Losee v. City of Chico et al

Filing 48

ORDER signed by District Judge Kimberly J. Mueller on 07/29/16 ORDERING that the officers' 17 Motion for Summary Judgment is GRANTED. The following claims also are DISMISSED: (1) unreasonable search and seizure-detention and arrest; (3) den ial of medical care; (5) municipal liability for approving the acts of defendant officers; (6) municipal liability for failure to train; (7) municipal liability for an unconstitutional custom or policy; and (8) false arrest or false imprisonment. T he officers' 17 motion for summary judgment is GRANTED as to the following claims: (2) unreasonable search and seizure-excessive force in violation of the Fourth Amendment; (4) interference with familial relationship; (9) state law battery (10) state law negligence; and (11) violation of the Bane Act.Given that all claims are resolved; this case is CLOSED. CASE CLOSED (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MINDY LOSEE, individually and as
successor in interest to Breanne Sharpe,
deceased,

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Plaintiff,

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No. 2:14-cv-02199-KJM-CMK

ORDER

v.
CITY OF CHICO; SCOTT ZUSCHIN;
DAMON SELLAND; NICK VEGA;
JARED CUMBER; and DAVID
QUIGLEY,
Defendants.

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In the early morning hours of September 22, 2013, what started as a routine traffic

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stop for a broken taillight escalated to a 1.6 mile police chase of Breanne Sharpe by at least five

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police officers in a residential neighborhood in Chico, California. In the end, Ms. Sharpe died,

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and her mother, Mindy Losee, filed this suit against the officers and the City of Chico. Ms. Losee

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contends the officers’ use of force was unreasonable and violated federal constitutional and state

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law. Following discovery, the officers moved for summary judgment, contending their force was

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justified by the threat Ms. Sharpe posed to them and the public. At hearing on the motion, Renee

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Valentine appeared for plaintiff and Sharon Medellin appeared for defendants. ECF No. 39. For

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reasons explained below, the court having carefully considered and weighed the evidence in this

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difficult case, defendants’ motion is GRANTED.

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I.

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PROCEDURAL HISTORY
A year after the police chase, Ms. Losee filed suit against the City of Chico,

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officers Zuschin, Selland, Vega, Cumber, and Quigley, and several Doe defendants. Compl.,

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ECF No. 1. The court dismisses Doe defendants because Ms. Losee has not identified or served

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them, Craig v. United States, 413 F.2d 854, 856 (9th Cir. 1969) (the court may dismiss the Doe

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defendants sua sponte).

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Ms. Losee’s complaint makes eleven claims: (1) unreasonable search and

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seizure—detention and arrest in violation of the Fourth Amendment; (2) unreasonable search and

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seizure—excessive force in violation of the Fourth Amendment; (3) denial of medical care in

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violation of the Fourth Amendment; (4) interference with familial relationship in violation of the

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substantive due process clause of the Fourteenth Amendment; (5) municipal liability under

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§ 1983 for approving the acts of the defendant officers; (6) municipal liability under § 1983 for

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failure to train; (7) municipal liability under § 1983 for an unconstitutional custom or policy;

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(8) false arrest or false imprisonment in violation of California Government Code section

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815.2(a); (9) battery in violation of California Government Code section 815.2(a);

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(10) negligence in violation of California Government Code section 815.2(a); and (11) violation

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of California Civil Code § 52.1, or the Bane Act. Compl. Claims one through four are against

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the officers, id. ¶¶ 29–54, five through seven against the City and doe defendants, id. ¶¶ 55–85,

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eight and nine against the City and the officers, id. ¶¶ 86–99, and ten and eleven against all

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defendants, id. ¶¶ 100–117.

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The officers move for summary judgment of all claims and in the alternative for

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partial summary judgment on some claims. Mot., ECF No. 17. Ms. Losee has agreed to

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voluntarily dismiss six of her claims, numbered according to the number assigned the claim in the

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complaint: (1) unreasonable search and seizure—detention and arrest; (3) denial of medical care;

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(5) municipal liability for approving the acts of defendant officers;

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(6) municipal liability for failure to train; (7) municipal liability for an unconstitutional custom or

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policy; and (8) false arrest or false imprisonment in violation of California Government Code

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section 815.2(a). See generally ECF No. 21. The officers do not oppose dismissal. The court

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dismisses these claims under Federal Rule of Civil Procedure 41(a)(2), with five claims

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remaining: (2) unreasonable search and seizure—excessive force in violation of the Fourth

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Amendment; (4) interference with familial relationship; (9) state law battery (10) state law

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negligence; and (11) violation of the Bane Act. Opp’n, ECF No. 20. Ms. Losee nonetheless

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opposes summary judgment on these remaining claims, id., and the officers have replied, Reply,

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ECF No. 26.

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II.

FACTUAL BACKGROUND

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The following facts are undisputed unless otherwise stated. Where a genuine

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dispute exists, the court draws reasonable inferences in favor of Ms. Losee. Tolan v. Cotton,

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___U.S.___, 134 S. Ct. 1861, 1868 (2014).

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The officers have proffered a computer-based video reenactment prepared by the

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officer involved shooting incident protocol team and obtained from the Chico City files.

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Medellin Decl. 2, ECF No. 17-1; Defs.’ Ex. 2, ECF No. 17-2. Ms. Losee objects to the computer

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reenactment, contending it lacks foundation and is contrary to the officers’ testimony at

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deposition. ECF No. 21. The court sustains Ms. Losee’s objections and does not consider the

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video, with one exception. The map displayed at the beginning of the reenactment shows the

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undisputed relationship of the primary streets in the neighborhood where the chase occurred. The

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court references the map, reproduced below, for the limited purpose of contextualizing the

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locational and geographical facts surrounding the chase.

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Defs.’ Ex. 2.

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A.

