Troy L. Nunley, United States District Judge.
This matter is before the Court pursuant to Defendants City of Lodi ("Lodi"), City of Lodi Police Department ("LPD") and Mark Helms's ("Chief Helms") Motion for Summary Adjudication (ECF No. 163) and Defendants Miles Scott Bratton ("Corporal Bratton") and Adam Lockie's ("Officer Lockie") Motion for Summary Judgment, or in the alternative, Summary Adjudication (ECF No. 164).
This case arises out of a fatal police shooting. None of the non-officer witnesses (the "Non-Party Witnesses") observed the entirety of the dynamic encounter between Parminder Singh Shergill ("Parminder") and the Officer Defendants. The Non-Party Witnesses who witnessed the shooting itself could not see whether there was a knife in Parminder's hands at the time he was shot. However, their testimony does call into question the key factual assertion which underlies the Officer Defendants' motion: "[t]he [Officer Defendants] did not use deadly force until [Parminder] abruptly turned back and `charged toward' them with the knife." (ECF No. 164-1 at 38.) This factual dispute turns on a jury's credibility determinations and cannot be resolved by the Court on summary judgment.
Unfortunately, the Officer Defendants' motion takes for granted that this crucial factual assertion is undisputed to such a degree that it is virtually impossible to intelligently engage their arguments without reciting their version of events. Consequently, the Court will set out a brief summary of the Officer Defendants' version of events in the "Factual Background" section of this Order followed by the material facts that Plaintiffs assert are in dispute. The Court will also include a brief summary of the deposition testimony of four Non-Party Witnesses who saw (or heard) the shooting because Plaintiffs inaccurately cite two of them for the proposition that it can be definitively stated Parminder "never `armed himself' with a knife." (ECF No. 177-1 at 15 (emphasis added).)
The Court mentions an additional item of note. Plaintiffs submitted more than 60 evidentiary objections to the Officer Defendants' proposed statement of undisputed material facts. (See ECF No. 177-1.) However, Plaintiffs acknowledge the Court need not separately address these evidentiary objections in order to resolve this motion. They have correctly cited Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1123 (E.D. Cal. 2006), for the proposition that "objections to evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself." (ECF No. 177 at 16 n.5; ECF No. 177-1 at 1-2.) The Court agrees and will not separately address these objections. Likewise, the Court found it unnecessary to resolve the Officer Defendants' objections to Plaintiffs' evidence offered in support of their opposition in order to resolve the Officer Defendants' motion. (ECF No. 187-3.)
The Officer Defendants responded to a 9-1-1 call placed from 23 Elderica Way, Lodi, CA (the "Family Home") on the morning of January 25, 2014. (ECF No.
The Officer Defendants arrived approximately 11 minutes after the 9-1-1 call was placed. (Compare ECF No. 164-2 at ¶ 11 with ECF No. 164-2 at ¶ 4.) They were told upon arrival that Parminder had already left the Family Home on foot. (ECF No. 164-2 at ¶ 14.) They were also informed that Parminder suffered from post-traumatic stress disorder and was off of his medication. (ECF No. 164-2 at ¶ 16.) Sarabjit Shergill ("Sarabjit"), Parminder's brother, reported to the Officer Defendants that Parminder was "having an episode" and could likely be found at a nearby park. (ECF No. 164-2 at ¶ 21.) Corporal Bratton was given a description of Parminder, including the clothes he was wearing. (Bratton Dep., ECF No. 164-4 at 112:6-9.)
Corporal Bratton located Parminder in Peterson Park near the basketball courts and parked his vehicle on Evergreen Drive, which fronts the east side of the park. (See ECF No. 164-2 at ¶ 36.) Parminder was observed walking through the middle of a coordinated exercise group in Peterson Park. (ECF No. 164-2 at ¶ 41.) Parminder, who was walking east toward Corporal Bratton and eventually past him, did not respond when Corporal Bratton spoke to him. (ECF No. 164-2 at ¶¶ 40, 42-43.) Parminder walked past Officer Lockie, who was in his patrol vehicle at the intersection of Elderica Way and Evergreen Drive at the border of Peterson Park, while Corporal Bratton trailed behind Parminder, attempting to speak with Parminder and asking Parminder to stop. (ECF No. 164-2 at ¶¶ 45-46, 48.) As Parminder continued walking, he told Corporal Bratton, "Fuck you. I am not talking to you." (ECF No. 164-2 at ¶ 49.) Parminder was walking in the general direction of the Family Home. (ECF No. 164-2 at ¶¶ 49-50.) As he did this, Parminder removed a black knife from his clothing, opened it
At some point after Parminder armed himself with a knife, the Officer Defendants drew their guns. (ECF No. 164-2 at ¶¶ 55, 57, 59.) Parminder continued to walk in the general direction of his home while ignoring the commands of the Officer Defendants, including commands to drop his knife. (ECF No. 164-2 at ¶¶ 57-58, 60-61.) Both of the Officer Defendants grew concerned that Parminder was a threat to his family. (ECF No. 164-2 at ¶¶ 56, 63.) Ultimately, Corporal Bratton radioed that "[w]e are going back on to Elderica, I need you to call the [9-1-1 caller] back and advise them to barricade the front door" noting that the "subject is armed with a knife" and "very agitated." (ECF No. 164-2 at ¶ 64.) The Officer Defendants indicate that they followed Parminder trailing approximately ten to twenty feet behind him and approximately ten to twelve feet from each other. (ECF No. 164-2 at ¶ 66.) Parminder, while continuing to walk away and ignore commands, screamed "you want to talk to me motherfucker." (ECF No. 164-2 at ¶ 67.) Corporal Bratton ordered Parminder to "stop," "drop the weapon," "put down the weapon," and "stop or I will shoot." (ECF No. 164-2 at ¶ 68.)
Parminder then quickly turned around and faced the Officer Defendants, while screaming with his knife in his right hand near his own head and the blade pointed at Corporal Bratton. (ECF No. 164-2 at ¶¶ 70-71.) Corporal Bratton again ordered Parminder to "stop," "drop the weapon," and "stop or I will shoot." (ECF No. 164-2 at ¶ 72.) Corporal Bratton testified Parminder then charged him giving out a "war cry" and screaming: "Fuck you. I'm going to fucking kill you. Fucking kill me." (ECF No. 164-4 at 135:11-136:16.) Officer Lockie testified that he perceived Parminder to be coming "towards [him]." (ECF No. 164-4 at 96:14-18.) At this point, Corporal Bratton was approximately twelve to fifteen away from Parminder. (ECF No. 164-2 at ¶ 75.) The Officer Defendants were standing in front of 61 Elderica Way with Corporal Bratton in the driveway and Officer Lockie to his left. (ECF No. 164-2 at ¶¶ 75-76.) The Officer Defendants fired multiple shots at Parminder when he charged them with his knife. (ECF No. 164-2 at ¶¶ 80-85.) Officer Lockie estimated "maybe a second or two" elapsed between the time Parminder turned towards them and when they began shooting. (ECF No. 164-2 at ¶ 86.) The Officer Defendants continued to shoot until Parminder fell to his knees and stopped advancing. (ECF No. 164-2 at ¶¶ 87-88.) After Parminder was shot, Officer Lockie slid Parminder's knife away with his boot and radioed "shots fired." (ECF No. 164-2 at ¶¶ 90-91.) Parminder was then handcuffed and emergency personnel were immediately called. (ECF No. 164-2 at ¶ 93.) The Officer Defendants performed first-aid until emergency personnel arrived. (ECF No. 164-2 at ¶¶ 96-97.) A California Department of Justice DNA analysis of the knife revealed that Parminder's DNA was on the knife, but not the Officer Defendants. (ECF No. 164-2 at ¶ 108.)
Parminder sustained a total of 14 gunshot wounds. (ECF No. 164-2 at ¶ 115.) One minute and forty-three seconds elapsed between the beginning of the Officer Defendants encounter with Parminder and the time Parminder was shot. (ECF No. 164-2 at ¶ 126.) The Officer Defendants had left their bean bag shotguns in
On the morning of January 25, 2014, Parminder appeared to be experiencing symptoms of his mental illness. (ECF No. 177-2 at ¶ 1.) There is no evidence that Parminder consumed alcohol on January 25, 2014. (ECF No. 177-1 at ¶ 1.) At no time during Parminder's encounter with the Officer Defendants did he "arm himself with a knife." (ECF No. 177-2 at ¶ 3.) In front of the home located at 61 Elderica Way, Parminder stopped walking and began to turn and face the Officer Defendants. (ECF No. 177-2 at ¶ 4.) Before Parminder could complete the turn to face the Officer Defendants, they both began shooting Parminder. (ECF No. 177-2 at ¶ 4.) As Parminder was turning to face the Officer Defendants, he said "don't shoot!" (ECF No. 177-2 at ¶ 5.) Parminder's hands were either in his pockets or down at his sides at this time. (ECF No. 177-2 at ¶ 6.) At no time did Parminder move or advance towards the Officer Defendants. (ECF No. 177-2 at ¶ 7.) The Officer Defendants continued shooting Parminder, even as he was falling backwards. (ECF No. 177-2 at ¶ 8.) The DNA analysis cited by Officer Defendants states DNA from at least two contributors was found on the knife and does not state that the Officer Defendants' DNA was not present. (ECF No. 177-1 at ¶ 108.)
