Johnson et al v. The City of Vallejo et al

Filing 101

ORDER signed by Judge John A. Mendez on 4/14/15 GRANTING 67 Motion for Summary Judgment. The Court GRANTS Plaintiffs Joseph Johnson and Cynthia Mitchell's Monell claim set forth in the fourth cause of action of their Complaint. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH L. JOHNSON; CYNTHIA A.
MITCHELL, individually and as
successor in interest to
Mario Romero; N.R.,
individually and as successor
in interest to Mario Romero;
D.M., a minor; D.M., a minor;
AHN KHE HARRIS; AHN LOC
HARRIS; CYNQUITA MARTIN,

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No.

2:13-cv-01072-JAM-KJN

ORDER GRANTING DEFENDANTS’
MONELL MOTION FOR SUMMARY
JUDGMENT

Plaintiffs,
v.
CITY OF VALLEJO, a municipal
entity; DUSTIN JOSEPH; SEAN
KENNEY; JOSEPH KREINS,
individually and in his
official capacity as Chief of
the Vallejo Police
Department,
Defendants.

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This action arises from a police shooting incident that

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occurred on September 2, 2012 in Vallejo, California that

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resulted in the death of Mario Romero (“Decedent”) and the injury
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of Joseph Johnson (“Johnson”).

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separately but later consolidated by this Court (Doc. #2, 19).

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Defendants the City of Vallejo (“the City”); Joseph Kreins

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(“Kreins”), Chief of the Vallejo Police Department (“VPD”) at the

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time of the incident; and VPD Officers Dustin Joseph (“Joseph”)

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and Sean Kenney (“Kenney”) (collectively “Defendants”) filed five

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separate motions for summary judgment (Doc. #63-67).

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on these motions was held on April 8, 2015.

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only the fifth motion for summary judgment (which the Court took

Two complaints were filed

A hearing

This Order addresses

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under submission) (“the Monell MSJ”), in which Defendants

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specifically challenge the Plaintiffs’ claims under Monell v.

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Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691-95

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(1978) (“Monell”).

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At the hearing, Plaintiffs N.R., Ahn Khe Harris, Ahn Loc

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Harris, and Cynquita Martin (“the Martin and Harris Plaintiffs”)

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all conceded that as a result of the Court’s ruling on the other

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motions, they no longer could pursue their Monell claims, as they

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had no legal basis for doing so.

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the Monell claims as stated in the complaint filed by Plaintiff

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Cynthia Mitchell, individually and on Decedent’s behalf, and

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Johnson.

Therefore, this Order discusses

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I.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are undisputed.

Johnson’s Response to

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Defendants’ Statement of Undisputed Facts (Doc. #77-1);

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Mitchell’s Response to Defendants’ Statement of Undisputed Facts

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(Doc. #81-1); Defendants’ Response to Mitchell’s Separate

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Statement of Facts (Doc. #92-1); Defendants’ Response to
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Johnson’s Separate Statement of Facts (Doc. #93-1); Martin &

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Harris Plaintiffs’ Response to Defendants’ Statement of

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Undisputed Facts (Doc. #80).

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In the early morning of September 2, 2012, Kenney and Joseph

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(collectively “the officers”) were responding to a pending call

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related to a reported burglary.

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Thunderbird occupied by Decedent and Johnson.

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received a briefing sometime prior to this event of a vehicle

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similar in description to the Thunderbird as being involved in a

The officers spotted a white
Kenney had

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drive-by shooting.

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stopping in the middle of the street facing the front of the

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Thunderbird and within 5-15 feet of it.

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Plaintiffs resided in the house directly facing the scene of this

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incident and were inside at the time of the shooting.

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The officers pulled up to the Thunderbird,

The Martin and Harris

It is at this point, chronologically, that the versions of

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events, and evidence in support thereof, are disputed.

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not disputed is that during the encounter between Decedent,

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Johnson and the officers that followed at least 3 rounds were

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fired into the Thunderbird’s driver-side door and window and 23

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rounds were fired into the Thunderbird’s windshield by the

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officers.

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Decedent died as a result, receiving bullet wounds in his arms,

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wrist area and hands region among other areas.