Officer Marshall First to Respond
At approximately 1:56 a.m. on September 22, 2013, the Chico Police Department

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received a call from a citizen at 842 Coit Tower Way, northeast of Vista Verde Avenue and off

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the map reproduced above, reporting a suspicious person checking car door handles. Undisputed

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Material Fact (UMF) No. 1, ECF No. 21.1 Officer Ed Marshall was the first to respond, arriving

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in full uniform and a marked police car to perform an area check. UMF No. 2. When he arrived,

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Ms. Losee objects to this fact, as well as to UMF Nos. 3, 9, 14, 25, 26, 27, 29, 32, 33, 49,
66, 75, 76, 78, and 80 on grounds of relevancy. ECF No. 21. Ms. Losee objects to UMF Nos. 21,
23, 26, and 31 on grounds of speculation. Id. Ms. Losee objects to UMF Nos. 26, 29, 31, 34, 39,
42, 53, and 76 on grounds of vagueness or ambiguity. Id. Ms. Losee objects to ECF Nos. 21, 26,
and 53 on grounds of “compound.” All objections are overruled for purposes of this order.
Relevancy and speculation objections are redundant; the court cannot rely on irrelevant or
speculative evidence. Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal.
2006). As to vagueness objections, the court finds no vagueness in the statements objected to.
As for “compound” facts, Ms. Losee makes this objection without explanation.

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Officer Marshall observed a black Honda Del Sol with a broken taillight traveling north on Coit

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Tower Way. UMF No. 3. Officer Marshall blinked his emergency lights in the Honda’s direction

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as his attempt to initiate a traffic stop because of the broken taillight. UMF Nos. 3, 9, Marshall

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Decl. ¶ 7, ECF No. 17-17. The Honda did not stop, and instead turned onto and drove west on

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East Eighth Street, a narrow residential street with speedbumps, at fifty miles per hour. Marshall

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Decl. ¶ 7.

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The Honda then turned south onto Vista Verde Avenue, the location of a large

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apartment complex with a parking lot containing speedbumps. UMF Nos. 10, 11. While the

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officers contend the Honda, whose driver was later identified as Ms. Sharpe, drove east on Vista

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Verde Avenue at forty miles per hour, Marshall Decl. ¶ 9, Ms. Losee cites evidence suggesting

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Ms. Sharpe was driving fifteen miles per hour, Cumber Dep. 18:14–17. As Officer Marshall

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followed Ms. Sharpe down Vista Verde, Ms. Sharpe did not slow down for speedbumps and stop

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signs, and drove on the wrong side of the road. UMF Nos. 9,11. The chase halted momentarily

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when Ms. Sharpe ran into a six-inch red curb, and Officer Marshall pulled up behind her in an

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attempt to make contact. UMF Nos. 14, 15. As he pulled up, Ms. Sharpe backed up, turned

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around and started driving west on Vista Verde Avenue; Officer Marshall followed. UMF

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No. 15. Ms. Sharpe then returned to East Eighth Street, turning right, and started driving east.

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B.

Sergeant Zuschin Responds to Dispatch Reports
Meanwhile, Sergeant Scott Zuschin was inside his office at the Chico Police

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Department when he heard the dispatch call from a loudspeaker referring to a “suspicious

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circumstance.” Zuschin Dep. 20:15–17. Within ten minutes of the initial call, Sergeant Zuschin

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heard dispatch say Ms. Sharpe was fleeing from Officer Marshall. At this point, Sergeant

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Zuschin testified he engaged in a thought process, considering issues such as “who was involved

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in the pursuit, where the pursuit was located and heading to, and any dangers or risks that might

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be involved in letting the pursuit continue.” Zuschin Dep. 23:11–14. Considering these issues,

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along with Officer Marshall’s reputation as an “experienced officer,” Sergeant Zuschin allowed

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Officer Marshall time to obtain control of the situation. Zuschin Dep. 24:18–20. At “some point”

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later, Sergeant Zuschin drove to the area of the chase. Id. 20:7–8, 25:6–7.
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When Sergeant Zuschin arrived at the corner of East Eighth Street and Vista Verde

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Avenue, he heard Officer Marshall report over dispatch that Ms. Sharpe was turning into the

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apartment complex parking lot on Vista Verde. UMF No. 19. Suspecting Ms. Sharpe might have

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stopped and run away on foot through the apartment complex, Sergeant Zuschin positioned his

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car on East Eighth Street near the entrance of Vista Verde Avenue. UMF No. 20. Sergeant

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Zuschin then exited his patrol car and began to move to its rear when he saw Ms. Sharpe drive

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from Vista Verde Avenue onto East Eighth Street so quickly that the Honda “looked like it was

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airborne” as it came around the turn. UMF No. 21. Ms. Sharpe then drove across both lanes of

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East Eighth Street and onto the curb on the north side of the street. UMF No. 22.

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After hitting the curb, Ms. Sharpe swerved back into the roadway and drove

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diagonally across the street towards Sergeant Zuschin, who at this time was located near the bike

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path along the shoulder of the roadway on the south side of East Eighth Street. UMF No. 23;

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Zuschin Dep. 34:20–22; 37:23–24. At this point, it is unclear whether Sergeant Zuschin was

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behind the back bumper of his patrol car or by the back passenger door as Ms. Sharpe drove

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toward him. See Zuschin Dep. 34:7–25. In any event, it is undisputed that Sergeant Zuschin was

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near the back of his car. UMF No. 21, 23. As Ms. Sharpe’s car approached him, Sergeant

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Zuschin un-holstered his gun and hopped from side to side as he tried to anticipate which way

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Ms. Sharpe would travel next. UMF No. 25. Ms. Sharpe adjusted her direction, drove past

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Sergeant Zuschin’s car, hit the curb on the south side of the roadway, drove onto the sidewalk,

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and hit a utility pole. UMF No. 26.

