Kaur et al v. City of Lodi et al
Filing
86
ORDER signed by Judge Garland E. Burrell, Jr on 6/16/15 ORDERING the Officer Defendants' motion to dismiss Plaintiff's Fourth Amendment provocation claim (Second Claim) is GRANTED. However, Plaintiff is granted fourteen (14) days leave from the date on which this order is filed to file a Third Amended Complaint addressing the referenced deficiencies in the Fourth Amendment provocation claim. (Becknal, R)
1
2
3
4
UNITED STATES DISTRICT COURT
5
EASTERN DISTRICT OF CALIFORNIA
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7
8
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10
SUKHWINDER KAUR, individually
and as the successor in
interest for the Decedent
PARMINDER SINGH SHERGILL;
KULBINDER KAUR SOHOTA;
SARABJIT SINGH SHERGILL,
v.
12
14
15
16
17
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CITY OF LODI; CITY OF LODI
POLICE DEPARTMENT; MARK
HELMS, in his individual
capacity as the Chief of
Police for the City of Lodi;
SCOTT BRATTON, in his
individual capacity as a City
of Lodi Police Officer; ADAM
LOCKIE, in his individual
capacity as a City of Lodi
Police Officer;
Defendants.*
19
Defendants
20
21
22
23
24
25
26
27
28
ORDER DENYING ENTITY DEFENDANTS’
MOTION AND GRANTING OFFICER
DEFENDANTS’ MOTION TO DISMISS
PORTIONS OF THE SECOND AMENDED
COMPLAINT
Plaintiffs,
11
13
No. 2:14-cv-00828-GEB-AC
Department
City
(collectively,
of
Lodi
the
and
“Entity
City
of
Lodi
Defendants”)1
Police
seek
*
The caption has been amended according to the automatic dismissal of Doe
Defendants prescribed in the Status Order. (Status Order 3:2-4, ECF No. 24.)
1
Defendant Chief Helms also joins in the Entity Defendants’ motion.
However, the ADA claim is not alleged against Chief Helms, and Plaintiff
argues “all references by [the Entity Defendants] to [Chief] Helms in
this . . . motion should be stricken since he cannot challenge the Monell
claims. (Pl.’s Opp’n to Entity Defs.’ Mot. 4:12, ECF No. 52.) Chief Helms does
not respond to this argument in his reply brief. “Monell does not concern
liability of individuals.” Guillory v. Cnty. of Orange, 731 F.2d 1379, 1382
(9th Cir. 1984). Therefore, Defendant Helms cannot challenge the Monell
claims, and he is not a proper movant to the Entity Defendants’ dismissal
motion.
1
1
dismissal under Federal Rule of Civil Procedure (“Rule”) 12(b)(6)
2
of
3
alleged (1) failure to enact adequate policies or practices to
4
educate police officers on how to interact with mentally ill
5
persons, and (2) deficient training and supervision of police
6
officers’
7
claim alleged under Title II of the Americans with Disabilities
8
Act (“ADA”), in which Plaintiff alleges the Entity Defendants
9
failed to reasonably accommodate the Decedent Paraminder Singh
Plaintiff
Sukhwinder
contact
with
Monell
mentally
on
the
Plaintiff’s
Scott Bratton and Adam Lockie (the “Officer Defendants”).
13
Plaintiff’s
14
Amendment
separately
provocation
with
seek
claim
Defendants
dismissal
under
of
12(b)(6).
15
Fourth
Defendants
interaction
and
11
Officer
his
persons;
based
Shergill’s
The
during
ill
claims3
10
12
disability
Kaur’s2
Rule
Each dismissal motion is addressed separately below.
16
I. LEGAL STANDARD
17
“To
survive
a
motion
to
dismiss,
a
complaint
must
18
contain sufficient factual matter, accepted as true, to state a
19
claim to relief that is plausible on its face.”
20
Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir.
21
2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). “A claim
Caviness v.
