Duenez v. City of Manteca

Full title: WHITNEY DUENEZ, individually and as successor-in-interest for Decedent…

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Dec 20, 2013

No. CIV. S-11-1820 LKK/KJN (E.D. Cal. Dec. 20, 2013)

Opinion

No. CIV. S-11-1820 LKK/KJN

12-20-2013

WHITNEY DUENEZ, individually and as successor-in-interest for Decedent ERNESTO DUENEZ, JR.; D.D., a minor, by and through his guardian ad litem, WHITNEY DUENEZ; ROSEMARY DUENEZ, individually; and ERNESTO DUENEZ, SR., individually, Plaintiffs, v. CITY OF MANTECA, a municipal corporation; DAVID BRICKER, in his capacity as Chief of Police for the CITY OF MANTECA; (FNU) AGUILAR, individually and in his official capacity as a police officer for the CITY OF MANTECA; and DOES 1-100, inclusive, Defendants.

LAWRENCES K. KARLTON

ORDER

I. BACKGROUND

On June 8, 2011, defendant John Moody, a Manteca police officer, shot and killed Ernesto Duenez, Jr. Complaint 55 1 Answer at 3 lines 4-5 and 20-22. The events leading to the shooting, the shooting itself, and subsequent events, were captured on a "dash-cam" video taken from Officer Moody's car. Complaint ¶ 1.¹

1 Defendants object to plaintiffs' submission of the dash-cam videos from Moody's car, asserting that it is "not authenticated," and is "hearsay." Defendants' Objection to Evidence in Opposition to Plaintiffs' Motion for Summary Judgment ("Defendants' Objections") (ECF No. 89-3 at p.2 lines 3-6. It is not necessary to resolve this puzzling objection, since the defendants have also submitted the video, and it is not objected to by plaintiffs.

This lawsuit is brought by decedent's widow, Whitney Duenez, his son, D.D. (Whitney Duenez is D.D.'s guardian ad litem), and his parents, Ernesto and Rosemary Duenez, against Moody, the City of Manteca and David Bricker, the Chief of Police.

The Complaint contains eight (8) federal and state claims. The federal claims allege violations of decedent's and plaintiffs' constitutional rights under the Fourth and Fourteenth Amendments to be free from governmental use of excessive force resulting in death, denial of medical attention and denial of rights to familial relationships. The state claims allege negligent and intentional infliction of emotional distress, wrongful death and violation of Cal. Civ. Code § 52.1.

Both sides move for summary judgment, each asserting that the video conclusively shows that Moody was, or was not, justified in shooting and killing the decedent. In addition, plaintiffs move to seal certain documents, and to re-open discovery so that they can depose defendants' counsel.

For the reasons set forth below, defendants' motion for summary judgment and for partial summary judgment will be granted in part and denied in part. Plaintiffs' motions for summary judgment, to seal documents and to re-open discovery will be denied in their entireties.

II. UNDISPUTED FACTS

1. Initial report on decedent.

On June 8, 2011, Officer Armen Avakian (not a defendant), responded to a report of suspicious activity on Ribier Court, where decedent's wife, Whitney Duenez, lived, according to the landlady. Plaintiffs' Statement of Undisputed Facts ("PSUF") (ECF No. 75-1) ¶ 1.² According to the landlady, decedent was in the apartment, and he and Whitney were not getting along at that time. Id.

2 Unless otherwise noted, the facts cited in the PSUF are "Undisputed for purposes of this motion" by defendants. See Defendants' Opposition to Plaintiffs' Statement of Undisputed Facts ("Def. Opp. To PSUF")(ECF No. 89-2). It appears that defendants are permitted to limit their concessions in this way. See Fed. R. Civ. P. 56(e)(2) ("If a party ... fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion").

Avakian ran a warrant check on decedent, which indicated that he was "armed and dangerous," and that he was wanted on a "parole hold" meaning, apparently, that his parole had been revoked. PSUF ¶ 3; DSUF ¶¶ 25-26. Avakian spoke to decedent's parole officer and learned that the "parole hold" resulted from decedent having "'peed dirty,'" and his not being in contact with his parole officer. PSUF ¶ 4. Avakian also learned that the "armed and dangerous" label came (at least in part), from the parole officer's having received information that decedent carried a small firearm in his butt-cheeks. PSUF ¶ 5. Avakian learned from Officer Ranch Johnson (not a defendant) that decedent had reportedly been involved in a recent shooting. PSUF ¶ 6. Finally, Avakian learned that Duenez could sometimes be found at a residence on Flores Court. PSUF ¶ 7. Avakian passed this information on to Moody and others on the incoming work shift. PSUF ¶ 8.

At some point, Officer Mark Rangel (not a defendant) responded to a call from a civilian named Michael Henry that decedent and Whitney had recently left a residence on Pillsbury Road where they had been engaged in a shouting match. PSUF ¶ 9. Henry later advised the police that decedent had left the Pillsbury Road residence, in the back of a blue pickup truck, and that decedent had a "throwing knife" with him. PSUF ¶ 10-11.³ Henry advised the police that decedent was in the truck with a man (his uncle) and a woman, and that they had left in the truck with decedent willingly. PSUF ¶ 12.

3 Plaintiff asserts that decedent was "sitting in the back" of the truck. Defendants point out that the testimony plaintiff cites to for this assertion states that decedent "was hiding in the back" of the truck. See May 13, 2013 Deposition of Officer Mark Rangel ("Rangel Depo.") (ECF No. 76-3) at 10 (Exhibit A to August 12, 2013 Nisenbaum Declaration, ECF No. 76).

2. Officer Moody.

Defendant Moody has been a "sworn police officer" with the Manteca Police Department since 2000. Defendants' Separate Statement of Undisputed Facts ("DSUF") (ECF No. 80-2) ¶ 2.⁴ Up until the shooting at issue here, the police department had received no complaints about Moody, concerning use of force, provision of medical assistance, truthfulness or concealment of misbehavior. DSUF ¶¶ 3-4. Moody has never been disciplined based upon any claim of excessive force, providing medical care, truthfulness or "concealment" of misbehavior. DSUF ¶ 5.⁵ During the entire time Moody was employed by MPD, he was involved in only one other incident involving his shooting a firearm in the line of duty. DSUF ¶ 6. The MPD examined that incident and determined that Moody's actions were justified and proper. Id.

4 Unless otherwise noted, the facts cited in the DSUF are "Undisputed" by plaintiffs. See Plaintiffs' Objections to Defendants' Separate Statement of Undisputed Facts ("Objections") (ECF No. 92). Plaintiffs failed to comply with the Local Rules of this court in responding to the DSUF. See E.D. Cal. R. 260(b). The Objections failed to "reproduce the itemized facts" in the DSUF (this is normally done in chart form), to which plaintiffs were responding. In addition, the Objections failed, in two instances (Nos. 32 & 33), to provide a "citation to the particular portions" of the pleadings or evidence upon which the denial was based. Plaintiffs and their counsel are cautioned that the court expects compliance with its local rules, and that failure to comply could result in the imposition of sanctions.

5 Defendants support this fact with testimony from defendant Bricker: "Office MOODY ... received no discipline concerning his use of force while at the Department. Nor did he receive ... discipline for any allegations that he was untruthful, or that he 'covered up' his use of force or for providing medical care other than in the present action." Declaration of David Bricker ("Bricker Decl.") (ECF No. 82-35) at 2. Plaintiffs "dispute" this fact, but offer no evidence to put it genuinely in dispute. Instead, citing a "confidential" portion of Bricker's deposition testimony, they argue that a witness to an earlier shooting (in which Moody shot out the tire of a car), "criticized" Moody for shooting at the car, and refer to two persons interviewed about the shooting as "complaining" witnesses. Objections ¶ 5. Even if there were a proper evidentiary basis for these arguments (and there is not, as plaintiffs' assertions are based upon, at best, hearsay within hearsay within hearsay: deposing counsel's questions about a newspaper account of what these purported witnesses had said to a reporter), they do not even attempt to dispute that Moody was not "disciplined."

3. Moody stakes out 245 Flores Court.

Defendant Moody waited near 245 Flores Court for decedent to arrive. PSUF ¶ 14. When the pickup truck arrived, Moody "radioed dispatch," and immediately pursued the truck. PSUF ¶ 15. When the truck pulled into the driveway, Moody pulled his car up behind it, blocking the truck. PSUF ¶ 17; Moody saw that Duenez was in the back seat of the pickup truck. Id.

4. The confrontation begins.

Moody exited his car and began issuing commands to decedent. PSUF ¶ 18; Bricker Decl. Exh. A ("Exh. A") (ECF No. 80-35) (video of the incident). Upon exiting his car, Moody ordered decedent not to move. Id. He ordered decedent to show his hands or put his hands up. Id. While this was happening, Moody initially drew his weapon, then holstered it, then drew it again. PSUF ¶ 18; Exh. A. Meanwhile, decedent was exiting the pickup truck, or attempting to exit it, on the passenger side. Id. ¶¶ 18 & 19; Exh. A. As he was exiting the truck, decedent appears to have briefly had an object in his right hand. PSUF ¶ 20; Exh. A.⁶

6 Plaintiffs assert that tweezers later found on the scene are consistent with the object seen in the video. PSUF ¶ 20. Defendants say that decedent had a knife in his hand, citing Moody's deposition testimony that decedent had "a large knife, chrome or silver blade" in his right hand. See Moody Depo. at 26.