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Concerned that Ms. Sharpe was seriously injured, or that she would attempt to flee

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on foot, Sergeant Zuschin approached the Honda from behind. UMF No. 27. As he came within

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fifteen to twenty feet of the Honda, Sergeant Zuschin saw the white back-up lights come on, and

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the Honda starting to move backwards. Plaintiff’s Undisputed Material Facts (PUMF) No. 110,

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ECF No. 21; Zuschin Dep. 46:9–10. The parties dispute whether Ms. Sharpe rapidly accelerated

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directly toward Sergeant Zuschin and whether at this point Sergeant Zuschin thought Ms. Sharpe

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was going to run him over. Compare Zuschin Interview 11:19–24 to Zuschin Dep. 48:14–16.

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The officers cite evidence suggesting Sergeant Zuschin thought he was going to be run over.
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Zuschin Interview 11:19–24. Ms. Losee points out that Sergeant Zuschin testified he did not

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know how fast Ms. Sharpe was going when the Honda began to back up, or whether Ms. Sharpe

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was trying to hit him. Zuschin Dep. 48:14–16.

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Sergeant Zuschin fired two shots at Ms. Sharpe through the rear window of

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Ms. Sharpe’s car as she backed up toward him. PUMF 117. He estimates between ten and fifteen

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seconds elapsed after the Honda’s reverse lights came on and before he fired his first shot.

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PUMF No. 111. After both shots, Ms. Sharpe placed the Honda in drive, made a U-turn, and

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headed west down East Eighth Street. UMF No. 31.

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Sergeant Zuschin testified that as Ms. Sharpe drove away, he scanned the direction

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Ms. Sharpe was moving and realized she posed “a threat to public safety and officers at the

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scene.” Zuschin Dep. 54:24–55:1. As a result, he fired two more shots toward the moving car.

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UMF No. 33. Plaintiff’s expert Scott Defoe challenges Sergeant Zuschin’s reason for shooting,

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pointing out that Sergeant Zuschin shot in the very direction he believed officers and the public

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might be. DeFoe Dep. 58:25–59:6.

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C.

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Officer Selland Joins the Call
Officer Selland was also in his office at the Chico Police Department when he

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heard the dispatch call. UMF No. 34; Selland Interview 9:13–15. He responded to Coit Tower

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Way, drove onto East Eighth Street, and parked behind Sergeant Zuschin’s car but closer to the

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north side of the street and next to a small tree on his left. UMF Nos. 34, 36; Selland Interview

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11:10–12. Officer Selland exited his car and positioned himself between his car’s open driver’s

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door and the front left quarter panel. UMF No. 37. As he exited, Officer Selland heard gunshots

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but he did not know who was firing those shots or where the shots were coming from. Selland

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Dep. 11:3–6.

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Officer Selland’s arrival coincided with Ms. Sharpe’s crashing into the utility pole.

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UMF No. 35. After she crashed and made the U-turn across Eighth Street, Ms. Sharpe drove west

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in Officer Selland’s direction. UMF No. 39. Officer Selland shot twice as Ms. Sharpe drove in

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his direction and then fired a third shot as she passed him. UMF No. 42; Selland Dep. 23–22:12.

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He estimates about two seconds passed between the time he saw the car moving in his direction
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and the time he fired his first shot. Selland Dep. 20:19–22. As Ms. Sharpe passed Officer

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Selland on his left she ran into the small tree with her car, breaking the tree in half. UMF No. 43.

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As she passed, the Honda hit Officer Selland’s open door and came within “inches to a foot” of

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Officer Selland himself. Selland Dep. 19:7–18. The tree landed “right behind [] or almost right

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on []” Officer Selland. Selland Interview at 12:19–25.

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The parties dispute whether Officer Selland believed he had time to move out of

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the way when Ms. Sharpe came toward him. Compare Selland Dep. 16:16–22 with Selland Dep.

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19:19–22. The officers cite to Officer Selland’s deposition, at which he testified he did not

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believe he had time to move out of the way and believed Ms. Sharpe was intentionally turning in

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his direction. Selland Dep. 16:16–22. Ms. Losee cites to other parts of his deposition testimony,

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in which Officer Selland explained by the time he fired his first shot, Ms. Sharpe was

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approximately thirty feet away. Selland Dep. 19:19–22.

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Officer Vega Arrives
Officer Vega was in his office when he heard the dispatch call, and he arrived to

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observe Ms. Sharpe making the U-turn across East Eighth Street after hitting the utility pole.

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UMF No. 49. When he arrived, he parked just behind and to the right of Officer Selland’s car, in

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the middle of East Eighth Street. Vega Interview 15:1–2, Defs.’ Ex. B, ECF No. 17-3. As he

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exited his car to stand near the driver’s side door, Officer Vega heard gun shots, but did not know

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who was shooting. Vega Interview 15:1–5; PUMF No. 151.

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While the Honda was heading west on East Eighth Street, Officer Vega also heard

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its “loud engine.” Vega Dep. 27:9–11. Officer Vega fired one shot through the Honda’s front

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windshield as Ms. Sharpe headed west in his general direction and then fired five or six additional

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shots as Ms. Sharpe passed him. UMF No. 53. Officer Vega estimates he fired all of his shots

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within approximately fifteen seconds. Vega Dep. 56:6–8. Officer Vega said he shot because he

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thought he was going to get hit by Ms. Sharpe’s car and was trying to stop Ms. Sharpe. Vega

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Interview 17:1–8; 17:22–33. He believes he was ten to fifteen feet away from her car when he

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fired his first shot. Vega Interview 13:1–5.

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E.

Officer Cumber Responds

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Officer Cumber and his partner were working on paperwork at the Chico City

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Police Department when they heard the reports of Ms. Sharpe’s car failing to yield to Officer

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Marshall. Cumber Interview 7:22–25. Officer Cumber responded and when he arrived, pulled

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into the apartment complex on Vista Verde Avenue and activated his emergency lights. UMF

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No. 57.

