Opinion
Case No. SACV 12-0328 JGB (ANx)
05-21-2013
ALEXANDER PEREZ ALVARADO; ELMER PEREZ ALVARADO, Plaintiffs, v. THE CITY OF SANTA ANA; SANTA ANA POLICE DEPARTMENT; CORPORAL M. MORENO; OFFICER T. LE; OFFICER B. SONTAG; OFFICER D. PREWETT, Defendants.
ORDER DENYING DEFENDANTS'
MOTION FOR PARTIAL SUMMARY
JUDGMENT
Before the Court is a Motion for Partial Summary Judgment filed by Defendants. ("Motion," Doc. No. 44.) After considering all papers submitted in support of and in opposition to the Motion and the arguments presented at the May 20, 2013 hearing, the Court DENIES Defendants' Motion for Partial Summary Judgment.
I. BACKGROUND
A. Procedural Background
Plaintiffs Alexander Perez Alvarado ("APA") and Elmer Perez Alvarado ("EPA") are the surviving minor sons of Decedent Elmer Alexander Perez ("Perez") represented by their guardian ad litem Diana Alvarado . Plaintiffs filed their Complaint against Defendants The City of Santa Ana ("Santa Ana"), Santa Ana Police Department ("SAPD"), Corporal M. Moreno ("Moreno"), Officer T. Lee ("Lee") , Officer B. Sontag ("Sontag"), and Officer D. Prewett ("Prewett") (collectively, "Defendants") on March 6, 2012. ("Compl.," Doc. No. 3.) Defendants answered on May 21, 2012. (Doc. No. 16.)
The parties refer to Ms. Alvarado as "Diana" or "Diane." For consistency, the Court will identify Ms. Alvarado as "Diana."
Incorrectly spelled as "Le" in certain documents.
Defendants filed a Motion for Partial Summary Judgment on April 1, 2013. ("Motion," Doc. No. 44.) In support of their Motion, they included: Statement of Uncontroverted Facts and Conclusions of Law ("SUF"); a Declaration of Steven Wysocky ("Wysocky Decl.") attaching exhibits A through E and G through N, and a Declaration of Corporal Anthony Bertagna ("Bertagna Decl.") attaching exhibit F-1, a SAPD 9-1-1 dispatch log from December 16, 2010 from 5:07am to 6:26am ("Dispatch Log"), and exhibit F-2, a digital recording of all radio broadcasts for that time period ("SAPD Radio Broadcast").
Defendants also lodged a copy of a disc with the SAPD Radio Broadcast. (Doc. No. 48.)
Plaintiffs opposed the Motion on April 15, 2013. ("Opp'n," Doc. No. 50.) Plaintiffs attached a Statement of Genuine Disputes of Material Fact ("SGI") and 24 exhibits.
Plaintiffs' Opposition was filed seven days late without explanation or excuse. On April 23, 2013, the Court issued an Order to Show Cause why Plaintiffs' late filing should not be rejected. (Doc. No. 54.) Plaintiffs filed a response on April 25, 2013 (Doc. No. 55), and the Court discharged its Order (Doc. No. 56).
On April 22, 2013, Defendants replied ("Reply," Doc. No. 53) and also filed objections to the evidence offered in Plaintiffs' opposition ("Obj.," Doc. No. 52.).
B. The Complaint
Plaintiffs APA and EPA bring their claims through their mother, Diana Alvarado ("Alvarado"), as surviving sons of Decedent Perez, their father. (Compl. ¶¶ 1-2.) The Complaint alleges that on December 16, 2010 APA was residing with his parents, Alvarado and Perez, at their home in Santa Ana. (Compl. ¶ 11.) At the time, Alvarado was pregnant with her second son with Perez who was born three months after the incident. (Id.) The Complaint contends that Santa Ana Police Officers shot an unarmed Perez multiple times resulting in his death. (Compl. ¶ 12.)
Based on these facts, the Complaint stated four claims for relief, each of which included several subparts. (Compl. at 8-24.) Since that time, Plaintiffs have stipulated to dismiss several causes of action, namely their claims for conspiracy in violation of 42 U.S.C. §§ 1985 and 1986, the entirety of the second claim for a Monell violation under 42 U.S.C § 1983, and their state law claims for negligent hiring, training, and retention. (Doc. No. 43.) In response to Defendants' Motion, Plaintiffs also conceded that they have no evidence to support the entirety of their fourth claim under California Civil Code §§ 51, 51.7, 52 and 52.1. (Opp'n at 12.) Plaintiffs agreed to withdraw their fourth claim for relief. (Id.) The Court therefore DISMISSES Plaintiffs' fourth claim for relief pursuant to Cal. Civ. Code §§ 51, 51.7, 52, and 52.1.
