Attorney Objects to His Own Evidence

Steven Sherman, the attorney representing the City of Palo Alto in the Ciampi v. Palo Alto et al case, objects to evidence that he himself submitted to the court.

Case5:09-cv-02655-LHK Document141 Filed04/07/11 Page1 of 8

NO. C09-02655 LHK (PSG) DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES DATE: April 21, 2011 TIME: 1:30 p.m. CTRM: 5

I. INTRODUCTION.

With all due respect to Plaintiff, in response to Defendants’ motion for summary judgment/adjudication of issues, Plaintiff Joseph Ciampi (Plaintiff) submits a dense, conclusion based, rambling and fairly difficult to comprehend Memorandum of Law, his own Declaration of Joseph Ciampi, and a plethora of exhibits. The latter are dealt with separately in Defendants’ objections to Plaintiff’s evidence and need not be further discussed here.

Suffice it to observe that the purported evidence of Plaintiff is neither relevant nor competent nor probative and is for various reasons inadmissible. As this Court is well aware, the sheer volume of documents does not make a case and/or triable issue of fact.
Turning then to Plaintiff’s Memorandum, that document is as notable for what it does not say, as for what it does. As can be seen, Plaintiff barely acknowledges Defendants’ arguments and law, and instead engages in a lengthy rant, basically rehashing his grievances and unsupported beliefs. In a strict sense, therefore, there is little reply to be made.

With regard to what Plaintiff does say, much (perhaps most) of the argument is infected with his unsupported evidence tampering allegations and theories. Those theories have been refuted elsewhere by Defendants and require no further analysis. The video and audio evidence is what it is, and what it is, refutes Plaintiff’s claims.

As originally noted, F.R.Civ.P. Rule 56(c) provides that judgment shall be granted forthwith whenever the evidence presented in support of the motion shows that there is no genuine issue as to any material fact. The video/audio recordings of this entire incident leaves no genuine issues as to any material fact – it speaks for itself and Plaintiff has not and cannot truly dispute what was recorded. Plaintiff’s unsupported speculative analysis of the video (see Objection to Evidence filed concurrently) does not refute Defendants’ evidence in that regard.

While Plaintiff attempts to interpret and argue the meaning of the evidence, the fact remains that the evidence itself is truly undisputed. Even though evidence on summary judgment must be viewed in a light most to the non-moving party, Plaintiff must do more than simply make allegations that Defendants acted improperly in order to survive summary judgment. Jeffers v. Gomez, 267 F.3d 895, 907 (9th Cir. 2001).

Hence, this Court should view the facts “in the light depicted by the videotape” and the audio tape. Scott, 550 U.S. at 381, 127 S. Ct. at 1776. And that refutation is dispositive. “‘When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for ________________________________09-002 -3-summary judgment.’” Gregory v. County of Maui, 523 F.3d 1103, 1108 (9th Cir. 2008) (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct 1769, 1776 (2007)).

Further, assuming arguendo that Plaintiff somehow arguably succeeds in his endeavor to establish that some factual questions are genuinely disputed, summary judgment is nevertheless warranted, as they must be material facts. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986).

With these caveats in mind, Plaintiff’s various arguments may be quickly dispatched. For various reasons each and all of Plaintiff’s arguments are patently meritless.

II.
PLAINTIFF’S ARGUMENTS AGAINST SUMMARY JUDGMENT
ARE EACH AND ALL MERITLESS.

The latter principle is apropos with regard to what Plaintiff misleadingly entitles as a summary of the material facts, (see Pl’s Mem. at 1), but which in reality relates exclusively to the reasons for the officers’ visit to his van and what information they possessed concerning those reasons, (see id. at 1-4). The CAD report definitively establishes that the officers were dispatched because Plaintiff Ciampi made “the reporting party’s wife and young daughters uncomfortable, they [sic] way he watches them”. (Decl. of Steven A.Sherman Ex. 3, at [1].)

But whether or not this fact is genuinely disputed is immaterial. Whether the officers approached Plaintiff for this reason or some other is of no moment. The fact is that they did approach. The real issue is what happened during the contact, not what generated it. Other than Plaintiff’s unsupported beliefs, nothing is established.
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Next Plaintiff Ciampi bitterly denounces the officers’ actions with regard to removing him from the van. (See Pl.’s Mem. at 4-7.) But Plaintiff ignores the fact that he was not in a residence where he could shut the front door on the officers or even on the
sidewalk where he could (arguably) walk away from them. (See id. at 6.)

Rather, Plaintiff admittedly retreated into a vehicle where the legitimate concern for officer safety justified his removal, as Defendants have carefully demonstrated, and is not rebutted by Plaintiff. (See Defs.’ Mem. at 8-10.) Thereafter, Plaintiff Ciampi shifts the focus of his tirade to the specific articulable facts justifying his detention for investigation of whether he was under the influence of a controlled substance. (See Pl.’s Mem. at 7-12.)

However, Plaintiff simply ignores the officers’ need to regain control of him (that is, detain him) for their own safety as well as the rapidity in which this occurred. And while Plaintiff may pick nits with regard to the accuracy or the consistency of the facts relied upon by the officers in that regard, those debate’s points are of no consequence. Mere mistakes of fact do not render a detention illegal if the objective facts known to the officer add up to reasonable suspicion. See United States v. Miguel, 368 F.3d 1150, 1153 (9th Cir. 2004). Nor does Plaintiff refute the existence of pock marks on his person, and in fact admits their existence. In any event, the objective facts here do add up despite whatever errors the Defendants may have made.

Plaintiff concludes his Fourth Amendment analysis with a perfunctory argument that, because his detention was illegal, any force employed to effect it was by definition excessive. (See Pl.’s Mem. at 12.)

Not so! See Cal. Penal Code § 834(a) (West 2008) “If a person has knowledge . . .that he is being arrested by a peace officer, it is the duty of such person to refrain from using force . . . to resist such arrest.”.

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It must be remembered in Martinez v. County of Los Angeles, 47 Cal. App. 4th 334, 343 (1996), the Court stated: . . . Thus, under Graham, we must avoid substituting our personal notions of proper police procedures for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes ‘reasonable’ action may seem quite different to some one facing a possible assailant than to someone analyzing the question at leisure. Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992); Graham v. Connor,
490 U.S. 386 (1989).

The remainder of Plaintiff’s memorandum consists of a few terse arguments larded among assertions of evidence tampering. The terse arguments need but terse replies. First, Plaintiff ascribes a number of unwritten policies to the City of Palo Alto and
Chiefs Johnson and Burns (See Pl.’s Mem. at 14-15.) Assuming that these assertions are aimed at direct municipal liability, they are clearly inadequate. Proof of a single incident (which incidently Plaintiff does not offer) is insufficient; the unconstitutional policy and its origin must be separately established. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823- 24, 105 S. Ct. 2427, 2436 (1085).
Plaintiff finally directly addresses some of the Defendants’ legal arguments by briefly responding to their claim of qualified immunity from liability for any violation of his civil rights that may have occurred. (See Pl.’s Mem. at 18-19.)

But in this regard, Plaintiff confuses federal qualified immunity with immunities created by the California Tort Claims Act and even with that, Plaintiff consequently says nothing of any significance. See Venegas v. County of Los Angeles, 153 Cal. App. 4th
1230, 1243, 63 Cal. Rptr. 3, 741, 751 (2007) (holding that qualified immunity is a federal doctrine that is unrelated to state tort claims and immunities.)

The appropriate inquiry is whether the officer acted reasonably, not whether he had less intrusive alternatives available to him. Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. Case5:09-cv-02655-LHK Document141 Filed04/07/11 Page5 of 8

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The question the Court must decide as a matter of law is whether a reasonable officer could have believed that his conduct was justified. Billington v. Smith (9th Cir. 2002) 292 F3d 1177. Plaintiff then purports to address municipal liability. (See Pl.’s Mem. at 19-21.) But Plaintiff again commits the same error, and once again says nothing of significance and certainly nothing to defeat the Defendants motion.

With regard to the claim of negligence, Plaintiff again merely restates his contentions. (See id. at 21.) No responsive argument, requires no answer. Plaintiff then defends his malicious prosecution claim by asserting that no immunity is available when the prosecution is “fraudulent”. (Pl.’s Mem. at 21-24.) But fraudulent is nothing other than a synonym for “maliciously and without probable cause”, for which state law immunity does apply . Cal. Gov’t Code § 821.6 (West 2008). The statutory immunity therefore shields Defendants from liability come what may.

Plaintiff then defends his claims for false arrest and imprisonment by scoffing at Defendants’ defense of reasonable belief of the lawfulness of their actions. (See Pl.’s Mem. at 24.) But notwithstanding Plaintiff’s belief that there was extensive evidence tampering, the fact of the matter is that no admissible evidence contradicts Defendants’ assertions that they so believed, and that they are therefore free from liability. See Cal. Penal Code § 836.5 (West 2008). Finally, with regard to defamation, Plaintiff again virtually defaults on this claim as well, arguing that the immunities invoked by Defendants are inapplicable because his prosecution was “fraudulent”. (See Pl.’s Mem. at 25.) But even were Plaintiff able to prove this outlandish theory, there is no reason why the relevant and clearly applicable immunities would not apply as originally argued by Defendants.
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III
CONCLUSION.

Case5:09-cv-02655-LHK Document141 Filed04/07/11 Page6 of 8

When all is said and done, Plaintiff offers few arguments of substance or law, and none of any merit. Accordingly, for the reasons originally stated in the moving motion, as well as for those stated herein, Defendants’ motion for summary judgment should be
granted in its entirety.

