerted effort to obstruct, (sic) the handcuffing and arrest of Michael Greer.” Pirone’s Motion at 26:1-2. Plaintiffs proffer evidence, however, to support the reasonable inference that neither Grant, the Bryson brothers nor Reyes engaged in activity that could reasonably be construed as obstructing Pirone’s handcuffing of Greer. Plaintiffs adduce testimony that Pirone removed the much smaller Greer from the train by force, threw him into the retaining wall then executed a “hair-pull takedown maneuver” to bring Greer into a sitting position. Pirone Testimony at 2253:14-2856:8. Plaintiffs present evidence that Grant, the Bryson brothers and Reyes objected verbally to this perceived use of unreasonable force against their Mend and that J. Bryson and Grant both stood in protest. Docket No. 135-7 (J. Bryson Testimony) at 3461:9-3462:13. Pirone contends that the force he used was necessary, but plaintiffs argue that Pirone’s force was excessive.

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. In fact, [t]he 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.” In re Muhammed C., 95 Cal.App.4th 1325, 1330, 116 Cal.Rptr.2d 21 (2002) (quoting City of Houston, Texas v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (internal quotation marks omitted)). Indeed, “[s]peech is often provocative and challenging ... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Houston, 482 U.S. at 461, 107 S.Ct. 2502 (quoting Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949)). Pirone does not contend that either Grant, the Bryson brothers or Reyes did more than protest verbally and stand up after witnessing Pirone’s use of force on Greer. To the extent that Pirone argues that Grant and J. Bryson’s act of standing constituted an obstruction of his ability to conduct his police duties, there is at least a question of material fact whether in standing up, either J. Bryson or Grant did anything more than “stand[ ] passively.” People v. Wetzel, 11 Cal.3d 104, 107, 113 Cal.Rptr. 32, 520 P.2d 416 (1974). Ultimately, viewing the evidence in the light most favorable to plaintiffs, the finder of fact could reasonably conclude that neither plaintiffs’ verbal objections nor passive stance operated to obstruct Pirone’s ability to handcuff Greer.

Nonetheless, Pirone argues that even if the arrests were unconstitutional, he is entitled to qualified immunity due to his error of judgment. However, the qualified immunity inquiry considers what the reasonable officer in a given set of circumstances could have believed to be reasonable given the state of the law, and it was clearly established at the time of the incident, per Blankenhom, that absent probable cause of some criminal violation, Pirone could not have reasonably arrested Greer or Grant for obstructing justice or resisting arrest for simply avoiding Pirone. Moreover, it was clearly established that Grant, the Bryson brothers and Reyes were entitled to criticize Pirone’s actions without being arrested for allegedly obstructing Pirone’s attempts to handcuff Greer. Accordingly, Pirone’s motion as to plaintiffs’ claim of unlawful arrest as to plaintiffs Grant and Greer is DENIED,

b. J. Bryson, N. Bryson and Reyes

Pirone argues that he cannot be liable for unlawful arresting the Bryson brothers and Reyes because he did not, as a formal matter, place them under arrest. Pirone contends that he merely detained them pursuant to Terry v. Ohio. The arresting officer’s subjective intent to arrest is not dispositive when determining whether an individual has been arrested however, and the circumstances surrounding an investigatory stop may cause the action to cross the line into an arrest. Indeed, in the Ninth Circuit:

It is well-settled that the purpose of a Terry stop is to allow the officer to pursue his investigation without fear of violence. Generally, a Terry stop involves no more than a brief stop, interrogation and, under proper circumstances, a brief check for weapons. If the stop proceeds beyond these limitations, an arrest occurs, which requires probable cause. There has been an arrest if, under the circumstances, a reasonable person would conclude that he was not free to leave after brief questioning.

Under ordinary circumstances, drawing weapons and using handcuffs are not part of a Terry stop. Nevertheless, we allow intrusive and aggressive police conduct without deeming it an arrest ... when it is a reasonable response to legitimate safety concerns on the part of the investigating officers. In determining whether a stop amounts to an arrest, we also consider the specificity of the information that leads the officers to suspect that the individuals they intend to question are the actual suspects being sought and the number of police officers present.

We have permitted the use of intrusive means to effect a stop where the police have information that the suspect is currently armed or the stop closely follows a violent crime. Under such circumstances, holding a suspect at gunpoint, requiring him to go to his knees or lie down on the ground, and/or handcuffing him will not amount to an arrest.