5. Moody shoots decedent to death.

Moody ordered decedent to "drop the knife." PSUF ¶ 21. Immediately upon issuing this order, Moody started shooting decedent.⁷ PSUF ¶ 21; Exh A. Moody fired thirteen (13) shots at decedent, killing him. PSUF ¶ 23; Exh. A; Answer at p.2, lines 20-22.⁸ The final shots were fired after decedent had fallen to the ground. PSUF ¶ 22; Exh. A.⁹ After he stopped shooting, Moody radioed in that shots had been fired, causing the police dispatcher to immediately summon emergency medical help to the scene. DSUF ¶ 15; Declaration of John Moody ("Moody Decl.") (ECF No. 80-36) at 5. Moody did not render any medical assistance to decedent as he lay dying, nor did he do anything after the shooting to medically injure the decedent.¹⁰ DSUF ¶ 22-23; Moody Decl. at 5.

7 Plaintiffs say Moody began shooting "almost simultaneously" with this command. PSUF ¶ 21. Defendants say Moody began shooting after this command, citing the video. Defendants' Opposition to PSUF ¶ 21.

8 Plaintiffs say Moody shot decedent thirteen times. PSUF ¶ 23. However, the evidence plaintiffs cite only indicates that Moody shot at decedent thirteen times, but does not indicate that decedent was hit thirteen times. See Moody Depo. at 37.

9 Plaintiffs say decedent was "already shot and on the ground." PSUF ¶ 22. Defendants say decedent was "curling up off the ground towards the open doorway of the pickup truck," citing the video. Defendants' Opposition to PSUF ¶ 22.

10 Plaintiffs say Moody had a legal obligation to render aid. Defendants say he had no such legal obligation, and in any event, there was nothing Moody could have done.

6. Whitney Duenez arrives.

Upon the firing of the final shots, Whitney Duenez arrived on the scene. PSUF ¶ 25.¹¹ The police on the scene ordered Whitney to "move back." PSUF ¶ 27. Officer Rangel (not a defendant) pulled Whitney away from the scene, handcuffed her, and placed her in a patrol car. PSUF ¶ 29.¹²

11 Plaintiffs say Whitney ran screaming to the scene "[s]imultaneous with the last shots." PSUF ¶ 25. Defendants say the video indicates she arrived "several seconds after the last shot was fired," and was not screaming. Def. Opp. to PSUF ¶ 25.

12 Both sides agree that Rangel wanted to avoid contaminating the scene. Defendants assert that he also pulled her away because she was disobeying his orders,

7. Moody handcuffs and searches decedent.

After the shooting, Moody tried to pull the decedent away from the truck, but was unable to do so because, as he discovered, decedent's foot was entangled in the seat belt. PSUF ¶ 30. An officer (either Moody or another officer), then cut the seatbelt to release decedent's foot, and Moody "reasonably and properly" pulled decedent away from the truck "for proper safety reasons." DSUF ¶ 16;¹³ PSUF ¶¶ 31 & 32. Moody then "flipped" the decedent over and "properly handcuffed" the decedent "for proper safety reasons." DSUF ¶ 17;¹⁴ PSUF ¶ 33. Decedent was still alive when he was pulled away from the truck, flipped over and handcuffed. PSUF ¶ 33. Moody then searched the decedent for weapons, including a search of decedent's buttocks area. PSUF ¶ 34.¹⁵ The search of decedent's body and clothing did not produce a knife or a gun, or any other weapon. PSUF ¶ 35.

13 Plaintiff says "undisputed" to defendants' "reasonably and properly" characterizations and "safety reasons" explanation.

14 Plaintiff again says "undisputed" to defendants' "reasonably and properly" characterizations and "safety reasons" explanation.

15 Plaintiffs characterize this as a strip search because, they assert, Moody pulled decedent's pants or underwear down. Defendants say it was not a strip search because Moody only lifted decedent's underwear briefly and glanced at the buttocks area. The court notes the following language from the Supreme Court, referring to the search of a person who, unlike the mortally wounded decedent, is still conscious and able to follow directions:

[S]ome cases of this Court refer to a "strip search." The term is imprecise. It may refer simply to the instruction to remove clothing while an officer observes from a distance of, say, five feet or more; it may mean a visual inspection from a closer, more uncomfortable distance; it may include directing detainees to shake their heads or to run their hands through their hair to dislodge what might be hidden there; or it may involve instructions to raise arms, to display foot insteps, to expose the back of the ears, to move or spread the buttocks or genital areas, or to cough in a squatting position.

From the time of the search until medical help arrived, the scene was sufficiently secure that medical assistance could have been given to the decedent. PSUF ¶ 38. During that time, neither Moody nor any other police officer at the scene provided any medical assistance to the decedent as he lay dying. PSUF ¶ 38. However, Moody did eventually request that someone retrieve a trauma kit from his patrol car, and he cut off decedent's shirt. PSUF ¶ 37. However, paramedics arrived and Moody did not take any further action regarding the decedent. PSUF ¶ 37; Exh. A.

8. The on-scene investigation.

Officer Ranch Johnson (not a defendant), looked for evidence at the scene of the shooting. PSUF ¶ 39. He found a "black clip-on knife" holder attached to decedent's belt and a knife in the bed of the truck on the "driver's side tailgate." Id. He also found black tweezers on the ground near the passenger's side of the truck. Id. The tweezers did not belong to any of the officers at the scene. PSUF ¶ 41. In addition, Johnson found a glass drug pipe on the lawn and shell casings scattered about. Id.

9. Defendant David Bricker, Chief of Police.

Defendant Bricker was the Chief of Police at the time of the shooting; he is now retired. PSUF ¶ 42; DSUF ¶ 1. Bricker went to the scene and transported Moody back to the police station. PSUF ¶ 43. Bricker watched the dash cam video of the shooting the next morning. PSUF ¶ 45. Before the DA's investigation was completed, but after getting a preliminary view from the DA investigator, Bricker formed a "preliminary opinion" that the shooting was justified, and was within police department policy. He emailed his view to all police department staff. PSUF ¶ 44. Bricker also publicly announced to the press, before the DA's investigation was completed, that the shooting was justified, and that the police department stood behind Moody. PSUF ¶¶ 47-48; DSUF ¶ 12-13.

10. The DA's investigation.

The San Joaquin County District Attorney's Office (not a defendant) conducted an investigation into the shooting. Accord, PSUF ¶ 48. The investigation was properly conducted under a protocol that ensured that Chief Bricker would not be involved. DSUF ¶ 9 & 10. This investigation concluded that the shooting was justified, and the City was so notified. DSUF ¶ 28. The police department then conducted a "shooting review panel," and determined that Moody "acted properly during this incident." DSUF ¶ 30.

Nick Obligacion (not a defendant) became Chief of Police while the investigation was still on-going. He also concluded that the shooting was justified and within police department policies. PSUF ¶¶ 50 & 51.

11. Officer Moody - training and qualifications.

The State of California operates the Commission on Peace Officer Standards and Training ("POST"), which specifies the training requirement for peace officers, including Moody, throughout the state. Bricker Decl. at 2. In order for an officer to go on duty as a peace officer, that officer must meet POST required firearm qualifications or requalifications for his service weapons. Id., at 3. Under the City's testing methods, n officer is required to achieve a passing score on one of up to three "attempts" in order to pass the requalification. Id. Receiving a non-passing score on at "attempt" is not a failure of the requalification attempt, however flunking all three attempts "constitutes a failure of the requalification exam." Id.

According to an apparently official document discussed during Bricker's "confidential" deposition, Moody failed a firearm requalification on or about May 12, 2008. Confidential Portion of Bricker Depo. at 66. The deposition discussion is not entirely clear about what happened, but from the language of the document - "Test 1, fail. Remedial, pass." - the court infers that Moody flunked all three attempts, and later passed in a remedial exam. On December 7, 2010, Moody again failed the firearms exam by flunking all three attempts. Confidential Portion of Bricker Depo. at 73. It appears that once again Moody eventually passed the requalification. See id. On February 9, 2011 Moody again failed the firearm requalification exam by flunking all three attempts, "during a nighttime shooting scenario." Bricker Decl. at 3-4.¹⁶ However, Moody was able to pass the exam on his next attempt the next day, after an apparent defect in the weapon was corrected. Id.

16 Bricker declares that Moody "only failed one firearms skills test," which occurred on February 9, 2011. Bricker Decl. at 3. However, he offers no explanation for his prior testimony discussing Moody's apparent failures on or about May 12, 2008, and on December 7, 2010.

12. Policy.

Police department policy is that a police officer must qualify and then periodically re-qualify on his firearm in order to carry that firearm on duty. See Confidential Bricker Depo. at 78. If an officer failed a requalification exam (that is, flunked all three attempts), and then flunked the remedial exam (that is, again flunked all three attempts), police department policy would be to notify Bricker, who would then take action to take the officer's gun away from him. See Confidential Bricker Depo. at 64-65.

Short of being unable to pass on the remedial exam, if an officer has "a continuing pattern of failing the first time and passing on the remedials," then policy is to "reassign them to additional firearms training." Confidential Bricker Depo at 68.

III. STANDARDS

A. Summary Judgment.

Summary judgment is appropriate "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); Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (it is the movant's burden "to demonstrate that there is 'no genuine issue as to any material fact' and that the movant is 'entitled to judgment as a matter of law'"); Walls v. Central Contra Costa Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (per curiam) (same).

Consequently, "[s]ummary judgment must be denied" if the court "determines that a 'genuine dispute as to [a] material fact' precludes immediate entry of judgment as a matter of law." Ortiz v. Jordan, 562 U.S. __, 131 S. Ct. 884, 891 (2011), quoting Fed. R. Civ. P. 56(a); Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (en banc) (same), cert. denied, 132 S. Ct. 1566 (2012).

