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holding that failing to disclose publicly available YouTube videos was harmless because the other party could have found them
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Case No.: CV 19-4695-DMG (AGRx)
2021-01-08
Rose DIAZ, et al., Plaintiffs, v. COUNTY OF VENTURA, et al., Defendants.
John Leonard Burris, K. Chike Odiwe, Law Offices of John L. Burris, Oakland, CA, DeWitt M. Lacy, John L. Burris Law Offices, Beverly Hills, CA, for Plaintiffs. Donna M. Dean, CAAG—Office of Attorney General California Department of Justice, Los Angeles, CA, for Defendants.
John Leonard Burris, K. Chike Odiwe, Law Offices of John L. Burris, Oakland, CA, DeWitt M. Lacy, John L. Burris Law Offices, Beverly Hills, CA, for Plaintiffs.
Donna M. Dean, CAAG—Office of Attorney General California Department of Justice, Los Angeles, CA, for Defendants.
ORDER RE DEFENDANT BRIAN GREEN'S MOTION FOR SUMMARY JUDGMENT [67]
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE This matter is before the Court on Defendant Brian Green's Motion for Summary Judgment ("MSJ"). [Doc. # 67.] The motion is fully briefed. [Doc. # 91 ("Opp."), 83 ("Reply").] For the reasons set forth below, the Court GRANTS in part and DENIES in part the MSJ.
Plaintiffs refiled their Opposition brief and supporting materials on January 6, 2021, in response to the Court's Order on the parties’ applications to file documents under seal. [See Doc. # 88.] Plaintiffs initially filed a timely Opposition on December 18, 2020. [Doc. # 76.] The Court cites to the January 6 Opposition brief and supporting materials herein. [Doc. # 91.]
I.
PROCEDURAL HISTORY
Plaintiffs Rose Diaz, Dimas Diaz, Edith Diaz, Jesse Diaz, David Chase Diaz, and D.A.D., a minor by and through her guardian ad litem Alexis Marie Olivarez, initiated this wrongful death action on May 30, 2019, suing in their individual capacities and as successors-in-interest to decedent Dimas Diaz, Jr., based on the lethal shooting of Diaz by law enforcement officers. [Doc. # 1.] On August 12, 2019, Plaintiffs filed the operative Second Amended Complaint ("SAC"), alleging claims for relief against Defendants Brian Green, a California Highway Patrol ("CHP") officer, and Noel Juarez, a deputy of the Ventura County Sheriff's Department, under 42 U.S.C. section 1983 for excessive force and denial of medical care in violation of the Fourth Amendment, and denial of substantive due process in violation of the Fourteenth Amendment. [Doc. # 29.] The SAC also alleges state law claims against Green and Juarez for negligence, battery, and a violation of California's Bane Act. Finally, the SAC asserts a Monell claim for municipal liability against Defendant the County of Ventura. Id.
The Court refers herein to the decedent as "Diaz."
On March 23, 2020, the Court approved a settlement between Plaintiffs, Juarez, and the County, and dismissed Juarez and the County from the action. [Doc. # 65.] The claims against Green remained. On December 18, 2020, the Court approved the parties’ stipulation to dismiss the cause of action for denial of medical care. [Doc. # 75.] Green filed the instant MSJ on December 3, seeking summary judgment on all remaining causes of action.
II.
EVIDENTIARY OBJECTIONS
Plaintiffs’ Opposition relies heavily on two categories of evidence that Green vociferously objects to: 1) two videos of the shooting that were drawn from YouTube, and 2) portions of an incident report prepared by the Los Angeles County Sheriff's Department ("Incident Report").
A. YouTube Videos
Plaintiffs attach to their Opposition, via a declaration from their counsel, two videos that were purportedly posted to YouTube and depict the incident at issue. See D. Lacy Decl., Ex. A, B ("YouTube1" and "YouTube2") [Doc. ## 91-2, 91-3]. Green objects to the videos on two grounds. First , Plaintiffs never produced the videos in their initial disclosures or in response to discovery requests, so Green argues that they should be excluded pursuant to Federal Rule of Civil Procedure 37(c)(1). Rule 26(a)(1)(ii) requires a party to disclose all evidence that "the disclosing party has in its possession, custody, or control and may use to support its claims or defenses." Green also requested that Plaintiffs produce "any video recording depicting all, or any part, of the INCIDENT," to which Plaintiffs responded that they do "not have any documents responsive to this request in [their] possession, custody or control." Supp. Dean Decl. ¶ 4 [Doc. # 83-1].
Strictly speaking, a video posted on the internet by a third party is not in Plaintiffs’ "control." See Rutter Group Prac. Guide, Fed. Civ. Pro. Before Trial, Ch. 11(IV)-C ("[A] party is not in ‘control’ of records that the requesting party has equal ability to obtain from public sources.") (citing Estate of Young Through Young v. Holmes , 134 F.R.D. 291, 294 (D. Nev. 1991) ). Moreover, Rule 37(c)(1) only excludes the use of evidence when the party's failure to disclose it was not "substantially justified or [ ] harmless." While best practice certainly would have been for Plaintiffs to disclose the YouTube videos as soon as they discovered them on the internet, see Fed. R. Civ. P. 26(e), because the videos are publicly available and depict Green's own conduct and events that he observed firsthand, the Court finds that Plaintiffs’ failure to disclose them was harmless. Cf. Communities Actively Living Indep. & Free v. City of Los Angeles , No. CV 09-0287 CBM RZX, 2011 WL 4595993, at *5 (C.D. Cal. Feb. 10, 2011) ("The Court finds that the City's failure to disclose the Federal Emergency Management Agency ("FEMA") Comprehensive Preparedness Guide 101 is harmless because it is a publicly available planning document."). To ensure that Plaintiffs’ failure remains harmless, the Court will reopen discovery solely for the purpose of allowing Green to conduct discovery as to the videos should he wish to do so.
