Han, et a., v. City of Folsom, et al,.

Filing 24

MEMORANDUM, OPINION and ORDER signed by Judge Morrison C. England, Jr. on 11/8/2011 GRANTING defendants' 11 Motion for Summary Judgment. This action is TERMINATED. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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YOUNG HAN, individually, and
as successor-in-interest to
Decedent JOSEPH HAN; NAM HAN;
DAVID HAN,

No. 2:10-cv-00633-MCE-GGH

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Plaintiffs,
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v.

MEMORANDUM AND ORDER

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CITY OF FOLSOM, a municipal
corporation, et al.,
Defendants.
----oo0oo----

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Plaintiffs, survivors of Decedent, Joseph Han (“Decedent”),

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seek redress for several federal and state law claims alleging

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that the City of Folsom (“City”), the City’s Chief of Police,

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Samuel Spiegel (“Spiegel”), officers Paul Barber (“Officer

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Barber”), Daren Prociw (“Officer Prociw”) and Ron Peterson

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(“Sergeant Peterson”) (collectively, “Defendants”), violated

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Decedent’s civil rights during the course of responding to a

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domestic disturbance call at the home of the Decedent and

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Plaintiffs, his immediate family.

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Presently before the Court is Defendants’ motion for summary

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judgment pursuant to Federal Rule of Civil Procedure 56.

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reasons set forth below, Defendants’ motion is granted.

For the

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BACKGROUND1

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In April, 2009, Decedent began acting increasingly abnormal.

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(UF ¶1.)

For example, according to Decedent’s father, he began

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refusing to eat or drink.

(Dep. of Young Han [“Young Dep.”] at

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13.) Moreover, Decedent’s brother testified that when his parents

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or brother attempted to enter Decedent’s bedroom, he would

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uncharacteristically shout at them to get out.

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Han [“David Dep.”] at 32-35.)

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///

(Dep. of David

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The facts are, for the most part, undisputed. Where the
facts are disputed, the Court recounts Plaintiffs’ version of the
facts as it must on a motion for summary judgment. In that
regard, the Court notes that, although not required by the
court’s local rules, Plaintiffs did not file a separate statement
of “Disputed Facts,” but rather only responded to Defendants’
statement of undisputed facts, with citation to deposition
testimony, which Plaintiffs argue raises material disputed issues
of fact precluding summary judgment. Thus, the Court, in
recounting the relevant facts, refers to Defendants’ separate
statement of undisputed facts. (See Defs.’ Separate Stmt. Of
Undisp. Material Fact [“UF”], filed Aug. 16, 2011, [ECF No. 111].) However, where the facts are disputed, the Court refers to
Plaintiffs’ response to Defendants’ statement of undisputed
facts. (Pl.’s Response to Def.’s Separate Stmt. of Undisp. Facts
[“PRUF”], filed Sept. 16, 2011, [ECF No. 16-1].)
Moreover, the Court, when necessary, cites directly to the
parties’ deposition testimony. Counsel for both parties lodged
the relevant portions of the depositions referred to by the Court
with their respective declarations. (See Decl. of Bruce Praet,
[“Praet Decl.”], filed Aug 16, 2011, [ECF No. 11, Exs 1-5];
(Decl. Of Benjamin Nisenbaum [“Nisenbaum Decl.”], filed Sept. 16,
2011, [ECF Nos. 17-18, Exs. A-O].) The Court will refer to the
depositions lodged with the respective declarations by deponent’s
name, as do the parties.
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During one particularly disturbing occasion, Decedent approached

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his mother in the nude and attempted to kiss her in a fashion

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that “wasn’t a mother[] and son type of kiss.”

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According to Plaintiffs, Decedent had been calling himself god.2

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(See Pl.’s Opp’n, filed Sept. 16, 2011, [ECF No. 16], at 6:15.)

(Id. at 27.)

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On the morning of April 12, 2009, Decedent’s mother asked a

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friend, Mrs. Saito, a registered nurse, to come to their home to

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speak with Decedent.

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attempted to calm Decedent down, Joseph began yelling at her and

(David Dep. at 33:16-34:3.)

As Mrs. Saito

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ordering her to get out of his room.

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with no other options, the Han family asked Mrs. Saito to call

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911 to tell them that they had a “5150”3 situation at the Han

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residence.

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take his brother to the hospital, also called 911 and requested

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the police meet him down the street from the home.

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54:10-17.)

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did not believe he would be able to convince his brother to get

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into the car and go to the hospital. (Id. at 64:10-23.)

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(UF ¶ 2.)

(Id. at 3:1-36:1.)

Left

David Han, hoping that the police could

(David Dep.

David testified that he called the police because he

When the officers arrived, they informed Plaintiffs that,

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based on the information at hand, and because Decedent was over

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18, they could not take Decedent into custody in accordance with

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Section 5150 of the California Welfare and Institutions Code.

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The toxicology and alcohol reports from Decedent’s autopsy
show that no drugs or alcohol were in Decedent’s system.
(Nisenbaum Decl., Ex. D.)
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Cal. Welf. & Inst. Code § 5150 authorizes law enforcement
and medical officials to detain an individual for up to 72 hours
for psychiatric evaluation if the individual appears to be (1) a
danger to himself or herself, (2) a danger to others, or
(3) gravely disabled.
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(UF ¶ 4.)

The officers explained to the Han family that they

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were not permitted to take any action beyond talking to Joseph.

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(UF ¶ 5.)

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enter the residence to talk to Decedent in hopes that the

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officers could calm Decedent down.

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Decedent’s brother, David Han, told the officers they could enter

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the home “and talk to him and help out.”

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25.)

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don’t know how he’s going to react.

Upon hearing this, Plaintiffs asked the officers to

(UF ¶ 7.)

Specifically,

(David Dep. at 67:10-

Before entering the home, David Han warned the officers: “I
He’s kind of like sporadic,

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and he’s completely not himself.” (Id. at 66:2-5.)

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warned the officers that Decedent had a camping knife and that

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they should “have [their] Tasers ready.”

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David Han

(Id. at 66:6-25.)

When Plaintiffs and the officers approached the home, they

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discovered that the previously unlocked door had been locked from

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the inside.

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accompanied by Decedent’s family, David Han told the officers

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that Decedent had last been seen in his upstairs bedroom.

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(UF ¶ 11.)

(UF ¶ 9.)

When the officers entered the residence,

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Officer Barber took one step past the threshold of

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Decedent’s bedroom when he saw Decedent either sitting on, or

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standing next to his couch, holding a knife in his hand.

