Opinion
Case No. 2:20-CV-1859 JCM (BNW)
2023-04-17
Gerald Elmer NAPOUK, et al., Plaintiff(s), v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendant(s).
Peter Goldstein, Law Offices of Peter Goldstein, Las Vegas, NV, for Plaintiff(s). Craig R. Anderson, Marquis & Aurbach, Las Vegas, NV, for Defendant(s).
Peter Goldstein, Law Offices of Peter Goldstein, Las Vegas, NV, for Plaintiff(s). Craig R. Anderson, Marquis & Aurbach, Las Vegas, NV, for Defendant(s). ORDER James C. Mahan, United States District Judge
Presently before the court is defendants Las Vegas Metropolitan Police Department ("LVMPD"), Sergeant Buford Kenton ("Sgt. Kenton"), and Officer Cameran Gunn ("Ofc. Gunn"), (collectively, "defendants")'s motion for summary judgment. (ECF No. 26). Plaintiffs Gerald Elmer Napouk, individually and as co-special administrator of the estate of Lloyd Gerald Napouk; Mary Napouk, individually and as co-special administrator of the estate of Lloyd Gerald Napouk; and Fredrick Waid, as co-special administrator of the estate of Lloyd Gerald Napouk (collectively, "plaintiffs") responded. (ECF No.32). Defendants replied. (ECF No. 35).
I. INTRODUCTION
The instant civil rights action alleges eight total causes of action, and it arises out of Sgt. Kenton and Ofc. Gunn (the "officers") shooting Lloyd Gerald Napouk ("Napouk"), resulting in Napouk's death. Plaintiffs' complaint includes causes of action for constitutional violations: (1) excessive force in violation of the Fourth Amendment, and (2) deprivation of familial relations without substantive due process in violation of the Fourteenth Amendment. The complaint also alleges municipal liability causes of action (the "Monell claims"): (3) unconstitutional custom, practice, or policy; (4) failure to train; and (5) ratification. Finally, plaintiffs bring causes of action arising under state law: (6) battery/wrongful death; (7) negligence/wrongful death; and (8) negligent infliction of emotional distress.
a. Citizens' calls
On October 27, 2018, shortly after midnight, citizen Alex Brown ("Brown") called the non-emergency line at LVMPD about an adult, white male—later identified as Napouk—looking into vehicles around the neighborhood. Brown reported Napouk was carrying a "slim jim" or a long stick. Further, Brown stated Napouk was talking to himself and raising a fist toward the vehicles.
Shortly after Brown's call, citizen Darwin Pinlac ("Pinlac") called 911 to report an adult, black male—later identified as Napouk—going door to door and looking into houses. Pinlac stated Napouk was carrying a machete or a large tool.
Brown called the non-emergency line again, about ten minutes after Pinlac's call. He updated his prior report stating that Napouk was now in people's backyards, and if Napouk entered his backyard, he intended to shoot Napouk.
b. The officers' response
Between Pinlac's 911 call and Brown's second call, at 12:19 AM, the officers responded to dispatch, assigning themselves to investigate the situation. Dispatch informed the officers that the person (i.e., Napouk) was talking to himself and was carrying an object, identified as a slim jim, long stick, or machete (the "object"). The officers arrived at the neighborhood at 12:31 AM.
Ofc. Gunn spoke with Pinlac, who informed Ofc. Gunn where Napouk had been seen last and that Napouk was wearing a hat. Without preplanning, the officers continued to another street where Napouk stepped out from between two houses. Napouk was carrying the object, had headphones in his ears, and was wearing sunglasses. The officers activated the overhead lights on their vehicles and exited the vehicles.
c. Contact with Napouk
Ofc. Gunn told Napouk to put the object on the ground, and Napouk responded that Ofc. Gunn would have to shoot him. Sgt. Kenton asked Napouk what Napouk was carrying and what his name was, and Napouk ignored him. Sgt. Kenton further told Napouk to take out his earbuds, which Napouk did not do.