What is

Johnson was injured as a result of the shooting.

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Two very distinct and competing versions of events are

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evident in the record starting from the time the officers pulled

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up to the Thunderbird until the end of the incident.

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is that primarily put forth by the Defendants and the other a

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version put forth by Plaintiffs.
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One version

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A.

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Kenney stopped his vehicle approximately 10-15 feet away

Defendants’ Version

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from the Thunderbird, not obstructing its path.

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169:18-22. Upon the officers stopping their car, Decedent opened

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the Thunderbird’s driver-side door and started to run away.

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Kenney Depo. 79:10-23. Joseph testified that he noticed Decedent

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was holding his waistband and observed the butt of a gun tucked

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into the waistband.

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“spun around and went back towards his vehicle” with a handgun in

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his right hand.

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Joseph Depo. 104:17-25.

Kenney Depo.

Decedent then

Joseph Depo. 107:23-112:1.

At some point, the officers began shouting “show me your

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hands” to Decedent and Johnson.

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Joseph Depo. 118:2-119:25. Johnson complied but Decedent did not.

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Id.

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at Decedent.

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Joseph’s safety, Kenney also began firing at Decedent.

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Depo. 98:15-99:7. Eventually Decedent complied and puts his hands

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up, while Johnson still had his hands up and nearly sticking out

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his window.

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Kenney Depo. 101:21-102:3;

Fearing for the safety of Kenney, Joseph then began firing
Joseph Depo. 107:23-112:1. Fearing for his and
Kenney

Kenney Depo. 107:17-108:14.

After radioing for backup, Kenney and Joseph observed

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Decedent drop his hands down and start to bring them up in a

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shooting position.

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124:15-125:7, 135:21-137:19.

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rounds at Decedent, and Joseph fired 4-6 shots at Decedent.

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Kenney Depo. 113:25-119:12; Joseph Depo.
Kenney responded by firing 7 or 8
Id.

Decedent then complied again with the commands to raise his

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hands.

Kenney 123:2-124:6.

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dove down to the center console, to get what Kenney figured was a

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gun.

Id.

However, shortly thereafter Decedent

Kenney responded to the “furtive reaction” by firing
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his entire magazine, about 12-13 rounds.

Id.

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B. Plaintiffs’ Version

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Upon pulling up to within 5 feet of the Thunderbird and

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facing it at an angle, the police car shined its spotlight into

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the Thunderbird.

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S (filed under seal, Doc. #84-6).

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open,” the officers shouted “just put your, you know, hands,”

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then the two officers began to open fire on the Thunderbird.

Martin Depo. 135:17-136:8; Nagle Decl. Exhibit
The police car’s doors “flew

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Johnson Depo. 140:10-24; Doc. #93-1, Facts 19-21.

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the officers’ demands, both Decedent and Johnson raised their

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hands.

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After shots began, Decedent called out to the officers, “we got

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our hands up, like, so stop shooting.”

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141:16. Johnson did not hear any further commands from the

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officers.

Id.

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incident.

Doc. #93-1 #33; Johnson Depo. 144:6-13.

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In response to

Johnson Depo. 140:25-141:16; Doc. #93-1, Facts 4-5.

Johnson Depo. 140:10-

Decedent never exited the vehicle during the

Decedent never had a gun during the incident.

Johnson Depo.

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152:11-13; Doc. #93-1 #36.

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found in the car was a pellet gun with no fingerprints from

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either Decedent or Johnson;

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a weapon with either Decedent or Johnson’s fingerprints.

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testified that he never saw a weapon during or before the

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shooting, only after the conclusion.

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Joseph testified that he and Kenney did not have any verbal

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communication with each other regarding a gun possessed by

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Decedent during the incident.

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Plaintiffs assert the only weapon

Defendants do not contend they found
Kenney

Kenney Depo. 215:4-10.

Joseph Depo. 140:4-7.

At one point, Kenney reloaded his weapon and approached
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closer to the car.

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onto the hood of the Thunderbird right in front of Johnson.

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Johnson Depo. 144:22-145:18. He was standing on the hood and

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began firing down into the car.