Second , Green argues that Plaintiffs fail to properly authenticate or lay foundation for the videos. While it is true that Plaintiffs do not introduce the videos through a witness with firsthand knowledge of their contents, "proper foundation need not be established through personal knowledge but can rest on any manner permitted by Federal Rule of Evidence 901(b) or 902." Orr v. Bank of Am., NT & SA , 285 F.3d 764, 774 (9th Cir. 2002). Here, the videos can be authenticated through other evidence on the record—namely, other video and photographic evidence of the incident that Green provides. See Fed. R. Evid. 901(b)(3) (allowing authentication by "comparison with an authenticated specimen."). Plaintiffs’ YouTube videos appear to be entirely consistent with the videos and photographs attached to Green's MSJ, and plainly depict the same event. They do not appear to be doctored in a material way, notwithstanding Green's conclusory conjecture that they could be. Moreover, at trial, the videos could be introduced through Green himself or any of the other percipient officer-witnesses, who would then be able to confirm or dispute their accuracy. On summary judgment, the Court can evaluate the videos while carefully keeping in mind the limitations of what they reveal. Therefore, Green's objections to the YouTube videos are OVERRULED , without prejudice to a renewed objection should they not be properly authenticated at trial.
B. Incident Report
Green also objects to Plaintiffs’ portions of the Incident Report for lack of authentication, because again they are not introduced through a witness with personal knowledge. See D. Lacy Decl., Ex. G [Doc. # 91-8.] This argument is unavailing simply because these documents were produced to Plaintiffs by Defendants , as is evident by their contents and their Bates stamps. See Anand v. BP W. Coast Prods. LLC , 484 F. Supp. 2d 1086, 1092 n.11 (C.D. Cal. 2007) ("Documents produced in response to discovery requests are admissible on a motion for summary judgment since they are self-authenticating and constitute the admissions of a party opponent."). Green also objects to the Incident Report to the extent that it contains hearsay statements of non-party officers recounting their observations of the event. But the Ninth Circuit has held that "at summary judgment a district court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial." JL Beverage Co., LLC v. Jim Beam Brands Co. , 828 F.3d 1098, 1110 (9th Cir. 2016). Here, the officers can retell their stories in admissible form by being called to testify at trial. Accordingly, Green's objections to the Incident Report are OVERRULED .
III.
The facts set forth herein are uncontroverted, except where indicated otherwise. The Court has reviewed the parties’ additional evidentiary objections. To the extent the Court does not address any of them, it is because the Court did not rely on the objected-to evidence in reaching its ruling. Any objections to such evidence are OVERRULED as moot.
A. The Pursuit
On January 12, 2019, Green was the on-duty officer-in-charge for the Moorpark area CHP office, patrolling in a marked CHP vehicle. SUF 2-3. At 10:33 a.m., radio dispatch advised that the Ventura County Sheriff's Office ("VCSO") was in pursuit of a gray Chrysler in the vicinity of Camarillo, and requested assistance from CHP. SUF 5, 7. Dispatch advised that the driver of the vehicle was Diaz, who was a wanted felon with a history of "psych concerns," violence, and gang activity and who was considered to be armed and dangerous, and that the vehicle was stolen. SUF 6, 13-15. Diaz led several police officers on a dangerous high-speed chase on the 101 freeway, headed southbound. SUF 9, 11-12. A VCSO helicopter followed the pursuit from overhead and recorded video footage. SUF 8, see D. Lacy Decl., Ex. L ("Helicopter Video") [Doc. # 91-13]. Green joined the chase at 11:10 a.m. At 11:15 a.m., just as Green had called off the pursuit due to weather and traffic conditions, Diaz lost control of the car, swerved across traffic, and crashed violently into the guardrail on the right shoulder of the freeway, with the car perpendicular to the direction of traffic. SUF 16-17, Helicopter Video at 29:06.
All references to "SUF" are to Defendant's Reply to Plaintiffs’ Statement of Genuine Disputes. [Doc. # 83-3.] Page number citations to the record refer to the pagination inserted by the CM/ECF system.
All times are approximate.
B. The Standoff
After crashing to a halt, Diaz exited the car and positioned himself on the driver's side, with the car in between himself and Green and the other officers, who had stopped traffic and ordered Diaz to surrender at gunpoint. SUF 18-19. What followed was a nearly hour-long standoff between Diaz and law enforcement, including Green. SUF 23. During the standoff, Diaz remained in a position of cover behind the car, looking at the officers—though he also moved about erratically and agitatedly and appeared to be under the influence of drugs or alcohol, having a mental health episode, and/or acting generally disoriented. SUF 27, 32, Helicopter Video at 29:23-1:08:09. Green believed that Diaz was intoxicated. SUF 32. Throughout the entire standoff, Diaz kept his right hand tucked into his jacket, out of view. SUF 22. The helicopter observed this fact—capturing it and Diaz's other movements on camera—and relayed it to the officers on the ground (including Green), noting that it was unclear whether Diaz was concealing a weapon or his arm was injured. Id. Green was never told that Diaz had a gun, and he knew that Diaz had nothing in his left hand. Dean Decl., Ex. 1; D. Lacy Decl., Ex. E (together, "Green Depo.") at 91:4-6, 85:23-86:1 [Doc. # 67-10, 91-6]. Officers gave over 100 commands to Diaz to raise his hands and surrender. SUF 24. Diaz never surrendered, though in response to orders to raise his hands, he would raise his left hand, while keeping the right tucked away. SUF 25.
Neither party identifies how many officers were actually involved in the standoff, but video evidence indicates at least eight officers were in close range by the end of it. See D. Lacy Decl., Ex. N at 20:14-17 [Doc. # 91-15].
