Kaur et al v. City of Lodi et al

Filing 206

ORDER signed by District Judge Troy L. Nunley on 6/29/17 ORDERING for the foregoing reasons, the Officer Defendants' 163 motion is GRANTED in part and DENIED in part. GRANTED with respect to: (i) the Second Claim and (ii) the Eleventh Claim . Otherwise, it is DENIED; the City Defendants' motion is GRANTED in part and DENIED in part; GRANTED with respect to: (i) the Sixth Claim, as it applies to Chief Helms in his individual capacity, (ii) the Seventh Claim, and (iii) the Eleventh Claim. Otherwise, the City Defendants' motion is DENIED. (Becknal, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SUKHWINDER KAUR, et al., Plaintiffs, 12 ORDER v. 13 14 No. 2:14-cv-00828-TLN-AC CITY OF LODI, et al., Defendants. 15 16 This matter is before the Court pursuant to Defendants City of Lodi (“Lodi”), City of Lodi 17 18 Police Department (“LPD”) and Mark Helms’s (“Chief Helms”) Motion for Summary 19 Adjudication (ECF No. 163) and Defendants Miles Scott Bratton (“Corporal Bratton”) and Adam 20 Lockie’s (“Officer Lockie”) Motion for Summary Judgment, or in the alternative, Summary 21 Adjudication (ECF No. 164).1 The Court will refer to Lodi, LPD, and Chief Helms as the “City Defendants.” The Court 22 23 will refer to Corporal Bratton and Officer Lockie as the “Officer Defendants.” For efficiency’s 24 sake the Court will analyze the Officer Defendants’ motion first. The Court has carefully 25 considered the arguments raised by the parties. For the reasons set forth below, the Officer 26 Defendants’ motion is GRANTED in part and DENIED in part. Likewise, the City Defendants’ 27 1 28 Also pending are Plaintiffs’ several motions to exclude expert testimony (ECF Nos. 154–159) and motion to bifurcate (ECF No. 160). The instant motions do not turn on their resolution. They will be disposed of separately. 1 1 motion is GRANTED in part and DENIED in part. PRELIMINARY DISCUSSION OF THE OFFICER DEFENDANTS’ MOTION 2 I. 3 This case arises out of a fatal police shooting. None of the non-officer witnesses (the 4 “Non-Party Witnesses”) observed the entirety of the dynamic encounter between Parminder 5 Singh Shergill (“Parminder”) and the Officer Defendants. The Non-Party Witnesses who 6 witnessed the shooting itself could not see whether there was a knife in Parminder’s hands at the 7 time he was shot. However, their testimony does call into question the key factual assertion 8 which underlies the Officer Defendants’ motion: “[t]he [Officer Defendants] did not use deadly 9 force until [Parminder] abruptly turned back and ‘charged toward’ them with the knife.” (ECF 10 No. 164-1 at 38.) This factual dispute turns on a jury’s credibility determinations and cannot be 11 resolved by the Court on summary judgment. 12 Unfortunately, the Officer Defendants’ motion takes for granted that this crucial factual 13 assertion is undisputed to such a degree that it is virtually impossible to intelligently engage their 14 arguments without reciting their version of events. Consequently, the Court will set out a brief 15 summary of the Officer Defendants’ version of events in the “Factual Background” section of this 16 Order followed by the material facts that Plaintiffs assert are in dispute. The Court will also 17 include a brief summary of the deposition testimony of four Non-Party Witnesses who saw (or 18 heard) the shooting because Plaintiffs inaccurately cite two of them for the proposition that it can 19 be definitively stated Parminder “never ‘armed himself’ with a knife.” (ECF No. 177-1 at 15 20 (emphasis added).) 21 The Court mentions an additional item of note. Plaintiffs submitted more than 60 22 evidentiary objections to the Officer Defendants’ proposed statement of undisputed material facts. 23 (See ECF No. 177-1.) However, Plaintiffs acknowledge the Court need not separately address 24 these evidentiary objections in order to resolve this motion. They have correctly cited Burch v. 25 Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1123 (E.D. Cal. 2006), for the proposition that 26 “objections to evidence on the ground that it is irrelevant, speculative, and/or argumentative, or 27 that it constitutes an improper legal conclusion are all duplicative of the summary judgment 28 standard itself.” (ECF No. 177 at 16 n.5; ECF No. 177-1 at 1–2.) The Court agrees and will not 2 1 separately address these objections. Likewise, the Court found it unnecessary to resolve the 2 Officer Defendants’ objections to Plaintiffs’ evidence offered in support of their opposition in 3 order to resolve the Officer Defendants’ motion. (ECF No. 187-3.) II. 4 FACTUAL BACKGROUND OF OFFICER DEFENDANTS’ MOTION A. 5 The Officer Defendants’ Version of Events The Officer Defendants responded to a 9-1-1 call placed from 23 Elderica Way, Lodi, CA 6 7 (the “Family Home”) on the morning of January 25, 2014. (ECF No. 164-2 at ¶¶ 1, 4.) On that 8 call Kuldeep Shergill (“Kuldeep”), Parminder’s sister-in-law, reported that Parminder was a 9 “paranoid schizophrenic” who was “off his medication,” “going crazy,” and “attacking [her] 10 mother-in-law” inside the Family Home. (ECF No. 164-2 at ¶ 4.) The substance of this call was 11 relayed to the Officer Defendants prior to their arrival at the Family Home. (ECF No. 164-2 at ¶¶ 12 5–8.) Officer Lockie knew prior to his arrival that he was responding to a family disturbance 13 involving a mentally ill individual attacking a family member. (ECF No. 164-2 at ¶ 9.) Corporal 14 Bratton knew there was an assault at the residence involving a schizophrenic subject. (ECF No. 15 164-2 at ¶ 10.) In reality, Parminder had attacked no one, but this information was not relayed to 16 the Officer Defendants. (ECF No. 164-2 at ¶¶ 18–20.) Additionally, the Officer Defendants 17 assert that Parminder had been drinking, but they do not assert that they were aware of this during 18 their encounter with him. (See ECF No. 164-2 at ¶ 1.) The Officer Defendants arrived approximately 11 minutes after the 9-1-1 call was placed. 19 20 (Compare ECF No. 164-2 at ¶ 11 with ECF No. 164-2 at ¶ 4.) They were told upon arrival that 21 Parminder had already left the Family Home on foot. (ECF No. 164-2 at ¶ 14.) They were also 22 informed that Parminder suffered from post-traumatic stress disorder and was off of his 23 medication. (ECF No. 164-2 at ¶ 16.) Sarabjit Shergill (“Sarabjit”), Parminder’s brother, 24 reported to the Officer Defendants that Parminder was “having an episode” and could likely be 25 found at a nearby park. (ECF No. 164-2 at ¶ 21.) Corporal Bratton was given a description of 26 Parminder, including the clothes he was wearing. (Bratton Dep., ECF No. 164-4 at 112:6-9.)2 27 2 28 The parties have supplied excerpts of various depositions in their submissions. For ease of reference, the page numbers used in citations in this Order are the ECF page numbers. 3 1 Corporal Bratton was also told there were guns in the house, but that they were locked up. (ECF 2 No. 164-2 at ¶ 22.) The Officer Defendants were not informed that Parminder owned a knife. 3 (ECF No. 164-2 at ¶ 23.) Corporal Bratton told Kuldeep, Sarabjit, and Sukhwinder Kaur 4 (“Sukhwinder”), Parminder’s mother, that the Officer Defendants would drive around the block 5 to look for Parminder. (ECF No. 164-2 at ¶ 26.) Parminder’s family was told to call LPD if 6 Parminder returned home. (ECF No. 164-2 at ¶ 28.) The Officer Defendants left the Family 7 Home in separate vehicles for nearby Peterson Park. (ECF No. 164-2 at ¶ 32.) 8 9 Corporal Bratton located Parminder in Peterson Park near the basketball courts and parked his vehicle on Evergreen Drive, which fronts the east side of the park. (See ECF No. 164-2 at ¶ 10 36.) Parminder was observed walking through the middle of a coordinated exercise group in 11 Peterson Park. (ECF No. 164-2 at ¶ 41.) Parminder, who was walking east toward Corporal 12 Bratton and eventually past him, did not respond when Corporal Bratton spoke to him. (ECF No. 13 164-2 at ¶¶ 40, 42–43.) Parminder walked past Officer Lockie, who was in his patrol vehicle at 14 the intersection of Elderica Way and Evergreen Drive at the border of Peterson Park, while 15 Corporal Bratton trailed behind Parminder, attempting to speak with Parminder and asking 16 Parminder to stop. (ECF No. 164-2 at ¶¶ 45–46, 48.) As Parminder continued walking, he told 17 Corporal Bratton, “Fuck you. I am not talking to you.” (ECF No. 164-2 at ¶ 49.) Parminder was 18 walking in the general direction of the Family Home. (ECF No. 164-2 at ¶¶ 49–50.) As he did 19 this, Parminder removed a black knife from his clothing, opened it and held it at his side in his 20 right hand. (ECF No. 164-2 at ¶¶ 49–50.) Corporal Bratton relayed this over the radio along with 21 stating that Parminder was refusing commands. (ECF No. 164-2 at ¶¶ 50–54.) Officer Lockie 22 exited his car upon hearing Corporal Bratton report that Parminder had a knife. (Lockie Dep., 23 ECF No. 164-4 at 78:6–10.) Officer Lockie also observed the knife in Parminder’s right hand. 24 (ECF No. 164-2 at ¶ 55.) 25 At some point after Parminder armed himself with a knife, the Officer Defendants drew 26 their guns. (ECF No. 164-2 at ¶¶ 55, 57, 59.) Parminder continued to walk in the general 27 direction of his home while ignoring the commands of the Officer Defendants, including 28 commands to drop his knife. (ECF No. 164-2 at ¶¶ 57–58, 60–61.) Both of the Officer 4 1 Defendants grew concerned that Parminder was a threat to his family. (ECF No. 164-2 at ¶¶ 56, 2 63.) Ultimately, Corporal Bratton radioed that “[w]e are going back on to Elderica, I need you to 3 call the [9-1-1 caller] back and advise them to barricade the front door” noting that the “subject is 4 armed with a knife” and “very agitated.” (ECF No. 164-2 at ¶ 64.) The Officer Defendants 5 indicate that they followed Parminder trailing approximately ten to twenty feet behind him and 6 approximately ten to twelve feet from each other. (ECF No. 164-2 at ¶ 66.) Parminder, while 7 continuing to walk away and ignore commands, screamed “you want to talk to me motherfucker.” 8 (ECF No. 164-2 at ¶ 67.) Corporal Bratton ordered Parminder to “stop,” “drop the weapon,” “put 9 down the weapon,” and “stop or I will shoot.” (ECF No. 164-2 at ¶ 68.) 10 Parminder then quickly turned around and faced the Officer Defendants, while screaming 11 with his knife in his right hand near his own head and the blade pointed at Corporal Bratton. 12 (ECF No. 164-2 at ¶¶ 70–71.) Corporal Bratton again ordered Parminder to “stop,” “drop the 13 weapon,” and “stop or I will shoot.” (ECF No. 164-2 at ¶ 72.) Corporal Bratton testified 14 Parminder then charged him giving out a “war cry” and screaming: “Fuck you. I’m going to 15 fucking kill you. Fucking kill me.” (ECF No. 164-4 at 135:11–136:16.) Officer Lockie testified 16 that he perceived Parminder to be coming “towards [him].” (ECF No. 164-4 at 96:14–18.) At 17 this point, Corporal Bratton was approximately twelve to fifteen away from Parminder. (ECF No. 18 164-2 at ¶ 75.) The Officer Defendants were standing in front of 61 Elderica Way with Corporal 19 Bratton in the driveway and Officer Lockie to his left. (ECF No. 164-2 at ¶¶ 75–76.) The Officer 20 Defendants fired multiple shots at Parminder when he charged them with his knife. (ECF No. 21 164-2 at ¶¶ 80–85.) Officer Lockie estimated “maybe a second or two” elapsed between the time 22 Parminder turned towards them and when they began shooting. (ECF No. 164-2 at ¶ 86.) The 23 Officer Defendants continued to shoot until Parminder fell to his knees and stopped advancing. 24 (ECF No. 164-2 at ¶¶ 87–88.) After Parminder was shot, Officer Lockie slid Parminder’s knife 25 away with his boot and radioed “shots fired.” (ECF No. 164-2 at ¶¶ 90–91.) Parminder was then 26 handcuffed and emergency personnel were immediately called. (ECF No. 164-2 at ¶ 93.) The 27 Officer Defendants performed first-aid until emergency personnel arrived. (ECF No. 164-2 at ¶¶ 28 96–97.) A California Department of Justice DNA analysis of the knife revealed that Parminder’s 5 1 DNA was on the knife, but not the Officer Defendants. (ECF No. 164-2 at ¶ 108.) Parminder sustained a total of 14 gunshot wounds. (ECF No. 164-2 at ¶ 115.) One 2 3 minute and forty-three seconds elapsed between the beginning of the Officer Defendants 4 encounter with Parminder and the time Parminder was shot. (ECF No. 164-2 at ¶ 126.) The 5 Officer Defendants had left their bean bag shotguns in their vehicles and did not think they had 6 time to deploy the less-than-lethal weapons they had on their utility belts once Parminder abruptly 7 turned towards them. (ECF No. 164-2 at ¶¶ 78–80.) The Officer Defendants attended a County 8 Mental Health In-Service Training at the Lodi Police Department the day before the shooting. 9 (ECF No. 164-2 at ¶ 131.) This training covered the criteria for a Welfare and Institutions Code § 10 5150 (“Section 5150”) hold. (ECF No. 164-2 at ¶ 132.) However, the Officer Defendants were 11 not specifically trained on how to approach, speak to, or interact with violent, armed 12 schizophrenic individuals on that occasion. (ECF No. 164-2 at ¶ 133.) B. Plaintiffs’ Statement of Disputed Facts 13 On the morning of January 25, 2014, Parminder appeared to be experiencing symptoms of 14 15 his mental illness. (ECF No. 177-2 at ¶ 1.) There is no evidence that Parminder consumed 16 alcohol on January 25, 2014. (ECF No. 177-1 at ¶ 1.) At no time during Parminder’s encounter 17 with the Officer Defendants did he “arm himself with a knife.” (ECF No. 177-2 at ¶ 3.) In front 18 of the home located at 61 Elderica Way, Parminder stopped walking and began to turn and face 19 the Officer Defendants. (ECF No. 177-2 at ¶ 4.) Before Parminder could complete the turn to 20 face the Officer Defendants, they both began shooting Parminder. (ECF No. 177-2 at ¶ 4.) As 21 Parminder was turning to face the Officer Defendants, he said “don’t shoot!” (ECF No. 177-2 at 22 ¶ 5.) Parminder’s hands were either in his pockets or down at his sides at this time. (ECF No. 23 177-2 at ¶ 6.) At no time did Parminder move or advance towards the Officer Defendants. (ECF 24 No. 177-2 at ¶ 7.) The Officer Defendants continued shooting Parminder, even as he was falling 25 backwards. (ECF No. 177-2 at ¶ 8.) The DNA analysis cited by Officer Defendants states DNA 26 from at least two contributors was found on the knife and does not state that the Officer 27 Defendants’ DNA was not present. (ECF No. 177-1 at ¶ 108.) 