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Doc. #93-1, Fact 24.

Kenney then climbed

Id.

Johnson was hit by one of the bullets, which is still lodged

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in his sacrum.

Johnson Depo. 61:1-8; Doc. #93-1, Fact 44.

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Decedent died as the result of sustaining 30 gunshot wounds.

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Nagle Decl. Exhibit BB (filed under seal, Doc. #84-11).

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had 3 gunshot wounds to the head, 5 to the neck, 6 to the torso,

Decedent

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6 to the right upper extremity, 9 to the left upper extremity,

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and 1 to the left thigh.

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interrogatory stating he suffered and continues to suffer extreme

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emotional distress caused by the Defendants as a result of this

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incident.

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Id.

Johnson submitted an answer to an

Doc. #93-1, Fact 61; Nagle Decl. Exhibit AA.

After the initial shots were fired, Ahn Loc Harris went to

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and was watching the incident from a window inside her residence.

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She saw Johnson and Decedent inside the car with their hands up.

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Ahn Loc Harris Depo. 99:11-103:18; Doc. #93-1 #1, 7.

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Kenney shoot at least 6 shots into the window after climbing onto

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the hood of the car.

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taking his “last breath.”

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more times” after Decedent collapsed.

Id.

She saw

Decedent collapsed onto Johnson,
Id.

Kenney shot “probably about two
Id.

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Ahn Khe Harris and Martin came to the window as well.

Ahn

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Loc Harris Depo. 103:19-104:17. When Martin got to the window,

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she saw Kenney standing in front of the Thunderbird reloading his

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gun.

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window, but Kenney did not look at her as he climbed onto the

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hood of the car and began shooting again.

Martin Depo. 134:18-135:7. Martin started banging on the

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Id.

Martin finally

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got her window open and started yelling at Kenney.

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looked over at Martin and she said, “those are not - - you’ve got

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the wrong people, those are not those type of people.”

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Kenney responded, saying “what the fuck you think I’m supposed to

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do.”

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looking at Martin.

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the car, Martin saw Johnson passed out and Decedent laid over

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onto Johnson’s lap.

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Martin saw Kenney shooting into the car, “trying to aim for

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Id.

Id.

Kenney

Id.

Kenney continued to shoot while he was talking and

[Johnson’s] head.”

Id.; Martin Depo. 145:15-146:5. Looking into

Martin Depo. 143:4-16; Doc. #93-1 #37.

Id.

After the shooting stopped, the officers pulled Decedent out

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of the car “threw him on the ground and handcuffed his hands

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behind his back.”

Martin 148:25-149:21.

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II.

OPINION

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A.

Summary Judgment Standard

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The Federal Rules of Civil Procedure provide that “a court

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shall grant summary judgment if the movant shows there is no

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genuine issue of material fact and that the movant is entitled to

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judgment as a matter of law.”

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asserting that a fact cannot be disputed must support the

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assertion by citing to particular parts in the record, or by

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showing that the materials cited do not establish the presence of

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a genuine dispute.

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of summary judgment “is to isolate and dispose of factually

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unsupported claims or defenses.”

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U.S. 317, 323-24 (1986).

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Fed. R. Civ. P. 56(a).

Fed. R. Civ. P. 56(c)(1)(A)-(B).

A party

The purpose

Celotex Corp. v. Catrett, 477

The moving party bears the initial responsibility of
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informing the district court of the basis for its motion, and

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identifying those portions of “the pleadings, depositions,

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answers to interrogatories, and admissions on file, together with

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the affidavits, if any,” which it believes demonstrate the

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absence of a genuine issue of material fact.

Celotex Corp., 477

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U.S. at 323 (quoting Fed. R. Civ. P. 56(c)).

That burden may be

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met by “‘showing’- that is, pointing out to the district court-

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that there is an absence of evidence to support the non moving

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party’s case.”

Fairbank v. Wunderman Cato Johnson, 212 F.3d 528,

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531 (9th Cir. 2000) (quoting Celotex Corp., 477 U.S. at 325).

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the moving party meets its burden with a properly supported

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motion, the burden shifts to the opposing party.

