Opinion
2:20-cv-01774-CAS(PLAx) 2:20-cv-10868-CAS(PLAx)
07-24-2023
ANAIT STEPANYAN, ET AL. v. UNITED STATES OF AMERICA, et al.; ANAIT STEPANYAN, ET AL. v. COUNTY OF LOS ANGELES, ET AL.
Present: Honorable CHRISTINA A. SNYDER Judge
CIVIL MINUTES - GENERAL
Proceedings: DEFENDANT UNITED STATES OF AMERICA'S MOTION FOR SUMMARY JUDGMENT (Dkt. 81, filed on June 14, 2023)
I. INTRODUCTION
Presently before the Court is defendant United States of America's motion for summary judgment. On March 22, 2021, the Court consolidated two cases before it, Anait Stepanyan v. United States of America, No. 2:20-cv-01774-CAS(PLAx), and Anait Stepanyan v. County of Los Angeles, No. 2:20-cv-10868-CAS(PLAx). The procedural history of the two cases is lengthy and known the parties. For a full overview of the procedural history, see the Court's March 2021 order. Dkt. 41. For the purposes of the instant motion, the Court sets forth only the following relevant procedural background.
On December 28, 2020, plaintiffs Anait Stepanyan, Kirakos Kesablyan and Kadzhik Kesablyan, as the successor in interest and heirs to Vahram Kesablyna, filed their second amended complaint. Dkt. 27 (“SAC”). Plaintiffs' claims arise from the fatal shooting of Vahram by Federal Bureau of Investigation (“FBI”) agents on January 8, 2018, while they were executing a search and arrest warrant for Kirakos. At this juncture, the only remaining claims in the two consolidated cases are for (1) assault and battery; (2) wrongful death; (3) negligence; (4) violation of California Civil Code Section 52.1; and (5) negligent infliction of emotional distress, all brought against the United States pursuant to the Federal Tort Claims Act (“FTCA”).
Unless otherwise noted, all references to the docket refer to the docket in this case, Anait Stepanyan v. United States of America, et al., No. 2:20-cv-01774-CAS-PLA (C.D. Cal.). Pursuant to the Court's ordering consolidating the two cases, this case, No. 2:20-cv-01774-CAS-PLA, Because Kirakos, Kadzhik and the decedent Vahram share a surname, the Court respectfully refers to them by their first names.
The other defendants in the consolidated cases have been dismissed. They include the County of Los Angeles, the Los Angeles Police Department, the Los Angeles County Sheriff s Department, Renae Bromley, and Hannah Monroe. See Dkts. 41, 58; No. 2:20-cv-10868-CAS(PLAx), Dkt. 22.
On June 14, 2023, defendant filed a motion for summary judgment. Dkt. 81 (“Mot.”). On July 3, 2023, plaintiffs filed an opposition. Dkt. 83 (“Opp.”). On June 19, 2023, defendant filed a reply. Dkt. 84 (“Reply). On July 21, 2023, plaintiffs filed a surreply. Dkt. 87 (“Surreply”).
On Friday, July 21, 2023, before the Court's Monday, July 24, 2023 hearing on this motion, plaintiffs submitted a surreply by facsimile without leave of Court. See L.R. 7-10 (“Absent prior written order of the Court, the opposing party shall not file a response to the reply.”). Plaintiffs are admonished to comply with the local rules of this district. In any event, the Court has considered the surreply and determines it does not change the analysis set forth in this order.
On July 24, 2023, the Court held a hearing. Having carefully considered the parties' arguments and submissions, the Court finds and concludes as follows.
II. BACKGROUND
Unless otherwise noted, the Court references only facts that are uncontroverted and to which evidentiary objections, if any, have been overruled.
The parties assert numerous evidentiary objections to the other side's evidence. See dkts. 83-3, 84-3. “In motions for summary judgment with numerous objections, it is often unnecessary and impractical for a court to methodically scrutinize each objection and give a full analysis of each argument raised.” Capitol Records, LLC v. BlueBeat, Inc., 765 F.Supp.2d 1198, 1200 (C.D. Cal. 2010). To the extent that the Court relies on objected-to evidence, it has considered and OVERRULED the parties' evidentiary objections. Evidence not considered by the Court is not addressed in this order.