Napouk walked toward the officers, and Sgt. Kenton repositioned around the police vehicle. Napouk ignored repeated orders from the officers to drop the object. Ofc. Gunn informed Napouk that Napouk was not in trouble. Sgt. Kenton used his police radio to call for less-than-lethal alternatives and that medical be dispatched.
Napouk walked toward Ofc. Gunn telling the officers to "get out of here." Ofc. Gunn repositioned himself around the police vehicle, and eventually ended up next to Sgt. Kenton. The officers continued to tell Napouk to drop the object. The officers each warned Napouk they would shoot him, to which Napouk responded "you have to" and "I know." Sgt. Kenton asked Napouk for his name, and Napouk responded "get out of here."
Both officers retreated when Napouk repositioned himself between the police vehicle and the curb; Sgt. Kenton moved to the rear of the police vehicle and Ofc. Gunn moved behind a citizen's vehicle parked in a driveway. Napouk changed his grip on the object, holding it in his grip with all but his index finger.
Again, Sgt. Kenton told Napouk to drop the object and that he did not want to shoot him. Napouk advanced toward Sgt. Kenton, and Sgt. Kenton said, "take one more step and you're dead," to which Napouk responded "I know." Napouk continued to walk toward Sgt. Kenton.
When Napouk was about nine feet away, the officers fired seven rounds; Sgt. Kenton shot four rounds and Ofc. Gunn three.
d. Other law enforcement at the scene
Three and a half minutes before the shooting, Sgt. Dawid Chudoba arrived at the scene. Two minutes before the shooting, a LVMPD air unit (the "air unit") had visual contact of the incident. Ofcs. Todd Ellis and Josue Rivera were at the scene at the time shots were fired. K9 Sgt. Justin Duncan was en route to the scene one to two minutes before the shooting.
e. After the shooting
Once Napouk was on the ground, another Sgt. Chudoba and Ofc. Ellis handcuffed Napouk to take him into custody. Medical assistance was again requested. The object was identified as a plastic toy fashioned to appear as a blade. A toxicology report showed methamphetamine in Napouk's system.
f. Disputed Facts
At the core of this matter, the parties dispute whether the officers acted reasonably by using deadly force to any threat posed by Napouk. Specifically, they dispute the extent of the threat Napouk posed, whether there were available sublethal options, and whether the officers followed LVMPD policy. II. LEGAL STANDARD
The Federal Rules of Civil Procedure allow summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
For purposes of summary judgment, disputed factual issues should be construed in favor of the nonmoving party. Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). However, to withstand summary judgment, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Id.
In determining summary judgment, a court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).
By contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24, 106 S.Ct. 2548. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party need not establish a dispute of material fact conclusively in its favor. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Id.
In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether a genuine dispute exists for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50, 106 S.Ct. 2505.
The Ninth Circuit has held that information contained in an inadmissible form may still be considered for summary judgment if the information itself would be admissible at trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.")).
III. DISCUSSION
a. Qualified immunity
Qualified immunity insulates public officials "from liability for civil damages insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity is broad, protecting "all but the plainly incompetent or those who knowingly violate the law." Lee v. Gregory, 363 F.3d 931, 934 (9th Cir. 2004) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
Determining whether a defendant is entitled to qualified immunity in a § 1983 action entails a two-part, conjunctive analysis. First, a court must consider whether the defendant's actions violated a constitutional right. Conn v. City of Reno, 572 F.3d 1047, 1062 (9th Cir. 2009). In making this inquiry, the court views facts in the light most favorable to the party asserting the injury. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002).
Second, the court must determine whether the constitutional right was clearly established. Conn, 572 F.3d at 1062. A right is clearly established if "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 1062 (quoting Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). In making this inquiry, the court should consider "the specific context of the case" and not "broad general proposition[s]." Saucier, 533 U.S. at 201, 121 S.Ct. 2151. It is the plaintiff's burden to show that the constitutional right was clearly established. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002).
