Smith v. Chandler, City of et al
Filing
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ORDER granting defendants' 35 Motion for Summary Judgment. ORDERED denying defendants' 50 Motion to Strike. Signed by Senior Judge Frederick J Martone on 4/16/2014.(LFIG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Brandon Smith,
Plaintiff,
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vs.
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City of Chandler, et al.,
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Defendants.
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No. CV-12-2391-PHX-FJM
ORDER
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The court has before it defendants’ motion for summary judgment (doc. 35), plaintiff’s
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response (doc. 39), and defendants’ reply (doc. 48). We also have before us defendants’
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motion to strike declaration of plaintiff’s expert, Jesse Torrez (doc. 50), plaintiff’s response
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(doc. 52), and defendants’ reply (doc. 53).
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I.
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As an initial matter, we deny defendants’ motion to strike (doc. 50). Defendants
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contend that we should strike and disregard the Torrez declaration in ruling on the motion
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for summary judgment because it is an improper attempt by plaintiff to supplement his expert
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report well after the close of discovery. Defendants contend that the untimely declaration
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contains new information and opinions that should have been included in a rebuttal report.
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“An objection to (and any argument regarding) the admissibility of evidence offered in
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support of or opposition to a motion must be presented in the objecting party’s responsive
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or reply memorandum and not in a separate motion to strike or other separate filing.” LRCiv
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7.2(m)(2). Defendants’ separate motion to strike violates LRCiv 7.2(m)(2), and it is
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therefore denied (doc. 50).
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II.
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At 8:00 p.m. on the evening of December 28, 2011, 22-year old plaintiff Brandon
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Smith went to the home of his father and stepmother and asked if he could spend the night.
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Brandon had been living on the streets and using drugs “off and on,” and did not feel safe
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sleeping on the streets. DSOF ex. 1 at 10. Brandon was at the end of a five-day
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methamphetamine binge and was suffering from a persecutory delusion that he was being
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chased by a police task force and that if caught he would be imprisoned and tortured.
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Brandon’s father described Brandon’s eyes as dilated; he was sweating and seemed
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paranoid and “drugged out.” DSOF ¶ 16. Brandon went to the kitchen and picked up a large
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kitchen knife. His father repeatedly tried to convince Brandon to give him the knife, but
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Brandon refused, saying he felt safer with it. DSOF ¶ 24. Brandon’s father told him that if
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he didn’t surrender the knife, he would call the police. DSOF ¶ 25. Brandon went to the
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back patio to smoke a cigarette and took the knife with him. Id. Brandon’s father and
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stepmother were “both nervous” and “didn’t feel comfortable with [Brandon] there the way
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he was acting.” DSOF ¶ 20. His stepmother said that she was “terrified.” DSOF ¶ 20.
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Concerned “for everybody’s safety,” Brandon’s stepmother called 911 at 9:26 p.m., just 90
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minutes after Brandon had arrived at their home. During the 911 call, Mrs. Smith reported
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“he’s got a knife and he won’t give it up, and I’m afraid . . . . He’s had a drug problem in the
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past . . . . He’s talking like he wants to kill himself, . . . he’s tried to hurt himself several other
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times . . . [and] has a history of . . . fighting with the officers.” DSOF ¶ 27. This information
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was relayed to the responding Chandler police officers.
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Chandler police officers Brian Hawkins, Keith Smith, Blake Fairclough, and Abel
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Aragon1 responded to the 911 call, which was dispatched as a suicide attempt. DSOF ¶¶ 28-
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29. The officers were advised that the subject had a knife, was likely on drugs, and had
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assaulted officers before. The officers met Brandon’s father at the front of the residence.
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Officer Hawkins was the lead officer and carried a handgun. Officer Smith carried a beanbag
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shotgun.2 Brandon’s father advised the officers that Brandon was in the backyard with a
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knife.
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The four officers followed Brandon’s father into the house and out to the back patio,
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where Brandon was seated on a sofa, with the knife in his hand. DSOF ¶ 30. The officers
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formed a semicircle around Brandon, and Officer Hawkins ordered him to drop the knife.
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DSOF ¶¶ 35, 37. Brandon refused. DSOF ¶ 39. Officer Smith saw Brandon “lunge
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forward,” bend at the waist while seated, and move the knife from the low chest to the high
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chest. Officer Hawkins was approximately 8 feet away. DSOF ¶ 48. As Brandon moved,
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Officer Smith deployed two beanbag rounds aimed at Brandon’s thigh, just above the knee.
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DSOF ¶¶ 48-49. At this point, Brandon plunged the knife into his neck, severing his jugular
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vein. Once Brandon thrust the knife into his neck, Officer Hawkins holstered his gun, called
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out “he’s doing it,” and rushed toward Brandon to stop him from injuring himself. DSOF
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¶ 45. Brandon kept thrusting the knife deeper as Officer Hawkins tried to stop him. Brandon
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was hospitalized and on suicide watch for three months following the incident. Only 3 to 5
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seconds had elapsed from the moment the officers exited the patio door to the stabbing.