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¶ 13.)

(PRUF

Officer Barber addressed Decedent by name and explained

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that he was only there to talk to him and to ensure that he did

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not harm himself.

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(UF ¶ 14. )

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Decedent began cursing and told Officer Barber that he did not

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want to talk and demanded that Officer Barber get out of his

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house.

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Officer Barber then said: “[w]ell, I’m here now.

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Just drop the knife.

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yourself.”

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(Dep. of Paul Barber [Barber Dep.] at 49:15-50:8.)
Let’s talk.

I want to make sure you don’t hurt

(Id. at 50:7-50:11.)

At this point, Officer Barber had his Taser drawn and

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pointed at Decedent’s center mass.

(Id. at 50:3-6.)

Decedent

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pointed the tip of the blade at Officer Barber and told him, “Get

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the fuck out of my room, or I’m going to cut your throat and

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shove it down your neck.”

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told Decedent to drop the knife, or he was going to Taser him.

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(Id. at 59:24-60:1.)

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Officer Prociw did the same.

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Dep.”] at 86:16-17.)

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his Taser4 center mass as Decedent began bending forward, as if

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to stand up.

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(Id. at 51:4-7.)

Officer Barber then

As soon as Officer Barber drew his Taser,
(Dep. of Daren Prociw [“Prociw

According to Officer Barber, he deployed

(Barber Depo 60:2-6.)

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“The stun gun or ‘Taser’ is a non-lethal device commonly
used to subdue individuals resisting arrest. It sends an
electric pulse through the body of the victim causing
immobilization, disorientation, loss of balance and weakness. It
leaves few, if any, marks on the body of the victim.” MattaBallesteros v. Henman, 896 F.2d 255, 256 n.2 (7th Cir. 1990).
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The Taser, however, failed to subdue Decedent.5

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(Id. at

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60:12-15.)

After Barber tased him, Decedent, holding the knife

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at chest level, responded: “You can’t stop me, you can’t Taser

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me,” or “something to that effect.”6

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Officer Barber asked Decedent two more times to put the knife

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down.

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38:1.)

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bedroom, and took another step in so that he “could get a better

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shot on him.”

(Id. at 61:1-5; UF ¶ 18)

(Dep. of Ronald Peterson, [“Peterson Dep.”] at 37:25Officer Barber drew his firearm, stepped into the

(See Nisenbaum Decl., Ex. B at 221:17-22.)

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Decedent then advanced to within six feet of Officer Barber.7 (UF

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¶ 20.)

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According to Officer Barber, only one prong of the Taser
contacted Decedent’s skin. (Barber Depo at 60:12-15.)

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Plaintiffs dispute UF ¶ 18 because, in his statement
shortly after the incident, Officer Barber told investigators: he
was “[a]ngry, yelling at me and that’s when I deployed the Taser.
Right as he was standing up. And then, as it hit him he still,
he stood up. And, basically, just looked at me like, ‘you’re
not, you can’t touch me.’” (See Nisenbaum Decl., Ex. B at
221:17-22.) The Court acknowledges that the exact words Decedent
said at this time are disputed. Indeed, Officer Barber stated
that the words were “something to the effect.” However, the
Court finds the distinction between the two statements
meaningless in the context of this motion —— both statements
establish that the Taser was ineffective and that Decedent
continued to demonstrate his intent to be combative with the
officers.
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Plaintiffs contend that the deposition testimony of
Peterson and Prociw contradict Officer Barber’s testimony in this
regard. However, a thorough reading of the deposition testimony
reveals that neither Peterson nor Prociw stated that Decedent did
not approach to within six feet of Barber, they merely state that
they did not see if Decedent was moving when Officer Barber
discharged his firearm.

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According to Officer Prociw, he then heard Officer Barber

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ask for another Taser and deployed his Taser at Decedent.

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(Prociw Dep. at 94:23-95:16.)

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reaction that he would expect from a person receiving an electric

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shock from a Taser.

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tased him, Decedent maintained his ground, holding the knife

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“just below the belly button on the waist, kind of still[,] the

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blade pointing forward.”

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fired a single shot from his firearm.8

Officer Prociw did not see the

(Id. at 96:6-10.)

After Officer Prociw

(Id. at 99:11-15.)

Officer Barber then

(UF ¶ 20.) Prociw,

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however, did not see Decedent react in any way that would be

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attributed to a gunshot.

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(Prociw Depo at 100:18-20.)

Officer Barber then exited the room and entered the bathroom

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with Decedent’s brother.

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then shut the door.

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Sergeant Peterson, however, did not see Officer Barber exit the

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room.

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the room with Decedent, Sergeant Peterson kicked open the bedroom

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door and entered with his gun drawn.

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24;UF ¶ 23.)

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of the couch, still standing.

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(UF ¶ 22.)

(Barber Dep. at 61:25-62:11.)

Decedent

(Nisenbaum Decl., Ex. B at 223:25-224:18.)

Believing that Officer Barber was trapped in

(Peterson Dep. at 41:20-

As Sergeant Peterson entered, Decedent was in front
(Id. at 42:7-12.)

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The chronological order of the second Taser and the
gunshot is unclear. According to the deposition of Officer
Prociw and Defendants statement of undisputed fact —— which
Plaintiffs do not dispute —— Officer Prociw deployed the second
Taser, which was ineffective, then Officer Barber fired his gun.
However, Officer Barber, in his deposition testimony, stated that
he asked Prociw to fire the Taser at Decedent after he discharged
his firearm at Decedent. (Barber Depo at 17-24.) Plaintiffs, in
their opposition, recount both sides of the story. The specific
chronological order of the second Taser and the gun shot is
irrelevant to the Court’s analysis.
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Sergeant Peterson does not recall whether Decedent was still

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holding the knife at this juncture.

(Id. at 43:5-6.)

Officer Prociw, at the request of Sergeant Peterson,

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deployed another Taser.

(UF ¶ 25.)

At first, Sergeant Peterson

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believed that the third Taser was effective because he “went down

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on the couch”; however, when officer Peterson approached Decedent

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to take him back into custody, Decedent “just stood back up.”

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(Peterson Depo at 43:14-25.)

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saw that Decedent still had the knife in his hand.

When he stood up, Sergeant Peterson
(Id. at 44:7-

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10.)

After ordering Decedent to drop the knife twice to no

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avail, Sergeant Peterson began backing up toward the door.

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at 44:11-45:4.)

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advanced toward Sergeant Peterson, refusing to drop the knife.

