Rivera et al v. Cater et al

Filing 69

MEMORANDUM and and ORDER signed by Senior Judge William B. Shubb on 10/11/2019 GRANTING IN PART AND DENYING IN PART 44 Defendants' Motion for Summary Judgment. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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SIERRA RIVERA, individually and
as successor in interest to
JESSE ATTAWAY, Deceased; BOBBI
ATTAWAY, individually and as
successor in interest to JESSE
ATTAWAY, Deceased; JIM ATTAWAY,
individually,

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MEMORANDUM AND ORDER RE:
MOTION FOR SUMMARY JUDGMENT

Plaintiffs,

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No. 2:18-cv-00056 WBS EFB

v.
ANDREW CATER; BAO MAI; SCOTT
JONES; and COUNTY OF SACRAMENTO,
Defendants.

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----oo0oo---Plaintiffs Sierra Rivera and Bobbi Attaway, the
daughters of the late Jesse Attaway (“Attaway” or “decedent”),
along with decedent’s father, Jim Attaway, bring this action
individually and on behalf of the decedent alleging that
Sheriff’s Deputies Andrew Cater (“Cater”) and Bao Mai (“Mai”),
Sheriff of Sacramento County Scott Jones (“Jones”), and the

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County of Sacramento (“the County”) violated Attaway’s civil

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rights under state and federal law following his death on

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September 23, 2016.

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Plaintiffs Sierra Rivera and Bobbi Attaway, as

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Attaway’s successors in interest, allege violation of Attaway’s

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Fourth Amendment right to be free from unreasonable seizure and

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excessive force pursuant to 42 U.S.C. § 1983; violation of

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Attaway’s rights under Tom Bane Civil Rights Act, Cal. Civ. Code

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§ 52.1; claims for negligence, wrongful death, assault, and

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battery under California common law; and municipal liability.

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(First Am. Compl. (“FAC”) (Docket No. 22).)

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individual capacities, plaintiffs Sierra Rivera, Bobbi Attaway,

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and Jim Attaway allege violation of their Fourteenth Amendment

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right of substantive due process pursuant to 42 U.S.C. § 1983 for

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denial of familial associations with Attaway.

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successfully obtained dismissal on plaintiffs’ claims for

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negligence against the County and for municipal liability against

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Jones and the County.

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Then, in their

(Id.)

Defendants

(Docket No. 30.)

Defendants now move for summary judgment or, in the

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alternative, partial summary judgment on plaintiffs’ remaining

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claims.

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movant shows that there is no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.”

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

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view the evidence in the light most favorable to the non-moving

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party “so long as their version of the facts is not blatantly

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contradicted by the video evidence.”

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Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) (citing Scott v.

(Docket 44-1.)

Summary judgment is proper “if the

In deciding the motion, the court must

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Vos v. City of Newport

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Harris, 550 U.S. 372, 378-79 (2007)).

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I.

Facts

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Viewed in the light most favorable to the plaintiffs,
the evidence shows the pertinent facts as follows:

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Cater and Mai fatally shot Attaway following reports of

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a suspected burglary shortly after 5:00 a.m. on September 23,

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2016.

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Fair Oaks, Sacramento unannounced and uninvited.

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The homeowner discovered Attaway standing in the front room,

According to initial reports, Attaway entered a home in
(FAC ¶ 17.)

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holding a carton of milk apparently taken from the refrigerator.

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(Id.)

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homeowner and expressed concerns that the police were after him.

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(Id.)

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the home without further incident or harm to the home’s

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occupants.

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through a partially open sliding glass door.

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confronted by the home’s residents, Attaway backed away from the

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door, again begging not to be hurt.

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causing any harm to the people or property.

Attaway allegedly appeared startled when confronted by the

After begging the homeowner not to hurt him, Attaway left

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(Id.)

Attaway then attempted to enter another home

(Id.)

(FAC ¶ 18.)

When

Attaway left without
(Id.)

Attaway’s behavior prompted multiple 911 calls, and

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Deputies Cater and Mai responded to 911 dispatch’s request for

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assistance.