A. Investigation of Kirakos and Preparation of Federal Search Warrant
On November 28, 2017, the Investigative Committee of Armenia issued a warrant for the arrest of Kirakos based on his alleged involvement in narcotics trafficking activity, including directing the smuggling of hashish oil into Armenia. See Dkt. 84-1 (“Statement of Disputed Facts” or “SDF”), ¶ 11. On December 26, 2017, Kirakos arrived at the Los Angeles International Airport flying in from Doha International Airport in Qatar, in violation of the terms of his criminal indictment in Armenia. Id. ¶ 9. At some point during the month of December 2017, the FBI and Los Angeles Police Department (“LAPD”) received information that Kirakos was demanding money from a potential cannabis business partner and threatening the individual while falsely claiming to be a United States Marshal. SDF ¶3.
Defendant does not specify what the nature of the Investigative Committee of Amenia is, such as whether it is a law enforcement organization or a judicial agency.
On January 5, 2018, the federal government filed a criminal complaint against Kirakos in the Central District of California. See USA v. Kesablyan. No. 2:18-cv-00054-PSG-2 (C.D. Cal.), dkt. 1. The complainant was listed as FBI Special Agent Hannah Monroe, who provided an affidavit in support of the complaint, an arrest warrant, and a search warrant for Kirakos' home. SDF ¶ 3. The complaint accused Kirakos of falsely claiming to be a United States Marshal while demanding money from a victim during a dispute over forming a cannabis business, in violation of 18 U.S.C. § 912. Id. ¶ 2. Additionally, Monroe's supporting affidavit indicated that Kirakos might be in possession of firearms, ammunition and other dangerous weapons to lend credence to his claim of employment as a federal law enforcement officer and to his efforts to threaten the victim. Id. ¶ 5. The affidavit also set forth Kirakos' prior California state criminal convictions for grand theft, forgery, assault with a deadly weapon, disturbing the peace, and threatening a victim, witness, or informant. Id. ¶ 3. The affidavit stated that Kirakos was residing with his wife at a residence on Horse Haven Street. Id. ¶¶ 6-7.
On January 5, 2018, Magistrate Judge Standish issued arrest and search warrants for Kirakos at his residence located on Horse Haven Street. Id. ¶ 8. The FBI decided to use a Special Weapons and Tactics team (“SWAT team”) to serve the arrest and search warrants for Kirakos in light of (1) his criminal history; (2) the nature of the crime for which he was being arrested; (3) his links to organized crime and drug trafficking; (4) his status as a person of interest in two recent homicides; and (5) his residence, which possessed multiple surveillance and tactical challenges. Id. ¶ 15. The FBI's decision to use SWAT for the warrant operation and the SWAT Operational Plan were approved by the SWAT Coordinator, the Special Agent in Charge of SWAT Operations, the Assistant Special Agent in Charge of SWAT Operations, and the Senior SWAT Team Leader. Id. ¶ 17. The SWAT Operational Plan called for the FBI's SWAT team to serve the warrants at 6;00 a.m. in the morning on January 8, 2018. Id. ¶ 18.
Early on the morning of January 8, 2018, members of the FBI's Los Angeles Field Office SWAT Team assembled at a Tactical Operations Center (“TOC”) location near Kirakos' residence. Id. ¶ 19. At approximately 3:00 a.m., two SWAT Sniper/Observer teams received operational briefing at the TOC and at approximately 3:30 a.m. deployed to positions behind the residence. Id. ¶ 20. The FBI primarily used these Sniper/Observer teams for the purpose of establishing and maintaining surveillance on the residence. Id. ¶ 21. Forward looking infrared (FLIR) video surveillance of the residence was established from an overhead aircraft, and a FLIR video downlink was provided to the TOC. Id. ¶ 22.