Dated: 7 April 2011

FERGUSON, PRAET & SHERMAN
A Professional Corporation
By: /s/ Steven A. Sherman
Steven A. Sherman
Attorneys for Defendants

Case5:09-cv-02655-LHK Document141-1 Filed04/07/11 Page1 of 6

NO. C09-02655 LHK (PVT)
DEFENDANTS’ OBJECTIONS TO
EVIDENCE PROFFERED IN
SUPPORT OF PLAINTIFF’S
OPPOSITION TO SUMMARY
JUDGMENT
DATE: April 21, 2011
TIME: 1:30 p.m.
CTRM:

Pursuant to the Court’s Order allowing evidentiary objections separate from their Reply Brief, Defendants’ hereby object on the grounds set forth below to the following evidence submitted by Plaintiff Joseph Ciampi (“Plaintiff”) in Opposition to Defendants’
Motion for Summary Judgment/Summary Adjudication.1 Defendants’ objections are based primarily on five grounds: relevance, improper opinion, hearsay, lack of personal knowledge, and improper authentication and foundation.

A. Relevance. Under the FRE, evidence is relevant only if it has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” FRE, Rule 401.
The following Exhibits are irrelevant and should not be considered by the Court: 321- 4 to 321-15 (newspaper articles); 322-11 (internet demographics); 323-2 to 323-11 (e-mail and internet statements); 376-2 (plaintiff’s vehicle insurance); 503-2 to 503-3 (Santa Clara County DA office letter); 503-4 (Palo Alto City Attorney office letter); 503-5 to 503-6 (newspaper article); 503-15 to 503-17 (correspondence re: discovery in criminal action); 505-2 to 505-6 (newspaper articles re: Albert Hopkins case); 506-2 to 506-8 (newspaper and internet articles); 509-2 to 509-8 (photos re: streets, signs, Ken Alsman’s property, and vehicle sunshades); 516-2 to 516-3 (plaintiff’s summary of argument); 518-2 to 518-4 (press release re: Galbraith case, e-mail, case fact sheet); 523-2 to 523-23 (news articles); 524-2 to 524-11 (costs re: criminal and civil action); 525-2 to 24 (various internet publications re: police misconduct and POST workbook); 526-2 to 526-18 (various news articles re: taser video shown to media); 527-2 to 527-3 (declaration of Mark Petersen-Perez); 529-2 to 529-4 (plaintiff’s commentary on falsifying evidence); 549-2 to 549-6 (transcripts of audio recordings re: plaintiff and other PAPD officers).

The following portions of Plaintiff’s Declaration are not relevant: 64 (previous “encounters” between Plaintiff and Mr. Alsman); 65 (plaintiff’s views or opinions re: the “Albert Hopkins” case); 82 (plaintiff’s retrieval of vehicle from impound); 84 (history of Case5:09-cv-02655-LHK Document141-1 Filed04/07/11 Page2 of 6

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video requests in criminal case); 91 (showing the media Temores’ MAV video); 92 (editorial about living in fear and falsifying evidence); 94 (editorial, commentary and speculation); 95 (editorial, commentary and speculation); 97 (irrelevant and unqualified legal opinion about Defendants violating the law); 98-102 (irrelevant and inadmissible settlement discussions); 103 (quote from James Madison); 104 (quote from John Adams); 106 -109 (editorial, commentary and conclusions); 114 (editorial, commentary and conclusions); 115 (hearsay compensation information from newspaper).

B. Improper Opinion. Unless offered by an expert, testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge. FRE, Rule 701. 702. Here, Plaintiff has no expert witness and has failed to set forth facts establishing that he qualifies as an expert concerning any scientific, technical, or other specialized matters.

The following Exhibits contain improper lay opinion and presume to address issues suited for an expert witness and for which Plaintiff is not qualified to offer an opinion: 506-15 (MAV still frame prints); 507-6 to 507-8 (photos and still frames re: Wagner’s helmet);508-4 to 508-9 (purported still frames and commentary from Taser video); 510-2 (MAV still frames and commentary); 511-2 to 511-6 (MAV history documents and commentary); 514-9 to 514-10 (photos re: plaintiff and drug users); 516-2 to 516-3 (plaintiff’s summary of argument); 517-8 to 517-12 (taser and MAV still frames and commentary); 517-17 to 517-18 (photos of Berger and Temores and commentary); 517-19 (taser still frames and commentary); 520-2 to 520-6 (MAV video summary, still frames and commentary); 521-2 to 521-8 (MAV excerpts and commentary); 522-2 to 522-18 (taser information from internet, taser data, and commentary); 528-6 to 528-7 (plaintiff’s commentary on MAV expert); 529-2 to 529-4 (plaintiff’s commentary on falsifying evidence); 512-1 to 512-20 (plaintiff’s analysis of still frames of MAV video); 513-1 to 513- 10 (plaintiff’s analysis of still frames of MAV video).

Case5:09-cv-02655-LHK Document141-1 Filed04/07/11 Page3 of 6

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The following portions of Plaintiff’s Declaration contain improper lay opinion and presume to address issues suited for an expert witness: 66 (plaintiff’s commentary regarding the “legitimacy” of explanations as to why Temores’ microphone did not work); 68 (plaintiff’s opinion that Berger’s MAV was edited); 72 (plaintiff’s opinion about editing MAV video); 76 (plaintiff’s opinion about taser duration); 77 (what plaintiff “learned” about taser discharge); 83 (plaintiff’s opinion that video was falsified); 91(Temores’ “falsified” MAV video).

C. Hearsay. Evidence may not be considered if it contains or is based on hearsay. FRE, Rule 802. The following Exhibits contain or are based on hearsay and should not be considered by the Court: 321-3 (police report); 321-4 to 321-15 (newspaper articles); 321-19 to 321-22 (City Manager’s Taser Report); 321-23 (newspaper article); 322-10 (Police Report); 322-11 (Internet Demographics); 323-2 to 323-11 (e-mail and internet statements); 376-2 (Plaintiff’s vehicle insurance); 500-7 (Santa Clara County DA office letter); 502-2 to 502-16 (portions of City MAV bid, purchase and policy); 503-2 to 503-3 (Santa Clara County DA office letter); 503-4 (Palo Alto City Attorney office letter); 503-5 to 503-6 (newspaper article); 503-7 to 503-8 (e-mail correspondence); 503-9 (Burns report); 503-10 (toxicology report); 503-11 (portion of Powers’ use of force report); 503-14 (portion of use of force report); 503-15 to 503-17 (correspondence regarding discovery in criminal action); 505-2 to 505-6 (newspaper articles re: Albert Hopkins case); 506-2 to 506-8 (newspaper and internet articles); 511-2 to 511-6 (MAV history documents); 514-2 (police report); 514-11 to 514-12 (lab report); 518-2 to 518-4 (press release re: Galbraith case, e-mail, case fact sheet); 519-2 to 519-3 (Mario Soto analysis); 520-2 to 520-6 (MAV video summary, still frames and commentary); 522-2 to 522-18 (taser information from internet, taser data, and commentary); 523-2 to 523-23 (news articles); 524-2 to 524-11 (costs re: criminal and civil action); 525-2 to 24 (various internet publications re: police misconduct and POST workbook); 526-2 to 526-18 (various news articles re: taser video shown to media); 527-2 to 527-3 (declaration of Mark Petersen-Perez); 548-2 to 548-3 (call for service transcript); 549-Case5:09-cv-02655-LHK Document141-1 Filed04/07/11 Page4 of 6
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2 to 549-6 (transcripts of audio recordings re: plaintiff and other PAPD officers). The following portions of Plaintiff’s Declaration contain or are based on hearsay: 84 (hearsay about video requests in criminal case); 86 (hearsay about what Gregg Stutchman thought of the video and underlying criminal proceedings); 87 (information that officer Rebecca Phillips told plaintiff); 115 (hearsay compensation amounts from newspaper). D. Lack of Personal Knowledge. Admissible evidence must be based on a witness’s personal knowledge rather than mere speculation. FRE, Rule 602; Fed. R. Civ. Proc. 56(e) (“supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”).

In addition, a lay witness may only testify as to matters which he or she is competent to testify. FRE, Rule 701. The following Exhibits are not based on Plaintiff’s personal knowledge but are rather mere speculation, conclusion, or conjecture and should not be considered by the Court: 506-15 (MAV still frame prints); 507-6 to 507-8 (photos and still frames re: Wagner’s helmet);
516-2 to 516-3 (plaintiff’s summary of argument); 517-8 to 517-12 (taser and MAV still frames and commentary); 517-17 to 517-18 (photos of Berger and Temores and commentary); 520-2 to 520-6 (MAV video summary, still frames and commentary); 528-6 to 528-7 (plaintiff’s commentary on MAV expert); 529-2 to 529-4 (plaintiff’s commentary on falsifying evidence); 512-1 to 512-20 (plaintiff’s analysis of still frames of MAV video); 513-1 to 513- 10 (plaintiff’s analysis of still frames of MAV video).

