The Estate of Mohammed Shah et al v. City of Hayward et al

Filing 61

ORDER by Judge Laurel Beeler denying 53 Motion for Summary Judgment. (lblc1S, COURT STAFF) (Filed on 4/27/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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C.E.W. , a minor, individually and as
successor-in-interest for Decedent
MOHAMMED SHAH, et al.,

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Plaintiffs,

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ORDER DENYING SUMMARY
JUDGMENT
[Re: ECF No. 53]

v.

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Case No. 13-cv-04516-LB

CITY OF HAYWARD, et al.,
Defendants.

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INTRODUCTION

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The plaintiffs‘ decedent, Mr. Mohammed Shah, died after defendant Allen Neula, a City of

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Hayward police officer, shot him multiple times while trying to arrest him. Officer Neula had

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come across Mr. Shah while the latter was sitting in a reportedly stolen car. From the central

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allegation that Officer Neula used excessive force in shooting Mr. Shah, the plaintiffs bring five

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claims: (1) 42 U.S.C. § 1983 and Fourth Amendment; (2) 42 U.S.C. § 1983 and Fourteenth

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Amendment – Substantive Due Process; (3) also 42 U.S.C. § 1983 and Fourth Amendment; (4)

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Wrongful death by negligence – Cal. Code Civ. Pro. §§ 377.60-.61; and (5) Bane Act – Cal. Civ.

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Code § 52.1. (3d Am. Compl. – ECF No. 40.) 1 The first third and claims are substantively

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Record citations are to material in the Electronic Case File (―ECF‖); pinpoint cites are to the
ECF-generated page numbers at the tops of documents.
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identical in that they both allege excessive force in violation of the Fourth Amendment; they differ

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only in that the first is by C.E.W. for Mr. Shah‘s alleged wrongful death, and the third is a survival

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action by C.E.W. as successor in interest to Mr. Shah. The defendants move for summary

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judgment on all the plaintiffs‘ claims. 2 The court held a hearing on April 16, 2015. For the reasons

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given below, the court holds that disputed issues of material fact prevent it from deciding this case

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as a matter of law, and so denies the defendants‘ summary-judgment motion.
FACTS

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I. THE DEFENDANTS’ VERSION
Defendant Allen Neula is a police officer for the City of Hayward. (Neula Dep. – ECF No. 57-

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2, attached as Exhibit A to the Declaration of Rafael E. Alvarado Jr., pg. 11:24-12:23.) In addition

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to his normal duties, Officer Neula serves as a ―defensive tactics arrest and control instructor,‖ a

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―field training officer‖ and a ―Taser instructor,‖ teaching arrest and control tactics to employees of

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the Hayward Police Department (―HPD‖). (Neula Deposition, pg. 14:23 – 15:23.) He has received

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over 250 hours of training to become a California POST-certified3 instructor on behalf of the

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HPD. (Neula Decl. – ECF No. 53-2, ¶ 2.)
On the day of the shooting, Officer Neula was working the day shift. (Neula Dep. 20:9-23.) He

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was wearing a police uniform with sewn-on HPD patches on both arms. (Neula Dep. 52:3-12.) At

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approximately 11:00 a.m., Officer Neula was driving an HPD patrol car equipped with lights and

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sirens and patrolling the area of South Hayward. (Neula Dep. 55:14-19, 56:20-57:13.) He noticed

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that a call for service — a speeding vehicle — had activated on his patrol car‘s mobile computer

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monitor. (Neula Dep. 58:19 – 59:6.) He responded to the call and proceeded to investigate. (Id.)

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While searching for the speeding vehicle, Officer Neula noticed a late-model Honda parked on

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Vanderbilt Street across from Fairway Greens Park. (See Neula Dep. 61-62.) From his training and

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experience, Officer Neula knew that Hondas are commonly stolen vehicles; consequently, during

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In their opposition, the plaintiffs ―submitted‖ on the defendants‘ challenge to their fourth claim
brought under Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690-01 (1978). They
confirmed at the hearing that they no longer pursue that claim.
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POST stands for Peace Officer Standards and Training. These are the local standards for peaceofficer training.
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his shifts, he randomly runs the license plates of late-model Hondas. (Neula Dep. 61-62.) As he

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approached the Honda from the rear, Officer Neula entered the license-plate number into his

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mobile computer to check if the car had been reported stolen. (Id. at 62-63.) He also observed a

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person seated in the Honda‘s driver‘s seat. (Id. at 64-65.) The occupant appeared to Officer Neula

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to be doing something to the center console of the vehicle with his hands. (Id.)

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As he passed the Honda, Officer Neula observed the occupant, who was later identified as

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Mohammed Shah (the plaintiff‘s decedent). (Neula Dep. 66:24 – 67:5.) The Honda‘s driver‘s-side

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window was approximately halfway down. (Neula Dep. 66:3-9.) Officer Neula claims that Mr.

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Shah had a ―wide-eyed look,‖ that his ―eyes were bugged out‖ and that he ―looked like he might
be a crankster.‖ (Neula Dep. 67:6-19.) Mr. Shah appeared to be concentrating on the center-

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console area of the Honda. (Neula Dep. 68:1-9.) He did not appear to see Officer Neula‘s police

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car as it continued past him. (Id.)

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When he had driven about one-half block farther, Officer Neula‘s computer screen started

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flashing, indicating that the Honda was stolen. Officer Neula radioed HPD dispatch and reported

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that he had located an occupied stolen vehicle and provided the car‘s location and license-plate

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number. (Neula Dep. 63-64, 70.) The dispatcher sent cover units to Officer Neula‘s location.

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(Neula Dep. 70:18 – 71:1.)

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Three other HPD officers who were working that day — Sergeant Antonio Puente, Sergeant

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Phil Divanagracia, and Sergeant Robert Farro — each heard Officer Neula radio that he had found

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an occupied stolen vehicle. (Puente Dep. – ECF No. at 24-25; Divanagracia Dep. – ECF No. 54-11

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at 10, 17; Farro Decl. – ECF No. 53-3 ¶¶ 2-3.)

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Meanwhile, Officer Neula made a U-turn and started back toward the Honda. (Neula Dep. 71.)

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He noticed as he approached that Mr. Shah still appeared to be focused on the car‘s center console.

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(Id. at 72-73.) Officer Neula pulled up in front of the Honda so that his police car faced the Honda

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in a slightly offset position. (Id. at 73-74.) He explains that he positioned his car in front of the

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Honda to maintain continuous visual contact with Mr. Shah to prevent him from fleeing on foot or

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driving off. (Id. at 77-78.) He ―chirped‖ his siren to signal his presence and activated his vehicle‘s

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lights. (Id. at 74-75.) Officer Neula then got out of his car and began to issue commands. (Id.) Mr.
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Shah now looked toward Officer Neula. (Id. at 75-76.) Officer Neula stood in the ―V‖ of his patrol

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car, which is the area between the car‘s open door and its frame. (Id. at 82.) Officer Neula ordered

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Mr. Shah to ―Get your hands up‖ and also said, ―Hayward Police, get your hands up, keep your

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hands where I can see them.‖ (Id. at 82.) He states that he yelled these commands multiple times.

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(Id.)