22
23
2
24
Each of the claims challenged in the referenced motions is “asserted by
Plaintiff Sukhwinder Kaur, as successor in interest for the Decedent Parminder
Singh Shergill.” (SAC && 74, 89, 94, ECF No. 47.)
25
3
26
27
28
“Monell liability refers to the liability of [local governing
bodies]. . . under 42 U.S.C. § 1983 where [an] official policy or custom
causes a constitutional [injury], see Monell v. Dep’t of Social Servs., 436
U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).” Angle v. Alameda Cnty.
Med. Ctr., No. C 07-250 SI, 2008 WL 413738, at *3 n.2 (N.D. Cal. Feb. 13,
2008).
2
1
has facial plausibility when the plaintiff pleads factual content
2
that allows the court to draw the reasonable inference that the
3
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
4
at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
5
(2007)).
6
“For purposes of a motion to dismiss, we accept all
7
well-pleaded allegations of material fact as true and construe
8
them
9
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th
10
in
the
light
most
favorable
to
the
nonmoving
party.”
Cir. 2012).
11
17
[Further,] the court need not accept as true
conclusory allegations, nor make unwarranted
deductions or unreasonable inferences. But so
long as the plaintiff alleges facts to
support a theory that is not facially
implausible, the court’s skepticism is best
reserved for later stages of the proceedings
when the plaintiff’s case can be [evaluated]
on evidentiary grounds. “[A] well-pleaded
complaint may proceed even if it strikes a
savvy judge that actual proof of those facts
is improbable, and that a recovery is very
remote and unlikely.”
18
In re Gilead Sciences Secs. Litig., 536 F.3d 1049, 1057 (9th Cir.
19
2008) (citation omitted) (quoting Twombly, 550 U.S. at 557).
12
13
14
15
16
20
II. FACTUAL ALLEGATIONS
21
22
The following factual allegations in the Second Amended
Complaint (“SAC”) are relevant to the motions.
23
The
a
Decedent
veteran
Paraminder
24
was
25
disorder
26
“depression
and
agitation.”
(SAC
27
“experienced
the
symptoms
his
28
since
When
manifesting
and
2003.
receiving
Singh
treatment
schizophrenia,
of
for
which
2:3-4,
mental
of
(“Parminder”)
post-traumatic
manifested
symptoms
3
Shergill
¶
5.)
illness
his
as
stress
periodic
Paraminder
periodically
mental
illness,
1
P[araminder] would become depressed and anxious, but he never
2
exhibited
3
himself or others.” (SAC & 17.) “During his episodes of manifest
4
mental illness, P[araminder] appeared not to comprehend what was
5
being said to him or to be capable of responding appropriately.”
6
(Id.)
7
any
On
violent
January
tendencies
25,
or
2014,
threatened
Paraminder
violence
“manifested
to
the
8
symptoms of his mental illness.” (SAC & 20.) Parminder’s family
9
called 9-1-1 to request assistance in transporting him to the
10
Veteran’s Clinic to obtain treatment, telling the 9-1-1 operator
11
that Parminder “was disabled, manifesting symptoms of his mental
12
illness, acting ‘crazy,’ and needed to be transported” to the
13
Clinic. (SAC 2:6-10, ¶¶ 21-22.)
14
When the Officer Defendants arrived, Parminder’s family
15
informed them that he had gone to the park. (SAC 2:10-13, ¶ 26.)
16
The Officer Defendants told Parminder’s family “that there was
17
nothing
18
assistance
19
others, but stated that they would “try to talk with him” if they
20
saw him. (SAC 2:13-15, ¶¶ 27-28.)
they
could
because
do”
in
Parminder
response
was
not
to
a
their
threat
to
request
himself
for
or
21
The Officer Defendants “saw P[araminder] while he was
22
walking through the Park and attempted to . . . question him.”