The following portions of Plaintiff’s Declaration are not based on Plaintiff’s personal knowledge, but are rather mere speculation, conclusion, or conjecture 65 (plaintiff’s views or opinions re: “the Albert Hopkins” case); 66 (inadmissible conclusions, speculation and conjecture as to the purpose of other officers); 78 (plaintiff’s conclusions about officer purpose or intended location of the taser application); 79 (plaintiff asserts conclusions about being falsely arrested and assaulted); 80 (plaintiff’s improper commentary about his own intentions); 89 (plaintiff’s speculation about a falsified CAD report); 91 (plaintiff’s Case5:09-cv-02655-LHK Document141-1
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09-002 -5-editorial about being “robbed” of the truth along with the American people). E. Improper Authentication and Foundation. Federal Rule of Evidence 901 states that authentication must be “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

Here, the Plaintiff’s photographs, video images, and print outs from various purported sources fail to satisfy the authentication requirements of Rule 901, or the self-authenticating provisions of Rule 902. The following Exhibits have not been properly authenticated and/or have not established a proper foundation and should not be considered by the Court: 321-4 to 321-15 (newspaper articles); 321-19 to 321-22 (City Manager’s Taser Report); 321-23 (newspaper article); 322-11 (internet demographics); 323-2 to 323-11 (e-mail and internet statements); 506-15 (MAV still frame prints); 507-6 to 507-8 (photos and still frames re: Wagner’s helmet); 508-4 to 508-9 (still frames and commentary from Taser video); 509-2 to 509-8 (photos re: streets, signs, Ken Alsman’s property, and vehicle sunshades); 510-2 (MAV still frames and commentary); 511-2 to 511-6 (MAV history documents and commentary); 514-5 (MAV still frames); 514-9 to 514-10 (photos re: plaintiff and drug users); 517-2 to 517-7 (photos of plaintiff); 517-8 to 517-12 (taser and MAV still frames and commentary); 517-17 to 517-18 (photos and commentary); 517-19 (taser still frames and commentary); 520-2 to 520-6 (MAV video summary, still frames and commentary); 521-2 to 521-8 (MAV excerpts and commentary) 522-2 to 522-18 (taser information from internet, taser data, and commentary); 524-2 to 524-11 (costs re: criminal and civil action); 526-2 to 526-18 (various news articles re: taser video shown to media); 548-2 to 548-3 (call for service transcript); 549-2 to 549-6 (transcripts of audio recordings re: plaintiff and other PAPD officers); 512-17 (still frames of Temores MAV video (1,423 pages)); 512-1 to 512-20 (plaintiff’s analysis of still frames of MAV video); 513-1 to 513- 10 (plaintiff’s analysis of still frames of MAV video); 567-3 (taser gun activation).

DATED: April __, 2011 FERGUSON, PRAET & SHERMAN
A Professional Corporation
____________________________
Steven A. Sherman
Attorneys for Defendants

Public Access to Document at:
https://ecf.cand.uscourts.gov/doc1/03507914730?caseid=215959&de_seq_num=442&magic_num=85328278

5:09-cv-02655-LHK
Document Number 141

Ciampi’s Response to Sherman’s Motion for Summary Judgment:

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION OF ISSUES; MEMORANDUM OF LAW IN SUPPORT THEREOF
FRCivP 12(f)
FRCivP 56(f)(1)

OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF REQUESTING JUDGEMENT INDEPENDENT OF THE MOTION FOR PLAINTIFF

Plaintiff Joseph Ciampi brought the above entitled action against Defendants on the grounds of civil rights violations and state law claims. Due to several false statements of fact and misrepresentations by Defendants outlined herein, Plaintff requests that the Court Strike all or in part Defendants’ Motion for Summary Judgment pursuant to FRCiv.P 12(f). Based upon the facts, Defendants’ Motion for Summary Judgment fails in each and every Cause of Action.

Furthermore, based upon the law, facts and evidence presented herein, Plaintiff requests that the Court deny Defendants’ Motion for Summary Judgment in its entirety or in part and grant Judgment Independent of the Motion for the non-movant, for Plaintiff Ciampi, pursuant to FRCiv.P 56(f)(1).

The motion will be heard on 21 April 2011, at 1:30 p.m. by this Court sitting at its customary location. Plaintiff seeks a final judgment for Plaintiff on each Cause of Action terminating this case in its entirety. Plaintiff’s request is based upon the overwhelming self-evident, prima facie evidence sufficient for any jury to rule for Plaintiff on each and every Cause of Action.

DATED: March 7, 2011 PLAINTIFF
Plaintiff JOSEPH CIAMPI, in pro se

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT
I. INTRODUCTION:

The particulars that give rise to this civil action are well defined at length in Plts.’ 2nd Amended. Complaint submitted as Exh. 1 of Sherman’s Declaration.
II. SUMMARY OF THE MATERIAL FACTS

Plaintiff had been persistently and repeatedly harassed by the Palo Alto Police for sleeping in Plaintiff’s vehicle, Exhibits 549-2 through 6 and 550-1 through 4 and 503-14. Sleeping in one’s vehicle is not a violation of any ordinance or law in Palo Alto. As a result of the Santa Clara County District Attorney’s Office prosecuting Palo Alto Police Officers Craig Lee and Michael Kan, Plaintiff believed that he no longer had to speak with officers who were harassing Plaintiff for lawfully existing in a vehicle on a public street, Exhs. 505-2 through 6.

Def. Temores stated that the neighbor, (the reporting party), called several times regarding Plt. Ciampi, Exh. 506-14, lines 12 & 13 of pg. 80 of the Pre-Trial Transcript. The reporting party called only once. Def. Temores knowingly made a false statement under oath as such Def. Temores’ statements and testimony regarding this Summary Judgment should stricken according to FRE 607 and FRE 608(a). Def. Temores stated that the reporting party called because Plt. Ciampi was looking the reporting party’s wife and daughter from inside the vehicle, Exh. 322-5, lines 19-23 of pg 28 the Pre-Trial Trans. Def. Temores himself determined that it was impossible to see inside the vehicle, Exh. 322-5, lines 9-12 of pg. 10 of the Pre-Trial Trans, as such Def. Temores verified that the reporting party’s call for service was a false complaint.

The reporting party never stated to the Palo Alto Dispatcher that Plt. Ciampi was watching his wife and daughter, Exhibits 548-2 & 3 and Exhibit 551. The reporting party stated to the Dispatcher that his wife was away on vacation and his young, (Adult), daughter was away at school, (college), Exhibit 548-3. The reporting party does not state in the police report that Plt. Ciampi was watching his wife and daughter, Exh. 322-10.

The reporting party actually states that he, his wife and daughter do not know what Plt. Ciampi is doing inside the van, Exh. 322-10. Def. Temores stated that he received the information concerning the call for service over the radio from the radio dispatcher, Exh. 322-3, lines 9-13 of pg. 8 of the Pre-Trial Trans., and Exh. 322-5 lines 13-23 of pg. 28 of the Pre-Trial Trans. The radio dispatcher never states over the radio that Plt. Ciampi was watching anyone, Exhibits 547-2 & 3 and Exhibit 552. Def. Temores knowingly made a false statement under oath, as such Def. Temores’ statements and testimony should be stricken pursuant to FRE 607 and FRE 608(a). Additionally, Def. Temores stated during the Pre-Trial Exam. that he was not dispatched to a call about a man giving someone else strange looks, Exh. 322-6, lines 20-25 of pg. 32 of the Pre-Trial Trans. Def. Temores is contradicted by his own testimony.

Defs. have produced a document, Exh. 3, pg. 48 of Sherman’s Decl, that states that, “SUBJECT, (Plt. Ciampi),…MAKES HIS WIFE AND YOUNG DAUGHTERS UNCOMRFORTABLE THEY WAY HE WATCHES THEM.” Defs. claim that this information was passed on to the officers who responded to the scene. Approximately 40 minutes after the information was ostensibly put on the CAD system, Def. Powers is heard stating at the scene on Def. Burger’s MAV recording, “Called in a suspicious guy sleeping in a van,” lines 21 & 22 of pg. 18 of Exh. 50 of Court Doc. 55. Def. Powers conducted a thorough investigation of the incident and documented in her “Use of Force Report” that the call was about a male who made the reporting party and his children uncomfortable, Exhibit 503-11. Under the Type of Incident/Call, Def. Powers documents that the call was about an “Occupied Suspicious Vehicle/Possible Homesteading,” Exhibit 503-14, Defs’ Exh. 9. If the call were truly about Plt. Ciampi watching a woman and her daughters, then Def. Powers would have documented it in her report.

The fact is the call was not about a person watching a woman and her daughters and Defs’ Exh. 3 is a falsified document produced to defeat Plt. Ciampi’s Defamation Cause of Action and justify Defs’ unlawful detainment of Plt. Ciampi. Defs. have not identified the author, Exh. 3, pg. 48 of Sherman’s Decl., the document is therefore Hearsay Evidence according to FRE 801(c) and must be stricken from evidence according to FRE 802. Should the author of the document come forward and take responsibility for the false statement, the author could be added as a Defendant to the Defamation and Malicious Prosecution Causes of Action of Plt. Ciampi’s Complaint for knowingly submitting a false report to a law enforcement agency with the intent to wrongfully incriminate Plt. Ciampi and defame Plt. Ciampi’s character.

Even if the complaint were true about watching someone, it is not against any law to watch people for if it were, then the reporting party would be guilty of the same offense for watching/leering at Plt. Ciampi, for the reporting party would not know if Plt. Ciampi was looking at his wife and daughter unless the reporting partying were looking at Plt. Ciampi. So the question is, why did Defs. Temores, Wagner and Burger only investigate Plt. Ciampi for watching someone and not the reporting party? Defs. make several remarks to Plt. Ciampi’s physical characteristics as a result of Plt. Ciampi’s economic status. Obviously, Defs. view of Plt. Ciampi is less than a Citizen than the reporting party, hence the Defs. arbitrarily discriminated against Plt. Ciampi by solely focusing on Plt. Ciampi as the object of their investigation instead of focusing on the reporting party for committing the same act as Plt. Ciampi and or for making a false police complaint.

Defs. make no attempt to conceal their bigotry or their attempt to unlawfully accost and violate Plt. Ciampi’s Constitutional right to freely exist on a public street in violation of Palo Alto Muni Code 9.09.010 (b) which states, “it shall be unlawful for any person on any street or in any public place within the city to do any of the following: To maliciously disturb any lawful assemblage or procession of persons,” and City of Palo Alto Code Section 9.73.010 (b) which states in part, “It is the policy of the City of Palo Alto to protect and safeguard the right … of every person to be free from arbitrary discrimination on the basis of their…housing status…” It is clear that Defs. Johnnson, Burns and City of Palo Alto have a policy that not only contradicts 9.73.010(b) but violates the Fourth Amendment Right of Citizens who are lawfully occupying their vehicle verified by Def. Powers’ report in that the call for service was about “homesteading,” Exh. 503-14.