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A witness who lives across the street from where all this happened, Liliana Vancea, testified

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that she had first seen Mr. Shah in the Honda a couple of hours earlier, when she took out the

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garbage. (Vancea Dep. – ECF No. 54-12 at 6, 8.) He was awake but, to Mrs. Vancea‘s perception,

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was trying to hide by slumping in the seat when people walked by. (Id. at 10-11, 55-56.) She

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relates, ―There was something frightening in his look.‖ (Id.)

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When Officer Neula arrived on the scene, Mrs. Vancea was in her kitchen. (Id. at 17.) The

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front door of her home was open, with only a metal security gate covering the entrance. (Id.) She

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heard a voice saying, ―Put your hands up. Step out of the car.‖ (Id. at 17, 20.) She walked over to

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her living-room window, which looks out on the street. (Vancea Deposition, pg. 22:4-8.) She

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estimates that she heard Officer Neula give these commands approximately five to seven times.

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(Id. at 20.)

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A second witness, Gracie Nelson, was in the park at the time. Ms. Nelson was watching three

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children, her ―daycare kids.‖ (Nelson Recording – ECF No. 53-4 at 2:30-2:45 (lodged as a hard

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exhibit).) Ms. Nelson, too, heard Officer Neula repeatedly order Mr. Shah to put his hands up and

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get out of the car. (Id. at: 6:00-6:15; 7:00-7:30; 9:30-11:30; 12:15-13:15.)

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According to Officer Neula, Mr. Shah initially lifted his hands up about chest high. (Neula

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Dep. 84.) Ms. Nelson also observed Mr. Shah initially put his hands up. (Nelson Recording at

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6:00-7:00.) But — again, according to Officer Neula — Mr. Shah then began to disobey orders: he

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dropped his hands down toward the Honda‘s center console and right-passenger-seat area. (Neula

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Dep. 88-90.) At this point, Mr. Shah‘s hands were out of Officer Neula‘s view. (Id. at 91.) Officer

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Neula testified that Mr. Shah was not obeying his orders to keep his hands where the officer could

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see them. (Id. at 76.) Mr. Shah glanced toward the passenger-seat area and then back to Officer

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Neula; he raised his hands but then dropped them out of view and did this (says the officer) about
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three or four times. (Id. at 92.)
When Mr. Shah‘s hands came back into view, Officer Neula decided to approach the Honda.

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(Id. at 93.) He now left his patrol car with his gun unholstered. (Id.) The Honda‘s driver‘s-side

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window was still about halfway down. (Id. at 110.) Officer Neula approached to see what Mr.

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Shah was reaching for and thought he could try to reason with him. (Id. at 97.) He was concerned

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that Mr. Shah could be armed. (Id. at 103.) He describes the Honda‘s interior as cluttered, which

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made it hard for him to ascertain what was in the car. (Id. at 104-05.) He did see a backpack and

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tools on the passenger seat and a jumble of different objects. (Id. at 106.) He again ordered Mr.

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Shah to keep his hands where he could see them. (Id. at 98-99.)

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Officer Neula then communicated into his paddle microphone requesting expedited cover. (Id.

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at 101.) Sergeants Puente, Divinagracia, and Farro each heard his request and separately

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proceeded to his location. (Puente Dep. 25; Divinagracia Dep. 21; Farro Decl. ¶ 4.) Officer Neula

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testified that, as he radioed HPD dispatch, he noticed Mr. Shah start to reach for the ignition area

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and under the center column of the Honda with both hands. (Neula Dep. 101, 109.) He ordered

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Mr. Shah to stop and to get his hands up. (Id. at 107-08.) He believed that Mr. Shah was trying to

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start the car. (Id. at 109.)

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Meanwhile, Mrs. Vancea heard Officer Neula order Mr. Shah out of the car, and saw that Mr.

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Shah did not comply. (Vancea Dep. 26.) Mrs. Vancea also saw a woman, who proved to be the

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second witness, Ms. Nelson, and children in the park. (Id.) Mrs. Vancea heard Officer Neula tell

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Ms. Nelson to ―take the kids with her and to go away, to leave.‖ (Id.) While the officer interacted

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with Ms. Nelson, Mrs. Vancea saw Mr. Shah make two attempts to leave. (Id. at 27.) Specifically,

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she claims to have seen the wheels of the Honda move to the left and said, ―he [Mr. Shah] tried to

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back up his car because he tried not to run over the police officer.‖ (Id. at 25, 63-64.) She believed

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that the driver was trying to flee and was about to run over the officer. (Id. at 25-26.)

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Officer Neula again ordered Mr. Shah to stop and put his hands up. (Neula Dep. 110-11.) Mr.

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Shah did not comply. (Id. at 111.) Officer Neula then decided to kick out the Honda‘s window and

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try to extract Mr. Shah from the car. (Id.) He kicked the window twice, breaking it on the second

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attempt, and ordered Mr. Shah to get his hands up and to stop reaching for the ignition. (Id. at
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112.) According to Officer Neula, Mr. Shah continued to reach for the ignition area. (Id. at 113.)
Both Mrs. Vancea and Ms. Nelson saw Officer Neula break the car window. (Vancea Dep. 27;

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Nelson Rec. at 6:15-6:30.) In describing what she saw Mr. Shah do, Ms. Nelson testified: ―I seen

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him lunge,‖ ―One hand went down,‖ and ―I just seen him move.‖ (Id. at 8:00-8:15.) She now

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grabbed the children and ducked behind the playground slide. She stated: ―I didn‘t look at the

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scene no more, I just covered my head.‖ (Id. at 6:30-6:45.)

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Meanwhile, Officer Neula holstered his gun, struck Mr. Shah in the side of the face (what the
defendants call a ―palm-heel distraction strike‖), and tried to pull him out of the Honda. (Neula

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Dep. 113, 114.) (Officer Neula explained that he wanted to extract Mr. Shah from the car to

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prevent him from accessing possible weapons. (Id. at 117.)) The impact (says Officer Neula)

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caused Mr. Shah to flail up his left arm and lean right toward the passenger seat. (Id. at 114.)

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Officer Neula says that he grabbed Mr. Shah around the waist area with his left arm and behind his

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neck area with his right arm and began to pull him from the vehicle. (Id. at 121.) Mr. Shah resisted

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and pulled away, causing Officer Neula to lose control of him. (Id. at 125.) From her home, Mrs.

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Vancea saw Mr. Shah resist. (Vancea Dep. 65.) She stated in the audio recording that Mr. Shah

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―pushed the officer because he was struggling. He did not want to get out.‖ (Id.)

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Officer Neula then started reaching for his Taser. (Neula Dep. 131-32.) He then heard Mr.

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Shah say, ―I got something for you‖ and reached down toward the driver‘s-side door. (Id.) Mrs.

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Vancea stated that she saw Mr. Shah lean and bend, but she was not certain to which side. (Vancea

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Dep. 66-67.) Officer Neula was still standing outside the Honda, within about one foot away,

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when Mr. Shah said, ―I got something for you.‖ (Neula Dep. 133.) Officer Neula testified that this

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concerned him because he‘s never heard a suspect say that to him. (Id. at 134-35.) Mr. Shah

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repeated: ―I got something for you.‖ (Id. at 137.) Officer Neula says that he now saw Mr. Shah,

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who was still sitting in the driver‘s seat, reach down into the left rear area of the car. (Id. at 135.)

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Concerned for his safety, Officer Neula responded by telling Mr. Shah, ―No, don‘t do it.‖ (Id. at

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136.)

