G.1., et al. v. City Of Fresno, et al.
Filing
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ORDER DENYING 49 Motion for Summary Judgment signed by District Judge Dale A. Drozd on 9/30/2021. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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A.G.1, a minor, by and through her
Guardian Ad Litem, SERENA URIBE, et
al.,
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ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Plaintiffs,
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No. 1:16-cv-01914-NONE-SAB
v.
(Doc. No. 49)
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CITY OF FRESNO, an entity, CITY OF
FRESNO POLICE DEPARTMENT, an
entity; ZEBULON PRICE, an individual
police officer with CITY OF FRESNO
POLICE DEPARTMENT, and DOES 2–
10, inclusive,
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Defendants.
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INTRODUCTION
This case arose from the shooting death of Raymond Angel Gonzales (“decedent”) in the
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City of Fresno. The decedent’s five minor children—A.G.1, A.G.2, A.G.3, A.G.4 (through
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guardian ad litem Serena Uribe), and R.A.G.J. (through Guardian ad litem Amalia Alcanter)—as
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well as his mother, Alice Gonzales (collectively, “plaintiffs”), brought claims individually and on
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behalf of the decedent’s estate. Specifically, plaintiffs brought a civil rights action against the
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City of Fresno (“City”), City of Fresno Police Department (“FPD”), and FPD Officer Zebulon
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Price (“Price”) (collectively, “defendants,”) alleging excessive force, violation of substantive due
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process, municipal liability under 42 U.S.C. § 1983, and state law causes of action for assault,
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battery, negligence, and wrongful death. Following a prior grant of summary judgment which
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was upheld by the Ninth Circuit, only the negligence claims remain. Defendants bring this
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motion for summary judgment on the negligence claim on the grounds that there is no genuine
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issue of material fact left unsettled.
For the reasons discussed below, defendant’s motion will be denied.
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BACKGROUND
A.
Factual Background
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The material facts of this case are not in dispute. The evidence before the court consists
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of a Joint Statement of Undisputed Facts (“JUF”), (Doc. No. 24-1), Plaintiffs’ Undisputed Facts
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(“PUF”), (Doc. No. 24-1), and evidence depicted on the body camera video (“BCV”),
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(Declaration of Bruce D. Praet, Ex. 1, Doc. No. 24-3).
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Defendant Price was working a gang detail in a marked Fresno police car on March 23,
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2016. (JUF 1.) When defendant Price first saw the decedent, the decedent was with another
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individual and was not committing a crime. (JUF 3; PUF 2.) Defendant Price attempted to make
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contact with the decedent. (JUF 2; PUF 3.) The body camera video shows that the decedent and
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his companion began to run in opposite directions, and defendant Price began to pursue the
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decedent. (BCV 0:02; PUF 4.) The decedent pitched his backpack during the foot pursuit. (JUF
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4; BCV 0:04.) Later in the pursuit, as the decedent was running through an alley, he pitched a
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handgun toward a building, but it fell to the ground. (JUF 5; PUF 5; BCV 0:30.) At this time,
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defendant Price fired his first shot toward the decedent from a distance of approximately 10 feet
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away; this shot missed the decedent. (PUF 7; BCV 0:32.)
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The decedent then fell on the ground on his stomach near or on the handgun. (BCV 0:33–
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0:34; JUF 6.) The decedent then rotated on to his right side and raised his hands in the air. (BCV
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0:34–0:35.) When he did so, he revealed a handgun on the ground immediately under where his chest
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had been. Id. The decedent then reached his hand in the direction of the gun two additional times,
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(BCV 0:36 and 0:38), touching the handgun the second time.
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Defendant Price ordered the decedent to lie on the ground with his head facing the fence,
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away from defendant Price. (BCV 0:46–0:48.) The decedent eventually complied, turning his head
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toward the fence and placing his stomach on the ground. (BCV 0:52.) However, almost immediately,
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the decedent began rotating his body back and forth with one hand buried in or grabbing at his
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waistband. (BCV 0:54–0:56.) He then suddenly rotated his body so that his back side was towards
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the ground and he was facing defendant Price. (BCV 0:57.) Defendant Price discharged his weapon
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as the decedent pulled his hand out of his waistband toward defendant Price. Defendant Price’s shot
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struck the decedent in the chest, (BCV 0:57), and the decedent later died from the gunshot wound
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injury. (PUF 1).
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B.