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(Id. at 45:45:4-7.)

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Decedent’s hip, discharged his revolver at Decedent.

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48:13-18.)

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standard operating procedure, he aimed for his hip “[b]ecause

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[he] just wanted him to go down. [He] wanted to take control of

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the situation. [He] wasn’t looking to kill.”

(Id.

Decedent then slowly, but deliberately,

At this point, Sergeant Peterson, aiming for
(Id. at

According to Sergeant Peterson, although contrary to

(Id. at 48:18:22.)

After this second shot, Decedent began falling slowly toward

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the ground, still grasping the knife in his hand.

(Id. at 49:12-

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22.)

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into Sergeant Peterson, causing the two of them to fall to the

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ground.

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officer to procure possession of the knife.

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The officers stepped on Decedent’s wrist and pinned the knife

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down on the ground, thereby obtaining custody of the knife.

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at 52:7-12.)

Decedent stumbled towards the doorway, eventually falling

(Id. at 50:3-12.)

Sergeant Peterson ordered the other

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(Id. at 51:4-8.)

(Id.

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Decedent then freed his right hand and punched Sergeant Peterson

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in the mouth.

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handcuffed Decedent.

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(Id. at 52:13-18.)

The officers finally

(Id. at 26:24-57:2.)

Within approximately one minute of the officers handcuffing

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Decedent, Folsom medics and fire department arrived to administer

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medical care.

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hospital.

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(Id. at 607:12.)

Decedent later died at the

(David Dep. at 106:13-14.)

Based upon these facts, Plaintiffs have brought claims

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against the City of Folsom, the Folsom Chief of Police and the

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individual officers under 42 U.S.C. § 1983 for failure to train

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and/or supervise, illegal search and seizure9 and use of

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excessive force in violation of the Fourth Amendment.

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also allege corollary state law claims for negligent infliction

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of emotional distress, violation of California Civil Code § 52.1,

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wrongful death and negligent hiring.

Plaintiffs

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STANDARD

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Summary judgment is appropriate when it is demonstrated that

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there exists no genuine issue as to any material fact, and that

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the moving party is entitled to judgment as a matter of law.

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Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144,

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157 (1970).

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Plaintiffs do not address whatsoever Defendants’ arguments
that there was no unreasonable search in violation of the Fourth
Amendment. Indeed, it is clear that there was no such violation
here as the home entry falls under a number of the exceptions to
the warrant requirement: consent, emergency, special needs and
protective sweep. Since Plaintiffs have no legitimate basis for
asserting a claim for illegal search and seizure, it is
appropriate to grant Defendants’ motion as to that claim.
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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 the affidavits, if any,” which it
believes demonstrate the absence of a genuine issue of
material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

“[W]here the

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nonmoving party will bear the burden of proof at trial on a

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dispositive issue, a summary judgment motion may properly be made

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in reliance solely on the ‘pleadings, depositions, answers to

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interrogatories, and admissions on file.’”

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summary judgment should be entered against a party who fails to

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make a showing sufficient to establish the existence of an

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element essential to that party’s case, and on which that party

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will bear the burden of proof at trial.

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circumstance, summary judgment should be granted, “so long as

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whatever is before the district court demonstrates that the

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standard for entry of summary judgment, as set forth in

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Rule 56(c), is satisfied.”

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Id. at 324.

Id. at 322.

Indeed,

In such a

Id. at 323.

If the moving party meets its initial responsibility, the

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burden then shifts to the opposing party to establish that a

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genuine issue as to any material fact actually does exist.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.

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253, 288-289 (1968).

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In attempting to establish the existence of this factual dispute,

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the opposing party may not rely upon the denials of its

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pleadings, but is required to tender evidence of specific facts

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in the form of affidavits, and/or admissible discovery material,

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in support of its contention that the dispute exists.

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Civ. P. 56(c).

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in contention is material, i.e., a fact that might affect the

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outcome of the suit under the governing law, Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is

Fed. R.

The opposing party must demonstrate that the fact

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genuine, i.e., the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party, Id. at 251-52.

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In the endeavor to establish the existence of a factual

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dispute, the opposing party need not establish a material issue

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of fact conclusively in its favor.

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claimed factual dispute be shown to require a jury or judge to

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resolve the parties’ differing versions of the truth at trial.”

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First Nat’l Bank, 391 U.S. at 289.

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judgment is to ‘pierce the pleadings and to assess the proof in

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order to see whether there is a genuine need for trial.’”

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Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory

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committee’s note on 1963 amendments).

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It is sufficient that “the

Thus, the “purpose of summary

In resolving the summary judgment motion, the court examines

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the pleadings, depositions, answers to interrogatories, and

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admissions on file, together with the affidavits, if any.

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Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06

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(9th Cir. 1982).

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The evidence of the opposing party is to be believed, and all

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reasonable inferences that may be drawn from the facts placed

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before the court must be drawn in favor of the opposing party.

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Anderson, 477 U.S. at 255.

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drawn out of the air, and it is the opposing party’s obligation

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to produce a factual predicate from which the inference may be

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drawn.

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1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir. 1987).

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Nevertheless, inferences are not

Richards v. Nielsen Freight Lines, 602 F. Supp. 1224,

Finally, to demonstrate a genuine issue, the opposing party

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“must do more than simply show that there is some metaphysical

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doubt as to the material facts....Where the record taken as a

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whole could not lead a rational trier of fact to find for the

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nonmoving party, there is no ‘genuine issue for trial.’”

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Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356.

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ANALYSIS

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A.

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Excessive Force

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Defendants contend that their use of force was objectively

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reasonable because they were faced, in close-quarters, with an

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aggressive, mentally unstable individual that was overtly and

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aggressively threatening the officers while brandishing a knife.

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This factor is compounded, Defendants maintain, by the fact that

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the only reason they were in the room in the first place was to

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help calm Decedent down at the request of the Plaintiffs bringing

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this claim.

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Moreover, Defendants assert that their actions were objectively

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reasonable because they only resorted to deadly force after being

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threatened with a brandished weapon and attempting to subdue

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Decedent with non-lethal force.

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reasonable juror would find that officers responding to a request

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by Decedent’s family, who in the face of an overt threat, attempt

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to subdue an aggressive, mentally unbalanced individual with non-

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lehtal force, and only resorted to lethal force when faced with a

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direct threat, acted unreasonably.

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In sum, Defendants argue that no

Plaintiffs counter that the intrusion on Decedent’s Fourth

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Amendment interests —— specifically, Defendants’ use of force to

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subdue Decedent —— outweighs the government’s interest in this

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case.