United States v. Miles, 247 F.3d 1009, 1012 (9th Cir.2001) (internal quotation marks, citations and alterations omitted) (emphasis added).

Plaintiffs proffer evidence from which the reasonable trier of fact could conclude that Pirone arrested Bryson brothers and Reyes, even though he did not form the subjective intent to do so. Specifically, when Pirone arrived on the platform, there appeared to be no objective indication of violent activity or of any criminal activity for that matter, yet Pirone drew his Taser immediately and threatened all five plaintiffs with tasing if they did not comply with his order to sit down against the retaining wall. Pirone was informed prior to encountering plaintiffs that the alleged fight from which this entire business stemmed did not involve the use of weapons, yet he employed a significant measure of force in detaining plaintiffs. Even after the arrival of Domenici, Woffinden, Mehserle, Knudtson and other BART officers, neither Pirone nor any of the other BART officers made any apparent attempts to conduct a patdown of plaintiffs for officer safety or public safety purposes. Lastly, prior to the shooting of Grant, Pirone made little or no attempt to investigate the fight. Instead, defendants detained the plaintiffs without taking steps to conduct a reasonable investigation. Viewing the facts in the light most favorable to plaintiffs, the trier of fact could conclude that a reasonable person would not believe that he was at liberty to leave.

Nor is Pirone entitled to qualified immunity. In the Ninth Circuit, it is clearly established law that “the use of especially intrusive means of effecting a stop [is only permissible] in special circumstances, such as (1) where the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight; (2) where the police have information that the suspect is currently armed; (3) where the stop closely follows a violent crime; and (4) where the police have information that a crime that may involve violence is about to occur.” Washington v. Lambert, 98 F.3d 1181, 1189 (1996). Because viewing the evidence in favor of plaintiffs, the finder of fact could conclude that none of the above circumstances were present here, Pirone is not entitled to qualified immunity and summary judgment as to the unlawful arrest of the Bryson brothers and Reyes is DENIED.

2. Domenici

Domenici argues that to the extent plaintiffs were unlawfully arrested, she is not liable because she did not integrally participate in The arrest of any of the plaintiffs. In light of the court’s conclusion above that the trier of fact could reasonably infer that the Terry stop had crossed the line into an unlawful arrest, Domenici’s arguments are unavailing.

“An officer’s liability under section 1983 is predicated on his “integral participation” in the alleged violation.” Blankenhorn, 485 F.3d at 481 (citing Chuman v. Wright, 76 F.3d 292, 294-95 (9th Cir.1996)). “ ‘[Integral participation’ does not require that each officer’s actions themselves rise to the level of a constitutional violation.” Id. (quoting Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir.2004)). “But it does require some fundamental involvement in the conduct that allegedly caused the violation.” Id. Domenici admittedly assisted in the detention of plaintiffs. To the extent that the trier of fact concludes that the detentions in fact constituted arrests, the trier of fact could also reasonably conclude that Domenici “participated in some meaningful way.” Boyd, 374 F.3d 773 at 780.

Moreover, even if plaintiffs were not unlawfully arrested prior to the time that Mehserle shot Grant, the continued detention of Greer, J. Bryson, N. Bryson, Anicete and Reyes for several hours without probable cause was unlawful. Plaintiffs argue that Domenici continued to participate in their detention after Grant’s shooting, and the trier of fact could reasonably conclude that she meaningfully participated in this constitutional deprivation even though she did not see it through until its end.