When a plaintiff asserts a § 1983 cause of action against a government official in their individual capacity, the government official may raise the affirmative defense of qualified immunity. See Spoklie v. Montana, 411 F.3d 1051, 1060 (9th Cir. 2005). "Where the defendant raises the affirmative defense of qualified immunity, the initial burden is upon the plaintiff to show that the rights were clearly established, after which the defendant bears the burden of proving that his conduct was reasonable." Shoshone-Bannock Tribes v. Fish & Game Comm'n, Idaho, 42 F.3d 1278, 1298 (9th Cir. 1994) (citing Romero v. Kitsap Cnty., 931 F. 2d 624 627 (9th Cir. 1991)).
Here, defendants have asserted the defense of qualified immunity. Thus, whether the officers' conduct was reasonable is determinative as to whether this defense stands.
i. Reasonableness standard
A claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other 'seizure" is analyzed under the Fourth Amendment's "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2473, 192 L.Ed.2d 416 (2015). In determining whether an officer's use of force is reasonable, courts look at "(1) how severe the crime at issue is, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight." Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (citing Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001)). A court considers the totality of the circumstances and gives the most weight to whether the suspect posed an immediate threat to the safety of the officers or others. A. K. H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016) (internal quotations omitted).
The reasonableness inquiry in excessive force cases is an objective one: whether the officer's actions are objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation and without the "20/20 vision of hindsight." Graham, 490 U.S. at 396, 109 S.Ct. 1865. Though reasonableness is generally a question of fact to be determined at trial, if evidence shows that no reasonable trier of fact would determine the offers' actions were unreasonable, summary judgment is appropriate. See Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994).
ii. The reasonableness of the officers' conduct
Plaintiffs contend that there was no crime at issue, so the first Graham factor disfavors reasonableness. Defendants assert Napouk was committing assault with a deadly weapon, a class B felony. As to the second Graham factor, the parties further dispute whether Napouk's conduct posed an immediate threat to safety. The third Graham factor rests on the dispute over whether an arrest was occurring, and if so, if Napouk was resisting or fleeing.
A. The first Graham factor: severity of crime
Initially, Napouk's behavior, albeit suspicious, did not constitute a crime, and thus there would be no crime at issue to consider for the first Graham factor. As the incident unfolded, however, Napouk was brandishing the object and refusing to respond appropriately to the officers' orders. Defendants allege this constitutes assault with a deadly weapon and thus the first Graham factor favors the use of deadly force. Plaintiffs assert that the officers did not have probable cause to arrest Napouk for assault with a deadly weapon and thus the first Graham factor disfavors deadly force.
Assault is "(1) [u]nlawfully attempting to use physical force against another person; or (2) [i]ntentionally placing another person in reasonable apprehension of immediate bodily harm." NRS § 200.471(a). The parties do not dispute the object was ultimately not a deadly weapon, but the inquiry is whether the officers had probable cause to arrest Napouk for such a crime. See Dorsey v. Regan, 2015 WL 3484933, at *3 (N.D.N.Y. June 2, 2015) (citing Graham, 490 U.S. at 394-95, 109 S.Ct. 1865; Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010); Sterlin v. City of New York, 2014 WL 2560595, at *4 (S.D.N.Y. June 6, 2014)). "A police officer has probable cause to arrest a suspect without a warrant if the available facts suggest a fair probability that the suspect has committed a crime." United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir. 2006) (quotes omitted). The analysis involves both facts and law. Rosenbaum v. Washoe County, 663 F.3d 1071, 1077 (9th Cir. 2011). The facts are those that were known to the arresting officer at the time of the arrest. Id. The law is the criminal statute to which those facts apply. Id.
Plaintiffs contend Napouk's slow pace, apparent mental illness or drug use, lack of verbal threats, and "non-threatening grip" contradict the requisite mens rea (i.e., intent), and thus there was no probable cause. Moreover, plaintiffs assert that because the object was not a deadly weapon, there cannot de facto be probable cause to arrest for assault with a deadly weapon. The court disagrees.