The reporting party, Harold (Ken) Alsman, does not want anyone parking near his residence as the signs on the trees in front of his house indicate, Exhs. 509-2 through 6. The fact is the reporting partying wanted Plt. to move Plt’s vehicle. Plt. was lawfully parked on a public street. The reporting party had no right to force Plt. to move Plt’s. vehicle. The reporting party called the City of Palo Alto and requested that the City of Palo Alto send out some police officers to force Plt. to move Plt’s. vehicle before the reporting party’s wife came home from vacation and adult daughter from college, Exhs. 548-2, 3 & 551. Def. City of Palo Alto obliged the reporting party by sending three officers to accost Plt. Ciampi in violation of City of Palo Alto’s Municipal Code, 9.09.010 (b) and force Plt. Ciampi to move Plt. Ciampi’s vehicle in violation of Plt. Ciampi’s 4th Amend. right to lawfully exist in public, lines 11-12 of 3 of pg. 1 of Def. Burger’s Decl. The City of Palo Alto refuses to prosecute the offending officers which constitutes a violation of Plt. Ciampi’s 14th Amend. right to equal protection of the law.

The reporting party never states that Plt. Ciampi was watching his wife and daughter, because the reporting party’s wife and daughter were not occupying the residence at the time the call for service was made and it appears the wife and daughter had not been at the residence for many days and possibly weeks. Def. Wagner arrived on scene riding a bicycle and would only have been informed about the call from the radio dispatcher.

At no time during the incident did Defs. Wagner, Temores and Burger inform Plt. Ciampi of the neighbor’s complaint that Plt. Ciampi was making the neighbor’s wife and daughter uncomfortable by the way Plt. Ciampi was watching them, because Defs. Wagner and Temores had no information at that time about the call for service. Defs. Wagner and Temores had already unlawfully forced Plt. Ciampi from the vehicle prior to Def. Burger arriving, as such, any information that Def Burger might have had prior to making contact with Plt. Ciampi in regards to forcing Plt. Ciampi out of the vehicle is not relevant. Additionally, Def. Burger does not state anything about the neighbor’s complaint upon arriving on the scene, but consents to and supports Def. Wagner’s unlawful detainment of Plt. Ciampi based upon violating a non-existent ordinance.

III. FOURTH AMENDMENT
A) Defendants claim that they had a lawful right to detain Plaintiff prior to Plaintiff ever exiting the vehicle the first time.

1. Santa Clara County DDA Peter Waite is quoted as stating, “If the guy says, ‘I’m not gonna give you and ID,’ and they have no reason to suspect a crime, then they should have said, ‘OK, thank you for your time and I’ll see you later,’” Exhibit 505-6. Additionally, Waite states, “A citizen was doing nothing wrong but didn’t cooperate…for some reason the officers tried to arrest him and beat him, and that’s a crime,” Exhibit 505-5. DDA Waite continues, “Hopkins’ ‘detention’ by police was illegal and there the use of force—batons and pepper spray—was illegal, as was the arrest for resisting arrest,” Exhibit 505-2. Lastly, Waite states, “sometimes it’s not bad to stand up for your rights,” Exhibit 505-4.

2. Judge Thang Barrett ruled: that Plt. Ciampi was not accused of criminal activity when Defs. Wagner, Temores and Burger were dispatched to make contact with Plt. Ciampi; that Defs. Wagner and Temores’ contact was unlawful and therefore the ruse to force Plt. Ciampi from his vehicle was unlawful, Defs’ Exh. 7, (pgs 124 through 132 of the Pre-Trial Tran., (Plt. Exh. 567-1).

3. Santa Clara County District Attorney Javier Alcala who prosecuted Plt. Ciampi stated that Def. Temores and Wagner never forced Plt. Ciampi to exit the van and that Plt. Ciampi could have stayed in the van, lines 20-25, pg. 111 of the Pre-Trial Transcript Exhibit 506-10, (Defs’ Exh. 6 pg. 164).

4. Def. Johnson, Palo Alto Police Chief on the day of the incident, March 15, 2008, states that citizens who even fit the description of a suspect do not have to engage in contact with law enforcement officers, Exhibit 506-4.

5. On December 4, 2008 Def. Temores testified that Plt. Ciampi was not detained prior to exiting the vehicle, pg. 77 lines 24-28 and pg. 78 lines 1-5 of the Pre-Trial Trans., Exhibit 506-11 and Def. Exh.5, pgs 130 and 131 of Sherman’s Decl.. This contradicts Defs.’ current position pgs. 8 through 10 of Def. Mot. for Sum. Judg. This demonstrates that Defs. are not concerned about truth, justice or Constitutional Law but flip-flopping with the fickle breeze to that which best fits their current legal needs in order to avoid any accountability. Since Def. Temores has already testified that Plt. Ciampi was not detained, Defs. cannot now reverse their position and say that Plt. Ciampi was detained without exposing themselves as liars.

6. Defs. Temores and Wagner wanted to talk to Plt. Ciampi. Plt. Ciampi did not want to talk to Defs. Temores and Wagner. Def. Wagner read Plt. Ciampi his Miranda rights at appx. 1115 hours, Exhibit 506-9. In doing so, Def. Wagner informed Plt. Ciampi that Plt. Ciampi has the right to remain silent. This right to remain silent exists at all times not only after a person has been arrested, as such, Plt. was well within his Constitutional right not to talk to Defs. Wagner and Temores.

7. Def. Ryan informed the public that the, (Palo Alto), police department accepts Judge Thang Barrett’s ruling that the ruse to coerce Plt. Ciampi out of the vehicle was unlawful, Exhibits 321-13 & 14. Page 9 lines 17 through 21 of Defs’ Mot. for Summ. Judg., Defs. claim that they had a right to detain Plt. Ciampi because Plt. Ciampi shut the door to Plt. Ciamp’s vehicle.

There is no crime in shutting the door. In fact Plt. Ciampi exercised due care in protecting himself from an unknown intruder into Plt. Ciampi’s private space who was entering Plt. Ciampi’s zone of privacy without Plt. Ciampi’s consent. Even if Plt. Ciampi knew who the intruder was, Plt. Ciampi was well within his right not to be forced to have contact with someone who he did not want contact with even if it were a law enforcement officer just as a person in residence has the right to shut their front door on an officer who has no lawful justification to continue to make contact. Had Plt. Ciampi been standing on the sidewalk when Defs. Temores and Wanger first approached Plt. Ciampi, Plt. Ciampi would have been free to get in his vehicle and leave according to DDA Javier Alcala, Exh. 506-10.

There is nothing suspicious about having a sunshade in the windshield of a vehicle, Exhs. 509-7 & 8. When Defs. Wagner and Temores made contact with Plt. Ciampi, Defendants were not investigating a crime or even suspicious circumstances. Defendants cannot produce any articulable facts that justify detaining Plt. Ciampi prior to Plt. Ciampi exiting the vehicle the first time. If Defs. had any articulable facts that warranted detaining Plt. Ciampi, Defs. would have stated those facts to Plt. Ciampi. Defs. did not have any articulable facts to detain Plt. Ciampi, therefore Defs. asserted to Plt. Ciampi that he was in violation of a non-existent ordinance and were going to seize Plt. Ciampi’s vehicle and belongings. In doing so, Defs. violated Plt. Ciampi’s Fourth Amendment Right to be free from unreasonable, searches and seizures.

Defendants claim that the call for the tow-truck was a ruse to get Plt. Ciampi out of the vehicle to talk to Plt. Ciampi, if that were true, then Defs. Wagner, Temores and Burger would not have continued to assert to Plt. Ciampi that Plt. Ciampi was violating a non-existent sleeping ordinance after Plt. Ciampi exited the vehicle. In doing so, Defs. continued their unlawful detainment of Plt. Ciampi for violating the non-existent sleeping ordinance while Plt. Ciampi was outside the vehicle prior to falsely detaining Plt. Ciampi for being under the influence of drugs.

Def. Burger arrived on scene and instead of correcting Defs Wagner and Temores, Def. Burger aided in the unlawful search and seizure. Defs. Temores, Burger and Wagner were dispatched to Lincoln Ave. not to investigate suspicious circumstances, but to remove Plt. Ciampi from a public street just as Def. City of Palo Alto had instructed other Palo Alto Officers to do in the past.
Though Plt. Ciampi’s vehicle was registered to another individual, the vehicle has been in possession of Plt. Ciampi since it was first purchased by Plt. Ciampi in 2001. The reporting party documents that Plt. Ciampi had been using the vehicle for a period of two years, Exhibits 322-10, line 10 of pg. 6 of the police report. Exh. 515 verifies that Plt. Ciampi was the insured driver from 2001 through 2011.

Once outside the vehicle as forced to by Defs. Wagner and Temores, Plt. Ciampi demanded to know what law he was violating. Instead of informing Plt. Ciampi that he was not in violation of any law and was free to go, Def. Wagner continued to inform Plt. Ciampi that Plt. Ciampi was violating a non-existent ordinance and therefore continued the unlawful detainment prior to making the false assessment that the Plt. Caimpi was under the influence of drugs.

B) Defs. Wagner, Temores and Burger then falsely claim that Plt. Ciampi was under the influence of drugs in order to justify their unlawful detainment of Plt. Ciampi.
In order to lawfully detain someone to investigate whether a crime has occurred law enforcement officers must be able to articulate facts that demonstrate that a crime has occurred is occurring or may occur to a reasonable person. Defendants provide three facts in order to detain Plt. Ciampi for being under the influence of drugs: abnormal pupils, sores on Plt. Ciampi’s skin and the emotion of anger.

