Summary
discussing Cal. Code Civ. Pro. § 377.32, (b)
Summary of this case from Soliz v. City of BakersfieldOpinion
No. C 04-1449 PJH.
November 3, 2004
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pursuant to Civil Local Rule 7-13, this order may not be cited except as provided by Civil Local Rule 3-4(e).
The motion of defendant Steven Curtis for summary judgment came on for hearing before this court on October 27, 2004. Plaintiffs Benjamin Dillard, Lorraine Dillard, and David Dillard appeared by their counsel Richard J. Massa, and defendant appeared by his counsel Deputy Attorney General John P. Devine. Having read the parties' papers and carefully considered their arguments, and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendant's motion.
INTRODUCTION
This is an action brought under 42 U.S.C. § 1983 by the parents and brother of Jerry Dillard ("Jerry"), now deceased, against defendant Steven Curtis, an officer of the California Highway Patrol ("CHP"). Jerry's brother David Dillard ("David") asserts, as successor-in-interest to Jerry, that Officer Curtis violated Jerry's Fourth Amendment rights by pointing a gun at him during a traffic stop. Jerry's father and mother allege violations of their Fourteenth Amendment rights to family association. Officer Curtis now seeks summary judgment, on grounds of qualified immunity. He also contends that plaintiffs lack standing to assert Jerry's Fourth Amendment claims.FACTUAL BACKGROUND
David Dillard claims that Jerry suffered from paranoid schizophrenia and was "acutely mentally deranged," and had suffered from this illness for more than 30 years. David asserts that he had been acting as Jerry's "guardian" at the time of the events in question. He also states that Jerry had for several years been living at a migrant workers' camp on a ranch located east of Williams, California, where he worked as a caretaker in exchange for living quarters.
On May 27, 2002, David persuaded Jerry to leave the camp area — something Jerry had not done for nearly two years — to take a ride to the lake and to visit some friends. They left in the middle of the afternoon. At approximately 7:40 p.m., David was driving a Ford Aerostar van south-bound on State Route 29 in Kelseyville, Lake County, California. Jerry was sitting in the front passenger seat of the van. At the same time, Officer Curtis was driving a CHP patrol car north-bound on SR-29. Also riding in the patrol car was David G. Ell ("Ell"), a 16-year-old CHP Explorer.
Officer Curtis saw the van and observed that it appeared to be traveling at a high rate of speed. Officer Curtis activated the patrol car's radar unit, and the unit responded with a reading of 73 m.p.h. The speed limit on that stretch of SR-29 is 55 m.p.h. Officer Curtis made a U-turn and began to follow the van. He activated the emergency lights on the patrol car to signal the driver of the van to stop. The van eventually stopped on the west shoulder of SR-29, at Main Street, in Kelseyville.
Officer Curtis exited his vehicle and approached the passenger side of the van. He states in his declaration that he observed a male passenger in the right front passenger seat, whom he later learned was named Jerry Dillard. At that point, Ell remained standing next to the patrol car, and was unable to hear the conversation between Officer Curtis and the Dillard brothers. David claims that Officer Curtis and Jerry entered into a confrontational verbal exchange. He describes them as acting "like children in a schoolyard."
Officer Curtis does not mention the initial verbal exchange with Jerry. In his declaration, he states that he approached the van, and that he "contacted the driver, identifying himself as David Dillard, through the open right front passenger window." He states further that during his conversation with David, he smelled the odor of alcohol emanating from the interior of the van, and noticed that Jerry appeared to be intoxicated. He observed that Jerry's eyes were bloodshot and watery, that his speech was thick and slurred, and that he refused to listen to David's instructions to keep quiet and stop interrupting. Officer Curtis states that when he asked David how much he (David) had had to drink, David responded, "None," and Jerry, "speaking with very slurred speech," stated, "I've been drinking, but he hasn't had anything."
David states that the "sharp exchanges" between Jerry and Officer Curtis continued, and that several times he (David) tried to get Jerry and Officer Curtis to "settle down." He states that at one point, Jerry told Officer Curtis, "I'm God, you know." Officer Curtis responded, "Sure, you are." David states that at that point he knew he had to try to get the officer's attention so that he could alert him to Jerry's disability, although he claims that Jerry was "already showing all the signs of textbook paranoid schizophrenia."
Officer Curtis then asked David to exit the van and directed him to the rear of the patrol car. David states that he gladly complied, because he felt he would have an opportunity to speak privately with Officer Curtis. He states that when they got to the rear of the patrol car, he explained to Officer Curtis about Jerry's schizophrenia, and told him that Jerry was harmless and "that I would take him home if he would just allow us to proceed." He states that he then noticed Ell standing there.
Officer Curtis states that at that point, he observed that David's eyes were red and watery, that his speech was slurred, and that his breath was emitting the odor of alcohol. He again asked David how much he had had to drink, and David responded, "One beer about an hour ago." Officer Curtis administered a series of field sobriety tests, on which David performed poorly. Officer Curtis also administered a Preliminary Alcohol Screen (PAS) test to determine whether David was under the influence of alcohol. The results of the PAS test on two separate breaths indicated blood alcohol levels of .112 and .099 — beyond the legal limit of .08 while operating a motor vehicle in California.