The object had been described by the citizens' calls as a slim jim, long stick, or machete. Even without certainty as to what the object was, there need be only a "fair probability" that it was a deadly weapon—in this case, a machete. The incident took place between the hours of midnight and 1:00 AM, when limited light made it difficult to identify the object. Given the object's resemblance to a machete and dispatch's information that the object was a slim jim, long stick, or machete, there was a fair probability the object was a deadly weapon. Further, despite repeated orders to drop the object, Napouk did not. Napouk further advanced toward to officers stating they will have to shoot him for him to discontinue his conduct. Thus, at the time of the incident, the facts were sufficient to establish probable cause as to assault with a deadly weapon, a class B felony in Nevada.
Because probable cause existed to arrest Napouk for a class B felony, the court finds the first Graham factor favors reasonableness.
B. The second Graham factor: immediate threat
Plaintiffs contend that even if Napouk was carrying a machete or deadly weapon—as the officers believed—he did not pose an immediate threat to the officers. In support, plaintiffs point to Napouk's alleged slow pace, non-threatening grip on the object, calm demeanor, lack of verbal threats, and the officers' protection behind certain vehicles. While these factors, if true, contradict a finding of immediate threat, they are not indicative of the actual incident.
Plaintiffs' expert contends that holding the object without the index finger is an ineffective grip for using a weapon such as a machete, thus the grip is non-threatening.
Body-worn camera footage shows Napouk moving at variable paces, changing his grip on the object, becoming increasingly irritated, and making indirect verbal threats. In response to the officers' warnings that they would use deadly force, Napouk's statements "I know" and "you have to," paired with repeated advances on the officers while yielding a weapon constitute threatening behavior. A reasonable officer's conclusion would be that Napouk intended to harm the officers and could only be stopped with deadly force.
Moreover, despite this, the officers repositioned—arguably retreated—several times attempting to de-escalate the situation. In between orders to drop the weapon, the officers asked Napouk his name and informed him that they just intended to talk. Nevertheless, Napouk carried on advancing toward the officers with a weapon.
Officers are trained that a person can close a distance of ten feet in less than a second. When the shooting occurred, Napouk was approximately nine feet away from the officers. The threat Napouk posed was objectively immediate to a reasonable officer.
The second, and most important, Graham factor favors reasonableness.
C. The third Graham factor: resisting or fleeing arrest
Plaintiffs contend that Napouk was not resisting arrest because he was never informed he was under arrest. Defendants submit that the matter of arrest is irrelevant; Napouk was consistently ignoring, disobeying, and resisting police orders.
In support of their argument, plaintiffs cite to Young v. County of Los Angeles; the defendant there was pepper sprayed without the defendant officer providing a warning that he could be arrested or "tak[ing] any action that could have been construed as an attempt to initiate an arrest prior to striking him with his baton." 655 F.3d 1156, 1165 (9th Cir. 2011). This case is distinguishable. Here, officers gave several warnings to Napouk that they would use deadly force if he continued to resist. Napouk had more-than-sufficient warning of the potential consequence of deadly force for his action, whereas the plaintiff in Young had force used against him with no forewarning of any sort.
Plaintiffs also cite to A.K.H. ex rel. Landeros v. City of Tustin, and assert that the court found this factor indicated deadly force was unreasonable because the decedent there was only being detained and not arrested. 837 F.3d at 1012. However, there, the defendant officer told the decedent to take his hand out of his pocket and proceeded to shoot him less than one second after giving the command. Id. Here, Napouk was given the same orders repeatedly and several minutes to come into compliance with the officers' orders. It was only when Napouk advanced on Sgt. Kenton that deadly force was used.
It is clear that Napouk, though not literally resisting arrest, was resisting lawful orders of the officers. Thus, the third Graham factor favors reasonableness.
D. Other factors
The Graham factors are not exhaustive. Plaintiffs also suggest that Napouk's mental impairment, less lethal alternatives, the sufficiency of the officers' warnings, the officers' creating the dangerous situation, and the officers' lack of compliance with LVMPD policy should be considered. None of these factors would result in a reasonable juror finding the officers' conduct unreasonable.
As an initial matter, the Ninth Circuit has denied forming two lines of precedent determined by a suspect's mental status. Crawford v. City of Bakersfield, 944 F.3d 1070, 1078 (9th Cir. 2019). This court likewise declines to do so. Napouk's apparent mental impairment is thus not relevant to the reasonableness analysis.