Two claims for relief remain. Plaintiffs' first claim is for violation of 42 U.S.C. § 1983 for Fourth and Fourteenth Amendment violations against the individual officer Defendants. (Compl. ¶¶ 25-43.) The third claim for relief includes state law wrongful death and survival claims under Cal. Code Civ. P. §§ 377.60 and 377.30 based on assault and battery and negligence. (Compl. ¶¶ 50-61.)
C. Motion for Partial Summary Judgment
Defendants seek summary judgment on two portions of Plaintiffs' remaining claims. Defendants move for judgment as a matter of law on (1) Plaintiffs' 42 U.S.C. § 1983 claim under the Fourteenth Amendment and (2) the preshooting negligence aspect of Plaintiffs' negligence claim under California law. (Motion at 5.)
Defendants also sought summary judgment on Plaintiffs' fourth claim for relief under several sections of the California Civil Code. As discussed above, Plaintiffs voluntarily withdrew this claim. The Court therefore does not address Defendants' arguments related to Plaintiffs' fourth claim.
II. LEGAL STANDARD
Unless otherwise noted, all references to "Rule" refer to the Federal Rules of Civil Procedure.
A court shall grant a motion for summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.
Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998) (citing Anderson, 477 U.S. at 256-57); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Because summary judgment is a "drastic device" that cuts off a party's right to present its case to a jury, the moving party bears a "heavy burden" of demonstrating the absence of any genuine issue of material fact. See Avalos v. Baca, No. 05-CV-07602-DDP, 2006 WL 2294878 (C.D. Cal. Aug. 7, 2006) (quoting Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, Inc., 182 F.3d 157, 160 (2d Cir. 1999)).
Where the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325. Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case. Id.; Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). "[A] summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(c)).
The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144. A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 380 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).
If the Court is unable to render summary judgment upon an entire case, it shall, if practicable, grant summary adjudication for any issues as to which, standing alone, summary judgment would be appropriate. See Fed. R. Civ. P. 56(a); California v. Campbell, 138 F.3d 772, 780-81 (9th Cir. 1998). Thus, summary adjudication is a mechanism through which the Court deems certain issues established before trial. Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n. 3 (9th Cir. 1981) (internal quotation omitted). The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a); Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).
III. DISCUSSION
A. Evidentiary Objections
Defendants object to several pieces of evidence offered by Plaintiffs. Many of Defendants' objections are on grounds of relevance under Federal Rules of Evidence 401 and 402. (See, e.g., Obj. ¶¶ 18, 19, 22.) "Objections to evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself" and are thus "redundant" and unnecessary to consider here. Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006); see Anderson, 477 U.S. at 248 ("Factual disputes that are irrelevant or unnecessary will not be counted."). Thus, the Court does not rule on Defendants' relevance objections.
Defendants also object to the Deposition of Officer Adam Aloyian ("Aloyian Depo.," Pl. Exh. 19) because it lacks authentication pursuant to Federal Rules of Evidence 901 and 902. (Obj. ¶ 20.) The Court finds that Aloyian's deposition is not properly authenticated as the copy provided to the Court was not signed by the deponent, a notary public, or the court reporter. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 774 (9th Cir. 2002); Pavone v. Citicorp Credit Servs., Inc., 60 F. Supp. 2d 1040, 1045 (S.D. Cal.1997) (excluding a deposition for failure to submit a signed certification from the reporter). The Court therefore SUSTAINS Defendants' objection to the Aloyian deposition, and the Court does not consider it here.
Plaintiffs failed to properly authenticate all of the deposition excerpts submitted in support of its opposition. Plaintiffs failed to include reporter's certifications or an affidavit from counsel laying the proper foundation for the depositions. See Orr, 285 F.3d at 774 ("A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent."). However, "when a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties." Id. at 776. All of the depositions, aside from Aloyian's, were authenticated by Defendants, therefore their authenticity is established for Plaintiffs as well.