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opposition “may not rest upon the mere allegations or denials of

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the adverse party’s pleading,” but must provide affidavits or

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other sources of evidence that “set forth specific facts showing

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that there is a genuine issue for trial.”

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263 F.3d 1070, 1076 (9th Cir. 2001) (quoting Fed. R. Civ. P.

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56(e)).

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Id.

If

The

Devereaux v. Abbey,

The adverse party must show that the fact in contention is

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material and the issue is genuine.

Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248 (1986).

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might affect the outcome of the suit under governing law.

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fact issue is “genuine” when the evidence is such that a

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reasonable jury could return a verdict for the non-moving party.

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Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th

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Cir. 2002).

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alone does not create a genuine issue of fact.

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must view the facts and draw inferences in the manner most

A “material” fact is a fact that
Id.

However, uncorroborated and self-serving testimony

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Id.

The Court

A

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favorable to the non-moving party.

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v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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Matsushita Elec. Indus. Co.

The mere existence of a scintilla of evidence in support of

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the non-moving party’s position is insufficient: “There must be

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evidence on which the jury could reasonably find for [the non-

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moving party].”

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applies to either a defendant’s or plaintiff’s motion for summary

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judgment the same standard as for a motion for directed verdict,

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which is “whether the evidence presents a sufficient disagreement

Anderson, 477 U.S. at 252.

This Court thus

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to require submission to a jury or whether it is so one-sided

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that one party must prevail as a matter of law.”

Id.

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B.

Claims

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Defendants filed the Monell MSJ addressing the Monell claims

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brought by Johnson and Mitchell and found in the 4th cause of

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action in their complaint.

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in the alternative partial summary judgment of those claims based

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on Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S.

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658 (1978).

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1.

Defendants seek summary judgment or

Monell Standard

To create municipal liability under § 1983, the

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constitutional violation must be caused by “a policy, practice,

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or custom of the entity,” Dougherty v. City of Covina, 654 F.3d

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892, 900 (9th Cir. 2011), or be the result of an order by a

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policy-making officer, see Gibson v. County of Washoe, 290 F.3d

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1175, 1186 (9th Cir. 2002).

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Inc., 698 F.3d 1128, 1139 (9th Cir. 2012).

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discussed the proper basis for Monell claims:

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See also Tsao v. Desert Palace,
The Ninth Circuit has

In Monell, the Supreme Court held that municipalities
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may be held liable as “persons” under 42 U.S.C. § 1983,
but cautioned that a municipality may not be held
liable for the unconstitutional acts of its employees
solely on a respondeat superior theory. 436 U.S. at
691. Rather, the Supreme Court has “required a
plaintiff seeking to impose liability on a municipality
under § 1983 to identify a municipal ‘policy’ or
‘custom’ that caused the plaintiff's injury.” Bd. of
Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997)
(citing Monell, 436 U.S. at 694; Pembaur v. Cincinnati,
475 U.S. 469, 480–81 (1986); City of Canton v. Harris,
489 U.S. 378, 389 (1989)). In justifying the
imposition of liability for a municipal custom, the
Supreme Court has noted that “an act performed pursuant
to a ‘custom’ that has not been formally approved by an
appropriate decisionmaker may fairly subject a
municipality to liability on the theory that the
relevant practice is so widespread as to have the force
of law.” Id. at 404 (citing Monell, 436 U.S. at 690–
91).

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Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1232-33 (9th Cir.
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2011).
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“Liability for improper custom may not be predicated on
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isolated or sporadic incidents; it must be founded upon practices
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of sufficient duration, frequency and consistency that the
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conduct has become a traditional method of carrying out policy.”
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Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) holding
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modified by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001).
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However, the Ninth Circuit has “long recognized that a custom or
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practice can be ‘inferred from widespread practices or “evidence
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of repeated constitutional violations for which the errant
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municipal officers were not discharged or reprimanded.”’”
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Hunter, 652 F.3d at 1233-34 (quoting Nadell v. Las Vegas Metro.
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Police Dep't, 268 F.3d 924, 929 (9th Cir. 2001)).