At approximately 4:30 a.m. on January 8, 2018, the main team of SWAT operators assembled at the TOC along with members of the medical team and fire department. Id. ¶ 23. A SWAT operational briefing was given at the TOC that explained the “Situation, Mission, Execution, Administration, and Communication” related to the service of both warrants. Id. ¶ 24. The SWAT operational briefing included: (1) photos of Kirakos and the residence; (2) Kirakos' criminal history and identifiers; (3) a medical plan; (4) contingency plans; (5) list of participated law enforcement personnel; (6) list of participating Evidence Response Team personnel; (7) list of interviewers; (8) list of Command Staff; (9) the establishment of the TOC; and (10) the DOJ Deadly Force Policy. Id. ¶ 25. The DOJ's Deadly Force Policy was read out loud verbatim at the SWAT operational briefing and was also projected on a screen for all present to read. Id. ¶ 26. Upon completion of the briefing, each SWAT team leader provided specific tasks for each SWAT operator. Id. ¶ 27.
At around 5:18 a.m., the FBI's aerial video feed and the FBI Sniper/Observer teams noted the arrival of a truck that drove down the street and parked in front of the house. Id. ¶ 28. After initially stopping in front of the house's central driveway, the truck backed up and parked across the driveway on the far right side of the house. Id. ¶ 29. According to the FBI, the car appeared to be parked to provide a lookout for the house. At 5:19 a.m., the FLIR video showed an individual exiting the truck, opening the residence's gate, entering the property and walking through the yard before looking over the land near two dogs. Id. ¶ 30. Kirakos had two “K9” German Shepherd dogs in the backyard of his residence. Id. ¶ 31. The individual then walked back through the yard, crossed over to the other side of the house, and looked around that other side yard, before returning to enter the truck at 5:22 a.m. Id. ¶ 32. At 5:26 a.m., the individual exited the truck again and walked down the street alongside the property to its end. Id. ¶ 33. The individual then looked around the street, before returning to the truck at 5:28 a.m. Id. ¶ 34.
SWAT leadership at the TOC developed and agreed upon a contingency plan for three operators, led by a SWAT team leader, to address this vehicle and detain its occupant if it still remained in place when the operation began at 6:00 a.m. Id. ¶ 35. Assistant Special Agent in Charge (“ASAC”) Patrick Grandy oversees the operations of the FBI Los Angeles Division's SWAT team, and he was the designated On Scene Commander for the warrant operation on January 8, 2018. Id. ¶ 36. The SWAT team was pulled together by the team leader to re-brief the new plan including the vehicle team and its mission. Id. ¶ 37. ASAC Grandy was briefed on and concurred with the contingency plan to address the vehicle and detain its occupant if it remained in place at 6:00 a.m., when the main SWAT team would execute the warrants. Id. ¶ 38.
B. Shooting of Vahram
Operator 1, Operator 2, and Operator 3 (the acting SWAT team leader) were the SWAT operators tasked with clearing the vehicle and detaining its occupant. Id. ¶ 41. As part of the FBI's subsequent investigation of the shooting. Operators 1, 2, and 3 provided signed sworn statements dated January 11, 2018, regarding what they had observed on January 8, 2018. Id. ¶ 42. The majority of the evidence relating to the shooting derives from these sworn statements.
Operator 3, an acting SWAT team leader, was asked to assemble a team to address the truck and detain its occupant. Id. ¶ 43. The three-person team discussed their plan on how to deal with occupants in the vehicle and detain them and them over to other law enforcement personnel on the scene. Id. ¶ 44. Operator 1 was directed to position himself near the front driver side area of the truck to cover the occupant. Id. ¶ 45. Operator 2 was tasked to breach the truck's windows if Operator 3 commanded it. Id. ¶ 46. Operator 3, as the acting SWAT team leader, was responsible for the knock and announce at the truck. Id. ¶ 47. The three operators were equipped with standard FBI SWAT gear and wore standard FBI SWAT uniforms. Id. ¶ 48.