Similarly, there was no legal duty for the officers to use less-than-lethal force in this situation. See Lowry v. City of San Diego, 858 F.3d 1248, 1259 (9th Cir. 2017). The force an officer uses needs only to be reasonable, not the least lethal option. See Graham, 490 U.S. at 396, 109 S.Ct. 1865. Here, the officers were threatened with serious bodily injury or death and were thus justified in using deadly force.
The officers' warnings were objectively sufficient. For several minutes, the officers told Napouk to drop the weapon. While plaintiff contends Napouk could not hear because he had headphones in, Napouk was able to respond to the officers indicating his ability to hear them.
Plaintiff contends the officers created the dangerous situation by exiting their vehicles and coming within fifteen feet of Napouk. However, officers repositioned several times to create more distance between themselves and Napouk in order to safely give more time for Napouk to comply with their orders. It was only when they had no more options to reposition or retreat that the situation got dangerous enough to use deadly force.
Finally, LVMPD training and policy does not create constitutional obligations. See Case v. Kitsap Cnty. Sheriff's Dept., 249 F.3d 921, 929-30 (9th Cir. 2001). Even if the officers violated LVMPD policy or acted not in accordance with their training, it is insufficient to de facto find their conduct unreasonable.
E. Reasonableness summation
A reasonable trier of fact would find that the officers acted as any objectively reasonable officer would in this situation, and thus a constitutional right was not violated. Defendants are entitled to qualified immunity.
b. Deprivation of familial relations
The Ninth Circuit has established that a parent has a Fourteenth Amendment liberty interest in the companionship and society of his or her child. Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). Likewise, a child has substantive due process rights in his or her relationship with a parent. Curnow By and Through Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). A deprivation of that interest is a constitutional violation that a plaintiff may vindicate through a § 1983 action. Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008).
To prevail on such a claim, a plaintiff must show that the defendant's conduct in causing the deprivation "shocks the conscience." Porter, 546 F.3d at 1137. Conduct shocks the conscience if a defendant (1) had time to deliberate and acted with "deliberate indifference" or (2) did not have time to deliberate and acted with "purpose to harm." County of Sacramento v. Lewis, 523 U.S. 833, 851, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Mere negligence is never enough. Woodrum v. Woodward Cnty., 866 F.2d 1121, 1126 (9th Cir. 1989); Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (1998).
As discussed, supra, the officers acted reasonably here and did not violate a constitutional right. They did not act with deliberate indifference, nor did they want to harm Napouk until necessary. Before the shooting, the officers indicated "I don't want to shoot you." And even after the shooting, the officers asked "why didn't he just give up?" and were audibly shocked and upset that Napouk was not carrying an actual weapon.
Thus, summary judgment in favor of defendants is appropriate as to plaintiffs' second claim.
c. Monell claims
The principal framework governing municipal liability in § 1983 actions against municipalities was established in Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Under Monell, municipal liability must be based upon the enforcement of a municipal policy or custom, not upon the mere employment of a constitutional tortfeasor. Id. at 691, 98 S.Ct. 2018. Therefore, in order for liability to attach, four conditions must be satisfied: "(1) that [the plaintiff] possessed a constitutional right of which 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.' " Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).
Here, no reasonable juror could find that Napouk or plaintiffs were subject to a violation of a constitutional right. See discussion supra sections III.a, III.b. Thus, the first condition of a Monell claim cannot be satisfied; an analysis of LVMPD's policy is not necessary. Summary judgment as to plaintiffs' municipal liability claims is appropriate.
d. Battery/Wrongful death
A state law claim for battery "mirrors the federal civil rights law standard." Ramirez v. City of Reno, 925 F. Supp. 681, 691 (D. Nev. 1996). "Liability attaches at the point at which the level of force used by a peace officer exceeds that which is objectively reasonable under the circumstances." Id.