“[E]vidence of

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inaction—specifically, failure to investigate and discipline
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employees in the face of widespread constitutional violations—can
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support an inference that an unconstitutional custom or practice

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has been unofficially adopted by a municipality.”

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1234 n.8 (emphasis in original).

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Hunter, at

More relevant here, courts have found that “in some

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circumstances a policy of inaction, such as a policy of failing

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to properly train employees, may form the basis for municipal

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liability.”

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certain employees about their legal duty to avoid violating

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citizens' rights may rise to the level of an official government

Id.

“[A] local government's decision not to train

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policy for purposes of § 1983.”

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1350, 1359 (2011).

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train claim, “a municipality's failure to train its employees in

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a relevant respect must amount to ‘deliberate indifference to the

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rights of persons with whom the [untrained employees] come into

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contact.’

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of as a city “policy or custom” that is actionable under

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§ 1983.’”

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indifference standard has been discussed thoroughly by the

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Supreme Court:

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Connick v. Thompson, 131 S. Ct.

However, to satisfy § 1983 for a failure to

Only then ‘can such a shortcoming be properly thought

Id. (quoting Canton, 489 U.S. at 388).

The deliberate

“‘[D]eliberate indifference’ is a stringent standard of
fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his
action.” Thus, when city policymakers are on actual or
constructive notice that a particular omission in their
training program causes city employees to violate
citizens' constitutional rights, the city may be deemed
deliberately indifferent if the policymakers choose to
retain that program. The city's “policy of inaction”
in light of notice that its program will cause
constitutional violations “is the functional equivalent
of a decision by the city itself to violate the
Constitution.”
. . . [¶]
A pattern of similar constitutional violations by
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untrained employees is “ordinarily necessary” to
demonstrate deliberate indifference for purposes of
failure to train. Policymakers' “continued adherence
to an approach that they know or should know has failed
to prevent tortious conduct by employees may establish
the conscious disregard for the consequences of their
action—the ‘deliberate indifference’—necessary to
trigger municipal liability.” Without notice that a
course of training is deficient in a particular
respect, decisionmakers can hardly be said to have
deliberately chosen a training program that will cause
violations of constitutional rights.

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Connick, 131 S. Ct. at 1360 (internal citations omitted) (citing

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Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397,

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410 (1997); Canton, 489 U.S. at 395.).
In their fourth cause of action, Plaintiffs have also stated

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claims against Kreins in his individual and official capacities.

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First, since the City is named as a defendant on this cause of

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action, naming Kreins in his official capacity is redundant.

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Court hereby dismisses the claims brought against him in his

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official capacity.

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liable in his individual capacity if there is a sufficient nexus

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between his own conduct and the constitutional violations

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committed by subordinates.

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contours of the supervisory liability doctrine:

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The

However, a supervisory official can be found

The Ninth Circuit has addressed the

“Supervisory liability is imposed against a supervisory
official in his individual capacity for his own
culpable action or inaction in the training,
supervision, or control of his subordinates, for his
acquiescence in the constitutional deprivations of
which the complaint is made, or for conduct that showed
a reckless or callous indifference to the rights of
others.” Preschooler II v. Clark County Sch. Bd. of
Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting
Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th
Cir. 2005)). In a section 1983 claim, “a supervisor is
liable for the acts of his subordinates ‘if the
supervisor participated in or directed the violations,
or knew of the violations of subordinates and failed to
act to prevent them.’” Preschooler II, 479 F.3d at
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1182 (quoting Taylor v. List, 880 F.2d 1040, 1045 (9th
Cir. 1989)). “The requisite causal connection may be
established when an official sets in motion a ‘series
of acts by others which the actor knows or reasonably
should know would cause others to inflict’
constitutional harms.” Id. at 1183 (quoting Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).

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Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); see also

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Mackinney v. Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995) (“Under

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§ 1983, a supervisor may be liable if there exists either ‘(1)

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his or her personal involvement in the constitutional deprivation

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or (2) a sufficient causal connection between the supervisor's

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wrongful conduct and the constitutional violation.’”) (internal

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citation omitted).
2.