Plaintiffs refer to Operator 3's plan as a “plan to ‘Assault' the pickup.” Plaintiffs' evidentiary citations in support of this contention are the three operators' statements, none of which refer to the plan as an “assault plan,” and plaintiff s own expert declaration, which contains conclusory assertions that the FBI planned to “assault” the pickup.
Plaintiffs “dispute” this fact by stating that “the Operators were wearing dark colored fatigue type SWAT clothing,” but they do not dispute that the operators were wearing “standard” uniforms.
At approximately 5:55 a.m. the entire SWAT team departed the TOC and moved towards the subject residence in SWAT vehicles. Id. ¶ 49. Upon arrival near the target location, the three-man team moved to the truck to provide cover for the main SWAT team that was approaching the front door of the residence. Id. ¶ 50.
As Operator 1 arrived at the truck, he positioned himself towards the front of the drive-side, near the wheel well, where he had the ability to see into the front of the truck cab and provide cover fire if needed. Id. ¶ 52. Operator 1 observed the silhouette of someone inside the truck as he passed the driver-side window and saw the occupant once he was at his assigned spot. Id. ¶ 53. Operator 1 turned on his rifle light to see the occupant of the truck more clearly. Id. ¶ 54. The truck's front windshield was transparent. Id. ¶ 55.
Operator 1 observed a middle-aged white male leaning back in the truck and realized he was not Kirakos. Id. ¶ 56. Up through the point of the shooting, the FBI SWAT team did not know the identity of the truck's occupant. They only subsequently learned that the occupant was Vahram, Kirakos' father.
Operator 3 knocked on the driver-side door and verbally announced that they were FBI. Id. ¶ 57. From Operator 1 's perspective, Vahram appeared startled when Operator 3 knocked on the driver-side window and verbally identified the officers as FBI. Id. ¶ 58. Operator 3 commanded Vahram to put his hands up, but he did not comply. Id. ¶ 59. Operator 3 tried to open the truck door but it was locked. Id. ¶ 60. Operator 3 commanded Vahram to unlock or open the door. Id. ¶ 61.
From Operator 1's perspective, Vahram initially appeared to comply with Operator 3's command to open the door and moved his hands to his left, towards the driver-side door, as if to open it. Id. ¶ 62. According to Operator 1, he saw that the Vahram did not then unlock or open the door, but rather that he then moved his hands back from the door and began moving his hands towards the right side of his waist. Id. ¶ 63. As Vahram moved his hands away from the door. Operator 1 noticed that his demeanor changed, his eyes widened, he stiffened, and “appeared ready to fight.” At this point, Vahram's hands were out of Operator 1 's sight. Id. ¶ 64.
According to Operator 2, he noticed that Vahram was moving about in the seat and displayed a very aggressive look while continuing to keep his hands near his belly button area. Id. ¶ 65. The operators commanded Vahram to show his hands, but he did not comply. Id. ¶ 66. The operators escalated their voices in urgency to command Vahram to show his hands. Id. ¶ 67. Because he could not see the Vahram's hands and could not see clearly into the truck, Operator 3 instructed Operator 2 to breach the driver-side window. Id. ¶ 68
As he began to swing the Halligan tool towards the window. Operator 2 saw the Vahram move his hands towards his waistband while he raised his pelvis. Id. ¶ 69. Operator 2 breached the window with a Halligan tool. Id. ¶ 70. Because he observed that Vahram's hands were reaching towards his waistband. Operator 2 yelled “waistband, waistband, waistband.” Id. ¶ 71. Operator 3 heard more warnings about the waistband from the other operators. Id. ¶ 72.
The operators continued giving commands for the Vahram to raise his hands, but he did not do so. Id. ¶ 73. Operator 1 observed Vahram grab his shirt near the right side of his waistband, lift his shirt with his left hand, and reach into his waistband with his right hand. Id. ¶ 74. Operator 1 observed Vahram struggling to pull what Operator 1 believed to be a gun from his waistband. Id. ¶ 75.