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of threat posed by Decedent “requires a careful sorting of

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material questions of fact and credibility determinations,” and

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thus, summary judgment is not appropriate in this instance.10

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(Pl.’s Opp’n at 25:8-10.)

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Decedent made no threat to any person until after the officer

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confronted him in his own bedroom, and thus, it was unreasonable

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for the officers to use force upon him after he did threaten

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them.

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threatened the officers, they should have redeployed to outside

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of the bedroom.

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because the officers knew that they were dealing with a mentally

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disturbed individual.

Moreover, Plaintiffs contend that determining the amount

Specifically, Plaintiffs maintain that

Moreover, Plaintiffs assert that, after Decedent

This is especially true, Plaintiffs argue,

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Plaintiffs commit 23 of 33 pages of background before
actually reaching the legal questions at issue in this motion for
summary judgment. (See generally Pl.’s Opp’n, filed Sept. 16,
2011, [ECF No. 16].)
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Any claim that law enforcement used excessive force, either

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deadly or non-deadly, in the course of any confrontation with a

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citizen, must be analyzed under the Fourth Amendment and its

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standard of objective reasonableness.

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490 U.S. 386, 395 (1989); Drummond v. City of Anaheim, 343 F.3d

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1052, 1056 (9th Cir. 2003).

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force cases is whether the use of force was “objectively

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reasonable in light of the facts and circumstances confronting

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[the officers], without regard to their underlying intent or

See Graham v. Connor,

The crucial inquiry in excessive

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motivation.”

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Orange, 485 F.3d 463, 477 (9th Cir. 2007).

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Graham, 490 U.S. at 397; Blankenhorn v. City of

Calculating whether a particular use of force was reasonable

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“requires a careful balancing of the nature and quality of the

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intrusion on the individual’s Fourth Amendment interests against

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the countervailing government interests at stake.”

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490 U.S. at 396; Blankenhorn, 485 F.3d at 477; Davis v. City of

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Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007).

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“first assess the quantum of force used to arrest [the

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Plaintiff],” then “measure the governmental interests at stake by

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evaluating a range of factors.”

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Factors evaluated in determining the government interests at

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stake include, but are not limited to, “the severity of the crime

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at issue, whether the suspect poses an immediate threat to the

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safety of the officers or others, and whether he is actively

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resisting arrest or attempting to evade arrest by flight.”

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Graham, 490 U.S. at 396; Blankenhorn, 485 F.3d at 477; Davis, 478

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F.3d at 1054.

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Graham,

The court must

Davis, 478 F.3d at 1054.

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Moreover, where it is or should be apparent that an

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individual is emotionally or mentally unstable, that is a factor

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that must be considered in determining the reasonableness of the

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force employed.

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v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (“In some

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cases ..., the availability of alternative methods of capturing

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or subduing a suspect may be a factor to consider.”).

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the Ninth Circuit has not “adopt[ed] a per se rule establishing

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two different classifications of suspects: mentally disabled

See Drummond, 343 F.3d at 1058; see also Smith

However,

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persons and serous criminals.”

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1272, 1283 (9th Cir. 2001).

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judged from the perspective of a reasonable officer on the scene,

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rather than with the 20/20 vision of hindsight.” Graham, 490 U.S.

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at 396; Drummond, 343 F.3d at 1058.

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reasonableness must embody allowance for the fact that police

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officers are often forced to make split-second judgments—in

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circumstances that are tense, uncertain, and rapidly

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evolving—about the amount of force that is necessary in a

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particular situation.”

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343 F.3d at 1058.

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encompasses a range of conduct, and the availability of less

22

intrusive alternatives will not render conduct unreasonable.”

23

Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010).

24

Deorle v. Rutherford, 272 F.3d

Importantly, reasonableness “must be

“The calculus of

Graham, 490 U.S. at 396–97; Drummond,

Thus, “[a] reasonable use of deadly force

The overall reasonableness calculus, however, is not limited

25

to these factors.

“Rather, we examine the totality of the

26

circumstances and consider ‘whatever specific factors may be

27

appropriate in a particular case, whether or not listed in

28

Graham.’”
15

1

Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting

2

Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 19974)).

3

Therefore, the court, in analyzing the aforementioned factors,

4

will consider other, more specific factual nuances involved in

5

the particular situation that unfolded on April 12, 2009.

6

Ultimately, however, the most salient factor is “whether the

7

suspect poses an immediate threat to the safety of the officers

8

or others.”

9

Smith, 394 F.3d at 702.

First, the court must calculate the quantum of force

10

employed by the officers.

11

the officers, by the end of the confrontation, resorted to deadly

12

force.

13

of force, [can]not to be considered in a vacuum.”

14

In this case, the use of deadly force is mitigated by the fact

15

that the officers, after Decedent threatened cutting their throat

16

and shoving it down their neck, attempted to subdue Decedent by

17

deploying two Tasers,11 “a medium or intermediate level of

18

force.”

19

(E.D. Cal. 2008) Aff’d 340 Fed. Appx. 377 (9th Cir. 2009).

20

set forth above, Officer Barber did not resort to using his

21

handgun until it was clear that the use of the Taser had no

22

effect on Decedent, and Decedent continued to threaten Officer

23

Barber.

24

until after a third Taser failed to subdue Decedent, and Decedent

25

again stood up with the knife and approached the officers.

26

///

27
28

In this case, it is undisputed that

However, “the reasonableness of a particular application
Id. at 701.

Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1170
As

Moreover, Sergeant Peterson did not fire his weapon

11

As set forth above, it is chronologically unclear whether
both Tasers were fired before the first shot, or the second Taser
was fired after the first shot.
16

1

In a case that is factually similar, this Court held that

2

officers who deployed five Tasers,12 and continuously cycled

3

those Tasers in drive-stun mode —— the Taser setting which “is

4

considered last resort and should rarely be used” —— acted

5

objectively reasonable because the Taser failed to subdue the

6

resisting victim.

7

similar to the officers in this case, faced a obviously unstable,

8

violent individual who refused to subdue to the officers’ use of

9

non-deadly force.

See generally id.

Id. at 1164.

The officers in Sanders,

In this case, the officers

10

discharged their firearms only after the Tasers failed and

11

Decedent continued to approach them; in Sanders the officers

12

continued to tase Decedent and cycle drive-stun electric shocks

13

because the previous Tasers were uneffective.

14

recipient of the force passed away.