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Analysis

Defendants first argue that statistics reflecting the number

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of shootings by police during the relevant time period cannot

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support a finding the City had a policy or practice that violated

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citizens’ rights without a finding that the shootings were

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improper.

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data relied on by Plaintiffs that between May 25 and October 21

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of 2012 there were over 10 shootings involving the VPD, resulting

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in 6 civilian deaths.

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police in 2013.

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shootings by police.

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Plaintiffs’ expert, Franklin Zimring, and put forth by

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Plaintiffs, is not reasonable.

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argue: “Without a connection between the statistics and a

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violation of law, the mere happening of civilian fatalities

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cannot prove the existence of a policy or custom to exercise

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unlawful force.

Monell MSJ at pp. 9-14.

Defendants are referencing

In addition, there were 3 shootings by

All of these came after many years of few to no
Defendants contend the inference drawn by

Monell MSJ at p. 11.

Id.
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Defendants

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In their motion, Defendants rely extensively on Strauss v.

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City of Chicago, 760 F.2d 765, 768-69 (7th Cir. 1985).

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Strauss, the Seventh Circuit addressed statistical information

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offered by the plaintiff to support a Monell claim at the motion

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to dismiss stage.

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“statistical summaries from the Office of Professional Standards

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regarding complaints filed with the police department,” the

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Chicago Police Department.

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police department sustained only 6-7% of all registered

760 F.2d at 768-69.

Id.

In

The plaintiff offered

The summaries indicated that the

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complaints for a three-year period from 1977-1979.

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plaintiff argued this low percentage “‘must give rise to a

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reasonble [sic.] man's suspicions that defendant Chicago's

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methods of review are weighted to discourage positive findings.”

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Id.

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concluded:

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Id.

The

The court found the plaintiff’s reasoning “specious,” and

the number of complaints filed, without more, indicates
nothing. People may file a complaint for many reasons,
or for no reason at all. That they filed complaints
does not indicate that the policies that [the
plaintiff] alleges exist do in fact exist and did
contribute to his injury. [¶] At the very least [the
plaintiff] “would need to identify as well what it was
that made those prior arrests * * * illegal and to show
that a similar illegality was involved in his case.”

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Id. (quoting Ekergren v. City of Chicago, 538 F. Supp. 770, 773

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(N.D. Ill. 1982)).

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Defendants next argue that even if the Court considers the

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“bare statistics regarding officer shootings or the ethnicity of

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those shot, as a matter of law, Plaintiffs cannot show the

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existence of a custom or practice in existence for a sufficient

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duration to constitute evidence of a municipal policy.”

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MSJ at pp. 13-14.

Monell

They argue this spike in shootings was an
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“anomaly, not a pattern” and could not constitute “evidence of

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repeated constitutional violations.”

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evidence that the internal investigations and reviews of these

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shootings did not find the conduct surrounding the shootings

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improper and that an investigation by the local district

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attorney’s office found no evidence of actionable conduct.

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Defendants point to the

Id.

Defendants next attack Plaintiffs’ claim on the basis of

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inadequate training, arguing Plaintiffs do not have sufficient

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evidence to support such a claim.

They argue that even if the

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conclusions drawn by Plaintiffs from the document, entitled

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“2013: The Year in Review,” is assumed to be true, it does not

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support Plaintiffs’ claims.

13

members had not had internal training in the three years prior to

14

the report.

15

training, there is no evidence this was “inadequate ‘in relation

16

to the tasks the particular officer must perform.’”

17

at pp. 14-15.

18

Kenney’s involvement in three of the shootings in 2012 has no

19

nexus with a failure to train, let alone a nexus to wrongdoing.

20

The report indicates that VPD

Defendants argue that even with no internal

Monell MSJ

They also specifically contend that evidence of

This argument is persuasive in light of Plaintiffs’

21

inability to affirmatively show each of these shootings

22

constituted excessive force or a constitutional violation of some

23

sort.

24

as the United States Department of Justice’s determination that

25

the officers’ conduct was not appropriate for criminal

26

prosecution as proof of propriety carries little weight, since

27

clearly a different standard applies in these contexts.