Domenici also argues that in the event that defendants unlawfully arrested plaintiffs, she is entitled to qualified immunity. As to the pre-shooting detention period, Domenici’s arguments are convincing. Having heard the initial broadcast regarding the alleged misdemeanor fight, she arrived at the platform pursuant to Pirone’s call for help. Upon her arrival, Pirone had already detained the Bryson brothers and Reyes, and he ordered her to stand guard over them while he detained Grant and Greer. After detaining them, Pirone left to ostensibly conduct his investigation by speaking with the train operator and by checking for injured victims in the lead car. After conducting an investigation unlikely to uncover any facts to support probable cause as to the alleged section 242 violation, Pirone returned and announced that Grant and Greer should be arrested for violating section 148. Pirone Testimony 2888:15-25. At this point, the continued detention of J. Bryson, N. Bryson and Reyes was patently unreasonable. Pirone’s announcement should have signaled to the present officers, including Domenici, that there was no reasonable suspicion to detain nor probable cause to arrest plaintiffs J. Bryson, N. Bryson and Reyes. Evidence suggests that nonetheless Domenici continued to participate in their detentions up until the time that Mehserle shot Grant and thereafter. See Docket No. 156 (Rains Dec.), Exh. K (Matrix Video). Considering these circumstances, it would have been clearly established to a reasonable officer that the continued detention of these plaintiffs was unreasonable. Accordingly, Domenici is entitled to qualified immunity as to the detentions of all plaintiffs prior to Pirone’s announcement that Grant and Greer were to be arrested. She is not entitled to qualified immunity to the extent that she participated in the continued detention of J. Bryson, N. Bryson and Reyes after Pirone’s announcement. Because issues of material fact remain as to the degree to which Domenici continued to participate in these detentions after Pirone’s order, summary judgment is GRANTED in part in favor of Domenici and DENIED in part.

3. Mehserle

Plaintiffs claim that Mehserle is liable for the unlawful arrest of Grant and J. Bryson. Mehserle argues that he merely attempted to arrest Grant pursuant to Pirone’s order to do so. Mehserle had arrived on the platform after the Bryson brothers, Reyes, Grant and Greer had already been detained by Pirone and Domenici. Mehserle testified that he drew his Taser after seeing other BART officers, including Pirone and Domenici, with their Tasers drawn. Docket No. 156 (Rains Dec.), Exh. F (Mehserle Testimony) at 4133:4-5,17-20. Mehserle testified that having drawn his Taser, he was told by Pirone to guard plaintiffs while Pirone left. Id. Pirone gave no additional information about the nature of his suspicion allegedly warranting the detentions. Id. at 4133. Indeed, according to Mehserle, Pirone gave no indication that he had “had trouble” with plaintiffs up to that point; did not tell Mehserle that he was leaving the scene of the detention to go speak with the train operator; and did not indicate whether or not plaintiffs had been searched for weapons. Id. Mehserle, for his part, did not ask Domenici, who had arrived on the scene prior to Mehserle, anything about the detentions, and simply proceeded to follow Pirone’s order. Id. Accordingly, Mehserle joined in with Domenici, keeping his “[Tjaser trained on [plaintiffs]” as they sat against the wall. Id. at 4135:2-3.

Mehserle contends that he is not liable for the alleged unlawful arrest of J. Bryson because he believed that when Pirone returned to the retaining wall after speaking with the train operator, Mehserle believed that Pirone indicated that J. Bryson and Grant were to be arrested rather than Greer and Grant. Mehserle argues that when identifying the individuals to be arrested for section 148 violations, Pirone merely stated that “him and him” should be arrested and pointed generally in the direction of Grant and Greer. Id. at 4206:21-23. Pirone testified that he pointed specifically to Grant and Greer, not to J. Bryson, and that as Mehserle started to handcuff J. Bryson, Pirone had no knowledge of why J. Bryson was being arrested, Pirone Testimony 2888:15-25; 2893:9-20. Viewing the facts in the light most favorable to plaintiffs, the finder of fact could conclude that Mehserle made an unreasonable mistake of fact and unlawfully arrested J. Bryson. Moreover, because the reasonableness of Mehserle’s mistake of fact turns on an as-yet unresolved issue, he is not entitled to qualified immunity as to the arrest of J. Bryson since it was clearly established that an arrest without probable cause would have been unlawful.

As to Grant, Mehserle contends that he was merely following Pirone’s order. Because there is a genuine issue of material fact as to whether Pirone had probable cause to arrest Grant, the court must consider whether it was objectively reasonable for Mehserle to follow Pirone’s order given the circumstances. Mehserle arrived on the scene after Pirone had initiated the detentions and after Grant had allegedly obstructed Pirone’s attempts to investigate the alleged misdemeanor battery report. Mehserle testified that after Pirone instructed Mehserle to watch plaintiffs, Pirone left the retaining wall without informing him that he intended to investigate the alleged crime. Upon Pirone’s return he ordered the arrests for a section 148 violation. Although Mehserle had no individual sense of probable cause, it was reasonable for him to follow Pirone’s order to arrest Grant. Accordingly, Mehserle is entitled to qualified immunity as to Grant’s arrest and summary judgment is GRANTED in Mehserle’s favor, however summary judgment as to the arrest of J. Bryson is DENIED.