15

did the Sanders court, finds that the quantum of force used was

16

objectively reasonable, in part because the previous use of non-

17

deadly force failed to subdue a mentally unstable, violent

18

assailant.13

19

In both cases, the

Nevertheless, the Court, as

Moreover, in this case, Plaintiffs’ own expert testified

20

that each Taser deployment, as well as the discharge of Officer

21

Barber and Sergeant Peterson’s firearms, were objectively

22

reasonable.

23

Plaintiffs’ expert testified as follows:

24

///

Specifically, during his deposition testimony,

25
12

26
27
28

The combined use of the Tasers and Decedent’s use of
cocaine combined to kill Decedent. Id. at 1162.
13

The Ninth Circuit has affirmed this Court’s holding in
Sanders. See Sanders v. City of Fresno, 340 Fed. Appx. 377 (9th
Cir. 2009).
17

1

Q:
Any problem with Officer Barber deploying the
Taser at the point that he did the first time.

2
A:

No.

3
4
5
6

Q:
And it was proper for Officer Prociw to deploy the
Taser when he did?
A:
Yes, subject to all the other failures on how to
deal with emotionally disturbed persons, yes. When
you’re faced with a knife at that point, it is a
reasonable tool to attempt to use.

7
8

Q:
And that second deployment, the one by Officer
Prociw at that point, also fails to gain the desired
effect of disabling Joseph, correct?

9
A:

Yes.

10
11

Q:
In fact, after the two Taser applications, Joseph
continues to advance towards Officer Barber with the
knife brandished, didn’t he?

12
A:

He did.

13
14

Q:
And at that point was it reasonable for Officer
Barber to deploy deadly force?

15

A:

16

Q:
Was it reasonable for Sergeant Peterson to call
for a Taser at that point?

Yes, to stop the immediate threat.

17
A:

Yes.

18
19

Q:
Officer Prociw deploys what is now going to be his
second Taser cartridge at this point, right?

20

A:

21

Q:
That will be, I guess, the third Taser discharge,
correct?

Correct.

22
A:

Yes.

23
24

Q:
Was it proper for Sergeant Peterson during the
effect of the Taser to attempt to move in and try to
secure Joseph?

25
A:

That is what you do, yes.

26
27

Q:
But at some point during the third Taser
application, Joseph stood up with a knife still in his
hand in front of Sergeant Peterson, right?

28
18

1

A:

It appears that way, yes.

2

Q:
And at that point Sergeant Peterson fired a single
shot from his weapon, didn’t he?

3
A:

He did.

Q:

Was that reasonable for him to do that?

4
5
6

A:
He indicated he felt a direct imminent threat,
yes. Use of deadly force would have been warranted.

7

(Deposition of Lou Reiter, filed Sept. 23, 2011, [ECF No. 21,

8

Ex. 1] at 72-80)

9

although the officers ultimately resorted to deadly force, the

Based on the foregoing, the court finds that,

10

quantum of force employed was reasonable under the specific

11

circumstances at hand.

12

Next, the court must balance the alleged intrusion upon

13

Decedent’s Fourth Amendment rights with the government’s interest

14

by balancing the Graham factors.

15

“the most important single element” in the reasonableness

16

calculus under Graham —— whether Decedent posed an immediate

17

threat to the safety of the officers or the safety of others.

18

Smith, 394 F.3d at 702.

19

First, the court begins with

In this case, the Court finds that the evidence conclusively

20

demonstrates that Decedent posed an immediate threat to the

21

officers, Decedent’s family and himself.

22

above, Plaintiffs’ expert expressly stated that Decedent posed an

23

“immediate threat.”

24

officers were faced with a violent, mentally unstable individual

25

who was brandishing a weapon and overtly threatening the officers

26

that he would cut their throats and shove it down their neck.

27

Moreover, Decedent refused to permit the officers to speak with

28

them and told them that a Taser would not stop him.

Indeed, as set forth

(See Dep. of Lou Reiter at 74:14-16.)

19

These

1

Finally, the fact that Decedent managed to strike Sergeant

2

Peterson’s face with his fist after being shot twice and tased

3

three times is demonstrative of Decedent’s determined intent to

4

harm the officers.

5

simply leave Decedent alone in his bedroom in his mentally

6

unstable state, in possession of a knife, Decedent could have

7

easily harmed either himself or a member of his family.

8

the facts set forth above, the Court finds the Decedent posed a

9

significant, immediate threat to the officers, himself and his

10

Were the officers to, as Plaintiffs suggest,

Based on

family.

11

Moreover, the Court finds that the second Graham factor

12

weights in Defendants’ favor: the underlying offenses committed

13

by Decedent —— assault on an officer and assault with a deadly

14

weapon14 —— are, at the very least, borderline serious offenses.

15

This factor, however, is mitigated by the third Graham factor:

16

there is no evidence that Decedent attempted to evade arrest by

17

fleeing.

18

avoid arrest, there is no evidence that the officers actually

19

were attempting to arrest Decedent.

20

initially stated that they could not detain Decedent as a 5150

21

and only entered the room to speak with Decedent at the request

22

of his family.

23

after he brandished the weapon.

24

///

25

///

26

///

While Defendants could argue that Decedent attempted to

The officers only attempted to subdue Decedent

27
28

14

Indeed, the officers

Cal. Penal. Code §§ 243, 245.
20

1

Nevertheless, the Court finds that, based on the immediacy of the

2

threat imposed by Decedent, and the serious nature of the crimes

3

committed by Decedent, the Graham factors, as a whole, militate

4

in favor of a finding that the officers’ use of force was

5

objectively reasonable.

6

Finally, the Court considers other factors unique to the

7

specific events that unfolded on April 12, 2011.

See Bryan, 630

8

F.3d at 826.

9

enter Decedent’s room in the first place militate in favor of a

Here, the circumstances that led the officers to

10

finding that the officers acted reasonably.

Specifically, the

11

officers only entered the home and Decedent’s bedroom at the

12

express request of Decedent’s family to speak with him in an

13

attempt to calm him down.

14

the officers with a brandished weapon that the situation

15

escalated from an attempt to help the young man to a volatile

16

confrontation requiring the use of force.

It was not until Decedent assaulted

17

In conclusion, based on the aforementioned factors, the

18

Court finds that, as a matter of law, the officers’ use of force

19

was objectively reasonable under the circumstances.

20

Plaintiffs’ claim that Defendants’ use of force was unreasonable

21

rests on their argument that the use of force was excessive

22

because the officers failed to take into account Decedent’s

23

mental condition.