Indeed, plaintiffs concede that this claim fails if the officers' conduct is found to be reasonable under the Fourth Amendment. Because the officers acted objectively reasonably, summary judgment in favor of defendants for plaintiffs' state law claim for battery and wrongful death is appropriate.
e. Negligence claims
Here, plaintiff's negligence/wrongful death and negligent infliction of emotional distress claims are based in state law. Defendants contend they are protected by discretionary-function immunity.
i. Discretionary-function immunity
"It is well established that a state court's interpretation of its statutes is binding on the federal courts unless a state law is inconsistent with the federal Constitution." Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1012 (9th Cir. 2004) (citing Adderley v. Florida, 385 U.S. 39, 46, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966)); see also 28 U.S.C. § 1652.
Nevada has waived its general state immunity under Nevada Revised Statutes ("NRS") § 41.031. The state's waiver of immunity is not absolute; the state has retained a "discretionary function" form of immunity for officials exercising policy-related or discretionary acts. See Nev. Rev. Stat. § 41.032. Nevada adopted the Supreme Court's Berkovitz v. U.S., 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)-U.S. v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) two-part test regarding discretionary immunity, meaning "Nevada's discretionary-function immunity statute mirrors the Federal Tort Claims Act." Martinez v. Maruszczak, 123 Nev. 433, 168 P.3d 720, 727 (2007).
Title 12 of NRS states in relevant part that no action may be brought against a state officer or official which is "[b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the State or any of its agencies or political subdivisions . . . whether or not the discretion involved is abused." Nev. Rev. Stat. § 41.032(2).
Thus, public entities are immune from suit for discretionary functions, but can be held liable for operational functions. See id. at 727 ("[D]ecisions made in the course of operating the project or endeavor were deemed non-discretionary and, thus, not immune under the discretionary-function exception, as those decisions [are] viewed as merely operational."); see also Andolino v. State, 97 Nev. 53, 624 P.2d 7, 9 (1981) ("[The state of Nevada] may be sued for operational acts, but maintains immunity for policy or discretionary ones").
Thus, state actors are entitled to discretionary-function immunity under NRS § 41.032 if their decision "(1) involve[s] an element of individual judgment or choice and (2) [is] based on considerations of social, economic, or political policy." Martinez, 168 P.3d at 729. "To come within the discretionary function exception, the challenged decision need not actually be grounded in policy considerations so long as it is, by its nature, susceptible to a policy analysis." Vickers v. United States, 228 F.3d 944, 950-51 (9th Cir. 2000).
The government agency "has the burden of proving that the discretionary function exception applies." Sigman v. United States, 217 F.3d 785, 793 (9th Cir. 2000). "In a close case, [the court] must favor a waiver of immunity and accommodate the legislative scheme." Hagblom v. State Director of Motor Vehicles, 93 Nev. 599, 571 P.2d 1172, 1174-75 (1977) (quoting State v. Silva, 86 Nev. 911, 478 P.2d 591, 593 (1970)); see also Martinez, 168 P.3d at 724 ("Because the primary legislative intent behind the qualified waiver of sovereign immunity from tort liability under NRS Chapter 41 was to waive immunity, we strictly construe limitations upon that waiver." (quotation marks and footnote citation omitted)).
ii. The officers are immune
Whether to detain or arrest a suspect and how to do so are discretionary functions of the police department. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Maturi v. LVMPD, 110 Nev. 307, 871 P.2d 932, 934 (1994). Further, how to conduct a seizure as it pertains to the Fourth Amendment is also within the discretion of the officer performing the seizure. See, e.g., Davis v. City of Las Vegas, 478 F.3d 1048, 1060 (9th Cir. 2007). It is only when officers act in bad faith or in disregard for a citizen's rights that they lose discretionary-function immunity. See NRS 41.032; Jones v. LVMPD, 873 F.3d 1123, 1133 (9th Cir. 2017).
Here, contacting Napouk and detaining him were within the discretion of the officers. As discussed supra, the officers acted reasonably. They did not shoot without ample warning and time given to comply with orders. No reasonable juror would find that they acted in bad faith or in disregard for Napouk's rights. Thus, summary judgment on plaintiffs' negligence claims are appropriate because the officers are protected by discretionary-function immunity.
IV. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants' motion for summary judgment (ECF No. 26) be, and the same hereby is, GRANTED.