Based on David's appearance, his performance on the field sobriety tests, and the results of the PAS test, Officer Curtis formed the opinion that David was under the influence of alcohol and was unable to safely operate a motor vehicle. He handcuffed and searched David, and placed him in the rear of the patrol car.
Officer Curtis then walked back to the van to speak with Jerry. He states that at that point he realized that Jerry was extremely intoxicated and unable to care for himself. He asked Jerry if he had any identification, and Jerry responded, "No, I am God." Jerry then asked, "Do you know me? Do you want to talk to me? Do you want to tell me something?" He finally identified himself as Jerry Edward Dillard.
Officer Curtis states that he asked Jerry to exit the van, and Jerry said, "No." He states that he told Jerry that David had been arrested for driving under the influence, and again asked Jerry to exit the van, but Jerry again said, "No." Officer Curtis told Jerry he would have to remove him from the vehicle, and Jerry responded, "You're putting a knife in my heart. You're putting a knife in my heart." Officer Curtis tried to open the passenger door, but it was locked. At that point, Jerry started rolling up the window. Officer Curtis grabbed Jerry's right hand and attempted a "bent wrist" control hold to prevent him from rolling up the window, but Jerry broke free and continued to roll up the window.
Standing back by the patrol car, Ell observed Jerry attempting to roll up the window, and also observed Officer Curtis holding Jerry's arm with the wrist bent outside the passenger window. Ell walked toward the passenger side of the van to assist Officer Curtis. As Ell approached the van, he saw Jerry rolling up the window and saw Officer Curtis run to the driver's side of the van.
Officer Curtis states that he ran to the driver's side of the van and opened the door after Jerry had rolled up the window. He attempted to remove the keys from the ignition because he wanted to prevent Jerry from driving off in the van. At that point, Jerry pulled out a large knife from his left rear pants pocket. Ell also observed Jerry pull out the knife, and states that it had a blade several inches long. Ell immediately returned to the passenger side of the patrol car. Officer Curtis requested dispatch to send back-up units. While waiting for assistance, he heard Jerry say, "It's going through my heart."
Ell heard Officer Curtis tell Jerry three or four times to drop the knife. Officer Curtis states that he was afraid that Jerry was going to plunge the knife into his own chest, and that he removed his OC spray and ordered Jerry to stop and drop the knife. He states that Jerry again said, "It's going through my heart, it's going through my heart." He states that during this time, Jerry maintained a fixed forward glare and his entire upper body was shaking. Officer Curtis then directed a burst of OC spray toward the left side of Jerry's face, but Jerry did not respond in any way. Officer Curtis then directed a second burst of OC spray toward the left side of Jerry's face. This time, Jerry flinched, but the OC spray otherwise had no effect. Ell saw Officer Curtis spray Jerry with the OC spray two times.
Oleoresin capsicum or "pepper" spray.
Officer Curtis then drew his gun and ordered Jerry to drop the knife. Both David and Ell observed Officer Curtis pull out his gun and point it at Jerry, telling him to drop the knife. David states that he shouted as loudly as he could, asking Officer Curtis to cease his use of the weapon and allow him (David) to talk to Jerry and defuse the situation. He states that Jerry made no threatening move toward Officer Curtis.
Officer Curtis then observed Jerry plunge the knife into his chest. From where Ell was standing, he could see Jerry raise his hands (holding the knife) and quickly move his hands toward himself, although he did not see the knife enter Jerry's chest. Ell then saw Officer Curtis go to the passenger side of the van and begin to help Jerry. Ell also went to the passenger side of the van, but quickly moved away as other CHP officers and patrol cars had arrived.
Officer Curtis states that he immediately informed dispatch of what had occurred, and requested an ambulance. He removed the key from the ignition, walked around the van, and unlocked the passenger-side door. David states that he saw Officer Curtis return to the rear of the patrol car, with his weapon in his hand, and that he didn't seem to know what to do with the gun, but finally put it in the holster. David, who was as yet unaware that Jerry had stabbed himself, heard Officer Curtis call for an emergency medical vehicle. He states that he could see Jerry's face in the rear-view mirror staring back at him.
Two additional CHP officers promptly arrived on the scene, and one of them initiated first-aid treatment for Jerry. Officers from the Kelseyville Fire Department arrived soon after, and assumed responsibility for medical treatment. Jerry was then transported to Sutter Lakeside Hospital. He died either en route to the hospital, or shortly after arriving. Two CHP officers accompanied David to Lake County Jail, where David was booked for violation of California Vehicle Code § 23152(a) and (b) (operating a motor vehicle under the influence of alcohol or drugs; operating a motor vehicle with 0.08 per cent blood alcohol level).