In his deposition, Timothy Antolin stated that he is Cassandra Lopez's son and that he was in her home at 61 Elderica Way at the time of the encounter between Parminder and the Officer Defendants. (See ECF No. 177-3 at 83:12-19, 84:15-18.) Mr. Antolin testified that he was in his upstairs bedroom when he heard what he initially assumed to be an argument between a father and child outside. (See ECF No. 177-3 at 85:23-24; 96:8-12.) It was after Mr. Antolin heard someone say "put down the weapon" that he began observing the encounter between Parminder and the Officer Defendants through the blinds of his bedroom window. (ECF No. 177-3 at 85:21-86:6.) Mr. Antolin states that "the man [was] standing ... and the [officers] had him stopped and he was turned around talking to" the officers, who "had their guns pointed at him." (See ECF No. 177-3 at 87:1-6.) Mr. Antolin indicated that at the time the man was shot by the officers he had not completely turned around to face them. (See ECF No. 177-3 at 87:7-24.) Mr. Antolin stated that he could not see whether the man had anything in his hands at the time the man was shot. (ECF No. 88:15-19.) This was because Mr. Antolin "could not see the lower half of [the man's] body" before he was shot. (ECF No. 88:15-19.) However, Mr. Antolin testified that the man had not lunged toward the officers. (ECF No. 88:20-22.) Rather, the man "didn't move, he didn't yell at them after a certain point... he was just standing there." (ECF No. 177-3 at 88:23-25.) After the man had fallen to the ground, Mr. Antolin stated the officer "put handcuffs on him" and "started rummaging through his pockets."
In her deposition, Ms. Lopez testified that she went to an upstairs window in her home after yelling outside drew her attention to the encounter between Parminder and the Officer Defendants. (ECF No. 177-3 at 67:14-15.) Ms. Lopez observed "two officers with their guns drawn on a man and they kept saying stop, drop your weapon, turn around, stop and drop your weapon." (ECF No. 177-3 at 67:24-68:1.) She described the officers as yelling "loud[ly]" with their guns "pointed" at the man. (ECF No. 177-3 a 72:23-73:3.) Ms. Lopez indicated the man the officers were addressing "kept walking and then after a couple of steps he stopped and he was faced" with his back towards the officers. (ECF No. 177-3 at 68:5-9.) Finally, she saw the man "turn, but he didn't surrender" by which she meant "[h]e didn't put his hands up and then turn around[.]" (ECF No. 177-3 at 68:13-14.) Ms. Lopez also stated that the man turned around "quickly" but that he "didn't go at the [officers]" and "didn't charge them." (ECF No. 177-3 at 69:13-17.) Ms. Lopez testified that the man was shot multiple times after turning around. (ECF No. 177-3 at 69:17-70:2.) Ms. Lopez noted that the man "didn't fall immediately" after being shot. (ECF No. 177-3 at 70:7.) Ms. Lopez noted that from her vantage point she could not see his whole body and in particular "if he's right-handed, [she doesn't] know if there's anything in this hand" because she "can't see this." (ECF No. 177-3 at 69:18-20.) However, Ms. Lopez clarified that she did not see the man raise his right arm. (ECF No. 177-3 at 77:1-6.)
In his deposition, Bob Mendes testified that he lives directly opposite the Family Home. (ECF No. 177-3 at 179:19-21.) He witnessed police officers arrive and depart from the Family Home on the morning of January 25, 2014. (See, e.g., ECF No. 177-3 at 179:22-25; 181:17-23.) Mr. Mendes stated that later while he was in his garage he heard yelling and walked out to his driveway. (ECF No. 177-3 at 182:10-18.) Mendes could not identify the distance between the encounter he observed and where he was standing but indicated that he had an unobstructed view. (ECF No. 177-3 at 185:10-22.) Mr. Mendes identified Parminder by name and stated that "I couldn't tell what Parm was saying, I just know that he was yelling[.]" (ECF No. 177-3 at 183:11-12.) Mr. Mendes describes Parminder as facing south — which Mr. Mendes indicated meant Parminder was facing him — and moving in Mr. Mendes's direction. (ECF No. 177-3 at 183:22-184:7.) Mr. Mendes then indicated Parminder "turned and moved north." (ECF No. 177-3 at 184:6-7.) Mr. Mendes noticed at some point the officers' weapons were drawn and pointed at Parminder. (ECF No. 177-3 at 185:1-7.) Mr. Mendes testified that immediately before Parminder was shot Parminder was "moving towards them with ... his right arm up, almost as if he was ... point or yelling, ... like if you get in an argument[.]" (ECF No. 164-5 at 96:11-14.) However, Mr. Mendes also stated that he could not see anything in Parminder's raised right hand from where he was standing. (ECF No. 164-5 at 96:16-24.) He also indicated that by the time Parminder turned around "[t]he yelling on
The excerpt of Alexandra Weise's deposition does not explicitly provide her precise location, but it is obvious from context that on the morning of the encounter she was sleeping in the house across from 61 Elderica Way. (ECF No. 177-3 at 103:1-10.) She woke up after hearing voices outside her window. (ECF No. 177-3 at 103:12-13.) She remembered people yelling "stop." (ECF No. 177-3 at 103:18.) Then someone said "don't shoot." (ECF No. 177-3 at 103:18-19.) Then, "all the gunshots went off." (ECF No. 177-3 at 103:19.)
Summary judgment is appropriate when the moving party demonstrates no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324, 106 S.Ct. 2548 (internal quotations omitted). Indeed, summary judgment should be entered against a party who does not 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.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 251-52, 106 S.Ct. 2505.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. 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." First Nat'l Bank, 391 U.S. at 288-89, 88 S.Ct. 1575. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting Rule 56(e) advisory committee's note on 1963 amendments).
The following eight claims against the Officer Defendants are included in the third amended complaint ("TAC") (ECF No. 88). The First Claim — excessive force in violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983 ("Section 1983") — is brought by Sukhwinder, as successor in interest to Parminder. The Second Claim — intentional or reckless provocation in violation of the Fourth Amendment pursuant to Section 1983 — is brought by Sukhwinder, as successor in interest to Parminder. The Third Claim — deprivation of familial association in violation of the Due Process Clause of the Fourteenth Amendment pursuant to Section 1983 — is brought by Sukhwinder, individually. The Fourth Claim — deprivation of familial association in violation of the First Amendment pursuant to Section 1983 — is brought by Plaintiffs. The Ninth Claim
The Officer Defendants move for summary judgment on each claim. (ECF No. 164.) The Officer Defendants argue that they are entitled to qualified immunity on each of Plaintiffs' Section 1983 claims. (ECF No. 164-1 at 20.) For this reason, the Court will briefly describe the Section 1983 and qualified immunity standards generally before addressing each of the Section 1983 claims separately. The state law claims will be discussed together, as this is how they are treated in the Officer Defendants' motion.
Section 1983 provides that "[e]very person who, under color of any [state law] subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution
However, "[a]n official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Plumhoff v. Rickard, ___ U.S. ___, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014). While "[q]ualified immunity shields federal and state officials from money damages[,]" Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011), it is "an immunity from suit rather than a mere defense to liability[,]" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Consequently, it "is effectively lost if a case is erroneously permitted to go to trial." Pearson, 555 U.S. at 231, 129 S.Ct. 808.
A district court evaluating whether a government official is entitled to qualified immunity at the summary judgment stage asks two questions: (1) whether, taking the facts in the light most favorable to the nonmoving party, the officers' conduct violated a federal statutory or constitutional right, and (2) whether the right was clearly established at the time of the alleged misconduct. See Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Either question may be addressed first, and if the answer to either is "no," then the officers cannot be held liable for damages. See Pearson, 555 U.S. at 236, 129 S.Ct. 808.
With respect to the second prong, "[b]ecause the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct." Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). For this reason, the Supreme Court has emphasized the importance of ensuring the evidence is reviewed through the appropriate lens when deciding the "clearly established prong" on summary judgment. Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014).
