T.D.P. v. City of Oakland et al

Filing 153

ORDER. In the attached order, the court grants in part and denies in part the summary-judgment motion: (1) the court denies the motion on the Fourth Amendment excessive-force claim because eyewitness Christopher Wise's account creates a ge nuine dispute of material fact (but if he is not a trial witness, then the officers are entitled to qualified immunity); (2) the court grants the motion on the Fourteenth Amendment claim; (3) the court grants the motion on the Monell and supervisory-liability claims; and (3) the court denies the motion on the state-law claims. (Beeler, Laurel) (Filed on 2/24/2019)

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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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T.D.P.,

Case No. 3:16-cv-04132-LB
Plaintiff,

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ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
SUMMARY JUDGMENT

v.
CITY OF OAKLAND, et al.,
Defendants.

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Re: ECF No. 94

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Case No. 3:16-cv-04324-LB

RICHARD PERKINS, III, et al.,
Plaintiffs,

ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
SUMMARY JUDGMENT

v.
CITY OF OAKLAND, et al.,

Re: ECF No. 75

Defendants.

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INTRODUCTION

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In November 2015, four Oakland police officers shot and killed Richard Perkins II, who was

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carrying a pellet gun that looked like a semiautomatic pistol. The parties dispute whether the gun

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was in his waistband or in his hand and whether the officers warned Mr. Perkins before they fired at

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him. The plaintiffs — Mr. Perkins’s mother and two children — filed civil-rights lawsuits charging
ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB 

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excessive force in violation of the Fourth Amendment, interference with familial rights of

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association in violation of the Due Process clause of the Fourteenth Amendment, governmental-

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policy liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1989), supervisory liability, and

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similar state-law claims.1 The defendants moved for summary judgment on all claims.2 The court

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grants the motion in part and denies it in part. The court grants the motion for summary judgment

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on the Fourteenth Amendment, Monell, and supervisory-liability claims and otherwise denies the

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motion because triable issues of fact preclude judgment as a matter of law.

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STATEMENT

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In November 2015, officers from the Oakland Police Department (“OPD”) broke up a sideshow

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United States District Court
Northern District of California

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— an illegal event where motorists perform stunts with cars or motorcycles in public streets or

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vacant lots — near 90th Avenue and Bancroft Avenue in Oakland, California.3 After the officers

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arrived, most sideshow participants fled, but the officers detained and cited three persons for

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Vehicle Code violations and confiscated four off-road motorcycles.4 While the officers were

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waiting for tow trucks to arrive, they had a debriefing while standing near their police cars, just off

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the west curb in the number two southbound lane of the 2220 block of 90th Avenue, next to the 24-

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7 Gas and Food Mart located at 8930 Bancroft Avenue in Oakland (at the corner of Bancroft

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T.D.P. Compl., No. 3:16-cv-04132-LB – ECF No. 1 at 8–16 (¶¶ 31–57); Perkins Compl., No. 3:16-cv04324-LB – ECF No. 1 at 4–9 (¶¶ 23–47). Citations refer to material in the Electronic Case File
(“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. Unless
otherwise noted, this order cites to the docket in T.D.P. v. City of Oakland, No. 3:16-cv-04132-LB.

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T.D.P. Mot. for Summary Judgment, No. 3:16-cv-04132-LB – ECF No. 94; Perkins Mot. for Summary
Judgment, No. 3:16-cv-04324-LB – ECF No. 75.
Hughes Decl. – ECF No. 94-24 at 3 (¶¶ 2, 5).

OPD Administrative Report –ECF No. 102-7 at 5. Part of the report is sealed. See Sealing Order – ECF
No. 109 at 5–6. The parties do not dispute most of the sealing. See id. at 5. To the extent that this order
cites parts of the report that are sealed, those parts are unsealed based on the reasoning in the court’s
previous sealing order. See id. at 5–6. The report is admissible as a public record under Federal Rule of
Evidence 803(8). See id. at 5; FED. R. EVID. 803(8) (hearsay exception for “factual findings from a
legally authorized investigation,” and the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness); see Montiel v. City of Los Angeles, 2 F.3d 335, 341
(9th Cir. 1993) (“Public records and reports falling under Rule 803(8)[] are presumed trustworthy,
placing ‘the burden of establishing untrustworthiness on the opponent of the evidence.’”) (quoting Keith
v. Volpe, 858 F.2d 467, 481 (9th Cir. 1988)).