Finally, Defendants object to the expert report authored by Plaintiffs' police practices expert, Roger Clark. ("Clark Report," Pl. Exh. 22.) The Clark Report is inadmissible for numerous reasons, chief among them being that the Report is unsworn and fails to lay an adequate foundation for an expert opinion under Federal Rule of Evidence 702. It "is well established, that an unsworn expert report is inadmissible." Shuffle Master, Inc. v. MP Games LLC, 553 F. Supp. 2d 1202, 1210 (D. Nev. 2008). The provided excerpts of the Clark Report do not include Clark's signature let alone any attestation that the conclusions in the Report are true and correct. In addition, the Report provides no foundational information about Clark's training or length of experience which gave rise to his ability to come to a stated conclusion. See Plush Lounge Las Vegas LLC v. Hotspur Resorts Nevada Inc., 371 F. App'x 719, 720 (9th Cir. 2010). Without any underlying support for his conclusions, Clark's Report is "unsupported speculation" and must be excluded. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993). The Court SUSTAINS Defendants' objections to the Clark Report.
B. Undisputed Facts
Given the limited scope of the instant Motion, the Court primarily addresses undisputed and disputed facts that are relevant to Defendants' Motion. However, facts that are primarily relevant to Plaintiffs' wrongful death and Fourth Amendment excessive force claims are provided as necessary to give context and background to the claims at issue.
Unless otherwise noted, the following material facts are sufficiently supported by admissible evidence and are uncontroverted. They are "admitted to exist without controversy" for purposes of the Motion. L.R. 56-3 (facts not "controverted by declaration or other written evidence" are assumed to exist without controversy); Fed. R. Civ. P. 56(e)(2) (stating that where a party fails to address another party's assertion of fact properly, the court may "consider the fact undisputed for purposes of the motion").
1. 9-1-1 Call
In the early morning hours of December 16, 2010, Elmer Alexander Perez ("Perez") was in his condominium in Santa Ana, California. (SUF ¶ 8; SGI ¶ 8.) Also present were Perez's mother, Maria Calderon Herrera ("Mrs. Herrera"), his step-father, Francisco Herrera ("Mr. Herrera"), his sister, Kimberly Perez, his live-in girlfriend, Diana Alvarado ("Alvarado"), and his 2-year-old son, Plaintiff APA. (SUF ¶¶ 2-6; SGI ¶¶ 2-6.) At the time, Alvarado was pregnant with Perez's second son, Plaintiff EPA. (SUF ¶ 7; SGI ¶ 7.)
That morning, Mrs. Herrera awoke between 4:30am and 5:00am and began getting ready for work. (SUF ¶ 9; SGI ¶ 9.) When she exited her bedroom, she saw Perez, her son, holding a gun. (SUF ¶ 10; SGI ¶ 10.) Alvarado told Mrs. Herrera that the gun was not real. (SUF ¶ 11; SGI ¶ 11.) Mrs. Herrera noticed that Perez was acting strangely, speaking fast, and acting paranoid, and she believed he was under the influence of drugs. (SUF ¶ 12; SGI ¶ 12.) Mrs. Herrera asked her husband to call the police to get help for her son. (SUF ¶ 13; SGI ¶ 13.) Mr. Herrera called 9-1-1 just after 5:00am and told the dispatcher that Perez was on drugs and threatening everyone with a toy gun. (SUF ¶ 15; SGI ¶ 15.)
At 5:11am, the dispatcher broadcast a request for officers to respond to the condominium. (SUF ¶ 18; SGI ¶ 18.) Dispatch notified officers that Perez was under the influence of an unknown type of narcotics and was engaged in a domestic dispute with his 7-month pregnant wife and also possibly under the influence of alcohol. (SUF ¶ 19; SGI ¶ 19.) The broadcast also notified officers that the caller stated he is "certain" the subject has a toy gun, not a real gun. (Dispatch Log at 1.) Multiple officers responded to the call, including Moreno, Prewett, and Lee who were first to arrive, followed by Sontag. (SUF ¶ 20; SGI ¶ 20.)
C. Disputed Facts
Beginning with the officers' first contact with the family, the parties recounting of the facts differs in many respects. All disputed facts are specifically noted.