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Officer Cumber arrived as Ms. Sharpe drove along Vista Verde Avenue to return

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to East Eighth Street, and before she hit the utility pole. UMF No. 58. Officer Cumber turned his

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car around and drove onto East Eighth Street, where he saw Ms. Sharpe make the U-turn, drive

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onto the road Cumber testified was “blocked with patrol cars,” drive over a curb and into the tree,

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hit Officer Selland’s car, slightly miss hitting Officer Vega, and come back into the road. UMF

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Nos. 62–63; Cumber Dep. 26:18–20.

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Officer Cumber then saw Ms. Sharpe head in the direction of another patrol car

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parked in the street, and he saw an officer’s leg extend out of the car, but did not know who the

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officer was. Cumber Dep. 31:12–33:13. The officer in fact was David Quigley, as discussed in

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more detail below. Officer Cumber fired one shot at Ms. Sharpe through her driver’s side

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window because she was driving straight toward Officer Quigley. Cumber Dep. 21:1–3.

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Immediately before he shot, Officer Cumber estimated Officer Quigley was fifteen to thirty feet

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from the Honda. Cumber Dep. 13:17–22. Officer Cumber was between five and fifteen feet from

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the Honda at the time he shot. PUMF 171.2 Officer Cumber then saw Ms. Sharpe’s car hit

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Officer Quigley’s car on the driver’s side. UMF No. 66. Officer Cumber observed that Officer

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Quigley was never struck by the Honda. Cumber Dep. 16:4–6.

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F.

Officer Quigley Last to Arrive

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Officer Quigley was at the Chico Police Department when he heard about the

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chase. Quigley Interview 9:10–16. He responded to the area with lights and sirens blazing.

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The officers object to this statement, as well as PUMF Nos. 151, 168, 176, 179, and 182
on grounds of relevancy. ECF No. 26–16. As stated above, relevancy objections are overruled as
redundant because the court only considers relevant evidence. Burch, 433 F. Supp. 2d at 1119.
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UMF No. 69. Officer Quigley heard gunshots after arriving on the scene, before he parked his

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police car near the south side of East Eighth Street close to the entrance of Vista Verde Avenue.

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Quigley Dep. 27:16–17; PUMF No. 182. He continued to hear gunshots as he exited his car.

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PUMF No. 182.

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When Officer Quigley arrived, Ms. Sharpe had just made the U-turn after hitting

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the utility pole; she then drove generally in his direction. UMF No. 72. During his deposition,

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Officer Quigley testified the Honda’s engine “revved up” as it came towards him. Quigley Dep.

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49:14–15. He immediately began running toward the front of his car to get out of the way. UMF

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No. 73. Officer Quigley fired three shots at the Honda, and testified he narrowly escaped being

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hit by Ms. Sharpe. Quigley Interview 10:4–10. At his deposition, Office Quigley testified he

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heard two to five rounds of shots before he fired his first shot, but he did not know who was

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firing. PUMF No. 169. Ms. Losee disputes Officer Quigley’s narrative and points to evidence

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suggesting when Officer Quigley fired his first shot, approximately one car’s length separated

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him from the Honda, and the closest the Honda ever came to Officer Quigley was ten or fifteen

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feet. Quigley Depo. 40:25–42:2; 42:8–17. Ms. Sharpe struck Officer Quigley’s car after he fired.

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Quigley Dep. 44:18–20. The Honda slowed down and stopped as it slid along the side of Officer

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Quigley’s car. UMF No. 75.

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G.

Medical Aid Rendered to Ms. Sharpe
After the Honda came to a stop, not knowing who was in the vehicle, Sergeant

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Zuschin retrieved a protective shield and formulated a plan to group the officers together in a safe

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way to approach the Honda. UMF No. 76; Zuschin Dep. 60:11–25. At about the same time he

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approached the vehicle, Sergeant Zuschin notified dispatch to acquire medical assistance.

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Zuschin Dep. 10:8–10. Emergency Medical Technician (EMT) James Dimmitt arrived and stood

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adjacent to the Honda just as the officers removed Ms. Sharpe from her car; once she was

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removed, Dimmitt did a head-to-toe search for wounds. Dimmitt Decl. ¶ 5, ECF No. 17–15. As

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he did his search, Mr. Dimmitt noticed Ms. Sharpe stopped breathing, and he attempted to revive

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Ms. Sharpe by performing CPR. Id.; UMF Nos. 78, 80. Ms. Sharpe ultimately died from gunshot

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wounds. PUMF Nos. 196, 197.3

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H.

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Speed of Ms. Sharpe’s Car During Incident and Seizure
As noted above, the total distance between the point where Officer Marshall

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attempted to initiate the traffic stop and the end of the officers’ attempt to stop Ms. Sharpe on

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East Eighth Street is approximately 1.6 miles. UMF No. 17. The parties dispute how fast

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Ms. Sharpe was driving during this time. Defendants cite to Officer Marshall’s declaration,

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which states Ms. Sharpe drove fifty miles per hour on East Eighth Street while attempting to

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evade him, and then lowered her speed to forty miles per hour when she drove south onto Vista

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Verde Avenue. Marshall Decl. ¶¶ 7, 9. Although Ms. Losee does not dispute Ms. Sharpe was

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driving fifty miles per hour shortly after Officer Marshall first flashed his lights, Ms. Losee points

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to deposition testimony suggesting Ms. Sharpe was driving fifteen miles per hour on Vista Verde

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Avenue. Cumber Dep. 18:14–17. The parties have not cited evidence of Ms. Sharpe’s speed

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when she returned back to East Eighth Street after driving west on Vista Verde Avenue. See

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Defoe Dep. 28:16–18; PUMF No. 176; Zuschin Dep. 54:15–17; Selland Dep. 16:1–7; Vega Dep.

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70:9–12; Cumber Dep. 14:1–4; Quigley Dep. 30:22–25. Similarly, no expert testimony analyzes

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Ms. Sharpe’s speed. Whatever the speed, both parties agreed at hearing the officers attempted to

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seize Ms. Sharpe’s car by firing shots at her, and were successful in their efforts when the Honda

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stopped near Officer Quigley’s car.