The Officer Defendants argue that summary judgment should be granted on Plaintiffs' claim for excessive force in violation of the Fourth Amendment because their use of deadly force on Parminder was objectively reasonable taking their view of the facts, which they contend are undisputed. (ECF No. 164-1 at 20-30.) Additionally, even if the Court concludes that their use of force violates the Fourth Amendment on those facts, the Officer Defendants argue that they are entitled to qualified immunity because it was not clearly established that their use of deadly force was unconstitutional at the time of the shooting. (ECF No. 164-1 at 20, 30-34.)
Plaintiffs argue that it is improper to grant summary judgment on this claim because a jury must resolve the disputed material facts surrounding the use of deadly force, e.g., whether Parminder was armed at all, let alone whether he was threatening the Officer Defendants with a knife. (ECF No. 177 at 17-26.) Plaintiffs further argue that viewing the record in the light most favorable to them a reasonable jury could conclude that the Officer Defendants use of deadly force violated the Fourth Amendment and did so in a way that violated clearly established law. (ECF No. 177 at 38-42.)
Allegations of excessive force are examined under the Fourth Amendment's
The Ninth Circuit has articulated a three-step approach to the Graham balancing test. See Glenn v. Washington Cty., 673 F.3d 864, 871 (9th Cir. 2011). First, the district court "must assess the severity of the intrusion on the individual's Fourth Amendment rights by evaluating the type and amount of force inflicted." Id. (internal quotation marks omitted). Second, the district court must "evaluate the government's interest in the use of force." Id. Finally, the district court must "balance the gravity of the intrusion on the individual against the government's need for that intrusion." Id. (internal quotation marks omitted).
"Because [the excessive force inquiry] nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly." Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc).
With respect to the first step, the severity of the intrusion, there is no dispute that the Officer Defendants used deadly force which resulted in Parminder's death. (ECF No. 164-1 at 21.) "The intrusiveness of a seizure by means of deadly force is unmatched." Garner, 471 U.S. at 9, 105 S.Ct. 1694. Therefore, the Court proceeds to the second and third steps of the Ninth Circuit framework.
With respect to the second step, the "strength of the government's interest in the force used is evaluated by examining three primary factors: (1) `whether the suspect poses an immediate threat to the safety of the officers or others,' (2) `the severity of the crime at issue,' and (3) `whether he is actively resisting arrest or attempting to evade arrest by flight.'" Glenn, 673 F.3d at 872 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). The "`most important' [of these factors] is whether the suspect posed an `immediate threat to the safety of the officers or others.'" Mattos, 661 F.3d at 441 (quoting Smith, 394 F.3d at 702). "An officer's use
The three primary factors for evaluating the second step of the Graham test, however, are not exclusive. See Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (describing these as the "core factors"). The Ninth Circuit has made clear that the district court must "examine the totality of the circumstances and consider `whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.'" Glenn, 673 F.3d at 872. Other relevant factors may include the availability of less intrusive force, whether proper warnings were given, and whether it should have been apparent to the officers that the subject of the force used was mentally or emotionally disturbed. See, e.g., id. at 872; Bryan, 630 F.3d at 831; Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th Cir. 2001). With respect to the possibility of less intrusive force, officers need not employ the least intrusive means available so long as they act within a range of reasonable conduct. Scott, 39 F.3d at 915.
The Court will first examine the core Graham factors. The Court will then consider those additional factors raised in the Officer Defendants' motion.
Contrary to the Officer Defendants' assertions, whether Parminder was charging them, brandishing a knife, and threatening to kill them when they shot him to death is a disputed question of material fact that must be resolved by a jury. As discussed below, the deposition testimony of the Non-Party Witnesses calls into question the Officer Defendants' accounts of these key moments. The Officer Defendants' suggestion that "witnesses corroborate the [Officer Defendants'] version of events" is misleading. (ECF No. 164-1 at 23.) No more successful is the Officer Defendants' argument that these crucial factual questions should be taken from a jury because one of their experts "opines that all of the physical evidence is consistent with the [Officer Defendants'] version of events" or because Parminder's DNA was on a knife found at the scene of the shooting. (ECF No. 164-1 at 23-24.) Once these disputed facts are properly resolved in Plaintiffs' favor, as they must be on summary judgment, it cannot be said that Parminder was an immediate threat to the safety of the Officer Defendants or others at the time he was shot.
The deposition testimony of four Non-Party Witnesses — Timothy Antolin, Cassandra Lopez, Robert Mendes, and Alexandra Weise — conflicts with the Officer Defendants' accounts in three ways. First, the deposition testimony of Timothy Antolin and Cassandra Lopez squarely conflicts with the Officer Defendants' assertion that Parminder was charging them when they shot him. Ms. Lopez specifically states that after Parminder turned around he "didn't go at the [officers]" and "didn't charge them." (ECF No. 177-3 at 69:13-15.) Mr. Antolin testified that Parminder had not lunged toward the officers. (ECF No. 177-3 at 88:20-22.) Rather, Parminder "didn't move, ... he was just standing there." (ECF No. 177-3 at 88:23-25.)
Second, the testimony of Mr. Antolin and Ms. Lopez contradicts the Officer Defendants assertion that Parminder "turned and faced [the Officer Defendants] from less than fifteen (15) feet with the knife raised near his head." (ECF No. 164-1 at 22.) Both Antolin and Lopez heard the Officer Defendant make references to a
Third, the testimony of Mr. Antolin, Mr. Mendes and Ms. Weise calls into question whether Parminder was yelling and letting out a "war cry" while charging the Officer Defendants. (See ECF No. 164-1 at 22.) Mr. Antolin testified Parminder had stopped yelling prior to beginning to turn around. (ECF No. 177-3 at 88:20-25.) Mr. Mendes indicated that by the time Parminder turned around "[t]he yelling on [Parminder's] part was kind of over at that point[.]" (ECF No. 177-3 at 184:5-16.) Ms. Weise testified she heard someone say "don't shoot" just before the shots were fired. (ECF No. 177-3 at 103:18-19.)
As is apparent from the Officer Defendants' discussion in their brief, Mr. Mendes testimony differs from Mr. Antolin and Ms. Lopez's testimony and is in some ways consistent with the Officer Defendants' testimony. (See ECF No. 164-1 at 23.) However, this misses the point. The question at the summary judgment stage is not whether Mr. Mendes's testimony is as supportive of the Officer Defendants' version of events as they suggest. It is similarly not the question whether the Non-Party Witnesses' accounts are entirely consistent with each other. The question is whether the Officer Defendants' version of events is rendered genuinely in dispute by the evidence properly before this Court. It is.
The Officer Defendants' suggestion that their account is corroborated by the California Department of Justice's finding of Parminder's DNA on a knife recovered from the scene does not change this. (ECF No. 164-1 at 24.) Although this may be consistent with their accounts, it is not inconsistent with the account of the eyewitnesses. As previously noted Mr. Antolin believed Parminder's hands may have been in his pockets. He then testified that after Parminder fell to the ground, an officer "put handcuffs on him" and he "started rummaging through his pockets." (ECF No. 177-3 at 89:19-20.) It was only after this that Mr. Antolin saw a knife near the scene of the shooting. (ECF No. 177-3 at 95:9-15.) A jury could find that Parminder owned a knife which had his DNA on it, but that it had been in his pocket at the time of the shooting. Therefore, they could conclude that he did not present an immediate threat to officers or anyone else.
Similarly, the opinion of Alexander Jason, the Officer Defendants' "bullet wound expert," that the physical evidence is "consistent" with the Officer Defendants' accounts does not render their version of events undisputed. (ECF No 164-1 at 23.) The Court will briefly demonstrate this for Findings 2 through 5 contained in Mr. Jason's Declaration.
Finding 2 is that the "wound paths of the decedent are consistent with him moving forward toward Officer Bratton while being struck by the bullets." (ECF No. 164-9 at ¶ 17.) Jason makes no effort to explain why the wound paths are inconsistent with the accounts of the Non-Party
Jason gives no explanation why having "rotational movement" suggests forward motion. Jason does not state whether this rotation came before Parminder's supposed charge — which would be consistent with statements of Antolin and Lopez that Parminder was shot as he was turning or having just completed his turn toward the Officer Defendants — or after the shooting commenced — which may simply have been an effort to turn away as Parminder was being shot multiple times. Likewise, Jason does not indicate why leaning forward is inherently aggressive. It is noteworthy that Jason's own analysis suggests that five of the eleven shots that struck Parminder as he faced the Officer Defendants did not have a downward trajectory — one shot to the abdomen, two to the chest, and two in the legs. (See ECF No. 164-9 at ¶ 17.) If any or all of those five shots struck first, there are plausible alternative explanations for why Parminder was leaning forward that Jason does not discuss, let alone rule out. Might Parminder have been doubled over in pain when he was hit with the downward trajectory bullets? Did Parminder reflexively lean forward to look down to see where he had been hit? Was this some futile, instinctive attempt to make himself a smaller target? Tucking his chin to his chest seems just as plausibly explained by any of these.