In response to what he believed to be the threat of imminent bodily harm. Operator 1 fired his rifle at Vahram. Id. ¶ 77. Operator 1 fired five shots, stopping when the Vahram's arms stopped moving and Operator 1 believed he no longer posed a lethal threat. Id. ¶ 79. Operator 3 announced “shots fired” over the radio. Id. ¶ 81.
Operator 2 pulled Vahram out of the truck and began to provide him immediate medical treatment. Id. ¶ 82. As Vahram was pulled out from the vehicle. Operators 1 and 2 observed an empty tan-colored gun holster in his right-front waistband. Id. ¶ 83. Operator 3 observed a pistol fall to the floorboard on the driver side of the truck, and announced “gun” verbally. Id. ¶ 85.
Operator 2 provided medical attention to the Vahram, including chest seals and a Nasopharyngeal Airway, Id. ¶ 87. Operator 3 radioed and called for the on-scene medics, who quickly approached and applied a chest decompression needle. Id. ¶ 88. Vahram was taken to the on-scene ambulance, which took him away to the local hospital, where he was pronounced dead. Id. ¶ 89. The coroner ascribed Vahram's death to “multiple gunshot wounds.” Id. ¶ 90.
None of the three plaintiffs saw the shooting when it occurred on January 8, 2018 in front of the Sun Valley residence. Id. ¶ 92.
III. LEGAL STANDARD
Summary judgment is appropriate where “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). The moving party bears the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each claim upon which the moving party seeks judgment. See Celotex Corp. V. Catrett. 477 U.S. 317, 323 (1986).
If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 250 (1986); see Fed.R.Civ.P. 56(c), (e). The nonmoving party must not simply rely on the pleadings and must do more than make “conclusory allegations [in] an affidavit.” Lujan v. Nat'l Wildlife Fed'n. 497 U.S. 871, 888 (1990); see Celotex, 477 U.S. at 324. Summary judgment must be granted for the moving party if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322; see Abromson v. Am. Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997).
In light of the evidence presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc, v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted); Valley Nat'l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita. 475 U.S. at 587.
IV. DISCUSSION
Defendant raises two grounds in its motion for summary judgment: (1) that the FTCA's discretionary function exception, 28 U.S.C. § 2680(a), bars plaintiffs' tort claims to the extent they challenge the FBI's discretionary decisions regarding how to execute the search and arrest warrant operation during which the fatal shooting occurred; and (2) the FBI's use of deadly force was reasonable as a matter of law.
The Court first sets forth the overarching legal standards and then addresses each of defendant's arguments in turn.
A. Legal Standards Relating to Excessive Force Claims Brought Under the FTCA
“An action can be brought by a party against the United States only to the extent that the Federal Government waives its sovereign immunity.” Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir. 1996) (citation omitted). The FTCA is a limited waiver of liability which “makes the United States liable ‘to the same extent as a private individual in like circumstances,' under the law of the place where the tort occurred, subject to enumerated exceptions to the immunity waiver.” Levin v. United States, 568 U.S. 503, 506-07 (2013) (citing 28 U.S.C. §§ 2674, 2680(a)-(n), 1346(b)(1)). In California, “[c]laims of excessive force . . . are analyzed under the same standard of objective reasonableness used in Fourth Amendment claims.” Hayes v. Cnty. of San Diego, 736 F.3d 1223, 1232 (9th Cir. 2013). Reasonableness of force is assessed from the perspective of a reasonable officer at the scene. Graham v. Connor, 490 U.S. 386, 395 (1989). The relevant inquiry is whether officers' actions are “objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397 (quotation marks and citation omitted). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id. at 396-97.