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III.

LEGAL STANDARD

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A court will grant summary judgment “if . . . there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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The “threshold inquiry” is whether “there are any genuine factual issues that properly can be

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resolved only by a finder of fact because they may reasonably be resolved in favor of either

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party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

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The officers object to PUMF 197 on the basis of relevancy, lack of foundation, and
improper expert opinion, but do not give any reasons supporting their objections. See ECF
No. 26-16 at 3–4. The objections are overruled.
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Rule 56 also authorizes granting summary judgment on part of a claim or defense,

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known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may move for summary

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judgment, identifying each claim or defense—or the part of each claim or defense—on which

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summary judgment is sought.”). The standard that applies to a motion for partial summary

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judgment is the same as that which applies to a motion for summary judgment. See State of Cal.

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ex rel. Cal. Dep’t of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998)

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(applying summary judgment standard to motion for summary adjudication); ARC of Cal. v.

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Douglas, No. 11–02545, 2015 WL 631426, at *3 (E.D. Cal. Feb. 13, 2015).

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The moving party bears the initial burden of showing the district court “that there

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is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett,

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477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish

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that there is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio

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Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must “cit[e] to particular

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parts of materials in the record . . . or show [] that the materials cited do not establish the absence

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or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

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support the fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[The

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nonmoving party] must do more than simply show that there is some metaphysical doubt as to the

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material facts.”). Moreover, “the requirement is that there be no genuine issue of material fact . . .

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Only disputes over facts that might affect the outcome of the suit under the governing law will

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properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48. A district

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court is “not required to comb the record to find some reason to deny a motion for summary

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judgment.” Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (internal

23

quotations omitted). “Where the record taken as a whole could not lead a rational trier of fact to

24

find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587

25

(quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

26
27
28
12

1
2

IV.

DISCUSSION
A.

Federal Claims

3

1.

4

At hearing, the parties agreed Ms. Losee was “seized” when her car stopped by

Unreasonable Search and Seizure—Excessive Force (Fourth Amendment)

5

Officer Quigley’s car at the end of the 1.6 mile chase. The officers argue it is “abundantly clear”

6

the amount of force used in effectuating Ms. Sharpe’s seizure was objectively reasonable as a

7

matter of law. Mot. at 24–25. Ms. Losee argues it was not objectively reasonable for the officers

8

to shoot at Ms. Sharpe given the facts of this case. Opp’n at 18.

9

The Fourth Amendment allows police officers to use only objectively reasonable

10

force when they conduct searches and seizures. See Green v. City & Cty. of S.F., 751 F.3d 1039,

11

1049 (9th Cir. 2014). Plaintiff’s excessive force claim is governed by the reasonableness analysis

12

set forth in Graham v. Connor, 490 U.S. 386, 396 (1989). Under this analysis, the court balances

13

the “nature and quality of the intrusion on the individual’s Fourth Amendment interests against

14

the importance of the governmental interests alleged to justify the intrusion.” Scott v. Harris,

15

550 U.S. 372, 383 (2007). In striking this balance, the court pays “careful attention to the facts

16

and circumstances of each particular case” while considering the following factors (1) the

17

“severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of

18

the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to

19

evade arrest by flight.” Graham, 490 U.S. at 396. Because this inquiry is inherently fact specific,

20

the “determination whether the force used to effect an arrest [or seizure] was reasonable under the

21

Fourth Amendment should only be taken from the jury in rare cases.” Green, 751 F.3d at 1049

22

(reviewing case based on investigatory stop; quoting Headwaters Forest Def. v. Cty. of Humboldt,

23

240 F.3d 1185, 1205–06 (9th Cir. 2000)).

24

The “‘reasonableness’ of a particular use of force must be judged from the

25

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

26

Graham, 490 U.S. at 396. Further, “the calculus of reasonableness must embody allowance for

27

the fact that police officers are often forced to make split-second judgments in circumstances that

28

are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a
13

1

particular situation.” Id. at 396–97. Therefore, courts “are free to consider issues outside the

2

three enumerated [in Graham] when additional facts are necessary to account for the totality of

3

circumstances in a given case.” Velazquez v. City of Long Beach, 793 F.3d 1010, 1024 (9th Cir.

4

2015).

5

The Supreme Court has held that an officer can take actions that place a fleeing

6

motorist at risk of serious injury or death in order to stop the flight from endangering the lives of

7

innocent bystanders as well as officers involved in the chase. Scott, 550 U.S at 383–84. In Scott,

8

the officer terminated a high speed car chase by applying his push bumper to the rear of the

9

plaintiff’s car, causing the plaintiff’s car to leave the road and crash. Id. at 372. The Court held

10

the officer’s application of force was not excessive where the plaintiff had “swerve[d] around

11

more than a dozen other cars, cross[ed] the double-yellow line, and force[d] cars traveling in both

12

directions to their respective shoulders to avoid being hit.” Id. at 379. Additionally, the

13

plaintiff’s car “r[a]n multiple red lights,” which constituted conduct that was “[f]ar from being

14

cautious and controlled.” Id. 379–380. The Court held the plaintiff’s conduct “plac[ed] police

15

officers and innocent bystanders alike at great risk of serious injury.” Id. at 380. Even when

16

construing the facts in favor of the non-moving party, the Court held no reasonable jury could

17

conclude the plaintiff did not “pose[]a substantial and immediate risk of serious physical injury to

18

others.” Id. at 387.

19

In Plumhoff v. Rickard, the Court reaffirmed the principles articulated in Scott by

20

holding an officer acted reasonably when he fatally shot a fugitive who was “intent on resuming”

21

a chase that “pose[d] a deadly threat for others on the road.” 572 U.S. __, 134 S. Ct. 2012, 2022

22

(2014). Additionally, after the Court held qualified immunity applied to an officer who shot and

23

killed an intoxicated fugitive during a high speed car chase in Mullenix v. Luna, it noted it has

24

never found the use of deadly force in connection with a dangerous car chase to violate the Fourth

25

Amendment. ___U.S.___ ,136 S. Ct. 305, 310 (2015).