23
(SAC & 30.) When the Officer Defendants “initially confronted
24
P[araminder],
25
street . . . , and began to walk . . .towards his Family Home. He
26
did
27
directions . . . and continued to walk despite [their] attempts
28
to get him to stop by following him and yelling at him.” (SAC &
not
he
walked
respond
to
away
from
the
the
[Officer
4
officers,
crossed
Defendants’]
the
verbal
1
32.)
2
When under stress, Parminder, like other
mentally ill persons, typically exhibited
symptoms of his mental illness, conducting
himself in delusional, irrational and noncompliant ways . . . .
3
4
5
(SAC ¶ 36.)
6
The
Officer
Defendants
“had
not
been
trained
to
7
understand, assess, and respond, without lethal force, to the
8
types of irrational and non-compliant behavior which is typically
9
exhibited by mentally ill persons . . . in their interactions
10
with
11
widely available and implemented throughout the nation,” (SAC &
12
33), includes instruction on:
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
law
enforcement.”
(SAC
&
33.)
“This
training,
(1)
maintaining
physical
distance
from
mentally ill subjects .
.
. (termed
“comfort
zones”
or
“boundaries”);
(2)
engaging
in
non-threatening
communications . . . ;
(3)
managing
the
contact . . . by deliberately pulling back,
and allowing the subject more time to
respond, . . . ; (4) calling and consulting
for advice or bringing to the scene persons
trained in crisis intervention or others
trained in how appropriately to deal with
mentally ill persons . . . ; [and] (5) having
at hand and using non-lethal weapons to
control mentally ill subjects . . . , which
will typically modify the irrational behavior
of such subjects and bring about compliance,
thereby rendering lethal force unnecessary.
(SAC ¶ 34.)
Had [the Officer Defendants] been adequately
trained to deal with persons suffering from
mental illness . . . they would have realized
that [Paraminder] would not respond to
commands in a traditional way, that he would
become upset by intrusive voices, and that he
would become scared or paranoid when being
followed by armed officers and ordered to
follow commands and directions . . . . Had
[they] received proper training they would
have known there were multiple options
5
which
is
1
available to them both prior to and after
confronting
P[araminder].
[The
Officer
Defendants] pursued none of these available
options, due to their deficient training
related to contacts and confrontations with
mentally ill persons.
2
3
4
5
(SAC & 37.) “Instead of using any of the techniques listed above,
6
or others in which they should have been trained,” the Officer
7
Defendants “followed closely behind P[araminder] and repeatedly
8
yelled
9
questioning.” (SAC
at
[him],
demanding
that
38.) The
&
[he]
submit
to
their
Officer Defendants “drew their
10
police-issued firearms and trained them on P[araminder], as he
11
was facing away from the officers and continued to walk towards
12
his Family Home.” (Id.)
13
The Officer Defendants “continued to pursue P[arminder]
14
in an aggressive manner, . . . by shouting commands, closely
15
following, and brandishing firearms trained on Parminder.” (SAC &
16
39.) “Due to [the Officer Defendants’ actions] Parminder became
17
increasingly upset and afraid, exacerbating the symptoms of his
18
mental
19
lengths separate[d] P[aramidner] from his Family Home[,]”
20
Officer Defendants yelled “Stop!” (SAC ¶¶ 42-43.) As Parminder
21
“turn[ed] around to face them,” “he held his hands in the air and
22
stated ‘Don’t Shoot!’” (SAC ¶¶ 43-44.) “Before P[araminder] could
23
complete the 180° turn to face [the Officer Defendants], [they]
24
both opened fire on P[araminder].” (SAC & 45.)
.
.
.”
(Id.)
When
“approximately
six
housethe
III. DISCUSSION
25
26
illness.
A.
The Entity Defendants’ Dismissal Motion
27
The Entity Defendants seek “dismiss[al of] Plaintiff’s
28
[ADA] claim[] . . . and the Monell claims related to inadequate
6
1
mental health training [and policies/procedures,]” arguing that
2
“[a]fter two attempts to amend the complaint to put forth factual
3
allegations
4
shooting and [Paraminder’s] mental illness, the [SAC] still falls
5
short[; t]he [SAC] does not add any additional facts that connect
6
the alleged wrongful conduct to [Paraminder’s] mental health.”