1) Defendants Temores and Buger Claimed Plt. Ciampi’s Pupils Were Abnormal:

Pg. 4 lines 4-5 of (Def. Mot. for Summ. Judg.), Defendant Burger states that Plaintiff Ciampi’s pupils were constricted, which means that the pupils are abnormally small. Pg. 4 lines 10-11 (Def. Mot. for Summ. Judg.), Defendant Temores states that Plaintiff Ciampi’s pupils were dilated, which means that the pupils are abnormally large. Defendant Burger’s assessment is contradicted by Def. Temores’ assessment and vice versa. Defendant Burger testified during Plt. Ciampi’s Pre-Trial Examination that Plt. Ciampi’s. pupils were dilated contradicting his own statement in the police report, Exhibits 514-2 & 3. Both Defs. Burger’s and Temores’ assessments are contradicted by the paramedics who determine that Plt. Ciampi’s pupils are normal 10 minutes after Defs. Burger and Temores determined that Plt Ciampi’s pupils were abnormal Exhibits 514-4 & 5.

On December 4, 2008 at Plt. Ciampi’s Pre-Trial Examination Palo Alto Paramedic Eric Heller testified Plt. Ciampi’s pupils were normal and that that Plt. Ciampi was not under the influence of drugs or alcohol on March 15, 2008, Exhs. 514-6 & 7. The assessment of Plt. Ciampi’s pupils by Defendants is not an articulable fact that Plt. Ciampi was under the influence of illegal drugs.

2) Defendants Claim Sores on a Person’s Skin are the Result of Illegal Drug Use Plt. Ciampi’s skin condition is not the result of drug use, Exhs. 60-2 through 60-27 from Court Doc. 55. Defs. Temores, Wagner and Burger do not have the training, education or the medical knowledge to determine what the sores on Plt. Ciampi’s skin were caused from.

Additionally, Plt. Ciampi’s skin condition does not resemble that of drug users for Plt. Ciampi did not have any sores or scars over the veins of his skin as falsely concluded to by Def. Temores, Wagner and Burger, Exhs. 514-9 & 10. The statement by Def. Temores that Plt. Ciampi’s veins had collapsed, lines 9 & 19 of pg. 4 of Def. Mot for Sum. Judg. is a false statement and therefore Def. Temores’ statements and testimony should be stricken according to FRE 607 and FRE 608(a). The sores on Plt. Ciampi’s skin are not an articulable fact that Plt. Ciampi was under the influence of illegal drugs.

3) Defendants Claim Emotion of Anger a Sign of Illegal Drug Use

If anger is a sign of drug use, then Def. Burger was obviously under the influence of illegal drugs for yelling profanity laced terroristic threats at Plt. Ciampi to exit the vehicle. If Def. Burger can display anger and profanity without being under the influence of drugs so can Plt. Ciampi. Def. Johnson seems to justify human anger by one of her own officers who was lawfully stopped and cited for a traffic violation, Exhs. 506-5 through 506-8. Several United States Citizens are capable displaying anger who are not under the influence of drugs, Exh. 553, demonstrating that anger is not attributed to drug use.

Plt. Ciampi was in his Constitutional right to display anger at Def. Wagner, Temores and Burger for unlawfully harassing Plt. Ciampi with non-existent ordinances as protected by the First Amendment of the U.S. Constitution. If Defs. want to persist in claiming that Plt. Ciampi did not have a right to demonstrate anger and use profanity, then Plt. will reintroduce Plt’s. First Amendment Right violation.

Upon arrival at Plt. Ciampi’s location, Defs. discovered Plt. Ciampi lawfully existing in his vehicle as quiet as a church mouse, disturbing and offending no one, out of sight of everyone. It was only after Defs. harassed and provoked Plt. Ciampi did Plt. Ciampi exhibit any signs of emotional anger. Plt. Ciampi’s anger and use of profanity were not the result of drug use but the natural emotional response of a person being provoked, antagonized, harassed and intimidated by law enforcement officers who had unlawfully detained that person, as such the anger displayed by Plt. Ciampi was not the result of drug use and therefore cannot be used as an articulable fact by the Defendants to detain Plt. Ciampi to investigate a H & S §11550 violation.

This conclusion is supported by the paramedics who arrived on the scene and determined that Plt. Ciampi was not under the influence of drugs or alcohol less than 10 minutes after Defs wrongfully determined that Plt. Ciampi was, Exhibit Exhs. 514-6 & 7. This conclusion is supported by the toxicology report which verified that Plt. Ciampi was not under the influence of drugs or alcohol at the time that Defendants falsely asserted that Plt. Ciampi was, Exhibit 514-8.

Defendants did not and do not have one articulable fact to detain Plt. Ciampi for being under the influence of drugs. Since the Defendants did not have any reason to detain or arrest Plt. Ciampi for being under the influence of drugs, Defs. unlawfully detained, used forced upon and arrested Plt. Ciampi in violation of Plt. Ciampi’s Fourth and Fourteenth Amendment Rights. Defendant Burger testified that he never stated to Plt. Ciampi that Plt. Ciampi was detained, lines 27 & 28 of pg. 143 of Sherman’s Decl., Defs’ Exh. 5. According to DDA Javier Alcala’s position who prosecuted Plt. Ciampi, if Plt. Ciampi was not lawfully detained, then Plt. Ciampi was free to get back inside of Plt. Ciampi’s vehicle, pg. 111 of the Pre-Trial Tran., lines 20-26 of pg. 3 of Exhibit 511.

Judge Thang Barrett correctly applied the constitution and the rulings he cites, People v. Reeves (1964) 61 Cal. 2d 268 and People v. Reyes (2000) 83 Cal. App. 4th 7 for the Fourth Amendment does not elevate any one position or possession of the people above any other. The people are afforded equal protection whether they are in their “person” or in their “house” just as the peoples’ “papers” are afforded the equal protection of their “effects.”

To elevate the status of one position or possession above another is discriminatory at it core and destroys the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Defendants did not have one articulable fact to support their detention of Plt. Ciampi, prior to Plt. Ciampi exiting the vehicle or after, therefore the detention was unreasonable and violates Plt. Ciampi’s 4th Amendment Right. “The Fourth Amendment protects people not places,” Katz v. United States, 389 U.S. 347, 351(1967).

Since Defendants did not have a warrant, Defendants have the burden to prove that Plt. Ciampi’s detention and arrest fall within an exception to the warrant requirement, People v. Hernandez (2003) 110 Cal. App 4 th Supp. 1, 5. This burden must be sustained by a preponderance-of-the evidence standard. In Re Johnny V. (1978) 85 Cal. App. 3d 120, 131. The Defendants are unable to carry that burden.

It is well established that “it is the right of every person to enjoy the use of public streets buildings, parks, and other conveniences without unwarranted interference or harassment by agents of the law.” In Re Tony C. (1978) 21 Cal.3d. 888, 893. When balanced against society’s general need to prevent crime, the cases have consistently required that in order to justify an investigative stop, the police officer must have specific articulable facts causing him to suspect that activity relating to crime has taken place or is occurring or is about to occur and that the person to be detained is involved in that activity. Terrry v. Ohio (1968) 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889; In Re Tony C., supra at 893.

In, Florida v. Royer, 460 U.S. 491 (1983) U.S. 490, 103 S. Ct. 1319, 1324), the Supreme Court stated that, “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some question, [or] by putting questions to him if the person is willing to listen…” The person approached, “need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.” (460 U.S. at 498, 103 SCt. at 1324)

The Court further stated: “He may not be detained even momentarily without reasonable objective grounds for doing so; and his refusal to listen or answer questions does not without more, furnish those grounds. Id Use of coercion to induce waiver of Fourth Amendment right runs counter to well established jurisprudence. Bumper v. North Carolina (1968) 391 U.S. 543, 548-550 (officers gained “consent” to enter a residence by misrepresenting to the occupant that they had a warrant); Parish v. Civil Service Commission of Alameda County (1967) 66 Cal. 2d 260, 272-274 (consent to waive constitutional rights vitiated by threat of official sanction).

In a very similar case to that of Ciampi v. Palo Alto et al, is Rios v. United States, 364 U.S. 253 (1960) Page 364 U. S. 261, in which the court decreed, “Here, justification is primarily sought upon the claim that the search was an incident to a lawful arrest. Yet upon no possible view of the circumstances revealed in the testimony of the Los Angeles officers could it be said that there existed probable cause for an arrest at the time the officers decided to alight from their car and approach the taxi in which the petitioner was riding. Compare Brinegar v. United States, 338 U. S. 160; Carroll v. United States, 267 U. S. 132; Henry v. United States, 361 U. S. 98,” The court continued, “If, therefore, the arrest occurred when the officers took their positions at the doors of the taxicab, then nothing, (Page 364 U. S. 262), that happened thereafter could make that arrest lawful, or justify a search as its incident. United States v. Di Re, 332 U. S. 581; Johnson v. United States, 333 U. S. 10; Miller v. United States, 357 U. S. 301; Henry v. United States, 361 U. S. 98.”
The court emphatically states, “The principles laid down in this opinion affect the very essence of constitutional liberty and security.” Boyd v. United States, 116 U.S. 616 (1886) (630) [Pg. 524] [Pg 532].

The court continues, “…any forcible and compulsory extortion of a of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods is within the condemnation of that judgment.”