Plaintiffs filed this action in the Superior Court of California, County of Lake. On March 16, 2004, plaintiffs filed an amended complaint (FAC), naming Officer Curtis and "Does I-XX" as defendants. Officer Curtis received a copy of the summons and FAC by mail on March 22, 2004. Plaintiffs allege three causes of action. In the first cause of action, they assert that defendants caused Jerry's death and deprived plaintiffs of love, society, care, comfort, and support, in violation of their Fourth and Fourteenth Amendment rights. In the second cause of action, plaintiffs allege that defendants violated Jerry's Fourth Amendment rights prior to this death. At the hearing on the present motion, plaintiffs' counsel clarified that in the first cause of action, Jerry's parents allege violation of their own Fourteenth Amendment rights; and that in the second cause of action, David asserts Jerry's Fourth Amendment rights as Jerry's successor-in-interest.
A Fourteenth Amendment claim of "deprivation of association" or "deprivation of familial relationships" can be asserted by Jerry's parents but not by his brother. See Ward v. City of San Jose, 967 F.2d 280, 283-84 (9th Cir. 1992) (siblings had no cognizable liberty interest in companionship and society of deceased brother). Neither Jerry's parents nor his brother can maintain a personal § 1983 cause of action for violation of their own Fourth Amendment rights, because they do not allege that they were directly subjected to excessive force. "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted."Alderman v. United States, 394 U.S. 165, 174 (1969); see also Byrd v. Guess, 137 F.3d 1126, 1134 (9th Cir. 1998).
In the third cause of action, plaintiffs allege that the CHP, acting through "Does" 1-10, hired Officer Curtis and "Does" 11-20 without adequate training and qualification, and thereafter failed to adequately supervise and train them in the use of deadly force. The CHP is not specifically named as a defendant, and plaintiffs have not amended the complaint to name other defendants in place of the "Does."
Defendant removed the case on April 13, 2004, alleging federal question jurisdiction. At the hearing on the present motion, plaintiff's counsel agreed that because plaintiffs seek compensation for constitutional violations, the action is brought under 42 U.S.C. § 1983.
DISCUSSION
A. Legal Standard
1. Summary judgment
Summary judgment is appropriate when there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Id.
If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "To show the existence of a `genuine' issue, . . . [a plaintiff] must produce at least some significant probative evidence tending to support the complaint." Smolen v. Deloitte, Haskins Sells, 921 F.2d 959, 963 (9th Cir. 1990) (quotations omitted). The court must view the evidence in the light most favorable to the non-moving party. United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir. 2003). The court must not weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial.Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999). Regardless of whether plaintiff or defendant is the moving party, each party must "establish the existence of the elements essential to [its] case, and on which [it] will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
2. Qualified immunity
Title 42 U.S.C. § 1983 "provides a cause of action for the `deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990). The defense of qualified immunity, however, shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Thus, defendants can have a reasonable, but mistaken, belief about the facts or about what the law requires in any given situation. Saucier v. Katz, 533 U.S. 194, 202 (2001) (quotingMalley, 475 U.S. at 341).
"The entitlement is an immunity from suit rather than a mere defense to liability; [and] . . . it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). For this reason, qualified immunity is particularly amenable to summary judgment adjudication. Insofar as possible, a ruling on the issue of qualified immunity should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Saucier, 533 U.S. at 200. Indeed, a defendant is entitled to a ruling on qualified immunity "early in the proceedings so that the costs and expenses of trial are voided where the defense is dispositive." Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001) (quoting Saucier, 533 U.S. at 200).
B. Defendant's Motion for Summary Judgment
Officer Curtis moves for summary judgment as to the first and second causes of action, on grounds of qualified immunity. In the first cause of action, Benjamin Dillard and Lorraine Dillard allege that Officer Curtis violated their Fourteenth Amendment rights. Officer Curtis argues he is entitled to qualified immunity on this claim because plaintiffs cannot meet the heightened "purpose to harm" standard necessary to establish a violation of their Fourteenth Amendment substantive due process rights.
In the second cause of action, David Dillard asserts a survival action on behalf of Jerry, alleging a violation of Jerry's Fourth Amendment rights. Officer Curtis argues that he is entitled to qualified immunity because there was no constitutional violation. He claims that his conduct was objectively reasonable, and that plaintiffs therefore cannot establish that Jerry's Fourth Amendment rights were violated. In the alternative, he contends that he violated no clearly established constitutional right.
1. Standing to assert the Fourth Amendment claims
Officer Curtis argues that plaintiffs lack standing to assert a Fourth Amendment claim on Jerry's behalf because the FAC does not plead a cause of action in the name of, or on behalf of, the Estate of Jerry Dillard. Plaintiffs respond that it is not necessary that the claim be brought by Jerry's estate, noting that the FAC alleges a survival claim asserted by David on Jerry's behalf. In the reply, Officer Curtis does not address the question whether the action is an appropriate survival claim, apparently conceding the issue to plaintiffs.