1. First Contact with Officers
Mr. Herrera met Officers Moreno and Prewett outside the home at approximately 5:20am. (SUF ¶ 21; SGI ¶ 21.) The content of the conversation between the officers and Mr. Herrera is disputed. Mr. Herrera states that he told Moreno in Spanish that Perez had a toy gun and when asked whether he was sure, Mr. Herrera repeated that "of course it's a toy." (Deposition of Francisco Herrera ("Mr. Herrera Depo.") 34:10-22, Wysocky Decl., Exh. D.) Moreno recounts the same conversation, but also adds that he asked Mr. Herrera how he knew it was a toy and whether he had seen the gun himself. (Deposition of Corporal M. Moreno ("Moreno Depo.") 39:3-11, Wysocky Decl., Exh. G.) According to Moreno, Mr. Herrera replied that he had not seen the gun, but his wife had seen it and relayed that it was a toy. (Moreno Depo. 39:12-25.) He also admitted that neither he nor his wife had ever owned or fired a real gun. (Id.) Finally, when asked again how he knows it is a real gun, Mr. Herrera replied "I don't know then." (Id.) It is undisputed that Moreno relayed this information onto Prewett who reported it to dispatch. (SUF ¶ 24; SGI ¶ 24.)
The following facts are uncontroverted. Moreno, Prewett, Lee and Mr. Herrera approached the residence, and the officers told Kimberly Perez and Mrs. Herrera to exit the home. (SUF ¶¶ 25-26; SGI ¶¶ 25-26.) On her way out, Kimberly Perez told the officers that her brother was on drugs and acting weird, that he was not harmful and he had a toy gun in his hand, but to be careful because her nephew and pregnant sister-in-law were upstairs. (Deposition of Kimberly Perez ("K. Perez Depo.") 36:8-15, Pl. Exh. 7.) Mrs. Herrera also states that she told the officers not to harm her son because the weapon is not real. (Deposition of Maria Antonia Calderon Herrera ("Mrs. Herrera Depo.") 44:17-21, Pl. Exh. 9.) Mr. Herrera then showed an unidentified officer to the back of the condominium to show him the window of the room where Perez was located. (SUF ¶ 27; SGI ¶ 27.)
2. At The Doorway
Meanwhile, the rest of the officers were at the front door of the residence. There is disagreement over what was said or heard by the officers and Perez during the approximately 10 minutes the officers remained in the doorway. (SUF ¶ 32; SGI ¶ 32.) However, all witnesses agree that during this time the officers gave Perez the command to come downstairs and asked him if he would allow his wife and child to come down. (SUF ¶ 30; SGI ¶ 30.)
In Plaintiffs' version of the facts, Mr. Herrera did not hear any yelling or screaming from inside the house, and he only heard the officers telling Perez to "come down." (Mr. Herrera Depo. 39:9-23; 66:12-19.) Ms. Alvarado also states that there was no screaming, crying, commotion, or noise coming from inside during this time, and she only heard the police tell Pezrez to "come down" one time. (Deposition of Diana Alavarado ("Alvarado Depo.") 50:4-14, 54:5-7, 81:22-25, 82:11-13, Pl. Exh. 2.) Ms. Alvarado provides conflicting testimony regarding whether Perez verbally responded to the officers' commands to come down. (Compare Alvarado Depo. 54:5-13, 53:17-19 with 52:9-12.)
The officers provided testimony contrary to the family members regarding the events during this time period. Corporal Moreno testified that when they stood at the threshold of the house he heard an argument going on with raised voices and a female crying. (Moreno Depo. 71:17-72-15.) Officer Prewett similarly heard a woman crying and a man shouting as well as objects being tossed around. (Deposition of David Prewett ("Prewett Depo.") 40:3-8, Wysocky Decl., Exh H.) Prewett also recalls Moreno giving Perez a command to come downstairs, and Perez shouting unintelligible responses. (Prewett Depo. 40:14-42:4.) Prewett also states that he told Perez multiple times that it was the police and they needed him to come downstairs with his hands up. (Prewett Depo. 42:9-11.) Prewett testifies that he heard Perez make comments such as "show me your face," "I am going to have to handle this with my knife," and "I do not have any kids up here." (Prewett Depo. 42:22-43:13.) At that point, Prewett asked Perez to allow his wife and child to come down. (Prewett Depo. 44:2-5.) A neighbor, Rian Kennedy, also testified that he heard officers repetitively asking Perez to come down and also telling him that they wanted to make sure his wife and kid were okay. (Deposition of Rian Kennedy ("Kennedy Depo.") 19:1-21, Wysocky Decl., Exh. I.) Both parties agree that Perez did not come down the stairs, nor did he allow Alvarado or APA to leave. (SUF ¶ 34; SGI ¶ 34.)