When Defs. forced Plt. Ciampi to reveal himself to them providing Defs. with their (unfounded), justification, (pupils-sores-emotion), which on its face is testimony, for detaining Plt. Ciampi, Defs. unlawfully obtained their (unfounded) justification to detain and arrest Plt. Ciampi.Therefore the detainment and arrest committed by the Defs is unlawful, as such Defs. Mot. for Sum. Judg. to dismiss Plt. Ciampi’s complaint and Causes of Action fails therefore the court must deny Defs. Mot. for Sum. Judg. and find in favor for and judgment for Plaintiff.

IV. EXCESSIVE FORCE

Defs. did not and do not have any articulable facts to substantiate any belief that Plaintiff was under the influence of drugs. The detainment of Plt. Ciampi was unlawful whether or not there was justification to detain Plt. Ciampi on the illegal drug suspicion and therefore any use of force was unlawful. With that said, the former is not ten percent of the complete offense and charge of excessive force committed by Defs. Burger Temores and Wagner.

The audio/video footage and taser gun firing data documenting the actual use of force has been removed from the audio/video recordings and the taser guns’ firing data memory devices, the Data Ports. Defs. have acknowledged destroying Def. Temores’ taser probes, taser cartridge and taser wires, Exhs. 504-5, 6 & 9. Why would Defs. risk going to prison for violating Cal. Penal Codes § 32, 118 (a), 118.1, 132, 134, 141(b), and 182(a)(1)(2)(3)(4)(5) in order to falsify the recordings of the incident and destroy evidence if they didn’t do anything wrong? No rational person would risk tampering with evidence and going to prison if they had not done anything wrong. The motive for editing and removing this audio/video footage and firing data was and is to conceal the unlawful and excessive use of force, see Section VI Assault and Battery, which would have landed Defs. Burger, Temores and Wagner in prison had the unadulterated recordings been provided to the District Attorney and Plt. Ciampi. Defs. violated the law to conceal their violation of the law in order not to be held accountable. The Force Employed to Overcome Plaintiff’s resistance was NOT reasonable or lawful; therefore Defendants’ Motion for Summary Judgment fails.

Had Plt. Ciampi done anything illegal or wrong, it would not have been necessary for the Defs. to falsify and destroy the evidence, Exhs. 516 and 527. Defs. have failed in proving their assertion as such the court must deny Defs.’ Mot. for Sum. Judg. and rule for Plt. Ciampi.

V. FOURTEENTH AMENDMENT

Defendants have failed to provide the original taser cam recordings from the original taser cameras, V06-015525, V06-011525 and V06-015020 necessary for Plt. Ciampi to prove Plt. Ciampi’s case in violation of FRCivP 26(a)(1)(A)(ii), See Court Documents 102, 121 and 122 and Defs’ Exhs. 10 through 12. Defendants have prejudiced Plt Ciampi’s ability to defend against Defs.’ Mot. for Sum. Judg., therefore Defs.’ Mot. for Sum. Judg., should be stricken according to FRCiv.P 12(f) and FRE 607 and FRE 608(a). At the same time that Taser International had the actual taser cameras that recorded the March 15, 2008 incident, the Santa Clara County Crime Lab had possession of two cameras containing the edited videos of the March 15, 2008 incident, Exh. 26 of Court Doc. 55, this is prima facie evidence of the tampering and suppression of the original taser videos in violation of Plt. Ciampi’s Fourteenth Amendment Right to Due Process. Defs. Expert, Andrew Hinz, has submitted a supplemental report/declaration, Court Doc. 129-1 in which he states that taser cameras V06-015525 and V06-015020 have been destroyed, 20 of Court Doc 129-1. Defs. have destroyed the taser cameras that recorded the March 15, 2008 incident a violation of Plt. Ciampi’s 14th Amend right to due process, Exh. 528-2 through 7.

Def. City of Palo Alto stated that there is no chain of custody of the MAV videos, Exhibits 500-2 through 500-4. Additionally, Def. City of Palo Alto stated that there is no chain of custody in their August 28, 2008 letter to Plt. Ciampi’s attorney, Exhibit 500-7. According to City of Palo Alto CMR:462:04, (Exhibits 502-10 through 502-12, Def. do in fact maintain a “chain of custody” log for the MAV videos. Def. City of Palo Alto knowingly made false statements and therefore their statements and testimony should be stricken according to FRE 607 and FRE 608(a).

Additionally Def. City of Palo Alto asserted that there is only one MAV hard drive per vehicle, Exhibit 500-6. Defendants would restate this assertion to Plt. Ciampi during the October 19, 2010 inspection. According to City of Palo Alto CMR: 341:05 the MAV system met all of the specification requirements, Exhibit 502-3, which includes two MAV hard drives per vehicle, Ex. 502-4. Def. Johnson, Burns and City of Palo Alto have suppressed the second MAV hard drive in violation of the Fourteenth Amendment and FRCiv.P 12(f) and FRE 607 and FRE 608(a), as such Defs.’ Mot. for Sum. Judge. should be stricken.

According to Palo Alto Police Policies 446 and 610 the tamper proof “MAV hard drives” are to be booked into evidence when an arrest is made Exhibits 501-2 through 5 and 502-13 through 16. Defs. Johnson, Burns and City of Palo Alto violated their own policies by not securing the MAV hard drive into evidence and knowingly destroyed evidence by erasing the recordings from Defs. Temores’ and Burger’s tamper proof MAV hard drives, Exhibit 504-8. In doing so Def. Johnson, Burns and City of Palo Alto have violated Plt. Ciampi’s 14th Amend right to due process. Defs.’ Mot. for Sum. Judge. should be stricken according to FRCiv.P 12(f).
Defs. City of Palo Alto, Johnson and Burns have created an unwritten policy or custom allowing for the destruction evidence, taser probes, taser wires, taser cartridge, blast doors and AFIDS, Exhs. 504-5, 6 & 9, a violation of the 14th Amend.

Defs. City of Palo Alto, Johnson and Burns have created and unwritten policy or custom allowing for the destruction of evidence, Def. Wagner’s bicycle helmet and Def. Burger’s sun-glasses, Exh. 503-13 a violation of the due process clause of the 14th Amend.
Defs. Johnson, Burns and City of Palo Alto have knowingly endorsed an unwritten policy or custom directing its officers to make unlawful searches seizures of Plt. Ciampi, Exhibits, 549-2 through 6 and 550-1 through 4. These unlawful contacts are supported by the policy to make unlawful searches and seizures of citizens who are of low economic status that necessitates living out of their vehicle, Exh. 503-14.

Defs. City of Palo Alto, Johnson and Burns knowingly withheld Defs. Temores’ and Burger’s taser videos from Plt. Ciampi during Plt. Ciampi’s criminal prosecution providing the time necessary for Def. City of Palo Alto’s employees to edit and falsify the videos, Exhs. 503-7 & 503-8, which is a violation of Cal. PC §32 by concealing the crimes of their employees and fellow officers. (Viol. of 14th Amend Equal Protection Clause and Due Process).

Defs. Johnson, Burns and City of Palo Alto suppressed the taser gun activation reports from Plt. during Plt. Ciampi’s criminal case Exhibits 503-2 through 503-6. (Viol. of 14th Amend). Defs. Johnson, Burns and City of Palo Alto have suppressed and or destroyed the actual taser cameras and taser videos for no taser camera can leave the Police Department without the police chief’s approval, Court Docs. 121, 122 and Exh. 503-9, (Viol. of 14th Amend).

Defs. Johnson, Burns, and City of Palo Alto suppressed the toxicology report, Sgt. Honiker’s audio recording and Sgt. Powers Use of Force report during Plt. Ciampi’s criminal case in Exhs. 503-10, 504-7 and 503-11. (Viol. of 14th Amend). Defs. Johnson, Burns and City of Palo Alto have an unwritten policy which allows for the destruction of evidence, Def. Wagner’s bicycle helmet, Def. Burger’s broken sunglasses, Def. Temores’ broken taser cartridge, taser probes, taser wires, blast doors, AFIDS and, Exhibits 503-12 &1 3, 504-5, 6 & 9. (Viol. of 14th Amend).

Defs. Burns and City of Palo Alto enabled personnel to tamper with the serial number of Taser Camera V07-065373, Exhibit 161 of Court Doc. 109, and have not held anyone accountable for doing so. (Viol. of 14th Amend). Defs. Johnson, Burns and City of Palo Alto enabled personnel through their unwritten policies to tamper with the activation data on Defs. Temores’ and Burger’s taser guns’ Data Ports, Exhibits 174 through 179 of Court Doc. 109, and have not held anyone accountable for doing so. (Viol. of 14th Amend).
Def. Burns has submitted a falsified taser gun firing data report, Exh. 175 and 178 of Court. Doc. 109 and Defs.’ Exhs. 10 and 11.
Def. Burger knowingly made a false statement under oath on December 4, 2008, Exhs. 45-7 through 11, as such Def. Burger’s statements and testimony should be stricken according to FRE 607 and FRE 608(a). (Viol. of 14th Amend).

Def. Wagner knowingly and with the aid of fellow Palo Alto Police Officer, Alex Afanasiev, fabricated evidence and knowingly made false statements regarding the fabricated evidence, Exhs. 507-2 through 8. Defendant Wagner knowingly made false statements of facts in her responses to Admissions, Exhs. 508-2 through 9. As such, Defendants’ statements and testimony regarding Defendants’ Motion for Summary Judgment should be stricken according to FRCiv.P 12(f) and FRE 607 and FRE 608(a). (Viol. of 14th Amend).
Defendants removed video footage from Def. Temores’ MAV video, Exhs. 512 -11 through 13 and refuse to provide that missing video footage to Plt. Ciampi in violation of FRCiv.P 26(a)(1)(A)(ii). Defs. have prejudiced Plt Ciampi’s ability to defend against Defs.’ Mot. for Sum. Judg. and therefore Defs.’ Mot. for Sum. Judg., should be stricken according to FRCivP 12(f) and FRE 607 and FRE 608(a).
Evidence of Tampering

Exh. 529-2 through 4 verifies beyond a reasonable doubt that Defs. have tampered with and falsified numerous items of evidence in order to conceal their unlawful actions and to fraudulently, falsely and maliciously prosecute and incriminate Plt. Ciampi.
Defendants have edited and removed content from Defs. Temores’ and Burger’s MAV and Taser-Cam recordings, Therefore Defs. denied Plt. Ciampi the original, unadulterated and exculpatory MAV and Taser recordings in violation of Plt. Ciampi’s 14th Amend. Right to Due Process.