Green objects to many of Plaintiffs’ characterizations of the events as improper speculation and attorney argument that lack foundation in either fact or expert witness testimony. The Court understands the distinction between reasonable inferences drawn in light of clear video evidence on the one hand, and bald speculation on the other. The former are acceptable—and indeed are incorporated into the Court's description of the facts—while the latter is not. See Scott v. Harris , 550 U.S. 372, 378 n.5, 379-80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("We are happy to allow the videotape to speak for itself.").
Green heard Diaz say a number of things to the officers while they were engaged in the standoff. Diaz said he was never going to see his kids again and shouted, "I'm not going back!" which Green assumed referred to prison. SUF 29-30. At one point, Green heard Diaz say that if he was going to come out from behind the car, he would be "coming out shooting," and at another point Green heard Diaz yell, "You motherfuckers will get shot!" SUF 28, 31.
During the encounter, Green was armed with an AR-15 rifle and was positioned behind his police car for cover. SUF 34, Green Depo. 84:11-85:7.
C. The Attempted Arrest
At around 11:55 a.m., the helicopter departed to refuel. SUF 33. A few minutes later, CHP Officer Werner Pineda announced, "Less-lethal!" and fired a less-lethal projectile round at Diaz, causing Diaz to fall backwards, flat onto his back, with his legs kicked up into the air. SUF 36, Coons Decl., Ex. 3-4 [Doc. # 67-7], YouTube1 at 3:12. Green and other officers then came out from cover and began slowly moving towards Diaz to arrest him, with rifles pointed out in the ready position. SUF 37, D. Lacy Decl., Ex. N at 19:57-20:08, Green Depo. 98:7-8. As they neared about 20 to 30 feet away from Diaz's car, Green and the other officers began side-stepping to the left, around the car, until Diaz came into view. Green Depo. 97:3-98:16; D. Lacy Decl., Ex. N at 19:57-20:08. When he saw Diaz, Green shouted, "Knife, knife, knife!" while still side-stepping at a distance of 20 to 30 feet away. SUF 38, Green Depo. 101:17-22.
D. The Shooting
Up to this point, the facts are largely undisputed. As to what happens next, however, the record is quite murky. Green's own version of the story shifts slightly between his interview with investigators and his deposition, and is inconsistent in key respects with other officers’ characterizations and with the video evidence.
1. Green's Statements to Investigators
In his interview with Sheriff's Department investigators shortly after the incident, Green said that when Diaz first came into view, he was "rolling around on the ground." Incident Report at 42. Diaz then got up into a "tripod" position, with both feet and his left hand planted on the ground. Incident Report at 42, 44. Green saw an object in Diaz's hand, which he thought looked like a knife, causing him to yell "knife!"—which was, in his words, "[w]hatever came to my mind first." Id. at 42. Diaz's right hand was still tucked away. Id. at 45. Diaz then began "running" towards Green, though he did not make it past the rear quarter panel of the car he had been beside. As he did, Green saw in Diaz's hand the barrel of a handgun pointed directly at Green. Id. Green then "engaged him," and Diaz immediately fell to the ground and stopped moving. Id. at 46. Green told investigators that he was "scared to death," thought about his wife and kids, felt like his "mind was going a mile a minute" and like he "ran a marathon," and "felt like I was on an island." Id.
2. Green's Deposition Testimony
At his deposition, Green testified that as Diaz came into view, while still on the ground, Green saw a knife not in Diaz's hand, but on the ground beside him. Green Depo. 99:1-99:17. Green immediately yelled "knife" several times, which he again described as the "[f]irst thing that popped into my head of what it might have been." Id. at 101:6-9. Diaz then "hopped up to his feet" with "a lot of movement." Id. at 99:21-100:10. Green then heard the firing of a second less-lethal round, which struck Diaz and caused him to "double[ ] over while standing up." Id. at 103:8-15. After the less-lethal round hit him, Diaz "extended his left arm, punched out a barrel of a gun at me and came towards my direction." Id. Green then yelled "gun" and fired four times. Id. at 104:1-4. Diaz fell to the ground. Id. at 104:19.
The entire colloquy is worth quoting in full for context, as the testimony is not perfectly clear:
Q. Okay. Does he make any lunge at you?
A. Eventually.
Q. Okay. Talk to me about this lunge. What position does he lunge at you?
A. So he had gotten up and then I couldn't hear anything at the time and it looked -- he kind of doubled over while standing up a second time and then he extended his left arm, punched out a barrel of a gun at me and came towards my direction.
Later watching the window when he doubled over that other time I thought a [sic] heard a second less lethal round. That's when the second one hit him.
Q. Okay. What happened after the second round hit him?
A. He extended his left arm and came at me. I had a barrel of a gun pointed right at me.
Green Depo. 103:4-19.
3. Statements by Other Officers
Two other officers on the scene, Pineda (the less-lethal shooter) and CHP Officer Michael Monteagudo, both stated that they saw an object in Diaz's left hand, but neither described it as a gun. Incident Report at 37; Monteagudo Decl. ¶ 5 [Doc. # 67-4]. In his declaration, Monteagudo stated that after the officers "started to move in," he "saw the suspect get up and start to advance toward us with an object in his hand." Monteagudo Decl. ¶ 5. He then heard Pineda announce, "less lethal" and fire a second less-lethal round. Id. "Soon after," he heard more shots fired and saw Diaz go down. Id.
By contrast, Pineda did not describe Diaz as "running," "lunging," or "advancing" towards Green or other officers, but rather told investigators shortly after the incident: "As he began to stand up he, he was so, he was flailing. He had an object in his left hand and he was flailing." Incident Report at 37. Pineda then heard "knife," and when he saw the "object" he called out "less lethal" and fired a second less lethal round. Id. ; SUF 43. "After [he] took the second shot," Pineda heard gunfire. Incident Report at 37.
There is no evidence in the record of any other officer seeing a gun in Diaz's hand, and no officer stated that they heard Green or anybody else say "gun," though they all heard him yell "knife." See Incident Report at 22-23, 29-30, 37, 38. Multiple officers agree that Diaz's right hand remained tucked into his jacket throughout the confrontation. Incident Report at 24, 30, 37, 38.