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From here, events escalated. As Mr. Shah‘s arms came back up into view, to about his own

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chest level, Officer Neula claims that he saw something shiny. (Id. at 149.) Officer Neula stepped
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away from the Honda, reached for his firearm, and continued to yell, ―No.‖ (Id. at 138.) He

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thought at this point that Mr. Shah had a gun and was about to shoot him. (Id. at 37-38, 137-38.)

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Officer Neula fired his weapon in rapid succession as he retreated away from the Honda. (Id. at

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153.) He believed that he fired two to three rounds. (Id. at 156.) Mrs. Vancea testified that she

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heard approximately three or four gunshots. (Vancea Dep. 32.) The whole interaction between

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Officer Neula and Mr. Shah lasted about two minutes. (Id. at 146.)

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Officer Neula saw Mr. Shah lean back into the driver‘s seat, saw blood coming from his neck,

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and knew that he had been shot. (Id. at 161.) He radioed that shots were fired. (Id. at 161-62.)

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Sergeants Puente, Divinagracia, and Farro each heard Officer Neula radio that shots were fired.
(Puente Dep. 28; Divinagracia Dep. 22; Farro Decl. ¶ 4.) After firing, Officer Neula did not

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approach the Honda due to his concern that a threat still existed: the car had not yet been ―cleared

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for weapons‖ and backup officers had not yet arrived. (Neula Dep. 167-68.)

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Sergeant Puente was the first backup officer to arrive. (See id. at 164; Puente Dep. 26, 31, 40.)

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When he did, he was concerned that he and Officer Neula were still in imminent danger. (Id. at

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33-34.) Specifically, he was concerned that the two were positioned too close to the Honda

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without any cover, that they could not see beneath the door frame, and that the occupant could

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have a weapon. (Id.) Sergeant Puente realized he needed additional cover units to make the high-

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risk arrest. (Id. at 36-37.) Sergeant Puente and Officer Neula took a position of cover near the

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passenger‘s side of Officer Neula‘s patrol car. (Id. at 42-44.) From here, Sergeant Puente could see

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Mr. Shah opening and closing his eyes, and taking shallow breaths, and could see the gunshot

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wound to his neck; he then called for medical help. (See id. at 41-44.) He told HPD dispatch to

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have the Hayward Fire Department (―HFD‖) and emergency medical services (―EMS‖) proceed

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directly to the scene. (Id. at 46-47.) The defendants explain that this allowed the medical

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responders to proceed directly to the scene without having to ―stage‖ away from the area. (Id.)

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Sergeant Puente believed the officers could secure the scene by the time the medical personnel

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arrived and did not want to delay medical attention to Mr. Shah. (Id.)

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After Sergeants Farro and Divinagracia arrived, Sergeant Puente decided it was safe to make
an arrest. (Id. at 51.) He directed Officer Neula, Sergeant Farro, and Sergeant Divinagracia to
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remove Mr. Shah from the car. (Id. at 52.) Officer Neula and Sergeant Farro went to the driver‘s-

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side door. (Neula Dep. 172; Farro Decl. ¶ 7.) Sergant Farro reached through the window and

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touched the steering-wheel latch to help dislodge Mr. Shah from the driver‘s seat. (Id. ¶ 7.)

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Sergeant Divinagracia went to the passenger-side door to help. (Divinagracia Dep. 42.)

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Sergeant Divinagracia and Officer Farro both testified that they observed that Mr. Shah had a

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knife. (Divinagracia Dep. 46; Farro Decl. ¶¶ 7-8.) Sergeant Divinagracia relates that he saw an

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open, wood-handled pocketknife with a two- or three-inch blade in Mr. Shah‘s right hand.

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(Divinagracia Dep. 46.) He also testified to seeing a shiny silver multi-tool in Mr. Shah‘s lap. (Id.)

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The pocketknife‘s blade was open and, according to Sergeant Divinagracia, the knife fell out of
Mr. Shah‘s hand as he was pulled from the car. (Id. at 47.) Sergeant Farro recalls that as he began

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to pull Mr. Shah from the car, he saw a knife with a brown handle in Mr. Shah‘s right lap near his

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right hand. (Farro Decl. ¶¶ 7-8.) He also saw a silver-colored multi tool near Mr. Shah‘s right

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thigh. (Id.)

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The officers removed Mr. Shah from the Honda and placed him on the ground. (Neula Dep.

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176-77; Puente Dep. 57; Farro Decl. ¶ 9.) Sergeant Puente told the officers not to handcuff Mr.

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Shah so as not to interfere with medical care. (Puente Dep. 58; Farro Decl. ¶ 9.) Sergeant Farro

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estimates that HFD arrived approximately 15-20 seconds after the police had removed Mr. Shah

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from the car. (Farro Decl. ¶ 9.) HFD provided medical care to Mr. Shah before paramedics

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transported him to Eden Hospital. (Puente Decl. 60; Farro Decl. ¶ 10.)
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II. THE PLAINTIFFS’ VERSION
The plaintiffs find differences in the story. These stem mainly from Ms. Nelson‘s testimony.

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They note that — according to her deposition — she did not see Officer Neula stop behind his

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patrol-car door and give orders to Mr. Shah. (Nelson Dep. 17-18.) She testified instead that Officer

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Neula immediately walked to the Honda with his gun pointed at the car. (Id.) According to Ms.

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Nelson, Officer Neula told Mr. Shah to roll down the window and put his hands up — and Mr.

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Shah complied, raising both his hands. (Id. at 18, 33 (―I saw him complying with his order to keep

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his hands up, and then he got shot real fast.‖)) After Officer Neula broke the Honda‘s window,
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Ms. Nelson says, Mr. Shah kept his hands up and a struggle ensued. (Id. at 19.) Mr. Shah‘s right

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hand dropped down, but not beneath his shoulder, while his left hand stayed in the air about

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shoulder high. (Id. at 21-22.) She did not see Mr. Shah bend down or back or reach for anything

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with his left arm. (Id. at 22, 47-48, 69.)

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She then saw and heard Officer Neula shoot Mr. Shah. (Id. at 20.) Contrary to Officer Neula‘s

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description, Ms. Nelson testified that Mr. Shah did not reach for anything with his left hand

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immediately before Officer Neula shot him. (Id. at 23.) Nor did she hear the officer warn Mr. Shah

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that he might shoot. (Id. at 29.) According to Ms. Nelson, moreover, Officer Neula did not try to

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pull Mr. Shah from the car; the whole incident (from Officer Neula‘s arrival to the shooting)
seemed to her to happen ―very fast,‖ ―really fast.‖ (Id. at 26-27.) She testified: ―I don‘t know what

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[Officer Neula] needed a chance to do, but he didn‘t give [Mr. Shah] a chance, or whatever he was

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trying to do . . . .‖ (Id.) To her mind, ―[H]e did it too fast. He shot him too soon.‖ (Id. at 26.) (The

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plaintiffs‘ inferential gloss on this is that, according to Ms. Nelson‘s testimony, Officer Neula did

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not ―take the time to determine a non-lethal course of action.‖ (ECF No. 57 at 8.)) Officer Neula

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kept yelling at Mr. Shah to keep his hands up despite his being shot, slumped over, and, to Ms.

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Nelson‘s perception, ―definitely dead.‖ (Nelson Dep. 20, 29.) Sergeant Divinagracia thought Ms.