26
27

With these standards in mind, the court turns to the merits of Ms. Losee’s
excessive force claim, applying the factors set out in Graham.

28
14

1

a)

Severity of Crime at Issue

2

Here, the officers argue the crime they were responding to arose from a “reckless

3

driving and felony evading scenario.” Mot. at 25. Plaintiff argues the crime was merely driving

4

with a broken taillight, and therefore was not serious. Opp’n at 22.

5

Construing all the evidence in favor of Ms. Losee, as well as drawing reasonable

6

inferences in her favor, the court concludes a reasonable jury could conclude only that the

7

incident at the heart of Ms. Losee’s excessive force claim was Ms. Sharpe’s reckless driving after

8

she failed to stop for Officer Marshall. Ms. Sharpe’s encounter with the officers did not arise

9

merely from a broken taillight or Ms. Sharpe’s simple refusal to yield to Officer Marshall’s

10

flashing lights, but to the chase that ensued shortly after Officer Marshall responded to the scene.

11

Ms. Sharpe’s reckless driving indisputably damaged public property, including a tree, a utility

12

pole, and two police cars; it also threatened the bodily safety of five officers. This factor favors

13

the officers.

14
15

b)

Threat to Safety

The officers argue Ms. Sharpe posed a danger to the public in general and other

16

officers in particular by recklessly fleeing in her car. Mot. at 25. Ms. Losee argues Ms. Sharpe’s

17

vehicle did not pose an immediate threat to the safety of officers or others. Opp’n at 25.

18

Construing all evidence and drawing all reasonable inferences in Ms. Losee’s

19

favor, the court holds no reasonable jury could conclude Ms. Sharpe did not pose a threat to the

20

safety of the officers at least. After Officer Marshall flashed his lights at Ms. Sharpe, she refused

21

to stop, and instead gave chase in such a manner that at one point she “appeared airborne,” drove

22

on the wrong side of the road, did not slow down for speedbumps, ignored stop signs, and crashed

23

into a utility pole. UMF Nos. 9, 11, 21, 26. After responding to reports over dispatch, each

24

defendant officer arrived on the scene in time to witness Ms. Sharpe swerve into a U-turn, miss

25

hitting Officer Selland by “inches to a foot,” crash into a tree so as to break it in half, and drive in

26

the direction of multiple officers, all within 1.6 miles. UMF Nos. 31, 39, 43, 48, 72; Selland Dep.

27

16:16–22, 19:7–18. While the number of officers outnumbered Ms. Sharpe, the number

28

responding was not unreasonable under the circumstances. Ms. Sharpe’s remaining in her vehicle
15

1

and deploying it as a deadly weapon in the course of attempting an escape created a threat to the

2

officers, particularly once they exited their vehicles. No reasonable jury could conclude the

3

officers’ fear of danger to themselves and their colleagues was unreasonable.

4

While Ms. Losee points to evidence showing there were approximately ten to

5

twenty feet between Ms. Sharpe and the officers at the time each of them fired their guns, PUMF

6

No. 110; Opp’n at 25, Ms. Losee effectively asks the court to narrow each officer’s shot to the

7

exact circumstances occurring seconds before the shot was fired. This narrow focus misconstrues

8

the teaching of Graham, which requires consideration of the “totality of the circumstances.”

9

Graham, 490 U.S. at 396–97. Considering all that transpired before any shots were fired, and that

10

Ms. Sharpe continued to drive recklessly despite encountering a road blocked with patrol cars and

11

after shots were fired to stop her, the officers had reason to believe Ms. Sharpe’s reckless driving

12

posed a threat to them or others around them. This factor also favors the officers.

13

c)

14

Active Resistance

It is not disputed Ms. Sharpe engaged in active resistance. See Mot. at 26; Opp’n

15

at 20. From the point Ms. Sharpe declined to yield to Officer Marshall’s flashing lights, to the

16

time she hit Officer Quigley’s car before coming to a complete stop, Ms. Sharpe actively resisted

17

at least one order to yield before swerving around several police cars blockading her movement

18

on East Eighth Street, hitting at least two cars in the process. This factor favors the officers as

19

well.

20

d)

Least Intrusive Means

21

Ms. Losee argues at the time each officer was about to shoot at Ms. Sharpe, he had

22

time to move out of the way and should have done so. Opp’n at 7. But this argument lacks merit,

23

for officers are not required to find and choose the least intrusive alternative to remedy a situation

24

involving a reckless car chase. Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). As the Ninth

25

Circuit has observed,

26
27
28

[r]equiring officers to find and choose the least intrusive alternative
would require them to exercise superhuman judgment. In the heat
of battle with lives potentially in the balance, an officer would not
be able to rely on training and common sense to decide what would
best accomplish his mission. Instead, he would need to ascertain
16

1
2
3
4
5

the least intrusive alternative (an inherently subjective
determination) and choose that option and that option only.
Imposing such a requirement would inevitably induce tentativeness
by officers, and thus deter police from protecting the public and
themselves. It would also entangle the courts in endless secondguessing of police decisions made under stress and subject to the
exigencies of the moment. Officers thus need not avail themselves
of the least intrusive means of responding to an exigent situation;
they need only act within that range of conduct we identify as
reasonable.

6
7

Id. Here, it was entirely reasonable for the officers to conclude Ms. Sharpe endangered them and

8

their colleagues with her conduct. As the Supreme Court has held, “police officers are justified in

9

firing at a suspect to end a severe threat to public safety, [and] the officers need not stop shooting

10

until the threat has ended.” Plumhoff, 134 S.Ct at 2022.
e)

11

Summary

12

Here, the undisputed material facts demonstrate the officers were reasonable in

13

their belief that Ms. Sharpe’s reckless driving posed a threat to them, each other, or the public.