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(Id. ¶ 19.)

A video from an in car camera mounted on the dashboard

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of Deputy Cater’s vehicle (“ICC Video”, Docket No. 48, Ex. 3)

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vividly captures what transpired once the deputies encountered

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Attaway.

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thousand words, this video speaks volumes.

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front of the deputies’ patrol car in such a position that it

If it fairly can be said that a picture is worth a

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It was mounted at the

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shows what happened from their perspective from beginning to end.

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While the parties disagree in their characterization of the

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movements Attaway made and what intention can be inferred from

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them in the seconds that followed, the videotape indisputably

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shows what the deputies saw, heard and did at the crucial time

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relative to this motion.

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deciding the motion.

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The court relies heavily upon it in

As the deputies’ patrol vehicle approached Attaway,
Deputy Mai yelled to Attaway, “Hey, come here.

Come here.”

(ICC

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Video 5:14:32.)

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from the deputies.

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appeared to touch his face (ICC Video 5:14:39) and Cater warned

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Mai that he’s “got something in his hands.”

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The deputies exited their vehicle (ICC Video 5:14:41), while

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Attaway continued to walk away, turning his body sideways with

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his left shoulder pointing toward them.

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5:14:45.)

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camera’s) view.

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Attaway ignored these commands and walked away
(ICC Video 5:14:32-5:14:38.)

Attaway

(ICC Video 5:14:40.)

(ICC Video 5:14:43-

His right hand was out of the deputies’ (and the
(Id.)

The deputies again commanded Attaway to put his hands

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up (ICC Video 5:14:43-5:14:45), and Attaway failed to comply.

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Instead, Attaway raised his arms, clasped his hands together in

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front of him, cocked his head between his arms, and screamed

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“Ahhh!”.

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me!”

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get his hands up.

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his hands, and the deputies fired at least fourteen shots at him.

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(ICC Video, 5:14:46-5:14:50.)

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rolled, and then raised up onto his knees.

(ICC Video 5:14:46-5:14:49.)

Cater yelled “Coming at

(ICC Video 5:14:46-5:14:47) and again commanded Attaway to
(ICC Video 5:14:47.)

Attaway did not raise

Attaway fell to the ground,

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(ICC Video 5:14:59.)

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Attaway began to raise his arms again (ICC Video 5:15:02) and

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Cater fired the last shots.

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(ICC Video 5:15:02.)

Attaway was struck four times: fatally in the head, and

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in the abdomen, left flank, and left foot.

(Pls.’ Separate

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Statement of Disputed Facts (“Pls.’ Disputed Facts”) ¶ 4, 10, 59-

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61 (Docket No. 47).)

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wallet approximately four feet away from his right foot after the

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shooting.

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II.

The deputies claim to have found Attaway’s

(FAC ¶ 26.)

Federal Claims

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Title 42 U.S.C. § 1983 provides that “[e]very person

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who, under color of [state law] subjects, or causes to be

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subjected, any citizen of the United States ... to the

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deprivation of any rights, privileges, or immunities secured by

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the Constitution and laws, shall be liable to the party injured.”

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However, public officials sued under § 1983 may be immune from

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suit under the doctrine of qualified immunity.

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Forsyth, 472 U.S. 511, 526 (1985).

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See Mitchell v.

Faced with a claim of qualified immunity, the court may

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first address the question of whether a constitutional violation

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has been shown and then determine whether defendants are entitled

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to immunity, or it may address the question of qualified immunity

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without first deciding whether a constitutional violation has

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been proven.

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Given the facts and circumstances of this case, this court elects

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to “resolv[e] immunity questions at the earliest possible stage

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in litigation” and determine whether qualified immunity applies

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first.

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227 (1991) (per curiam)).

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

See id. at 232 (citing Hunter v. Bryant, 502 U.S. 224,

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A.

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Qualified Immunity
In a suit for damages under § 1983, public officers

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charged with violation of a federal statutory or constitutional

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right are entitled to qualified immunity unless the unlawfulness

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of their conduct was clearly established at the time of the

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alleged conduct.