24

Decedent’s mental instability, in-and-of-itself, is sufficient to

25

nudge the officers’ use of force from reasonable to unreasonable,

26

is unavailing.

27

///

28

///

Thus,

However, Plaintiffs’ contention that

21

1

While the mental state of the victim is a factor to be

2

considered in determining the reasonableness of the use of police

3

force, it is far from dispositive.

4

delineating that principle, took care to note that there are no

5

separate categories for mentally ill victims and those of sane

6

mind.

7

force must be accounted for in the reasonableness calculus,

8

considering the totality of the circumstances.

9

court is required to account for a suspect’s mental impairment,

10

there is analogous precedent holding that a suspect’s unstable

11

and/or violent mental state actually militates in favor a finding

12

that the use of force is reasonable.

13

The Ninth Circuit, in

Instead, the mental stability of a recipient of police

Indeed, while the

For example, in Sanders, as was the case here, “the officers

14

were in the process of investigating a 5150 call.”

Sanders,

15

551 F. Supp. 2d at 1168.

16

in which it was reported that a female was crying and a man was

17

‘tearing up’ the home.”

18

suspect was in an “agitated and paranoid state of mind.”

19

1170.

20

home, the officers tased him five times and continuously cycled

21

the Taser until he ultimately stopped; the suspect later died at

22

the hospital.

23

the suspect’s agitated state, and the “rapidly devolving

24

situation,” the multiple drive-stun Taser applications were not

25

unreasonable, even though they contributed to his death.

26

1170-1176.

27

///

28

///

The officers were responding to a “call

Id.

When the officers arrived, the
Id. at

After the suspect grabbed the woman and fell back into the

Id. at 1157-1163.

22

The court held that, because of

Id. at

1

Similarly, in Blanford v. Sacramento Cnty., 406 F.3d 1110

2

(9th Cir. 2005), a man wearing a ski mask and carrying a sword

3

was walking through a residential neighborhood.

4

The officers ordered the suspect to drop the sword as he

5

attempted to open the door of a residence.15

6

the suspect did not drop the sword, the officers fired numerous

7

gun shots at the suspect, one shot hit his spine, rendering him a

8

paraplegic.

9

officers’ conduct was objectively reasonable, took into account

Id. at 113-114.

Id. at 1112.

Id. at 1113.

When

The court, in holding that the

10

the fact that the officers “considered the possibility that

11

Blanford might be mentally disturbed or under the influence of a

12

controlled substance.”

13

Id. at 1116.

As in Blanford and Sanders, the police in this case were

14

faced with a mentally unstable, potentially violent and

15

threatening individual.

16

Decedent’s violent and impaired state of mind actually weigh in

17

favor of a finding that the officers’ conduct was reasonable.

18

Specifically, these officers, in close-quarters, with a clearly

19

enraged individual, took the cautious approach of deploying three

20

non-lethal Tasers.

21

force would not suffice to disarm Decedent, and Decedent advanced

22

on the officers brandishing a knife, did the officers resort to

23

discharging their firearms.

24

place in Decedent’s bedroom, it was impossible for those officers

25

to know what Decedent might do.

26

///

In both cases, and in this case,

Only when it was evident that non-lethal

Given the circumstances that took

27
15

28

Unbeknownst to the officers, that residence turned out to
be his own.
23

1

To this end, in order to protect themselves, and to obtain

2

custody of the weapon for purposes of ensuring Decedent did not

3

harm himself or others, it was prudent of the officers to deploy

4

the force they did.

5

It is easy to retrospectively suggest that these officers

6

should have taken a different approach to the situation. However,

7

police officers are not required to “find and choose the least

8

intrusive alternative” as that would “require them to exercise

9

superhuman judgment[,] [i]n the heat of battle with lives

10

potentially on balance.”

Scott v. Henrich, 39 F.3d 912, 915 (9th

11

Cir. 1994).

12

perfect vision of 20/20 hindsight.

13

In this case, the Court finds the alternative suggested by

14

Plaintiffs would have been wholly untenable.

15

the officers, as Plaintiffs suggest, merely left the room and,

16

presumably, the home, they would have left a deranged, clearly

17

violent individual in possession of a deadly weapon with the

18

opportunity to harm not only himself, but also the family members

19

still in the home.

20

the room when Decedent pointed the knife at him, Officer Barber

21

responded: “Protecting my life is what stopped me, protecting the

22

life of my fellow officers to my right, and the family that’s

23

downstairs.”

24

Plaintiffs’ proffered course of action would have undermined the

25

very purpose for the officers’ legal entry into Decedent’s room

26

in the first place —— Decedent’s family specifically requested

27

the officers to enter the room to attempt to speak with Decedent

28

in order to calm him down.

Moreover, officers are not required to have the
Graham, 490 U.S. at 396.

Specifically, had

Indeed, when asked why he did not exit from

(Barber Dep. at 55:5-14.)

24

Moreover, taking

1

Under these circumstances, it is prudent to ask: had the

2

officers taken Plaintiffs’ suggested course of action, and left

3

Decedent alone in the home, and Decedent then caused serious harm

4

to either himself or another member of the family, would the

5

officers and the City not be subject to a similar suit for, at

6

the very least, negligence? Gross negligence? Negligent or

7

Intentional infliction of emotional distress? Deliberate

8

indifference to a known risk?

9

officers, in the heat of an ever-escalating situation, as was the

10

The law does not require police

case here, to make these kinds of split-second decisions.

11

Based on the foregoing, the Court finds that no reasonable

12

juror could find that, based on the totality of the

13

circumstances, the officers’ use of force was objectively

14

unreasonable.

15

motion for summary judgment as to Plaintiffs’ claims for

16

excessive force in violation of the Fourth Amendment is granted.

Matsushita, 475 U.S. at 586-87

Thus, Defendants’

17
B.

18

Qualified Immunity —— Individual Officers

19
20

If a court finds, as it has here, that there is no

21

constitutional violation, the inquiry ends and the individual

22

Defendants are entitled to qualified immunity.

23

of an abundance of caution, the Court will discuss whether, if

24

there indeed was a constitutional violation, the individual

25

Defendants are entitled to qualified immunity.

26

///

27

///

28

///
25

Nevertheless, out

1

Defendants contend that the individual officers are entitled

2

to qualified immunity because, based on the clearly established

3

law at the time of the incident, a reasonable officer, faced with

4

those circumstances, could have believed that the amount of force

5

employed was not unlawful.

6

the individual officers are not entitled to qualified immunity

7

because, at the time of the incident, the law clearly established

8

that the officers were required to take Decedent’s mental

9

impairment into account, and failed to do so.