28 /// 6 C. Non-Party Witnesses of the Shooting 1 i. 2 Timothy Antolin In his deposition, Timothy Antolin stated that he is Cassandra Lopez’s son and that he was 3 4 in her home at 61 Elderica Way at the time of the encounter between Parminder and the Officer 5 Defendants. (See ECF No. 177-3 at 83:12–19, 84:15–18.) Mr. Antolin testified that he was in his 6 upstairs bedroom when he heard what he initially assumed to be an argument between a father 7 and child outside. (See ECF No. 177-3 at 85:23–24; 96:8–12.) It was after Mr. Antolin heard 8 someone say “put down the weapon” that he began observing the encounter between Parminder 9 and the Officer Defendants through the blinds of his bedroom window. (ECF No. 177-3 at 10 85:21–86:6.) Mr. Antolin states that “the man [was] standing . . . and the [officers] had him 11 stopped and he was turned around talking to” the officers, who “had their guns pointed at him.” 12 (See ECF No. 177-3 at 87:1–6.) Mr. Antolin indicated that at the time the man was shot by the 13 officers he had not completely turned around to face them. (See ECF No. 177-3 at 87:7–24.) Mr. 14 Antolin stated that he could not see whether the man had anything in his hands at the time the 15 man was shot. (ECF No. 88:15–19.) This was because Mr. Antolin “could not see the lower half 16 of [the man’s] body” before he was shot. (ECF No. 88:15–19.) However, Mr. Antolin testified 17 that the man had not lunged toward the officers. (ECF No. 88:20–22.) Rather, the man “didn’t 18 move, he didn’t yell at them after a certain point . . . he was just standing there.” (ECF No. 177-3 19 at 88:23–25.) After the man had fallen to the ground, Mr. Antolin stated the officer “put 20 handcuffs on him” and “started rummaging through his pockets.” (ECF No. 177-3 at 89:19–20.) 21 At some point, Mr. Antolin joined his mother in her bedroom which “has a more clear view.” 22 (See ECF No. 177-3 at 91:1–13.) Later, Mr. Antolin went outside and saw a knife near the scene 23 of the shooting. (ECF No. 177-3 at 95:12–15.) Although he reiterated that he “couldn’t see [the 24 man’s] hands,” Mr. Antolin stated that he suspects the officers had removed the knife from the 25 man’s pockets because “it didn’t seem to me that he had anything” in his hands. (ECF No. 177-3 26 at 96:1–7.) 27 /// 28 /// 7 1 2 ii. Cassandra Lopez In her deposition, Ms. Lopez testified that she went to an upstairs window in her home 3 after yelling outside drew her attention to the encounter between Parminder and the Officer 4 Defendants. (ECF No. 177-3 at 67:14–15.) Ms. Lopez observed “two officers with their guns 5 drawn on a man and they kept saying stop, drop your weapon, turn around, stop and drop your 6 weapon.” (ECF No. 177-3 at 67:24–68:1.) She described the officers as yelling “loud[ly]” with 7 their guns “pointed” at the man. (ECF No. 177-3 a 72:23–73:3.) Ms. Lopez indicated the man 8 the officers were addressing “kept walking and then after a couple of steps he stopped and he was 9 faced” with his back towards the officers. (ECF No. 177-3 at 68:5–9.) Finally, she saw the man 10 “turn, but he didn’t surrender” by which she meant “[h]e didn’t put his hands up and then turn 11 around[.]” (ECF No. 177-3 at 68:13–14.) Ms. Lopez also stated that the man turned around 12 “quickly” but that he “didn’t go at the [officers]” and “didn’t charge them.” (ECF No. 177-3 at 13 69:13–17.) Ms. Lopez testified that the man was shot multiple times after turning around. (ECF 14 No. 177-3 at 69:17–70:2.) Ms. Lopez noted that the man “didn’t fall immediately” after being 15 shot. (ECF No. 177-3 at 70:7.) Ms. Lopez noted that from her vantage point she could not see 16 his whole body and in particular “if he’s right-handed, [she doesn’t] know if there’s anything in 17 this hand” because she “can’t see this.” (ECF No. 177-3 at 69:18–20.) However, Ms. Lopez 18 clarified that she did not see the man raise his right arm. (ECF No. 177-3 at 77:1–6.) 19 iii. Bob Mendes 20 In his deposition, Bob Mendes testified that he lives directly opposite the Family Home. 21 (ECF No. 177-3 at 179:19–21.) He witnessed police officers arrive and depart from the Family 22 Home on the morning of January 25, 2014. (See, e.g., ECF No. 177-3 at 179:22–25; 181:17–23.) 23 Mr. Mendes stated that later while he was in his garage he heard yelling and walked out to his 24 driveway. (ECF No. 177-3 at 182:10–18.) Mendes could not identify the distance between the 25 encounter he observed and where he was standing but indicated that he had an unobstructed view. 26 (ECF No. 177-3 at 185:10–22.) Mr. Mendes identified Parminder by name and stated that “I 27 couldn’t tell what Parm was saying, I just know that he was yelling[.]” (ECF No. 177-3 at 28 183:11–12.) Mr. Mendes describes Parminder as facing south — which Mr. Mendes indicated 8 1 meant Parminder was facing him — and moving in Mr. Mendes’s direction. (ECF No. 177-3 at 2 183:22–184:7.) Mr. Mendes then indicated Parminder “turned and moved north.” (ECF No. 177- 3 3 at 184:6–7.) Mr. Mendes noticed at some point the officers’ weapons were drawn and pointed 4 at Parminder. (ECF No. 177-3 at 185:1–7.) Mr. Mendes testified that immediately before 5 Parminder was shot Parminder was “moving towards them with . . . his right arm up, almost as if 6 he was . . . point or yelling, . . . like if you get in an argument[.]” (ECF No. 164-5 at 96:11–14.) 7 However, Mr. Mendes also stated that he could not see anything in Parminder’s raised right hand 8 from where he was standing. (ECF No. 164-5 at 96:16–24.) He also indicated that by the time 9 Parminder turned around “[t]he yelling on [Parminder’s] part was kind of over at that point[.]” 10 (ECF No. 177-3 at 184:5–10.) iv. 11 12 Alexandra Weise The excerpt of Alexandra Weise’s deposition does not explicitly provide her precise 13 location, but it is obvious from context that on the morning of the encounter she was sleeping in 14 the house across from 61 Elderica Way. (ECF No. 177-3 at 103:1–10.) She woke up after 15 hearing voices outside her window. (ECF No. 177-3 at 103:12–13.) She remembered people 16 yelling “stop.” (ECF No. 177-3 at 103:18.) Then someone said “don’t shoot.” (ECF No. 177-3 at 17 103:18–19.) Then, “all the gunshots went off.” (ECF No. 177-3 at 103:19.) 18 III. STANDARD OF REVIEW 19 Summary judgment is appropriate when the moving party demonstrates no genuine issue 20 as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. 21 R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary 22 judgment practice, the moving party always bears the initial responsibility of informing the 23 district court of the basis of its motion, and identifying those portions of “the pleadings, 24 depositions, answers to interrogatories, and admissions on file together with affidavits, if any,” 25 which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. 26 Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof 27 at trial on a dispositive issue, a summary judgment motion may properly be made in reliance 28 solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at 9 1 324 (internal quotations omitted). Indeed, summary judgment should be entered against a party 2 who does not make a showing sufficient to establish the existence of an element essential to that 3 party’s case, and on which that party will bear the burden of proof at trial. 4 If the moving party meets its initial responsibility, the burden then shifts to the opposing 5 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 6 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); First Nat’l Bank of Ariz. v. Cities 7 Serv. Co., 391 U.S. 253, 288–89 (1968). In attempting to establish the existence of this factual 8 dispute, the opposing party may not rely upon the denials of its pleadings, but is required to 9 tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in 10 support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must 11 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the 12 suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that 13 the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for 14 the nonmoving party. Id. at 251–52. 15 In the endeavor to establish the existence of a factual dispute, the opposing party need not 16 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 17 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 18 trial.” First Nat’l Bank, 391 U.S. at 288–89. Thus, the “purpose of summary judgment is to 19 ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 20 trial.’” Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee’s note on 1963 21 amendments). 22 In resolving the summary judgment motion, the court examines the pleadings, depositions, 23 answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed. 24 R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence 25 of the opposing party is to be believed, and all reasonable inferences that may be drawn from the 26 facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. 27 at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 28 obligation to produce a factual predicate from which the inference may be drawn. Richards v. 10 1 Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir. 2 1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party 3 “must do more than simply show that there is some metaphysical doubt as to the material facts.” 4 Matsushita, 475 U.S. at 586. “Where the record taken as a whole could not lead a rational trier of 5 fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587. ANALYSIS OF OFFICER DEFENDANTS’ MOTION 6 IV. 7 The following eight claims against the Officer Defendants are included in the third 8 amended complaint (“TAC”) (ECF No. 88). The First Claim — excessive force in violation of 9 the Fourth Amendment pursuant to 42 U.S.C. § 1983 (“Section 1983”) — is brought by 10 Sukhwinder, as successor in interest to Parminder. The Second Claim — intentional or reckless 11 provocation in violation of the Fourth Amendment pursuant to Section 1983 — is brought by 12 Sukhwinder, as successor in interest to Parminder. The Third Claim — deprivation of familial 13 association in violation of the Due Process Clause of the Fourteenth Amendment pursuant to 14 Section 1983 — is brought by Sukhwinder, individually. The Fourth Claim — deprivation of 15 familial association in violation of the First Amendment pursuant to Section 1983 — is brought 16 by Plaintiffs. The Ninth Claim3 — negligence (survival action) under California law — is 17 brought by Sukhwinder, as successor in interest to Parminder. The Tenth Claim — negligence 18 (wrongful death) under California law — is brought by Sukhwinder, individually. The Eleventh 19 Claim — negligent infliction of emotional distress under California law — is brought by 20 Sukhwinder, as successor in interest to Parminder. The Twelfth Claim — interference with civil 21 rights under California law — is brought by Sukhwinder, as successor in interest to Parminder. The Officer Defendants move for summary judgment on each claim. (ECF No. 164.) The 22 23 Officer Defendants argue that they are entitled to qualified immunity on each of Plaintiffs’ 24 Section 1983 claims. (ECF No. 164-1 at 20.) For this reason, the Court will briefly describe the 25 Section 1983 and qualified immunity standards generally before addressing each of the Section 26 1983 claims separately. The state law claims will be discussed together, as this is how they are 27 treated in the Officer Defendants’ motion. 28 3 Certain claims pertain only to the City Defendants. The Court identifies claims as designated in TAC. 11 A. Section 1983 and Qualified Immunity 1 Section 1983 provides that “[e]very person who, under color of any [state law] subjects, or 2 3 causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, 4 privileges, or immunities secured by the Constitution and laws, shall be liable to the party 5 injured[.]” 42 U.S.C. § 1983. “Section 1983 does not create any substantive rights, but is instead 6 a vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions 7 by state and local officials.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). However, “[a]n official sued under § 1983 is entitled to qualified immunity unless it is 8 9 shown that the official violated a statutory or constitutional right that was clearly established at 10 the time of the challenged conduct.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). While 11 “[q]ualified immunity shields federal and state officials from money damages[,]” Ashcroft v. al- 12 Kidd, 563 U.S. 731, 735 (2011), it is “an immunity from suit rather than a mere defense to 13 liability[,]” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Consequently, it “is effectively lost 14 if a case is erroneously permitted to go to trial.” Pearson, 555 U.S. at 231. 15 A district court evaluating whether a government official is entitled to qualified immunity 16 at the summary judgment stage asks two questions: (1) whether, taking the facts in the light most 17 favorable to the nonmoving party, the officers’ conduct violated a federal statutory or 18 constitutional right, and (2) whether the right was clearly established at the time of the alleged 19 misconduct. See Saucier v. Katz, 533 U.S. 194, 200–01 (2001). Either question may be 20 addressed first, and if the answer to either is “no,” then the officers cannot be held liable for 21 damages. See Pearson, 555 U.S. at 236. With respect to the second prong, “[b]ecause the focus is on whether the officer had fair 22 23 notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at 24 the time of the conduct.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). For this reason, the 25 Supreme Court has emphasized the importance of ensuring the evidence is reviewed through the 26 appropriate lens when deciding the “clearly established prong” on summary judgment. Tolan v. 27 Cotton, 134 S. Ct. 1861, 1866 (2014). 28 /// 12 1 2 B. First Claim: Excessive Force The Officer Defendants argue that summary judgment should be granted on Plaintiffs’ 3 claim for excessive force in violation of the Fourth Amendment because their use of deadly force 4 on Parminder was objectively reasonable taking their view of the facts, which they contend are 5 undisputed. (ECF No. 164-1 at 20–30.) Additionally, even if the Court concludes that their use 6 of force violates the Fourth Amendment on those facts, the Officer Defendants argue that they are 7 entitled to qualified immunity because it was not clearly established that their use of deadly force 8 was unconstitutional at the time of the shooting. (ECF No. 164-1 at 20, 30–34.) 9 Plaintiffs argue that it is improper to grant summary judgment on this claim because a jury 10 must resolve the disputed material facts surrounding the use of deadly force, e.g., whether 11 Parminder was armed at all, let alone whether he was threatening the Officer Defendants with a 12 knife. (ECF No. 177 at 17–26.) Plaintiffs further argue that viewing the record in the light most 13 favorable to them a reasonable jury could conclude that the Officer Defendants use of deadly 14 force violated the Fourth Amendment and did so in a way that violated clearly established law. 15 (ECF No. 177 at 38–42.) 16 17 i. Fourth Amendment Standard Allegations of excessive force are examined under the Fourth Amendment’s prohibition 18 on unreasonable seizures. Graham v. Connor, 490 U.S. 386, 388 (1989). When evaluating a 19 Fourth Amendment claim of excessive force, a court must ask “whether the officers’ actions are 20 ‘objectively reasonable’ in light of the facts and circumstances confronting them[.]” Id. at 397. 