Additionally, the FTCA contains a discretionary function exception to the United States' waiver of sovereign immunity, according to which there is no waiver of immunity for claims “based upon the exercise or performance or the failure to exercise or perfonn a discretionary function.” 28 U.S.C. § 2680(a). This exception applies “whether or not the discretion involved be abused.” Id. “If the discretionary function exception applies to the challenged government conduct, the United States retains its sovereign immunity, and the district court lacks subject matter jurisdiction over that claim.” See Est. of Salazar v. United States, No. LACV1110279JAKSPX, 2014 WL 12588477, at *15 (C.D. Cal. May 20, 2014) (citing GATX/Airlog Co. v. United States, 286 F.3d 1168, 1173 (9th Cir. 2002)). Courts determine whether conduct constitutes discretionary function pursuant to the two-part Gaubert test: (1) whether the challenged conduct involves an “element of judgment or choice” and (2) whether the “judgment is of the kind that the discretionary function exception was designed to shield.” United States v. Gaubert, 499 U.S. 315, 322-323 (1991).
B. Discretionary Function Exception to the FTCA
Defendant argues that “the discretionary function exception to the Federal Tort Claims Act. . . bars the tort claims to the extent they challenge the FBI's discretionary decisions regarding how to conduct the search and arrest warrant operation during which the fatal shooting occurred. Mot. at p. v; see also Reply at 14 (“Plaintiffs' tort claims cannot challenge the reasonableness of the discretionary preshooting decisions that the FBI made about how to execute the warrant operation, including the plan about how to approach the truck and detain its driver.”)
Using the Gaubert two-part test and citing to authorities that have applied that test in the law enforcement context, defendant argues that the FBI's decision to use a SWAT team and the strategic choices the team made to effectuate the search and arrest warrant of Kirakos were discretionary functions. Mot. at 16-17 (citing Est. of Salazar. 2014 WL 12588477, at *15 (“[D]ecisions regarding how to locate and identify the subject of an arrest warrant... are discretionary in nature and involve an element of judgment or choice.”) (internal citation omitted)).
However, in addition to arguing that plaintiffs cannot bring claims holding defendant liable for discretionary conduct, defendant also appears to argue that such discretionary conduct cannot be considered in any context in the litigation. See e.g.. Mot. at 18 (“As the basis for asserting FTC A liability against the United States, these critiques of FBI operational decisions not only fail to prove unreasonable use of force, they are barred by the discretionary function exception.”). In support of this argument, defendant cites to Estate of Salazar v. United States. 2014 WL 12588477, and Donaldson v. United States, No. 15-CV-908 JLS (KSC), 2018 WL 1089986 (S.D. Cal. Feb. 26, 2018). According to defendants, these two cases support the proposition that “the DFE bars tort claims from challenging the FBI's exercise of its discretion on how to select and use SWAT to execute the search and arrest warrants at the residence, including the plan to approach the vehicle and detain its occupant.” Reply at 2.
In opposition, plaintiffs do not dispute that the pre-shooting conduct identified by defendant is properly categorized as a discretionary function. Rather, plaintiffs argue that the discretionary function exception does not preclude analysis of discretionary preshooting conduct as part of the totality of the circumstances inquiry into whether the use of deadly force was reasonable. Opp. at 19-20 (citing Haves v. Cnty. of San Diego, 57 Cal.4th 622, 639 (2013) (“Law enforcement personnel's tactical conduct and decisions preceding the use of deadly force are relevant considerations under California law in determining whether the use of deadly force gives rise to negligence liability such liability can arise for example if the tactical conduct and decision show, as part of the totality of circumstances, that the use of deadly force was unreasonable.”)).
The Court concludes that pursuant to the FTCA's discretionary function exception, discretionary conduct itself cannot serve as the basis for establishing liability, but relevant discretionary conduct can be considered as part of the totality of the circumstances inquiry as to whether use of deadly force was reasonable. The Court finds persuasive the legal conclusions reached in Salazar. There, another court in this district addressed how the discretionary function exception applies to excessive force claims brought under the FTCA. The court explained that “[a]lthough Defendant may not be held liable for the pre-shooting, discretionary tactical decisions of the Marshals, the circumstances surrounding, and the results of, these decisions may be considered in determining whether the ultimate use of deadly force was reasonable.” Est. of Salazar, 2014 WL 12588477, at *23.