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589 (2018) (citing Reichle v. Howards, 566 U.S. 658, 664 (2012)).

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Qualified immunity acts as “an immunity from suit rather than a

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mere defense to liability.”

District of Columbia v. Wesby, 138 S. Ct. 577,

Mitchell, supra.

It “provides ample

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protection to all but the plainly incompetent or those who

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knowingly violate the law.”

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(1986).

Malley v. Briggs, 475 U.S. 335, 341

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A right is clearly established for purposes of

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determining qualified immunity if the “contours of the right were

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sufficiently clear that a reasonable official would understand

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that what he is doing violates that right.”

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U.S. 194, 202 (2001), overruled on other grounds by Pearson, 555

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U.S. 223 (2009).

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mistakenly, believed that his conduct did not violate a clearly

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established constitutional right, he will be entitled to

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qualified immunity.

Saucier v. Katz, 533

If the officer could have reasonably, but

Id. at 205-06.

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As in any qualified immunity analysis, the court must

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first identify the law which must be clearly established before

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the defendant may be deprived of qualified immunity.

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plaintiff bears the burden of showing that the rights allegedly

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violated were “clearly established.”

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Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (citing LSO, Ltd. v.

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Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000)).
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The

Shafer v. Cty. of Santa

While “a case

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directly on point” is not required “for a right to be clearly

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established, existing precedent must have placed the statutory or

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constitutional question beyond debate.”

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Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548,

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551 (2017)).

Kisela v. Hughes, 138 S.

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The Supreme Court has “repeatedly told courts . . . not

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to define clearly established law at a high level of generality.”

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City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775-76

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(2015) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

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Instead, the court must undertake this inquiry “in light of the

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specific context of the case, not as a broad general

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proposition.”

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(citing Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

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particularly important in excessive force cases because “[i]t is

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sometimes difficult for an officer to determine how the relevant

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legal doctrine, here excessive force, will apply to the factual

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situation the officer confronts.”

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at 205.)

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Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
This is

Id. (citing Saucier, 533 U.S.

With the teaching of the above cases in mind, the court

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undertakes the often difficult task of defining the law which

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plaintiff must show was clearly established in order to overcome

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qualified immunity in this case.

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the relevant question to be addressed under the circumstances of

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this case is whether the law was clearly established such that

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reasonable officers on September 23, 2016 would have known that

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the use of deadly force is unreasonable where an unarmed suspect

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acts in a threatening, aggressive, and erratic manner and causes

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the officers to fear for their lives.

It appears to the court that

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Fourth Amendment

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Plaintiffs’ first claim for relief is for violation of

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Attaway’s Fourth Amendment right to be free from excessive force

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brought under 42 U.S.C. § 1983.

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Amendment rights are traditionally regarded as “personal rights

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which . . . may not be vicariously asserted,” Alderman v. United

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States, 394 U.S. 165, 174 (1969), in § 1983 actions, “the

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survivors of an individual killed as a result of an officer’s

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excessive use of force may assert a Fourth Amendment claim on

(FAC ¶ 42.)

Although Fourth

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that individual’s behalf if the relevant state’s law authorizes a

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survival action.”

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F.3d 365, 369 (9th Cir. 1998) (citing 42 U.S.C. § 1988(a)).

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Moreland v. Las Vegas Metro. Police Dep’t, 159

In California, survivorship actions are governed by

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California Code of Civil Procedure § 377.

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survivors must meet the statutory requirements of § 377.30.

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Hayes v. Cty. of San Diego, 736 F.3d 1223, 1229 (9th Cir. 2013).

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Attaway’s daughters met these statutory requirements by filing

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the appropriate declaration and certified copy of Attaway’s death

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certificate.

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they have standing, as his successors in interest, to bring a

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claim under the Fourth Amendment on Attaway’s behalf.

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44.)

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claim, they have failed to carry their burden of showing that the

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right allegedly violated was “clearly established.”

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To have standing,

(See Compl. at 16-18 (Docket No. 1).)