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Procedural Background
On August 22, 2018, the previously assigned district judge granted summary judgment in
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favor of defendants on all counts. (Doc No. 29.) On May 6, 2020, the Ninth Circuit Court of
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Appeals affirmed summary judgment in favor of defendants on all claims except the negligence
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claim. The Ninth Circuit agreed that defendant Price’s use of force was objectively reasonable as
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a matter of law such that decedent’s Fourth Amendment rights were not violated. (Doc. No. 42 at
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3.)
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As to plaintiffs’ remaining state-law negligence claim, the Ninth Circuit vacated and
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remanded the grant of summary judgment for further consideration by this court. Specifically,
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the Ninth Circuit instructed this court to consider whether defendant Price’s tactical conduct and
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decisions preceding the use of deadly force may give rise to negligence liability under California
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law and the test set out by Hayes v. Cty of San Diego, 57 Cal. 4th 622 (2013). The court therefore
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revisits defendants’ motion for summary judgment with respect to plaintiffs’ negligence claim.
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LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue as to any material fact and
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the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. At summary
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judgment, a court’s function is not to weigh the evidence and determine the truth, but to determine
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whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
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(1986). The court must draw all reasonable inferences in favor of the nonmoving party, and it may
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not make credibility determinations. See id. at 255; see also Reeves v. Sanderson Plumbing Prods.,
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Inc., 530 U.S. 133, 150 (2000). But if the nonmoving party’s evidence is merely colorable or is not
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significantly probative, summary judgment may be granted. See id. at 249–50. Furthermore, where
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video footage of an incident is available, district courts are permitted to “view the facts in the light
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depicted by the video[]” to the extent that the nonmoving party’s version of the incident is blatantly
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contradicted by the video. Scott v. Harris, 550 U.S. 372, 381 (2007).
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A fact is “material” if its proof or disproof is essential to an element of a plaintiff’s case.
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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is “genuine” “if the
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evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248.
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“Where the record taken as a whole could not lead a rational trier of fact to find for the non-
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moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
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Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted). The moving party bears the
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initial burden of informing the court of the basis for its motion and identifying those portions of
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the pleadings and discovery responses that demonstrate the absence of a genuine issue of material
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fact for trial. Celotex, 477 U.S. at 323. If the moving party meets its initial burden, the
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nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth
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specific facts showing that there is some genuine issue for trial in order to defeat the motion. See
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Fed. R. Civ. P. 56(c); Liberty Lobby, Inc., 477 U.S. at 250.
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DISCUSSION
In Hayes, the California Supreme Court confirmed that law enforcement officers have a
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duty to use reasonable care when employing force and that plaintiffs alleging negligence against
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police must demonstrate (1) the defendant officer(s) breached that duty and (2) that the breach
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was the proximate or legal cause of the resulting injury. Hayes, 57 Cal.4th at 629. Hayes further
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established that liability may attach to negligent pre-shooting tactics by police officers under
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California law “if the tactical conduct and decisions leading up to the use of deadly force show, as
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part of the totality of circumstances, that the use of deadly force was unreasonable.” Id. In this
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way, California’s negligence standard considers a wider scope of conduct than the Fourth
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Amendment. See id. at 632, 639 (holding that the standard for negligence under California law is
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“broader than federal Fourth Amendment law” because it includes consideration of an officer’s
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conduct prior to moment when force is applied).
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For example, in Grudt, an officer in plain clothes carrying a double-barreled shotgun
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approached a car. Grudt v. City of Los Angeles, 2 Cal. 3d 575 (1970). The driver, possibly
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believing he was being robbed or attacked, accelerated toward a second plainclothes officer.
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Both officers opened fire on the driver, killing him. When examined in isolation, the deadly force
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used by the officers in Grudt appeared reasonable—they were defending themselves against an
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accelerating vehicle; however, the shooting’s reasonableness was called into question when the
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officers’ pre-shooting conduct was considered. Hayes, 57 Cal. 4th at 630 (discussing Grudt, 2
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Cal. 3d). By not identifying themselves and approaching the vehicle in such a threatening way,
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the officers in Grudt unnecessarily and negligently escalated the situation. See id.
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Here, the Ninth Circuit has confirmed that defendant Price’s use of deadly force was
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reasonable when examined through the narrower Fourth Amendment lens; the only remaining
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question is whether defendant Price’s pre-shooting actions, when considered under the totality of
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the circumstances, have the potential to render his ultimate conduct negligent under California
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law. Importantly, the reasonableness of defendant Price’s pre-shooting conduct “must be judged
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from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
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hindsight. Hayes, 57 Cal. 4th at 632 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
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Plaintiffs argue, in keeping with the opinion of their expert Roger Clark, that defendant Price’s
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use of deadly force was negligent because, prior to the shooting, defendant Price failed to
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“contain” the decedent, failed to “remain in cover,” and did not give the decedent enough time to
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process defendant Price’s commands. (Doc. No. 25 at 30.) Expert Clark further opines that
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defendant Price’s decision to engage in a solo foot pursuit of the decedent was negligent because
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it was a “violation of policy and training and the shooting would never have happened” without
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that foot pursuit. (Doc. No. 50 at 8–9.) Defendant Price counters that his pre-shooting conduct
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fell “within the range of conduct that is reasonable under the circumstances” such that he did not
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breach his duty of care to the decedent. Defendant Price also argues that plaintiffs cannot
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demonstrate a causal link between his pre-shooting conduct and the ultimate use of force.