21 “[T]here are no per se rules in the Fourth Amendment excessive force context; rather, courts must 22 still slosh [their] way through the factbound morass of reasonableness.” Mattos v. Agarano, 661 23 F.3d 433, 441 (9th Cir. 2011) (en banc) (internal quotation marks omitted). This inquiry 24 “requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth 25 Amendment interests’ against the countervailing governmental interests at stake.” Graham, 490 26 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); Scott v. Harris, 550 U.S. 372, 27 383 (2007). “The calculus of reasonableness must embody allowance for the fact that police 28 officers are often forced to make split-second judgments — in circumstances that are tense, 13 1 uncertain, and rapidly evolving — about the amount of force that is necessary in a particular 2 situation.” Graham, 490 U.S. at 396–97. “The ‘reasonableness’ of a particular use of force must 3 be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 4 vision of hindsight.” Id. at 396. The Ninth Circuit has articulated a three-step approach to the Graham balancing test. See 5 6 Glenn v. Washington Cty., 673 F.3d 864, 871 (9th Cir. 2011). First, the district court “must 7 assess the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the 8 type and amount of force inflicted.” Id. (internal quotation marks omitted). Second, the district 9 court must “evaluate the government’s interest in the use of force.” Id. Finally, the district court 10 must “balance the gravity of the intrusion on the individual against the government’s need for that 11 intrusion.” Id. (internal quotation marks omitted). “Because [the excessive force inquiry] nearly always requires a jury to sift through 12 13 disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held on 14 many occasions that summary judgment or judgment as a matter of law in excessive force cases 15 should be granted sparingly.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en 16 banc). 17 18 ii. The Severity of the Intrusion With respect to the first step, the severity of the intrusion, there is no dispute that the 19 Officer Defendants used deadly force which resulted in Parminder’s death. (ECF No. 164-1 at 20 21.) “The intrusiveness of a seizure by means of deadly force is unmatched.” Garner, 471 U.S. at 21 9. Therefore, the Court proceeds to the second and third steps of the Ninth Circuit framework. 22 23 iii. The Government’s Interest in the Use of Force With respect to the second step, the “strength of the government’s interest in the force 24 used is evaluated by examining three primary factors: (1) ‘whether the suspect poses an 25 immediate threat to the safety of the officers or others,’ (2) ‘the severity of the crime at issue,’ 26 and (3) ‘whether he is actively resisting arrest or attempting to evade arrest by flight.’” Glenn, 27 673 F.3d at 872 (quoting Graham, 490 U.S. at 396). The “‘most important’ [of these factors] is 28 whether the suspect posed an ‘immediate threat to the safety of the officers or others.’” Mattos, 14 1 661 F.3d at 441 (quoting Smith, 394 F.3d at 702). “An officer’s use of deadly force is reasonable 2 only if ‘the officer has probable cause to believe that the suspect poses a significant threat of 3 death or serious physical injury to the officer or others.’” Scott v. Henrich, 39 F.3d 912, 914 (9th 4 Cir. 1994) (emphasis removed) (quoting Garner, 471 U.S. at 3). 5 The three primary factors for evaluating the second step of the Graham test, however, are 6 not exclusive. See Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (describing these as 7 the “core factors”). The Ninth Circuit has made clear that the district court must “examine the 8 totality of the circumstances and consider ‘whatever specific factors may be appropriate in a 9 particular case, whether or not listed in Graham.’” Glenn, 673 F.3d at 872. Other relevant 10 factors may include the availability of less intrusive force, whether proper warnings were given, 11 and whether it should have been apparent to the officers that the subject of the force used was 12 mentally or emotionally disturbed. See, e.g., id. at 872; Bryan, 630 F.3d at 831; Deorle v. 13 Rutherford, 272 F.3d 1272, 1282–83 (9th Cir. 2001). With respect to the possibility of less 14 intrusive force, officers need not employ the least intrusive means available so long as they act 15 within a range of reasonable conduct. Scott, 39 F.3d at 915. 16 17 18 19 The Court will first examine the core Graham factors. The Court will then consider those additional factors raised in the Officer Defendants’ motion. a. Immediate Threat to the Safety of the Officers or Others Contrary to the Officer Defendants’ assertions, whether Parminder was charging them, 20 brandishing a knife, and threatening to kill them when they shot him to death is a disputed 21 question of material fact that must be resolved by a jury. As discussed below, the deposition 22 testimony of the Non-Party Witnesses calls into question the Officer Defendants’ accounts of 23 these key moments. The Officer Defendants’ suggestion that “witnesses corroborate the [Officer 24 Defendants’] version of events” is misleading. (ECF No. 164-1 at 23.) No more successful is the 25 Officer Defendants’ argument that these crucial factual questions should be taken from a jury 26 because one of their experts “opines that all of the physical evidence is consistent with the 27 [Officer Defendants’] version of events” or because Parminder’s DNA was on a knife found at 28 the scene of the shooting. (ECF No. 164-1 at 23–24.) Once these disputed facts are properly 15 1 resolved in Plaintiffs’ favor, as they must be on summary judgment, it cannot be said that 2 Parminder was an immediate threat to the safety of the Officer Defendants or others at the time he 3 was shot. 4 The deposition testimony of four Non-Party Witnesses — Timothy Antolin, Cassandra 5 Lopez, Robert Mendes, and Alexandra Weise — conflicts with the Officer Defendants’ accounts 6 in three ways. First, the deposition testimony of Timothy Antolin and Cassandra Lopez squarely 7 conflicts with the Officer Defendants’ assertion that Parminder was charging them when they shot 8 him. Ms. Lopez specifically states that after Parminder turned around he “didn’t go at the 9 [officers]” and “didn’t charge them.” (ECF No. 177-3 at 69:13–15.) Mr. Antolin testified that 10 Parminder had not lunged toward the officers. (ECF No. 177-3 at 88:20–22.) Rather, Parminder 11 “didn’t move, . . . he was just standing there.” (ECF No. 177-3 at 88:23–25.) 12 Second, the testimony of Mr. Antolin and Ms. Lopez contradicts the Officer Defendants 13 assertion that Parminder “turned and faced [the Officer Defendants] from less than fifteen (15) 14 feet with the knife raised near his head.” (ECF No. 164-1 at 22.) Both Antolin and Lopez heard 15 the Officer Defendant make references to a weapon. And neither Antolin nor Lopez could 16 definitively state that there was no knife in Parminder’s right hand from their vantage point. 17 (ECF No. 177-3 at 69:18–20; ECF No. 177-3 at 88:15–19.) However, their testimony suggests 18 that Parminder’s right hand was not raised as he turned. (ECF No. 177-3 at 68:23–69:6; ECF No. 19 177-3 at 88:15–19.) In fact, Mr. Antolin states the reason he could not tell whether anything was 20 in Parminder’s hands because he “could not see the lower half of [Parminder’s] body” from his 21 vantage point. (ECF No. 177-3 at 88:15–19.) Mr. Antolin testified that it appeared that 22 Parminder’s may have “had his hands in his pockets[.]” (ECF No. 177-3 at 88:15–19.) 23 Third, the testimony of Mr. Antolin, Mr. Mendes and Ms. Weise calls into question 24 whether Parminder was yelling and letting out a “war cry” while charging the Officer Defendants. 25 (See ECF No. 164-1 at 22.) Mr. Antolin testified Parminder had stopped yelling prior to 26 beginning to turn around. (ECF No. 177-3 at 88:20–25.) Mr. Mendes indicated that by the time 27 Parminder turned around “[t]he yelling on [Parminder’s] part was kind of over at that point[.]” 28 (ECF No. 177-3 at 184:5–16.) Ms. Weise testified she heard someone say “don’t shoot” just 16 1 before the shots were fired. (ECF No. 177-3 at 103:18–19.) As is apparent from the Officer Defendants’ discussion in their brief, Mr. Mendes 2 3 testimony differs from Mr. Antolin and Ms. Lopez’s testimony and is in some ways consistent 4 with the Officer Defendants’ testimony. (See ECF No. 164-1 at 23.) However, this misses the 5 point. The question at the summary judgment stage is not whether Mr. Mendes’s testimony is as 6 supportive of the Officer Defendants’ version of events as they suggest. It is similarly not the 7 question whether the Non-Party Witnesses’ accounts are entirely consistent with each other. The 8 question is whether the Officer Defendants’ version of events is rendered genuinely in dispute by 9 the evidence properly before this Court. It is. 10 The Officer Defendants’ suggestion that their account is corroborated by the California 11 Department of Justice’s finding of Parminder’s DNA on a knife recovered from the scene does 12 not change this. (ECF No. 164-1 at 24.) Although this may be consistent with their accounts, it 13 is not inconsistent with the account of the eyewitnesses. As previously noted Mr. Antolin 14 believed Parminder’s hands may have been in his pockets. He then testified that after Parminder 15 fell to the ground, an officer “put handcuffs on him” and he “started rummaging through his 16 pockets.” (ECF No. 177-3 at 89:19–20.) It was only after this that Mr. Antolin saw a knife near 17 the scene of the shooting. (ECF No. 177-3 at 95:9–15.) A jury could find that Parminder owned 18 a knife which had his DNA on it, but that it had been in his pocket at the time of the shooting. 19 Therefore, they could conclude that he did not present an immediate threat to officers or anyone 20 else. Similarly, the opinion of Alexander Jason, the Officer Defendants’ “bullet wound expert,” 21 22 that the physical evidence is “consistent” with the Officer Defendants’ accounts does not render 23 their version of events undisputed. (ECF No 164-1 at 23.) The Court will briefly demonstrate 24 this for Findings 2 through 5 contained in Mr. Jason’s Declaration.4 (Jason Decl., ECF No. 164-9 25 at ¶¶ 17–20.) Finding 2 is that the “wound paths of the decedent are consistent with him moving 26 27 28 forward toward Officer Bratton while being struck by the bullets.” (ECF No. 164-9 at ¶ 17.) 4 Finding 1 deals with the geographical location of the shooting. (ECF No. 164-9 at ¶ 16.) 17 1 Jason makes no effort to explain why the wound paths are inconsistent with the accounts of the 2 Non-Party Witnesses. Moreover, he does not purport to know the order the 14 bullets entered 3 into Parminder. Rather, he supports his finding by first repeating it essentially verbatim and then 4 noting the following: (i) “[T]he wound paths . . . are also consistent with … rotational movement 5 by the decedent and . . . bending forward movements as the shots were being fired.” (ECF No. 6 164-9 at ¶ 17.) (ii) Six of the shots had “downward trajectories” consistent with “leaning 7 forward.” (ECF No. 164-9 at ¶ 17.) And (iii) one of those six shots struck Parminder’s jaw and 8 continued into his chest, which Jason states is consistent with “leaning forward in an aggressive 9 manner” seemingly because Parminder having his chin “near his chest” is not consistent with 10 11 standing erect. (ECF No. 164-9 at ¶ 17.) Jason gives no explanation why having “rotational movement” suggests forward motion. 12 Jason does not state whether this rotation came before Parminder’s supposed charge — which 13 would be consistent with statements of Antolin and Lopez that Parminder was shot as he was 14 turning or having just completed his turn toward the Officer Defendants — or after the shooting 15 commenced — which may simply have been an effort to turn away as Parminder was being shot 16 multiple times. Likewise, Jason does not indicate why leaning forward is inherently aggressive. 17 It is noteworthy that Jason’s own analysis suggests that five of the eleven shots that struck 18 Parminder as he faced the Officer Defendants did not have a downward trajectory — one shot to 19 the abdomen, two to the chest, and two in the legs. (See ECF No. 164-9 at ¶ 17.) If any or all of 20 those five shots struck first, there are plausible alternative explanations for why Parminder was 21 leaning forward that Jason does not discuss, let alone rule out. Might Parminder have been 22 doubled over in pain when he was hit with the downward trajectory bullets? Did Parminder 23 reflexively lean forward to look down to see where he had been hit? Was this some futile, 24 instinctive attempt to make himself a smaller target? Tucking his chin to his chest seems just as 25 plausibly explained by any of these. 26 Finding 3 is that one of the three gunshot wounds not previously discussed entered 27 Parminder’s arm in a manner consistent with Parminder’s right hand being in an “outstretched 28 position toward the shooter[.]” (ECF No. 164-9 at ¶ 18.) Finding 4 is that the path of another of 18 1 these three gunshot wounds suggests that Parminder was “shot with right upper arm raised to his 2 shoulder level[,]” which Jason opines is consistent with holding a knife up in “stabbing motion.” 3 (ECF No. 164-9 at ¶ 19.) Finding 5 is that “bullet defects on decedent’s clothing are consistent 4 with the right arm being raised when at least one of the bullets struck.” (ECF No. 164-9 at ¶ 19.) 5 Again, there are plausible alternative explanations as to why Parminder might have his right arm 6 raised with an outstretched hand to shoulder height that are inconsistent with the Officer 7 Defendants’ account, which Jason makes no effort to rule out. Parminder might have been 8 gesturing at the Officer Defendants to back off or leave him alone — which would be consistent 9 with Mr. Mendes’s testimony. (See ECF No. 164-5 at 96:11–14.) He might have been raising his 10 hands to surrender or in effort to signal to the Officer Defendants not to shoot (or not to continue 11 shooting) — which would be consistent with Ms. Weise hearing someone say “don’t shoot.” (See 12 ECF No. 177-3 at 103:18–19.) Quite simply, these factual questions are not appropriately 13 resolved by the Court on summary judgment. Therefore, this factor does not support granting the 14 Officer Defendants’ motion. 15 16 b. Severity of the Crime at Issue Viewing the summary judgment record through the proper lens, by the time the Officer 17 Defendants encountered Parminder, they had reason to believe Parminder committed a 18 misdemeanor act of domestic violence rather than a felony. “While ‘the commission of a 19 misdemeanor offense is not to be taken lightly, it militates against finding the force used to effect 20 an arrest reasonable where the suspect was also nonviolent and posed no threat to the safety of the 21 officers or others.’” Newman v. San Joaquin Delta Cmty. Coll. Dist., 814 F. Supp. 2d 967, 975 22 (E.D. Cal. 2011) (quoting Bryan, 630 F.3d at 828–29). 23 As this Court recently explained, under California law, the distinction between felony and 24 misdemeanor domestic violence is whether the victim has suffered a physical injury. See Reed v. 25 City of Modesto, 122 F. Supp. 3d 967, 975 (E.D. Cal. 2015). The Court is mindful that the 26 Officer Defendants were not told that the reported attack on Parminder’s mother had not occurred 27 and that reasonableness is “judged from the perspective of a reasonable officer on the scene, 28 rather than with the 20/20 vision of hindsight.” Graham, 590 U.S. at 396. However, like Reed, 19 1 there is no evidence in the record that the Officer Defendants observed any injury on any of the 2 persons in the home. To the contrary, the Officer Defendants admittedly left the Family Home 3 without ascertaining whether anyone there had been injured. (ECF No. 177-3 at 19:3–9 (Corporal 4 Bratton testifying that he left without learning whether anyone had been hurt); ECF No. 177-3 at 5 146:19–25 (Officer Lockie testifying that he had not asked whether anyone was hurt and did not 6 hear Corporal Bratton ask this question).) 