Accordingly,

(FAC ¶ 42,

But while they have met the requirements to bring the

Plaintiffs have been unable to cite, and the court has

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been unable to identify, any judicial precedent which would place

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a reasonable officer on notice that conduct similar to the

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circumstances here violated the Fourth Amendment.
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The cases

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plaintiffs offer both in their brief (Opp. to Defs.’ Mot. for

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Summ. J. at 22 (Docket No. 45)) and at the summary judgment

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hearing were decided on facts that are distinguishable from the

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ones presented by this case.1

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cite general excessive force principles.

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inherently incapable of giving fair and clear warning to

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officers, [] they do not by themselves create clearly established

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law outside an obvious case.”

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F.3d 1010, 1015 (9th Cir. 2017) (citing White, 137 S. Ct. at 552

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Plaintiffs do little more than
While these are “not

S.B. v. Cty. of San Diego, 864

(internal citations and quotations omitted)).

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Plaintiffs argue that there are disputes of material

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fact as to what happened after the deputies found Attaway.

(Opp.

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to Defs.’ Mot. for Summ. J. at 22.)

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Attaway’s movements differently and puts a different spin on the

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deputies’ response.

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definitively settled upon watching the ICC Video.

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mere existence of video footage of the incident does not

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foreclose a genuine factual dispute as to the reasonable

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inferences that can be drawn from that footage,” the court can

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discount a party’s version of the facts if it is “blatantly

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contradicted by the video evidence.”

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(citing Scott, 550 U.S. at 378-80).

Each side characterizes

But many, if not all, of these disputes are
While “[t]he

Vos, 892 F.3d at 1028
Just as in Scott v. Harris,

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See, e.g., Longoria v. Pinal Cty., 873 F.3d 699 (9th
Cir. 2017) (denying qualified immunity when surrendering unarmed
suspect, surrounded by law enforcement, was shot and killed);
Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011) (denying
qualified immunity when officer confused gun with taser, killing
the suspect); Adams v. Spears, 473 F.3d 989 (9th Cir. 2007)
(denying qualified immunity after suspect rammed car into patrol
car and officer shot and killed suspect after suspect exited his
vehicle).
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the video here can “speak for itself.”

550 U.S. at 378 n.5.

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Plaintiffs, for example, dispute the claim that Attaway

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assumed a “shooter’s stance” or that he appeared to be pointing a

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gun at the deputies.

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there was sufficient time between the first volley of shots and

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the second volley for the deputies to contemplate.

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Defs.’ Mot. for Summ. J. at 24-25.)

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not appear to pose a threat to the deputies after he was on the

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ground.

(Pls.’ Disputed Facts ¶ 35.)

(Id. at 25.)

They argue

(Opp. to

They argue that Attaway did

The video, however, dispels these

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arguments.

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together in front of him, and head cocked between his arms in a

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manner which would cause any reasonable person, whether a police

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officer or not, to reasonably fear they were about to be shot.

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(ICC Video 5:14:46-49.)

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(ICC Video 5:14:46-5:14:47) after Attaway screams (ICC Video

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5:14:46), and it captures what was indisputably a shooting in

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self-defense.

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It shows Attaway’s arms extended, hands clasped

It records Cater yelling “Coming at me!”

After Attaway falls to the ground, the video shows him

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attempting to raise his hands again while on his knees.

(ICC

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Video 5:14:59-5:15:02.)

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what happened, it may be easy to argue this could have been an

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attempt to surrender or an innocent reaction to being shot, but

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when you look at the video and see what the deputies saw at the

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time, that is clearly not how it appears.

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Attaway is attempting to resume his shooting posture and that the

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deputies were responding to a perceived threat to their lives.

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(ICC Video 5:15:02.)

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these officers on notice that the use of deadly force was

Just reading a verbal description of

It appears that

There was no clearly established law to put

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unreasonable under these circumstances.

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Accordingly, defendants are entitled to qualified
immunity on plaintiffs’ Fourth Amendment claim.

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2.

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Fourteenth Amendment

Attaway’s daughters and father allege Attaway’s

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“untimely and wrongful death” deprived them, in their individual

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capacities, of their liberty interest in familial associations

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under the Fourteenth Amendment.