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

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Avenue and 90th Avenue).5 At around 5:30 p.m., twelve officers were present, all in uniform, and

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the five police cars had their emergency lights flashing.6 Ten officers (who mostly faced west)

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formed a semicircle around Sergeant Joseph Turner (who faced east), at the rear of his car.7 A

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twelfth officer was in his car, completing a report.8

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At 5:34 p.m., it was dusk and getting dark.9 Officer Allahno Hughes — a new police officer

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who had finished his field training in July — saw Mr. Perkins about 40 feet away, walking toward

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the officers, wearing dark blue jeans and a black sweatshirt with the hood pulled over his head.10

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Officer Hughes yelled something to the effect of “Code 7,” the term that OPD uses when someone

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has a gun or a weapon.11 Other officers heard the warning.12 Officer Hughes, formerly in the Marine
Corps reserves and deployed to Iraq, later reported that he saw Mr. Perkins with a gun that he

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United States District Court
Northern District of California

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identified as a Desert Eagle pistol.13 Four officers shot at Mr. Perkins a total of 14 times in 3.6

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seconds: Officer Hughes (four shots); Sergeant Turner (four shots); Officer Joshua Barnard (four

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shots); and Officer Jonathan Cairo (two shots).14 Officer Hughes fired the first two consecutive

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Scene Diagram, Ex. A to Chavez Decl. – ECF No. 94-20 at 2; OPD Administrative Report – ECF No.
102-7 at 5, 65–67 (enlarged diagram); Turner Dep. – ECF No. 121 at 24–25 (pp. 83:24–88:13); Hughes
Dep. – ECF No. 111 at 23–24 (pp. 81:4–82:20).

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Camera 10 Video, Ex. B to Loebs Decl. – ECF No. 94-3; Scene Diagram – Ex. A to Chavez Diagram –
ECF No. 94-20 at 2; Hughes Decl. – ECF No. 94-24 at 3 (¶ 2); Administrative Report – ECF No. 102-7
at 5; Hughes Dep. – ECF No. 111 at 23 (pp. 80:5–81:3).

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OPD Administrative Report – ECF No. 102-7 at 50 (officers’ locations).

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Perkins Martinez-Contreras Dep., No. 3:16-cv-04324-LB – ECF No. 91-1 at 160 (p. 14:14–18).

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Camera 10 Video, Ex. B to Loebs Decl. – ECF No. 94-3; OPD Administrative Report – ECF No. 1027 at 5. The court takes judicial notice that on November 15, 2015, the sun set at 4:57 p.m. and twilight
ended at 5:25 p.m. See https://www.timeanddate.com/sun/usa/oakland?month=11&year=2015 (last
checked January 20, 2019).
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Hughes Decl. – ECF No. 94-24 at 3–4 (¶ 8); Hughes Dep. – ECF No. 111 at 8 (p. 18:1–24).

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Hughes Dep. – ECF No. 111 at 25 (pp. 87:16–88:10).

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See infra (summarizing deposition testimony).

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Hughes Dep. – ECF No. 111 at 8–9 (pp. 21:16–22:2), 24–25 (pp. 84:17–85:20, 86:23–87:4); Hughes
Decl. – ECF No. 94-24 at 4 (¶ 10).