Finding 3 is that one of the three gunshot wounds not previously discussed entered Parminder's arm in a manner consistent with Parminder's right hand being in an "outstretched position toward the shooter[.]" (ECF No. 164-9 at ¶ 18.) Finding 4 is that the path of another of these three gunshot wounds suggests that Parminder was "shot with right upper arm raised to his shoulder level[,]" which Jason opines is consistent with holding a knife up in "stabbing motion." (ECF No. 164-9 at ¶ 19.) Finding 5 is that "bullet defects on decedent's clothing are consistent with the right arm being raised when at least one of the bullets struck." (ECF No. 164-9 at ¶ 19.) Again, there are plausible alternative explanations as to why Parminder might have his right arm raised with an outstretched hand to shoulder height that are inconsistent with the Officer Defendants' account, which Jason makes no effort to rule out. Parminder might have been gesturing at the Officer Defendants to back off or leave him alone — which would be consistent with Mr. Mendes's testimony. (See ECF No. 164-5 at 96:11-14.) He might have been raising his hands to surrender or in effort to signal to the Officer Defendants not to shoot (or not to continue shooting) — which would be consistent with Ms. Weise hearing someone say "don't shoot." (See ECF No. 177-3 at 103:18-19.) Quite simply, these factual questions are not appropriately resolved by the Court on summary judgment. Therefore, this factor does not support granting the Officer Defendants' motion.
Viewing the summary judgment record through the proper lens, by the time the Officer Defendants encountered
As this Court recently explained, under California law, the distinction between felony and misdemeanor domestic violence is whether the victim has suffered a physical injury. See Reed v. City of Modesto, 122 F.Supp.3d 967, 975 (E.D. Cal. 2015). The Court is mindful that the Officer Defendants were not told that the reported attack on Parminder's mother had not occurred and that reasonableness is "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396, 109 S.Ct. 1865. However, like Reed, there is no evidence in the record that the Officer Defendants observed any injury on any of the persons in the home. To the contrary, the Officer Defendants admittedly left the Family Home without ascertaining whether anyone there had been injured. (ECF No. 177-3 at 19:3-9 (Corporal Bratton testifying that he left without learning whether anyone had been hurt); ECF No. 177-3 at 146:19-25 (Officer Lockie testifying that he had not asked whether anyone was hurt and did not hear Corporal Bratton ask this question).)
That this misdemeanor involved domestic violence does not support a conclusion that the Officer Defendants' use of force was reasonable because at the time they encountered Parminder the reported domestic dispute was not ongoing and the alleged victim was not in immediate danger. While the Ninth Circuit has emphasized the increased danger officers face when responding to domestic disturbances, Ninth Circuit precedent has distinguished cases where (i) the domestic dispute terminated before officers arrived and (ii) the alleged abuser is no longer in the presence of or close proximity to the victim. This precedent can be succinctly summarized as follows:
George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013). This is such a case. Indeed, in the instant case Parminder was further removed from the Family Home than the husbands in Smith and George. See id. at 832-33, 839 (husband shot while on his back patio);Smith, 394 F.3d at 693-94, 702-03 (husband tackled, pepper sprayed, and attacked by police dog on his front porch).
The Officer Defendants' characterization of the crime at issue in their briefing results from a refusal to review the record through the prism of the traditional summary judgment standard. The Officer Defendants suggest that the crimes at issue were "[a]ssault with a deadly weapon or by
For the foregoing reasons, this factor does not support granting the Officer Defendants' motion.
At the time of the shooting, viewing the evidence in the light most favorable to Plaintiffs, a jury could conclude Parminder was neither resisting nor attempting to flee, for the reasons set forth above. Parminder was asked to stop. A jury could conclude that he did. Two witnesses indicated Parminder did not move toward the Officer Defendants at that point and turned (or was in the process of turning) to face them. An earwitness testified she heard a person say "don't shoot."
The Officer Defendants offer arguments with respect to five additional factors. The Court notes that four of these five arguments are little more than identifying factors that the Ninth Circuit has recognized as being appropriately considered in some cases coupled with a reformulation of their assertion that it is undisputed that they shot a man who was attacking them with a knife. The Ninth Circuit has unambiguously stated that "where a suspect threatens an officer with a weapon such as a gun or a knife, the officer is justified in using deadly force." Smith, 394 F.3d at 704. However, the Ninth Circuit has repeatedly noted that a "simple statement by an officer that he fears for his safety or the safety of others is not enough." See, e.g., Mattos, 661 F.3d at 441-42. This is not changed by repeating it over and over again under the guise of requesting the Court to consider "additional" factors under Graham.
Arguments of this sort are not helpful and do not warrant detailed responses on their own terms, i.e., discretely analyzing "additional" Graham factors only after improperly resolving crucial factual disputes in favor of the moving party. This is particularly true where it essentially assumes what the Ninth Circuit, sitting en banc, has twice described as the "most important" consideration under Graham — whether the suspect posed an "immediate threat to the safety of the officers or others." Mattos, 661 F.3d at 441; Smith, 394 F.3d at 702. Graham itself admonished that the overarching inquiry — whether the force used to effectuate a particular seizure was reasonable — "is not capable of precise definition or mechanical application." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (emphasis added). The enumerated factors are meant to facilitate (and focus) the inquiry into whether the amount of force applied was reasonable in the totality of the circumstances the officers found themselves when they applied the force. Smith, 394 F.3d at 701. This is precisely why a district court's inquiry at the summary judgment stage is not limited to the three factors enumerated in Graham. Mattos, 661 F.3d at 441; Smith, 394 F.3d at 701.
As to the Officer Defendants' argument that the fast development of events supported their use of deadly force, this must be rejected. (See ECF No 164-1 at 27-28.) A jury could find that at the time the Officer Defendants shot Parminder, he had come to a stop, faced them, did
Similarly, the Officer Defendants' argument that time did not allow them to appropriately consider less lethal force must be rejected. (See ECF No. 164-1 at 27.) As already discussed, a jury could find Parminder had come to a stop at the Officer Defendants' request and said "don't shoot" at the time he was shot. This would permit the Officer Defendants to weigh alternatives short of shooting Parminder repeatedly at close range. Less intrusive means are not limited to applications of lesser amounts of force as the Officer Defendants' arguments seem to suggest. See Deorle, 272 F.3d at 1282 ("[The officer who fired a less than lethal shotgun at plaintiff] could have easily avoided a confrontation, and awaited the arrival of the negotiating team...."); Glenn, 673 F.3d at 874 ("[Decedent] stood in the driveway several feet from the officers (who could have moved farther away at any time, had they wanted to), with guns trained on him, while his friends stood behind the officers and his parents and grandmother were in their homes."). Quite simply, a reasonably jury need not accept the Officer Defendants' argument that they were presented a binary choice: either allow themselves to be killed or "draw[] their weapons[,] shout[] commands," and then shoot Parminder to death. See id. at 876 ("[W]hen dealing with an emotionally disturbed individual who is creating a disturbance or resisting arrest, as opposed to a dangerous criminal, officers typically use less forceful tactics.").
The Officer Defendants argue that giving Parminder warnings supports granting their motion. (ECF No. 164-1 at 26.) This also fails. Ninth Circuit precedent does provide that "[a]ppropriate warnings... should be given, when feasible, if the use of force may result in serious injury." Glenn, 673 F.3d at 864 (emphasis added). Suppose the Officer Defendants told Parminder: "We have reason to believe you have committed a misdemeanor and may be suffering from mental illness. If you do not cooperate with us within 103 seconds, we are prepared to shoot you fatally, even if you are unarmed, standing still, silently facing us, and ask us not to." It is doubtful that the Officer Defendants would directly defend such a warning as proper if those were indeed the circumstances in which it was given, i.e. whether the warning was "appropriate." But in essence those are the circumstances which a jury could conclude the Officer Defendants found themselves.