Plaintiffs allege a Fourth Amendment violation in both the first and second causes of action. As explained above, in note 3, the only Fourth Amendment claim possible is the claim asserted by David in the second cause of action.
The question whether a particular party has standing to pursue a claim must precede the question whether that party has successfully stated a claim.Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). A claim under 42 U.S.C. § 1983 which accrued before death survives the decedent when state law authorizes a survival action as a "suitable remed[y] . . . not inconsistent with the Constitution and laws of the United States." 42 U.S.C. § 1988; see Robertson v. Wegmann, 436 U.S. 584, 588-90 (1978). The party seeking to bring a survival action bears the burden of demonstrating that a particular state's law authorizes a survival action and that the plaintiff meets the state's requirements for bringing a survival action. Moreland, 159 F.3d at 369.
Under California's survival statute, "a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period." Cal. Civ. P. Code § 377.20(a). California allows representatives of decedents' estates to file survival actions for damages, other than for pain, suffering, and disfigurement, suffered by decedents before their deaths. County of Los Angeles v. Superior Court, 21 Cal. 4th 292, 303-05 (1999); see Cal. Civ. P. Code §§ 377.20, 377.34.
Under California law, "survival actions" are distinguished from "wrongful death actions." A wrongful death action is an independent claim on behalf of decedent's heirs for damages they personally suffered on account of the death. Cal. Civ. P. Code § 377.60. A survival action is a personal injury action which `survives' to decedent's estate for the purpose of recovering damages that would have been awardable personally to decedent had he or she lived. Cal. Civ. P. Code § 377.20.
If a person dies having a cause of action for injuries suffered during life, the claim `survives' to his or her estate under California Code of Civil Procedure § 377.20 (formerly, Probate Code § 573) and may be prosecuted by a duly appointed executor or administrator on behalf of the estate. Cal. Civ. P. Code § 377.20, 377.30. If there is no personal representative for the estate (e.g., the estate is not probated or probate has been completed), the "survival" action may be prosecuted by the decedent's "successor in interest" — the person or persons who succeed, by will or intestacy, to the cause of action or to the particular item of property that is the subject of the action. Cal. Civ. P. Code §§ 377.10, 377.11, 377.30, 377.31; Olson v. Toy, 46 Cal. App. 4th 818, 821 n. 2 (1996).
In California, a person who seeks to commence an action as the decedent's successor in interest is required to "execute and file an affidavit or declaration" under penalty of perjury, stating (1) the decedent's name; (2) the date and place of decedent's death; (3) that no proceedings are pending in California for the administration of the decedent's estate; (4) either that the declarant is the decedent's successor in interest or is authorized to act on behalf of the decedent's successor in interest; and (5) that no other person has a superior right to commence the action or proceeding for the decedent. Cal. Civ. Proc. Code § 377.32(a), (b). Further, if the decedent's estate was administered, the declarant must produce a copy of the final order showing distribution of the decedent's cause of action to the successor in interest. Cal. Civ. P. Code § 377.32(a)(4).
The record before the court does not indicate that David fulfilled the requirements set forth above. Although Civil Procedure Code 377.32 is a rule of California (not federal) procedure, it seems to set a minimum threshold below which a person claiming to be a "successor in interest" should not be permitted to slip, particularly where, as here, the decedent apparently left no will and there is no estate (other than potential damages from the present lawsuit) that will be subject to probate. In California, a decedent's property is subject to administration under the Probate Code, and is "subject to the rights of beneficiaries, creditors, and other persons as provided by law." Cal. Probate Code § 7001. Thus, a personal representative or successor in interest who files a survival action for damages necessarily acts in a representative and fiduciary capacity, and any damages awarded in that survival action may be subject to claims of beneficiaries, creditors, and other persons.
Here, plaintiffs have provided no support for their claim that David is Jerry's successor in interest, or that he has the legal right to commence or continue this action on Jerry's behalf. At the hearing, counsel for plaintiffs stated that he would or could file, on David's behalf, a declaration complying with the requirements of California law. Nevertheless, as this issue was not briefed by the parties, the court finds that it is an open question whether David has standing to assert the Fourth Amendment claim on Jerry's behalf.
2. Qualified immunity
In Saucier, the Supreme Court set forth the test for qualified immunity. The district court must first determine, based on the facts taken in the light most favorable to the party asserting the injury, whether the officer's alleged conduct violates a constitutional right.Saucier, 533 U.S. at 201. In performing the initial inquiry, the court is obligated to accept plaintiff's facts as alleged, but not necessarily his application of law to the facts. Martin v. Oceanside, 360 F.3d 1078, 1082 (9th Cir. 2004).
If no constitutional violation can be established on the facts alleged, there is no necessity for further inquiries concerning qualified immunity. Saucier, 533 U.S. at 201. If, on the other hand, a favorable view of the facts indicates that a constitutional violation occurred, the court must then determine whether the right was clearly established. Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."Id. at 202. If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. Id. Plaintiff bears the burden of proving the existence of a "clearly established" right at the time of the allegedly impermissible conduct. Sorrells v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992).