One non-police officer witness, a photojournalist, testified in a declaration that he saw the object in Diaz's hand and thought it was a gun, but he was situated much farther away and had a completely different line of sight compared to Green and the other officers. See Coons Decl. ¶¶ 2-3 [Doc. # 67-7].
4. Video and Photographic Evidence
Although the helicopter had left the scene by the time the shooting occurred, multiple other police cameras captured video of the incident, including several police car dash cameras and one (and only one) body-worn camera. See V. Lacy Decl., Ex. 1-4 [Doc. # 67-2]; Cook Decl., Ex. 3 [Doc. # 67-3]. None, however, provide a clear view of Diaz during the key moments just before and as he is shot. In most of them, Diaz is behind his car, which blocks his movements from view.
Green submits photographs though that were taken by a photojournalist positioned about 900 yards away, but on the same side of the car as Diaz. See Coons Decl, Ex. 1-11. The pictures capture freeze-frame, rapid-succession images of Diaz just before and after he is shot and falls to the ground. One in particular appears to show Diaz with his left arm outstretched, pointing in the direction of the officers, holding a rectangular or cylindrical black object. Coons Decl., Ex. 7. Green cites this photograph in his MSJ as depicting the moment that Diaz pointed the object at him and lunged forward. MSJ at 12.
One of the YouTube videos submitted by Plaintiffs appears to have been filmed from a similar angle. See YouTube1. Although filmed from a similarly large distance, with an unsteady hand and relatively low resolution, the YouTube video captures Diaz's movements after being hit by the first less-lethal round, putting the photographs—and the officers’ testimony and statements—into context. The video shows Diaz rising to his feet but remaining hunched over, possibly bobbing up and down, then turning towards the officers, stumbling a couple steps forward, and falling to the ground. Id. at 3:13-3:19. As he stumbles from a crouched position, his left arm seems to rapidly wave forward, as if to catch his balance. Id. at 3:16-3:20.
The photograph with Diaz's left hand appearing to point an object outward is consistent with the moment in the YouTube video where Diaz appears to wave his arm as he stumbles. In fact, when viewing the photograph sequentially with the others immediately before and after it, it looks less like Diaz is pointing and more like he is flailing his arm as he loses his balance. Coons Decl., Ex. 6-9.
Diaz was shot and fell to the ground as the officers were side-stepping, still at a distance of 20 to 30 feet. D. Lacy Decl., Ex. N at 20:09. Seconds before, someone is clearly heard shouting "knife" repeatedly, followed by another voice calling out, "less lethal." Id. at 20:00-20:09; D. Lacy Decl., Ex. K at 26:02-26:11.
* * *
A few additional facts are undisputed. In actuality, Diaz was armed neither with a gun nor a knife. The object in his left hand appears to have been a plastic piece from an automobile console. SUF 46. One other officer, Noel Juarez, also fired his gun. SUF 44. Diaz was shot seven times, including in the head, chest, left shoulder, right forearm, upper back, left hand, and right wrist. D. Lacy Decl., Ex. D at 1-3 [Doc. # 91-5] ("Autopsy Report"). He was pronounced dead at the scene. SUF 45.
One more fact is, oddly, disputed. The autopsy report indicates that Diaz fractured his humerus in his left arm, likely from the car crash. Autopsy Report at 4, D. Lacy Decl., Ex. C ("Ashrof Depo.") at 28:16-20 [Doc. # 91-4]. But during the entire standoff, Diaz freely moved his left arm about, while keeping his right arm immobilized. See Helicopter Video at 29:23-1:08:09. There appears to be a genuine dispute over whether the autopsy report erred in noting that Diaz's left arm was broken, as opposed to his right.
IV.
LEGAL STANDARD
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; accord Wash. Mut. Inc. v. United States , 636 F.3d 1207, 1216 (9th Cir. 2011). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris , 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505.
The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, Rule 56(c) requires the nonmoving party to "go beyond the pleadings and by [his or] her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ " Id. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(c), (e) ); see also Norse v. City of Santa Cruz , 629 F.3d 966, 973 (9th Cir. 2010) (en banc ) (" Rule 56 requires the parties to set out facts they will be able to prove at trial."). "In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence." Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (9th Cir. 2007). "Rather, it draws all inferences in the light most favorable to the nonmoving party." Id.
V.
DISCUSSION
A. Section 1983 Claims
To state a valid section 1983 claim, a plaintiff must establish that: (1) a person acting under the color of state law has (2) deprived him of a right secured by the United States Constitution or federal law. American Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). There is no dispute here that Green was acting under color of state law. The disagreement centers on whether Green violated Plaintiff's Fourth or Fourteenth Amendment rights.
1. Fourth Amendment Excessive Force
Courts analyze excessive force claims under the Fourth Amendment's "objective reasonableness" standard. Brooks v. City of Seattle , 599 F.3d 1018, 1025 (9th Cir. 2010) (citing Graham v. Connor , 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ). The reasonableness determination "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham , 490 U.S. at 396, 109 S.Ct. 1865 (internal quotation marks and citation omitted). Because reasonableness is not susceptible to precise definition or mechanical application of rules, the inquiry "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id.
In any particular case, the reasonableness of the force used must be judged from the perspective of a reasonable officer at the scene rather than with the perfect vision of hindsight. Id. Police officers often must make split-second judgments about the amount of force that is necessary in a particular situation under circumstances that are tense, uncertain, and rapidly evolving. Id. at 396-97, 109 S.Ct. 1865. The inquiry is nonetheless an objective one: just as an officer's evil intentions will not turn an otherwise objectively reasonable use of force into a Fourth Amendment violation, an officer's good intentions will not make an objectively unreasonable use of force constitutional. Id. at 397, 109 S.Ct. 1865.