Under summary judgment practice, the moving party bears the initial responsibility of informing the district court of the basis for its motion, and "citing to particular parts of the materials in the record," Fed. R. Civ. P. 56(c)(1)(A), that show "that a fact cannot be ... disputed." Fed. R. Civ. P. 56(c)(1); Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010) ("The moving party initially bears the burden of proving the absence of a genuine issue of material fact") (citing Celotex v. Catrett, 477 U.S. 317, 323 (1986)).

A wrinkle arises when the non-moving party will bear the burden of proof at trial. In that case, "the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Oracle Corp., 627 F.3d at 387.

If the moving party meets its initial responsibility, the burden then shifts to the non-moving party to establish the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Oracle Corp., 627 F.3d at 387 (where the moving party meets its burden, "the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial"). In doing so, the non-moving party may not rely upon the denials of its pleadings, but must tender evidence of specific facts in the form of affidavits and/or other admissible materials in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c)(1)(A).

"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls, 653 F.3d at 966. Because the court only considers inferences "supported by the evidence," it is the non-moving party's obligation to produce a factual predicate as a basis for such inferences. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586-87 (citations omitted).

B. Summary Judgment in the Video Age.

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts. Fed. Rule Civ. Proc. 56(c). ... When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

Scott v. Harris, 550 U.S. 372, 380-381 (2007) (granting defendant's motion for summary judgment, and holding that defendant's action in forcing the plaintiff - a fleeing suspect - off the road, rendering him a quadriplegic, was reasonable in light of the videotape showing the danger the suspect posed to the public, because no reasonable jury could have found that defendant's actions were unreasonable).

IV. ANALYSIS - STANDING

All defendants move for summary judgment against all plaintiffs on all claims. In the alternative, they seek partial summary judgment.

In the First Cause of Action ("Claim 1"), Whitney Duenez and D.D. assert a claim for "Wrongful Death 42 U.S.C. Section 1983."¹⁷ Plaintiffs have never been clear about whether their first claim is a state claim for "wrongful death," or a federal claim under 42 U.S.C. § 1983. However, the court has previously interpreted it to be a federal claim under Section 1983, in which plaintiffs allege that decedent's death was wrongful because it violated decedent's rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. See ECF No. 35 at 22-23. Moreover, having amended their original complaint, plaintiffs now specifically assert a state claim for wrongful death in their Seventh Cause of Action ("Claim 7") ("Negligence - Wrongful Death"). Accordingly, the court reconfirms that Claim 1 contains federal claims under 42 U.S.C. § 1983 only, and that it does not assert any state claims. In addition, the court construes Claim 1 as asserting survival claims, as they involve rights that are personal to the decedent. ¹⁸

17 Defendants previously moved to dismiss this claim, asserting that there is no federal claim for "wrongful death." ECF No. 27 at 10. The motion was denied because the claim was a federal claim alleging excessive force and denial of the right to medical care under the Fourth and Fourteenth Amendments and Section 1983. ECF No. 35.

18 The original complaint asserted that all plaintiffs and decedent were deprived of their constitutional rights to be free from unreasonable searches and seizures by the shooting and killing of decedent. See ECF No. 1 ¶ 32. The court granted defendants' motion to dismiss this claim in part, but permitted the claim to proceed as brought by decedent's widow, as she was the only person alleged to be his successor-in-interest. ECF No. 21 at 14-15 ("only Whitney Duenez may assert a claim for violation of the decedent's Fourth Amendment rights"). The court dismissed the claim as to all other plaintiffs. Id.

Defendants move to dismiss Claim 1 because (1) D.D., who is not alleged to be decedent's personal representative or successor in interest has no standing to bring a survivor claim, and (2) the claim duplicates the survival claim brought by Whitney Duenez in the fourth claim.

A. D.D.

Claim 1 is a federal Section 1983 claim arising from two alleged constitutional violations.

"In § 1983 actions, ... the survivors of an individual killed as a result of an officer's excessive use of force may assert a Fourth Amendment claim on that individual's behalf if the relevant state's law authorizes a survival action. 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 that state's requirements for bringing a survival action." Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998) (internal citation omitted).

Hayes v. County of San Diego, __ F.3d __, 2013 WL 6224281 at *2, 2013 U.S. App. LEXIS 23939 (9th Cir. 2013).

In California, with exceptions not asserted to apply here, "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. Code Civ. P. § 377.20. Further, "[a] cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest . and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest." Cal. Code Civ. P. § 377.30. The action brought by the successor in interest to a decedent pursuant to Section 377.30 is a "survival" claim. Adams v. Superior Court, 196 Cal. App. 4th 71, 78-79 (2nd Dist. 2011) ("[s]urvival causes of action are governed by section 377.30). Unlike a wrongful death claim, "'the survival statutes do not create a cause of action but merely prevent the abatement of the decedent's cause of action and provide for its enforcement by the decedent's personal representative or successor in interest.'" Id. (quoting San Diego Gas & Electric Co. v. Superior Court, 14 6 Cal. App. 4th 1545, 1553 (4th Dist. 2007)).

Therefore, D.D. has standing to assert this claim as a survival claim if he is a successor in interest to the decedent. The court dismissed D.D.'s claim in the original complaint, with leave to amend, because there was no allegation that he was a successor in interest, and because none of the statutory requirements for making D.D. a successor in interest were apparent. ECF No. 21 at 14 & n.3; see Cal. Civ. Proc. § 377.32. Plaintiffs have now submitted a declaration from Whitney Duenez establishing that she and D.D. have fulfilled the legal requirements for making them both the successors in interest to the decedent. ECF No. 66.¹⁹ Inexplicably, however, the amended Complaint still does not allege that D.D. is a successor in interest. Plaintiffs have nevertheless asserted that they are willing to amend the complaint to allege that D.D. is suing as a co-successor in interest. Accordingly, notwithstanding the plaintiffs' strange way of addressing this issue, the court will construe Claim 1 by D.D. to be a survival action. D.D. has standing to bring this survival action, as it is undisputed at this point that he is a successor in interest to his father's estate.

19 Defendants have not challenged that declaration.

B. Whitney Duenez.

Defendants seek summary judgment against Whitney Duenez on Claim 1, arguing that the claim duplicates the Fourth Cause of Action ("Claim 4"), which is expressly labeled as a Section 1983 survival claim. Plaintiffs argue that the two claims are "distinct," but their argument is unintelligible on this point. Among other problems, plaintiffs use the language of "wrongful death" and "survival" claims interchangeably. See ECF No. 97 at 15 (referring to the first claim as a "Wrongful Death" claim for damages decedent could have sued for "had he survived" the incident). However, these terms refer to entirely different claims. See Hayes, 2013 WL 6224281 at *3 (wrongful death claim is "based on personal injuries resulting from the death of another," whereas "survival actions ... are based on injuries incurred by the decedent").

Indeed, instead of distinguishing the two claims, plaintiffs' arguments simply confirm that the two claims are both survival claims, even though the first claim does not contain the language of a survival claim. According to plaintiffs, the first claim is for "Fourth and Fourteenth Amendment violations the Decedent Duenez suffered and damages for which he would have been entitled to recover had he survived." ECF No. 97 at 15. That is a "survival claim" under California law. The fourth claim is for "Fourth and Fourteenth Amendment violations that Decedent Duenez suffered for damages that he is entitled to which survive his death." That is also a "survival claim" under California law. Both survival claims are brought under 42 U.S.C. § 1983 against Moody, for violations of the Fourth and Fourteenth Amendments to the U.S. Constitution. Both are brought by the successors in interest to the decedent.

What is distinct about the claims is that Whitney Duenez's Claim 4 contains a survival Due Process claim for deprivation of familial relationships, which is missing from Claim 1.²⁰ Whitney Duenez's survival Fourth Amendment claim of Claim 1 does duplicate her survival Fourth Amendment claim of Claim 4, however, and so that claim will be dismissed from Claim 1.

20 However, as this court has previously held,

[a]llowing a decedent, through his estate, to sue for his own lost relationships with family members based on his death, and not the death of another family member during his life, violates common sense. Cf. Crumpton v. Gates, 947 F.2d 1418, 1422 (9th Cir. 1991)
("Assume parent and child were run over and killed by a driver who was at fault. While both estates could sue for wrongful death, neither could make out a claim for loss of familial companionship, for neither would appreciate the loss of the other.") (dicta).

ECF No. 35 at 23-24. Accordingly, the court will sua sponte dismiss the portion of the Fourth Cause of Action which asserts a survival Section 1983 claim for decedent's loss of familial relationships.

V. QUALIFIED IMMUNITY

A. Claims 1 and 4 - Fourth Amendment Claims Based Upon Moody's Shooting of Decedent.

The Complaint's first and fourth claims assert Fourth Amendment survival claims against Moody arising from Moody's actions in shooting and killing the decedent. Moody argues that he is entitled to qualified immunity on those claims because the video shows beyond reasonable dispute that "a reasonable officer in his position, facing a knife-wielding suspect, could have believed that the use of deadly force was reasonably necessary." ECF No. 80-1 at 35-36. The court notes that plaintiffs assert that they are entitled to summary judgment on these claims because the video of the encounter shows beyond reasonable dispute that Moody used excessive deadly force against the unarmed, non-dangerous decedent, an assertion addressed below.