28

Defendants’ reliance on their own investigations as well

The arguments put forth by Plaintiffs, both in their
15

1

opposition and at the hearing, focus primarily on establishing

2

Monell liability based on a “failure to train” theory.

3

Plaintiffs’ strongest argument is that a pattern of VPD officer’s

4

resorting to lethal force began to form in Vallejo in the period

5

immediately before the incident underlying this action.

6

Plaintiffs argue that Kreins and the City should have detected

7

the pattern of “shoot first, non-emergency police encounters”

8

resulting in constitutional violations and deaths and that in

9

response, they should have taken some action to avoid such

10

conduct in the future.

11

officers and the lack of even small changes to the admittedly

12

inadequate training in response to these incidents supports their

13

Monell claim.

14

They argue the lack of discipline of the

In order for Plaintiffs’ claims to go forward, the Court

15

would need to conclude that Kreins and the City’s response, or

16

lack thereof, tends to support they were deliberately indifferent

17

to the harm being caused and the risk that, without training or

18

adequate supervision, constitutional violations would occur in

19

the future.

20

is no proof that any constitutional violations actually occurred

21

in the other shootings or events invoking complaints to the VPD.

22

It is clear that allowing a failure to train claim to go to the

23

jury based upon a single unconstitutional incident is improper.

24

See City of Canton, Ohio v. Harris, 489 U.S. 378, 399-400 (1989).

Defendants’ main argument in response is that there

25

The evidence shows that Kreins had the authority and

26

responsibility to make policy changes and institute trainings

27

within the VPD.

28

Kreins testified that he reviewed general orders, policies and

Def. Resp. to Pl. SUF (Doc. #91-1) Facts 1-3.

16

1

procedures, staffing issues and the organization itself within

2

the VPD after becoming police chief in July 2012, but that he

3

took no action on this information from July 2012 to the date of

4

the shooting underlying the claims in this case.

5

Kreins also testified that when he entered the VPD as chief his

6

view was that there were “some inadequacies with the training

7

that was being given to the officers at that time.”

8

213:12-216:13. This was the result, at least in part, of a

9

reduction in training over the four previous years.

Id. Fact 5.

Kreins Depo.

SUF Fact 9.

10

The period of time during this reduction in training saw a string

11

of four shootings by police within a three-month period.

12

Kreins indicates that one training program, the “force-

13

options simulator,” would have been useful to Kenney and Joseph

14

when approaching the Thunderbird that night.

15

213:12-216:13. The simulator presents scenarios to officers where

16

they are then required to decide whether to use verbal commands,

17

less lethal weapons, or lethal force.

18

implemented in VPD until 2013.

19

expert, Zimring, discussed a laundry list of types of

20

preventative actions that a police chief wishing to reduce

21

“shoot-first policing” could take.

22

21-22; SUF Fact 34.

23

critical incident reports from 2012 for the VPD.

24

Monell Opp. at p. 8.

25

make any changes to any type of training at the VPD in response

26

to this information because there was no evidence of

27

constitutional violations.

28

Id.

Id.

Kreins Depo.

It was not

In addition, Plaintiffs’

Zimring Declaration at pp.

Kreins testified that he reviewed all the
SUF Fact 7;

As a result of that review, Kreins did not

Id.

Kreins also testified that he necessarily relied on
17

1

statistics in his position in order to identify trends and to

2

analyze the conduct of officers under his command.

3

216:25-218:24. Kreins stated that he analyzed the VPD statistics

4

and had an awareness of the relative statistics nationwide of

5

officer-involved homicides.

6

was that he could not make “a conclusion based upon some

7

generalities in numbers.”

8

to tell” whether there was a higher level of police shootings in

9

Vallejo than the national average, but did not take steps to find

Id.

Id.

Kreins Depo.

The end result of his analysis

He testified that he was “unable

10

out more or to improve upon the statistical analysis.

11

Zimring opined that the rate of police killings in Vallejo for

12

2012-2013 compared to the population generated a risk of death at

13

the hands of police well above that in larger cities such as New

14

York and in the country as a whole.

15

policy of looking back at an officer’s previous complaints of

16

excessive force or other critical incidents they were involved in

17

when evaluating a specific critical incident.