7 That this misdemeanor involved domestic violence does not support a conclusion that the 8 Officer Defendants’ use of force was reasonable because at the time they encountered Parminder 9 the reported domestic dispute was not ongoing and the alleged victim was not in immediate 10 danger. While the Ninth Circuit has emphasized the increased danger officers face when 11 responding to domestic disturbances, Ninth Circuit precedent has distinguished cases where (i) 12 the domestic dispute terminated before officers arrived and (ii) the alleged abuser is no longer in 13 the presence of or close proximity to the victim. This precedent can be succinctly summarized as 14 follows: Domestic violence situations are “particularly dangerous” because “more officers are killed or injured on domestic violence calls than on any other type of call.” Mattos, 662 F.3d at 450. At the same time, we explained in Mattos that the legitimate escalation of an officer’s “concern[ ] about his or her safety” is less salient “when the domestic dispute is seemingly over by the time the officers begin their investigation.” Id. Years before that we had held — in another en banc decision — that a husband’s criminal abuse of his spouse “provide[d] little, if any, basis for the officers’ use of physical force” because when law enforcement “arrived [the husband] was standing on his porch alone and separated from his wife.” Smith, 394 F.3d at 703. 15 16 17 18 19 20 21 22 23 24 25 26 27 George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013). This is such a case. Indeed, in the instant case Parminder was further removed from the Family Home than the husbands in Smith and George. See id. at 832–33, 839 (husband shot while on his back patio); Smith, 394 F.3d at 693–94, 702–03 (husband tackled, pepper sprayed, and attacked by police dog on his front porch). The Officer Defendants’ characterization of the crime at issue in their briefing results from a refusal to review the record through the prism of the traditional summary judgment 28 20 1 standard. The Officer Defendants suggest that the crimes at issue were “[a]ssault with a deadly 2 weapon or by force likely to produce great bodily injury[.]” (ECF No. 164-1 at 25.) Certainly, 3 for the reasons stated above, this is not a characterization of the falsely reported domestic 4 disturbance that the Court can accept at the summary judgment stage. However, the Officer 5 Defendants’ brief suggests that this relates to Parminder’s activities with a knife after Parminder 6 left his home. (See ECF No. 164-1 at 24–25.) Again, this presupposes the very much disputed 7 facts that Parminder was armed with a knife and attacked the Officer Defendants, and so it too 8 must be rejected. For the foregoing reasons, this factor does not support granting the Officer Defendants’ 9 10 motion. c. Resisting Arrest or Attempting to Evade Arrest by Flight 11 At the time of the shooting, viewing the evidence in the light most favorable to Plaintiffs, 12 13 a jury could conclude Parminder was neither resisting nor attempting to flee, for the reasons set 14 forth above. Parminder was asked to stop. A jury could conclude that he did. Two witnesses 15 indicated Parminder did not move toward the Officer Defendants at that point and turned (or was 16 in the process of turning) to face them. An earwitness testified she heard a person say “don’t 17 shoot.” 18 19 d. Additional Factors to Consider The Officer Defendants offer arguments with respect to five additional factors. The Court 20 notes that four of these five arguments are little more than identifying factors that the Ninth 21 Circuit has recognized as being appropriately considered in some cases coupled with a 22 reformulation of their assertion that it is undisputed that they shot a man who was attacking them 23 with a knife. The Ninth Circuit has unambiguously stated that “where a suspect threatens an 24 officer with a weapon such as a gun or a knife, the officer is justified in using deadly force.” 25 Smith, 394 F.3d. at 704. However, the Ninth Circuit has repeatedly noted that a “simple 26 statement by an officer that he fears for his safety or the safety of others is not enough.” See, e.g., 27 Mattos, 661 F.3d at 441–42. This is not changed by repeating it over and over again under the 28 guise of requesting the Court to consider “additional” factors under Graham. 21 1 Arguments of this sort are not helpful and do not warrant detailed responses on their own 2 terms, i.e., discretely analyzing “additional” Graham factors only after improperly resolving 3 crucial factual disputes in favor of the moving party. This is particularly true where it essentially 4 assumes what the Ninth Circuit, sitting en banc, has twice described as the “most important” 5 consideration under Graham —— whether the suspect posed an “immediate threat to the safety 6 of the officers or others.” Mattos, 661 F.3d at 441; Smith, 394 F.3d at 702. Graham itself 7 admonished that the overarching inquiry —— whether the force used to effectuate a particular 8 seizure was reasonable —— “is not capable of precise definition or mechanical application.” 9 Graham, 490 U.S. at 396 (emphasis added). The enumerated factors are meant to facilitate (and 10 focus) the inquiry into whether the amount of force applied was reasonable in the totality of the 11 circumstances the officers found themselves when they applied the force. Smith, 394 F.3d at 701. 12 This is precisely why a district court’s inquiry at the summary judgment stage is not limited to the 13 three factors enumerated in Graham. Mattos, 661 F.3d at 441; Smith, 394 F.3d at 701. 14 As to the Officer Defendants’ argument that the fast development of events supported 15 their use of deadly force, this must be rejected. (See ECF No 164-1 at 27–28.) A jury could find 16 that at the time the Officer Defendants shot Parminder, he had come to a stop, faced them, did not 17 brandish a weapon, and said “don’t shoot.” In other words, the situation was no longer dynamic 18 and the Officer Defendants were not faced with imminent danger. It is well settled that the desire 19 to end an encounter with a suspect quickly does not render the application of deadly force 20 reasonable. See Glenn, 673 F.3d at 876–77. Moreover, as a jury could find Parminder did not 21 pose an immediate threat, acting quickly is not a license to act unreasonably or excessively. See 22 Mattos, 661 F.3d at 451. 23 Similarly, the Officer Defendants’ argument that time did not allow them to appropriately 24 consider less lethal force must be rejected. (See ECF No. 164-1 at 27.) As already discussed, a 25 jury could find Parminder had come to a stop at the Officer Defendants’ request and said “don’t 26 shoot” at the time he was shot. This would permit the Officer Defendants to weigh alternatives 27 short of shooting Parminder repeatedly at close range. Less intrusive means are not limited to 28 applications of lesser amounts of force as the Officer Defendants’ arguments seem to suggest. 22 1 See Deorle, 272 F.3d at 1282 (“[The officer who fired a less than lethal shotgun at plaintiff] could 2 have easily avoided a confrontation, and awaited the arrival of the negotiating team . . . .”); 3 Glenn, 673 F.3d at 874 (“[Decedent] stood in the driveway several feet from the officers (who 4 could have moved farther away at any time, had they wanted to), with guns trained on him, while 5 his friends stood behind the officers and his parents and grandmother were in their homes.”). 6 Quite simply, a reasonably jury need not accept the Officer Defendants’ argument that they were 7 presented a binary choice: either allow themselves to be killed or “draw[] their weapons[,] shout[] 8 commands,” and then shoot Parminder to death. See id. at 876 (“[W]hen dealing with an 9 emotionally disturbed individual who is creating a disturbance or resisting arrest, as opposed to a 10 11 dangerous criminal, officers typically use less forceful tactics.”). The Officer Defendants argue that giving Parminder warnings supports granting their 12 motion. (ECF No. 164-1 at 26.) This also fails. Ninth Circuit precedent does provide that 13 “[a]ppropriate warnings . . . should be given, when feasible, if the use of force may result in 14 serious injury.” Glenn, 673 F.3d at 864 (emphasis added). Suppose the Officer Defendants told 15 Parminder: “We have reason to believe you have committed a misdemeanor and may be suffering 16 from mental illness. If you do not cooperate with us within 103 seconds, we are prepared to shoot 17 you fatally, even if you are unarmed, standing still, silently facing us, and ask us not to.” It is 18 doubtful that the Officer Defendants would directly defend such a warning as proper if those were 19 indeed the circumstances in which it was given, i.e. whether the warning was “appropriate.” But 20 in essence those are the circumstances which a jury could conclude the Officer Defendants found 21 themselves. 22 The Officer Defendants’ argument with respect to Parminder’s mental illness also fails. 23 In short, they suggest “cases [that] have criticized the use of force against mentally ill persons” 24 are distinguishable because Parminder was shot to death while attempting to stab the Officer 25 Defendants to death. (ECF No. 164-1 at 28–29.) This does not warrant a response as it clearly 26 ignores the summary judgment standard. Moreover, a jury need not accept the Officer 27 Defendants statement that they “perceive[d]” themselves to be dealing with a dangerous criminal 28 suspect rather than a mentally ill person. (ECF No. 164-1 at 29.) Both of the Officer Defendants 23 1 acknowledge that they were aware prior to their arrival at the Family Home that they were 2 responding to an incident involving a reportedly mentally ill person. (See ECF No. 164-2 at ¶¶ 9– 3 10.) A reasonable jury could find that it should have been apparent to the Officer Defendants that 4 Parminder was mentally ill and that he had not committed a severe crime. In that circumstance, 5 Ninth Circuit precedent is clear that the government interest in the use of force is diminished. See 6 Glenn, 673 F.3d at 876; Bryan, 630 F.3d at 829. The government interest in that context is in 7 providing treatment and ensuring the potentially mentally ill person does not present a danger to 8 himself or others rather than punishing him. See Bryan, 630 F.3d at 829. It should be kept in 9 mind that officers who are investigating whether detention under Section 5150 is appropriate are 10 not investigating a crime. Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 11 (9th Cir. 2003). 12 Lastly, the Officer Defendants argue that their use of force was made more reasonable 13 because of Parminder’s family’s “relative culpability” in “creat[ing this] dangerous situation.” 14 (ECF No. 164-1 at 26–27.) The Officer Defendants’ rely on Espinoza v. City and Cty. of San 15 Francisco, 598 F.3d 528, 537 (9th Cir. 2010), for this proposition. This reliance is misplaced. 16 That quotation does describe the “parties[’] ‘relative culpability,’” but this simply paraphrases the 17 following quote from Scott: 20 “So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability.” 21 Scott, 550 U.S. at 384. Nothing suggests that “parties” as used in Espinoza means 22 litigants. As the Ninth Circuit, sitting en banc, explained this statement from Scott merely 23 observes that “in weighing the Graham governmental interests in a situation where someone is 24 likely to get hurt — either a fleeing suspect or innocent bystanders — it is ‘appropriate in this 25 process to take into account . . . relative culpability.’” Mattos, 661 F.3d at 450. Plaintiffs do not 26 dispute that Kuldeep falsely reported that Ms. Kaur was attacked by Parminder. (ECF No. 177-1 27 at ¶¶ 18–19.) It seems quite apparent from Kuldeep’s deposition she hoped to provoke a quicker 28 response time by making the police believe they were responding to a violent domestic dispute. 18 19 24 1 (ECF No. 164-4 at 11:4–25.) However, if Parminder had survived his wounds and, therefore 2 Plaintiffs were not “parties” with respect to this claim, there could be no argument that the Officer 3 Defendants’ behavior would become less reasonable. The Court’s analysis has already factored 4 in that the Officer Defendants believed they had responded to a domestic dispute and that they 5 were not told this was untrue until after they shot Parminder. 6 7 8 9 For the foregoing reasons, none of the foregoing factors support granting the Officer Defendants’ motion. iv. Balancing the gravity of the intrusion against government’s interest The foregoing analysis makes evident that the question whether the force used here was 10 reasonable is a matter that cannot be resolved in favor of the Officer Defendants on summary 11 judgment. The Officer Defendants have failed to meet their burden to show that there are no 12 questions of material fact regarding whether the use of deadly force was reasonable. Plaintiffs 13 have proffered evidence from which a reasonable jury could find that the Officer Defendants (i) 14 had reason to believe they were dealing with a mentally ill individual, (ii) who at most committed 15 a misdemeanor, (iii) was not fleeing, (iv) had not armed himself with a knife, (v) was not 16 threatening the Officer Defendants or anyone else, (vi) whose non-compliance, if any, at the time 17 he was shot consisted of passively standing facing them, and (vii) may have said “don’t shoot.” 18 A jury could further find that, even assuming Parminder was warned, such warnings were 19 inadequate or inappropriate in the circumstances in which they were given. Consequently, the 20 governmental interest in using force would be minimal and substantially outweighed by the 21 severity of the intrusion on Parminder’s rights, and therefore a reasonable jury could conclude the 22 Officer Defendants’ violated the Fourth Amendment. 23 24 25 26 Unless the Court concludes that the Officer Defendants are entitled to qualified immunity, the Officer Defendants’ motion must be denied with respect to this claim. C. Qualified Immunity Viewing the evidence in the light most favorable to Plaintiffs, the Officer Defendants’ 27 conduct violated Parminder’s Fourth Amendment rights and it was “clearly established” that such 28 conduct constituted a Fourth Amendment violation at the time of the Officer Defendants deadly 25 1 encounter with Parminder. See Tolan, 134 S. Ct. at 1866. Therefore, their argument they are 2 entitled to qualified immunity on this claim at the summary judgment stage must be denied. 