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Forensic Report, Ex. B to Greene Decl. – ECF No. 94-23 at 5 (timeline of shots); Ballistics Report,
Ex. C to Loebs Decl. – ECF No. 94-4 at 2; Crime Report, Ex. D to Loebs Decl. – ECF No. 94-5 at 2.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

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shots at Mr. Perkins.15 Then — within 2.4 seconds16 — the officers more or less simultaneously

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fired: Officer Hughes (two consecutive shots); Sergeant Turner (four consecutive shots); Officer

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Barnard (four consecutive shots); and Officer Cairo (two consecutive shots).17 Mr. Perkins

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sustained 15 bullet wounds and died at the scene.18 His body position was about 20 feet from the

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nearest patrol vehicle, where the officers were standing at the time of the debriefing.19

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Mr. Perkins’s gun was a pellet-gun “Desert Eagle” pistol, which is made by the same company

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(Magnum Research, Inc.) that makes the Desert Eagle .50 caliber semiautomatic pistol.20 It was 11

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inches long with a 5 and ¾ inch barrel that can shoot .177 caliber pellets.21 The photographs below

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are (on the left) a Desert Eagle semiautomatic pistol, and (on the right) Mr. Perkins’s pellet gun.22

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United States District Court
Northern District of California

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Forensic Report, Ex. B to Greene Decl. – ECF No. 94-23 at 5 (showing shot timeline).

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Id.

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OPD Administrative Report – ECF No. 102-7 at 19; Ballistics Report, Ex. C to Loebs Decl. – ECF
No. 94-4 at 2; Crime Report – Ex. D to Loebs Decl. – ECF No. 94-5 at 2.

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Coroner’s Report, Ex. H to Sorensen Decl. – ECF No. 118 at 2–3, 8–13.

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Scene Diagram, Ex. A to Chavez Decl. – ECF No. 94-20 at 2; OPD Administrative Report – ECF No.
102-7 at 65–67 (enlarged version).

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Hughes Decl. – ECF No. 94-24 at 4 (¶¶ 14–15).

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Id. (¶ 14); Mot. – ECF No. 94 at 13 n.6 (citing manufacturer specifications).

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Pictures of Pellet Gun and Desert Eagle Semiautomatic Pistol, Exs. C & D to Hughes Decl. – ECF
Nos. 94-27 and 94-28. The court viewed the pellet gun at the January 24, 2019 summary-judgment
hearing.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

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Two security cameras at the adjacent gas station recorded the shooting.23 The image quality is

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poor. “Camera 2” was about twenty feet west of Mr. Perkins’s location when he was shot, and

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“Camera 10” was about eighty feet west.24 In the Camera 2 video, Mr. Perkins enters the frame

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from the left, walking southbound (toward the officers) along the 90th Avenue sidewalk.25 It is

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dark.26 A lighter-color shirt is visible below his sweatshirt.27 His right arm goes up over his head,

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and an object (the pellet gun) is visible for the first time, in the air, separated from his body, near his

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right hip.28 Mr. Perkins twists back to his right and falls to the ground on his left side.29 The pellet

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gun falls on the ground near his right foot, and Mr. Perkins rolls further away from the gun, first

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two or three feet away, and then about four feet away.30 In the Camera 10 video, officers turn
toward Mr. Perkins’s direction, and an officer raises his arms in a firing position, before Mr. Perkins

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Northern District of California

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enters the camera’s view.31 Mr. Perkins is visible only after he is shot and falls to the ground.32

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There are muzzle flashes after Mr. Perkins is on the ground on his back.33

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An exhibit shows the frames from the two videos side by side, accounting for the different

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recording speeds of the two cameras.34 Camera 10 recorded 10 frames per second (one every 100

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Camera 2 Video and Camera 10 Video, Exs. A & B to Loebs Decl. – ECF Nos. 94-2 and 94-3.

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Scene Diagram, Ex. A to Chavez Decl. – ECF No. 94-20 at 2.

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Camera 2 Video, Ex. A to Loebs Decl. – ECF No. 94-2.

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Id.

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Id.

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Id.

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Id.

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Id.; Fredericks Report, Ex. C to Sorensen Decl. – ECF No. 112 at 4. The Fredericks Report was
lodged with the court in electronic format and not filed on the docket, and therefore does not contain
ECF-generated headers. The pin cites for the Fredericks Report refer to the page numbers at the bottom
of the report.

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Camera 10 Video, Ex. B to Loebs Decl. – ECF No. 94-3.

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Id.

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Id.