Courts in the Ninth Circuit employ a three-step analysis in evaluating excessive force claims. The first step is to assess the severity of the intrusion on the plaintiff's Fourth Amendment rights based on the type and amount of force inflicted. Next, a court must evaluate the government's interests in light of the three Graham factors: (1) the severity of the crime; (2) the threat posed to officers or bystanders; and (3) any resistance to arrest and risk of flight. Finally, a court must balance the gravity of the intrusion on the plaintiff against the government's need for the intrusion. Espinosa v. City and County of San Francisco , 598 F.3d 528, 537 (9th Cir. 2010) ; see also Miller v. Clark County , 340 F.3d 959, 964 (9th Cir. 2003).
The Ninth Circuit has held that "[b]ecause the reasonableness standard ‘nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, ... summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.’ " Torres v. City of Madera , 648 F.3d 1119, 1125 (9th Cir. 2011) (quoting Santos v. Gates , 287 F.3d 846, 853 (9th Cir. 2002) ). "This is because such cases almost always turn on a jury's credibility determinations." Smith v. City of Hemet , 394 F.3d 689, 701 (9th Cir. 2005).
i. Resolving Factual Disputes
Normally, the Court must view the facts in the light most favorable to the non-moving party when evaluating the moving party's summary judgment motion. See Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). There are two additional considerations in this case. First, because this is a case involving deadly force, the Court "must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story—the person shot dead—is unable to testify." Gonzalez v. City of Anaheim , 747 F.3d 789, 795 (9th Cir. 2014) (en banc ). In such cases, the Court has an obligation to "carefully examine all the evidence in the record ... to determine whether the officer's story is internally consistent and consistent with other known facts." Id. "[S]ummary judgment is not appropriate in § 1983 deadly force cases that turn on the officer's credibility that is genuinely in doubt." Newmaker v. City of Fortuna , 842 F.3d 1108, 1116 (9th Cir. 2016). Second, this case involves video evidence. When confronted with a videotape of the events in question, the Court must "view[ ] the facts in the light depicted by the videotape." Scott , 550 U.S. at 380-81, 127 S.Ct. 1769. And "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by [the video], 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 summary judgment." Id. at 380, 127 S.Ct. 1769. In Scott , the Supreme Court described the events plainly depicted on video and drew its own factual conclusions, without relying on expert or corroborating evidence. Id. at 379-80, 127 S.Ct. 1769. The Court held that, in light of the video, the non-moving party's attempt to create a dispute of facts based on "visible fiction" should not be credited, and so it held that summary judgment should have been granted in favor of the moving party. Where the non-moving party is the one relying on video evidence to introduce a dispute of material facts, rather than foreclose one, the burden is even lower. See Longoria v. Pinal Cty. , 873 F.3d 699, 706 (9th Cir. 2017) ("This [video] evidence alone raises material questions of fact about the reasonableness of [the officer's] actions and the credibility of his post-hoc justification of his conduct."); id. at 707 ("The real-time videos highlight these competing inferences rather than ‘blatantly contradict[ing]’ or ‘utterly discredit[ing]’ [Plaintiff's] version of events.") (quoting Scott , 550 U.S. at 380-81, 127 S.Ct. 1769 ).
Here, Green's version of the facts are that as he came out into the open and in view of Diaz, Diaz stood up and lunged towards him, pointing what Green believed to be the barrel of a gun, causing Green to shout "gun!" and fire. There is ample evidence in the record, however, to question Green's credibility as to this narrative. Several other officers who were also on scene provide their accounts, and none say they saw a gun in Diaz's hand or heard Green say "gun." Pineda and Monteagudo both saw an object in Diaz's hand, but neither described it as a gun. Although during the standoff, the officers suspected that Diaz may have a weapon in his concealed right hand, it is uncontroverted that his right hand remained tucked away during the entire encounter with Green. Green claims he saw a gun in Diaz's left hand, the same hand which he knew earlier during the standoff carried no weapon. And of course, Diaz did not actually have a gun in either hand, which is circumstantial evidence that a reasonable jury could use to question Green's perception. Id. at 708. A reasonable trier of fact could conclude that either Green never actually perceived a gun, or that his mistake in perceiving a gun was unreasonable. When an officer's use of force is based on a mistake of fact, the question of whether the mistake was reasonable is a triable issue of fact. S.R. Nehad v. Browder , 929 F.3d 1125, 1133-34 (2019) (holding that a reasonable fact finder could conclude that an officer's mistaking of a pen for a knife was unreasonable, and the question was therefore a triable issue); see also Torres , 648 F.3d at 1127 ("[W]hether the mistake was an honest one is not the concern, only whether it was a reasonable one.").
Evidence in the record also calls into doubt Green's characterization that Diaz pointed the object in his direction and advanced. Pineda, the officer who initiated the encounter by firing the less-lethal round, described Diaz as "flailing," not running or lunging. And although they are not definitive, the YouTube video and the photographs appear more consistent with Diaz stumbling or tripping—or "flailing"—than with him running, lunging, or advancing in any deliberate sense. The "pointing" of his left arm actually looks more like the uncoordinated wave of a man losing his balance. The still images suggest as well that Diaz was looking down at his feet or at the ground the whole time he moved, not at the officers—including in the image of him "pointing" the black object at them. Moreover, Green himself testified that Diaz "punched out" his left hand and came towards Green after he had "doubled over" from being struck by a second less-lethal round. A reasonable trier of fact could conclude not that Diaz pointed and lunged at Green, but rather that he was stumbling and flailing forward from getting shot by the second less-lethal round. See Longoria , 873 F.3d at 706 (observing that "imperfect" video evidence of suspect "flailing his arms and moving erratically" controverted officer's account of suspect taking a "shooter's stance").
Finally, it is uncontroverted that Green thought he saw a knife. According to his deposition testimony, the knife was on the ground, but he told investigators that he saw the knife in Diaz's hand.