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DSOF ¶ 55.
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Each of these officers was originally named as a defendant in this action. Officers
Hawkins, Aragon and Fairclough were dismissed with prejudice on November 14, 2013 (doc.
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A beanbag shotgun is considered a “less lethal weapon,” as opposed to a non-lethal
weapon, because the bean bags can cause serious injury or death if they hit a sensitive part
of the body. The weapon is intended to induce compliance by causing sudden, debilitating,
localized pain, similar to a hard punch or baton strike. Deorle v. Rutherford, 272 F.3d 1272,
1277 (9th Cir. 2001).
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III. Fourth Amendment Claim
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Brandon contends that his Fourth Amendment right to be free from excessive force
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was violated when Officer Smith shot him with the two beanbag rounds. In evaluating a
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Fourth Amendment excessive force claim, we consider “whether the officers’ actions were
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‘objectively reasonable’ in light of the facts and circumstances confronting them, without
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regard to their underlying intent or motivations.” Graham v. Connor, 490 U.S. 386, 397, 109
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S. Ct. 1865, 1872 (1989). The reasonableness inquiry in an excessive force case “must
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embody allowance for the fact that police officers are often forced to make split-second
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judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the
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amount of force that is necessary in a particular situation.” Id. Although we will consider
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a number of factors when evaluating the totality of the circumstances, the “most important”
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factor is whether the individual posed an “immediate threat to the safety of the officers or
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others.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (citation omitted).
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Brandon contends that at no time during the encounter did he say or do anything that
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was threatening to the officers or himself. Instead, he claims that he was shot as he moved
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to comply with an officer’s command to stand. He argues that Officer Smith’s actions were
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objectively unreasonable because he failed to follow specific training that all Arizona police
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officers receive in dealing with an emotionally disturbed person. Specifically, officers are
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trained to gather background information, keep the situation calm and controlled, and
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establish communication with the individual. Plaintiff argues that Officer Smith ignored this
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training and instead failed to take time to assess the situation or develop a plan. The officers
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did not question Brandon’s father or determine Brandon’s location on the patio, but instead
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found themselves in a tactically unsound position, in close proximity to Brandon, as soon as
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they exited the back door. The officers immediately cornered Brandon with weapons raised,
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yelling at him to drop the knife. Brandon argues that the lack of a plan caused the officers
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to react in an aggressive and threatening manner, unnecessarily escalating an already tense
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situation, and ultimately leading to Brandon stabbing himself.
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Government officials performing discretionary functions generally are shielded from
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liability for civil damages as long as their conduct does not violate clearly established
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statutory or constitutional rights of which a reasonable person would have known. Harlow
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v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). The “purpose of qualified
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immunity is to strike a balance between the competing ‘need to hold public officials
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accountable when they exercise power irresponsibly and the need to shield officials from
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harassment, distraction, and liability when they perform their duties reasonably.’” Mattos
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v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223,
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231, 129 S. Ct. 808, 815 (2009)).
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Qualified immunity “generally turns on the ‘objective legal reasonableness’ of the
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action, assessed in light of the legal rules that were ‘clearly established’ at the time it was
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taken.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034 (1987) (citation omitted).
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A police officer is protected by qualified immunity if he mistakenly believed the amount of
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force used was appropriate under the circumstances. Saucier v. Katz, 533 U.S. 194, 205, 121
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S. Ct. 2151, 2158 (2001). Qualified immunity protects “all but the plainly incompetent or
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those who knowingly violate the law.” Messerschmidt v. Millender, 132 S. Ct. 1235, 1244
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(2012) (citation omitted).
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Officer Smith was not “plainly incompetent” when he fired two beanbag rounds at
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Brandon’s thigh. Even assuming that Brandon heard an officer’s command to “stand up,”
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Brandon’s movement in leaning forward toward Officer Hawkins could reasonably be
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perceived as threatening amid the tense and chaotic scene facing the officers. Officer Smith
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knew that he was dealing with an armed, delusional, and suicidal man who had a history of
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fighting with police officers. No more than 5 seconds had elapsed from the time the officers
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entered the scene. Under these circumstances, Officer Smith may have mistakenly but
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reasonably perceived Brandon’s movement in standing or leaning forward as a threat toward
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his fellow officer. See Bell v. Irwin, 321 F.3d 637 (7th Cir. 2003) (four beanbag rounds fired
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at suicidal man armed with knives who “lean[ed] toward” a propane tank with what appeared
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to be a cigarette lighter was objectively reasonable).