14

As a matter of law, no reasonable jury could conclude the officers acted unreasonably.

15

Summary judgment is GRANTED as to Ms. Losee’s Fourth Amendment claim.

16

Because the court concludes no violation arose from the officers’ force used to terminate the car

17

chase, the officers’ motion for summary judgment on grounds of qualified immunity is

18

GRANTED without further analysis. Hopkins v. Bonvicino, 573 F.3d 752, 762 (9th Cir. 2009)

19

(“If the alleged conduct did not violate a constitutional right, then the Defendants are entitled to

20

immunity and the claim must be dismissed.”).

21

2.

Substantive Due Process

22

The officers contend the evidence in the record does not support a jury finding for

23

Ms. Losee on her substantive due process claim of interference with familial relationship. Mot. at

24

33. Ms. Losee contends the facts could support a jury’s finding a substantive due process

25

violation. Opp’n at 29.

26
27

It is well established that a parent has a “fundamental liberty interest” in “the
companionship and society of his or her child” and that “[t]he state’s interference with that liberty

28
17

1

interest without due process of law is remediable under [42 U.S.C. §] 1983.” Kelson v. City of

2

Springfield, 767 F.2d 651, 654–55 (9th Cir. 1985).

3

To establish a constitutional substance due process violation as alleged here, the

4

officers’ conduct must “shock[] the conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir.

5

2008). In determining whether excessive force shocks the conscience, the first inquiry is

6

“whether the circumstances are such that actual deliberation [by the officer] is practical.” Id.

7

(citing Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 372 (9th Cir. 1998) (internal

8

quotation marks omitted)).

9

Where actual deliberation is practical, an officer’s “deliberate indifference” may

10

suffice to shock the conscience. Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010).

11

The deliberate indifference standard requires that “a person . . . ‘consciously disregar[d]’ a

12

substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 839 (1994). On the other

13

hand, where a law enforcement officer makes a snap judgment in an escalating situation, “h[er]

14

conduct may only be found to shock the conscience if [s]he acts with a purpose to harm unrelated

15

to legitimate law enforcement objectives.” Wilkinson, 610 F.3d at 554. Under the purpose or

16

intent to harm standard, the court looks at the totality of the circumstances to assess whether a

17

jury could reasonably infer any of the officers were acting for purposes other than legitimate law

18

enforcement. Porter, 546 F.3d at 1141.

19

Porter is illustrative here. In that case, an officer received a call regarding a

20

suspicious car in a lightly populated part of town at two in the morning. Id. at 1133. When an

21

officer arrived at the scene and found the car, he initially found it abandoned. Id. While the

22

officer was investigating the vehicle from inside his police car, the decedent sat up, grabbed the

23

steering wheel, and slowly steered his car around the officer’s patrol vehicle. Id. at 1134. After

24

decedent failed to adhere to the officer’s several orders to stop, the officer got out of his car and

25

began walking alongside the decedent’s car, again ordering him to stop. Id. By this time, another

26

officer had arrived, and both officers ordered the decedent to get out of the car. Id. After the

27

officers used pepper spray in an effort to draw the decedent from his car, the decedent again

28

grabbed the steering wheel, “revved” the engine, and started to drive toward one of the officers.
18

1

Id. at 1135. The officer who was not in the way of the decedent’s car saw this and fired his

2

weapon until the car stopped. Later it was determined the decedent had died. Id. at 1132. The

3

entire incident occurred within a span of five minutes. Id. at 1139. In his deposition, the officer

4

who stood in the way of the decedent’s car said he did not feel any danger to himself. Id. at 1135.

5

Additionally, the record indicated the decedent was not driving very fast. Id. at 1137 n.3. At his

6

deposition, in fact, the officer in the way of decedent’s car said the car was driving no more than

7

five to ten miles per hour. Id.

8
9

The decedent’s family brought suit against the officer who fired the gun,
contending he violated their Fourteenth Amendment due process right to associate with their son.

10

Id. at 1136. The district court denied the shooting officer’s motion for summary judgment,

11

holding the deliberate indifference standard applied and sufficient disputed material evidence

12

warranted a jury trial. Id. at 1133. The Ninth Circuit concluded the “purpose to harm standard”

13

applied because of the “evolving set of circumstances that took place over a short period

14

necessitating ‘fast action.’” Id. at 1139. Because the entire altercation was only five minutes

15

long, the court concluded the defendant officer faced a situation that was “obviously fast paced”

16

and “much shorter in duration than the typical car chase” reviewed in prior cases. Id. (discussing

17

Cty. of Sacramento v. Lewis, 523 U.S. 833, 853 (1998) and Bingue v. Prunchak, 512 F.3d 1169,

18

1176 (9th Cir. 2008)).

19

The five minute altercation, although literally compatible with deliberation,

20

presented a situation in “constant flux, with much yelling, confusion, and a driver who was

21

refusing to exit or stop his car.” Id. at 1140. The situation was thereby “quickly evolving and

22

escalating, prompting repeated split second decisions.” Id. at 1139. The Circuit found “purpose

23

to harm” was the correct standard to apply in Porter. Id. The case was remanded to determine

24

whether the shooting officer’s conduct satisfied the correct standard. Id. at 1142.

25

Here, in construing the evidence and drawing all reasonable inferences in

26

Ms. Losee’s favor, the court holds a reasonable jury could only conclude actual deliberation was

27

not practicable under the circumstances of this case. Even assuming Ms. Sharpe was going no

28

more than fifteen miles an hour for part of the chase when driving on Vista Verde Avenue, the
19

1

officers experienced a Porter-like “fast paced” situation in which one or more of them witnessed

2

the Honda airborne, the Honda crashing into a utility pole, the same Honda crashing into a tree

3

and breaking it in half, and then crashing into more than one patrol car, with gunshots at intervals.

4

All of this occurring within a short time span would not have realistically given any officer time

5

to deliberate whether to use less intrusive or violent means to abate the threat Ms. Sharpe posed.