Solely for the purpose of deciding this MSJ, the Court will therefore view the facts in the light most favorable to Plaintiffs: Green knowingly shot Diaz from 20 to 30 feet away, as Diaz was stumbling and flailing from having just been shot by a less-lethal round, with no gun in sight, with his right hand still tucked in his jacket pocket, and with what appeared to be a knife on the ground beside him.
ii. The Graham Analysis
There is no question that Green used deadly force against Diaz. This most severe of intrusions must be justified by the governmental interests at stake. See A.K.H. ex rel. Landeros v. City of Tustin , 837 F.3d 1005, 1011 (9th Cir. 2016). The Court begins its analysis with the second Graham factor—the threat to the safety of officers or others—because it is the "most important single element of the ... factors." Smith , 394 F.3d at 702.
Viewing the facts in the light most favorable to Plaintiffs, as discussed above, a reasonable jury could find that a stumbling, flailing Diaz—already on his way down from a less-lethal shot—did not pose an immediate threat to Green or the other officers at the time he was shot. While Green had reason to suspect that Diaz may have been concealing a gun in his right hand and, at one point, had threatened to "com[e] out shooting," the Ninth Circuit has held repeatedly that the "mere fact that a suspect possesses a weapon does not justify deadly force." Hayes v. Cty. of San Diego , 736 F.3d 1223, 1233 (9th Cir. 2013). The suspect must actually create an immediate, objective threat to the officer, such as by making a "furtive movement, harrowing gesture, or serious verbal threat." George v. Morris , 736 F.3d 829, 838 (9th Cir. 2013). A jury could conclude that, at the time Green shot him, Diaz was making no such physical or verbal threat, but rather was stumbling and falling—a notably vulnerable and unthreatening posture. Moreover, multiple officers specifically observed that Diaz never moved his right hand, the only hand that Green had reason to believe carried a gun. Cf. Anderson v. Russell , 247 F.3d 125, 131 (4th Cir. 2001) (holding that deadly force was reasonable when the suspect reached towards his back pocket, where officers had reason to believe he had a gun). On more than one occasion, the Ninth Circuit has found that when a suspect had a gun in his hand but pointed at the ground, there was no immediate threat to officers’ safety. See George , 736 F.3d at 838-39 ; Estate of Lopez by & through Lopez v. Gelhaus , 871 F.3d 998, 1010-11 (9th Cir. 2017). Here, crediting Plaintiffs’ version of the facts, Diaz's suspected gun never even came out of his jacket pocket. The perceived knife did not create an immediate threat either. Green saw the knife on the ground, while he and all the other officers remained over 20 feet away. The other two Graham factors do not salvage Green's argument that lethal force was reasonable as a matter of law. Although Diaz had led police on a high-speed car chase on the 101 freeway—a serious crime, see Scott , 550 U.S. at 384, 127 S.Ct. 1769 —that crime was long over by the time Green shot him. See Nehad , 929 F.3d at 1136 ("Even if Nehad had made felonious threats or committed a serious crime prior to Browder's arrival, he was indisputably not engaged in any such conduct when Browder arrived, let alone when Browder fired his weapon."). At the time of the shooting, Diaz's only crimes were refusing to obey officer commands to surrender and causing a disturbance on the shoulder of the freeway. Similarly, although Diaz had certainly fled from police earlier, for nearly an hour leading up to the shooting he was not in the act of fleeing nor in any real danger of escaping, with at least eight officers cornering him on the side of the road.
The Court may also consider other factors, in addition to those enunciated in Graham. One is whether less intrusive alternatives to deadly force were available. Id. at 1138. While police are not required to utilize the least intrusive means, "if there were clear, reasonable and less intrusive alternatives to the force employed, that militates against finding the use of force reasonable." Glenn v. Washington Cty. , 673 F.3d 864, 876 (9th Cir. 2011) (internal quotation marks and alterations omitted). Less-lethal shots had already succeeded in knocking Diaz down flat on his back once, and in fact were in the process of working again when Green opened fire. Pineda had specifically called out that he was firing another less-lethal round just before Green fired his AR-15. A jury could consider Green's failure to allow the less-lethal round to do its job as unreasonable.
Another factor is whether the suspect was evidently mentally or emotionally unstable or seeming to invite officers to use deadly force against him. Vos v. City of Newport Beach , 892 F.3d 1024, 1034 (9th Cir. 2018). In such circumstances, "[t]hese indications of mental illness create a genuine issue of material fact about whether the government's interest in using deadly force was diminished." Id. It is undisputed that Diaz was acting erratically and bizarrely, and that Green believed he was under the influence of drugs or alcohol. A jury could find that given Diaz's behavior, officers perceived (or should have perceived), an emotionally disturbed individual acting out and in need of help, rather than a hardened criminal intending harm and in need of taking down.
To be sure, there are some facts that weigh in favor of using deadly force. The other side of the coin of Diaz's erratic behavior is that it could make him dangerously unpredictable. He also was purported to be "armed and dangerous," recklessly fled police, maintained a defensive posture, concealed his hands, and occasionally hurled threats at officers that intimated he was armed and would come out shooting. But there are equally as many facts—especially at the critical moment when Green decided to shoot—that a jury could conclude render his decision unreasonable. These present triable issues of material fact precluding summary judgment.
In sum, viewing the facts in the light most favorable to the non-moving party, a trier of fact could find that Green's use of deadly force on Diaz was objectively unreasonable in violation of the Fourth Amendment.
iii. Qualified Immunity
Green raises the defense of qualified immunity. To determine whether a police officer is entitled to qualified immunity, the Court must answer two separate questions: (1) whether the officer violated a federal statutory or constitutional right, and (2) whether the unlawfulness of his conduct was "clearly established" at the time. District of Columbia v. Wesby , ––– U.S. ––––, 138 S.Ct. 577, 589, 199 L.Ed.2d 453 (2018). Courts may "exercise ... discretion in deciding which of the two prongs ... should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan , 555 U.S. 223, 243, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). As already discussed above, there is a triable issue of material fact as to whether Green violated Diaz's Fourth Amendment right to be free from the unreasonable use of force. The Court now addresses the "clearly established" prong of the qualified immunity analysis.