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Nelson was a ―good witness‖ because she was present for the whole incident. (Divinagracia Dep.

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68-70.)

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The plaintiffs also discuss Mrs. Vancea‘s testimony. On the one hand, Mrs. Vancea agrees that

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Officer Neula tried to pull Mr. Shah from the car; like Ms. Nelson she denies that Mr. Shah

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reached for anything, but seemed instead to be resisting being pulled from the car; and she did not

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hear Mr. Shah say ―I got something for you‖ or Officer Neula reply, ―No, don‘t do it.‖ (Id. at 30-

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31, 67.) On the other hand, Mrs. Vancea recounts facts that neither Officer Neula nor Ms. Nelson

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recalls: she alone claims that, as Officer Neula reached the Honda, Mr. Shah jumped from the

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passenger to the driver seat, rolled up the driver‘s-side window, and tried to drive away. (See id. at

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22-25.)
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III. THE KNIFE
The plaintiffs make several points about the knife that was allegedly found on Mr. Shah. They

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first note that, according to Sergeant Puente (the first backup officer to arrive after the shooting),

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when he asked Officer Neula if he was okay, the latter responded, ―I couldn‘t see his hands.‖

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(Puente Dep. 33, 48-49.) The plaintiffs‘ point being that Officer Neula could have been expected

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to, but in fact did not, mention a knife or even that he thought that Mr. Shah had reached for a

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weapon. (See ECF No. 57 at 9.) Furthermore, according to Sergeant Divinagracia, neither Sergeant

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Farro nor Officer Neula said that they saw any sort of weapon as they were trying to pull Mr. Shah

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from the car. (See Divinagracia Dep. 41-42.)

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Sergeant Divinagracia testified that, in his experience, he would expect the primary officer to

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immediately warn backup officers about dangers present on the scene. (Id. at 34.) For example, he

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trains officers that if they are dealing with a subject and they see a gun, they should warn the other

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officers there is a gun on the scene. (Id.) Before he approached the Honda, none of the officers

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told him there was a weapon on the scene. (Id. at 43-44.) Sgt. Divinagracia also testified that when

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he got into the car, he saw a knife in Mr. Shah‘s right hand, down by his knee. (Id. at 48.) Sgt. He

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also claims to have seen a multi-tool with an exposed blade along with the wooden-handled knife

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on Mr. Shah‘s lap or in his hands. (Id. at 46-48.) He did not alert the other officers to the weapons

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or try to remove the knife from Mr. Shah‘s hand. (Id.) He did explain, however, that he did not

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mention the knife because the officers were ―moving fast‖ trying to pull Mr. Shah from the car,

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and things ―happened quick.‖ (Id. at 47-48.)

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In any event, no officer who was near or in direct contact with Mr. Shah, as they pulled him

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from the car, mentioned to their fellow officers that Mr. Shah had a knife in his hands. (Id. at 50:2-

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7.) None of these officers told Sergeant Puente that Mr. Shah was armed. (Puente Dep. 59.)

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Sergeant Puente relates that the first time any of the officers told him that there was a knife on the

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scene was after the paramedics had taken Mr. Shah away. (Id. at 72-74.) No one showed Sergeant

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Puente the knife. (Id. at 74.) There are no pictures in the record of either the car‘s interior from the

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day of the incident or any day or the knife or multi-tool.

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Finally, the plaintiffs discuss facts concerning HPD policies in officer-involved shootings.
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They first discuss facts related to preserving evidence. Sergeant Puente agreed that a shooting

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officer should not be let back into the scene of a shooting; this raises concerns over the ―sanctity of

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the investigation‖ and invites allegations that the officer tampered with the evidence. (Puente Dep.

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54.) There is no dispute here that Officer Neula re-entered and to some degree altered the incident

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scene by getting into the Honda, moving the driver‘s seat and steering column, touching Mr. Shah,

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and helping remove him from the car. (See id. at 57-58; Divinagracia Dep. 38-39, 41.)

7

The plaintiffs also point out that HPD did not interview Officer Neula after the shooting in

8

compliance with its policies. It is HPD policy to sequester the shooting officer in such a case.

9

(Puente Dep. 18-19.) One purpose of this is to maintain the integrity of the officer‘s recollection:
to prevent others from influencing his story or even his memory. (See id. at 18-20.) The HPD‘s

11
United States District Court
Northern District of California

10

criminal-investigations bureau is supposed to interview a shooting officer within 24 hours of an

12

incident. (Id. at 22-24.) Officer Neula was not interviewed until three days after the shooting.
* * *

13
14
15

IV. THE DEFENDANTS’ REPLY
The defendants‘ reply points out certain subtleties in the evidence. They first note

16

inconsistencies, or maybe just nuances, in Ms. Nelson‘s testimony. Ms. Nelson gave testimony

17

twice. On the day of the shooting, she was interviewed by the HPD; the defendants‘ initial motion

18

for summary judgment cites the audio recording of that interview. Eighteen months later, in March

19

2014, Ms. Nelson was deposed. Both parties variously cite her deposition testimony.

20

The defendants point to the following items in Ms. Nelson‘s testimony. At one point in her

21

deposition, as noted above, Ms. Nelson said that she did not see Officer Neula stand beside his

22

patrol car (in the area that the parties call the ―V‖ between the car‘s door and frame). (Nelson Dep.

23

17-18.) (Officer Neula has said that, while standing in that area, he ordered Mr. Shah to put his

24

hands up. (Neula Dep. 82.)) Elsewhere in her deposition, Ms. Nelson did describe seeing Officer

25

Neula stand beside his car after he arrived (albeit briefly), operate the radio on his shoulder, and

26

pull out his gun. (Nelson Dep. 37-39.) Furthermore, while Ms. Nelson did not hear Officer Neula

27

warn Mr. Shah that he might shoot (id. at 29), she did hear him repeatedly order Mr. Shah to put

28

his hands up (id. at 40-42). She testified that the ―Hands up‖ order is the only one she heard
ORDER (13-cv-04516-LB)

11

Officer Neula give while he stood beside his patrol car. (Id.) Last with respect to Ms. Nelson‘s

2

testimony, the defendants write that, in her audio interview, she said that, after Officer Neula

3

broke the car window, she ducked behind the playground slide with the children and no longer

4

watched the encounter. (ECF No. 59 at 3 (citing Nelson Rec. 6:30-6:45)). ―However, in her

5

deposition,‖ the defendants continue, ―she claimed that she observed a ‗struggle‘ but could not

6

describe the struggle.‖ (ECF No. 59 at 3 (citing Nelson Dep. 52-54).) The court is not convinced

7

there is anything too discrepant here; reaching that determination would moreover entail a

8

credibility determination that is improper at the summary-judgment stage. At all lengths, while in

9

her interview Ms. Nelson indeed recounted ducking behind the slide after Officer Neula broke the

10

Honda‘s window, she also said that she continued ―peeking‖ at what was going on. (Nelson Rec.

11
United States District Court
Northern District of California

1

8:19-8:32.) Similarly, in her deposition, she explains that while she was ―walking towards the play

12

structure‖ after the glass broke, she was ―watching as [she was] walking.‖ (Nelson Dep. 22.)

13

* * *

14

ANALYSIS

15

The court must grant a motion for summary judgment if the movant shows that there is no

16

genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of

17

law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material

18

facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute about

19

a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for

20

the non-moving party. Id. at 248-49.