Plaintiffs, conversely, maintain that

10

Qualified immunity protects “government officials...from

11

liability for civil damages insofar as their conduct does not

12

violate clearly established statutory or constitutional rights of

13

which a reasonable person would have known.”

14

Fitzgerald, 457 U.S. 800, 818 (1982); Phillips v. Hust, 477 F.3d

15

1070, 1079 (9th Cir. 2007); Brittain v. Hansen, 451 F.3d 982, 987

16

(9th Cir. 2006).

17

acknowledge that reasonable mistakes can be made,” and that it is

18

“often difficult for an officer to determine how the relevant

19

legal doctrine will apply to the factual situation that he

20

faces.”

21

(9th Cir. 2002).

22

///

23

///

24

///

25

///

26

///

27

///

28

///

Harlow v.

The “concern of the immunity inquiry is to

Estate of Ford v. Ramirez–Palmer, 301 F.3d 1043, 1049

26

Courts generally engage in a two-part analysis16 in

1
2

determining whether qualified immunity should apply.

See Saucier

3

v. Katz, 533 U.S. 194, 200–02 (2001); Skoog v. County of

4

Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006); Brittain,

5

451 F.3d at 987.

6

determine whether, “taken in the light most favorable to the

7

party asserting the injury, do the facts show the officer’s

8

conduct violated a constitutional right?”

9

201; Phillips, 477 F.3d at 1079; Skoog, 469 F.3d at 1229.

The initial inquiry requires the court to

Saucier, 533 U.S. at
If the

10

answer is “no,” then the calculus ends and the plaintiff cannot

11

prevail; if the answer is “yes,” the court moves to the second

12

inquiry.

13

Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007);

14

Johnson v. County of Los Angeles, 340 F.3d 787, 793–94 (9th Cir.

15

2003).

16

See Saucier, 533 U.S. at 201, 121 S. Ct. 2151;

The second inquiry requires the court to ascertain “whether

17

the right was clearly established,” applying an “objective but

18

fact-specific inquiry.”

19

Cir. 2007); see Saucier, 533 U.S. at 202, 121 S. Ct. 2151;

20

Brittain, 451 F.3d at 988.

21

contours of the right were sufficiently clear that a reasonable

22

official would understand that what he is doing violates the

23

right.”

24

///

Inouye v. Kemna, 504 F.3d 705, 712 (9th

The critical question is whether “the

Saucier, 533 U.S. at 202; Phillips, 477 F.3d at 1079.

25
26
27
28

16

The Supreme Court recently held that courts are no longer
required to engage in this two-step process. Courts are now free
to “exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed
first.” Person v. Callahan, 555 U.S. 223, 236 (2009).
27

1

If the officers had a reasonable, yet mistaken, belief that the

2

use of force was not contrary to clearly established law, the

3

officers are entitled to qualified immunity.

4

533 U.S. at 205–06; Skoog, 469 F.3d at 1229; Johnson, 340 F.3d at

5

794.

6

conduct at question was lawful in accordance with clearly

7

established precedent is a question of law for the court to

8

determine.

9

2002); LaLonde v. County of Riverside, 204 F.3d 947, 953–954 (9th

See Saucier,

Whether an officer could have a reasonable belief that the

See Franklin v. Fox, 312 F.3d 423, 437 (9th Cir.

10

Cir. 2000); Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir.

11

1995); Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.

12

1993).

13

In this case, the Court has already determined that the

14

officers’ conduct did not violate Decedent’s Fourth Amendment

15

rights, and thus, the individual Defendants are entitled to

16

qualified immunity.

17

there was a constitutional violation, the Court finds that a

18

reasonable officer, under the circumstances, could have believed

19

that their conduct did not violate clearly established law.

Saucier, 533 U.S. at 201.

Even if, however,

20

Specifically, Plaintiffs’ contention that no reasonable

21

officer could have believed their conduct was lawful because the

22

law, at the time of the incident, clearly established that

23

officers must account for a suspect’s mental instability, is

24

unavailing.

25

holding that a suspect’s mental instability militates toward a

26

finding that an officer’s use of force was reasonable; there is

27

also precedent that a suspect’s mental state weighs in favor of

28

finding an officer’s use of force unreasonable.

Indeed, as set forth above, there is precedent

28

1

Compare Sanders, 551 F. Supp. 2d at 1170; Blanford, 406 F.3d at

2

1116 with Deorle, 272 F.3d 1282-1283; Drummond, 343 F.3d at 1059.

3

Thus, at the time of the incident, the law was not so clearly

4

established that a reasonable officer could not have reasonably

5

believed that the use of force employed on this occasion, against

6

an armed, violent and mentally unstable individual, was lawful.

7

Based on the foregoing, the Court finds that the individual

8

officers are entitled to qualified immunity, and thus, the Court

9

grants summary judgment as to the individual officers.

10
11

C.

Municipal Liability

12
13

Defendants contend that there can be no municipality

14

liability because there was no constitutional violation.

Even

15

if, Defendants argue, there was a constitutional violation,

16

Plaintiffs have failed to proffer any evidence supporting their

17

claims under Monell v. Dep’t of Social Services, 436 U.S. 658

18

(1978).

19

the officers’ conduct because they “consciously failed to employ

20

reasonable and generally accepted police practices for dealing

21

with Plaintiff, someone they knew to be suffering from a mental

22

impairment, obviously acting irrationally and with diminished

23

capacity.”

24

the City failed to train the police in how to do deal with

25

mentally impaired individuals.

26

Plaintiffs rest their claim on the fact that the officers were

27

dealing with a person acting under some sort of diminished

28

capacity.

Plaintiffs contend that the municipality is liable for

(Pl.’s Opp’n at 31:25-28.)

According to Plaintiffs,

(Id. at 32:1-2.)

29

Once again,

1

A municipality may only be liable where it individually

2

causes a constitutional violation via “execution of a

3

government’s policy or custom, whether by its lawmakers or by

4

those whose edicts or acts may fairly be said to represent them.

5

Monell, 436 U.S. at 694; Ulrich v. City & County of San

6

Francisco, 308 F.3d 968, 984 (9th Cir. 2002).

7

survive summary judgment, Plaintiffs must present evidence of

8

either: “(1) a longstanding practice or custom which constitutes

9

the “standard operating procedure” of a local government entity;

10

(2) the decision of a policy-making official who was, as a matter

11

of state law, a final policy making authority whose edicts or

12

acts may fairly be said to represent official policy in the area

13

of decision; or (3) when an official with final policy making

14

authority either delegated that authority to, or ratified the

15

decision of, a subordinate.