3 As described above, a jury could conclude that the Officer Defendants shot to death a man 4 who at most committed a misdemeanor, was not fleeing, had not armed himself with a weapon, 5 was not threatening the Officer Defendants or anyone else, and asked them not to shoot him. As 6 the Ninth Circuit has observed, “few things in our case law are as clearly established as the 7 principle that an officer may not ‘seize an unarmed, nondangerous suspect by shooting him dead’ 8 in the absence of ‘probable cause to believe that the [fleeing] suspect poses a threat of serious 9 physical harm, either to the officer or to others.’” Torres v. City of Madera, 648 F.3d 1119, 1128 10 (9th Cir. 2011) (quoting Garner, 471 U.S. at 11); see also Brousseau, 543 U.S. at 199 (making 11 clear that “of course” Garner serves to give a fair warning to an officer that his conduct violates 12 the Fourth Amendment in an “obvious case”). Not only is this precisely what occurred here, but 13 at the summary judgment stage the instant case follows a fortiori from Garner. Here, unlike 14 Garner, Parminder was neither “escap[ing]” nor was there a basis for believing that Parminder 15 had committed a felony. Garner, 471 U.S. at 3 (“This case requires us to determine the 16 constitutionality of the use of deadly force to prevent the escape of an apparently unarmed 17 suspected felon.”). 18 The most charitable construction of the Officer Defendants’ qualified immunity argument 19 suggests that the case law is not settled on whether a police officer may kill a disturbed person 20 attacking him with a knife where the officer responds to what he believes is case of domestic 21 violence. (ECF No. 164 at 30–34.) Of course, the Court can no more accept the Officer 22 Defendants’ assertion that Parminder was attacking them with a knife because it is reasserted in 23 connection with their qualified immunity argument. See Tolan, 134 S. Ct. at 1866. 24 The fact Parminder was emotionally or mentally disturbed and the 9-1-1 call reported an 25 incident of domestic violence does not transform this into a scenario where officers were forced 26 to grope for the “outer contours of the Fourth Amendment” without the benefit of a factually 27 similar case. Torres, 648 F.3d at 1128. They were spared that “murky business,” id., by the 28 Ninth Circuit’s decision in Glenn. The encounter in Glenn began with the “911 dispatcher 26 1 inform[ing] the Washington County Sheriff’s Department that officers were needed at the Glenn 2 home for a domestic disturbance.” Glenn, 673 F.3d at 867. The responding officers were 3 informed that the caller’s son “was intoxicated[,] emotionally disturbed,” suicidal, and armed 4 with a knife. Id. at 867, 873.5 When officers arrived the decedent was in his driveway, “was not 5 in a physical altercation with anyone, nor was he threatening anyone with the pocketknife or in 6 any other way, and no one was trying to get away from him.” Id. at 867–68, 874. “He was, 7 however, holding the pocketknife to his own neck.” Id. at 868. The first two officers to 8 encounter decedent yelled commands at decedent with their guns drawn, including “drop the 9 knife or I'm going to kill you.” Id. Both officers stood no more than twelve feet from decedent 10 while doing this. Id. A third officer who had just arrived fired beanbag shotgun rounds at 11 decedent at the request of one of the two already on the scene. Id. at 869. When decedent, 12 “appear[ing] surprised, confused, and possibly in pain,” attempted to “move away from the 13 beanbag fire toward the alcove between the house and the garage,” the first two officers shot 14 eleven shots from their semiautomatic weapons. Id. The officers argued they “were justified in 15 resorting to deadly force because [decedent] had begun to move toward the house where his 16 parents were located [and] they reasonably feared that he could have attacked his parents with the 17 knife so they shot [him] to protect his family.” Id. at 879. Nevertheless, the Ninth Circuit 18 reversed the district court’s grant of summary judgment on the constitutionality of the officer’s 19 use of force “[b]ecause the disputed facts and inferences could support a verdict” for the plaintiff. 20 Id. In short, Glenn made clear that when officers are dealing with a person who may be 21 22 mentally or emotionally disturbed, who has not committed a serious crime, is not trying to get 23 away from the officers, is not threatening the officers or others, and is not involved in a physical 24 altercation with anyone, those officers are not free to shoot him. Glenn further makes clear that 25 this does not change simply because the officers were initially told they were responding to a 26 domestic dispute. 27 5 28 That the decedent in Glenn is intoxicated and armed with a knife is happenstance. See Tolan, 134 S. Ct. at 1866. Although, it makes clear that even if an account closer to the Officer Defendants’ were accepted, the law would be no less settled with respect to this claim. 27 1 2 3 4 For the foregoing reasons, the Officer Defendants’ motion is DENIED with respect to the First Claim. D. Second Claim: Provocation The Officer Defendants moved for summary judgment on Plaintiffs’ Fourth Amendment 5 provocation claim. (ECF No. 164-1 at 35–37.) However, the Court need not address the parties’ 6 arguments in connection with this claim in light of the Supreme Court’s recent determination that 7 the Ninth Circuit’s “provocation rule” is incompatible with the Supreme Court’s “excessive force 8 jurisprudence.” Cty. of L.A., Calif. v. Mendez, No. 16-369, 2017 WL 2322832, at *6 (U.S. May 9 30, 2017). In Mendez, the Supreme Court unambiguously held that “the Fourth Amendment 10 provides no basis for such a rule.” Id. at *3. Therefore, the Second Claim fails as a matter of 11 law, and the Officer Defendants’ motion is GRANTED with respect to this claim. 12 E. Third Claim: Substantive Due Process – Familial Association 13 The Officer Defendants argue that summary judgment should be granted on Plaintiffs’ 14 Fourteenth Amendment familial claim for three reasons. First, they argue that the more stringent 15 “purpose to harm” standard should be applied. (ECF No. 164-1 at 37–38.) Second, they argue 16 this more stringent standard cannot be met. (ECF No. 164-1 at 38–39.) Third, they argue it was 17 not clearly established their conduct violated the Fourteenth Amendment. (ECF No. 164-1 at 39.) 18 Each must be rejected. 19 The Ninth Circuit “has recognized that parents have a Fourteenth Amendment liberty 20 interest in the companionship and society of their children.” Wilkinson v. Torres, 610 F.3d 546, 21 554 (9th Cir. 2010). “Official conduct that ‘shocks the conscience’ in depriving parents of that 22 interest is cognizable as a violation of due process.” Id. “In determining whether excessive force 23 shocks the conscience, the court must first ask ‘whether the circumstances are such that actual 24 deliberation [by the officer] is practical.’” Id. (quoting Porter v. Osborn, 546 F.3d 1131, 1137 25 (9th Cir. 2008)). “Where actual deliberation is practical, then an officer's ‘deliberate indifference’ 26 may suffice to shock the conscience.” Id. “On the other hand, where a law enforcement officer 27 makes a snap judgment because of an escalating situation, his conduct may only be found to 28 shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement 28 1 2 objectives.” Id. The Officer Defendants argue the applicability of “purpose to harm” follows from the 3 Ninth Circuit’s decision in Porter. (ECF No. 164-1 at 38.) They observe that the officers in 4 Porter were required to make “repeated split-second decisions” during the course of a “five- 5 minute altercation.” (ECF No. 164-1 at 38.) In their view, the instant action is therefore an 6 obvious case because their encounter with Parminder was shorter than the one in Porter and theirs 7 left them with only a “second or two” to decide to shoot Parminder. (ECF No. 164-1 at 38.) 8 Thus, there was “no time for deliberation only self-preservation.” (ECF No. 164-1 at 38.) 9 Again, this argument is premised on the Officer Defendants’ view that it is undisputed 10 they were in a quickly evolving situation that abruptly culminated with a close range knife attack. 11 Viewing the evidence in the light most favorable to Plaintiffs, a jury could conclude that the 12 Officer Defendants found time to actually deliberate in the period between their departure from 13 the Family Home — which was described by an eyewitness as “nonchalant” (ECF No. 177-3 at 14 181:19) — and their shooting of a man a jury could conclude was neither dangerous nor currently 15 in flight. Further, a jury could conclude the duration of the encounter was a function of the 16 Officer Defendants’ indifference (or worse) towards Parminder’s constitutional rights. 17 Consequently, the Court finds that the submitted evidence creates a genuine dispute about which 18 standard of culpability should apply in this case. See Rose v. Cty. of Sacramento, 163 F. Supp. 3d 19 787, 792 (E.D. Cal. 2016). 20 In any event, viewing the evidence in the light most favorable to the Plaintiffs, a jury 21 could find the more stringent purpose to harm standard satisfied. “The purpose to harm standard 22 is a subjective standard of culpability.” A.D. v. California Highway Patrol, 712 F.3d 446, 453 23 (9th Cir. 2013). More specifically, “[i]t is the intent to inflict force beyond that which is required 24 by a legitimate law enforcement objective that ‘shocks the conscience’ and gives rise to liability 25 under § 1983. . . .” Porter, 546 F.3d at 1140 (emphasis added). As described in connection with 26 the First Claim, the governmental interest in using force on Parminder was minimal. 27 Nevertheless, the Officer Defendants shot him 14 times. A jury could find the Officer Defendants 28 had such an illegitimate purpose if that jury concludes the Officer Defendants shot a non29 1 dangerous, non-fleeing, possibly mentally ill, suspected misdemeanant numerous times after that 2 person may have said “don’t shoot.” 3 This would present an “obvious” case such that “qualified immunity is inapplicable, even 4 without a case directly on point.” See A.D., 712 F.3d at 455 (concluding shooting a person twelve 5 times where the officer who fired the shots ascertained the decedent was unarmed presented such 6 an “obvious” case even where the decedent had just led officers on a high speed chase in a stolen 7 car and had very recently rammed the police car boxing her in). The Officer Defendants’ citation 8 to Hayes v. Cty. of San Diego, 736 F.3d 1223 (9th Cir. 2013), is not to the contrary. There, “[t]he 9 decision to use deadly force against Hayes was a snap judgment based on the unexpected 10 appearance of a knife in his hand.” See id. at 1230 (emphasis added). 11 For the foregoing reasons, the Officer Defendants’ motion for summary judgment on the 12 Third Claim is DENIED as they have failed to show they are entitled to judgment as a matter of 13 law on this claim. 14 15 F. Fourth Claim: First Amendment – Familial Association The Ninth Circuit has recognized a First Amendment familial association claim. Lee v. 16 Cty. of L.A., 250 F.3d 668, 685–86 (9th Cir. 2001). However, there appears to be “no Ninth 17 Circuit case setting out specifically the conduct or elements that constitute violation of familial 18 association under the First Amendment.” Schwartz v. Lassen Cty. ex rel. Lassen Cty. Jail, No. 19 2:10-CV-03048-MCE, 2013 WL 5375588, at *10 (E.D. Cal. Sept. 24, 2013); see also Slusher v. 20 City of Napa, No: C 15-2394 SBA, 2015 WL 8527411, at *7 (N.D. Cal. Dec. 11, 2015) (“The 21 Court notes that there appears to be no controlling case law regarding the legal standard for 22 stating a familial association claim under the First Amendment.”). Therefore, the Court is 23 required to answer two preliminary questions before proceeding. First, what is the standard for 24 determining whether a plaintiff has been deprived of her First Amendment familial association 25 right? Second, does the limited guidance provided by Supreme Court and Ninth Circuit precedent 26 regarding the precise contours of this claim prevent it from being “clearly established” for 27 purposes of qualified immunity? 28 The Court concludes that Plaintiffs’ First Amendment rights to familial association are 30 1 measured by the same standard as Fourteenth Amendment rights to familial association based on 2 the Ninth Circuit’s analysis in Lee. There, the Ninth Circuit held: “plaintiffs have adequately 3 alleged that defendants’ actions and policies constituted an ‘unwarranted interference’ with Kerry 4 Sanders’s and his mother’s right to familial association under both the First and Fourteenth 5 Amendments.” Lee, 250 F.3d at 686 (emphasis added). Lee arose “out of the wrongful arrest, 6 extradition [to New York], and incarceration [in New York] of Kerry Sanders, a mentally 7 disabled Los Angeles resident . . . incorrectly identified . . . as [a] fugitive . . . who absconded 8 from a New York state-prison work-release program.” Id. at 676. The Ninth Circuit identified 9 the pertinent allegations as follows: Mary Sanders Lee began searching for her son after his arrest. She contacted the Los Angeles Police Department, unknown employees of which told her that they had no record of, or information concerning, her son, when in fact, they knew or should have known that they had falsely arrested him and caused him to be extradited to New York. From 1993 to 1995, Mrs. Lee repeatedly contacted the Los Angeles Police Department regarding the whereabouts of Kerry Sanders. However, each time she was informed that his whereabouts were unknown. . . . [T]he reckless, intentional and deliberate acts and omissions of defendants . . . were a direct and legal cause of the deprivation of [Plaintiffs’] constitutionally protected right under the First and Fourteenth Amendments to the association, companionship and society of one and other as mother and son. 10 11 12 13 14 15 16 17 18 19 20 21 Id. at 685–86. Nothing in this analysis suggests a different standard applies. Nor does it allow for any principled basis for applying one.6 Indeed, the phrase “unwarranted interference” in Lee, 250 F.3d at 686, is drawn from an earlier Ninth Circuit case’s analysis of the substantive due process claim asserted by the children of a man killed during a police encounter. Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987). 22 Having already concluded that a jury could find that the Officer Defendants’ conduct 23 24 25 26 27 28 6 The Court has located three unpublished district court opinions in the Ninth Circuit also concluding the same standard applies but analyzes the issue independently. In Porter v. Osborn, No. 3:05-cv-00142 JWS, 2007 WL 2774379, at *3 (D. Alaska Sept. 24, 2007), it is frankly unclear whether any of the district court’s opinion on this point survived its mysterious treatment by the Ninth Circuit. See Porter, 546 F.3d at 1137 (clarifying the standard of culpability for a due process right to familial association claim while never mentioning the First Amendment); see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 232 n.6 (1995) (“Of course the unexplained silences of our decisions lack precedential weight.”). Alberici v. Cty. of Los Angeles, No. CV 12-10511-JFW (VBKx), 2013 WL 5573045, at *17 (C.D. Cal. Oct. 9, 2013), on the other hand, reached its conclusion relying on Kinlaw v. Kozak, No. C 07-00430 SBA (PR), 2010 WL 986925, at *7 (N.D. Cal. Mar. 17, 2010), which did so without analysis. 