Plaintiffs are correct that a reasonable jury could view the video as they describe it. Moody is correct that a reasonable jury could view the video as he describes it. Accordingly, summary judgment must be denied to both, and the matter must be submitted to the jury.

1. Fourth Amendment - excessive force.

The Fourth Amendment forbids a police officer from seizing "an unarmed, nondangerous suspect by shooting him dead." Tennessee v. Garner, 471 U.S. 1, 11 (1985).²¹ Viewing the evidence, especially the video, in the light most favorable to plaintiffs, a reasonable jury could conclude that Moody seized the decedent, a visibly unarmed, non-dangerous civilian, by shooting him dead. See Exh. A. At a minimum, a reasonable jury could find that Moody's continued shooting of decedent, even after he had crumpled to the ground, was an excessive use of force.

21 "Whenever an officer restrains the freedom of a person to walk away, he has seized that person. While it is not always clear just when minimal police interference becomes a seizure, there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Garner, 471 U.S. at 7 (citations omitted).

2. Qualified immunity.

"The doctrine of qualified immunity protects 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.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity "gives government officials breathing room to make reasonable but mistaken judgments," and "protects 'all but the plainly incompetent or those who knowingly violate the law.'" Ashcroft v. al-Kidd, 563 U.S. ----, ----, 131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action, assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citation omitted).

Messerschmidt v. Millender, 565 U.S. __, 132 S. Ct. 1235, 1244-45 (2012).

Because Moody is sued for conduct he undertook while in the line of duty, this court's inquiry into his claim of qualified immunity must balance two competing interests, namely, "'the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably,'" but also, "'the need to hold public officials accountable when they exercise power irresponsibly.'" Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1168 (9th Cir. 2013) (quoting Pearson, 555 U.S. at 231).

This court applies a two-part test to determine whether this case is about the former, a reasonable exercise of power, or the latter, an irresponsible exercise of power. Keeping in mind that this is a summary judgment motion, the court must decide in the first step whether, viewing the facts in the light most favorable to plaintiffs, those facts demonstrate that Moody's conduct "violated one or more of the plaintiffs' constitutional rights." Johnson, 724 F.3d at 1168 (citing Pearson, 555 U.S. at 236).²² In the second step, the court must decide "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Pearson, 555 U.S. at 232. Put another way, this court, understanding that a "reasonable officer avoids committing acts that have been clearly established as unconstitutional," asks whether "the reasonable officer also would have committed the act that the plaintiffs contend is unconstitutional." Johnson, 724 F.3d at 1168. Moody is entitled to qualified immunity unless his conduct "violated a clearly established constitutional right." Pearson, 555 U.S. at 232.

22 Although the Supreme Court previously mandated that this be the "first" step, Saucier v. Katz, 533 U.S. 194 (2001), it has since retreated from that view, leaving it up to the district court to decide which step to consider first. Pearson, 555 U.S. at 236 ("we now hold that the Saucier protocol should not be regarded as mandatory in all cases," although "we continue to recognize that it is often beneficial"); Johnson, 724 F.3d at 1168.

Accordingly, even though a reasonable jury could find that Moody violated decedent's Fourth Amendment right to be free from the official use of deadly force, as discussed above, Moody can still claim qualified immunity if the right was not "clearly established" at the time of the shooting.

The court finds that it was clearly established at the time of the shooting that it was a Fourth Amendment violation to seize an unarmed, non-dangerous civilian by shooting him dead. See Garner, 471 U.S. at 11; Torres v. City of Madera, 648 F.3d 1119, 1128 (9th Cir. 2011) ("few things in our case law are as clearly established as the principle that an officer may not "seize an unarmed, nondangerous suspect by shooting him dead" in the absence of "probable cause to believe that the [fleeing] suspect poses a threat of serious physical harm, either to the officer or to others"), cert. denied, 565 U.S. __, 132 S. Ct. 1032 (2012).

Moody's 15-line qualified immunity argument fairly begs not to be taken seriously. It simply asserts facts that might exonerate Moody, without reference to any actual evidence adduced in the case. Moody argues, specifically, that any reasonable officer would have shot decedent because decedent was a "knife-wielding" suspect, who was "waving a knife er[r]atically." ECF No. 35-36. Moody does not identify any place in his Separate Statement of Undisputed Facts (ECF No. 80-2) that even asserts that the decedent was in possession of a knife when he exited the truck, or was "wielding" a knife at that time, much less that decedent was waving it "erratically," when Moody shot him. To the contrary, the video of the shooting shows that there may be something briefly in decedent's hand, but it is not clear beyond reasonable dispute that it is a knife, or a weapon of any kind. See Exh. A. The video certainly does not show the decedent waving a knife erratically. To the contrary, the video shows conclusively that the decedent did not wave any knife (or whatever it was that briefly appeared in his hand), erratically or in a threatening manner.²³ Accordingly, a reasonable jury could find that Moody violated the decedent's clearly established Fourth Amendment rights by seizing an unarmed, non-dangerous civilian by shooting him dead.

23 In any event, the mere possession of a knife by the decedent, without more, is not enough to conclusively render the use of deadly force "reasonable." Rather, the "most important" factor in determining the reasonableness of the use of deadly force is whether the decedent posed an "immediate threat" to Moody's safety, or the safety of others. Glenn v. Washington County, 673 F.3d 864, 872 (9th Cir. 2011) (in concluding that the decedent (Lukus) was a danger, "the district court relied primarily on Lukus' possession of a knife." This was error, because "although there is no question this is an important consideration, it too is not dispositive").

The court accordingly will deny Moody's motion for summary judgment on the survival claims of Claims 1 and 4, asserting Fourth Amendment violations arising from shooting the decedent.

B. Claim 1 - Qualified Immunity for Not Personally Providing Medical Care.

The Complaint alleges that after the shooting, and after the scene had been secured, neither Moody nor any other police officer present personally gave the decedent any medical care. Plaintiffs assert that this violated decedent's Fourth Amendment and Due Process rights to medical care.

However, it is undisputed that after the shooting, "emergency medical care was immediately summoned." DSUF ¶ 19.²⁴ Defendants argue that immediately calling for medical assistance is all the constitution requires after they have shot someone. Plaintiffs argue that Moody had a constitutional duty to personally render assistance to decedent after shooting him.

24 Plaintiffs say this is "Disputed," citing the deposition testimony of John J. Ryan. Plaintiff's Objections to DSUF (ECF No. 92) ¶ 19. However, Ryan's testimony confirms that medical aid was summoned immediately. Ryan Depo. (ECF No. 98-4) at 22. Ryan takes issue with the police failure to personally render aid to the decedent. Accordingly, what is disputed in the full statement (DSUF ¶ 19), is whether the officers on the scene "properly" did nothing other than wait for medical assistance to arrive.

Moody is entitled to qualified immunity on this claim. In Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir. 1986), the police officers mortally wounded a suspect by applying a "choke hold" in the process of arresting him. After subduing the suspect, the police drove him to the hospital. After arriving at the hospital, the officers "had difficulty finding a pulse." Although the officers were trained in CPR, they did not use it to save the suspect. Instead, they took him to the jail ward on the thirteenth floor of the hospital. Despite the medical staff's subsequent use of CPR, the suspect was pronounced dead later that morning. The Ninth Circuit was clear that taking the mortally wounded suspect to the hospital and up to the jail ward was all the constitution required:

The due process clause requires responsible governments and their agents to secure medical care for persons who have been injured while in police custody. We have found no authority suggesting that the due process clause establishes an affirmative duty on the part of police officers to render CPR in any and all circumstances. Due process requires that police officers seek the necessary medical attention for a detainee when he or she has been injured while being apprehended by either promptly summoning the necessary medical help or by taking the injured detainee to a hospital.

Maddox, 792 F.2d at 1415 (emphasis added); accord, City of Revere v. Massachusetts General Hosp., 463 U.S. 239, 244-245 (1983) (although "[t]he Due Process Clause ... does require the responsible government or governmental agency to provide medical care to persons . who have been injured while being apprehended by the police," the government "fulfilled its constitutional obligation by seeing that [the suspect] was taken promptly to a hospital that provided the treatment necessary for his injury"); accord Tatum v. City and County of San Francisco, 441 F.3d 1090, 1099 (9th Cir. 2006) (in a case where the police did not cause the injury, the Ninth Circuit held "that a police officer who promptly summons the necessary medical assistance has acted reasonably for purposes of the Fourth Amendment, even if the officer did not administer CPR").

Plaintiffs argue that the constitution requires the officers to personally administer medical care to a person whom they injure. However, plaintiffs offer no contrary interpretation of the above cases, nor do they identify even a single case that holds that personal medical attention is required by the constitution.

Because the undisputed facts show that Moody did not violate the decedent's right to medical care, the court will grant Moody's motion for summary judgment, on qualified immunity grounds, on Claim 1's assertion of a Due Process violation arising from the alleged failure to provide medical assistance.

C. Qualified Immunity for Search of Decedent.

Moody seeks qualified immunity for the search of decedent's body after the shooting. ECF No. 80-1 at 15-19. The Complaint alleges no claim predicated upon that search. However, both parties treat the search as if it is alleged to be the predicate for a Fourth Amendment claim, so the court will consider the parties' arguments.

Plaintiffs assert that Moody conducted a "public strip search" of the decedent after the shooting, while decedent lay dying. Defendants, disputing that any "strip search" occurred, assert qualified immunity for the search that did occur. Defendants are entitled to qualified immunity unless their conduct violated plaintiffs' clearly established constitutional rights. See Johnson, 724 F.3d at 1168.

