Kaur et al v. City of Lodi et al

Filing 87

AMENDED ORDER signed by Judge Garland E. Burrell, Jr on 6/18/15 amending 86 Order on Motion to Dismiss. (Manzer, C)

1
2

UNITED STATES DISTRICT COURT

3

EASTERN DISTRICT OF CALIFORNIA

4
5
6
7
8

SUKHWINDER KAUR, individually
and as the successor in
interest for the Decedent
PARMINDER SINGH SHERGILL;
KULBINDER KAUR SOHOTA;
SARABJIT SINGH SHERGILL,

v.

10

12
13
14
15
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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.*

17

Defendants

18
19

AMENDED ORDER** DENYING ENTITY
DEFENDANTS’ MOTION AND GRANTING
OFFICER DEFENDANTS’ MOTION TO
DISMISS PORTIONS OF THE SECOND
AMENDED COMPLAINT

Plaintiffs,

9

11

No. 2:14-cv-00828-GEB-AC

Department

City

(collectively,

of

Lodi

the

and

“Entity

City

of

Lodi

Defendants”)1

Police
seek

20
*

21
22
23
24
25
26
27
28

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.)
**

The June 17, 2015 Order, (ECF No. 86), has been amended as follows: The
word “Officer” on page 9, line 25 of that order is replaced by the word
“Entity.”
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

Entity

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 18, 2015

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