21

The party moving for summary judgment bears the initial burden of informing the court of the

22

basis for the motion, and identifying portions of the pleadings, depositions, answers to

23

interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of

24

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is important to remember that,

25

―A moving party without the ultimate burden of persuasion at trial . . . has both the initial burden

26

of production and the ultimate burden of persuasion on a motion for summary judgment.‖ Nissan

27

Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

28

To meet its burden of production, ―the moving party must either produce evidence negating an
ORDER (13-cv-04516-LB)

12

1

essential element of the nonmoving party‘s claim or defense or show that the nonmoving party

2

does not have enough evidence of an essential element to carry its ultimate burden of persuasion at

3

trial.‖ Id.; see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (―When the nonmoving

4

party has the burden of proof at trial, the moving party need only point out ‗that there is an

5

absence of evidence to support the nonmoving party‘s case.‘‖) (quoting Celotex, 477 U.S. at 325).

6

If the moving party meets its initial burden, the burden shifts to the non-moving party to
produce evidence supporting its claims or defenses. Nissan Fire & Marine, 210 F.3d at 1103. The

8

non-moving party may not rest upon mere allegations or denials of the adverse party‘s evidence,

9

but instead must produce admissible evidence that shows there is a genuine issue of material fact

10

for trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not produce evidence to

11
United States District Court
Northern District of California

7

show a genuine issue of material fact, the moving party is entitled to summary judgment. See

12

Celotex, 477 U.S. at 323.

13

In ruling on a motion for summary judgment, inferences drawn from the underlying facts are

14

viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith

15

Radio Corp., 475 U.S. 574, 587 (1986).
* * *

16
17

I. EXCESSIVE FORCE – 42 U.S.C. § 1983 – FOURTH AMENDMENT

18

A. Excessive Force

19

Claims one and three assert Fourth Amendment violations based on Officer Neula‘s allegedly

20
21

using excessive force that caused Mr. Shah‘s death.
Section 1983 provides a cause of action for the deprivation of ―rights, privileges, or

22

immunities secured by the Constitution or laws of the United States‖ by any person acting ―under

23

color of any statute, ordinance, regulation, custom, or usage.‖ Gomez v. Toledo, 446 U.S. 635, 639

24

(1980). Section 1983 is not itself a source for substantive rights, but rather a method for

25

vindicating federal rights conferred elsewhere. See Graham v. Connor, 490 U.S. 386, 393–394

26

(1989). To state a claim under § 1983, a plaintiff must allege: (1) the conduct complained of was

27

committed by a person acting under color of state law; and (2) the conduct violated a right secured

28

by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42, 48 (1988).
ORDER (13-cv-04516-LB)

13

1

It is undisputed that Officer Neula was acting under color of state law. The issue is whether the

2

force he used was excessive in violation of the Fourth Amendment, which turns on whether the

3

force was ―objectively reasonable.‖ Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,

4

921 (9th Cir. 2001) (citing Graham, 490 U.S. at 388).

5

―Determining whether the force used to effect a particular seizure is reasonable under the

6

Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the

7

individual‘s Fourth Amendment interests against the countervailing governmental interests at

8

stake.‖ Graham, 490 U.S. at 396 (internal citations and quotations omitted). To do so, a court must

9

evaluate ―the facts and circumstances of each particular case, including [(1)] the severity of the
crime at issue, [(2)] whether the suspect poses an immediate threat to the safety of the officers or

11
United States District Court
Northern District of California

10

others, and [(3)] whether he is actively resisting arrest or attempting to evade arrest by flight.‖

12

Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). The most

13

important of these three factors is whether the suspect poses an immediate threat to the safety of

14

the officers or others. Id. The Graham factors, however, are not exhaustive. George v. Morris, 736

15

F.3d 829, 837-38 (9th Cir 2013). Because ―there are no per se rules in the Fourth Amendment

16

excessive force context,‖ Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc), courts

17

must ―examine the totality of the circumstances and consider ‗whatever specific factors may be

18

appropriate in a particular case, whether or not listed in Graham.‘‖ Bryan v. McPherson, 630 F.3d

19

805, 826 (9th Cir. 2010) (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). ―Other

20

relevant factors include the availability of less intrusive alternatives to the force employed,

21

whether proper warnings were given[,] and whether it should have been apparent to officers that

22

the person they used force against was emotionally disturbed.‖ Glenn v. Washington County, 673

23

F.3d 864, 872 (9th Cir. 2011) (citations omitted).

24

―The reasonableness of a particular use of force must be judged from the perspective of a

25

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.‖ Graham, 490 U.S.

26

at 396 (1989) (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)); see id. at 396-97 (―‗Not every push

27

or shove, even if it may later seem unnecessary in the peace of a judge‘s chambers,‘ . . . violates

28

the Fourth Amendment.‖) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). This is
ORDER (13-cv-04516-LB)

14

1

because ―[t]he calculus of reasonableness must embody allowance for the fact that police officers

2

are often forced to make split-second judgments — in circumstances that are tense, uncertain, and

3

rapidly evolving — about the amount of force that is necessary in a particular situation.‖ Id.

4

It is also important to remember that the court‘s review of the evidence is influenced by the

5

fact that the other principal witness to these events — Mr. Shah — is dead. Of such cases the

6

Ninth Circuit has said: ―We are mindful that cases in which the victim of alleged excessive force

7

has died ‗pose a particularly difficult problem‘ in assessing whether the police acted reasonably,

8

because ‗the witness most likely to contradict [the officers‘] story . . . is unable to testify.‘‖

9

Gregory v. County of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008) (quoting in part Scott v. Henrich,
39 F.3d 912, 915 (9th Cir.1994)). ―Accordingly, [the court] must ‗carefully examine all the

11
United States District Court
Northern District of California

10

evidence in the record‘ to determine if the officers‘ account of the events is credible.‖ Gregory,

12

523 F.3d at 1107 (quoting in part Scott v. Henrich, 39 F.3d at 915). ―Following such reasoning,‖

13

the Ninth Circuit has ―denied summary judgment to defendant police officers in cases where ‗a

14

jury might find the officers‘ testimony that they were restrained in their use of force not credible,

15

and draw the inference from the medical and other circumstantial evidence that the plaintiff‘s

16

injuries were inflicted on him by the officers‘ use of excessive force.‘‖ Gregory, 523 F.3d at 1107

17

(quoting in part Santos v. Gates, 287 F.3d 846, 852 (9th Cir. 2002)).

18

The evidence here does not allow the court to conclude, as a matter of law, that Mr. Shah

19

possessed a knife or acted in a way that posed ―an immediate threat‖ to Officer Neula‘s safety.

20

(The knife is important: it would corroborate Officer Neula‘s account that he shot based on Mr.