31 1 “shocked the conscience,” even under the “purpose to harm” standard, the Court turns to whether 2 the Officer Defendants are entitled to qualified immunity simply because it is unclear which 3 constitutional provisions their conduct would offend. They are not. “When properly applied, 4 [qualified immunity] protects ‘all but the plainly incompetent or those who knowingly violate the 5 law.’” al-Kidd, 563 U.S. at 743. Thus, “qualified immunity operates ‘to ensure that before they 6 are subjected to suit, officers are on notice their conduct is unlawful.’” Hope v. Pelzer, 536 U.S. 7 730, 739 (2002) (emphasis added). However, qualified immunity does not give an officer who 8 engages in conduct that was patently unconstitutional when committed a get-out-of-liability-free 9 card because there is “some lingering ambiguity” as to which constitutional provision “applies in 10 this precise context,” or whether he has managed to violate several constitutional provisions at 11 once. See Harris v. City of Circleville, 583 F.3d 356, 367 (6th Cir. 2009) (“[Even if it were 12 unclear whether the Fourth or Fourteenth Amendment governs Harris’s excessive force claims, 13 the legal norms underlying those claims were nevertheless clearly established.”); Estate of Booker 14 v. Gomez, 745 F.3d 405, 428 (10th Cir. 2014) (same); Miranda-Rivera v. Toledo-Davila, 813 15 F.3d 64, 72–73 (1st Cir. 2016) (same); see also P.B. v. Koch, 96 F.3d 1298, 1303 n.4 (9th Cir. 16 1996) (“Regardless of the appropriate [constitutional] ‘home’ for plaintiffs’ right to be free from 17 excessive force, there was a clearly established right to be free from such force in 1990 and 1991. 18 That there is possible uncertainty as to the appropriate test does not immunize Koch’s actions 19 from liability.”) The Court now turns briefly to the Officer Defendants’ argument that Plaintiffs’ claim 20 21 fails as a matter of law for failing to prove they had an expressive relationship with Parminder.7 22 First, the Officer Defendants suggests that the complaint in such a case must contain allegations 23 that, if true, demonstrate an expressive relationship. (ECF No. 164-1 at 39–40.) Second, the 24 Officer Defendants suggests that the First Amendment would not protect Plaintiffs’ relationship 25 7 26 27 28 The Officer Defendants argue in their reply that Sukhwinder’s First Amendment claim is duplicative of her Fourteenth Amendment claim and that Decedent’s siblings can only bring a First Amendment claim if their rights to“speech, assembly, petition for redress of grievances, and exercise of religion” have been abridged. (ECF No. 187 at 22–23.) The Court will not address arguments presented for the first time in a reply brief. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). 32 1 with Parminder if he “mostly kept to himself[,] did not participate in any community groups with 2 his family” and had to take a taxicab home from a mental hospital after an involuntary mental 3 health hospitalization. (ECF No. 164-1 at 40.) These arguments are irreconcilable with Lee and 4 therefore are rejected. Lee makes clear that with respect to “family relationships” it is 5 presupposed that they come within the First Amendment’s protection. Lee, 250 F.3d at 685. 6 Moreover, the Ninth Circuit specifically identified the allegations that were “sufficient” to state a 7 claim, which the Court has already reproduced in full supra. Nothing in those allegations or the 8 Ninth Circuit’s treatment of them suggests the Officer Defendants’ arguments have merit. 9 For the foregoing reasons, the Officer Defendants’ motion for summary judgment on the 10 Fourth Claim is DENIED as they have failed to show they are entitled to judgment as a matter of 11 law on this claim. 12 13 G. Ninth through Twelfth Claims: State Law Claims The Officer Defendants’ motion as it pertains to Plaintiffs’ state law claims requires little 14 discussion. As a preliminary matter, Plaintiffs acknowledge their Eleventh Claim (Negligent 15 Infliction of Emotional Distress) fails as a matter of law. (ECF No. 177 at 37.) Consequently, the 16 Officer Defendants’ motion is GRANTED with respect to that claim. With respect to remaining 17 state law claims, the Officer Defendants argue these “state law claims” fall “[l]ike dominoes . . . 18 with the federal claims” due to the similarities between the state and federal standards. (ECF No. 19 164-1 at 41.) Having failed to tip the federal claim “dominoes,” the Officer Defendants have 20 failed to show they are entitled to judgement as a matter of law on the remaining state law claims. 21 Therefore, the Officer Defendants’ motion for summary judgment with respect to the Ninth, 22 Tenth and Twelfth Claims is DENIED. 23 H. Punitive Damages 24 The Officer Defendants argument that Plaintiffs are not entitled to punitive damages as a 25 matter of law is entirely inadequate. As Plaintiffs correctly observe, the Officer Defendants have 26 not even “indicated whether they are moving for judgment on Plaintiffs’ punitive damages 27 [prayer] under federal or state law” or both. (ECF No. 177 at 43.) More importantly, in arguing 28 that there is insufficient evidence to support such an award, the Officer Defendants again 33 1 presuppose jurors must accept their version of events. (ECF No. 164-1 at 42.) They need not. 2 The Officer Defendants’ motion is therefore DENIED on this point. ANALYSIS OF THE CITY DEFENDANTS’ MOTION 3 V. 4 The City Defendants move for summary judgment on the following claims from TAC. 5 (ECF No. 163.) The Fifth Claim — failure to enact adequate customs, policies and/or practices in 6 violation of the Fourteenth Amendment pursuant to Section 1983 — is brought by Sukhwinder, 7 as successor in interest to Parminder, against the City Defendants. The Sixth Claim — failure to 8 supervise and train in violation of the Fourteenth Amendment pursuant to Section 1983 — is 9 brought by Sukhwinder, as successor in interest to Parminder, against the City Defendants. The 10 Seventh Claim — ratification of the Officer Defendants’ violation of Parminder’s Fourth and 11 Fourteenth Amendment rights pursuant to Section 1983 — is brought by Sukhwinder, as 12 successor in interest to Parminder, against the City Defendants. The Eighth Claim — failure to 13 reasonably accommodate disability in violation of Title II of the Americans with Disabilities Act 14 (“ADA”) — is brought by Sukhwinder, as successor in interest to Parminder, against Lodi and 15 LPD. The Ninth Claim — negligence (survival action) under California law — is brought by 16 Sukhwinder, as successor in interest to Parminder, against Lodi and LPD. The Tenth Claim — 17 negligence (wrongful death) under California law — is brought by Sukhwinder, individually, 18 against Lodi and LPD. The Eleventh Claim — negligent infliction of emotional distress under 19 California law — is brought by Sukhwinder, as successor in interest to Parminder, against Lodi 20 and LPD. The Twelfth Claim — interference with civil rights under California law — is brought 21 by Sukhwinder, as successor in interest to Parminder, against Lodi and LPD. 22 As the City Defendants’ arguments build on each other, the Court will discuss them in the 23 order discussed in their opening beginning with the ADA claim. The Court will then discuss the 24 Section 1983 claims followed by the state law claims. However, the Court will first discuss some 25 matters that pertain to the motion generally. 26 27 28 A. Preliminary Discussion of the City Defendants’ Motion As a preliminary note, the City Defendants have filed for joinder indicating that they adopt the entirety of the Officer Defendants’ statement of undisputed material facts. (ECF No. 34 1 163-6.) Additionally, the City Defendants filed a supplemental statement containing 39 items 2 they submit are undisputed material facts. (ECF No. 163-2.) There are two running 3 disagreements between the parties regarding fundamental points of summary judgment procedure. 4 As these permeate the briefs, it will be more efficient to resolve them at the outset. 5 First, the parties disagree whether in connection with a motion for summary judgment the 6 movant must always cite to evidence properly before the district court before the non-movant is 7 forced to come forward with evidence to support her claim. Ninth Circuit precedent is settled on 8 this point. “Under the federal [summary judgment] standard a moving defendant may shift the 9 burden of producing evidence to the nonmoving plaintiff merely by ‘showing’ — that is, pointing 10 out through argument — the absence of evidence to support plaintiff’s claim.” Fairbank v. 11 Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000). 12 However, the subtext of this disagreement also warrants discussion. “[A] party seeking 13 summary judgment always bears the initial responsibility of informing the district court of the 14 basis for its motion . . . .” Celotex Corp., 477 U.S. at 325. Furthermore, “[a] moving party 15 without the ultimate burden of persuasion at trial . . . has both the initial burden of production and 16 the ultimate burden of persuasion on a motion for summary judgment.” Nissan Fire & Marine 17 Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Where the movant seeks 18 to discharge these burdens through argument, it is essential that the movant actually make one. 19 See Fairbank, 212 F.3d at 532. Not every time an attorney opens his mouth or produces text on a 20 page has he made an argument. See Bartell v. JPMorgan Chase Bank, NA, 607 F. App’x 731, 21 732 (9th Cir. 2015) (“Conclusory statements, tautologies and a couple of citations don’t an 22 argument make.”). Where the movant fails to make an argument, the burden does not shift to the 23 plaintiff to come forward with evidence. Certainly, it does not fall on the Court to craft the 24 movant’s arguments and then insist on a response from the non-movant. See Williams v. Eastside 25 Lumberyard & Supply Co., 190 F. Supp. 2d 1104, 1114 (S.D. Ill. 2001). Rather, the movant’s 26 burden is simply not met and summary judgment cannot be granted on that issue. See Celotex 27 Corp., 477 U.S. at 323. 28 35 This first disagreement informs the second. Sukhwinder8 asserts the City Defendants’ 1 2 motion fails because the City Defendants’ have improperly supported their supplemental 3 statement of material facts. (See, e.g., ECF No. 178 at 13.) For the reasons just discussed, a 4 movant need not come forward with evidence in order to satisfy its initial burden. Consequently, 5 it does not necessarily follow that the motion must be denied. Nevertheless, a brief discussion of 6 the applicable standard will streamline the Court’s analysis of the City Defendants’ motion. Each 7 of the 39 items in the supplemental statement of undisputed material facts cites as supporting 8 evidence a paragraph of one of three declarations from the City Defendants’ experts. (See ECF 9 No. 163-2.) Sukhwinder argues this is necessarily improper. (See, e.g., ECF No. 178 at 10–12.) 10 The City Defendants disagree and argue in their reply that the majority of these proposed facts are 11 expert opinions thus making them distinguishable from the authorities cited by Sukhwinder. (See 12 ECF No. 188 at 3–4; see generally ECF No. 188-1 (replying to each of Sukhwinder’s 13 objections).) As Sukhwinder correctly observes “[t]he law is clear . . . that an expert report cannot be 14 15 used to prove the existence of facts set forth therein.” In re Citric Acid Litig., 191 F.3d 1090, 16 1102 (9th Cir. 1999). Likewise, she correctly observes that if a movant wishes to have the 17 contents of a document considered for summary judgment, it must abide by the requirements of 18 Rule 56. Id. (“To be considered in a motion for summary judgment, ‘documents must be 19 authenticated by and attached to an affidavit that meets the requirements of [Rule 56] and the 20 affiant must be a person through whom the exhibits could be admitted into evidence.”). Consequently, where the City Defendants cite expert declarants, who have no personal 21 22 knowledge of the events relevant to the encounter between Parminder and the Officer Defendants, 23 for the proposition that these facts occurred, they are improperly supported. See Doe v. City of 24 San Diego, 35 F. Supp. 3d 1233, 1236–37 (S.D. Cal. 2014) (explaining that “Plaintiff has 25 improperly supported her statement of facts by citing to the factual statements set forth by her 26 expert witnesses in their reports rather than citing to facts in the record”); see also Stonefire Grill, 27 Inc. v. FGF Brands, Inc., 987 F. Supp. 2d 1023, 1039 (C.D. Cal. 2013) (distinguishing between 28 8 The City Defendants’ motion only relates to claims brought by Sukhwinder. 36 1 “expert opinion” and inadmissible factual summaries and noting the expert “lack[ed] personal 2 knowledge for most of the facts in his report and therefore could not testify to them to prove the 3 truth of the matter”). Likewise, the Court “will not simply assume that the experts have 4 accurately quoted or characterized those documents” that the City Defendants have not bothered 5 to offer in accordance with Rule 56. See Harris v. Extendicare Homes, Inc., 829 F. Supp. 2d 6 1023, 1027 (W.D. Wash. 2011). For example, six of the City Defendants’ proposed facts begin 7 with the following phrase: “It is recorded in the personnel files of the officers . . . . ” (See, e.g., 8 ECF No. 163-2 at ¶ 145.) This will not do. The Court need not resolve the question of whether an expert’s opinion may be included 9 10 in a statement of undisputed material facts as it is unnecessary to resolve this motion. Moreover, 11 the City Defendants’ mischaracterization of summaries of historical facts as expert opinion was 12 not helpful. For example, the City Defendants suggest that it is an expert opinion whether during 13 a “deposition [Parminder’s ex-wife] stated that during her marriage . . . [Parminder] . . . 14 threatened to kill her or himself on three separate occasions.” (ECF No. 188-1 at ¶ 161.) That is 15 remarkable. More remarkable still is that this was done after Sukhwinder pincited authority 16 drawing the distinction between expert opinion and factual summaries made by experts in the 17 summary judgment context. Because of this, and the failure in several instances of the City 18 Defendants to meet their burdens on other grounds, it will be more efficient to address whether 19 specific proposed facts are properly supported in the context of discrete arguments relating to 20 specific claims. Consequently, the Court will not include a separate factual background section 21 with respect to the City Defendants’ motion as it is unnecessary to resolve their motion.9 22 One last related point needs to be addressed, the City Defendants’ seeming 23 misapprehension of the function of expert testimony in establishing that something is undisputed. 24 Expert testimony is only admissible if it “will help the trier of fact to understand the evidence or 25 to determine a fact in issue[.]” Fed. R. Evid. 702(a). However, helpful expert testimony is not 26 restricted to opinions regarding factual matters that are undisputed. See Williams v. Illinois, 132 27 9 28 The Court found it unnecessary to resolve the Officer Defendants’ objections to Plaintiffs’ evidence offered in support of their opposition in order to resolve the Officer Defendants’ motion. (ECF No. 188-2.) 