Demonstrating that the unlawfulness of an officer's actions was "clearly established" requires a showing that "at the time of the officer's conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful." Wesby , 138 S.Ct. at 589 ; Hardwick v. Cty. of Orange , 844 F.3d 1112, 1118 (9th Cir. 2017). The party asserting the injury, Plaintiffs in this case, bears the burden of "showing that the rights allegedly violated were clearly established." Shafer v. Cty. of Santa Barbara , 868 F.3d 1110, 1118 (9th Cir. 2017), cert. denied sub nom. Shafer v. Padilla , ––– U.S. ––––, 138 S. Ct. 2582, 201 L.Ed.2d 295 (2018).
A clearly established right cannot be merely implied by precedent and plaintiffs may not defeat qualified immunity by describing violations of clearly established general or abstract rights. See White v. Pauly , ––– U.S. ––––, 137 S. Ct. 548, 551-52, 196 L.Ed.2d 463 (2017) ; Kisela v. Hughes , ––– U.S. ––––, 138 S.Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (the Supreme Court has "repeatedly told courts ... not to define clearly established law at a high level of generality"). Rather, the right must be "particularized to the facts of the case." White , 137 S. Ct. at 552 (stating that the plaintiff "failed to identify a case where an officer acting under similar circumstances as [the police officer] was held to have violated the Fourth Amendment"). The Ninth Circuit has emphasized that "it is the facts of particular cases that clearly establish what the law is." Isayeva v. Sacramento Sheriff's Dep't , 872 F.3d 938, 951 (9th Cir. 2017). The standard, however, does not "require a case directly on point for a right to be clearly established," so long as "existing precedent" places "the statutory or constitutional questions beyond debate." Kisela , 138 S.Ct. at 1152 (quoting White , 137 S.Ct. at 551 ).
It is clearly established that "the use of deadly force against a non-threatening suspect is unreasonable." Zion v. Cty. of Orange , 874 F.3d 1072, 1076 (9th Cir. 2017), cert. denied , ––– U.S. ––––, 138 S. Ct. 1548, 200 L.Ed.2d 741 (2018) ; see also Tennessee v. Garner , 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ; Wilkinson v. Torres , 610 F.3d 546, 550 (9th Cir. 2010). Binding precedent places this constitutional question—the right of a non-threatening suspect not to be killed—beyond debate. If a jury credits Plaintiffs’ version of the facts—that Diaz was killed while he was stumbling and flailing—then Green's use of deadly force is an "obvious case" involving the unreasonable use of lethal force against a non-threatening suspect. See White , 137 S. Ct. at 552.
There are particular Ninth Circuit cases with strikingly similar facts where the court held the officer's use of force was unreasonable. In Longoria , an individual led officers on a 70-minute car chase while occasionally shouting at officers, threateningly simulating a gun with his fingers, and "exhibit[ing] other erratic behavior." 873 F.3d at 702-03. The chase ended in crash, leading to a standoff with eight officers drawing their guns at Longoria. Id. at 703. One officer shouted "less lethal," and Longoria was shot with a less-lethal round and tased, causing him to "flinch[ ] and move[ ] erratically." Id. Another officer, from a position of 25 to 45 feet away, thought he saw Longoria holding a "black or silver weapon" and forming a "shooter's stance," and so the officer opened fire, killing Longoria. Id. at 703, 706. The panel held that a reasonable jury could determine that the officer "never perceived a ‘shooter's stance,’ and that [he] knew or should have known that Longoria was either surrendering in response to the non-lethal force of the [less-lethal] rounds and taser or reacting in some manner to their effects upon him but was by no means threatening to shoot at [the officer] or any of the other officers." Id. at 708.
In Vos v. City of Newport Beach , 892 F.3d 1024 (9th Cir. 2018), police responded to a man "behaving erratically" and acting "agitated" inside a 7-Eleven store, cursing at and threatening customers and employees. Id. at 1028. When the defendant officer arrived, he reported that "the subject is simulating having a hand gun behind his back and is asking me to shoot him." Id. at 1029. Eight officers soon arrived, positioning themselves outside the store and using their cars for cover. Id. One officer was armed with a less-lethal firearm, while others carried AR-15 rifles. Id. The officers "knew that Vos had been simulating having a gun and that he was agitated, appeared angry, and was potentially mentally unstable or under the influence of drugs." Id. After several minutes in this posture, Vos ran out the store towards officers, starting from 30 feet away, carrying "an object over his head in his hand." Id. An officer shouted that Vos had scissors, and another fired a less-lethal round. "[W]ithin seconds" of the less-lethal round, two other officers fired their rifles, hitting Vos with four bullets and killing him. Id. at 1029-30. The court held that "a reasonable jury could conclude that Vos did not pose an immediate threat such that the use of deadly force was unwarranted." Id. at 1032.
Finally, Estate of Lopez v. Gelhaus , 871 F.3d 998 (9th Cir. 2017), is instructive regarding Green's mistaken belief that Diaz pointed a gun at him. There, a teenager was walking down the street carrying a toy AK-47. Id. at 1010. The officer pulled up behind him and shouted "drop the gun," causing the teenager to turn towards the officer, raising the toy gun barrel slightly as he turned but keeping it pointed at the ground. Id. at 1010-11. As the teenager turned, the officer shot and killed him. Id. The court held that a reasonable jury could conclude that the teenager "turned naturally and non-aggressively" and that "the gun posed no threat to the officers." Id. at 1011. While some of the background context differs from this case, Lopez nonetheless clearly establishes that deadly force is not justified when a suspect carries an object that may look like a gun, but does not move aggressively and does not point it at officers or anybody else—all conclusions that a jury can draw in this case even if it does credit to some extent Green's perception that he saw a gun.