21

Shah‘s saying ―I got something for you‖ and Mr. Shah‘s simultaneous reaching into the left rear

22

area of the car.) The defendants argue: ―There are no evidentiary facts that contradict Sergeant

23

Divinagracia[‘s] or Sergeant Farro‘s observations regarding the knife on [Mr. Shah‘s] person.‖

24

(ECF No. 59 at 4.) That is accurate. The court‘s assessment of that fact must be tempered,

25

however, by Gregory’s direction to ―carefully examine all the evidence in the record‖ in such a

26

situation to decide if a jury could find the officers‘ testimony other than credible, and infer that

27

Officer Neula used excessive force. The court earlier discussed facts that prevent the court from

28

concluding, as a matter of law, that Mr. Shah had a knife or, assuming that he had one, that he
ORDER (13-cv-04516-LB)

15

1

threatened Officer Neula with it. It is striking, for example, that no officer mentioned a knife until

2

medical personnel had already removed Mr. Shah from the scene. The backup officers‘ own

3

testimony shows that, in cases where a suspect has a weapon, it is normal for officers to alert one

4

another to that fact. (A point that might need only common sense to establish for Rule 56

5

purposes.) Because Mr. Shah is dead, the testimony of Officer Divinagracia and Sergeant Farro on

6

this point — even if offered in the best of faith — cannot be treated as dispositive. The jury must

7

hear and weigh the testimony.

8

This is especially true because eyewitness Grace Nelson‘s account of what happens differs

9

markedly from Officer Neula‘s. She recounts that Mr. Shah kept his hands up the entire time in
response to Officer Neula‘s orders to do so, and that while his right hand dropped down after

11
United States District Court
Northern District of California

10

Officer Neula smashed the window (a logical physical reaction if one considers the scenario), it

12

never dropped below his shoulder. She also testified that Mr. Shah did not bend down or reach in

13

back, which again contradicts Officer Neula‘s account.

14

These are important and perhaps dispositive differences, particularly given that the undisputed

15

evidence is that Officer Neula did not warn Mr. Shah that he might use deadly force. Or at least,

16

the defendants have not pointed the court to any testimony indicating that Officer Neula did issue

17

such a warning. And Ms. Nelson affirmatively testified that she heard Officer Neula repeatedly

18

order Mr. Shah to keep his hands up — but that this was the only thing that he told Mr. Shah; she

19

did not hear him warn Mr. Shah that he might shoot. (Nelson Dep. 29, 40-42.) This too makes it

20

impossible for the court to grant the defendants summary judgment. See Glenn, 673 F.3d at 876

21

(reversing grant of summary judgment partly because it was not clear whether decedent heard or

22

understood officers‘ warnings and decedent may have been confused about whether his life was in

23

immediate danger) (citing Deorle v. Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001) (instructing

24

that ―warnings should be given, when feasible, if the use of force may result in serious injury, and

25

that the giving of a warning of the failure to do so is a factor to be considered in applying the

26

Graham balancing test‖)).

27

To the extent that the defendants point to Ms. Vancea‘s testimony, it does not alter the

28

outcome. There are some things she corroborates, but there are other details that she advances
ORDER (13-cv-04516-LB)

16

1

(trying to flee, hopping from the passenger seat to the driver‘s seat) that no one else recounts.

2

These are perhaps classic issues regarding eyewitness evidence, and they are why the trier of fact

3

must weigh and credit the evidence.

4

A final issue is the knife. Even if Mr. Shah did have a knife, the ―fact that a ‗suspect is armed

5

with a deadly weapon‘ does not render an officer‘s shooting of the suspect per se reasonable under

6

the Fourth Amendment . . . .‖ George, 736 F.3d at 832-33, 838-39 (emphasis in original). The

7

Ninth Circuit has explained in this vein:

8

13

In Glenn v. Washington County, we found that in a 911 scenario
without flight or an alleged crime, the officers‘ decision to shoot an
individual holding a pocket knife, ―which he did not brandish at
anyone,‖ violated the Constitution. 673 F.3d 864, 873–78 (9th
Cir.2011). Reviewing Long and Scott, we explained that the fact that
the ―suspect was armed with a deadly weapon‖ does not render the
officers‘ response per se reasonable under the Fourth Amendment.
Id. at 872–73; see also Harris v. Roderick, 126 F.3d 1189, 1204 (9th
Cir.1997) (―Law enforcement officials may not kill suspects who do
not pose an immediate threat to their safety or to the safety of others
simply because they are armed.‖).

14

George, 736 F.3d at 838; see Glenn, 673 F.3d at 867-69, 872-78 (a suspect‘s possessing a knife is

15

important but not itself dispositive; finding that a jury could find that the officers‘ decision to

16

shoot an individual holding a pocketknife, which the individual did not brandish at anyone,

17

violated the Constitution); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997) (―Law

18

enforcement officials may not kill suspects who do not pose an immediate threat to their safety or

19

to the safety of others simply because they are armed.‖); Curnow v. Ridgecrest Police, 952 F.2d

20

321, 323, 325 (9th Cir. 1991) (holding that deadly force was unreasonable where, according to the

21

plaintiff‘s version of facts, the decedent possessed a gun but was not pointing it at the officers and

22

was not facing the officers when they shot him).

9
10

United States District Court
Northern District of California

11
12

23

Here, there was an ―alleged crime‖: the Honda had been reported stolen. It is undisputed that

24

Mr. Shah was sitting in the car when Officer Neula approached the Honda, and that he remained

25

inside the car until he was shot. Other than that, the facts are disputed as to, even with a knife, Mr.

26

Shah posed an ―immediate threat‖ to Officer Neula so that shooting him, and shooting him

27

multiple times, was objectively reasonable under the Fourth Amendment. These disputed issues,

28

taken individually and certainly when taken together, compel the court to deny the defendants‘
ORDER (13-cv-04516-LB)

17

1

motion for summary judgment. The Ninth Circuit‘s decision in Glenn expresses the gist of this

2

court‘s conclusion on the excessive-force claims:

3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13

Balancing these various considerations, we hold that the district
court erred in granting summary judgment on the constitutionality of
the officers‘ use of force. We recognize that the officers have
offered evidence that could support a verdict in their favor. A jury
could view the facts as the district court did, and likewise reach the
conclusion that the officers‘ use of force was reasonable. But on
summary judgment, the district court is not permitted to act as a
factfinder. The circumstances of this case can be viewed in various
ways, and a jury should have the opportunity to assess the
reasonableness of the force used after hearing all the evidence.
Because the disputed facts and inferences could support a verdict for
either party, we are compelled to reverse the district court‘s entry of
summary judgment.
Glenn, 673 F.3d at 878 (internal citation omitted); see also Burns, 737 F. Supp. 2d at 1058-59
(―Because an excessive force claim ‗nearly always requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom,‘ the Ninth Circuit has also instructed that summary
judgment in excessive force cases should be granted sparingly.‖) (citing Santos, 287 F.3d at 853).
* * *

14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

B. Qualified Immunity
The defendants also contend that they are entitled to qualified immunity from the plaintiffs‘
suit. ―The doctrine of qualified immunity protects government officials ‗from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.‘‖ Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). ―Qualified immunity balances
two important interests — the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.‖ Id. ―The protection of qualified immunity applies regardless of
whether the government official‘s error is ‗a mistake of law, a mistake of fact, or a mistake based
on mixed questions of law and fact.‘‖ Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004)
(Kennedy, J., dissenting)).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court ―mandated a two-step sequence
for resolving government officials‘ qualified immunity claims.‖ Id. at 232. ―First, a court must
ORDER (13-cv-04516-LB)

18

1

decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or

2

shown (see Rules 50, 56) make out a violation of a constitutional right.‖ Id. (citing Saucier, 533

3

U.S. at 201). This part of the inquiry ―mirrors the substantive summary judgment decision on the

4

merits.‖ Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). ―If no constitutional right would

5

have been violated were the allegations established,‖ then the officer is entitled to qualified

6

immunity. Saucier, 533 U.S. at 201. ―Second, if the plaintiff has satisfied this first step, the court

7

must decide whether the right at issue was ‗clearly established‘ at the time of defendant‘s alleged

8

misconduct.‖ Pearson, 555 U.S. at 232. ―Qualified immunity is applicable unless the official‘s

9

conduct violated a clearly established constitutional right.‖ Id. (citing Anderson v. Creighton, 483

10

U.S. 635, 640 (1987)).