37 1 S. Ct. 2221, 2228 (2012) (plurality opinion) (“Under settled evidence law, an expert may express 2 an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then 3 up to the party who calls the expert to introduce other evidence establishing the facts assumed by 4 the expert.”). In such a case, the expert’s opinion is contingent upon a factfinder agreeing with 5 the facts as the expert assumes them. See Brooke Grp. Ltd. v. Brown & Williamson Tobacco 6 Corp., 509 U.S. 209, 242 (1993) (“When an expert opinion is not supported by sufficient facts to 7 validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render 8 the opinion unreasonable, it cannot support a jury’s verdict.”) So, for example, the assertion that 9 it is undisputed that the encounter between Parminder and the Officer Defendants “quickly 10 became one wherein public safety became primary concern” does not become undisputed because 11 an expert is of that opinion. (See, e.g., ECF No. 188-1 at ¶ 156.) 12 B. The Eighth Claim: Title II of the ADA 13 The City Defendants move for summary judgment on Sukhwinder’s claim under Title II 14 of the ADA for four reasons. First, the City Defendants argue that the ADA claim fails because 15 the Officer Defendants acted reasonably under the circumstances. (ECF No. 163-1 at 17–21.) 16 Second, they argue Sukhwinder cannot show the existence of a reasonable accommodation that 17 could have been provided to Parminder. (See ECF No. 163-1 at 17.) Third, they argue 18 Sukhwinder cannot show the City Defendants discriminated against Parminder “solely due to his 19 schizophrenia” because there was a “measurable amount of alcohol in his system.” (ECF No. 20 163-1 at 21.) Fourth, they argue Chief Helms is entitled to qualified immunity on this claim. 21 (ECF No. 163-1 at 26.) Each must be rejected. 22 Title II of the ADA provides that “no qualified individual with a disability shall, by reason 23 of such disability, be excluded from participation in or be denied the benefits of the services, 24 programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 25 42 U.S.C. § 12132. Under Ninth Circuit precedent, Title II of the ADA applies to arrests. 26 Sheehan v. City & Cty. of San Francisco (“Sheehan I”), 743 F.3d 1211, 1232 (9th Cir. 2014), 27 rev’d in part, cert. dismissed in part sub nom. City & Cty. of San Francisco, Calif. v. Sheehan 28 38 1 (“Sheehan II”), 135 S. Ct. 1765 (2015).10 The Ninth Circuit recognizes at least two types of Title 2 II claims applicable to arrests: “(1) wrongful arrest, where police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity; and (2) reasonable accommodation, where, although police properly investigate and arrest a person with a disability for a crime unrelated to that disability, they fail to reasonably accommodate the person’s disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees.” 3 4 5 6 7 8 9 10 11 Id. Sukhwinder brings the latter. (See ECF No. 88 at 23–25.) With such a claim, the Ninth Circuit has explained that “the plaintiff bears the initial burden of producing evidence of the existence of a reasonable accommodation[.]” Id. Moreover, the Ninth Circuit agreed that in the arrest context, “exigent circumstances inform the reasonableness analysis under the ADA, just as they inform the distinct reasonableness analysis under the Fourth Amendment.” Id. 12 13 14 15 16 17 18 19 20 21 22 With respect to the City Defendants’ first argument, the parties disagree over whether it is “proper” for the Court to apply the “Graham factors to the reasonableness of an accommodation under the ADA.” (Compare ECF No. 163-1 at 18 with ECF No. 178 at 21.) The Court need not resolve this dispute because, even assuming that the City Defendants are correct that these factors apply, this argument still fails. The City Defendants argue that “[Sukhwinder] cannot show that the officers acted unreasonably” when their encounter with Parminder is viewed through the lens of the Graham factors “given the totality of the circumstances.” (ECF No. 163-1 at 20.) The Court has denied the Officer Defendants’ motion for summary judgment on Plaintiffs’ Fourth Amendment claims explaining in detail why a reasonable jury could conclude that the Officer Defendants’ actions were not reasonable within the meaning of the Fourth Amendment. For these same reasons, the City Defendants’ first argument also fails. 23 24 25 With respect to the City Defendants’ second argument, Sukhwinder has raised a triable issue regarding whether a reasonable accommodation existed citing to evidence properly before this Court. In short, Sukhwinder argues a jury could conclude that before the Officer Defendants 26 10 27 28 In Sheehan II, “the Supreme Court declined to address whether Title II of the ADA applies to arrests.” Givens v. Cty. of Sacramento, No. 2:15-cv-0720-JAM-KJN PS, 2016 WL 6599810, at *4 (E.D. Cal. Nov. 7, 2016). Consequently, this Court is “bound by the Ninth Circuit’s decision that the ADA applies to arrests.” Id. 39 1 shot Parminder to death they were aware of his mental illness and nevertheless issued him 2 commands with guns drawn and ultimately pointed at him. (See ECF No. 178 at 23.) The Court 3 agrees. Additionally, she cites Jason Roof’s report to explain why this type of treatment of a 4 mentally ill person can “provoke a violent response,” “exacerbate [his] symptoms” and “cause . . . 5 increased anxiety or fear.” (ECF No. 178 at 23.) The City Defendants’ “argument” in reply is wholly inadequate.11 See Bartell, 607 F. 6 7 App’x at 732. In the eleven lines and one footnote they dedicate to analysis in their reply brief, 8 there is no citation to any authority whatsoever. (ECF No. 188 at 5:13–23 & n.3.) The City 9 Defendants suggest the facts relating to the alleged knife attack are undisputed. (ECF No. 188 at 10 5 n.3.) This has been addressed at length and requires no further discussion. The City 11 Defendants make no attempt to explain why an accommodation short of hectoring a mentally ill 12 suspected misdemeanant at gunpoint would be unreasonable. Nor do they make any effort to 13 challenge Roof. Instead they cite to three “facts” summarizing records of how Parminder has 14 acted on previous occasions, which have not been properly supported. (See ECF No. 188-1 at ¶¶ 15 177–79.) This is coupled with citation to three “facts” regarding the risk that Parminder would be 16 violent during his encounter with the Officer Defendants. (See ECF No. 188-1 at ¶¶ 175–76, 17 180.) Even assuming this opinion testimony is ultimately admitted, it fails to show how 18 Parminder actually behaved is undisputed. For these reasons, the City Defendants’ second 19 argument also fails. With respect to City Defendants’ third argument, they have neither demonstrated that 20 21 Parminder was drinking alcohol prior to his encounter with the Officer Defendants nor that this is 22 the only inference that can be drawn from the facts properly before the Court. Even where 23 movant supports its position with a fact, “summary judgment is inappropriate when different 24 11 25 26 27 28 The Court discusses this “argument” out of completeness, even though arguably it was not pressed until the reply brief. In its discussion under the heading “The ADA Claim Fails Because the Officers Acted Reasonably” the City Defendants mention in passing a “plaintiff bears the initial burden of producing evidence of the existence of a reasonable accommodation.” (ECF No. 163-1 at 17.) Nearly four pages later the City Defendants state “Plaintiff’s arguments that the officers should have acted differently to mitigate the risk do not save this argument in the absence of any evidence.” (ECF 163-1 at 20.) It is not even clear what “this argument” refers to. Nevertheless, in their reply, the City Defendants’ primary focus with respect to the ADA is that Plaintiff’s “opposition shows that Plaintiff cannot meet this burden.” (ECF 188 at 5.) 40 1 ultimate inferences may be drawn from the evidence.” Cushman v. City of Troutdale, No. Civil 2 No. 07-0012-HU, 2009 WL 890505, at *2 (D. Or. Mar. 30, 2009) (citing Sankovich v. Ins. Co. of 3 N. Am., 638 F.2d 136, 140 (9th Cir. 1981)). 4 The assertions that Parminder was drinking, was intoxicated, and that intoxication had an 5 impact on his encounter with the Officer Defendants is premised on a single undisputed fact — a 6 toxicology test conducted four days after the shooting showed there was a “measurable amount of 7 alcohol” in Parminder’s corpse. (See ECF No. 178 at 23–25.) The focus of Sukhwinder’s 8 opposition is that the City Defendants have offered “pure speculation” supported by “no 9 evidence” that the presence of alcohol in a corpse under these circumstances must result from 10 drinking alcohol, let alone to the point of intoxication. (ECF No. 178 at 23–24.) Mysteriously, 11 the City Defendants have not bothered to respond to this point in their reply brief.12 In any event, 12 it is noteworthy the paragraph cited by the City Defendants in their opening brief, and 13 Sukhwinder in opposition, does not state that Parminder was drinking nor does evidence cited in 14 support of it say that he was. (ECF No. 164-2 at ¶ 125.)13 Indeed, one of the paragraphs in the 15 toxicologist’s declaration cited as support notes that bodily decomposition may have caused 16 discrepancies in his measurements of alcohol in Parminder’s corpse.14 (ECF No. 164-8 at ¶ 8.) 17 Simply put, the City Defendants have failed to show why the inference they would draw is the 18 only inference that could be drawn by a jury. 19 20 21 22 23 24 12 The City Defendants are reminded that it is their burden to demonstrate that they are entitled to judgment as a matter of law. When a non-moving party’s opposition seriously calls into question whether the movant is entitled to summary judgment on a particular ground, it is not role of the Court to fill the awkward silence in the movant’s reply brief. See Williams, 190 F. Supp. 2d at 1114. 13 It is also noteworthy that in connection with the Officer Defendants’ motion, Plaintiffs disputed the Officer Defendants’ proposed undisputed fact that Parminder had been drinking by pointing out that none of the evidence cited stated Parminder had been drinking. (ECF No. 177-1 at ¶ 1.) This is accurate. Inferences that a party would have drawn from a fact are not properly included in a statement of undisputed facts. 14 25 26 27 28 Strangely, the City Defendants have tucked into a thirty-one page document called “Municipal Defendants’ Reply to Plaintiffs’ Response to Separate Statement of Undisputed Material Facts in Support of their Motion for Summary Adjudication” a one sentence statement that “[t]here is no evidence the blood continued to metabolize postmortem” and that such a suggestion is “nonsensical.” (ECF No. 188-1 at ¶ 172.) The parties are reminded the Court has no obligation to scour their filings in the hopes of finding an argument not included in their briefs. Williams, 190 F. Supp. 2d at 1114 (“A judge is . . . neither required to hunt down arguments plaintiffs keep camouflaged nor required to address perfunctory and undeveloped arguments.”) In any event, this “argument” ignores the above-cited portion of Defendants’ own submissions. 41 As to the fourth argument, a qualified immunity defense is unavailable to Chief Helms in 1 2 connection with Sukhwinder’s claim under Title II of the ADA for two separate reasons. First, as 3 Sukhwinder correctly observes, she has not brought this claim against Chief Helms in the first 4 place. (See ECF No. 88 at 23–25.) Second, “[i]ndividual liability is precluded under ADA Title 5 II.” Roundtree v. Adams, No. 1:01-cv-06502–OWW-JLO, 2005 WL 3284405, at *8 (E.D. Cal. 6 Dec. 1, 2005). Consequently, qualified immunity is simply inapplicable to violations of Title II 7 of the ADA. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For the foregoing reasons, the City Defendants’ motion for summary judgment on the 8 9 Seventh Claim is DENIED. C. Section 1983 Claims Against the City Defendants 10 The Fifth, Sixth, and Seventh Claims are each brought pursuant to Section 1983. Before 11 12 discussing them individually, the Court will briefly set out the standard for municipal liability 13 under said section. The Court will also briefly deal with one of City Defendants’ arguments 14 common to the Fifth and Sixth Claims. “In Monell, the Supreme Court held that municipalities are ‘persons’ subject to damages 15 16 liability under section 1983 where ‘action pursuant to official municipal policy of some nature 17 cause[s] a constitutional tort.’” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (quoting 18 Monell v. Department of Social Servs., 436 U.S. 658, 691 (1978)). “The Court made clear that 19 the municipality itself must cause the constitutional deprivation and that a city may not be held 20 vicariously liable for the unconstitutional acts of its employees under the theory of respondeat 21 superior.” Id. Consequently, a plaintiff seeking to establish municipal liability must demonstrate 22 a municipality had a “deliberate policy, custom, or practice that was the ‘moving force’ behind 23 the constitutional violation he suffered.” Galen v. Cty. of Los Angeles, 477 F.3d 652, 667 (9th 24 Cir. 2007). A plaintiff may establish municipal liability under section 1983 in the following three 25 ways: 26 27 28 “First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity. Second, the plaintiff may establish that the individual who 42 committed the constitutional tort was an official with final policymaking authority and that the challenged action itself thus constituted an act of official governmental policy. Whether a particular official has final policy-making authority is a question of state law. Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for it. 1 2 3 4 Id. at 1346–47 (internal citations and quotation marks omitted). 5 6 7 8 9 The City Defendants argue that “because Plaintiff’s failure to accommodate claims fails” her “Monell claims alleged in the Fifth and Sixth cause of action” must fail also as they are “based on contacts with mentally ill persons.” (ECF No. 163-1 at 22.) The Court would first observe that the City Defendants have cited no authority for this proposition. In any event, this argument fails because the Court has denied the City Defendants’ motion on the Seventh Claim. 10 D. The Fifth Claim: Failure to Enact Adequate Customs, Policies or Practices 11 The City Defendants argue they are entitled to summary judgment on Sukhwinder’s Fifth 12 13 Claim for two reasons. Each must be rejected. First, the City Defendants assert that “[a]t the 14 summary judgment stage, [Sukhwinder] must show with evidence that there is a ‘proper way’ to 15 interact with [Parminder], that the officers failed to do so, and that this was the moving force 16 behind the violation” in order to make out this claim. (ECF No. 163-1 at 22 (emphasis added).) 17 The City Defendants neither cite authority nor offer legal analysis in support of this proposition. 