7
(Entity Defs.’ Mem. P.&A. Supp. Mot. Dismiss SAC 2:4-10, ECF No.
8
49-1.) Specifically, the Entity Defendants contend the SAC fails
9
to state an ADA claim “because [Plaintiff] fails to [allege] how
that
there
was
a
[causal]
was
11
disability[;
Plaintiff]
12
[Paraminder’s] mental illness would have changed the Officer[s’]
13
decision to shoot him.” (Id. at 5:21-25 (citations omitted).) The
14
Entity Defendants similarly argue Plaintiff has not alleged a
15
Monell claim because the SAC “fail[s] to plead how the alleged
16
deficiencies
17
injury.” (Id. at 7:6-9.)
the
moving
to
force
state
behind
by
reason
how
the
of
the
[Paraminder]
fails
against
between
10
were
discriminated
connection
his
accommodating
constitutional
18
Plaintiff rejoins that the Entity “Defendants construe
19
Parminder’s killing in a vacuum, focusing solely on the facts
20
alleged to exist moments before Parminder was shot to death.”
21
(Pl.’s Opp’n to Entity Defs.’ Mot. 8:12-13.) Plaintiff counters
22
as follows concerning the Monell claims:
23
24
25
26
27
28
[The Entity] Defendants ignore the context of
the encounter, which has been exhaustively
pled as a build-up from the time that the
Officer Defendants encountered Parminder to
the
time
that
the
shooting
occurred.
Plaintiff[] ha[s] pled that, had adequate
policies or practices[ and/or training] been
adopted by [the Entity] Defendants, the
entire encounter between Parminder and the
Officer Defendants[] would not have occurred
in the manner it did, and Parminder would not
7
1
have been shot and killed. [The Entity]
Defendants refuse to face these allegations,
merely labeling them “legal conclusions and
speculations.” [The Entity] Defendants are
incorrect, because Plaintiff[’s] allegations
specifically
explain
how
the
deficient
polic[ies/training]
caused
the
harm
identified, i.e., that the encounter between
Parminder and the Officer Defendants would
never have occurred or would have been
defused without resort to the lethal force
which resulted in Parminder’s death.
2
3
4
5
6
7
8
(Id. at 9:12-22, see also id. at 10:25-28.) Plaintiff similarly
9
responds concerning the ADA claim as follows:
10
[The
Entity]
Defendants’
argument
demonstrates a failure to comprehend the
scope of Plaintiff[’s] ADA claim. Plaintiff[]
are alleging that Parminder’s ADA rights were
violated not only by Officer Defendants’
shooting, but also by every tactic employed
by the Officer Defendants prior to the
shooting, beginning when Officer Defendants
chose to confront Parminder in the park.
11
12
13
14
15
(Id. at 14:28-15:5.)
16
“A government entity may not be held liable under 42
17
U.S.C. § 1983, unless a policy, practice, or custom of the entity
18
can
19
constitutional rights.” Dougherty v. City of Covina, 654 F.3d
20
892, 900 (9th Cir. 2011) (emphasis added) (citing Monell, 436
21
U.S. at 694). “For a policy to be the moving force behind the
22
deprivation of a constitutional right, the identified deficiency
23
in the policy must be closely related to the ultimate injury.”
24
Long
25
(citation omitted).
26
be
v.
shown
Cnty.
To
to
of
be
a
L.A.,
plead
under
a
the
moving
442
force
F.3d
prima
ADA,
1178,
facie
a
behind
a
violation
1190
(9th
case
of
must
2006)
disability
27
discrimination
28
alia, that “he was . . . discriminated against by the public
8
plaintiff
Cir.
of
allege,
inter
1
entity; and . . . such . . . discrimination was by reason of
2
[his] disability.” E.R.K. ex rel. R.K. v. Haw. Dep’t of Educ.,
3
728
4
McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)).