It is undisputed that during the negotiation with Perez, other officers arrived on the scene, including Aloyian, Hernandez, Romero, and Sontag. (SUF ¶ 33; SGI ¶ 33.) When Prewett relayed to the others that he heard Perez's comment about a knife, Moreno requested for "less-lethal munitions to be brought to the scene." (Moreno Depo. 77:3-12.) He also considered using a taser and conceded it would be effective if Perez had a knife. (Moreno Depo. 77:13-80:23.)
3. Decision to Enter
At 5:36am, Prewett reported to dispatch that it "sounds like subj[ect] 242'ing [assaulting] relatives ins[i]d[e] res[i]d[ence], also made threats on his own life." (Dispatch Log at 5:36:24.) Prewett remembers that at this time Perez became very loud, a child screamed, and he heard several objects thrown around. (Prewett Depo. 46:23-47:2.) At 5:37am, Moreno reported to dispatch that the "susp[ect] [was] becoming more violent" and the officers were "making entry." (Dispatch Log at 5:37:08.) Moreno states that just before the entry he started hearing a lot of banging, items being broken upstairs, and flesh being struck. (Moreno Depo. 32:19-22.)
In contrast, Alvarado states that there was no altercation occurring in the residence at this time, nor were there any sounds of screaming or crying. (Alvarado Depo. 49:16-50:14.) Mr. Herrera provided similar testimony. (Mr. Herrera Depo. 66:12-19.)
Ultimately, the undisputed facts show that Moreno made the decision that five officers, Moreno, Prewett, Lee, Aloyian, and Sontag, would enter the house. (Moreno Depo. 91:6-19.)
4. The Shooting
Officer Prewett led the entry team into the house from the doorway to the bottom of a set of zigzagging stairs along the wall opposite the front door. (SUF ¶ 40; SGI ¶ 40.) The stairs ascended for approximately nine steps toward the left side of the house where there was a flat landing along the left wall, and then the stairs pivoted and ascended for another approximately five steps toward the right side of the house where they reached the second floor. (Wysocky Decl., Exh. J.)
There are substantial disparities between Alvarado and the officers' versions of the facts once the police entered the home. According to Alvarado's deposition , it appears that Alvarado was out of view of the officers when they entered because the officers told Perez that they needed to see his wife and kid. (Alvarado Depo. 81:12-15.) At that point, she and her son approached the landing where Perez was standing and saw that the officers were standing at the bottom of the stairs. (Id. 81:12-21.) It appears that, according to Alvarado, Perez was on the landing facing toward the police officers, and she was on his left. (Id. 40:23-41:5.) Perez held the gun in his right hand. (Id. 41:6-10.) While standing on the landing, Alvarado told the police, "the pistol is a toy." (Id. 31:17-25.) Alvarado testified that the police said nothing after they asked to see her and her son. (Id. 82:17-21, 34:22-23.) Perez then moved Alvarado away from him with his left hand. (Id. 41:11-13.) Then, Perez looked at the officers, and they started to shoot him. (Id. 41:18-21.) At the time the shots rang out, Alvarado states the gun was in Perez's right hand, and his "hand [/] arm was glued to his body" on the right side. (Id. 52:23-53:6.)
Alvarado's testimony is unclear with respect to the sequence of events leading up to the shooting and the spatial locations of the parties and decedent. Despite the lack of chronological clarity, it is clear to the Court that Alvarado's description of the incident differs substantially from that of the officers.
The officers present a contradictory version of the events. The officers state that they entered the home and then positioned themselves at the bottom of the stairs. (Deposition of Tony Lee ("Lee Depo.") 94:4-17, Wysocky Decl., Exh. K; Moreno Depo. 92:9-13.) When they entered, the officers could see the left side of Perez's body as he stood on the landing. (Deposition of Brandon Sontag ("Sontag Depo.") 44:13-18, Wysocky Decl., Exh. L; Prewett Depo. 59:15-28, Moreno Depo. 103:13-14.) They also could see a weapon in Perez' right hand. (Lee Depo. 94:20-24, Sontag Depo. 43:20-25, Moreno Depo. 103:15-18.) At least two of the officers had their guns aimed at Perez when they entered. (Sontag Depo. 45:10-14; Lee Depo. 95:9-14.) According to Lee, Prewett told Perez to "drop the gun." (Lee Depo. 97:8-9.) At this point in the officers' version of the facts, Perez rotated his torso in the officers' direction, opening himself up toward the officers. (Lee Depo. 97:10-18; Sontag Depo. 47:1-3, Prewett Depo. 58:18-59:10, Moreno Depo. 103:18-23.) Simultaneously, Perez raised his right arm in an arc toward the direction of the officers with the gun in his hand arriving at the level of Perez's waist. (Lee Depo. 98:9-11; Sontag Depo. 47:6-8; Prewett Depo. 60:5- 18; Moreno Depo. 104: 2-4.) While Moreno states that the gun was pointed at him (Moreno Depo 103:5-12), Lee and Sontag testified that the gun was pointed in the direction of fellow officers, but not directly at them. (Lee Depo. 100:6-19; Sontag Depo. 47:9-10.) At that moment, the officers fired their weapons, with Sontag firing two rounds (Sontag Depo. 50:1-2), Prewett shooting ten (Prewett Depo. 60:19-24), and the other officers firing an unknown number. (Lee Depo. 100:4-5.)