6

As in Porter, the situation facing the officers necessitated “fast action.” Id. at 1139. The purpose

7

to harm standard applies here.

8

Because the purpose to harm standard applies, the court assesses whether under the

9

totality of the circumstances a jury could reasonably find any one of the officers was acting for

10

purposes other than legitimate law enforcement. Given the facts of this case, the court need not

11

analyze the officers’ actions individually, one by one; at the time each officer shot, Ms. Sharpe

12

posed a danger to at least one of them, and at times to all of them and their colleagues. In light of

13

the circumstances, no reasonable jury could conclude any officers’ intent in shooting at

14

Ms. Sharpe was to “teach [Ms. Sharpe] a lesson” or to “get even.” Id. at 1140–41.

15
16
17
18

The officers’ motion is GRANTED as to Ms. Losee’s substantive due process
claim.
B.

State Claims
The officers contend Ms. Losee also cannot withstand summary judgment on her

19

claims for state law battery, negligence, or the Bane Act. Mot. at 37. Ms. Losee contends she has

20

the right to a jury’s determination of these claims because she has established her case is triable

21

on her excessive force claim. Opp’n at 31.

22

1.

23

To establish a claim for battery under California law, a plaintiff must show

Battery Standards

24

(1) defendant intentionally did an act resulting in a harmful or offensive contact with the

25

plaintiff's person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive

26

contact caused injury, damage, loss, or harm to plaintiff. Piedra v. Dugan, 123 Cal. App. 4th

27

1483, 1495 (2004). As with a Fourth Amendment excessive force claim, a prima facie battery is

28
20

1

not established unless and until plaintiff proves unreasonable force was used. Edson v. City of

2

Anaheim, 63 Cal. App. 4th 1269, 1273 (1998).

3

2.

4

As to negligence, a plaintiff must show that [the] defendant had a duty to use due

Negligence Standards

5

care, that he breached that duty, and that the breach was the proximate or legal cause of the

6

resulting injury. Hayes v. Cty. of San Diego, 57 Cal. 4th 622, 629 (2013). Duty is a critical

7

element of negligence liability. Id. California courts have long recognized that peace officers

8

have a duty to act reasonably when using deadly force. Id.

9

To determine reasonableness, state negligence law, like the Fourth Amendment

10

reasonableness test, requires a consideration of the totality of the circumstances surrounding any

11

use of deadly force. Id. The totality of the circumstances, including the pre-shooting conduct of

12

the officers, might persuade a jury to find the shooting negligent, because such conduct might

13

show that an otherwise apparently reasonable use of deadly force was in fact unreasonable. Id.

14

Where, as here, plaintiff has not alleged a separate injury from the pre-shooting conduct of law

15

enforcement personnel, the pre-shooting conduct is relevant only to the extent it shows, as part of

16

the totality of circumstances, that the shooting itself was negligent. Id. at 631.

17

3.

18

The Bane Act prohibits any person from interfering by “threat[s], intimidation or

Bane Act Standards

19

coercion . . . with the exercise or enjoyment by any individual . . . of rights secured by the

20

Constitution . . . .” Cal. Civ. Code § 52.1(a). Section 52.1 claims differ from § 1983 claims in

21

that section 52.1 also requires independent evidence of threats, intimidation, or coercion. See

22

Malott v. Placer Cty., No. 14–1040, 2016 WL 538462, at *7 (E.D. Cal. Feb. 11, 2016). In

23

evaluating the threatening or coercive conduct, the court must consider whether “a reasonable

24

person, standing in the shoes of the plaintiff, [would] have been intimidated by the actions of the

25

defendant and have perceived a threat of violence.” Winarto v. Toshiba Am. Elecs. Components,

26

Inc., 274 F.3d 1276, 1289–90 (9th Cir. 2001). A plaintiff cannot attempt to satisfy two distinct

27

elements by establishing only one, e.g., an unlawful or unconstitutional act. Malott, 2016 WL

28

538462, at *7.
21

1

4.

2

As in the case of the court’s Fourth Amendment reasonableness analysis,

Analysis

3

construing the evidence in a light most favorable to Ms. Losee, a reasonable jury could not

4

conclude the officers’ acts were unreasonable. As explained above, Ms. Sharpe’s reckless

5

driving, which included at least two crashes within a 1.6 mile distance, was a threat to the safety

6

of officers or others. The officers’ summary judgment motion on Ms. Losee’s battery claim is

7

GRANTED. In the same vein, the evidence does not show the officers breached their duty of

8

reasonableness. The officers’ motion on Ms. Losee’s negligence claim is GRANTED. Finally,

9

for the same reasons, and also considering the record does not show “independent evidence of

10

threats, intimidation, or coercion,” the officers’ motion on Ms. Losee’s Bane Act claim is

11

GRANTED. Malott, 2016 WL 538462, at *7. In summary, the officers’ motion is GRANTED

12

on all of Ms. Losee’s state law claims.

13

V.

14

CONCLUSION
For the foregoing reasons, all DOE defendants are DISMISSED. The following

15

claims also are DISMISSED under Federal Rule of Civil Procedure 41(a)(2): (1) unreasonable

16

search and seizure—detention and arrest; (3) denial of medical care; (5) municipal liability for

17

approving the acts of defendant officers; (6) municipal liability for failure to train; (7) municipal

18

liability for an unconstitutional custom or policy; and (8) false arrest or false imprisonment in

19

violation of California Government Code section 815.2(a)

20

The officers’ motion for summary judgment is GRANTED as to the following

21

claims: (2) unreasonable search and seizure—excessive force in violation of the Fourth

22

Amendment; (4) interference with familial relationship; (9) state law battery (10) state law

23

negligence; and (11) violation of the Bane Act.

24

Given that all claims are thus resolved, this case is CLOSED.

25

This order resolves ECF No. 17.

26

IT IS SO ORDERED.

27

DATED: July 29, 2016.

28
22

UNITED STATES DISTRICT JUDGE