5
“[T]he phrase ‘by reason of’ [as used] in the [ADA] establishes a
6
‘motivating factor’ causal standard for liability . . . .” Martin
7
v. Cal. Dep’t of Veteran Affairs, 560 F.3d 1042, 1048 (9th Cir.
8
2009).
F.3d
9
982,
992
Here,
(9th
Cir.
Plaintiff
2013)
alleges
(emphasis
that
added)
when
(quoting
the
Officer
10
Defendants encountered Parminder, they confronted him and, as a
11
result of his mental illness, Parminder was non-compliant. (SAC
12
¶¶
13
“continued to pursue P[araminder] in an aggressive manner, . . .
14
by shouting commands, closely following, and brandishing firearms
15
trained on P[araminder[,]” and that if the Officer Defendants had
16
been properly trained to appreciate the effect Parminder’s mental
17
illness
18
differently. (SAC ¶¶ 33, 36, 39.) Specifically, Plaintiff alleges
19
they would have “maintain[ed] physical distance [from him], . . .
20
engag[ed]
21
[him] more time to respond . . . , call[ed] and consult[ed] [with
22
a person who is trained in how to] . . . deal with mentally ill
23
persons without the use of lethal force . . . , [and] use[d] non-
24
lethal weapons to control” Parminder. (SAC ¶¶ 33-34.)
36,
25
38.)
had
in
The
Plaintiff
on
his
further
behavior,
non-threatening
Officer
alleges
they
the
would
communications,
Defendants
have
Officer
not
Defendants
have
.
.
shown
responded
.
allow[ed]
that
these
26
allegations, together with all reasonable inferences that can be
27
drawn
28
inadequate policies/practices and training was a moving force
therefrom,
do
not
plausibly
9
allege
that
the
alleged
1
behind
2
Paraminder’s disability was a motivating factor in his alleged
3
discriminatory
4
dismissal motion is DENIED.
5
Plaintiff’s
B.
alleged
treatment.
constitutional
Therefore,
the
injuries,
Entity
and
that
Defendants’
The Officer Defendants’ Dismissal Motion
6
The Officer Defendants seek dismissal of Plaintiff’s
7
Fourth
8
“‘[w]here
9
violent
confrontation,
10
Fourth
Amendment
11
[subsequent,]
12
Billington v. Smith (9th Cir. 2002) 292 F.3d 1177, 1189[,]” and
13
“the
14
sufficient
15
[v]iolation because it fails to [allege] the Decedent was seized
16
prior to the shooting.” (Officer Defs.’ Mem. P.&A. Supp. Mot.
17
Dismiss SAC 8:5-9, 13:5-8; ECF No. 48-1 (second use of brackets
18
in original) (emphasis added).) The Officer Defendants contend:
19
20
21
22
23
24
25
26
27
28
Amendment
an
[Second
provocation
officer
intentionally
if
otherwise
to
the
violation,
Amended
claim,
he
constitute
an
may
use
(“SAC”)]
inter
recklessly
provocation
defensive
Complaint
or
arguing,
is
alia,
provokes
an
a
independent
be
liable
for
of
deadly
force[,]’
fails
independent
to
state
Fourth
A person is not seized for purposes of
the Fourth Amendment unless, by means of
physical force or show of authority, his
freedom of movement is restrained. [Absent]
physical force, a subject must submit to an
assertion of police authority in order for
there to be a seizure. Without compliance,
there is no seizure. . . .
. . . .
Here, the pleaded facts are such that no
independent
Fourth
Amendment
violation
occurred prior to [the Officer Defendants’]
shooting of [Paraminder] because no seizure
occurred.
After receiving a 9-1-1 call from the
Decedent’s family . . . , [the Officer
10
his
facts
Amendment
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Defendants] located [Paraminder and] . . .
attempted to detain and question [him, but
he] did not comply. . . .