The Court believes that the analysis in Salazar is an accurate application of the discretionary function exception to excessive force claims. For example, to the extent plaintiffs sought to hold defendant specifically liable for discretionary conduct, such as negligent hiring, training, retention, or supervision, the FTCA's discretionary function exception bars those claims. However, as defendant acknowledges, plaintiffs' remaining claims for assault, battery, wrongful death, infliction of emotional distress, and negligence are all “based on the allegation that the FBI officers wrongfully killed Vahram.” Mot. at 11. The reasonable use of deadly force is non-discretionary, and as discussed above, a totality of the circumstances balancing test determines whether the use of force was reasonable. Accordingly, the court in Salazar appropriately concluded that “the circumstances surrounding, and the results of, [pre-shooting, discretionary] decisions may be considered in determining whether the ultimate use of deadly force was reasonable.” 2014 WL 12588477, at *23.
Indeed, plaintiffs previously conceded this point and the Court accordingly dismissed those claims in its prior March 22, 2021 order. See Dkt. 41 at 15.
Moreover, the Court believes that the parties' citations to Haves and Donaldson are not helpful for addressing defendant's argument relating to the discretionary function exception. In Hayes, the California Supreme Court answered a question of state law certified by the Ninth Circuit in 42 U.S.C. 1983 litigation brought against San Diego County. See generally Haves. 57 Cal.4th at 622. However, because Haves did not involve the FTC A-or more specifically, the FTCA's discretionary function exception- the case is less relevant to the issue at hand. In Donaldson, the district court addressed excessive force claims brought under the FTCA. The court adopted the Salazar court's analysis of the discretionary function exception. However, the court in Donaldson ultimately did not need to analyze any “preshooting conduct” because the plaintiff s analysis for her claims “focuse[d] on the reasonableness during the use of force and not the pre-shooting conduct.” 2018 WL 1089986, at *11 (S.D. Cal. Feb. 26, 2018). Accordingly, contrary to defendant's assertion, Donaldson does not support defendant's argument here that discretionary conduct cannot be considered under any circumstance.
C. Reasonableness of Deadly Force
As described above, courts apply a balancing test to determine whether force used is reasonable. Graham. 490 U.S. at 396. First, courts must assess the severity of the intrusion on the individual's Fourth Amendment rights “by evaluating the type and amount of force inflicted.” Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003). Then courts must weigh this severity against the countervailing governmental interests, which are evaluated by looking at (a) whether the suspect was actively resisting or attempting to evade arrest by flight; (b) the severity of the crime at issue; and (c) whether the suspect posed an immediate threat to the safety of the officers or others. Lal v. California, 746 F.3d 1112, 1117 (9th Cir. 2014). This list is not exhaustive, and courts also consider whether the officer warned the suspect prior to use of force, Bryan v. MacPherson. 630 F.3d 805, 831 (9th Cir. 2010): the parties' relative culpability, Espinosa v. City & Cnty. of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010); and “whether there were less intrusive means of force that might have been used,” Glenn v. Washington Cnty., 673 F.3d 864, 876 (9th Cir. 2011). Nonetheless, the “most important” factor is whether the suspect posed an “immediate threat to the safety of the officers or others.” Bryan, 630 F.3d at 826.
Here, defendant argues that that the FBI SWAT team's use of deadly force was reasonable. Defendant's arguments focus specifically on Vahram's failure to comply with Operator 3's commands to open the truck door and to put his hands up. Instead, Operator 1 perceived that Vahram's “actions of refusing to raise his hands, moving them to his right, stiffening up and looking aggressive, and finally grabbing his shirt and reaching down into his waistband, were signs of drawing a handgun.” Mot. at 11-12. Defendant accordingly contends that Operator 1 “fired until Vahram was incapacitated” in order to “protect himself and the other operators.” IT at 12. Defendant additionally argues that “given Kirakos' criminal conduct and history, it was reasonable to think the truck's driver might have to come to perform a security function at the residence, and might be armed.” Id. at 14. Finally, defendant notes that “Operator 1 's use of force was in line with the DOJ's Use of Force Policy.” Id.