The Officer Defendants' argument with respect to Parminder's mental illness also fails. In short, they suggest "cases [that] have criticized the use of force against mentally ill persons" are distinguishable because Parminder was shot to death while attempting to stab the Officer Defendants to death. (ECF No. 164-1 at 28-29.) This does not warrant a response as it clearly ignores the summary judgment standard. Moreover, a jury need not accept the Officer Defendants statement that they "perceive[d]" themselves to be dealing with a dangerous criminal suspect rather than a mentally ill person. (ECF No. 164-1 at 29.) Both of the Officer Defendants acknowledge that they were aware prior to their arrival at the Family Home that they were responding to an incident involving a reportedly mentally ill person. (See ECF No. 164-2 at ¶¶ 9-10.) A
Lastly, the Officer Defendants argue that their use of force was made more reasonable because of Parminder's family's "relative culpability" in "creat[ing this] dangerous situation." (ECF No. 164-1 at 26-27.) The Officer Defendants' rely on Espinosa v. City and Cty. of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010), for this proposition. This reliance is misplaced. That quotation does describe the "parties['] `relative culpability,'" but this simply paraphrases the following quote from Scott:
Scott, 550 U.S. at 384, 127 S.Ct. 1769. Nothing suggests that "parties" as used in Espinosa means litigants. As the Ninth Circuit, sitting en banc, explained this statement from Scott merely observes that "in weighing the Graham governmental interests in a situation where someone is likely to get hurt — either a fleeing suspect or innocent bystanders — it is `appropriate in this process to take into account ... relative culpability.'" Mattos, 661 F.3d at 450. Plaintiffs do not dispute that Kuldeep falsely reported that Ms. Kaur was attacked by Parminder. (ECF No. 177-1 at ¶¶ 18-19.) It seems quite apparent from Kuldeep's deposition she hoped to provoke a quicker response time by making the police believe they were responding to a violent domestic dispute. (ECF No. 164-4 at 11:4-25.) However, if Parminder had survived his wounds and, therefore Plaintiffs were not "parties" with respect to this claim, there could be no argument that the Officer Defendants' behavior would become less reasonable. The Court's analysis has already factored in that the Officer Defendants believed they had responded to a domestic dispute and that they were not told this was untrue until after they shot Parminder.
For the foregoing reasons, none of the foregoing factors support granting the Officer Defendants' motion.
The foregoing analysis makes evident that the question whether the force used here was reasonable is a matter that cannot be resolved in favor of the Officer Defendants on summary judgment. The Officer Defendants have failed to meet their burden to show that there are no questions of material fact regarding whether the use of deadly force was reasonable. Plaintiffs have proffered evidence from which a reasonable jury could find that the Officer Defendants (i) had reason to believe they were dealing with a mentally ill individual, (ii) who at most committed a misdemeanor, (iii) was not fleeing, (iv)
Unless the Court concludes that the Officer Defendants are entitled to qualified immunity, the Officer Defendants' motion must be denied with respect to this claim.
Viewing the evidence in the light most favorable to Plaintiffs, the Officer Defendants' conduct violated Parminder's Fourth Amendment rights and it was "clearly established" that such conduct constituted a Fourth Amendment violation at the time of the Officer Defendants deadly encounter with Parminder. See Tolan, 134 S.Ct. at 1866. Therefore, their argument they are entitled to qualified immunity on this claim at the summary judgment stage must be denied.
As described above, a jury could conclude that the Officer Defendants shot to death a man who at most committed a misdemeanor, was not fleeing, had not armed himself with a weapon, was not threatening the Officer Defendants or anyone else, and asked them not to shoot him. As the Ninth Circuit has observed, "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.'" Torres v. City of Madera, 648 F.3d 1119, 1128 (9th Cir. 2011) (quoting Garner, 471 U.S. at 11, 105 S.Ct. 1694); see also Brosseau, 543 U.S. at 199, 125 S.Ct. 596 (making clear that "of course" Garner serves to give a fair warning to an officer that his conduct violates the Fourth Amendment in an "obvious case"). Not only is this precisely what occurred here, but at the summary judgment stage the instant case follows a fortiori from Garner. Here, unlike Garner, Parminder was neither "escap[ing]" nor was there a basis for believing that Parminder had committed a felony. Garner, 471 U.S. at 3, 105 S.Ct. 1694 ("This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon.").
The most charitable construction of the Officer Defendants' qualified immunity argument suggests that the case law is not settled on whether a police officer may kill a disturbed person attacking him with a knife where the officer responds to what he believes is case of domestic violence. (ECF No. 164 at 30-34.) Of course, the Court can no more accept the Officer Defendants' assertion that Parminder was attacking them with a knife because it is reasserted in connection with their qualified immunity argument. See Tolan, 134 S.Ct. at 1866.
The fact Parminder was emotionally or mentally disturbed and the 9-1-1 call reported an incident of domestic violence does not transform this into a scenario where officers were forced to grope for the "outer contours of the Fourth Amendment" without the benefit of a factually similar case. Torres, 648 F.3d at 1128. They were spared that "murky business," id., by the Ninth Circuit's decision in Glenn. The encounter in Glenn began with
In short, Glenn made clear that when officers are dealing with a person who may be mentally or emotionally disturbed, who has not committed a serious crime, is not trying to get away from the officers, is not threatening the officers or others, and is not involved in a physical altercation with anyone, those officers are not free to shoot him. Glenn further makes clear that this does not change simply because the officers were initially told they were responding to a domestic dispute.
For the foregoing reasons, the Officer Defendants' motion is DENIED with respect to the First Claim.
The Officer Defendants moved for summary judgment on Plaintiffs' Fourth Amendment provocation claim. (ECF No. 164-1 at 35-37.) However, the Court need not address the parties' arguments in connection with this claim in light of the Supreme Court's recent determination that the Ninth Circuit's "provocation rule" is incompatible with the Supreme Court's "excessive force jurisprudence." Cty. of L.A., Calif. v. Mendez, ___ U.S. ___, 137 S.Ct. 1539, 1546, 198 L.Ed.2d 52 (2017). In Mendez, the Supreme Court unambiguously held that "the Fourth Amendment provides no basis for such a rule." Id. at 1544. Therefore, the Second Claim fails as a matter of law, and the Officer Defendants' motion is GRANTED with respect to this claim.
The Officer Defendants argue that summary judgment should be granted on Plaintiffs' Fourteenth Amendment familial claim for three reasons. First, they argue
The Ninth Circuit "has recognized that parents have a Fourteenth Amendment liberty interest in the companionship and society of their children." Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). "Official conduct that `shocks the conscience' in depriving parents of that interest is cognizable as a violation of due process." Id. "In determining whether excessive force shocks the conscience, the court must first ask `whether the circumstances are such that actual deliberation [by the officer] is practical.'" Id. (quoting Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). "Where actual deliberation is practical, then an officer's `deliberate indifference' may suffice to shock the conscience." Id. "On the other hand, where a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives." Id.
The Officer Defendants argue the applicability of "purpose to harm" follows from the Ninth Circuit's decision in Porter. (ECF No. 164-1 at 38.) They observe that the officers in Porter were required to make "repeated split-second decisions" during the course of a "five-minute altercation." (ECF No. 164-1 at 38.) In their view, the instant action is therefore an obvious case because their encounter with Parminder was shorter than the one in Porter and theirs left them with only a "second or two" to decide to shoot Parminder. (ECF No. 164-1 at 38.) Thus, there was "no time for deliberation only self-preservation." (ECF No. 164-1 at 38.)
Again, this argument is premised on the Officer Defendants' view that it is undisputed they were in a quickly evolving situation that abruptly culminated with a close range knife attack. Viewing the evidence in the light most favorable to Plaintiffs, a jury could conclude that the Officer Defendants found time to actually deliberate in the period between their departure from the Family Home — which was described by an eyewitness as "nonchalant" (ECF No. 177-3 at 181:19) — and their shooting of a man a jury could conclude was neither dangerous nor currently in flight. Further, a jury could conclude the duration of the encounter was a function of the Officer Defendants' indifference (or worse) towards Parminder's constitutional rights. Consequently, the Court finds that the submitted evidence creates a genuine dispute about which standard of culpability should apply in this case. See Rose v. Cty. of Sacramento, 163 F.Supp.3d 787, 792 (E.D. Cal. 2016).
In any event, viewing the evidence in the light most favorable to the Plaintiffs, a jury could find the more stringent purpose to harm standard satisfied. "The purpose to harm standard is a subjective standard of culpability." A.D. v. California Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013). More specifically, "[i]t is the intent to inflict force beyond that which is required by a legitimate law enforcement objective that `shocks the conscience' and gives rise to liability under § 1983...." Porter, 546 F.3d at 1140 (emphasis added). As described in connection with the First Claim, the governmental interest in using force on Parminder was minimal. Nevertheless, the Officer Defendants shot him 14 times. A jury could find the Officer Defendants had such an illegitimate purpose if that jury concludes the Officer Defendants
This would present an "obvious" case such that "qualified immunity is inapplicable, even without a case directly on point." See A.D., 712 F.3d at 455 (concluding shooting a person twelve times where the officer who fired the shots ascertained the decedent was unarmed presented such an "obvious" case even where the decedent had just led officers on a high speed chase in a stolen car and had very recently rammed the police car boxing her in). The Officer Defendants' citation to Hayes v. Cty. of San Diego, 736 F.3d 1223 (9th Cir. 2013), is not to the contrary. There, "[t]he decision to use deadly force against Hayes was a snap judgment based on the unexpected appearance of a knife in his hand." See id. at 1230 (emphasis added).