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Circuit, parents and children have a Fourteenth Amendment liberty

(FAC ¶ 70.)

In the Ninth

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interest in “the companionship and society” of each other.

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e.g., Hayes, 736 F.3d at 1229-30; Moreland, 159 F.3d at 371;

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Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991).

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Only official conduct that “‘shocks the conscience’ in depriving

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[a child] of that interest is cognizable as a violation of due

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process.”

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2010).

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showing that the officials acted either with (1) deliberate

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indifference or (2) a purpose to harm for reasons unrelated to

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legitimate law enforcement objectives.

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F.3d 1131, 1137 (9th Cir. 2008).

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objectives include, among others, arrest, self-protection, and

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protection of the public.”

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1204, 1211 (9th Cir. 2018).

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See,

Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir.

The “shocks the conscience” standard may be met by

Porter v. Osborn, 546

“Legitimate law enforcement

Foster v. City of Indio, 908 F.3d

The “purpose to harm” standard applies when there is no

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time for deliberation.

Cty. of Sacramento v. Lewis, 523 U.S.

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833, 853-54 (1998).

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“purpose to harm” standard when officers used deadly force in

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self-defense, Hayes, 736 F.3d at 1230-31, or when the “rapidly

The Ninth Circuit has previously applied the

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escalating nature” of the confrontation eliminated time for

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adequate deliberation.

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to harm standard applied to five-minute altercation that ended in

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decedent’s shooting).

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court concludes that defendants did not have time to deliberate

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during the twelve second confrontation and the purpose to harm

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standard applies.

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Porter, 546 F.3d at 1137 (finding purpose

Here, upon examination of the video, the

Plaintiffs bear the burden of showing the officer acted
with a purpose to harm.

Moreland, 159 F.3d at 372.

To carry

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that burden, plaintiffs must submit non-speculative evidence that

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demonstrates an officer’s improper motive.

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F.3d 895, 907 (9th Cir. 2001).

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evidence to show the deputies’ actions were inconsistent with

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“any purpose other than self-defense.”

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1231.

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officers on notice that their conduct was violative of the Fourth

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Amendment, there was even less law to even suggest that their

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conduct violated the Fourteenth Amendment right to familial

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association.

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immunity on plaintiffs’ Fourteenth Amendment claim.

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III. State Law Claims

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Jeffers v. Gomez, 267

Here, plaintiffs offer no

See Hayes, 736 F.3d at

Just as there was no clearly established law to put the

Therefore, the defendants are entitled to qualified

Plaintiffs Sierra Rivera and Bobbi Attaway bring the

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state law claims discussed below on Attaway’s behalf as his

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successors in interest.

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standing as Attaway’s children to pursue a wrongful death claim

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based on the underlying torts under California Code of Civil

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Procedure § 377.60(a).

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App. 4th 1256, 1263 (2006) (“The elements of the cause of action

(See FAC ¶¶ 46, 51, 57.)

They also have

See Quiroz v. Seventh Ave. Ctr., 140 Cal.

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for wrongful death are the tort (negligence or other wrongful

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act), the resulting death, and the damages, consisting of the

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pecuniary loss suffered by the heirs.”).

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It does not follow from the court’s determination of

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qualified immunity on plaintiffs’ federal claims that plaintiffs

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may not proceed to trial on these state law claims.

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contrasted with § 1983 law, “California law is clear that the

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doctrine of qualified governmental immunity is a federal doctrine

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that does not extend to state tort claims against government

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employees.”

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As

2009) (internal quotations and citations omitted).

12

Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir.

Although some of the questions the court has addressed

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in the qualified immunity analysis may seem similar, or even

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superficially identical, to the questions the jury must address

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on the issues of liability on plaintiffs’ state law claims, they

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are not the same.

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determine the “objective legal reasonableness” of police conduct

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in the qualified immunity context (See Ziglar v. Abbasi, 137 S.

19

Ct. 1843, 1867 (2017)), in the context of determining liability

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on a claim of excessive force under state or federal law, “the

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reasonableness of force used is ordinarily a question of fact for

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the jury.”