18

161:7-164:23.

19

Id.

The VPD did not have a

Kreins Depo.

Kreins was also asked at his deposition about a number of

20

incidents involving Kenney.

Kreins Depo. 218:25-226:20. Kreins

21

testified that when he met with his officers upon becoming chief,

22

he did not analyze all their case files.

23

admits that he did not even discuss the incidents found in

24

Kenney’s file when he sat down with him.

25

killing of Anton Barrett, the Cooley excessive force complaint,

26

and a complaint from a minor’s father, all involving allegations

27

of misconduct on Kenney’s part.

28

did not need to look at an officer’s previous complaints of

Id.

18

Specifically, Kreins

Id.

This includes the

Kreins believed that VPD

1

excessive force because he believed they had a strong

2

understanding of a pattern for a particular officer and he was

3

not aware of any trend involving excessive force.

4

#91-1) Fact 11.

Id.; SUF (Doc.

5

As regards discipline, Kreins testified that his personal

6

interviews of Kenney and Joseph provided enough information on

7

their own to return both of them to duty.

8

addition, VPD officers are referred to a marriage and family

9

therapist instead of a licensed psychiatrist.

10

SUF, Fact 12.

In

SUF Facts 17-21.

After a careful review of the above described extensive

11

record in this case and relevant case law, the Court concludes

12

that although there is evidence of some systemic issues within

13

the VPD, the evidence does not meet the extremely stringent legal

14

standards required for claims under Monell.

15

Although VPD officers shot and killed four people in the

16

span of just three months in the middle of 2012 and Defendants

17

deduced no pattern and made no changes in training in response,

18

there is insufficient evidence that any of the other shootings by

19

police resulted in constitutional violations.

20

claim to succeed, Defendants must have been on “actual or

21

constructive notice that a particular omission in their training

22

program causes city employees to violate citizens' constitutional

23

rights.”

24

omitted).

25

violations by untrained employees is ‘ordinarily necessary’ to

26

demonstrate deliberate indifference for purposes of failure to

27

train.”

28

officers committed other constitutional violations.

In order for a

Connick, 131 S. Ct. at 1360 (internal citations
As stated, “[a] pattern of similar constitutional

Id.

In the instant case there is no evidence that VPD

19

1

Plaintiffs argue that a reasonable jury could find that the

2

total inaction of the City and Kreins in response to this uptick

3

of police-involved shootings of civilians, and specifically the

4

repeated incidents involving Kenney, showed a “deliberate

5

indifference” to the constitutional rights of the people of

6

Vallejo.

7

S. Ct. at 1359.

8

actions has not been proven.

9

task facing Plaintiffs who wish to bring a claim for failure to

See Hunter, 652 F.3d at 1232-33, 1234 n.8; Connick, 131
However, again, the unconstitutionality of these
The Court does note the difficult

10

train.

11

police conduct is often not determined by an unbiased entity

12

until years after the conduct has occurred. Nevertheless, some

13

evidence of constitutional violations is required to maintain the

14

Monell claim in this case.

15

As is evident by this case, the constitutionality of

The Court also finds insufficient evidence to create a

16

genuine issue of material fact as to whether “a sufficient causal

17

connection between [Kreins’] alleged wrongful conduct and the

18

constitutional violation[s]” exists.

19

F.3d at 1008.

20

may have been called into question in the face of repeated use of

21

lethal force by his officers against victims who either did not

22

have firearms or who at least did not fire them, there is a lack

23

of evidence that this resulted in constitutional violations.

24

Therefore, the Court also grants Defendants’ motion as to the

25

claim against Kreins in his individual capacity for supervisory

26

liability.

Mackinney v. Nielsen, 69

Although the evidence shows that Kreins’ inaction

27
28
20

1
2

III.

ORDER

For the reasons set forth above, the Court GRANTS

3

Defendants’ motion for summary judgment on Plaintiffs Joseph

4

Johnson and Cynthia Mitchell’s Monell claim set forth in the

5

fourth cause of action of their Complaint

6
7

IT IS SO ORDERED.
Dated: April 14, 2015

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