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The City of South Pasadena has asked federal Judge Dale S. Fischer to dismiss all seven claims filed last October by BLM protesters Fahren James and Victorian Patterson against the city and five SPPD officers. The state and federal civil rights claims relate to events during protests that took place in downtown South Pasadena following the May 25, 2020 murder of George Floyd by a Minneapolis police officer.
To support their claims, the City said in a Feb. 28 petition, James and Patterson “generally allege that officers spoke out against the anti-police protests, directed [them] to take down certain signs that may have violated municipal codes, failed to properly investigate alleged crimes against [them], and discriminatorily enforced ordinances against [them].”
But “the claims are largely pled in an indiscriminate fashion with no specific facts that identify any alleged unconstitutional custom, policy or practice” by SPPD, the City said. “Considering the numerous conclusions of law, sweeping generalizations, and an absence of particularized facts, it is impossible to deduce exactly how the [defendants] could be responsible for the allegations leveled against them.”
The language of the civil rights statute “compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.” And under federal rules, a plaintiff’s obligation to provide grounds for relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
A hearing on the dismissal motion is set for April 11 before Judge Fischer in her downtown Los Angeles courtroom.
The filing comes after the failure of a mandatory, 10-day “meet and confer” session between the parties. “Despite reviewing each of the causes of action and defendants’ basis for the [dismissal] motion, the parties were unable to reach an agreement as to any amendment” to James and Pattersons’ claims, according to Katrina Valencia, who signed the petition along with Steven Rothans, both of the city’s outside law firm Carpenter, Rothans & Dumont of Los Angeles.
James and Patterson also alleged police “ratified” an assault against them because South Pasadenan Richard Cheney was not arrested after crossing against traffic and driving onto the sidewalk where James was protesting; and prepared inaccurate police reports about that and alleged hate crimes committed against them during the protests by repeat felon Joe Richcreek of Monterey Park. They said officers failed to protect them from “white supremacist vigilantes.”
The City of South Pasadena has never offered a public explanation for why Cheney, a defendant in the case who is not represented by an attorney, was not cited or arrested. Richcreek pled to two counts of misdemeanor battery in connection with the events, but the DA declined to press a hate crime charge against him.
“The alleged failure to investigate Mr. Richcreek’s actions did not place Plaintiffs in an actual or particularized danger nor was it foreseeable that Mr. Richcreek would return and harm Plaintiffs,” the City argues in its petition. “[E]ven assuming that their actions did in some way create a danger, it certainly was not ‘foreseeable.’”
Nor did James offer any facts showing the officers’ failure to act against Cheney were retaliatory, or that police were “not authorized” to decline to arrest him, the petition adds. “Officers are given latitude as to when to effectuate an arrest and particularly in today’s climate, are encouraged to refrain from arrest and to deescalate encounters.”
But last May, after the “independent” investigation the city commissioned of the events, former City Manager Sean Joyce said of the City’s police force that “training is needed to recognize when a crime should be considered a hate crime,” and a new police chief was installed who made such training a priority.
The City did not expressly deny that some officers violated internal policies—indeed the City’s May 2021 investigation sustained 21 of 53 complaints BLM protesters filed against individual officers, including a total of five against two of the defendants in this case—Cpl. Randy Wise and Sgt. Spencer Louie. But it said, “the failure to abide by an internal policy is not equivalent to [a] constitutional violation.” Nor are “’isolated events’…sufficient to establish a ‘custom’ to violate First Amendment Rights.”
James argued Wise sought to “chill” her First Amendment free speech right by advising her to remove a sign from the sidewalk, wearing a mask with a pro-police design, and “denouncing her” by saying, “you guys caused this…this is wrong…the cop hating around here… why bring this to our city?”
Regarding the sign, the petition states Wise was simply informing James of municipal code that prohibits placing signs on sidewalks. As to the image of a flag with a thin blue line on the mask, it “represents solidarity and professional pride for police officers. The fact that the image has been misused by various individuals does not give plaintiff the right to accuse officers of being white supremacists.”
Finally, the petition adds, Wise’s statement “certainly does not qualify as an action to chill” speech. “Cpl. Wise has a right to free speech and can voice his opinions.”
“While the alleged statements by Cpl. Wise or the failure of officers to comply with internal investigation policies and protocol may amount to issues to be addressed by and within the department, the alleged events, even if assumed true, do not amount to constitutional violations.”