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2005) (quoting Liston v. County of Riverside, 120 F.3d 965, 976

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n.10 (9th Cir. 1997)).

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Thus, while it is incumbent upon the court to

Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.

Accordingly, the court proceeds to examine whether

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plaintiffs are entitled to summary judgment on the merits of each

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of their state law claims.

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A.

California Common Law Claims
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1

1.

2

Negligence / Wrongful Death

Under California law, public employees “are statutorily

3

liable to the same extent as private persons for injuries caused

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by their acts or omissions, subject to the same defenses

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available to private persons.”

6

II”), 305 P.3d 252, 255 (Cal. 2013) (citing Cal. Gov. Code §

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820).

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omission of its employees acting within the scope of their

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employment.

Hayes v. Cty of San Diego (“Hayes

A public entity is liable for injuries caused by an act or

Cal. Gov. Code § 815.2(a).

“[I]n order to prove

10

facts sufficient to support a finding of negligence, a plaintiff

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must show that [the] defendant had a duty to use due care, that

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he breached that duty, and that the breach was the proximate or

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legal cause of the resulting injury.”

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(citations omitted) (alterations original).

15

Hayes II, 305 P.3d at 255

“In California, police officers ‘have a duty to act

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reasonably when using deadly force.’”

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(quoting Hayes II, 305 P.3d at 256).

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actions, courts are to apply tort law’s “reasonable care”

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standard, which “is broader than federal Fourth Amendment law.”

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C.V. v. City of Anaheim, 823 F.3d 1252, 1257 n.6 (9th Cir. 2016).

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Accordingly, under California law, “tactical conduct and

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decisions preceding the use of deadly force” may “give[ ] rise to

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negligence liability” if they “show, as part of the totality of

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circumstances, that the use of deadly force was

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unreasonable.”

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Vos, 892 F.3d at 1037
In California state tort

Hayes II, 305 P.3d at 263 (emphasis added).

The ICC Video reveals several decisions on the part of

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the deputies that could allow a jury to find they acted

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negligently, even before they fired the first shot.
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For example,

1

the deputies failed to identify themselves as law enforcement and

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failed to warn Attaway that they would use deadly force before

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shooting. (See generally ICC Video.)

4

or order to halt prior to deploying forceful measures against a

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suspect may suggest that the use of force was unreasonable.”

6

Nehad v. Browder, 929 F.3d 1125, 1137 (9th Cir. 2019) (citing

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Deorle v. Rutherford, 272 F.3d 1272, 1283-84 (9th Cir. 2001)).

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9

“[T]he absence of a warning

The deputies fired a total of eighteen shots.

It will

be for the jury to determine whether under California law the

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number of shots rendered the use of force unreasonable.

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several shots were fired after Attaway was on the ground.

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the suspect is on the ground and appears wounded, he may no

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longer pose a threat; a reasonable officer would reassess the

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situation rather than continue shooting.”

15

Orange, 874 F.3d 1072, 1076 (9th Cir. 2017).

16

own admission, Attaway “was not a threat to us anymore” when he

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fell to the ground.

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3, Ex. D).)

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Further,
“If

Zion v. County of
By defendant Mai’s

(Dep. of Bao Mai at 27:22-23 (Docket No. 44-

Under the broad negligence inquiry adopted by

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California law, a reasonable jury could find defendants were

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negligent and the County could be vicariously liable for their

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negligence under Cal. Gov. Code § 815.2(a).

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court finds the facts present a genuine dispute of material fact

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sufficient to deny summary judgment on plaintiffs’ negligence

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claim.

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2.

Accordingly, the

Assault & Battery / Wrongful Death

Under California law, a claim for battery by a peace
officer requires the plaintiff to show: “(1) the defendant
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1

intentionally touched the plaintiff, (2) the defendant used

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unreasonable force to arrest, prevent the escape of, or overcome

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the resistance of the plaintiff, (3) the plaintiff did not

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consent to the use of that force, (4) the plaintiff was harmed,

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and (5) the defendant’s use of unreasonable force was a

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substantial factor in causing the plaintiff’s harm.”