For the foregoing reasons, the Officer Defendants' motion for summary judgment on the Third Claim is DENIED as they have failed to show they are entitled to judgment as a matter of law on this claim.
The Ninth Circuit has recognized a First Amendment familial association claim. Lee v. Cty. of L.A., 250 F.3d 668, 685-86 (9th Cir. 2001). However, there appears to be "no Ninth Circuit case setting out specifically the conduct or elements that constitute violation of familial association under the First Amendment." Schwartz v. Lassen Cty. ex rel. Lassen Cty. Jail, No. 2:10-CV-03048-MCE, 2013 WL 5375588, at *10 (E.D. Cal. Sept. 24, 2013); see also Slusher v. City of Napa, No: C 15-2394 SBA, 2015 WL 8527411, at *7 (N.D. Cal. Dec. 11, 2015) ("The Court notes that there appears to be no controlling case law regarding the legal standard for stating a familial association claim under the First Amendment."). Therefore, the Court is required to answer two preliminary questions before proceeding. First, what is the standard for determining whether a plaintiff has been deprived of her First Amendment familial association right? Second, does the limited guidance provided by Supreme Court and Ninth Circuit precedent regarding the precise contours of this claim prevent it from being "clearly established" for purposes of qualified immunity?
The Court concludes that Plaintiffs' First Amendment rights to familial association are measured by the same standard as Fourteenth Amendment rights to familial association based on the Ninth Circuit's analysis in Lee. There, the Ninth Circuit held: "plaintiffs have adequately alleged that defendants' actions and policies constituted an `unwarranted interference' with Kerry Sanders's and his mother's right to familial association under both the First and Fourteenth Amendments." Lee, 250 F.3d at 686 (emphasis added). Lee arose "out of the wrongful arrest, extradition [to New York], and incarceration [in New York] of Kerry Sanders, a mentally disabled Los Angeles resident ... incorrectly identified ... as [a] fugitive ... who absconded from a New York state-prison work-release program." Id. at 676. The Ninth Circuit identified the pertinent allegations as follows:
Id. at 685-86. Nothing in this analysis suggests a different standard applies. Nor does it allow for any principled basis for applying one.
Having already concluded that a jury could find that the Officer Defendants' conduct "shocked the conscience," even under the "purpose to harm" standard, the Court turns to whether the Officer Defendants are entitled to qualified immunity simply because it is unclear which constitutional provisions their conduct would offend. They are not. "When properly applied, [qualified immunity] protects `all but the plainly incompetent or those who knowingly violate the law.'" al-Kidd, 563 U.S. at 743, 131 S.Ct. 2074. Thus, "qualified immunity operates `to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.'" Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (emphasis added). However, qualified immunity does not give an officer who engages in conduct that was patently unconstitutional when committed a get-out-of-liability-free card because there is "some lingering ambiguity" as to which constitutional provision "applies in this precise context," or whether he has managed to violate several constitutional provisions at once. See Harris v. City of Circleville, 583 F.3d 356, 367 (6th Cir. 2009) ("[E]ven if it were unclear whether the Fourth or Fourteenth Amendment governs Harris's excessive force claims, the legal norms underlying those claims were nevertheless clearly established."); Estate of Booker v. Gomez, 745 F.3d 405, 428 (10th Cir. 2014) (same); Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 72-73 (1st Cir. 2016) (same); see also P.B. v. Koch, 96 F.3d 1298, 1303 n.4 (9th Cir. 1996) ("Regardless of the appropriate [constitutional] `home' for plaintiffs' right to be free from excessive force, there was a clearly established right to be free from such force in 1990 and 1991. That there is possible uncertainty as to the appropriate test does not immunize Koch's actions from liability.")
The Court now turns briefly to the Officer Defendants' argument that Plaintiffs' claim fails as a matter of law for failing to prove they had an expressive relationship with Parminder.
For the foregoing reasons, the Officer Defendants' motion for summary judgment on the Fourth Claim is DENIED as they have failed to show they are entitled to judgment as a matter of law on this claim.
The Officer Defendants' motion as it pertains to Plaintiffs' state law claims requires little discussion. As a preliminary matter, Plaintiffs acknowledge their Eleventh Claim (Negligent Infliction of Emotional Distress) fails as a matter of law. (ECF No. 177 at 37.) Consequently, the Officer Defendants' motion is GRANTED with respect to that claim. With respect to remaining state law claims, the Officer Defendants argue these "state law claims" fall "[l]ike dominoes ... with the federal claims" due to the similarities between the state and federal standards. (ECF No. 164-1 at 41.) Having failed to tip the federal claim "dominoes," the Officer Defendants have failed to show they are entitled to judgement as a matter of law on the remaining state law claims. Therefore, the Officer Defendants' motion for summary judgment with respect to the Ninth, Tenth and Twelfth Claims is DENIED.
The Officer Defendants argument that Plaintiffs are not entitled to punitive damages as a matter of law is entirely inadequate. As Plaintiffs correctly observe, the Officer Defendants have not even "indicated whether they are moving for judgment on Plaintiffs' punitive damages [prayer] under federal or state law" or both. (ECF No. 177 at 43.) More importantly, in arguing that there is insufficient evidence to support such an award, the Officer Defendants again presuppose jurors must accept their version of events. (ECF No. 164-1 at 42.) They need not. The Officer Defendants' motion is therefore DENIED on this point.
The City Defendants move for summary judgment on the following claims from TAC. (ECF No. 163.) The Fifth Claim — failure to enact adequate customs, policies and/or practices in violation of the Fourteenth Amendment pursuant to Section 1983 — is brought by Sukhwinder, as successor in interest to Parminder, against the City Defendants. The Sixth Claim — failure to supervise and train in violation of
As the City Defendants' arguments build on each other, the Court will discuss them in the order discussed in their opening beginning with the ADA claim. The Court will then discuss the Section 1983 claims followed by the state law claims. However, the Court will first discuss some matters that pertain to the motion generally.
As a preliminary note, the City Defendants have filed for joinder indicating that they adopt the entirety of the Officer Defendants' statement of undisputed material facts. (ECF No. 163-6.) Additionally, the City Defendants filed a supplemental statement containing 39 items they submit are undisputed material facts. (ECF No. 163-2.) There are two running disagreements between the parties regarding fundamental points of summary judgment procedure. As these permeate the briefs, it will be more efficient to resolve them at the outset.
First, the parties disagree whether in connection with a motion for summary judgment the movant must always cite to evidence properly before the district court before the non-movant is forced to come forward with evidence to support her claim. Ninth Circuit precedent is settled on this point. "Under the federal [summary judgment] standard a moving defendant may shift the burden of producing evidence to the nonmoving plaintiff merely by `showing' — that is, pointing out through argument — the absence of evidence to support plaintiff's claim." Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
However, the subtext of this disagreement also warrants discussion. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion...." Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. Furthermore, "[a] moving party without the ultimate burden of persuasion at trial ... has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Where the movant seeks to discharge these burdens through argument, it is essential that the movant actually make one. See Fairbank, 212 F.3d at 532. Not every time an attorney opens his mouth or produces text on a page has he made an argument. See Bartell v. JPMorgan Chase Bank, NA, 607
This first disagreement informs the second. Sukhwinder
As Sukhwinder correctly observes "[t]he law is clear ... that an expert report cannot be used to prove the existence of facts set forth therein." In re Citric Acid Litig., 191 F.3d 1090, 1102 (9th Cir. 1999). Likewise, she correctly observes that if a movant wishes to have the contents of a document considered for summary judgment, it must abide by the requirements of Rule 56. Id. ("To be considered in a motion for summary judgment, `documents must be authenticated by and attached to an affidavit that meets the requirements of [Rule 56] and the affiant must be a person through whom the exhibits could be admitted into evidence.'").