If the law governing the officer's conduct was clearly established, the court must next inquire whether a reasonable state official could have believed his conduct was lawful — i.e., that it did not violate a clearly established constitutional right. Id. at 206; Jeffers, 267 F.3d at 910. The defendant assumes the burden of establishing that, even if he violated plaintiff's constitutional rights, his actions were reasonable.Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1450 (9th Cir. 1995). "[R]egardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not `clearly established' or the [official] could have reasonably believed that his particular conduct was lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).
a. Fourth Amendment claim
The question raised here is whether the act of pointing the gun at Jerry constituted excessive force under the circumstances. The constitutional right at issue is the Fourth Amendment right to be "secure . . . against unreasonable . . . seizures." U.S. Const. amend. IV. A free citizen's claim that law enforcement officials used excessive force in the course of making an arrest, an investigatory stop, or other "seizure" of his person" is properly analyzed under the Fourth Amendment's "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 394-95 (1989).
The force which was applied must be balanced against the need for that force. Id. at 396 (determining whether force is "reasonable" requires careful balancing of nature and quality of intrusion on individual's Fourth Amendment interests against countervailing governmental interests). "[I]t is the need for force which is at the heart of the Graham factors." Alexander v. City and County of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994). In addition, "[t]he `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. The court must allow for the fact that "police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Id. at 397.
Thus, the court's first inquiry is whether the facts, taken in the light most favorable to Jerry, demonstrate that the seizure was unreasonable because Officer Curtis used force that was not "`objectively reasonable' in light of the facts and circumstances confronting [him]." Robinson v. Solano County, 278 F.3d 1007, 1013 (2002) (en banc) (citing Graham, 490 U.S. at 397). Among the "facts and circumstances" that the court should consider are 1) the severity of the crime at issue; 2) whether the suspect poses an immediate threat to the safety of the officers or others; and 3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).
Plaintiffs argue that none of the factors identified by the Supreme Court in Graham, and reiterated by the Ninth Circuit inRobinson, support Officer Curtis' claim that his use of force was justified. Plaintiffs contend that the crimes at issue in the present case were minor, that Jerry posed no immediate threat, and that he was not actively resisting arrest or attempting to flee.
First, plaintiffs claim that Officer Curtis was not justified in drawing his gun and pointing it at Jerry because the crimes at issue were misdemeanors — being drunk in public and refusing to obey an officer. Officer Curtis submits that under the facts and circumstances of the case, it was objectively reasonable for him to pull out his gun and point it at Jerry. As an initial matter, he notes that he reasonably requested Jerry to exit the van. An officer making a traffic stop may order passengers to get out of a car pending completion of the stop, even where the passenger has done nothing to give police grounds for suspicion. Maryland v. Wilson, 519 U.S. 408, 415 (1997).
Officer Curtis also asserts, however, that Jerry's actions had given him adequate grounds for suspicion. He believed — based on Jerry's appearance and slurred speech, and on the smell of alcohol that emanated from the van — that Jerry was intoxicated. He argues further that it appeared Jerry was unable to care for his own safety or the safety of others by reason of being under the influence of alcohol, and was thus subject to arrest for disorderly conduct, a misdemeanor. He contends that Jerry acted strangely and made statements that indicated his intention to kill himself.
Second, plaintiffs assert that Jerry was a "mentally deranged person posing no risk to anyone other than himself" and was a "harmless" schizophrenic, and that Officer Curtis therefore had no reasonable basis upon which to draw his gun. Had Jerry not been armed, the fact that he was apparently intoxicated and that he failed to exit the van when ordered to do so might have given Officer Curtis no reason to draw his gun. But plaintiffs' argument ignores the fact that the situation was volatile, with a real potential for escalation into physical violence.
Plaintiffs maintain that Officer Curtis should have followed the instructions shouted at him by David, who by then was sitting in the patrol car, having been arrested for driving under the influence. David states in his declaration that when Officer Curtis escorted him to the rear of the vehicle for the field sobriety tests, he told Officer Curtis that Jerry suffered from paranoid schizophrenia, and that he (David) would take Jerry home if Officer Curtis would just allow them to proceed.
Officer Curtis reasonably declined to allow David and Jerry to drive the van away from the scene. He had observed signs indicating that David was under the influence of alcohol, and David subsequently performed poorly on the field sobriety tests. In addition, the PAS showed David's blood alcohol level to be beyond the legal limit for operating a motor vehicle. At that point, Officer Curtis was obligated to take steps to prevent David from putting himself, Jerry, and the public at risk by driving the van under the influence of alcohol. Officer Curtis did not reasonably have the option of "allow[ing] them to proceed," as David urged.
David also states that when he observed Officer Curtis attempt to open the passenger door of the van and attempt to prevent Jerry from rolling up the window, and then saw Officer Curtis draw his gun and point it at Jerry, he shouted at Officer Curtis and begged to be allowed to speak to Jerry "to defuse the situation." Even taking the facts as asserted by plaintiffs as true, it is not clear that Officer Curtis failed to act in an objectively reasonable manner by failing to allow an intoxicated arrestee to exit the patrol car so he could go speak to a second, knife-wielding, and probably intoxicated detainee.