It is undisputed that Rian Kennedy, the neighbor, heard an officer say "Put it down" twice. (Kennedy Depo. 20:22-25.)
It is undisputed that according to dispatch records, eleven seconds elapsed between the time the officers entered the home to the time of Perez's shooting which occurred at approximately 5:37am. (SUF ¶ 52; SGI ¶ 52.) Perez died as a result of the gunshot wounds. (SUF ¶ 51; SGI ¶ 51.)
5. The Gun
Both parties admit that the object in Perez's right hand was a toy gun. (SUF ¶ 53; SGI ¶ 53.) However, the parties dispute the identity of the toy held by Perez at the time of the incident. Defendants provide photographs of a fake gun retrieved during the investigation of the incident. (Wysocky Decl., Exhs. M1-4, N.) The gun pictured is black with a narrow tip. (Id.) Plaintiffs state this is not the gun Perez was holding during the shooting and describe the actual toy as light brown in color without a narrow tip. (Alvarado Depo. 22:22-24:4.) Nevertheless, the parties agree that the toy gun held by Perez on the date of the incident did not have an orange tip on the end of it. (SUF ¶ 43; SGI ¶ 43.)
D. Judgment as a Matter of Law
1. Fourteenth Amendment Due Process
Defendants seek summary judgment on a portion of Plaintiffs' first cause of action under the Due Process Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983. This claim asserts Plaintiffs' deprivation of familial association in the loss of their father against the individual officers only.
The Ninth Circuit recognizes that children have a constitutionally protected liberty interest under the Fourteenth Amendment in the "companionship and society" of their father. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). Defendants do not challenge the standing of Perez's two sons to sue for constitutional injury under the Fourteenth Amendment for loss of familial relations.
"Official conduct that 'shocks the conscience' in depriving [a child] of that interest is cognizable as a violation of [substantive] due process." Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). In determining whether excessive force shocks the conscience, the Court must first ask "whether the circumstances are such that actual deliberation [by the officer] is practical." Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (quotation omitted). "Where actual deliberation is practical, then an officer's 'deliberate indifference' may suffice to shock the conscience. On the other hand, where a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives." Wilkinson, 610 F.3d at 554.
The parties misstate the standard applicable to Plaintiffs' Fourteenth Amendment due process claim. The parties fail to distinguish between the proper application of the purpose to harm and deliberate indifference standards, and instead assume that the purpose to harm test applies to the facts presented by this case. (Motion at 7; Opp'n at 7-8.) Therefore, the parties do not present any argument related to whether actual deliberation was practicable under the circumstances or whether Defendants meet the lesser deliberate indifference standard.
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a. Actual Deliberation
In Porter v. Osborn, the Ninth Circuit found that actual deliberation was not practical and applied the purpose to harm standard where the police were faced with an individual who, afer being pepper-sprayed, refused to get out of the car but instead started to drive his car at the officers. 546 F.3d at 1139-40. The court held that actual deliberation was not practical because the situation evolved quickly and the suspect's evasive actions forced the officers to make repeated split-second decisions. Id. at 1139.
In Wilkinson, the Ninth Circuit also found that the purpose to harm standard was appropriate where "[w]ithin a matter of seconds, the situation evolved from a car chase to a situation involving an accelerating vehicle in dangerously close proximity to officers on foot," and the suspect's "act of accelerating in reverse despite repeated warnings to stop forced [the officer] to make a split-second decision." 610 F.3d at 554. The court noted that the entire sequence of events "occurred in less than nine seconds." Id.