The constitutional right at issue here is decedent's right to be free from unreasonable searches. Plaintiffs apparently assert that it is clearly established the police may not conduct a "public strip search" of an unconscious (or semi-conscious), mortally wounded arrestee on a parole violation, when the officer had been informed that the decedent kept a gun in his butt-cheeks.

However, even assuming that such a search violated decedent's Fourth Amendment rights, that is only the first half of the qualified immunity inquiry. Plaintiffs still bear the burden of establishing that the unconstitutional nature of the search was "clearly established." Plaintiffs' opposition brief makes no mention of this, and no attempt to show how such a violation was clearly established.²⁵ However, in their own motion for summary judgment on this claim, plaintiffs assert that "it was long established that public strip searches of even parolees pursuant to an arrest warrant are unconstitutional absent exigent circumstances and probable cause," citing Foster v. City of Oakland, 621 F. Supp. 2d 779, 791 (N.D. Cal. 2008).

25 Its cases do not show it, either. See Way v. County of Ventura, 445 F.3d 1157, 1163 (9th Cir. 2006) (although the strip search was unconstitutional, defendants were entitled to qualified immunity because "a reasonable official in the position of Brooks and Hanson would not have understood that following the jail's policy violated Way's rights because the unconstitutionality of the search they conducted was not clearly established at the time"), cert. denied, 549 U.S. 1052 (2006); Smith v. City of Oakland, 2011 WL 3360451 at *3 (N.D. Cal. 2011) (strip search - which involved pulling the suspects "underwear halfway down" - was not justified during a "parole search" where the suspects had not engaged in any unlawful behavior, and were not in violation of parole, but were just driving their gold Cadillac around town).

The court interprets plaintiffs' argument to be that the Fourth Amendment right alleged to be violated here is clearly established, apparently by Foster. However, "[a] right is clearly established '[i]f the only reasonable conclusion from binding authority were that the disputed right existed.'" Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1389 (9th Cir. 1997) (emphasis added) (quoting Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997)). Plaintiffs have not identified the binding authority from which this court could conclude that the search at issue here is a violation of decedent's Fourth Amendment rights. Even if Foster were binding authority, and it is not, it does not establish that the search at issue here was unconstitutional, nor is such a conclusion the only reasonable one to be drawn from Foster.

In Foster, the plaintiffs were subjected to far more intrusive searches than was involved here. The police stopped one plaintiff, purportedly for loitering with intent to sell narcotics,²⁶ handcuffed him, searched his testicles by hand, forced him over the hood of a patrol car, pulled his pants and underwear down to his knees, spread his buttocks apart and visually searched his anus, in public. 621 F. Supp. 2d at 783. The police stopped the second plaintiff, purportedly to search for contraband,²⁷ handcuffed him, brought him to the front of a house, pulled his pants down, ordered him to bend over, spread his buttocks and conducted a visual search of his anus, in public and in front of a crowd of people, including some of the plaintiff's acquaintances. Id., at 784. The police pulled the third plaintiff out of his car, purportedly to search for contraband,²⁸ handcuffed him, and after putting him in a patrol car, pulled down his pants and underwear revealing his genitalia, and visually searched him for about a minute. Id., at 784. In each case, there is no question that a "strip search" was involved, as the police pulled the person's pants and underwear down to their knees, exposing their buttocks and genitalia to whoever was present.

26 It turned out that this plaintiff was on the tail end of a five year probation, and had no violations the entire time. All the charges were later dropped. 621 F. Supp. 2d at 783.

27 No charges were ever brought against this plaintiff. Id., at 784.

28 No charges were ever brought against this plaintiff. Id., at 784.

Foster found that the following criteria governed such searches:

1) there must be exigent circumstances;

2) the search may only be performed on persons who have been lawfully arrested on probable cause and may not be performed on anyone for whom there is no probable cause to arrest;

3) the search requires probable cause that is independent of the probable cause found for the arrest; [and]

4) the search may only be performed when there is probable cause to believe that the arrestee is in possession of weapons, drugs or dangerous contraband.²⁹

29 A fifth factor involved invasive body cavity searches, which is not alleged to have occurred here.

Even assuming these criteria are binding, or are derived from binding authority, each of them is satisfied here according to the undisputed evidence. There were plainly exigent circumstances for conducting the search where it was done, namely, the decedent was mortally wounded, and dragging or carrying his body to a more private location would have been an outrage in itself. Plaintiffs do not contest that decedent was lawfully arrested; he was in violation of his parole, and had "peed dirty." Plaintiffs do not contest that there was probable cause - independent of the probable cause to arrest - to search decedent's buttocks for a gun that other officers had advised him might be hidden there.

Equally important, the search of decedent plainly did not involve exposing his body, or any part of it, to public view, his pants and underwear were not pulled down, and there is no evidence or assertion that anyone other than Moody and the police could witness the search.

The court finds that it was not clearly established that the search that occurred here violated decedent's Fourth Amendment rights. Defendants' motion for summary judgment on this portion of Claims 1 and 4 will be granted.

VI. SUMMARY JUDGMENT ON THE MERITS

A. Claim Two - Due Process - Deprivation of Familial Relations.

All plaintiffs - decedent's parents, his widow and his son - sue Moody for deprivation of their constitutional rights to familial relationships with decedent. Moody seeks summary judgment on this claim.

1. Constitutional right - familial relationship.

All four plaintiffs - decedent's widow, his parents and his child - have a cognizable liberty interest in their familial relationship with decedent that is protected by the Due Process Clause of the Fourteenth Amendment. Johnson, 724 F.3d at 1168-69;³⁰ Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991), cert. denied, 506 U.S. 972 (1992);³¹ Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 2013).³² Plaintiffs assert that Moody deprived them of this right when he killed the decedent. If Moody's conduct, when viewed in the light most favorable to plaintiffs, deprived decedent's family members of their familial interests in a manner that "shocks the conscience," then his conduct "'is cognizable as a violation of due process.'" Hayes, 2013 WL 6224281 at *4 (quoting Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)³³).

30 "The Ninth Circuit recognizes that a parent has a constitutionally protected liberty interest under the Fourteenth Amendment in the companionship and society of his or her child." Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991).

31 "This Circuit has recognized that a child has a constitutionally protected liberty interest under the Fourteenth Amendment in the 'companionship and society' of her father." Hayes, 2013 WL 6224281 at *4 (quoting Curnow, 952 F.2d at 325).

32 "The right to marry and to enjoy marriage are unquestionably liberty interests protected by the Due Process Clause." Ching, 725 F.3d at 1157.

33 Cert. denied, 562 U.S. __, 131 S. Ct. 1492 (2011).

2. Whether the shooting "shocks the conscience."

In determining whether Moody's conduct "shocks the conscience," the court must first decide which "standard of culpability" applies. The two standards that are available from Ninth Circuit jurisprudence are whether Moody acted with (1) "deliberate indifference" to the harm he caused decedent, or (2) a "purpose to harm" decedent. Porter v. Osborn, 54 6 F.3d 1131, 1136 (9th Cir. 2008), quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).³⁴

34 Defendants unhelpfully ignore this dichotomy, arguing only that Moody's conduct did not meet the "purpose to harm" test. ECF No. 80-1 at 35.

The appropriate standard of culpability, in turn, depends upon the type of situation that defendant finds himself in at the time of the challenged action. If Moody found himself in a situation where "actual deliberation is practical," then his "deliberate indifference" to the harm he caused may be sufficient to shock the conscience. Gantt v. City of Los Angeles, 717 F.3d 702, 707-08 (9th Cir. 2013) (quoting Wilkinson, 610 F.3d at 554). On the other hand, if Moody made a "snap judgment" because he found himself in an "escalating" and/or "fast paced" situation "presenting competing public safety obligations," then his conduct will not shock the conscience unless he acted "with a purpose to harm" decedent that was "unrelated to legitimate law enforcement objectives." Id.; Porter, 546 F.3d at 1139 (citing Lewis, 523 U.S. 833).

By its nature, the determination of which situation Moody actually found himself in is a question of fact for the jury, so long as there is sufficient evidence to support both standards. Cf., Gantt, 717 F.3d at 708 (trial court could properly have omitted the "purpose to harm" jury instruction where "[n]one of the evidentiary bases for this claim involved 'a snap judgment because of an escalating situation'") (quoting Wilkinson, 610 F.3d at 554). The determination is also a proper matter for summary judgment, so long as the undisputed facts point to one standard or the other. Indeed, in the Ninth Circuit, there appear to be certain circumstances that require the application of one standard or the other.

For example, the fabrication of evidence for use at trial by its nature involves deliberation, and therefore the fact-finder can only apply the "deliberate indifference" standard. Id. Similarly, "the decision whether to disclose or withhold exculpatory evidence is a situation in which 'actual deliberation is practical,'" thus requiring the application of the "deliberate indifference" standard. See Tennison v. City and County of San Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009).