At this point in the chronological
sequence of events there are no allegations
that [Paraminder] submitted to the [Officer
Defendants’] authority . . . .
The
SAC
goes
on
to
allege
that
[Paraminder] did not respond to the [Officer
Defendants’] verbal directions . . . and
continued to walk despite [their] attempts to
get him to stop by following him and yelling
at him. . . .
[The Officer Defendants] then continued
to pursue [Paraminder] by shouting commands,
closely following, and brandishing firearms
trained on the Decedent. . . . [T]his does
not constitute a seizure because [Paraminder]
continued to walk away from the officers with
no indication that he was submitting to their
authority.
Finally,
as
[Paraminder]
was
approximately six house lengths from the
family home, [the Officer Defendants] yelled
at him to stop from approximately twenty feet
away. While simultaneously putting his hands
in the air, stating “don’t shoot” and
beginning to turn around, [Paraminder] was
shot and killed by [the Officer Defendants].
20
. . . . [T]his act is pleaded as occurring
contemporaneously with the shooting. In fact,
[Paraminder]
was
shot
before
he
could
complete
the
180º
turn
to
face
[the
Defendant] Officers . . . .
21
. . . .
22
23
Because
no
pre-shooting
seizure
is
pleaded, the . . . [p]rovocation claim should
be dismissed.
24
(Id. at 8:13-13:21 (quotation marks, citations, and alteration
25
omitted).)
19
26
Plaintiff rejoins that the “Officer Defendants [are]
27
renew[ing an earlier] motion to dismiss [Plaintiff’s provocation
28
claim], in violation of the ‘law of the case,’” by “ask[ing] this
11
1
Court . . . to consider their arguments which it previously and
2
explicitly rejected.” (Pl.’s. Opp’n to Officer Defs.’ Mot. 3:25-
3
28,
4
rejected Officer Defendants’ motion to dismiss . . . finding that
5
Plaintiff[] had properly stated a[] . . . provocation claim.”
6
(Id. at 4:23-24.) Plaintiff further counters that even “[i]f the
7
Court
8
dismiss Plaintiff[’s] [provocation] claim[,] . . . the motion is
9
. . . without merit.” (Id. at 6:17-18.) Plaintiff argues:
ECF
No.
is
10
inclined
Plaintiff
to
contends
consider
“[t]his
Officer
Court
Defendants’
previously
motion
to
In this case, [the] SAC alleges that
Officer
Defendants’
pre-shooting
conduct
directed at Paraminder whom they knew was
suffering from mental illness, which included
bullying tactics in the form of confronting,
harassing, stalking, and pointing firearms at
Paraminder as he walked away from the Officer
Defendants towards his home, constituted an
independent
Fourth
Amendment
violation
provoking a response from Paraminder which
precipitated the Officer Defendants’ use of
deadly force.
11
12
13
14
15
16
17
51.)
(Id. at 7:21-26 (emphasis omitted).)
18
The Officer Defendants reply, inter alia, that the law
19
of the case doctrine does not apply because “Defendants’ initial
20
motion to dismiss Plaintiff[’s] provocation claim did not raise
21
the
22
shooting . . . . Defendants raise th[is] issue[] now in light of
23
the new factual allegations in the [SAC].” (Officer Defs.’ Reply
24
1:20-25, ECF No. 53.) The Officer Defendants argue: “the new
25
factual allegation[] that the [Decedent] was . . . shot ‘[b]efore
26
[he]
27
Defendants] . . . g[a]ve rise to new arguments that have never
28
been considered by the court in this case.” (Id. at 2:19-25.)
issue
could
of
whether
complete
[Paraminder]
the
180º
12
turn
was
to
seized
face
prior
[the
to
the
Officer
1
“The law of the case doctrine is a judicial invention
2
designed to aid in the efficient operation of court affairs.