4. Woffinden and Knudtson

With respect to plaintiffs J. Bryson, N. Bryson, and Reyes, questions of material fact remain as to Woffinden and Knudtson’s participation in the continued detention of the plaintiffs after Pirone announced that only Grant and Greer were under arrest, as well as in the period immediately following the shooting of Grant during which time J. Bryson, N. Bryson, Reyes, and Greer were arrested and detained at BART PD headquarters. Accordingly, for the reasons set forth above with respect to Domenici, summary judgment as to these plaintiffs is DENIED.

As to Anicete, Woffinden and Knudtson concede that they arrested Anicete for obstructing a peace officer in violation of section 148(a) and for assaulting a peace officer in the performance of her duties in violation of California Penal Code section 241. Docket No. 21 (Woffinden and Knudtson Motion) at 12-13. Woffinden and Knudtson assert that Anicete and another man obstructed the officers by “breach[ing] an established police perimeter” when they repeatedly approached then retreated from the officers as they detained the Bryson brothers, Grant, Greer and Reyes in spite of Woffinden and Domenici’s commands that they back away from the area. Id. Anicete claims that he was merely protesting what he perceived to be the unwarranted detention of his friends and the unnecessary use of force against them. Plaintiffs proffer evidence that Anicete posed no threat to the ongoing detention of the Bryson brothers, Grant, Greer and Reyes, other than to express verbal dissent and to approach and retreat from the area where his friends were being detained. Docket No. 21-6 (Anicete Depo.) 168:15-175:9. Accordingly, there is an issue of material fact whether Woffinden and Knudtson had probable cause to believe that Anicete violated section 148(a). Moreover, Woffinden and Knudtson had no reason to believe that Anicete was involved in the alleged section 242 violation since they arrived on the scene after Pirone had already detained the individuals he believed to have been involved in the misdemeanor fight. Resolving the questions of fact in favor of plaintiffs, Anicete was merely protesting the detention and did nothing to obstruct the officers’ ability to conduct their detention.

Woffinden and Knudtson also allege that Anicete assaulted them by throwing a cell phone at them as they attempted to engage in their police work. Plaintiffs argue that Anicete did not throw the phone and that it was unreasonable for the officers to believe that he had in fact thrown the phone. Anicete Depo. at 175. Consequently, there is a genuine issue of material fact whether defendants had probable cause to believe that Anicete violated section 241. Because fact questions remain, Woffinden and Knudtson’s motion for summary judgment as to Anicete’s claim is DENIED.

C. Excessive Force

1. Pirone

Pirone argues that his use of force throughout the events underlying this action was reasonable under the totality of the circumstances. “A claim against law enforcement officers for excessive force is analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 921 (9th Cir.2001) (citing Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). “The Fourth Amendment requires police officers making an arrest to use only an amount of force that is objectively reasonable in light of the circumstances facing them.” Blankenhorn, 485 F.3d at 477 (citing Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). “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.” Arpin, 261 F.3d at 921 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). “To determine whether a specific use of force was reasonable, we must balance ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing government interests at stake.’ ” Blankenhorn, 485 F.3d at 477 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). “Relevant factors to this inquiry include, but are not limited to, ‘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.’” Id.

The record is replete with evidence of the force used by Pirone against plaintiffs Grant, Greer, the Bryson brothers and Reyes. The court considers each plaintiff in turn.

a. Greer

Plaintiffs proffer evidence that Pirone removed Greer from the train by force. Greer testified that Pirone never asked him directly to step off the train, but instead yelled into the idling train for anyone involved in the alleged fight to step off the train. Docket No. 127 (Rapaport Dec.), Exh. E (Greer Depo.) at 30-31. Greer testified that because he was not involved in the fight, he simply stood with his back to Pirone and did not step off the train as ordered. Without addressing Greer specifically, however, Pirone next grabbed Greer and dragged him by his neck and hair over to the retaining wall. Id. at 31. Greer further testified that once on the platform, Pirone performed a leg sweep in order to bring Greer to the ground. Id. at 32. Once he had Greer on the ground, Pirone handcuffed him. Id. at 33-34. Greer alleges that during the course of handcuffing and without provocation, Pirone slammed Greer’s head into the ground which resulted in an abrasion on Greer’s head. Id. at 34. Pirone contends, however, that up until the time of handcuffing, Greer was resisting arrest. Pirone Testimony at 2854:28-2855:1. Pirone testified that once he removed Greer from the train and “nudged” Greer against the retaining wall, Greer took a “combative stance” and appeared ready to confront Pirone. Id. at 2855:13. It was at that point that Pirone used the leg sweep to take down Greer. Id. at 2856:5-10.