On the other hand, the "purpose to harm" standard is appropriate for situations involving high-speed car chases, shoot-outs, and armed suspects (with weapons like knives or automobiles) advancing threateningly on the police, as these situations are rapidly "escalating," requiring the police to make "snap judgments." See, e.g., Hayes v. County of San Diego, Case No. 7-cv-1738-DMS (JMA) (S.D. Cal. March 30, 2009) (Sabraw, D.J.) ("the undisputed evidence show[ed] that Mr. Hayes was holding a knife in a raised position and advancing on Deputy King immediately before the shots were fired"), aff'd, 2013 WL 6224281; Wilkinson, 610 F.3d at 554 ("[w]ithin a matter of seconds, the situation evolved from a car chase to a situation involving an accelerating vehicle in dangerously close proximity to officers on foot"); Porter, 546 F.3d at 1133 ("an urgent situation" was involved where the decedent revved his car engine and moved his car toward the police officers or their patrol car); Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 365, 372 (9th Cir. 1998) (police arrived to find a "gunfight in progress" which "threatened the lives of the 50 to 100 people who were trapped in the parking lot," requiring them to "act decisively," as they were "without the luxury of a second chance' to address a life-threatening situation").³⁵

35 The court notes that the Ninth Circuit recently used the "purpose to harm" standard without any discussion of whether it, or the "deliberate indifference" standard, applied to the facts. "Parents have a Fourteenth Amendment right to the companionship of a child, which a police officer violates by 'act[ing] with a purpose to harm' the child 'that [is] unrelated to legitimate law enforcement objectives.' Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)." Johnson, 724 F.3d at 1168-69. This court does not read Johnson as overruling any prior precedent, and accordingly will analyze both standards of culpability.

In this case, the court finds that the submitted evidence creates a genuine dispute about which standard of culpability should apply in this case. Moreover, if the "deliberate indifference" standard applies, there is a genuine dispute about whether Moody acted with deliberate indifference. If the "purpose to harm" standard applies, there is a genuine dispute about whether Moody acted with a purpose to harm decedent beyond any legitimate law enforcement objective.

When the evidence in this case, including the video, is viewed in the light most favorable to plaintiffs, there is a genuine dispute about whether Moody had the "luxury" of deliberation. Although the video shows that there was much shouting and movement going on, at no time does the decedent appear to be doing anything other than trying to comply with Moody's shouted orders. After Moody begins shooting, the video (viewed in the light most favorable to plaintiffs) shows that he was hit and immediately fell to the ground, writhing in pain. Once the decedent fell to the ground, any reasonable jury could find that Moody had the opportunity to deliberate before he resumed shooting. Moreover, a reasonable jury could find that decedent was unarmed during the entire encounter. Even if it found that decedent had a knife in his hand, that alone would not necessarily bring the situation into a "purpose to harm" situation, since a reasonable jury could find that decedent was not advancing on Moody, nor threatening him with the knife.

However, even if a jury were to find that the situation was rapidly escalating, and that Moody had to make snap judgments, it could still find that Moody acted with an intent to harm the decedent and without any legitimate law enforcement purpose. The video shows the action from before decedent's truck drives into view, through the pre-shooting, through the shooting, and through the post-shooting activities. That video, viewed in the light most favorable to plaintiffs, shows Moody shooting an unarmed man struggling to free his leg from a seatbelt strap so that he can get out of a pickup truck, continuing to shoot him as he falls to the ground, and continuing to shoot him after he falls, mortally wounded, to the ground. It shows that Moody kept shooting long after the decedent could possibly have been a threat to anyone. A reasonable jury could infer from the video that since Moody was shooting decedent as he lay mortally wounded on the ground, there may have been some other, non-law enforcement motivation behind the shooting, namely, a purpose to harm the decedent.

Thus, a reasonable jury could find Moody acted with deliberate indifference in a non-emergency situation, or that he acted with a purpose to harm decedent. Defendants' motion to dismiss Claim 2 will therefore be denied.

B. Claim Three - Monell Claim Against Bricker and City.

For their Third Claim, Whitney Duenez and D.D. assert a survival claim against Bricker and the City under Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), for deprivation of decedent's Fourth Amendment right to be free from unreasonable searches and seizures, and a direct claim for violation of their own Fourteenth Amendment rights to a familial relationship.³⁶

36 As discussed above, although D.D. is not alleged to be a successor in interest to the decedent, plaintiffs have now submitted a declaration (not challenged by defendants), that D.D. is a co-successor in interest with Whitney Duenez. See ECF No. 66.

There are two basic routes to municipal Monell liability under Section 1983: (1) the City itself violated plaintiffs' rights, or directed its employees to do so, acting with the required state of mind; or (2) the City is responsible for a constitutional tort committed by its employee. Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1185-87 (9th Cir. 2002) (describing "two routes" to municipal liability under Section 1983 for deliberate indifference to inmate's medical needs), cert. denied, 537 U.S. 1106 (2003).³⁷

37 Citing Board of County Comm'rs v. Brown, 520 U.S. 397, 404, 406-07 (1994) and Canton v. Harris, 489 U.S. 378, 387 (1989)).

In this case, plaintiffs assert that the City is responsible for the constitutional torts committed by Moody. Under § 1983, the City is responsible only for its own "illegal acts," and cannot be held vicariously liable for the actions of its employees. Connick v. Thompson, 563 U.S. __, 131 S. Ct. 1350, 1359-60 (2011).³⁸ However, plaintiffs can establish liability on the part of the City for Moody's conduct if they can establish that, as a matter of City policy, (1) the City's supervision of Moody was so deficient that it constituted "deliberate indifference" to those people Moody would come into contact with, (2) its training of Moody was similarly deficient, or (3) the City ratified, approved and/or encouraged Moody's unconstitutional conduct.

38 Citing Monell, 436 U.S. at 692.

A government entity may not be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving force behind a violation
of constitutional rights. Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 694 (1978). In order to establish liability for governmental entities under Monell, a plaintiff must prove "(1) that [the plaintiff] possessed a constitutional right of which [s]he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy is the moving force behind the constitutional violation." Plumeau v. Sch. Dist. No. 40, County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (internal quotation marks and citation omitted; alterations in original).

Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011), cert. denied, 569 U.S. __, 133 S. Ct. 1725 (2013).

Plaintiffs will have the burden of proof on this issue at trial, so they must identify facts in the record that would allow the court to conclude that the City had such a policy or practice. Board of County Com'rs of Bryan County, Okl. V. Brown, 520 U.S. 397, 404 (1997 ("in Monell and subsequent cases, we have required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal 'policy' or 'custom' that caused the plaintiff's injury"). As for Bricker, he can be held liable under Section 1983 "only for his ... own misconduct," he cannot be made to answer for the torts of those under his supervision. Iqbal, 556 U.S. at 677.

1. Inadequate supervision - Prior shooting incident.

[A] constitutional violation may arise from training or supervision where the training or supervision is sufficiently inadequate as to constitute "deliberate indifference" to the righ[t]s of persons with whom the police come into contact. City of Canton v. Harris, 489 U.S. 378 (1989). Canton dealt specifically with inadequate training. We see no principled reason to apply a different
standard to inadequate supervision.

Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989). Plaintiffs assert that Bricker and the City (collectively, "Bricker"), knew of repeated acts of misconduct by Moody, but that they were "deliberately indifferent" to the constitutional harms that could result from allowing Moody to continue to do police work armed with his gun. See Complaint ¶¶ 47 & 51.

According to plaintiffs, Bricker knew that Moody had been involved in a prior shooting in which he fired an "excessive" number of bullets into a car tire, yet Bricker allowed a "trigger-happy" Moody to go back to police work with his gun. According to plaintiffs' argument, Bricker "ignored a pattern of Defendant Moody using poor tactical judgment and even poorer trigger control in deliberate indifference to the citizenry they are sworn to protect." ECF No. 97 at p.16. Plaintiffs assert that "[t]he evidence reveals" that Moody was involved in a shooting in which he "shot an excessive amount of times" at a tire "that he was near to," and that "[e]yewitnesses" criticized Moody, saying that the shooting was unnecessary and excessive. ECF No. 97.

In moving for summary judgment, defendants presented admissible evidence relating to that incident. According to that evidence, in May 2010, Moody and his partner attempted to arrest a suspect who had driven a stolen car into the parking lot of a motel. Bricker Decl. at 2. The driver attempted to flee, and in the process, threatened to run over Moody's partner. Id. In response, Moody "shot the tire out of the vehicle to disable it." Id. Bricker and the police department "evaluated" the incident, and concluded that Moody's "use of force in that instance was justified." Id.; DSUF ¶ 6. This evidence, if undisputed, does not show a lack of proper supervision by Bricker.

Plaintiffs have offered no admissible evidence to dispute the account presented by defendants. Plaintiffs offer, at most, newspaper accounts purporting to report on witness accounts of the incident. At best, this is hearsay within hearsay, or "double hearsay." See Mayor of City of Philadelphia v. Educational Equality League, 415 U.S. 605, 618 & n.19 (1974) ("Whether the testimony reflected the newspaper account or a television report, it was nonetheless hearsay," indeed, it was "double hearsay"). What plaintiffs actually offer, however, is the deposition questions that plaintiffs' counsel posed to Bricker about the newspaper accounts of witnesses' purported accounts. Indeed, plaintiffs' counsel does not even purport to be quoting from the newspaper article, but instead he is merely summarizing what he interprets the article to be saying. Clearly, this is not admissible.

Even if the questions about the newspaper accounts of the purported witnesses' statements could somehow be converted into admissible evidence,³⁹ it does not support their assertion that Bricker ignored a "pattern" of "using poor tactical judgment and even poorer trigger control." See ECF No. 97 at p.16. One prior shooting does not a "pattern" make. Moreover, plaintiffs offer no evidence at all that the prior shooting involved an excessive number of shots fired or was otherwise improper. To the contrary, the only evidence here shows that Moody did not shoot at the driver, he shot at the tire, a plainly restrained response to a car that had already rammed a patrol car and was in the process of trying to run over Moody's partner. Moreover, the only review of this shooting was conducted by the police department, including Bricker, which concluded that the shooting was proper and justified.