18 This seems to have been an attempt by the City Defendants to discharge their initial burden 19 through argument. They have not met this burden, as this sentence does not “an argument 20 make.”15 See Bartell, 607 F. App’x at 732. Second, the City Defendants argue that “[b]ecause Officers Bratton and Lockie 21 22 appropriately dealt with the situation as presented to them, [Sukhwinder] cannot show any 23 deliberate indifference on behalf of [LPD], and this claim should be dismissed.” (ECF No. 163-1 24 at 23.) The Court will not tarry long over this “argument.” The Court has already concluded that 25 15 26 27 28 The reply repeats that the City Defendants are generally of the view that there can be no Monell liability under Section 1983 unless there is liability under Title II of the ADA. (ECF No. 188 at 6 (“Plaintiff’s opposition puts the cart before the horse first arguing Monell liability then moving onto the ADA claim.”) Characteristically, no authority is cited for this proposition. The Court’s best guess is the sentence at issue was an ineffectual attempt to argue the Court should engraft on Section 1983 claims the initial burden placed on a plaintiff in a reasonable accommodation claim under Title II of the ADA. Putting aside that the City Defendants have offered no authority for this proposition, the Court has already found this burden satisfied in connection with Sukhwinder’s ADA claim. 43 1 a reasonable jury could find that the Officer Defendants’ actions during their encounter with 2 Parminder were objectively unreasonable and shocked the conscience, even applying the more 3 stringent purpose to harm standard. Although Sukhwinder finds fault with each of the items cited 4 in support of this “argument,” these items do not warrant detailed discussion. Suffice to it say, 5 the City Defendants’ operative discussion of the encounter between Parminder and the Officer 6 Defendants begins with the assertion that it “quickly became one wherein public safety became 7 primary concern” citing their expert. (See ECF No. 163-1 at 23.) A jury need not adopt 8 wholesale the Officer Defendants’ version of events simply because the City Defendants’ expert 9 does. See Brooke Grp. Ltd., 509 U.S. at 242. 10 11 12 13 For the foregoing reasons, the City Defendants’ motion for summary judgment on the Fifth Claim is DENIED. E. The Sixth Claim: Failure to Supervise and Train The City Defendants have offered two general arguments in favor of their motion for 14 summary judgment on this claim. Each fails. The Court will discuss these first. A discussion of 15 Defendant Helms’s separate, third argument relating to liability in his individual capacity follows. 16 The City Defendants begin their analysis with a citation to Connick v. Thompson, 131 S. 17 Ct. 1350, 1360 (2011), for the proposition that “[i]n considering claims based on a failure to train 18 municipal employees, a pattern of similar constitutional violations by untrained employees is 19 ordinarily necessary to demonstrate deliberate indifference.” (ECF No. 163-1 at 23 (internal 20 quotation marks omitted).) This is followed by the assertion that “[Sukhwinder] cannot meet this 21 burden.” (ECF No. 163-1 at 23.) As Sukhwinder correctly observes, “the Supreme Court, in 22 Connick, recently affirmed the validity of the so-called ‘single-incident’ theory” of liability. 23 Schwartz v. Lassen Cty. ex rel. Lassen Cty. Jail (Det. Facility), 838 F. Supp. 2d 1045, 1058 (E.D. 24 Cal. 2012). “Connick explained that the ‘single-incident’ theory represents the Supreme Court’s 25 refusal to ‘foreclose upon the possibility’ that the failure to train is so patently obvious that a 26 single constitutional violation suffices to give rise to municipal liability under § 1983.” Id. The 27 opposition cites four district court opinions from within the Ninth Circuit, including one from this 28 Court, where single-incident theory claims survived motions for summary judgment. (ECF No. 44 1 178 at 17–18.) Each opinion involved alleged applications of excessive force on mentally ill 2 persons. (ECF No. 178 at 17–18.) This was met with silence in the reply brief. It is not the role 3 of the Court to fill this silence. The City Defendants have not met their burden to demonstrate 4 they are entitled to judgment as a matter of law on this point. 5 What the Court construes as an attempt at a second “argument” is wholly inadequate. For 6 example, in two sentences copied and pasted from their supplemental statement of undisputed 7 material facts, the City Defendants assert LPD officers receive training that is required by the 8 State of California and the California Commission on Peace Officer Standards and Training. 9 (ECF No. 163-1 at 24.) While Sukhwinder correctly observes the City Defendants have not 10 properly submitted the records their expert is interpreting, there is a more serious problem. (ECF 11 No. 178 at 18.) The City Defendants have made no argument why this entitles them to judgment 12 as a matter of law on this federal constitutional claim. The final paragraph suffers from precisely 13 the same problems. The City Defendants again have not met their burden. 14 Defendant Helms moves for summary judgment on Plaintiff’s Sixth Claim, arguing that 15 “[e]ven assuming the Lodi Police Department failed to adequately train its officers, there is no 16 evidence” of Defendant Helm’s personal involvement. (ECF No 163-1 at 25.) Sukhwinder’s 17 opposition comes forward with no evidence in response. (ECF No. 178 at 12–13.) Consequently, 18 summary judgment must be granted in favor of Defendant Helms on this claim. 19 As previously discussed, Sukhwinder’s suggestion that Defendant Helms did not meet his 20 initial burden is incorrect. (See ECF No. 178 at 12.) As Defendant Helms correctly observed, it 21 is an essential element of a Section 1983 claim seeking damages against a government official 22 that the government official be shown to have violated the constitution by his own actions. Starr 23 v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011). It is well-settled that “§ 1983 suits do not allow 24 for the imposition of vicarious liability[.]” Id. at 1206. This is so even with supervisors, although 25 they need not be “physically present” or be “directly and personally involved in the same way as 26 are the individual officers who are on the scene inflicting constitutional injury.” Id. at 1205–06. 27 Consequently, for this claim, we are now at the critical “moment in [the] lawsuit, when the 28 nonmoving party must show what evidence it has that would convince a trier of fact to accept its 45 1 version of events.” Mendelson v. Country Coach, Inc., No. EDCV 06-00572-SGL (OPx), 2007 2 WL 4811927, at *2 n.1 (C.D. Cal. Nov. 19, 2007); see also Keenan v. Allan, 91 F.3d 1275, 1279 3 (9th Cir. 1996) (“We rely on the nonmoving party to identify with reasonable particularity the 4 evidence that precludes summary judgment.”). None has been cited in the opposition for this 5 claim. 6 The opposition seeks to excuse this by arguing that “the actions and inactions of 7 Defendant Helms necessarily encompass those of municipal Defendants City and LPD, for whom 8 he was a policy-maker.” (ECF No. 178 at 12 (emphasis added).) This is incorrect. The cases 9 cited in the opposition do not support this argument. The source of the opposition’s confusion 10 seems to be the use of “supervisory liability” in some opinions dealing with § 1983 suits or 11 Bivens actions and the non-existence of vicarious liability for such claims. This was clarified in 12 Iqbal. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“In a § 1983 suit or a Bivens action — where 13 masters do not answer for the torts of their servants — the term ‘supervisory liability’ is a 14 misnomer.”) It is evident from Iqbal — where the plaintiff sued the United States Attorney 15 General and FBI Director — that vicarious liability is no more available for a Section 1983 claim 16 because a plaintiff sues a high-ranking official or one with policymaking authority. Id. 17 For the foregoing reasons, the City Defendants’ motion for summary judgment on the 18 Sixth Claim is GRANTED as to Defendant Helms, in his individual capacity. Otherwise, it is 19 DENIED. 20 21 F. The Seventh Claim: Ratification The City Defendants move for summary judgment on Sukhwinder’s ratification claim 22 arguing that she cannot show that Defendant Helms’s actions amounted to the approval by a 23 municipal policymaker of “both the [unconstitutional] action and the illicit basis for it.” (ECF 24 No. 163-1 at 24.) Although the opposition incorrectly suggests it need not offer any evidence in 25 support of its claim, it nonetheless submits its theory citing evidence: “[the] City Defendants’ 26 ratification of [the] Officer Defendants’ action in this case was, essentially, a gratuitous media 27 campaign professing justification in the face of conflicting eye-witness testimony.” (ECF No. 28 178 at 20.) In short, the opposition suggests that Defendant Helms should not have accepted the 46 1 Officer Defendants’ version of events and may not have if he had conducted a better 2 investigation, e.g., personally interviewing the Officer Defendants. (ECF No. 178 at 20–21.) 3 This argument fails as a matter of law. 4 Ninth Circuit precedent makes clear that the ratification theory “requires that a 5 policymaker approve a subordinate’s decision and the basis for it before the policymaker will be 6 deemed to have ratified the subordinate’s discretionary decision.” Gillette, 979 F.2d at 1348 7 (emphasis retained). The policymaker must make a “conscious, affirmative choice to approve 8 [the subordinate’s] actions and adopt them as official policy.” Clouthier v. Cty. of Contra Costa, 9 591 F.3d 1232, 1253 (9th Cir. 2010). That is, the policymaker must approve of the improper 10 basis for the decision. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1067 (9th Cir. 2013); see 11 also Clouthier, 591 F.3d at 1253 (“As we stated in Gillette, ‘[t]o hold cities liable under section 12 1983 whenever policymakers fail to overrule the unconstitutional discretionary acts of 13 subordinates would simply smuggle respondeat superior liability into section 1983 law [creating 14 an] end run around Monell.”). 15 This is clearly demonstrated by the Ninth Circuit’s analysis in Ellins. There, the plaintiff 16 alleged that the chief of police delayed signing an application for a certification that would entitle 17 him to a five percent raise as retaliation for exercising his First Amendment rights. Ellins, 710 18 F.3d at 1053. The city manager had final policymaking authority over police employment 19 decisions and it was “undisputed that [the city manager] approved [of the police chief’s] decision 20 to delay signing [plaintiff’s] application.” Id. at 1066. Nevertheless, the Ninth Circuit affirmed 21 the district court’s grant of summary judgment because the plaintiff did “not allege that [the city 22 manager] knew that the decision was in retaliation for protected speech or that she ratified the 23 decision despite such knowledge.” Id. (emphasis added). 24 The opposition suggests that a municipal policymaker must accept a plaintiff’s version of 25 events surrounding an allegation of unconstitutional behavior by that policymaker’s subordinate 26 until that plaintiff’s version is conclusively disproven in order to avoid inadvertently ratifying the 27 subordinate’s possibly unconstitutional behavior. This is not the law. See Gainor v. Douglas 28 Cty., Georgia, 59 F. Supp. 2d 1259, 1293 n.41 (N.D. Ga. 1998); see also Kanae v. Hodson, 294 47 1 F. Supp. 2d 1179, 1191 (D. Haw. 2003) (“The law does not say that, whenever an investigative 2 group accepts an officer’s version over a victim’s differing version, this acceptance establishes a 3 policy for which a municipality may be held liable under § 1983. If that were the law, counties 4 might as well never conduct internal investigations and might as well always admit liability. But 5 that is not the law.”) Perhaps more importantly, the opposition’s argument “fails for lack of causation.” Long 6 7 v. City & Cty. of Honolulu, 378 F. Supp. 2d 1241, 1248 (D. Haw. 2005) (“Even if the after-the- 8 fact internal investigation here was somehow a ‘coverup’ (and there is no such evidence), it 9 would not have prevented the shooting of Long.”), aff'd, 511 F.3d 901 (9th Cir. 2007). A single 10 “inadequate investigation following the subject incident will not sustain a claim of municipal 11 liability, because the after-the-fact inadequate investigation could not have been the legal cause of 12 the plaintiff’s injury.” Feliciano v. City of Miami Beach, 847 F. Supp. 2d 1359, 1367 (S.D. Fla. 13 2012); see also, e.g., Haugen v. Brosseau, 339 F.3d 857, 875 (9th Cir. 2003) (“Haugen cannot, of 14 course, argue that the municipality’s later action (or inaction) caused the earlier shooting.”); 15 Mettler v. Whitledge, 165 F.3d 1197, 1205 (8th Cir. 1999) (“However, even if we are to assume 16 as true that there were shortcomings in the investigation into the January 22 shooting, the 17 shortcomings would not prove the flawed investigation was a moving force behind the deputies’ 18 alleged misconduct.”).16 The same is true where the plaintiff seeks to impose liability on a 19 policymaker in his individual capacity on a ratification theory. See, e.g., Peschel v. City of 20 Missoula, 686 F. Supp. 2d 1092, 1103–05 (D. Mont. 2009); see also Jones v. Cty. of Sacramento, 21 No. Civ. 2:09-1025 WBS DAD, 2010 WL 2843409, at *7 (E.D. Cal. July 20, 2010) (“[A] 22 supervisor’s isolated and subsequent ratification of an officer’s conduct . . . can never be 23 sufficient to show that the supervisor caused the officer’s conduct.”). For the foregoing reasons, the City Defendants’ motion for summary judgment on the 24 25 Seventh Claim is GRANTED. 26 16 27 28 Of course “[e]vidence that a police department has failed to investigate previous incidents similar to the incident in question may support a finding that a municipal custom exists, and that such a custom encourages or allows officers to use excessive force without concern for punishment.” Mettler, 165 F.3d at 1205. Plaintiffs have neither made such an argument nor cited any such evidence. 48 G. Ninth through Twelfth Claims: State Law Claims 1 2 The City Defendants “join” the Officer Defendants’ motion with respect to the state law 3 claims and provide no additional analysis. (ECF No. 163-1 at 26.) The outcome is the same. 4 The motion is GRANTED with respect to the Eleventh Claim. It is DENIED with respect to the 5 Ninth, Tenth and Twelfth Claims. 6 VI. CONCLUSION 7 For the foregoing reasons, the Officer Defendants’ motion is GRANTED in part and 8 DENIED in part. It is GRANTED with respect to: (i) the Second Claim and (ii) the Eleventh 9 Claim. Otherwise, it is DENIED. 10 For the foregoing reasons, the City Defendants’ motion is GRANTED in part and 11 DENIED in part. It is GRANTED with respect to: (i) the Sixth Claim, as it applies to Chief 12 Helms in his individual capacity, (ii) the Seventh Claim, and (iii) the Eleventh Claim. Otherwise, 13 the City Defendants’ motion is DENIED. 14 15 IT IS SO ORDERED. Dated: June 29, 2017 16 17 Troy L. Nunley United States District Judge 18 19 20 21 22 23 24 25 26 27 28 49

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