Defendants have edited and fabricated the activation/firing data from Defs. Temores’ and Burger’s taser guns. Defs. have denied Plt. Ciampi the original, unadulterated and exculpatory activation/firing data in violation Plt. Ciampi’s Fourteenth Amend Right to Due Process. Cal PC 1054. (a) states that, “To promote the ascertainment of truth in trials by requiring timely pretrial discovery.” Cal PC 1054.1., “The prosecuting attorney shall disclose to the defendant(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.” Cal PC 1054.5. (a) “ ….This chapter shall be the only means by which the defendant may compel the disclosure or production of information from……. law enforcement agencies which investigated or prepared the case against the defendant.” Cal. GC 34090. (d) does not authorize the destruction of records less than two years old. Cal. GC 34090.6. (a) “…In the event that the recordings are evidence in any claim filed or any pending litigation, they shall be preserved until pending litigation is resolved.” Brady v. Maryland, 373 U.S. 83 (1963) Pp 8 866-88, “Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Pp.8 866-88.

Plt. requested Defs. Temores’ and Burger’s MAV recordings, Taser recordings and taser gun activation data, Exhs. 503-2 through 8 & 503-15 through 18. Defs. did not provide Plt. Ciampi with the original, unadulterated exculpatory recordings and taser gun activation data, therefore Defs. violated Plt. Ciampi’s Fourteenth Amendment Right to Due Process.

VI. ASSAULTAND BATTERY

Plt. refers to Defs. Exh. 12, Burger’s taser camera recording, that partially recorded the terroristic threats, assault and battery of Defs, Burger, Temores and Wagner. The motive for editing and falsifying the audio/video recordings and the Taser gun firing data of the incident was and is to conceal the unlawful assault and battery which in large part has been removed from the recordings. Plt. provides a snippet from Burger’s MAV recording, Defs.’ Exh. 15 of Plt. Ciampi’s verbalization of the pain from being shocked, Exh. 556. It would appear that the dialog of Plt. Ciampi yelling out in pain and for help is utterly inconsistent with the video footage on Def. Temores’ MAV video. Plt. Ciampi asserts that he yelled at Def. Buger to stop shocking him at least 5 times and possibly as many as 8 times during the altercation, none of which is captured on any of the recordings. Since Defs. Burger, Temores and Wagner unlawfully assaulted and battered Plt. Ciampi, Plt. Ciampi was in his right to use self defense according to ARTICLE 1 SECTION 1 OF the California Constitution and Cal. PC § 692, PC § 693 and PC § 694. Additionally Plt. Ciampi provides Exhs. 556-2, 521-6 & 8, and 512-18 through 20 indicating how Plt. Ciampi was first shot with a taser gun by Def. Burger which is not captured in any of the MAV or Taser recordings. The necessity of the Defendants to remove the use of force by Defs. Burger, Temores and Wagner, especially the initial firing of the Taser gun at Plt. Ciampi’s face while Plt. Ciampi had his hands in the air validates that the use of force was not reasonable and was not lawful, see 71. through 60 of Decl. of Joseph Ciampi… The necessity of the Defendants to remove the video footage of the actual use of force verifies that the use of force was outrageous for the mere fact of editing the videos to cover it up is outrageous, Exh. 517-2 through 16. Mary M. v. City of Los Angeles, 54 Cal.3d 202, 215, 285 Cal.Rptr. 99, 814 P.2d 1341 (1991) (“[A] governmental entity can be held vicariously liable when a police officer acting in the course and scope of employment uses excessive force or engages in assaultive conduct.”); Scruggs v. Haynes, 252 Cal.App.2d 256, 264, 60 Cal.Rptr. 355 (1967) (“California cases have consistently held that a peace officer making an arrest is liable to the person arrested for using unreasonable force.”). Public employees are similarly not entitled to immunity in suits for false arrest or false imprisonment. See Cal. GC § 820.4. Accordingly, the officers are not immune from suit under California law, and neither is Def. City of Palo Alto.

The missing audio video footage of the assault aside, the use of force by the officers was unreasonable and unlawful from the start as calling in a tow-truck to seize Plt Ciampi’s vehicle was a use of force that was unreasonable based upon the circumstances. Defs. argue that it was a ruse and therefore not an actual use of force. According to Cal. PC § 422 the law does not distinguish between ruses and actual threats for the recipient of the threat whether actual or not does not know that the threat was a ruse and the threat made by Defs. to call a tow-truck was taken on its face value as a valid threat by Plt. Ciampi. There is absolutely no question that Def. Burger then violated Cal. PC § 422 in threatening to, “fucking tase,” Plt. Ciampi and as such unlawfully assaulted Plt. Ciampi using excessive force in extracting Plt. Ciampi from the vehicle for any force was unreasonable due to the fact that Plt. Ciampi was not lawfully detained by Defs. Burger, Temores and Wagner.

VII. QUALIFIED IMMUNITY

If Defs. believed that their actions were lawful, then they would not have unlawfully detained Plt. by stating to Plt. that Plt. was violating a non-existent sleeping ordinance and would have spoken directly and truthfully to Plt. about the false complaint made about Plt., as such Defs. knew when they were lying to Plt. that their actions were unlawful. Defs. knew their actions were unlawful by the unsubstantiated facts that they generated to justify detaining Plt. for being under the influence of drugs.