Consequently, where the City Defendants cite expert declarants, who have no personal knowledge of the events relevant to the encounter between Parminder and the Officer Defendants, for the proposition that these facts occurred, they are improperly supported. See Doe v. City of San Diego, 35 F.Supp.3d 1233, 1236-37 (S.D. Cal. 2014) (explaining that "Plaintiff has improperly supported her statement of facts by citing to the factual statements set forth by her expert witnesses in their reports rather than citing to facts in the record"); see also Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F.Supp.2d 1023, 1039 (C.D. Cal. 2013) (distinguishing between "expert opinion" and inadmissible factual summaries and noting the expert "lack[ed] personal knowledge for most of the facts in his report and therefore could not testify to them to prove the truth of the matter"). Likewise, the Court "will not simply assume that the experts have accurately quoted or characterized those documents" that the City Defendants have not bothered to offer in accordance with Rule 56. See Harris v. Extendicare Homes, Inc., 829 F.Supp.2d 1023, 1027 (W.D. Wash. 2011). For example, six of the City Defendants' proposed facts begin with the following
The Court need not resolve the question of whether an expert's opinion may be included in a statement of undisputed material facts as it is unnecessary to resolve this motion. Moreover, the City Defendants' mischaracterization of summaries of historical facts as expert opinion was not helpful. For example, the City Defendants suggest that it is an expert opinion whether during a "deposition [Parminder's ex-wife] stated that during her marriage ... [Parminder] ... threatened to kill her or himself on three separate occasions." (ECF No. 188-1 at ¶ 161.) That is remarkable. More remarkable still is that this was done after Sukhwinder pincited authority drawing the distinction between expert opinion and factual summaries made by experts in the summary judgment context. Because of this, and the failure in several instances of the City Defendants to meet their burdens on other grounds, it will be more efficient to address whether specific proposed facts are properly supported in the context of discrete arguments relating to specific claims. Consequently, the Court will not include a separate factual background section with respect to the City Defendants' motion as it is unnecessary to resolve their motion.
One last related point needs to be addressed, the City Defendants' seeming misapprehension of the function of expert testimony in establishing that something is undisputed. Expert testimony is only admissible if it "will help the trier of fact to understand the evidence or to determine a fact in issue[.]" Fed. R. Evid. 702(a). However, helpful expert testimony is not restricted to opinions regarding factual matters that are undisputed. See Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 2228, 183 L.Ed.2d 89 (2012) (plurality opinion) ("Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert."). In such a case, the expert's opinion is contingent upon a factfinder agreeing with the facts as the expert assumes them. See Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993) ("When an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot support a jury's verdict.") So, for example, the assertion that it is undisputed that the encounter between Parminder and the Officer Defendants "quickly became one wherein public safety became primary concern" does not become undisputed because an expert is of that opinion. (See, e.g., ECF No. 188-1 at ¶ 156.)
The City Defendants move for summary judgment on Sukhwinder's claim under Title II of the ADA for four reasons. First, the City Defendants argue that the ADA claim fails because the Officer Defendants acted reasonably under the circumstances. (ECF No. 163-1 at 17-21.) Second, they argue Sukhwinder cannot show the existence of a reasonable accommodation that could have been provided to Parminder. (See ECF No. 163-1 at 17.) Third, they argue Sukhwinder cannot show the City Defendants discriminated against Parminder
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Under Ninth Circuit precedent, Title II of the ADA applies to arrests. Sheehan v. City & Cty. of San Francisco ("Sheehan I"), 743 F.3d 1211, 1232 (9th Cir. 2014), rev'd in part, cert. dismissed in part sub nom. City & Cty. of San Francisco, Calif. v. Sheehan ("Sheehan II"), ___ U.S. ___, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015).
Id. Sukhwinder brings the latter. (See ECF No. 88 at 23-25.) With such a claim, the Ninth Circuit has explained that "the plaintiff bears the initial burden of producing evidence of the existence of a reasonable accommodation[.]" Id. Moreover, the Ninth Circuit agreed that in the arrest context, "exigent circumstances inform the reasonableness analysis under the ADA, just as they inform the distinct reasonableness analysis under the Fourth Amendment." Id.
With respect to the City Defendants' first argument, the parties disagree over whether it is "proper" for the Court to apply the "Graham factors to the reasonableness of an accommodation under the ADA." (Compare ECF No. 163-1 at 18 with ECF No. 178 at 21.) The Court need not resolve this dispute because, even assuming that the City Defendants are correct that these factors apply, this argument still fails. The City Defendants argue that "[Sukhwinder] cannot show that the officers acted unreasonably" when their encounter with Parminder is viewed through the lens of the Graham factors "given the totality of the circumstances." (ECF No. 163-1 at 20.) The Court has denied the Officer Defendants' motion for summary judgment on Plaintiffs' Fourth Amendment claims explaining in detail why a reasonable jury could conclude that the Officer Defendants' actions were not reasonable within the meaning of the Fourth Amendment. For these same reasons, the City Defendants' first argument also fails.
With respect to the City Defendants' second argument, Sukhwinder has raised a triable issue regarding whether a reasonable accommodation existed citing to evidence properly before this Court. In short, Sukhwinder argues a jury could conclude that before the Officer Defendants shot Parminder to death they were aware of his mental illness and nevertheless issued him commands with guns drawn and
The City Defendants' "argument" in reply is wholly inadequate.
With respect to City Defendants' third argument, they have neither demonstrated that Parminder was drinking alcohol prior to his encounter with the Officer Defendants nor that this is the only inference that can be drawn from the facts properly before the Court. Even where movant supports its position with a fact, "summary judgment is inappropriate when different ultimate inferences may be drawn from the evidence." Cushman v. City of Troutdale, No. Civil No. 07-0012-HU, 2009 WL 890505, at *2 (D. Or. Mar. 30, 2009) (citing Sankovich v. Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981)).
The assertions that Parminder was drinking, was intoxicated, and that intoxication had an impact on his encounter with the Officer Defendants is premised on a single undisputed fact — a toxicology test conducted four days after the shooting showed there was a "measurable amount of alcohol" in Parminder's corpse. (See ECF No. 178 at 23-25.) The focus of Sukhwinder's opposition is that the City Defendants have offered "pure speculation" supported by "no evidence" that the presence of alcohol in a corpse under these circumstances must result from drinking alcohol, let alone to the point of intoxication. (ECF No. 178 at 23-24.) Mysteriously, the City Defendants have not bothered to respond to this point in their reply brief.
As to the fourth argument, a qualified immunity defense is unavailable to Chief Helms in connection with Sukhwinder's claim under Title II of the ADA for two separate reasons. First, as Sukhwinder correctly observes, she has not brought this claim against Chief Helms in the first place. (See ECF No. 88 at 23-25.) Second, "[i]ndividual liability is precluded under ADA Title II." Roundtree v. Adams, No. 1:01-cv-06502-OWW-JLO, 2005 WL 3284405, at *8 (E.D. Cal. Dec. 1, 2005). Consequently, qualified immunity is simply inapplicable to violations of Title II of the ADA. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
For the foregoing reasons, the City Defendants' motion for summary judgment on the Seventh Claim is DENIED.
The Fifth, Sixth, and Seventh Claims are each brought pursuant to Section 1983. Before discussing them individually, the Court will briefly set out the standard for municipal liability under said section. The Court will also briefly deal with one of City Defendants' arguments common to the Fifth and Sixth Claims.
"In Monell, the Supreme Court held that municipalities are `persons' subject to damages liability under section 1983 where `action pursuant to official municipal policy of some nature cause[s] a constitutional tort.'" Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (quoting Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). "The Court made clear that the municipality itself must cause the constitutional deprivation and that a city may not be held vicariously liable for the unconstitutional acts of its
Id. at 1346-47 (internal citations and quotation marks omitted).
The City Defendants argue that "because Plaintiff's failure to accommodate claims fails" her "Monell claims alleged in the Fifth and Sixth cause of action" must fail also as they are "based on contacts with mentally ill persons." (ECF No. 163-1 at 22.) The Court would first observe that the City Defendants have cited no authority for this proposition. In any event, this argument fails because the Court has denied the City Defendants' motion on the Seventh Claim.
The City Defendants argue they are entitled to summary judgment on Sukhwinder's Fifth Claim for two reasons. Each must be rejected. First, the City Defendants assert that "[a]t the summary judgment stage, [Sukhwinder] must show with evidence that there is a `proper way' to interact with [Parminder], that the officers failed to do so, and that this was the moving force behind the violation" in order to make out this claim. (ECF No. 163-1 at 22 (emphasis added).) The City Defendants neither cite authority nor offer legal analysis in support of this proposition. This seems to have been an attempt by the City Defendants to discharge their initial burden through argument. They have not met this burden, as this sentence does not "an argument make."
Second, the City Defendants argue that "[b]ecause Officers Bratton and Lockie appropriately dealt with the situation as presented to them, [Sukhwinder] cannot show any deliberate indifference on behalf of [LPD], and this claim should be dismissed." (ECF No. 163-1 at 23.) The Court will not tarry long over this "argument." The Court has already concluded that a reasonable jury could find that the
For the foregoing reasons, the City Defendants' motion for summary judgment on the Fifth Claim is DENIED.
The City Defendants have offered two general arguments in favor of their motion for summary judgment on this claim. Each fails. The Court will discuss these first. A discussion of Defendant Helms's separate, third argument relating to liability in his individual capacity follows.