39 As inadmissible as this "evidence" is, it is not even accurately recounted by plaintiffs in their opposition. Nothing in the deposition indicates that any purported witness described the shooting as "excessive." To the contrary, one of the supposed witnesses was the motel manager, whose only comment, apparently, was that he was upset that there was a shooting at his motel. The other witness apparently felt that no amount of shooting was justified because, he felt, the suspect could not have gotten away. However, there is no indication that this purported witness knew that the suspect, rather than trying to get away, was trying to run down Moody's partner.

This is the sole basis for plaintiffs' assertion that the City and Bricker are subject to supervisorial liability under Section 1983. It is plainly insufficient. See Davis, 869 F.2d at 1235 (reports showed officers were competent to remain on duty, thus evidence fails to show supervisor acted with deliberate indifference in not removing them from duty).

To the degree Claim 3 is predicated upon supervisory liability, defendants are entitled to summary judgment.

2. Inadequate training.

Plaintiffs base their "inadequate training" theory on Moody's performance in firearms tests. The undisputed evidence, discussed above, shows that on three separate occasions - May 12, 2008, December 7, 2010 and February 9, 2011 - Moody failed on the requalification exam (that is, flunked all three attempts), and then passed the remedial exam.⁴⁰ It appears that despite these repeated failures, followed by passes on remediation, Moody was never required to undergo additional or remedial training on his firearm.⁴¹

40 There is no evidence in the record that Moody ever failed to qualify followed by a failure to pass the remedial exam.

41 Defendants do not address the proffered, and apparently undisputed, evidence regarding Moody's repeated failures, instead referring only to the February 2011 failure as the only one. Nor do defendants assert that the cited deposition testimony was inaccurate or mistaken in any way.

Viewing this evidence in the light most favorable to plaintiffs, a reasonable jury could find that the City and Bricker inadequately trained Moody by permitting him to repeatedly keep re-taking his firearm exam until he passed, rather than requiring additional training when he failed.

Defendants' motion for summary judgment on Claim 3, to the degree it is predicated upon inadequate training, will be denied.

3. Ratification.

Plaintiffs' ratification theory is predicated upon the after-the-fact statements by Bricker that the shooting was justified and was in accordance with police department policy. This theory cannot prevail after Iqbal. Bricker's conduct must have caused the violation, not merely approved it after the fact. There is no evidence of conduct on Bricker's or the City's part that indicated that they approved of any conduct by Moody or anyone else that could have lead to the excessive force allegedly used here.

Defendants are entitled to summary judgment on plaintiffs' ratification theory of liability.

C. Claim Six - Cal. Civ. Code § 52.1.

Section 52.1 of the California Civil Code provides a right of action to a person if his exercise or enjoyment of federal or state rights is interfered with by anyone by "threats, intimidation, or coercion."⁴² Defendants seek summary judgment on this claim making exactly the same legal argument they made, and that this court rejected, in their most recent motion to dismiss. See Motion To Dismiss of December 21, 2011 (ECF No. 27) at p. 14 (arguing that there is no claim where "'the right [allegedly] interfered with is the right to be free of the force ... that was applied'"); Order of February 23, 2012 (ECF No. 35) at pp. 30-32. Defendants have presented no undisputed facts that would change the outcome here, their argument is just a legal one that ignores this court's prior decision, which is the law of the case.

42 Whitney Duenez as successor-in-interest to the decedent, is the sole plaintiff for this claim.

This court previously denied defendants' motion to dismiss the Section 52.1 claim, concluding that "[t]he elements of a Section 52.1 excessive force claim are essentially identical to those of a § 1983 excessive force claim." ECF No. 35 at p.31. Without referencing that conclusion, defendants now argue that "[t]he better reasoned cases hold that section 52.1 claims may not 'merely duplicate [plaintiffs'] section 1983 excessive force claim.'" ECF No. 80-1 at p.33. Nor have defendants argued that this court should reconsider its earlier decision.

Defendants' motion for summary judgment on this claim will be denied.

D. Claim Seven - Negligence - Wrongful Death.

Plaintiffs' seventh claim alleges liability for negligence in connection with the shooting and the failure to provide medical care to decedent. Defendants seek partial summary judgment on the failure to provide medical care asserting only "as discussed above, ... there was no duty on the officers to perform medical care, and the absence of personally providing medical care after medical care had been summoned did not cause Decedent any damages."

The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. Castellon v. U.S. Bancorp, 220 Cal. App. 4th 994, 998 (2nd Dist. 2013). Plaintiffs will have the burden of proof on each element at trial. Because plaintiffs have presented no evidence of any kind on proximate cause, defendants are entitled to summary judgment on this claim, without regard to the other elements.

At trial, plaintiffs will have the burden of showing that defendants' failure to personally provide medical attention -after summoning medical assistance - caused some injury to the decedent. Here, defendants have met their summary judgment burden by pointing out the complete lack of evidence that decedent - who Moody had shot thirteen times at close range - was further injured in any way by Moody's subsequent failure to render personal aid beyond immediately summoning medical help.⁴³ Plaintiffs have not provided evidence that Moody had the capability of providing personal medical assistance, or that his failure to do so caused any additional injury. Indeed, plaintiffs do not address the issue. Plaintiffs argue only that Moody had a duty, under California law, to render aid. Even if they are correct, with no evidence showing causation, that is not enough to avoid summary judgment.

43 "[T]he moving party need only prove that there is an absence of evidence to support the non-moving party's case." Oracle Corp., 627 F.3d at 387.

Defendants' motion for summary judgment here will be granted.

E. Claim Eight - Intentional Infliction of Emotional Distress.⁴⁴

44 Defendants do not seek summary judgment on the Fifth Cause of Action, for Negligent Infliction of Emotional Distress.

Decedent's widow, Whitney Duenez, alleges that Moody intentionally inflicted emotional distress on her, through all the conduct recounted above.

The elements of a cause of action for intentional infliction of emotional distress are (1) the defendant engages in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the plaintiff's extreme or severe emotional distress. "[O]utrageous conduct" is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community. The defendant's conduct must be directed to the plaintiff, but malicious or evil purpose is not essential to liability.

Yun Hee So v. Sook Ja Shin, 212 Cal. App. 4th 652, 671 (2nd Dist. 2013) (citations and internal quotation marks omitted).

Moody seeks partial summary judgment on the claim to the degree it is predicated upon his failure to personally render medical assistance, pulling decedent's body away from the truck, handcuffing decedent, and searching decedent.⁴⁵

45 Moody does not seek partial summary judgment to the degree this claim is predicated upon the shooting of decedent.

Plaintiffs oppose the motion, arguing that shooting the decedent, "dragging" his body, manipulating his body, handcuffing him, searching him, and "standing by" without offering personal medical assistance is outrageous conduct beyond the pale of a civilized society. ECF No. 97 at 30.

Plaintiffs however, have already conceded that moving decedent's body away from the truck, and handcuffing him were entirely reasonable and proper. Plaintiffs' Response to DSUF ¶¶ 16 & 17. As for the body manipulation and search, plaintiffs offer no evidence that Whitney Duenez saw, heard or was otherwise aware of any of these activities. Accordingly, she has failed to show that any of these activities was directed toward her. See Christensen v. Superior Court, 54 Cal.3d 868, 905 (1991) ("[t]he law limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant").

As for the failure to personally render aid, plaintiff fails to proffer any evidence at all that Moody had the ability to render aid beyond what he did, namely, calling immediately for medical assistance. Nor does she proffer any evidence that his failure to render aid was directed at her, as opposed to being the natural consequence of his inability to render aid. Neither side argues the point, but it does not seem possible that a person can intentionally inflict emotional distress by failing to take action that he is not capable of taking.⁴⁶

46 Nor does plaintiff proffer evidence that Moody had a duty to equip himself with the ability to render aid under the circumstances presented.

The defendants' motion for partial summary judgment on Claimn 8 will be granted as to all of Moody's actions except for the shooting itself.

F. Relief - Injunctive Relief.

Defendants seeks partial summary judgment on the claim for injunctive relief based solely upon their argument that they are entitled to summary judgment on both the Monell claim and the Section 52.1 state claim. As discussed above, they are not entitled to summary judgment on the Section 52.1 claim.

Accordingly, defendants' motion for partial summary judgment on this issue will be denied.

G. Punitive Damages.

Defendants Moody and Bricker seek summary judgment on the request for punitive damages, essentially because Moody's conduct was not "malicious, oppressive, or in reckless disregard of Plaintiff's rights." Viewed in the light most favorable to plaintiffs, Moody's conduct meets the standard for punitive damages.

Defendants' motion for summary judgment on the request for punitive damages will be denied.

V. ANALYSIS - PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Plaintiffs move for summary judgment. The motion is based entirely on plaintiffs' view of what the video shows.

As to whether the deputies violated the Fourth Amendment, two Supreme Court decisions chart the general terrain. Graham v. Connor, 490 U.S. 386 (1989), defines the excessive force inquiry, while Tennessee v. Garner, 471 U.S. 1 (1985), offers some guidance tailored to the application of deadly force.
"Graham sets out a non-exhaustive list of factors for evaluating [on-the-scene] reasonability: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or attempted to escape." In Garner, the Supreme Court considered (1) the immediacy of the threat, (2) whether force was necessary to safeguard officers or the public, and (3) whether officers administered a warning, assuming it was practicable. See Scott v. Harris, 550 U.S. 372, 381-82 (2007). Yet, "there are no per se rules in the Fourth Amendment excessive force context." Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) [cert. denied, 566 U.S. __, 132 S. Ct. 2681 (2012)].