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Defendant Price is correct that “California law does not require officers to ‘choose the
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most reasonable action or the conduct least likely to cause harm;’” instead, “law enforcement
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personnel have a degree of discretion as to how they choose to address a particular situation.”
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J.A.L. v. Santos, 724 F. Appx. 531, 534 (9th Cir. 2018)1 (internal citations omitted) (emphasis
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added). However, district courts in this circuit have taken a broad view as to the evidence that
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can raise a genuine dispute of material fact regarding the extent of that discretion in determining
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whether summary judgment is precluded.
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For example, in Han v. City of Folsom, two parents called 911 to request police assistance
with their son, the decedent, who they believed needed psychiatric help and might be a danger to
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himself. Han v. City of Folsom, No. 2:10-CV-00633-MCE, 2015 WL 1956521, at *1–2 (E.D.
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Cal. Apr. 29, 2015), rev’d and remanded sub nom. Young Han v. City of Folsom, 695 F. App'x
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197 (9th Cir. 2017). When police arrived at the home, the decedent was in his bedroom; police
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were aware that a 3 to 4-inch camping knife was also in the room. Officers, at the direction of the
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decedent’s parents, opened the decedent’s bedroom door, and stepped into the doorway. Id. The
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decedent was holding the knife and demanded that officers exit his bedroom. Officers repeatedly
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commanded the decedent to drop the knife before using non-lethal force (a Taser) in an attempt to
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disarm the decedent. Id. The decedent continued to move toward the officers, ignoring their
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commands to drop his weapon. Id. at *2. One of the officers responded by shooting the
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decedent, killing him. Id. The decedent’s family then sued the officers for Fourth Amendment
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violations as well as negligence. Id.
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The trajectory of Han tracks closely with this case. There, the district court first granted
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summary judgment in favor of the defendant officers on both the Fourth Amendment and state
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negligence claims using the same test for both. And, as here, the Ninth Circuit affirmed summary
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judgment with respect to the plaintiffs’ Fourth Amendment claim before reversing and remanding
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the case for further consideration of the negligence claim in light of the decision in Hayes. See
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Han v. City of Folsom, 551 F. App’x 923, 926 (9th Cir. 2014). On remand, the Han plaintiffs
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Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
36-3(b).
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produced an expert report suggesting that the defendant officers were negligent in not seeking
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cover or distancing themselves from the decedent once they saw that he was armed.
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The district court again granted summary judgment in favor of the defendants on the
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grounds that an expert disagreement with officer actions does not render their actions
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unreasonable, and that “[p]laintiffs cannot avoid summary judgment ‘by simply producing an
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expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent,
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inappropriate, or even reckless.” Han, 2015 WL 1956521 at *7 (internal citations omitted). The
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district court further noted that an expert considering “alternative actions to be more appropriate
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in hindsight does not render an officer’s behavior unreasonable,” and concluded that summary
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judgment was appropriate because the plaintiffs had not cited any caselaw or produced other
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evidence demonstrating that the officer’s actions may have been unreasonable. Id. On appeal,
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the Ninth Circuit again vacated the grant of summary judgment on the grounds that the plaintiff
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had tendered “expert evidence that the police actions were not reasonable under the totality of the
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circumstances under generally accepted police practices.” Young Han v. City of Folsom, 695 F.
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App'x 197, 199 (9th Cir. 2017).
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Though perhaps plaintiffs (and their expert) could have been more detailed in describing
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exactly why defendant Price’s pre-shooting actions were negligent here, the Ninth Circuit has
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underscored that evaluation of such actions—especially in the context of police shootings—is
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best left to the jury. The undersigned concludes that in light of the evidence before the court on
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summary judgment which has been recounted above, defendants’ motion must be denied.
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CONCLUSION
For the reasons explained above, defendant’s motion for summary judgment (Doc. No.
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11) is denied.
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IT IS SO ORDERED.
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Dated:
September 30, 2021
UNITED STATES DISTRICT JUDGE
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