The prima facie fact of Defs. resorting to falsifying and destroying the evidence clearly and convincingly demonstrates that Defs. knew and know that they did not and do not have any reasonable belief that their actions were lawful. Defs. did not exercise due care in the execution of and enforcement of the law and nothing exonerates a public employee for false arrest or false imprisonment pursuant to Cal. GC § 820.4. Cal. GC § 820(a) “Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person. (b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.” Cal. GC § 820.2. “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
Once the Defs. conspired together to falsify and fabricate the evidence in order to conceal their unlawful acts committed upon Plt. Ciampi while simultaneously falsely incriminating Plt. Ciampi of a crime, Defs.’ acts ceased being of the origin and nature of discretion and are the result of a malicious design and intent to fraudulently, maliciously and oppressively convict Plt. of a crime. As such Individual Defs. are NOT immune from liability and are therefore liable for whatever violations of Plaintiff’s civil rights and state claims that have occurred.
VIII. MUNICIPALITY LIABILITY
Cal. GC § 815.2 (a) “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”
Cal. GC § 815.2 cited by the court in Scott v. County of Los Angeles, 27 Cal.App.4th 125, 139-40, 32 Cal.Rptr.2d 643 (1994) (“Under Government Code section 815.2, subdivision (a), the County is liable for acts and omissions of its employees under the doctrine of respondeat superior to the same extent as a private employer. Under subdivision (b), the County is immune from liability if, and only if, [the employee] is immune.”) (emphasis omitted); White v. County of Orange, 166 Cal.App.3d 566, 570, 212 Cal. Rptr. 493 (1985) (“in governmental tort cases, the rule is liability, immunity is the exception”) (citation and internal quotation marks omitted). “..the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.” Cal. GC § 945, “A public entity may sue and be sued.” Cal. GC § 945.2, “Except as otherwise provided by law, the rules of practice in civil actions apply to actions brought against public entities.” Defendant City of Palo Alto and its officers have made false statements in an effort to suppress evidence and have actively concealed the suppression, falsification and destruction of evidence by its employees and thereby has authorized the malicious and fraudulent injurious acts committed upon Plt. Ciampi with the willful and conscious disregard for Plt Ciampi’s rights and safety; and has through the intentional misrepresentations, deceit and concealment of material facts deprived Plt. Ciampi of his property and legal rights. As a result of these aforementioned acts, Defendants are liable for exemplary/punitive damages pursuant to Cal. Civ. Code § 3294. (a)(b)(c)(1)(2)(3). The courts have already established that the City of Palo Alto is liable for it police officers violating the civil rights of citizens and using excessive force, Exh. 525-2 through 4. The courts have established that municipalities can be held liable when their officers use excessive force while using taser guns, Exh. 525-5. Def. City of Palo Alto has also acknowledged being liable for the conduct of its officers when they unlawfully arrest and use excessive force upon citizens, Exh. 525-6 & 7. Def. City of Palo Alto knows that its officers have falsified evidence, destroyed evidence and submitted falsified evidence during the criminal case and this civil case. Def. City of Palo knows that Def. Police Chief Dennis Burns has submitted falsified taser gun activation reports and overseen the destruction of evidence. Def. City of Palo Alto has done nothing to hold its employees accountable, Exhs. 526-8 through 18, Cal. Civ Code § 52.1.(a)(b). Based upon the foregoing and following facts, Defs. City of Palo Alto, Johnson and Burns are liable, Monell v. N.Y. Dep’t of Social Serv., 436 U.S. 658 (1978).
IX. NEGLIGENCE
Just as Def. City of Palo Alto took responsibility for the liability that resulted due to the injury sustained to a woman from the negligence of city employees improperly maintaining a public roadway, Exhs. 525-8 through 10, Def. City of Palo Alto is liable for not holding its employees accountable for the Constitutional violations and harm caused to Plt. Ciampi. Def. Burger was negligent in not intervening when Defs. Wagner and Temores unlawfully detained Plt. Ciampi; Defs. Wagner and Temores were negligent in not intervening when Def. Burger used excessive force upon Plt Ciampi; Def. Powers was negligent in not intervening and holding Defs. Temores, Wagner and Burger accountable for the harm they caused to Plt. Ciampi; Defs. Johnson and Burns were negligent in not holding Defs. Powers, Temores, Wagner, and Burger accountable for the harm they caused to Plt. Ciampi as such all are liable for the harm caused to Plt. Ciampi as a result of their omission of intervening and holding their fellow officers accountable for the harm caused to Plt. Ciampi, Exhs. 525-11 through 24.
X. MALICIOUS PROSECUTION
Cal. GC §821.6. states “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This statute does not provide immunity when the prosecution was generated fraudulently, as such Defs. are not immune from being liable for the malicious prosecution. The prosecution of plaintiff was obtained through fraudulent means, the use of falsified evidence, and without the falsified evidence no prosecution would have occurred. Since no prosecution would have occurred without the falsified evidence, no prosecution should have occurred. Since no prosecution should have occurred and the prosecution was obtained through fraud and deceit, Defs. do not retain any immunity and are therefore liable for damages of Malicious Prosecution.
The mere fact that Defs. needed to falsify the videos in order to maintain the charges against Plt. demonstrates that Defs. did not have probable cause to maintain a prosecution against Plt. Since Defs. did not have probable cause to initiate or maintain the charges against Plt., Defs. no longer have qualified immunity. Def. Johnson verifies that no one Defendant could have tampered with and falsified all of the evidence without the other Defendants being made aware of it, Exh. 518-2 & 3. As such each and every Def. is complicit in the acts and or omissions committed by each and every Defendant with the motive to conceal the unlawful acts of Defs. Temores, Burger and Wagner while simultaneously falsely incriminating Plt. Ciampi.
Def. Wagner and Agent Afanasiev fabricated the broken bicycle helmet, Ex. 507. The fabricated broken bicycle helmet was investigated by Def. Powers and and Lt. Mike Densen, pg. 1 and 4 of pg. 3 of Defs.’ Exh. 9, pgs. 218 through 221 of Sherman’s Decl. The prima facie evidence of the false statements; tampering, suppression and destruction of evidence; the deliberate use of falsified evidence by Defs. to charge, prosecute and incriminate Plt. Ciampi of a crime demonstrates beyond a reasonable doubt that Defs. maliciously prosecuted Plt. Ciampi.
The actions of the Defendants are not only outrageous, but antithetical to everything that the American Justice System is supposed to stand for. The malicious intent of the Defs. is validated in knowingly submitting Def. Temores’ falsified MAV recording to the Santa Clara County District Attorney with the intent of incriminating Plt. Ciampi with that falsified video which had the direct affect of increasing the charge to a felony from of a misdemeanor, Exh. 518-4. The malicious intent of the Defs. is validated in knowingly submitting Def. Temores’ falsified MAV recording to the this Court in order to mislead this Court as to the true accounts of the events of March 15, 2008 and thus prejudice Plt. Ciampi as they did during Plt. Ciampi’s criminal case. Defs. knowingly sent two taser cameras that did not record the incident to the Santa Clara County Crime Lab containing edited taser videos in order to conceal their unlawful assault and falsely incriminate Plt. of a crime, which epitomizes malicious prosecution. To falsify evidence, video footage, to incriminate someone of a crime is not only outrageous it is morally repugnant.
Defs’ Exh. 17 is a Declaration from Kustom Signals’ expert Warren Page. In 6.0 Mr. Page documents the evidence he has analyzed. Mr. Page specifies analyzing Plt’s Exhs. 169 and 173 from Court Doc. 109, (items “f.” and “g.”), yet Mr. Page conspicuously leaves out Plts.’ Exhs. 164, 165 and 170 which demonstrates the illegitimacy of Mr. Page as an expert and the contrived Declaration he has submitted to the Court and therefore Mr. Page’s statements and testimony should be stricken according to FRE 607 and FRE 608(a). The deliberate act of excluding these Exhs. from Mr. Page’s Declaration verifies the malicious intent of the Defs. to wrongfully incriminate Plt. Ciampi through the fraudulent means of using falsified evidence.
COSTS:
Defs. used the position and power of the Santa Clara County District Attorney’s Office to complete their intent of maliciously prosecuting and falsely incriminating Plt. of a crime. Had the Santa Clara County DA been provided the original, unadulterated videos, Plt. would have been exonerated of all charges, and Defs. Temores, Wagner and Burger would be facing criminal charges for false arrest/imprisonment and assault and battery.
Plaintiff was prosecuted for nine months. Plaintiff totaled four days in court being prosecuted by the Santa Clara County District Attorney who was provided falsified evidence and statements by Defs. to justify the prosecution. Defs. Temores and Burger testified against Plt. Ciampi during the Pre-Trial Examination, Defs. Exhs. 5 through 7 of Sherman’s Decl. Plt. was required to go to court half a dozen times from March 15, 2008 through November 2008 regarding Defs. malicious prosecution of Plt. Plt. provides exhs. 524-2 through 7 which were the direct financial costs incurred by Plt. Ciampi as a result of Defs. maliciously prosecuting Plt. Ciampi. These costs total: $25,740.00. Plt. also incurred another $1,153.75 in debts owed as a result of the assault and battery committed by Defs. Burger, Temores and Wagner, Exh. 524-8. This debt could be higher or non-existent due to unknown collection agency activities.
The acts of tampering with and destroying the evidence perpetrated by Defs. in order to maliciously prosecute Plt. Ciampi are not only outrageous but removes the foundation of “Truth” from the Justice System that is dependent upon law enforcement officers providing true and accurate reports and evidence so that the courts can render impartial, sound and fair decisions. By providing the District Attorney with falsified videos to be used against Plt. Ciampi in a court of law, Defs. were perverting justice to a degree that would turn the court into tool of oppression and persecution unawares which is exactly what Defs. have done by providing this court Def. Temores’ MAV video. In addition to the costs incurred during the criminal prosecution, Plt. Ciampi has incurred $8,320.91 as a direct result of seeking compensation for the damages caused by Defs. in Plt. Ciampi’s complaint before this court with a potential of another $45,000.00, Exhs. 524-9 through 11.
XI. FALSE ARREST AND IMPRISONMENT
Cal. GC § 820.4. “A public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment.”
Plt. was unlawfully detained the moment Defs. Wagner and Temores stated that Plt. was violating a non-existent ordinance. Plt. was not free to leave or go out about his business.
Since Defendants had no articulable facts to detain Plt. Ciampi, the arrest by Defs. was unlawful and therefore Defs. had no reasonable cause to believe that the arrest was lawful. In fact the prima facie evidence of falsifying and destroying the evidence demonstrates unequivocally that Defs. knew and know the arrest of Plt. Ciampi was not lawful. As such, Defs.’ position that no civil liability based upon 836.5 (b) fails. Plt. provides Exh. 521-5 & 6 verifying that Def. Burger had placed Plt. Ciampi under false arrest for a “5150” violation, not a “550” violation. After the altercation, Plt. Ciampi was falsely arrested, hand-cuffed and taken into custody by Defs. Plt. Ciampi was then taken to the Santa Clara County jail where Plt. Ciampi was cuffed to a chair for appx. four hours and then taken to a general holding cell. Plt. Ciampi then bailed out of jail at appx. 10:00 pm after spending 12 hours in custody.
XII. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Plaintiff provides Exhs. 550, 554-1 through 3, Audio’s of police contacts, 63 through 106 of Plt. Ciampi’s Decl. in Supp. of Plt’s Opp. To Defs’ Mot. for Summ. Judg. Def. City of Palo Alto’s City Attorney showed Def. Temores’ falsified MAV video to the media, an outrageous and deliberate act motivated by a malicious intent to cause Plt. Ciampi emotional distress to which said act did in fact cause Plt. Ciampi emotional distress.

XIII. DEFAMATION
According Defs, the Citizens of the United States have granted the government and its agents a license to defame Citizens at will so long as the government and its agents couch the defamatory statements in a judicial proceeding. Should this court grants Defs’ motion to dismiss this particular cause of action, this court will be stating to the American People that the government can legally defame citizens. Government agents can arrest a citizen for speeding, and then government’s agents could with impunity state in their reports and testimony that the speeder is a child molester when in fact there is no factual basis to support their statement.
The prosecution of Plt. Ciampi was fraudulently obtained, therefore any immunity granted to Defs. based upon Defs. argument is null and void for there never should have been a prosecution or judicial proceedings by which Defs. could hide behind the immunity granted in such cases. Defs. have provided the court Plt. Ciampi’s Exhs. 332 through 335 as Defs.’ Exh 8. Plt. hereby provides the court Exhs. 321-2 through 23, 322-2 through 11, 323-2 through 11 and 523-2 through 11 which verifies that the so named Defs. have defamed Plt. Ciampi pursuant to Cal. Civ. Codes §45 & 46.1.
XIV. CONCLUSION:
For the foregoing reasons, Defendants’ Motion for Summary Judgment should be stricken pursuant to FRCiv.P 12(f). For the foregoing reasons Defendants. failed to support their Motion with facts or the law and therefore should be denied.
Should the facts of Plaintiff’s complaint be presented to a jury, a jury would find for Plaintiff on each cause of action. Therefore, based upon the foregoing reasons and facts and law this court should decide this case for Plaintiff pursuant to FRCiv.P 56(f)(1). In addition to all other damages, Plaintiff requests punitive damages in the amount equal to the last three years salary of each Defendant combined.

Public Access to Document at:

https://ecf.cand.uscourts.gov/doc1/03517799473?caseid=215959&de_seq_num=409&magic_num=93760664

5:09-cv-02655-LHK
Document Number 132