Viewing the facts in the light most favorable to plaintiffs, there is a genuine issue of material fact whether Pirone’s use of force against Greer was excessive given the circumstances. The trier of fact could reasonably infer that the crime of misdemeanor fighting without weapons was not sufficiently severe to warrant the level of force Pirone used in detaining Greer. Indeed, there is no evidence in the record that Greer posed an immediate threat to public safety or to Pirone or that Greer was involved in the alleged fight. Greer merely failed to cooperate with Pirone’s general order that anyone involved in the fight step off the train. Moreover, the parties present very different versions of the facts with respect to whether Greer was compliant or combative in response to Pirone’s attempts to remove him from the train. Viewing the facts in favor of Greer however, the finder of fact could reasonably conclude that Pirone’s use of force was unreasonable.

Pirone argues that even if he violated Greer’s right against the use of excessive force, he is entitled to qualified immunity. Having concluded that the trier of fact could reasonably infer that Pirone’s use of force against Greer was excessive, the court must consider whether the right was clearly established such that a reasonable officer in Pirone’s situation would have understood his actions to be unlawful. Resolving the facts in favor of Greer, the non-moving party here, Pirone dragged Greer by the neck and hair off the train without first simply asking Greer to step off the train. Moreover, even though Greer was compliant, Pirone threw him into the retaining wall, took him to the ground with a hair-pull leg-sweep, then smashed his head into the platform while handcuffing him. The law was clearly established that this measure of force employed against a nonresistant suspect of a misdemeanor was unreasonable. Thus, because questions of fact underlie the reasonableness of Pirone’s use of force, he is not entitled to qualified immunity at this point as to his use of force against Greer.

b. Grant

The same analysis applies to Pirone’s use of force against Grant. After Grant reboarded the train, Pirone walked along the outside of the train looking into the windows to locate Grant. After locating Grant, who allegedly reboarded the train on the second car and had walked through the second car into the third car, Pirone held his Taser up to the window and focused the Taser’s laser beam on Grant to get Grant’s attention. Pirone Testimony at 2819:17-2820:10. Facing the threat of being tased, Grant cooperated with Pirone, and Pirone walked Grant over to the retaining wall. Id. at 2823:3-2824:4. Grant complied with Pirone’s order to sit against the wall, and Pirone next returned to the train to detain Greer. Id. at 2828:26-2829:7.

As discussed above, Pirone used a considerable amount of physical force in detaining Greer. In protest to this use of force against his friend, Grant and J. Bryson stood and verbally expressed their objections. Domenici allegedly asked Grant and J. Bryson to sit back down and “stay out of it.” Pirone argues that Grant appeared to hit Domenici’s arm prompting Pirone to approach Grant and strike Grant about the face using his forearm. Id. at 2878:23-27. Plaintiffs present evidence, however, that rather than attempting to strike Domenici, Grant was attempting to keep the peace and made no attempt to touch Officer Domenici. Defendants’ video evidence supports this version of the events. Rains Dec., Matrix Video. In this video, while Pirone is off to the left handcuffing Greer, Grant, J. Bryson and Reyes are seen standing to the right, apparently protesting Pirone’s use of force. Id. Grant appears to place his hand in front of J. Bryson to keep him against the retaining wall, even as plaintiffs continue to express some verbal displeasure with the turn of events. Id. Pirone is next seen approaching Grant, striking him in the head area and engaging in some other form of punching or hitting. Id. Pirone conceded in testimony that he appeared to use his forearm to hit Grant in the “head or face area.” Pirone Testimony at 22878:23-27. Grant and J. Bryson subsequently appear to throw their hands up in submission and sit back down against the wall, even as Pirone draws his bright yellow Taser and points it at Grant. Rains Dec., Matrix Video. At this point, N. Bryson and Reyes also sit back down in submission against the retaining wall. Id. Viewing the evidence in the light most favorable to plaintiff, the finder of fact could reasonably conclude that Pirone’s use of force here was unreasonable in light of the circumstances. Indeed, it is unclear whether Grant was engaging in any threatenin