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Even if Brandon’s movements did not justify the use of deadly force, the moderate
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force used by Officer Smith in firing two beanbags at Brandon’s thigh in an effort to get him
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to drop the knife was proportionate to the circumstances. See Gregory v. County of Maui,
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523 F.3d 1103, 1107 (9th Cir. 2008) (use of force in attempting to disarm emotionally
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unstable man holding a pen was “proportionate and reasonable”). “We take the perspective
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of an officer on the scene without the benefit of 20/20 hindsight” and consider that police
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officers must often make split-second judgments about the amount of force that is necessary
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in a particular situation. Gonzalez v. City of Anaheim, ___ F.3d ___, 2014 WL 1274551 (9th
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Cir. Mar. 14, 2014). Brandon posed a threat to the immediate safety of the officers when he
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attempted to stand, while holding a knife, after he refused the officers’ commands to give up
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the knife. Officer Smith’s actions were reasonable in light of the circumstances he faced.
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Plaintiff’s expert concluded that Officer Smith was not justified in firing the less-
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lethal shotgun at Brandon. The expert opined that the situation could have been resolved
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with no injuries had training and safety procedures been followed. PSOF ex. 1 at 7.
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The fact that an expert disagrees with the officer’s actions does itself not render the
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officer’s actions unreasonable. Although the expert’s report may be relevant to the issue of
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reasonableness, a plaintiff cannot avoid summary judgment “by simply producing an expert’s
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report that an officer’s conduct leading up to a deadly confrontation was imprudent,
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inappropriate, or even reckless.” Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002).
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“Rather, the court must decide as a matter of law whether a reasonable officer could have
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believed that his conduct was justified.” Id. Even though the officers might have had “less
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intrusive alternatives available to them,” or perhaps under departmental guidelines should
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have “developed a tactical plan” instead of attempting an immediate seizure, police officers
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“need not avail themselves of the least intrusive means of responding to an exigent situation”
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and need only act “within that range of conduct we identify as reasonable.” Scott v. Henrich,
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39 F.3d 912, 915 (9th Cir. 1994).
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Plaintiff’s reliance on Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011) is
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misplaced. The police officers in Glenn shot 6 beanbag rounds at Lukus Glenn, an
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emotionally disturbed young man who held a knife to his neck, but made no threatening
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moves toward officers or others. Then, while retreating from the beanbag shots, Lukus was
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shot 8 times with lethal force and was killed. The Ninth Circuit held that the officers were
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not entitled to qualified immunity for firing the beanbag rounds because Lukus made no
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threatening moves. “He showed no signs of attempting to move until after he was fired
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upon.” Id. at 874. Here, in contrast, plaintiff admits that at the moment of the shooting, he
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moved to stand up from a seated position in the direction of an officer who stood less than
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10 feet away. A reasonable officer in Officer Smith’s position could have believed at that
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moment that Brandon was a threat to the officers and that the use of less-than-lethal force
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was justified. Accordingly, we conclude that there was no constitutional violation and
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Officer Smith is entitled to summary judgment on plaintiff’s Fourth Amendment claim.
IV. State Law Negligence Claim
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Plaintiff also asserts a state law negligence claim against the City of Chandler,
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alleging that the City is vicariously liable for the negligent actions of its employees. Relying
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on Landeros v. City of Tucson, 171 Ariz. 474, 475, 831 P.3d 850, 851 (Ct. App. 1992),
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defendants argue that Arizona does not recognize a negligence claim against police officers
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for their law enforcement activities and therefore plaintiff’s negligence claim must be
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dismissed. But Landeros held only that a city may be liable if its police officers are grossly
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negligent in the investigation of a crime. Id. Landeros does not apply to a claim for
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negligence in disarming an emotionally disturbed individual.
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Nevertheless, even applying a simple negligence standard, we have already concluded
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that Officer Smith’s decision to use two beanbag rounds to subdue and disarm Brandon
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before he had a chance to reach Officer Hawkins was justified and reasonable. Officers may
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use proportionate, reasonable force whenever they reasonably believe it is necessary to
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“effect an arrest . . . of a person whom the peace officer reasonably believes . . . is likely to
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endanger human life or inflict serious bodily injury to another unless apprehended without
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delay.” Marquez v. City of Phoenix, 693 F.3d 1167, 1176 (9th Cir. 2012) (citing A.R.S. §
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13-410(C)(2)(c)); see also A.R.S. § 13-409 (providing law enforcement officers with
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immunity for all reasonable uses of non-deadly force); A.R.S. § 13-403(4) (providing
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immunity to any person who uses physical force reasonably necessary to prevent a suicide).
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Because we conclude that, under the totality of the circumstances, Officer Smith acted
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reasonably and was justified in using force, plaintiff’s negligence cannot succeed.
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V.
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IT IS ORDERED GRANTING defendants’ motion for summary judgment (doc. 35).
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IT IS ORDERED DENYING defendants’ motion to strike (doc. 50).
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DATED this 16th day of April, 2014.
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