Viewing the facts in the light most favorable to Plaintiffs, the Court cannot find as a matter of law that actual deliberation was impossible. Even though the officers were only inside the home for eleven seconds, the officers were at the scene for over 25 minutes and remained at the threshold of Plaintiffs' door for at least 10 minutes formulating a plan. Thus, a jury could reasonably find that the officers had time to deliberate before shooting Perez. Moreover, under Plaintiff's version of the facts, the situation was not evolving rapidly, in fact it was not evolving at all, as they claim there was no altercation, screaming, or crying occurring inside the house at any time while the officers were present. Similarly, according to Plaintiffs, Perez was not involved in any evasive action because he was standing still with his arms at his sides and was not speaking at the time he was shot. The most that could be said is that Perez was under the influence of drugs and failed to obey officer commands to come downstairs. The Court cannot find as a matter of law that these facts qualify as a rapidly escalating situation requiring split-second judgments.
Defendants argue that since they believed Perez was holding a real gun, they subjectively thought they were faced with a dangerous situation where they had to "act decisively" and make decisions "in haste, under pressure, and [] without the luxury of a second chance." County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998) (holding that in the context of a high-speed chase, an officer could not be liable for a due process violation without a purpose to harm). However, Plaintiffs' version of the facts calls into question Defendants' subjective understanding of the danger they faced. Plaintiffs present evidence to show that over the course of the 25 minutes they were on the scene, the officers were repeatedly told by multiple family members and the dispatcher that the gun was a toy and that Perez posed no viable threat to the officers or others. See McMurray v. Cnty. of Sacramento, CIV S-09-2245 GEB, 2011 WL 4709876, at *23 (E.D. Cal. Oct. 4, 2011) (finding a genuine issue of material fact as to whether the situation was "tense and dangerous" where according to plaintiff "there was no arguing or yelling, and no confrontation between Damion and the deputies" and "there was nothing in Damion's hand other than a telephone and there was no reason to believe that he was armed"); cf. Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 372 (9th Cir. 1998) (finding deliberation inpracticable where "the gunfight in progress threatened the lives of the 50 to 100 people who were trapped in the parking lot"). Accepting Plaintiffs' allegations as true, a reasonable jury could conclude that the situation was not escalating at the time of the shooting and that the officers had a sufficient opportunity to deliberate on their course of conduct, obviating the need to shoot Perez.
The Court finds that given the genuine disputes of material fact, a reasonable jury could find that it was practical for the officers to actually deliberate prior to shooting Perez. Under the test outlined by the Ninth Circuit, if actual deliberation is practical, the Court must examine whether the officers exhibited deliberate indifference toward the decedent. Wilkinson, 610 F.3d at 554.
b. Deliberate Indifference
Under the deliberate indifference standard, Plaintiffs must demonstrate that the officers "'consciously disregard[ed]' a substantial risk of serious harm." See Farmer v. Brennan, 511 U.S. 825, 839 (1994) (citation omitted). The officers cannot be liable unless they were "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [they] must also draw the inference." See id. at 837.
As discussed above, Plaintiffs put forward sufficient facts from which a reasonably jury could infer that the officers were aware that Perez faced a substantial risk of serious harm. They proffered evidence which demonstrates that multiple family members and the 9-1-1 dispatcher told the officers that Perez's gun was fake. Multiple officers admit to having heard these statements, yet they ignored them when they formulated their plan of entry and confronted Perez inside the home with guns drawn. A factfinder could conclude that a substantial risk of serious harm would have been obvious when five officers entered a home with their guns drawn and aimed at an unarmed and intoxicated Perez who was located only feet from the door. Given that the officers nonetheless proceeded with their course of conduct and fired a minimum of fifteen rounds at Perez in close range, there is sufficient evidence from which a jury could conclude that the officers drew the inference that deadly harm was highly probable under the circumstances and disregarded that risk. See Kosakoff v. City of San Diego, 08-CV-1819UEGNLS, 2010 WL 1759455, at *12 (S.D. Cal. Apr. 29, 2010) aff'd in part sub nom. Estate of Kosakoff ex rel. Kosakoff v. City of San Diego, 460 F. App'x 652 (9th Cir. 2011); Ingram v. City of San Bernardino, EDCV 05-925-VAPSGLX, 2007 WL 5030226, at *9 (C.D. Cal. May 3, 2007) ("Viewing the facts in the light most favorable to Plaintiffs, an officer shooting an unarmed suspect who was turning away could establish that Officer Green's purpose in shooting Ingram was unrelated to the legitimate object of arrest, and thus represents conscious disregard for Plaintiffs' familial relationship").