Longoria , Vos , and Lopez together clearly established that Green's conduct, when viewed in the light most favorable to Plaintiffs, violated the Fourth Amendment. Therefore, the Court DENIES Green's MSJ both as to the objective reasonableness of the use of force and as to the defense of qualified immunity.
2. Fourteenth Amendment Substantive Due Process
Children have a Fourteenth Amendment liberty interest in the companionship and society of their parents, and vice versa. Wilkinson v. Torres , 610 F.3d 546, 554 (9th Cir. 2010) ; Curnow ex rel. Curnow v. Ridgecrest Police , 952 F.2d 321, 325 (9th Cir. 1991). Official conduct that "shocks the conscience" in depriving children of that interest in their family relationships is cognizable as a violation of due process. Id. ; see also Porter v. Osborn , 546 F.3d 1131, 1137 (9th Cir. 2008). In determining whether an officer's force shocks the conscience, the court first asks whether the circumstances of the case allowed the officer to have actual deliberation. Wilkinson , 610 F.3d at 554. Deliberation is impractical when a suspect's evasive actions force the officers to act quickly or when fast-paced situations pose safety concerns. Tatum v. Moody , 768 F.3d 806, 821 (9th Cir. 2014). In such fast-paced situations, the Court applies the purpose to harm standard, under which a plaintiff must show that the officer's goal was to cause harm unrelated to a legitimate law enforcement objective. Porter , 546 F.3d at 1140.
Although there was an approximately hour-long standoff after a lengthy car chase, the moments before Green used lethal force upon Diaz were fast-paced and occurred within a matter of seconds. There is no evidence from which an inference can be drawn that, when the officers finally began to advance towards Diaz to attempt to end the standoff, that Green had any purpose to harm that was unrelated to a legitimate law enforcement objective. Green stated that he felt "scared to death" and that his mind was "going a mile a minute." He fired four shots in rapid succession and stopped when Diaz hit the ground. At most, a jury could conclude that Green irrationally panicked out of a false sense of fear of a man behaving erratically, who had been described as "armed and dangerous." This reaction does not satisfy the purpose to harm standard, so the Court GRANTS the MSJ as to the substantive due process claim.
At the hearing, Plaintiffs argued that Green fired at least one of the shots while Diaz was already on the ground, and this shot had no legitimate law enforcement objective. But Plaintiffs do not point to any evidence that Diaz was in fact shot while on the ground. There is no evidence in the record demonstrating the sequence of the bullets, what position Diaz was in when hit with each one, or who fired which bullet. The video evidence also does not show enough time in between shots for contemplation.
B. State Law Claims
1. The Bane Act
California Civil Code section 52.1, known as the Bane Act, creates a cause of action against those who interfere with constitutional rights "by threat, intimidation, or coercion." In an excessive force case, the Bane Act requires not merely establishing a Fourth Amendment violation, but also "a specific intent to violate the arrestee's right to freedom from unreasonable seizure." Reese v. Cty. of Sacramento , 888 F.3d 1030, 1043 (2018) (quoting Cornell v. City and Cty. of San Francisco , 17 Cal. App. 5th 766, 801-802, 225 Cal.Rptr.3d 356 (2017) ). A plaintiff must prove that the offending officer "intended not only the force, but its unreasonableness, its character as more than necessary under the circumstances." Id. at 1045 (internal quotation marks omitted).
For the substantially the same reasons that Plaintiffs cannot show that Green had a purpose to harm sufficient to establish a substantive due process violation, they cannot show that Green specifically intended the unreasonableness of his conduct—even when the facts are viewed in the light most favorable to Plaintiffs. Accordingly, the MSJ is GRANTED as to the Bane Act claim.
The Bane Act's specific intent requirement can be satisfied by "a reckless disregard for a person's constitutional rights." Reese , 888 F.3d at 1045. Thus, in some situations, the same facts that underlie a section 1983 excessive force case can also establish a Bane Act claim, if the facts give rise to an inference that the officer's conduct constituted a "reckless disregard" for the person's Fourth Amendment right. See, e.g. , Mora v. City of Garden Grove , No. 819CV00418JLSJDE, 2020 WL 4760184, at *10 (C.D. Cal. May 1, 2020). For the reasons discussed above, however, this is not one of those cases.
2. Negligence and Battery
In California, claims for battery against police officers acting in their official capacities "are analyzed under the reasonableness standard of the Fourth Amendment to the United States Constitution." Avina v. United States , 681 F.3d 1127, 1131 (9th Cir. 2012) (quoting Munoz v. City of Union City , 120 Cal. App. 4th 1077, 16 Cal.Rptr.3d 521 (2004) ). Similarly, "[t]he standard of reasonableness applicable in a negligence action under California law is the same as that in a § 1983 claim." McKay v. City of Hayward , 949 F. Supp. 2d 971, 988 (N.D. Cal. 2013). Therefore, because the Court denies the MSJ as to the Fourth Amendment claim, the Court also DENIES the MSJ as to the negligence and battery claims.
VI.
CONCLUSION
In light of the foregoing, the Court
1. DENIES Green's MSJ as to the Fourth Amendment excessive force claim;
2. GRANTS Green's MSJ as to the Fourteenth Amendment substantive due process claim;
3. GRANTS Green's MSJ as to the Bane Act claim;
4. DENIES Green's MSJ as to the negligence claim;
5. DENIES Green's MSJ as to the battery claim;
6. ORDERS that discovery reopen for no more than 60 days solely to allow Green to conduct discovery as to the two YouTube videos lodged by Plaintiffs; and
7. ORDERS the parties, within two weeks of this order, to meet and confer regarding new proposed dates and deadlines for the Final Pretrial Conference, Trial, and related pre-trial filings, and file a stipulation as to a proposed new schedule.
IT IS SO ORDERED.