Meotti v. City of Seattle, 409 F.3d

16

1113, 1147 (9th Cir. 2005).

Complete inadequacy of training may

17

amount to a policy giving rise to Monell liability; however,

18

“adequately trained officers occasionally make mistakes; the fact

19

that they do says little about the training program or the legal

20

basis for holding the [municipality] liable.

21

Harris, 489 U.S. 378, 379 (1989).

22

In order to

City of Canon v.

As a preliminary matter, the City of Folsom cannot be held

23

liable for any Monell claims because the Court has found no

24

constitutional violation occurred.

25

(holding that there can be no Monell liability in the absence of

26

a constitutional violation).

27

use of force gave rise to a constitutional violation, Plaintiffs

28

have failed to identify any basis for municipal liability.

See Heller, 475 U.S. at 799

Even assuming that the officers’

30

1

Plaintiffs have pointed to no specific policy implemented or

2

approved by the municipality; Plaintiffs have not shown any

3

blameworthy conduct by ultimate decision-makers; Plaintiffs have

4

failed to proffer evidence of any prior incident in which the

5

Folsom police used excessive force; finally, and most

6

importantly, Plaintiffs have failed to show that the training of

7

Folsom police officers was inadequate.

8

to a singe incident conducted by individual officers with no

9

influence on city-wide policy.

Plaintiffs merely point

This single incident, however, is

10

not sufficient to demonstrate a municipality policy or custom.

11

See Smith, 551 F. Supp. 2d at 1179.

12

their burden of establishing Monell liability, and thus, summary

13

judgment in favor of the City of Folsom is appropriate.

Plaintiffs have not met

14
15

D.

Plaintiffs’ State Law Claims

16
17

Defendants contend that Plaintiffs’ state law claims fail

18

because they are essentially corollary to Plaintiffs’ federal

19

claims.

20

state law claims must be analyzed under the same reasonableness

21

standard used to analyze Plaintiffs’ excessive force claim, and

22

thus, in the absence of a finding of excessive force, summary

23

judgment must be granted.

24

claims against the individual officers “flow from the same facts

25

as the Fourth Amendment violation for excessive force and are

26

measured by the same reasonableness standard of the Fourth

27

Amendment violation for excessive force, and are measured by the

28

same reasonableness standard of the Fourth Amendment.

Specifically, Defendants contend that each of Plaintiffs’

Plaintiffs admit that their negligence

31

1

(Pl.’s Opp’n at 32:7-10.)

2

Defendants are liable for negligent infliction of emotional

3

distress and for wrongful death.

4

that the City has respondeat superior liability for the acts of

5

the officers because their use of force was unreasonable.

6

Finally, Plaintiffs claim that the individual Defendants are

7

liable for violation of California Civil Code § 52.1 because

8

Decedent’s constitutional claims have passed to Decedent’s

9

successor-in-interest.

10

Nevertheless, Plaintiffs submit that

Moreover, Plaintiffs contend

“Federal civil rights claims of excessive force are the

11

federal counterpart to state battery and wrongful death claims;

12

in both, the Plaintiff must prove the unreasonableness of the

13

officer’s conduct.”

14

4th 1077, 1002 N.6 (2004) (citing Edson v. Anaheim, 63 Cal. App.

15

4th 1269, 1274 (1998).)

16

that the police officers’ conduct was objectively reasonable and

17

grants summary judgment, [that decision] bars a state negligence

18

action premised upon violation of the same primary right.”

19

City of Simi Valley v. Superior Court, 111 Cal. App. 4th. 1077,

20

1084 (2003) (discussing res judicata and primary rights).

21

“[W]here an employee is found not to have been negligent there

22

can be no vicarious liability.”

23

Bank, 62 Cal. App. 3d. 379, 386 (1976).

Munoz v. City of Union City, 120 Cal. App.

Where “a federal court factually finds

See

Campbell v. Security Pac. Nat.

24

Moreover, in order for Plaintiffs’ state law negligent

25

hiring claim to survive summary judgment, they must “identify a

26

statute that impose[s] a duty for a public entity to ‘non-

27

negligently’ hire, select, and train employees,...”

28

551 F. Supp. 2d at 1181.
32

Sanders,

1

Finally, in the absence of a viable federal constitutional claim,

2

plaintiffs cannot state a claim for violation of California Civil

3

Code § 52.1.

4

City of San Diego, 84 F.3d 1162, 1170-1171 (overturned on other

5

grounds Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th

6

Cir. 1997).

Simi Valley, 111 Cal. App. 4th at 1085; Reynolds v.

In this case, the lack of any constitutional violation is

7
8

fatal to Plaintiffs’ state law claims.

The Court has found that

9

Defendants acted reasonably in the use of force deployed upon

10

Decedent, and thus, did not commit a constitutional violation.

11

Thus, Plaintiffs’ claim for wrongful death against the individual

12

Defendants and the City fails as a matter of law.

13

Plaintiffs’ claim that the City is liable on a theory of

14

vicarious liability also fails.

15

there was no violation of Decedent’s constitutional rights,

16

summary judgment in favor of Defendants is also appropriate as to

17

Plaintiffs’ claim for violation of California Civil Code

18

§ 52.1.

19

survive summary judgment because they have “failed to identify a

20

statute that impose[s] a duty for a public entity to ‘non-

21

negligently’ hire, select, and train employees,...”

22

551 F. Supp. 2d at 1181.

Therefore,

Since the Court has found that

Moreover, Plaintiffs’ claim for negligent hiring cannot

Sanders,

23

Finally, Plaintiffs’ claim for negligent infliction of

24

emotional distress is essentially a negligence action, and thus,

25

fails for the same reasons Plaintiffs’ direct negligence/wrongful

26

death claim fails.

27

///

28

///
33

1

See Nancy Hersh & Ward Smith, California Civil Practice Torts

2

§ 1:49 (2011) (“A Cause of action for the negligent infliction of

3

emotional distress is not an independent tort but the tort of

4

negligence, and all the traditional elements of duty, breach of

5

duty, causation, and damages apply.”)

6
CONCLUSION

7
8
9
10
11

For the foregoing reasons, Defendants’ motion for summary
judgment is GRANTED.17
IT IS SO ORDERED.

12
13

Dated: November 8, 2011

14
15

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28

17

Because oral argument will not be of material assistance,
the Court orders these matters submitted on the briefs. E.D.
Cal. L.R. 78-230(h).
34