3
Under
4
reconsidering an issue previously decided by the same court, or a
5
higher
6
Nation, 763 F.3d 1180, 1184 (9th Cir. 2014) (internal quotation
7
marks and citations omitted). “The ‘law of the case [doctrine]
8
acts
9
considered and decided [previously].’” United Steelworkers of Am.
10
v. Retirement Income Plan for Hourly-Rated Employees of Asarco,
11
Inc., 512 F.3d 555, 564 (9th Cir. 2008) (quoting United States v.
12
Cote, 51 F.3d 178, 181 (9th Cir. 1995)). Here, the Court “ha[s]
13
not previously decided” whether Paraminder was seized prior to
14
the shooting since the Officer Defendants did not raise that
15
argument as a basis for their motion to dismiss the original
16
Complaint. United States v. Lepp, 446 F. App’x 44, 46 (9th Cir.
17
2011)
18
Defendants’ current dismissal motion is not precluded by the law
19
of the case doctrine, and the Court considers its merits.
the
doctrine,
court
as
a
in
bar
(citing
20
the
only
Cote,
“[W]here
a
a
identical
when
51
an
violent
court
the
F.3d
is
generally
case.”
issue
at
officer
United
in
181).
Therefore,
was
Lummi
actually
the
Officer
recklessly
provokes
22
independent Fourth Amendment violation, he may be held liable for
23
his
24
Billington, 292 F.3d at 1189 (emphasis added). “In such a case,
25
the
26
proximately cause the subsequent application of deadly force.”
27
Id. at 1191 (emphasis added).
officer’s
otherwise
initial
defensive
unconstitutional
28
13
the
or
v.
from
21
[subsequent,]
if
States
question
intentionally
confrontation,
precluded
use
provocation
of
deadly
is
an
force.”
provocation . . . would
1
In
deciding
whether
Plaintiffs
have
alleged
an
2
independent Fourth Amendment violation as required to plead a
3
provocation claim, the Court must determine whether Paraminder
4
was seized prior to the Officer Defendants’ use of deadly force.
5
Cf. United States v. McClendon, 713 F.3d 1211, 1215 (9th Cir.
6
2013) (emphasis added) (reviewing a district court’s denial of a
7
suppression motion, stating “[i]n deciding whether evidence is
8
the product of an unlawful seizure, we first determine whether
9
the defendant was seized at the time the handgun was discarded”).
10
14
The general rule is that a person has
been ‘seized’ within the meaning of the
Fourth Amendment only if, in view of all of
the circumstances surrounding the incident, a
reasonable person would have believed that he
was not free to leave. This determination is
a necessary, but not a sufficient, condition
for seizure. In addition, some form of
touching or submission is also required.
15
Id. (internal quotation marks and citations omitted). “A police
16
officer may make a seizure by a show of authority and without the
17
use of physical force, but there is no seizure without actual
18
submission; otherwise, there is at most an attempted seizure, so
19
far as the Fourth Amendment is concerned.” Brendlin v. Cal., 551
20
U.S. 249, 254 (2007); see, e.g., United States v. McClendon, 713
21
F.3d 1211, 1215 (9th Cir. 2013) (holding an individual was not
22
seized “when [police] officers drew their guns and told him he
23
was
24
refuse[d] to comply with the commands of [the] officers”).
11
12
13
under
arrest”
“where
.
.
.
[he]
walk[ed]
away
from
and
25
Here, Plaintiff has not alleged facts, which plausibly
26
state Paraminder was seized prior to the Officer Defendants’ use
27
of deadly force. Therefore, the Officer Defendants’ motion to
28
dismiss Plaintiff’s Fourth Amendment provocation claim (Second
14
1
Claim) is GRANTED. However, Plaintiff is granted fourteen (14)
2
days leave from the date on which this order is filed to file a
3
Third Amended Complaint addressing the referenced deficiencies in
4
the Fourth Amendment provocation claim.
5
Dated:
June 16, 2015
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10
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