United States District Court
Northern District of California

11

The plaintiffs here have raised a triable case that — or, put differently, the parties‘ evidence

12

presents genuine issues of material fact as to whether — Officer Neula used excessive force and so

13

violated Mr. Shah‘s Fourth Amendment rights. The plaintiffs have therefore satisfied Saucier’s

14

first step.

15

As to Saucier’s second step, ―the relevant, dispositive inquiry in determining whether a right is

16

clearly established is whether it would be clear to a reasonable officer that his conduct was

17

unlawful in the situation he confronted.‖ Saucier, 533 U.S. at 202; see also Walker v. Gomez, 370

18

F.3d 969, 978 (9th Cir. 2004). This inquiry ―must be undertaken in light of the specific context of

19

the case, not as a broad general proposition.‖ Saucier, 533 U.S. at 201. ―This is not to say that an

20

official action is protected by qualified immunity unless the very action in question has previously

21

been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be

22

apparent.‖ Anderson, 483 U.S. at 640.

23

Officer Neula shot Mr. Shah in 2012. By that time, ―[c]ase law ha[d] clearly established that

24

an officer may not use deadly force to apprehend a suspect where the suspect poses no immediate

25

threat to the officer or others.‖ Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010); see

26

Curnow, 952 F.2d at 325 (affirming denial of qualified immunity where, under plaintiff‘s version

27

of the 1986 shooting, the officers could not reasonably have believed that deadly force was lawful

28

where decedent did not point the gun at the officers and apparently was not facing them when they
ORDER (13-cv-04516-LB)

19

1
2

shot him the first time).
Officer Neula may be entitled to qualified immunity after the disputed material facts are

3

resolved. But, for now, the court denies the defendants‘ motion insofar as it asks the court

4

conclude as a matter of law that Officer Neula is immune. The Ninth Circuit has said: ―Where the

5

officers‘ entitlement to qualified immunity depends on the resolution of disputed issues of fact in

6

their favor, and against the non-moving party, summary judgment is not appropriate.‖ Wilkins v.

7

City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003); accord Santos, 287 F.3d at 855 n.12 (finding

8

it premature to summarily decide qualified-immunity issue ―because whether the officers may be

9

said to have made a ‗reasonable mistake‘ of fact or law may depend on the jury‘s resolution of
disputed facts and the inferences it draws therefrom‖) (internal citation omitted); see also

11
United States District Court
Northern District of California

10

McCloskey v. Courtnier, No. C 05-4641 MMC, 2012 WL 646219, at *3 (N.D. Cal. Feb. 28, 2012);

12

Burns, 2010 WL 3340552, at *12 (―Just as the question of whether a constitutional violation

13

occurred here turns entirely on whose facts to accept, so too does the question of immunity. More

14

simply, if [plaintiff] behaved as the officers contend, their mistake of fact might be objectively

15

reasonable. If he did not, the mistake may be deemed unreasonable.‖); Herrera v. Las Vegas

16

Metro. Police Dept., 298 F. Supp. 2d 1043, 1051 (D. Nev. 2004) (―[I]t would be premature to

17

determine the officials‘ qualified immunity status at this time [after having concluded that a

18

reasonable jury could find that the action complained of constituted a violation of the decedent‘s

19

Constitutional rights], because whether the officers may be said to have acted reasonably will

20

depend on the jury‘s resolution of the disputed facts.‖) (citation omitted).
* * *

21

22

II. SUBSTANTIVE DUE PROCESS – FOURTEENTH AMENDMENT – LOSS OF

23

FAMILIAL RELATIONSHIP

24

The plaintiffs‘ second claim alleges that, by using excessive force in shooting and killing Mr.

25

Shah, Officer Neula deprived them of their Fourteenth Amendment substantive-due-process

26

interest in a familial relationship. (ECF No. 40 at 8, ¶¶ 29-30.) Here, too, the disputed material

27

facts discussed above, in the context of the Fourth Amendment claim, prevent the court from

28

granting the defendants‘ motion for summary judgment.
ORDER (13-cv-04516-LB)

20

1

The Fourteenth Amendment‘s substantive-due-process clause protects against the arbitrary or

2

oppressive exercise of government power. See County of Sacramento v. Lewis, 523 U.S. 833, 845-

3

46 (1998). Parents and children may assert Fourteenth Amendment substantive-due-process claims

4

if they are deprived of their liberty interest in the companionship and society of their child or

5

parent through official conduct. See Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726

6

F.3d 1062,1075 (9th Cir. 2013) (parents and children); Smith v. City of Fontana, 818 F.2d at 1418-

7

19; Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) (parent); Crumpton v. Gates,

8

947 F.2d 1418, 1421-24 (9th Cir. 1991) (child). ―[T]he Due Process Clause is violated by

9

executive action only when it can be properly characterized as arbitrary, or conscience shocking,
in a constitutional sense.‖ Lewis, 523 U.S. at 845-47; see Lemire, 726 F.3d at 1075. The

11
United States District Court
Northern District of California

10

cognizable level of executive abuse of power is that which ―shocks the conscience‖ or ―violates

12

the decencies of civilized conduct.‖ Lewis, 523 U.S. at 846. Mere negligence or liability grounded

13

in tort does not meet the standard for a substantive-due-process decision. Id. at 849.

14

The parties agreed at the April 16, 2015 hearing that this claim is governed by the ―shocks the

15

conscience‖ standard. This standard harbors a dichotomy that can itself impede summary

16

judgment. The Ninth Circuit has explained: ―In determining whether excessive force shocks the

17

conscience, the court must first ask ‗whether the circumstances are such that actual deliberation

18

[by the officer] is practical.‘‖ Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (quoting

19

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

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marks omitted)). ―Where actual deliberation is practical, then an officer‘s ‗deliberate indifference‘

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may suffice to shock the conscience. On the other hand, where a law enforcement officer makes a

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snap judgment because of an escalating situation, his conduct may be found to shock the

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conscience only if he acts with a purpose to harm unrelated to legitimate law enforcement

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objectives.‖ Hayes v. County of San Diego, 736 F.3d 1223, 1230 (9th Cir. 2013) (citing Wilkinson,

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610 F.3d at 554).

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A court may determine at summary judgment whether the officer had time to deliberate (such

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that the ―deliberate indifference‖ standard applies) or instead had to make a snap judgment

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because he found himself in a quickly escalating situation (such that the ―purpose to harm‖
ORDER (13-cv-04516-LB)

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standard applies), ―so long as the undisputed facts point to one standard or the other.‖ Duenez v.

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City of Manteca, No. CIV. S-11-1820 LKK/KJN, 2013 WL 6816375, at *14 (E.D. Cal. Dec. 23,

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2013). ―By its nature,‖ though, ―the determination of which situation [the officer] actually found

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himself in is a question of fact for the jury, so long as there is sufficient evidence to support both

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standards.‖ Id.