Moreover, Jerry made the statements and pulled out the knife and positioned it in front of his chest well before Officer Curtis used his OC spray, and Officer Curtis used the OC spray before he drew and pointed the gun. Thus, Jerry was not reacting to any threat posed by a police officer with a gun. Although Jerry made statements that could reasonably have been interpreted as suicidal threats, the fact that he was armed, apparently intoxicated, and somewhat incoherent could have given Officer Curtis reason to fear for his own safety as well as for Jerry's. Officer Curtis' original instructions to Jerry to drop the knife and exit the van, and Officer Curtis' subsequent actions — using the OC spray and pulling his gun — were intended to prevent Jerry from mortally wounding either himself or Officer Curtis.
In addition, plaintiffs fail to explain how Officer Curtis could reasonably have been expected to distinguish between a "harmless" mentally deranged person and a dangerous mentally deranged person. Officer Curtis had no reliable information concerning the diagnosis of Jerry's mental condition — all he knew was what he was told by Jerry's intoxicated brother David, whom Officer Curtis had just arrested for driving under the influence.
Third, plaintiffs contend that Jerry was not actively resisting arrest, pointing to the fact that Jerry sat in the van, with the keys still in the ignition, during the entire time that Officer Curtis was administering the field sobriety tests to David. However, Jerry refused to exit the van when ordered to do so, rolled up the window so that Officer Curtis could not facilitate his exit from the van, and pulled out a knife after Officer Curtis ran around the van and attempted to remove the keys from the ignition. While Jerry may not have been attempting to flee the scene, he was certainly not cooperating with Officer Curtis. The situation was volatile and Jerry was acting in an unpredictable manner, and was armed with a knife.
It is true that an argument could be made that Officer Curtis used more force than was actually necessary. It is not entirely clear why he thought that aiming a gun at a man who was pointing a large knife at his own chest would achieve the goal of disarming him. The question, however, is not how much force was actually needed, but how much force a reasonable officer would perceive was necessary. Saucier, 533 U.S. at 205. The Supreme Court has reiterated that the "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene. See Graham, 490 U.S. at 396. The officers' conduct need not be the "least intrusive means," but only need to be "within that range of conduct . . . identif[ied] as reasonable." Billington v. Smith, 292 F.3d 1177, 1188-89 (9th Cir. 2002).
Although Officer Curtis' use of a gun to disarm Jerry is questionable, the court cannot find with certainty, given the totality of the circumstances, that it was "objectively unreasonable" for Officer Curtis to pull his gun and point it at Jerry in an attempt to compel him to drop the knife and exit the van. See Saucier, 533 U.S. at 205 ("If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed."). Graham, 490 U.S. at 397. "Not every push and shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment."Graham, 490 U.S. at 396.
The situation faced by Officer Curtis was unlike the situation in Robinson, where the Ninth Circuit held that a suspect's "earlier use of a weapon, that he clearly no longer carried, is insufficient to justify" pointing a gun at the suspect's head.Robinson, 278 F.3d at 1014. Unlike the present case, there were no exigent circumstances in Robinson that justified the use of the guns by the arresting officers. Officer Curtis could not leave the keys in the van, because of the risk that Jerry, who was speaking incoherently, who was unfazed by two blasts of pepper spray, and who appeared to Officer Curtis to be intoxicated, would attempt to drive off. Unable to remove the keys because Jerry had armed himself with a knife, Officer Curtis could not perform his job, which was to protect the safety of the public by ensuring that the van was not driven by a person who was legally impaired.
Even assuming, however, that a claim for excessive force could be made out on the facts alleged, Officer Curtis is entitled to qualified immunity against money damages unless a reasonable officer would have known that he violated clearly established law. Saucier, 533 U.S. at 201. The Supreme Court has emphasized that "[t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." Id. at 205. If the law does not put a reasonable officer on notice that his conduct would be clearly unlawful, "summary judgment based on qualified immunity is appropriate." Id. at 202.
The Ninth Circuit has held that the use of a weapon against someone who is helpless constitutes excessive force. See Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002). In this case, however, Jerry was not physically restrained and cannot be considered to have been "helpless." Moreover, he was armed with a large knife. It has also been established that pointing a gun at a person's head can in certain circumstances constitute excessive force. For example, the Ninth Circuit found that no reasonable officer could believe that pointing a gun at a child was reasonable during the course of a non-exigent search, and that the officer was not entitled to qualified immunity. Motley v. Parks, 383 F.3d 1058, 1071-72 (9th Cir. 2004). Similarly, the Seventh Circuit found that pointing a gun at the head of a child during a search of the child's residence constituted excessive force, and ruled that the officer was not entitled to qualified immunity despite the fact that no previous case law specifically established the unreasonableness of such an act. McDonald by McDonald v. Haskins, 966 F.2d 292, 294 (7th Cir. 1992).