George v. Morris, 736 F.3d 829,837-38 (9th Cir. 2013) (citation omitted).

Plaintiffs are correct that the court is now required to consider their motion (and defendants') "in the light depicted by the videotape." Scott, 550 U.S. at 381. However, the court must view the video in the light most favorable to the non-moving party, if there is a genuine dispute about what is depicted. Id., 550 U.S. at 380 ("[a]t the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts").

Viewing the video in the light most favorable to Moody (and in the light that will be presented by his attorney to the jury at trial), Moody was shooting at a man who exited the truck with something in his right hand. That "something" could have been a knife and was reasonably believed by Moody to be a knife (and in fact, an empty knife holder was found clipped to decedent's belt, and a knife was later found in the bed of the pickup truck, possibly thrown by decedent during the chaos of the shooting). Before the decedent exited the truck, Moody was shouting at him not to move (which presumably meant, stay in the truck). The decedent disobeyed the order (assuming he heard it), and attempts to exit the truck.

Just before the shooting, and as decedent just starts to exit the truck, Moody actually returns his gun to its holster. However, upon trying to exit, the decedent makes a sudden jerking move, which seems to prompt Moody to grab his gun again, demand that decedent "drop the knife," and start shooting. The jerking motion was, no doubt, decedent first getting his leg caught in the seat belt and losing his balance, but, viewed in the light most favorable to Moody, he had no way of knowing this. Indeed, when Moody attempts to pull decedent's body away from the car, he is unable to, apparently because he was still unaware that decedent's leg was caught in the seatbelt.

During the shooting, decedent's body continually moved in an erratic manner, occasionally turning away from Moody, such that Moody could have believed that the decedent was reaching for the knife or another weapon.⁴⁷ The shooting continued until the decedent was completely still, but Moody did not empty his gun into decedent (Moody had two bullets left).

47 Indeed, Moody's repeated failure on his firearms exams could well have contributed to his apparent doubt that he had really shot and disabled decedent, leading him to believe that the twitching body was still a threat, rather than an already-disabled person whose body was simply responding to each additional bullet it was hit with.

The court finds that there is a genuine dispute about exactly what the video depicts. Defendants say it depicts decedent with a knife, plaintiffs say it depicts decedent with a tweezers. The video is not fine enough to resolve that dispute.⁴⁸ Defendants say decedent kept reaching as if for a weapon, plaintiffs say decedent's body was simply responding to being shot. The video does not resolve that dispute. Those are among the main facts that must be resolved to determine whether the shooting was a justified response to a dangerous parolee trying to throw a knife at a police officer, or the unjustified police killing of an unarmed man just trying to get out of a pickup truck.

48 Nor does the court have the ability to slow the motion down, even assuming that such a viewing would be fair, considering that Moody experienced the incident in real time, not slow motion.

Plaintiffs' motion for summary judgment on claims predicated on the shooting will be denied in its entirety. The remainder of plaintiffs' motion for summary judgment asks the court to view the evidence in the light most favorable to them, the moving parties. That being improper, the court will deny the remainder of plaintiffs' motion for summary judgment.

VI. ANALYSIS - PLAINTIFFS' MOTION TO SEAL DOCUMENTS.

Plaintiffs ask the court to seal certain documents, ECF Nos. 82 and 99, pursuant to the stipulated Protective Order entered in this case (ECF No. 45). Defendants, who would appear to be the ones with an interest in keeping the documents confidential, have neither requested that the documents be sealed nor opposed plaintiffs' request.⁴⁹

49 The Protective Order contemplates that defendants, not plaintiffs, would move to seal these documents, as they are marked confidential at the behest of defendants. ECF No. 45 ¶ 10 ("If plaintiffs wish to file with the Court any documents marked Confidential Material, plaintiffs shall notify defendants a reasonable period before hand to afford defendants an opportunity to seek to have the document sealed under Local Rule 141"). The parties have offered no explanation for why they have proceeded by relying on plaintiffs to make this motion.

The public has a "general right to inspect and copy public records and documents, including judicial records and documents."

Estate of Migliaccio v. Allianz Life Ins. Co., 686 F.3d 1115, 1119 (9th Cir. 2012), quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). "This right extends to pretrial documents filed in civil cases." Id., citing San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1102 (9th Cir. 1999). Although the right is not absolute, the court must "'start with a strong presumption in favor of access to court records.'" Id., quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1129 (9th Cir. 2003).

Plaintiffs, as the party requesting to seal court records, bear the burden of "providing 'sufficiently compelling reasons' that override the public policies favoring disclosure." Id. In ruling on the motion, this court must "balance the competing interests of the public and the party seeking to seal judicial records." Id., quoting Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006). If the court seals the records, it must "articulate a factual basis for each compelling reason to seal." Id.

Plaintiffs do not even attempt to meet their burden here. Nor do they assert that any exception to the presumption of public access applies here.⁵⁰ They do not explain, even in a general way, why the information is confidential - other than to say, it is stamped "confidential."⁵¹ Moreover, the court cannot even infer a reason from the Protective Order, because that Order does not explain what types of materials are subject to it; materials are confidential simply because a party stamps them with a "Confidential" stamp.

50 For example, the presumption does not apply to "judicial records 'filed under seal when attached to a non-dispositive motion,'" or put another way, the presumption is rebutted in that circumstance. Midland, 686 F.3d at 1119, quoting Foltz, 331 F.3d at 1136 and citing Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002).

51 For example, sealing documents might be appropriate if they disclose the name of decedent's son, certain employment information, or private medical information.
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The request to seal will be denied.

VII. ANALYSIS - PLAINTIFFS' MOTION TO RE-OPEN DISCOVERY.

Plaintiffs ask to re-open discovery so that they can depose opposing counsel. Plaintiffs assert that one witness's testimony changed between the time he was interviewed by the police investigators soon after the shooting, and the time he testified years later at deposition. They also assert that the witness - Michael Henry - was provided a "manipulated" transcript of his interview statement just before the deposition. It was manipulated because it contained bolding and underlining that was not included in the version of the interview transcript produced to plaintiffs.

Plaintiffs have not shown that the difference in testimony is material in any way. Nor have they demonstrated why they need to depose opposing counsel - rather than Henry - to find out why there was a change in his story.

In any event, the change in Henry's story is not material, and thus cannot support such an extraordinary remedy. At his initial interview, Henry states that after decedent dropped his knife, decedent himself picked it up and placed it in decedent's tool bag before decedent headed to Flores Court in the pickup truck. At his deposition, Henry states that after decedent dropped his knife, Henry picked it up and handed it to decedent before decedent headed to Flores Court in the pickup truck. Plaintiffs do not explain why the difference in the story matters. It appears that the material point of Henry's testimony is not who picked a knife up off the ground, but rather that decedent had a knife, and that he took it with him to Flores Court. The relevance of how it wound up in decedent's hands is not explained and it is not obvious to the court.

Plaintiffs' motion to re-open discovery will be denied.

VIII. SUMMARY

For the reasons stated above, the court orders as follows:

1. Defendants are entitled to the following partial adjudication, based upon plaintiffs' concessions, specifically, that no claim in this action arises from defendants' pointing a gun at decedent's widow, pulling decedent away from the pickup truck, handcuffing decedent, searching the house on Flores Court or detaining or arresting any non-parties to this action. Accordingly, the portions of any claim that are predicated upon that conduct are hereby DISMISSED WITH PREJUDICE;

2. Defendants are entitled to qualified immunity for the search that was performed on decedent after the shooting. Accordingly, the portions of any claims that is predicated upon that conduct are hereby DISMISSED WITH PREJUDICE;

3. Defendants' motion for summary judgment on Claim 1, to the degree it asserts any state claim, is hereby DISMISSED WITH PREJUDICE;

4. Defendants' motion for summary judgment against Whitney Duenez on Claim 1 is GRANTED;

5. Defendants' motion for summary judgment against D.D. (as successor in interest to decedent's estate) on Claim 1, is DENIED to the degree it is predicated upon the Fourth Amendment, and GRANTED to the degree it is predicated upon the alleged denial of medical care;

6. Defendants' motion for summary judgment on Claim 2, relating to the claim for deprivation of familial relationships is DENIED;

7. Defendants' motion for summary judgment on Claim 3, for Monell liability against the City and Bricker, is hereby DENIED, and that claim may proceed to the degree it is predicated upon inadequate training only;

8. Defendants' motion for summary judgment on Claim 4 is DENIED, however, the court sua sponte dismisses Claim 4 to the degree it is predicated upon the deprivation of familial association, brought by Whitney Duenez in her capacity as successor in interest to the decedent's estate;

9. Defendants' motion for summary judgment on Claim 6, a claim under Cal. Civ. Code § 52.1, is hereby DENIED;

10. Defendants' motion for summary judgment on Claim 8, by Whitney Duenez for intentional infliction of emotional distress, is GRANTED;

11. Defendants' motion for summary judgment on all claims for injunctive relief is DENIED;

12. Defendants' motion for summary judgment on the request for punitive damages is DENIED;

13. Plaintiffs' motion for summary judgment is DENIED in its entirety;

14. Plaintiffs' motion to seal documents is DENIED;

15. Plaintiffs' motion to re-open discovery, so that they can depose defendants' attorney, is DENIED.

IT IS SO ORDERED.

______________________

LAWRENCES K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S., 132 S. Ct. 1510, 1515 (2012). The court also notes this definition of "strip search" contained in the California Penal Code:

As used in this section, "strip search" means a search which requires a person to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of such person.

Cal. Penal Code § 4030(c).