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A reasonable juror could find that the evidence here supports both standards. Which is to say,
the court cannot decide the issue as a matter of law. Consider again Ms. Nelson‘s testimony.

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According to her, Officer Neula proceeded almost immediately from his car, gun out, and all too

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quickly shot Mr. Shah multiple times. ―Too soon,‖ ―too fast,‖ as she describes things. (Nelson

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Dep. 26-27, 33.) If a jury believed this description, then it could find that Officer Neula himself

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United States District Court
Northern District of California

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―escalated the situation‖ unnecessarily, or deprived himself of ―time to deliberate,‖ and, as

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plaintiffs‘ counsel has argued, generally acted in a way that reasonable people could consider

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conscience-shocking. The defendants point to arguable discrepancies in Ms. Nelson‘s testimony.

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This includes her (again, arguably) different recollections of whether she saw Officer Neula stand

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next to his patrol car for some time after arriving, or whether he proceeded immediately toward

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the Honda, weapon drawn. But this is a textbook case of questioning witness credibility, or how

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much weight to accord a witness‘s testimony, and that is not something the court can indulge in

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under Rule 56. A jury may find Ms. Nelson‘s description believable and could on that basis deem

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Mr. Shah‘s demise conscience-shocking.
* * *

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III. – WRONGFUL DEATH BY NEGLIGENCE – CAL. CIV. PRO. §§ 377.60–.61
The plaintiffs‘ fifth claim — which only plaintiff C.E.W. brings — is for wrongful death under

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Cal. Civ. Proc. Code § 377.60, ―which is simply the statutorily created right of an heir to recover

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for damages resulting from a tortious act which results in the decedent‘s death,‖ Gilmore v.

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Superior Court, 230 Cal. App. 3d 416, 420 (Cal. Ct. App. 1991) (citations omitted). ―The elements

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of the cause of action for wrongful death are the tort (negligence or other wrongful act), the

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resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.‖ Quiroz v.

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Seventh Ave. Center, 140 Cal. App. 4th 1256, 1264 (Cal. Ct. App. 2006). The California Supreme
ORDER (13-cv-04516-LB)

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Court has held that ―an officer‘s lack of due care can give rise to negligence liability for the

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intentional shooting death of a suspect.‖ Munoz v. Olin, 24 Cal. 3d 629, 634 (1979) (citing Grudt

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v. City of Los Angeles, 2 Cal. 3d 575, 587 (1970)). In this context, to prove the tort, a plaintiff

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must show that the officer violated his ―duty to use reasonable force under the totality of the

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circumstances.‖ See Brown v. Ransweiler, 171 Cal. App. 4th 516, 526 n.10 (Cal. Ct. App. 2009).

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Moreover, where the officer‘s preshooting conduct did not cause the plaintiff any injury

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independent of the injury resulting from the shooting, the officer‘s preshooting conduct is properly

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―included in the totality of circumstances surrounding [his] use of deadly force.‖ Hayes v. County

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of San Diego, 57 Cal. 4th 622, 632 (2013).

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As explained above, genuine issues of material fact prevent the court from ruling as a matter of

United States District Court
Northern District of California

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law that Officer Neula‘s conduct did not violate the Fourth Amendment — that he ―use[d]

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reasonable force under the totality of the circumstances.‖ This also means that the court cannot

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summarily rule that Officer Neula cannot be liable for wrongful death under section 377.60.
* * *

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IV. BANE ACT – CAL. CIV. CODE § 52.1

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The plaintiffs‘ sixth and last claim is under California‘s Bane Act (Cal. Civ. Code. § 52.1).

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(ECF No. 40 at 11, ¶¶ 46-47.) The Bane Act prohibits interference or attempted interference with a

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person‘s rights under federal or California law by ―threats, intimidation, or coercion.‖ Cal. Civ.

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Code § 52.1(a).

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Federal district courts applying the Bane Act have reached different conclusions about the

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conduct necessary to support a claim. One line of cases has held that the coercive conduct must be

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separate from the alleged constitutional violation. See Rodriguez v. City of Fresno, 819 F. Supp.

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2d 937, 953 (E.D. Cal. 2011) (holding that ―in order to maintain a claim under the Bane Act, the

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coercive force applied against a plaintiff must result in an interference with a separate

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constitutional or statutory right. It is not sufficient that the right interfered with is the right to be

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free of the force or threat of force that was applied.‖). Other courts have concluded that a Bane Act

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claim may be based on the same coercive conduct as a constitutional claim. See Bass v. City of

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Fremont, No. C12-4943 TEH, 2013 WL 891090, at *5-6 (N.D. Cal. Mar. 8, 2013) (holding that
ORDER (13-cv-04516-LB)

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the Bane Act applies where the underlying statutory or constitutional violation involved threats,

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intimidation, or coercion, without a separate showing of coercion). In the absence of binding

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authority, the court finds persuasive the line of cases permitting Bane Act claims based on the

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same conduct as an underlying constitutional violation. As discussed in Bass, this reading

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comports with the legislative history and the relatively broad statutory interpretation advanced in

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Venegas v. County of Los Angeles, 32 Cal. 4th 820, 823, 842 (2004). See Bass, 2013 WL 891090,

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at *5.

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The defendants cite the Bane Act test set out in Shoyoye v. County of Los Angeles, 203 Cal.
App. 4th 947, 959 (2012). (See ECF No. 53 at 29-30.) In Shoyoye, the court held that § 52.1
requires ―a showing of coercion independent from the coercion inherent in the wrongful detention

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Northern District of California

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itself.‖ 203 Cal. App. 4th at 959. Shoyoye is distinguishable on its facts. There, the plaintiff was

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lawfully arrested but detained for much longer than permitted by law because of a negligent (and

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inadvertent) computer error. Id. at 951-53. In contrast, the constitutional violations alleged here

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were deliberate and ―interfere[d] with the exercise or enjoyment of a constitutional right.‖ See id.

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at 957-58; see also Bass 2013 WL 891090, at *6 (―Shoyoye is best viewed as a carve-out from the

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general rule stated in Venegas‖).

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The defendants cast their Bane Act analysis in the same terms as their underlying

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constitutional claims alleging excessive force. That is to say, they move for summary judgment on

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the ground that, ―Under the totality of the circumstances, Officer Neula‘s actions were reasonable .

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. . .‖ (ECF Nos 53 at 30, 59 at 9.) The plaintiffs respond that, ―[s]hooting an unarmed compliant

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person is ‗deliberate and spiteful‘ and is a violation of the Bane Act.‖ (ECF No. 57 at 20.)

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The court has already found that, in assessing the record evidence, a reasonable jury could

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conclude both that Mr. Shah was unarmed and that, contrary to Officer Neula‘s testimony, he in

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fact complied with the officer‘s orders. For the same reasons that the court cannot conclude, as a

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matter of law, that Officer Neula did not violate Mr. Shah‘s rights under the Fourth and Fourteenth

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Amendments, neither can it grant the defendants summary judgment on the plaintiffs‘ Bane Act

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claim.

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ORDER (13-cv-04516-LB)

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CONCLUSION

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The court denies the defendants‘ motion for summary judgment. This disposes of ECF No. 53.

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IT IS SO ORDERED.

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Dated: April 27, 2015
_____________________________________
LAUREL BEELER
United States Magistrate Judge

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United States District Court
Northern District of California

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ORDER (13-cv-04516-LB)

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