Whiting v. City Of San Jose

Background

Deborah Whiting attended a Paul McCartney concert at the SAP Center in San Jose on July 10, 2019. She found the concert too loud and asked an SAP staff member for a ticket refund. The staff member took her to a stairwell, where Officer Jenni Byrd followed them. After the staff member left to find a supervisor, Whiting and Byrd remained in the stairwell.

The parties disputed what happened next. Whiting testified that Byrd physically assaulted her and threw her onto the stairs, causing injuries. Byrd testified that she placed her hand on Whiting’s triceps and helped her up the stairs, after which Whiting pulled away and fell. Whiting complained to the San Jose Police Department the same day and said she later complained to the Independent Police Auditor. The Police Department later informed her that the allegations of force were classified as “Not Sustained.”

Whiting filed this action under 42 U.S.C. § 1983. Claim 1 alleged that Byrd used excessive force in violation of the Fourth Amendment and that the City was liable because it failed to train, supervise, and discipline officers and had related policies, customs, or practices. Claim 2 sought to compel production of Whiting’s statements under California Penal Code § 832.7(c), along with injunctive and declaratory relief under cited California statutes.

Claim 1: City liability under Section 1983

The City sought summary judgment on the portion of Claim 1 alleging municipal liability. The court explained that a local government may be liable under Section 1983 when an official policy or custom causes a constitutional violation, but it cannot be held responsible merely because it employs the person who allegedly committed the violation. Whiting therefore had to provide evidence that she suffered a constitutional deprivation, that the City had a policy or custom, that the policy reflected deliberate indifference to constitutional rights, and that it caused the injury.

Whiting pursued three theories of City liability: a longstanding practice or custom of excessive force followed by inadequate discipline, failure to train officers about the use of force, and ratification of Byrd’s conduct by an authorized policymaker.

For the practice-or-custom theory, Whiting relied on statistics from the San Jose Independent Police Auditor’s 2018 and 2019 year-end reports. The statistics showed numbers of use-of-force complaints and allegations and the dispositions of those matters. The court held that the statistics were insufficient because Whiting did not show what made the other incidents unlawful or that they involved conduct similar to the conduct alleged here. The court also noted that Whiting had not disclosed the reports during discovery, although it considered the evidence and concluded that it still would not create a genuine dispute of material fact.

The court likewise rejected the failure-to-train theory. It stated that such a claim requires evidence that the City’s training was inadequate, that the inadequacy reflected deliberate indifference to constitutional rights, and that the deficiency caused the injury. Whiting acknowledged that the defendants had produced Byrd’s training records but could not say whether they showed training on the use of force. She again relied on the complaint statistics, which the court found insufficient without evidence that the other incidents involved similar unlawful conduct.

The court also rejected the ratification theory. Whiting argued that City policymakers knew about the number of use-of-force complaints but failed to discipline or reprimand officers. The court held that the statistics did not create a triable issue and that the Police Department’s “Not Sustained” disposition of Whiting’s complaint, together with the alleged failure to discipline Byrd, was not enough. A mere failure to overrule or discipline a subordinate does not by itself establish ratification.

The court therefore granted the City’s motion for summary judgment on Claim 1. The ruling concerned the City’s alleged liability; the defendants had not moved for summary judgment on Whiting’s excessive-force claim against Byrd.

Claim 2: California Penal Code Section 832.7(c)

Whiting alleged that the defendants delayed in responding to her records requests and failed to provide records containing her own statements, which California Penal Code § 832.7(c) requires a department or agency to release to the complaining party.

The City and Byrd argued that there was no longer a live dispute because the City had provided Whiting with all copies of the statements she made about the encounter. Whiting did not dispute that the City had provided the statements. Instead, she argued that a dispute remained because she might seek attorney’s fees under the California Public Records Act.

The court concluded that Whiting’s complaint did not assert a claim under the California Public Records Act. It was based on an alleged disagreement about the defendants’ duties under Penal Code § 832.7(c), separate from any duties under the Public Records Act. During the hearing, Whiting conceded both that § 832.7(c) does not provide a private right of action to enforce it and that her request for injunctive relief was moot.

The court granted defendants’ motion for summary judgment on Claim 2.

Disposition

The order states:

1. The City’s motion for summary judgment is granted as to Claim 1, brought under 42 U.S.C. § 1983. 2. Defendants’ motion for summary judgment is granted as to Claim 2, brought under California Penal Code § 832.7(c).

Judge Virginia K. Demarchi signed the order on July 13, 2022.