The developed law with regard to pointing guns at adults is less clearly defined. In Robinson, the Ninth Circuit ruled that handcuffing a misdemeanor suspect and pointing a gun at him was excessive force where he posed no threat to officers and the crime was not serious. Robinson, 278 F.3d at 1014-15. However, the "general principle" recognized by the court in Robinson was that "pointing a gun to the head of an apparently unarmed suspect during an investigation can be a violation of the Fourth Amendment, especially where the individual poses no particular danger." Id. at 1015 (emphasis added).
Here, to defeat Officer Curtis' claim of qualified immunity, plaintiffs must show that the act of drawing the gun and pointing it at Jerry "was such a far cry from what any reasonable [officer] could have believed was legal" that Officer Curtis knew or should have known he was breaking the law. See Sorrels, 290 F.3d at 971. "It is not necessary that the alleged acts have been previously held unconstitutional, as long as the unlawfulness [of defendants' actions] was apparent in light of preexisting law." Id. at 970 (citation and quotation omitted).
There are no cases on point and there is no analogous law that the court has discovered which answers the question presented here — whether the act of drawing a gun and pointing it at an individual constitutes excessive force when that individual is an apparently intoxicated, allegedly mentally ill man, sitting in a vehicle that had been driven by another apparently intoxicated man, and when that allegedly mentally ill man has refused a lawful order to exit the vehicle, and has then pulled out a large knife and pointed it at his own chest. The court finds that Officer Curtis is entitled to qualified immunity on Jerry's Fourth Amendment claim, because it would not have been clear to a reasonable officer that the drawing and pointing of a gun under these facts and circumstances was unconstitutional.
b. Fourteenth Amendment claim
Jerry's parents, Benjamin and Lorraine Dillard, allege that Officer Curtis caused Jerry's death and deprived plaintiffs of love, society, care, comfort, and support, in violation of their Fourteenth Amendment rights. At the hearing on the present motion, the court asked counsel for both sides to clarify whether, in their view, a finding that a decedent's Fourth Amendment rights were not violated would necessarily lead to a conclusion that his parents or children cannot maintain a Fourteenth Amendment claim for loss of society and companionship. Both sides agreed that the Fourteenth Amendment claim for loss of society derived from Jerry's Fourth Amendment excessive force claim.
In Smith v. City of Fontana, 818 F.2d 1411 (9th Cir. 1987),overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999), the Ninth Circuit held that a decedent's estate could assert a Fourth Amendment claim for excessive force on the decedent's behalf, and that the decedent's children could assert a personal substantive due process claim based on the violation of their right to familial companionship and society, but could not assert a personal Fourth Amendment claim. Smith, 818 F.2d at 1417-20. The court characterized the substantive due process claim as raising a "cognizable liberty interest," with which "the state has no legitimate interest in interfering . . . through the use of excessive force," adding that "[s]uch an action [on the part of the state] constitutes the very sort of affirmative abuse of government power which the substantive protections of the due process clause are designed to prevent." Id. at 1419-20
In other words, it was the decedent's excessive force claim that gave rise to the children's substantive due process claim. The Ninth Circuit has ruled that a finding that a decedent's Fourth Amendment rights were violated does not (without more) compel the conclusion that his survivors' Fourteenth Amendment claims are valid. See Byrd v. Guess, 137 F.3d 1126, 1134 (9th Cir. 1998). The court has not, however, clearly indicated that a finding that a decedent's Fourth Amendment rights were not violated precludes the parents or children of the decedent from asserting a Fourteenth Amendment substantive due process claim.
In addition, it is not clear that the court can assume on a motion for summary judgment on qualified immunity — as opposed to a motion for summary judgment on the merits of the constitutional claims — that failure of the Fourth Amendment claim means failure of the Fourteenth Amendment claim. Thus, the court must consider whether the facts alleged show that Officer Curtis' conduct violated a constitutional right, and, if so, whether the right was clearly established.
Officer Curtis argues that the facts alleged do not show that he acted with a purpose to cause harm unrelated to the legitimate object of the arrest — and that plaintiffs therefore cannot maintain a cause of action for violation of the Fourteenth Amendment. He asserts that the appropriate standard is set forth in County of Sacramento v. Lewis, 523 U.S. 833 (1998), where the Supreme Court held that a showing of "deliberate indifference" would not suffice to support a substantive due process claim, and that the plaintiff was required to show that the defendant acted in a way that "shocked the conscience," with conduct "intended to injure in some way unjustifiable by any government interest." Id. at 849.