Accordingly, a jury could conclude that the officers' conduct "shocked the conscience," thereby violating Plaintiffs' Fourteenth Amendment due process right to familial association with their father. The Court therefore DENIES summary judgment on Plaintiffs' Fourteenth Amendment claim under 42 U.S.C. § 1983.
2. California Preshooting Negligence
A portion of Plaintiffs' third claim for relief is based on the allegations that the officers used deficient tactics leading up to Perez's death. Defendants argue that under California law, a negligence claim cannot be premised on the negligence of police officers' preshooting tactics.
Two California Courts of Appeals have found that a duty of care cannot be imposed on police in the preshooting context for the police's failure to prevent harm. See Munoz v. City of Union City, 120 Cal. App. 4th 1077 (2004); Adams v. City of Fremont, 68 Cal. App. 4th 243 (1998). The Munoz court weighed the benefits and drawbacks of imposing liability on officers with respect to the tactical decisions they used in responding to a 9-1-1 call and determined that the "need to protect the overall safety of the community by encouraging law enforcement officers to exercise their best judgment" vastly outweighed the value of imposing tort liability. Munoz, 68 Cal. App. 4th at 1097 (finding the officer's "decisions as to how to deploy his officers at the scene" and "the efforts made in an attempt to defuse the situation as safely as possible" cannot subject the officers to liability). The court held, relying on Adams, that "law enforcement officers are shielded from ordinary negligence claims based on their response to public safety emergencies when those efforts prove to be ineffective in preventing . . . harm." Id. at 1077.
Plaintiffs seek to impose liability on the officers for allegedly negligent tactics including Moreno's call for less-lethal force, but failure to wait for said means to arrive before entering and Moreno's failure to use a taser. (Opp'n at 11-12.) To support their imposition of liability, Plaintiffs point to the Ninth Circuit's decision in Hayes v. Cnty. of San Diego, 658 F.3d 867, 868 (9th Cir. 2011) where the court certified the following question to the California Supreme Court: "Whether under California negligence law, sheriff's deputies owe a duty of care to a suicidal person when preparing, approaching, and performing a welfare check on him." Id. at 868. The court specifically noted that the California Supreme Court has not decided "whether an officer's lack of due care with respect to preshooting tactical decisions can give rise to liability for negligence," and found that there is a dispute over whether the high court would follow the relevant intermediate state appellate decisions in Munoz and Adams. Id. at 870. The California Supreme Court has not yet supplied an opinion on the issue.
When "there is relevant precedent from the state's intermediate appellate court, the federal court must follow the state intermediate appellate court decision unless the federal court finds convincing evidence that the state's supreme court likely would not follow it." Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007). The Ninth Circuit's decision in Hayes provides the Court with convincing evidence that the California Supreme Court likely would not follow the decisions in Munoz and Adams. See Hayes, 658 F.3d at 872 (noting that the California Supreme Court's extended analysis in Hernandez v. City of Pomona, 46 Cal.4th 501 (2009) of whether the officers' preshooting conduct breached the relevant standard of care indicated that it would likely not adopt the broad rule from Adams and Munoz that officers owe no such duty). Moreover, other federal district courts have declined to follow Munoz and Adams given the Ninth Circuit's decision to certify the question to the California Supreme Court. See J.P. ex rel. Balderas v. City of Porterville, 801 F. Supp. 2d 965, 990 (E.D. Cal. 2011) ("In light of the Hayes certification opinion, the Court will assume without deciding that Hall and Dowling owed Prieto a duty to use due care with respect to their pre-shooting tactics.").
The Court declines to grant summary judgment as a matter of law on Plaintiffs' preshooting negligence claim given the lack of clear precedent foreclosing such claims. However, the Court does not reach the issue of whether the officers were negligent with respect to their preshooting tactical decisions, as the parties have not presented arguments on whether the officers preshooting actions were reasonable. At this stage, the Court will not foreclose Plaintiffs from seeking to impose liability based on these actions, but the Court takes no position as to whether the officers preshooting tactics were reasonable.
Accordingly, the Court DENIES Defendants' motion for summary judgment on Plaintiffs' preshooting negligence claim.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Defendants' motion for partial summary judgment on portions of Plaintiffs' first and third claims for relief. Due to Plaintiffs' withdrawal of the cause of action, the Court also DISMISSES Plaintiffs' fourth cause of action for violations of California Civil Code §§ 51, 51.7, 52, and 52.1.
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Jesus G. Bernal
United States District Judge