In opposition, plaintiffs argue that there are triable issues of fact as to whether the use of deadly force was reasonable under the totality of the circumstances. Plaintiffs emphasize that the SWAT team conducted its stop of the truck in the dark at 6:02 a.m., during the rain, and “gave Vahram virtually no time to comply with their commands before shooting him after just 13 seconds.” Opp. at 3. Plaintiffs contend that Vahram's conduct in raising his pelvis could have been to adjust his reclined seat in order to communicate with the operators, rather than to draw a gun as defendant argues. In sum, plaintiffs effectively argue that there is a genuine dispute of fact as to whether Vahram was actively resisting or attempting to evade arrest and whether he posed a threat to the officers or others. Plaintiffs also appear to argue that there are triable issues as to whether the operators warned Vahram prior to use of force and whether there were less intrusive means of force that might have been used. See id. at 4-8.
In reply, defendant argues that plaintiffs offer strained interpretations of the evidence that fail to raise a genuine dispute of material fact. Defendant argues that plaintiffs entirely ignore other facts within the totality of the circumstances inquiry that justify the SWAT team's heightened measures, such as Vahram's patrolling the residence between 5:16 and 5:28 a.m. as “consistent with undertaking an armed security function,” or Kirakos' criminal background. Reply at 10. Defendant emphasizes that based on the information available to the FBI at the time, particularly the nature of “Kirakos' fortified residence and [his] connections with organized crime and drug trafficking, his status as a person of interest in two recent homicides, and his repeated felony convictions,” it was reasonable for the SWAT team to perceive Vahram's conduct during the stop as hostile and a threat to others' safety.
The Court finds that while the record may be read to more readily support defendant's version of the events, determining whether the use of deadly force was reasonable nonetheless involves triable issues of fact. Whether the force used is “excessive” or “unreasonable” depends on “the facts and circumstances of each particular case.” Graham, 490 U.S. at 396; see also Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (“[T]his area is one in which the result depends very much on the facts of each case.”).
Here in this case, it appears that most of the evidence addressing the use of force will consist of relevant evidence proffered by the FBI, for example, the operator's statements, the FLIR video, and photos taken of the car and the residence. However, even taking the operators' statements on their face, a genuine dispute of material facts remains. For one, the credibility of the three operators must be assessed by the factfinder. For instance, the parties dispute the extent to which Operator 1 could see into the truck, which would bear on the accuracy of the statements relating to what he perceived. Additionally, observations made in the operator statements identify facts subject to competing interpretations, such as whether Vahram's reclined seat support defendant's contention that he was serving as a lookout for Kirakos or plaintiffs' argument that he was attempting to comply with the officers' commands. Drawing and weighing evidentiary inferences, especially for a totality of the circumstances inquiry, must be conducted by the factfinder.
Moreover, defendant's cited authorities granting and affirming summary judgment are readily distinguishable because they involved scenarios in which the victim undisputedly brandished a weapon before the law enforcement officer's use of force. See, e.g.. Est. of Garcia Toribio v. City of Santa Rosa, 381 F.Supp.3d 1179, 1189-92 (N D. Cal. 2019) (officer was reasonable for using deadly force against individual who charged with knife); Est. of Salazar, 2014 WL 12588477, at *23-24 (officer was reasonable for using deadly force against individual who drew and aimed a gun); Scott v. Henrich. 39 F.3d 912, 914 (9th Cir. 1994) (individual pointed a “long gun” at police officers). Here, the SWAT team only found a gun in the truck after the shooting. And while Vahram made movements in the truck that defendant suggests he was reaching for a gun, it is disputed by plaintiffs whether he was in fact doing so. Plaintiffs argue that because the operators did not see a gun. their statements that he was reaching for a gun are speculative. Ultimately, a factfinder could determine that it was reasonable under the circumstances for the SWAT team to infer that Vahram had a gun and intended to use it against them. However, summary judgment on this record is not appropriate.
Accordingly, the Court must deny defendant's motion for summary judgment.
V. CONCLUSION
In accordance with the foregoing, the Court DENIES defendant's motion for summary judgment.
IT IS SO ORDERED.