The City Defendants begin their analysis with a citation to Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011), for the proposition that "[i]n considering claims based on a failure to train municipal employees, a pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference." (ECF No. 163-1 at 23 (internal quotation marks omitted).) This is followed by the assertion that "[Sukhwinder] cannot meet this burden." (ECF No. 163-1 at 23.) As Sukhwinder correctly observes, "the Supreme Court, in Connick, recently affirmed the validity of the so-called `single-incident' theory" of liability. Schwartz v. Lassen Cty. ex rel. Lassen Cty. Jail (Det. Facility), 838 F.Supp.2d 1045, 1058 (E.D. Cal. 2012). "Connick explained that the `single-incident' theory represents the Supreme Court's refusal to `foreclose upon the possibility' that the failure to train is so patently obvious that a single constitutional violation suffices to give rise to municipal liability under § 1983." Id. The opposition cites four district court opinions from within the Ninth Circuit, including one from this Court, where single-incident theory claims survived motions for summary judgment. (ECF No. 178 at 17-18.) Each opinion involved alleged applications of excessive force on mentally ill persons. (ECF No. 178 at 17-18.) This was met with silence in the reply brief. It is not the role of the Court to fill this silence. The City Defendants have not met their burden to demonstrate they are entitled to judgment as a matter of law on this point.
What the Court construes as an attempt at a second "argument" is wholly inadequate. For example, in two sentences copied and pasted from their supplemental statement of undisputed material facts, the City Defendants assert LPD officers receive training that is required by the State of California and the California Commission on Peace Officer Standards and Training. (ECF No. 163-1 at 24.) While Sukhwinder correctly observes the City Defendants have not properly submitted the records their expert is interpreting, there is a more serious problem. (ECF No. 178 at 18.) The City Defendants have made no argument why this entitles them to judgment as a matter of law on this federal constitutional claim. The final paragraph suffers from precisely the same problems. The City Defendants again have not met their burden.
Defendant Helms moves for summary judgment on Plaintiff's Sixth Claim,
As previously discussed, Sukhwinder's suggestion that Defendant Helms did not meet his initial burden is incorrect. (See ECF No. 178 at 12.) As Defendant Helms correctly observed, it is an essential element of a Section 1983 claim seeking damages against a government official that the government official be shown to have violated the constitution by his own actions. Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011). It is well-settled that "§ 1983 suits do not allow for the imposition of vicarious liability[.]" Id. at 1206. This is so even with supervisors, although they need not be "physically present" or be "directly and personally involved in the same way as are the individual officers who are on the scene inflicting constitutional injury." Id. at 1205-06. Consequently, for this claim, we are now at the critical "moment in [the] lawsuit, when the nonmoving party must show what evidence it has that would convince a trier of fact to accept its version of events." Mendelson v. Country Coach, Inc., No. EDCV 06-00572-SGL (OPx), 2007 WL 4811927, at *2 n.1 (C.D. Cal. Nov. 19, 2007); see also Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) ("We rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment."). None has been cited in the opposition for this claim.
The opposition seeks to excuse this by arguing that "the actions and inactions of Defendant Helms necessarily encompass those of municipal Defendants City and LPD, for whom he was a policy-maker." (ECF No. 178 at 12 (emphasis added).) This is incorrect. The cases cited in the opposition do not support this argument. The source of the opposition's confusion seems to be the use of "supervisory liability" in some opinions dealing with § 1983 suits or Bivens actions and the non-existence of vicarious liability for such claims. This was clarified in Iqbal. Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("In a § 1983 suit or a Bivens action — where masters do not answer for the torts of their servants — the term `supervisory liability' is a misnomer.") It is evident from Iqbal — where the plaintiff sued the United States Attorney General and FBI Director — that vicarious liability is no more available for a Section 1983 claim because a plaintiff sues a high-ranking official or one with policymaking authority. Id.
For the foregoing reasons, the City Defendants' motion for summary judgment on the Sixth Claim is GRANTED as to Defendant Helms, in his individual capacity. Otherwise, it is DENIED.
The City Defendants move for summary judgment on Sukhwinder's ratification claim arguing that she cannot show that Defendant Helms's actions amounted to the approval by a municipal policymaker of "both the [unconstitutional] action and the illicit basis for it." (ECF No. 163-1 at 24.) Although the opposition incorrectly suggests it need not offer any evidence in support of its claim, it nonetheless submits its theory citing evidence: "[the] City Defendants' ratification of [the] Officer Defendants' action in this case was, essentially, a gratuitous media campaign professing justification in the face of conflicting eye-witness testimony." (ECF No. 178 at 20.) In short, the opposition suggests that Defendant Helms should not have accepted the Officer Defendants' version of events
Ninth Circuit precedent makes clear that the ratification theory "requires that a policymaker approve a subordinate's decision and the basis for it before the policymaker will be deemed to have ratified the subordinate's discretionary decision." Gillette, 979 F.2d at 1348 (emphasis retained). The policymaker must make a "conscious, affirmative choice to approve [the subordinate's] actions and adopt them as official policy." Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1253 (9th Cir. 2010). That is, the policymaker must approve of the improper basis for the decision. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1067 (9th Cir. 2013); see also Clouthier, 591 F.3d at 1253 ("As we stated in Gillette, `[t]o hold cities liable under section 1983 whenever policymakers fail to overrule the unconstitutional discretionary acts of subordinates would simply smuggle respondeat superior liability into section 1983 law [creating an] end run around Monell.'").
This is clearly demonstrated by the Ninth Circuit's analysis in Ellins. There, the plaintiff alleged that the chief of police delayed signing an application for a certification that would entitle him to a five percent raise as retaliation for exercising his First Amendment rights. Ellins, 710 F.3d at 1053. The city manager had final policymaking authority over police employment decisions and it was "undisputed that [the city manager] approved [of the police chief's] decision to delay signing [plaintiff's] application." Id. at 1066. Nevertheless, the Ninth Circuit affirmed the district court's grant of summary judgment because the plaintiff did "not allege that [the city manager] knew that the decision was in retaliation for protected speech or that she ratified the decision despite such knowledge." Id. (emphasis added).
The opposition suggests that a municipal policymaker must accept a plaintiff's version of events surrounding an allegation of unconstitutional behavior by that policymaker's subordinate until that plaintiff's version is conclusively disproven in order to avoid inadvertently ratifying the subordinate's possibly unconstitutional behavior. This is not the law. See Gainor v. Douglas Cty., Georgia, 59 F.Supp.2d 1259, 1293 n.41 (N.D. Ga. 1998); see also Kanae v. Hodson, 294 F.Supp.2d 1179, 1191 (D. Haw. 2003) ("The law does not say that, whenever an investigative group accepts an officer's version over a victim's differing version, this acceptance establishes a policy for which a municipality may be held liable under § 1983. If that were the law, counties might as well never conduct internal investigations and might as well always admit liability. But that is not the law.")
Perhaps more importantly, the opposition's argument "fails for lack of causation." Long v. City & Cty. of Honolulu, 378 F.Supp.2d 1241, 1248 (D. Haw. 2005) ("Even if the after-the-fact internal investigation here was somehow a `coverup' (and there is no such evidence), it would not have prevented the shooting of Long."), aff'd, 511 F.3d 901 (9th Cir. 2007). A single "inadequate investigation following the subject incident will not sustain a claim of municipal liability, because the after-the-fact inadequate investigation could not have been the legal cause of the plaintiff's injury." Feliciano v. City of Miami Beach, 847 F.Supp.2d 1359, 1367 (S.D. Fla. 2012); see also, e.g., Haugen v. Brosseau, 339 F.3d 857, 875 (9th Cir. 2003) ("Haugen cannot, of course, argue that the municipality's later action (or inaction) caused the earlier shooting."); Mettler v. Whitledge, 165 F.3d 1197, 1205 (8th Cir. 1999) ("However, even if we are to assume as true that
For the foregoing reasons, the City Defendants' motion for summary judgment on the Seventh Claim is GRANTED.
The City Defendants "join" the Officer Defendants' motion with respect to the state law claims and provide no additional analysis. (ECF No. 163-1 at 26.) The outcome is the same. The motion is GRANTED with respect to the Eleventh Claim. It is DENIED with respect to the Ninth, Tenth and Twelfth Claims.
For the foregoing reasons, the Officer Defendants' motion is GRANTED in part and DENIED in part. It is GRANTED with respect to: (i) the Second Claim and (ii) the Eleventh Claim. Otherwise, it is DENIED.
For the foregoing reasons, the City Defendants' motion is GRANTED in part and DENIED in part. It is GRANTED with respect to: (i) the Sixth Claim, as it applies to Chief Helms in his individual capacity, (ii) the Seventh Claim, and (iii) the Eleventh Claim. Otherwise, the City Defendants' motion is DENIED.
IT IS SO ORDERED.