Plaintiffs respond that Lewis should be limited to its facts (high-speed police chases), and that the standard applicable in the present case is "deliberate indifference." Officer Curtis notes, however, that regardless of the fact that the Supreme Court's ruling in Lewis applied specifically to high-speed police pursuits, the Ninth Circuit has applied the "purpose to harm" standard in the context of gunfights. For example, inMoreland, the plaintiffs brought an action alleging violation of their substantive due process rights when police allegedly shot the wrong man in a gunfight outside a Las Vegas bar. The court concluded that the Lewis "purpose to harm" standard applied in that situation, because the officers involved in the gunfight at the bar were required to "act decisively" and "without the luxury of a second chance" to address a life-threatening situation. Moreland, 159 F.3d at 372.
The court also emphasized that standard applicable to substantive due process claims such as the one asserted here by Jerry's parents is "more stringent" and "more demanding" than the standard applied to the decedent's excessive force claim. Id. at 371 n. 4. Thus, "it may be possible for an officer's conduct to be objectively unreasonable yet still not infringe the more demanding standard that governs substantive due process claims."Id.
Following the Ninth Circuit's reasoning in Moreland, the court finds that the "purpose to harm" standard is applicable in the present case, and finds further that there is no constitutional violation under that standard. The situation that Officer Curtis found himself in was tense and rapidly changing. He stopped a vehicle that was traveling more than 15 miles over the speed limit. David, the driver of the vehicle, was intoxicated, and Jerry, the passenger in the vehicle, who had (unbeknownst to Officer Curtis) severe mental problems, was argumentative and verbally combative. Officer Curtis was compelled to perform field sobriety tests on David, accompanied by the taunts of Jerry. When Officer Curtis attempted to persuade Jerry, whom he also suspected of being intoxicated, to exit the vehicle, Jerry suddenly pulled out a knife.
Indeed, toxicology tests performed after Jerry was taken to the hospital revealed that Jerry's blood alcohol level was .22 % and that he tested positive for marijuana.
The situation quickly evolved into one that was life-threatening, and required Officer Curtis to act quickly. Jerry refused to drop the knife that he had positioned at his own chest. The key to the van remained in the vehicle. Jerry was making incomprehensible statements about "God" and killing himself. Officer Curtis had only a few minutes to assess the situation and respond to the threat presented by Jerry. Officer Curtis' conduct cannot be characterized as conduct intended to harm the decedent unrelated to a legitimate law enforcement purpose, and does not satisfy the "shocks the conscience" standard. Even if the court applies the "deliberate indifference" standard, plaintiffs still have not stated a constitutional violation.
The court finds that Officer Curtis is entitled to qualified immunity on the Fourteenth Amendment claim. There was no violation of Jerry's parents' Fourteenth Amendment rights to familial companionship, because Officer Curtis did not act with "purpose to harm" or even with "deliberate indifference." In addition, the actions he took did not cause Jerry's death. In other words, the loss of society and companionship was not caused by anything that Officer Curtis did (i.e., drawing his gun) but rather by what Jerry did (stabbing himself in the heart). The actions taken by Officer Curtis did not affect the familial relationship between Jerry and his parents, because it was not Officer Curtis who caused Jerry's loss of life.
The Ninth Circuit has indicated that "the parents and children of a person killed by law enforcement officers" may assert a Fourteenth Amendment claim based on the deprivation of their liberty interest arising out of their relationship with the decedent. Moreland, 159 F.3d at 371. The court is unaware of any authority that supports a Fourteenth Amendment substantive due process claim against a police officer where the officer has not caused the death of the decedent.
c. Monell claim
Although Officer Curtis did not move for summary judgment on the third cause of action — the failure-to-train claim — the court finds that the claim is not viable. A claim that a governmental entity failed to properly train its employees is brought as a claim against the governmental entity under Monell v. Dep't of Soc. Servs, 436 U.S. 378, 388 (1989). See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001). Here, however, although plaintiffs refer to the CHP in the FAC, they have not named the CHP as a defendant. Thus, plaintiffs have not stated a claim under Monell.
Moreover, because the CHP is a state agency, see Cal. Gov't Code § 11000, and the State of California has not consented to suit, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), both the State and the CHP enjoy sovereign immunity and cannot be sued under § 1983, regardless of the nature of the relief sought. See Welch v. Texas Dept. of Highways and Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984).
More importantly, because no constitutional violation occurred, there can be no liability as a matter of law under Monell. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986);Sweaney v. Ada County, 119 F.3d 1385, 1392 (9th Cir. 1997). Thus, the court finds that the third cause of action must be dismissed.
CONCLUSION
The events underlying this action produced an outcome that was tragic for all concerned — from the Dillards, who must live with the loss of their son and brother; to Officer Curtis, who was standing next to the van and observed Jerry kill himself; to David Ell, the 16-year-old CHP Explorer, who witnessed a routine traffic stop that ended in death.
Nevertheless, the court finds that Officer Curtis is entitled to qualified immunity from suit for the violation of Jerry's Fourth Amendment rights and for the Fourteenth Amendment substantive due process claim asserted by Benjamin and Lorraine Dillard. Accordingly, Officer Curtis' motion for summary judgment on the first and second causes of action is GRANTED. In addition, the court finds that the third cause of action must be DISMISSED.
IT IS SO ORDERED.