7

v. Torres, No. 2:17-cv-02072-KJM-AC, 2019 WL 3714576, at *11

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(E.D. Cal. Aug. 7, 2019) (citations omitted).

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Buckhalter

A plaintiff bringing a battery claim against a law

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enforcement official has the burden of proving the officer used

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unreasonable force.

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(9th Cir. 2010) (citing Edson v. City of Anaheim, 63 Cal. App.

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4th 1269, 1272 (1998)).

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assess the “totality of the circumstances surrounding any use of

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deadly force,” including the actions preceding the application of

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force.

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above, the court finds that a reasonable jury could find for

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plaintiffs.

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summary judgment on this claim.

Bowoto v. Chevron Corp., 621 F.3d 1116, 1129

Again, California law demands the court

See Hayes II, 305 P.3d at 263.

For the reasons set forth

Accordingly, the court denies defendants’ motion for

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B.

Tom Bane Civil Rights Act

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The Tom Bane Civil Rights Act authorizes civil actions

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for damages and injunctive relief by individuals whose rights

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under federal or state law have been interfered with by “threats,

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intimidation or coercion.”

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plaintiffs do not need to show “threat, intimidation or coercion”

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independent from the rights violation to prevail in an excessive

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force case, they must show a “specific intent to violate the

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arrestee’s rights to freedom from unreasonable seizure.”

Cal. Civ. Code § 52.1(a).

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While

Reese

1

v. Cty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018)

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(citing Cornell v. City & Cty. Of San Francisco, 17 Cal. App. 5th

3

766, 799, 801 (2017)).2

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created a genuine issue of material fact as to whether Attaway’s

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rights were violated under state law.

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whether the deputies had the specific intent to violate Attaway’s

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rights.

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9

As discussed above, plaintiffs have

The question remaining is

Whether the deputies acted with specific intent
question is a question of fact.

Cornell, 17 Cal. App. 5th at

10

804.

Under this Act, plaintiffs must show the defendants

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“intended not only the force, but its unreasonableness.”

12

888 F.3d at 1045 (citing United States v. Reese, 2 F.3d 870, 885

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(9th Cir. 1993)).

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“[r]eckless disregard of the ‘right at issue’ is all that [is]

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necessary.”

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Reese,

However, California courts have found

Cornell, 17 Cal. App. 5th at 804.

Viewing the facts in the light most favorable to the

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plaintiffs, a reasonable jury could find that defendants

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“intended not only the force, but its unreasonableness, its

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character as more than necessary under the circumstances” under

20
“The Bane Act’s requirement that interference with
rights must be accomplished by threats, intimidation, or coercion
has been the source of much debate and confusion.” Cornell, 17
Cal. App. 5th at 801. In Chaudhry, the Ninth Circuit found the
Bane Act “does not require proof of discriminatory intent” and
“that a successful claim for excessive force under the Fourth
Amendment provides the basis for a successful claim under §
52.1.” Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th
Cir. 2014). But in Cornell, the California Court of Appeal
clarified the Bane Act’s requirements, finding specific intent
was required to make out a claim. The Ninth Circuit adopted the
Cornell court’s findings in Reese v. County of Sacramento after
finding “no ‘convincing evidence’” that the California Supreme
Court would not follow Cornell. 888 F.3d at 1043. This court is
bound by that interpretation.
2

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state law when they shot at Attaway eighteen times.

2

888 F.3d at 1045 (internal quotations omitted).

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court will deny defendant’s motion for summary judgment on this

4

claim.

5

See Reese,

Accordingly, the

IT IS THEREFORE ORDERED that defendants’ motion for

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summary judgment be, and the same hereby is, GRANTED on

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plaintiff’s claims under 42 U.S.C. 1983 for violations of the

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Fourth and Fourteenth Amendments;

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AND IT IS FURTHER ORDERED that defendants’ motion for

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summary judgment be, and the same hereby is, DENIED on

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plaintiffs’ state law claims for assault, battery, wrongful

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death, negligence, and violation of the Tom Bane Civil Rights

13

Act.

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Dated:

October 11, 2019

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