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Fredericks Report, Ex. C to Sorensen Decl. – ECF No. 112 at 14 (image-examination PDF), 14–17
(descriptions of images). Mr. Fredericks accurately describes the camera images. Ordinarily, the court
would allow expert testimony at trial only about the process to create the video images and would not
allow expert testimony about what the images depict because a lay person can see what the images are.
Zeen v. Cty. of Sonoma, No. 17-cv-02056-LB, 2018 WL 3769867, at *2 (N.D. Cal. Aug. 9, 2018); see

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

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milliseconds), and Camera 2 recorded seven frames per second (one every 143 milliseconds).35 At

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17:34:10, the officers are grouped near a squad car (Camera 10, slide 4).36 At 17:34:11, an officer

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turns toward Mr. Perkins (Camera 10, slides 13 to 17) and Mr. Perkins enters the camera’s view

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(Camera 2, slide 18).37 The officer raises his arms to a shooting position at 17:34:12 (Camera 10,

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slides 33 to 42).38 At 17:34:13, Mr. Perkins is more visible; he is wearing the black hooded

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sweatshirt, and a lighter shirt is visible at the bottom of the sweatshirt (Camera 2, slides 38 to 47).39

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His right hand is at his side (Camera 2, slide 49).40 At 17:34:14, Mr. Perkins’s right hand moves up

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to the height of his right shoulder, and he spins back to his right and begins to fall to the ground

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(Camera 2, slide 56).41 At 17:34:14, Mr. Perkins is spinning to his right and falling down to his left,
his lower right jacket is swinging outward to the right (showing more of the lighter shirt), and the

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Northern District of California

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gun is visible for the first time as a blurred object in the air near his right hip (Camera 2, slide 59).42

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He continues to fall to the ground, with his right hand visible over his right shoulder (Camera 2,

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also Lee v. Anderson, 616 F.3d 803, 808–09 (8th Cir. 2010) (allowing expert to testify about how he
modified the video but disallowing testimony about whether the video showed that the plaintiff did not
have a gun because “the jury was entirely capable of analyzing the images and determining whether
[plaintiff] had anything in his hands,” and the expert’s opinion “would not have assisted the jury but
rather would have told it what result to reach”); Lam v. City of San Jose, No. 14-cv-00877-PSG, 2015
WL 6954967, at *2 (N.D. Cal. Nov. 10, 2015) (audio expert may explain enhancement process and play
the enhanced audio but cannot testify about what the recorded person said). But given the poor quality
of the images and the hours it took the court to confirm the expert’s account, his frame-by-frame
account may be useful to the trier of fact. After all, in the ordinary case, the plaintiffs might have a
sponsoring witness to talk about the images. They do not in this case because Mr. Perkins is dead. In any
event, at summary judgment, the court verified the facts through its intensive review of the images. The
defendants concede that the video is consistent with the officers’ accounts. Reply – ECF No. 129 at 8.
For example, it does not show the location of the gun when it left Mr. Perkins’s hand or body. Id. The
expert identifies only when the gun becomes visible in the video. See infra (discussing this point). The
court can address the extent of trial testimony in its order on any motion in limine.
35

Fredericks Report, Ex. C to Sorensen Decl. – ECF No. 112 at 3, 13–14.

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Id. at 14 (image-examination PDF).

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Id. at 14 (image-examination PDF), 15 (description of images).

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Id. at 14 (image-examination PDF), 15 (description of images).

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Id. at 14 (image-examination PDF), 15 (description of images).

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Id. at 14 (image-examination PDF), 15 (description of images).

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Id. at 14 (image-examination PDF), 15 (description of images).

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Id. at 14 (image-examination PDF), 16 (description of images).

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ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

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slide 61).43 He falls to the ground on his left side, and the gun falls near his right foot (Camera 2,

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slide 62).44 He rolls to his right, on his back, and the gun is two or three feet from his feet (and

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farther from his hands) (Camera 2, slide 64).45 At 17:34:15, Mr. Perkins rolls back further to his

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right, and the gun is now about four feet from his left foot (and farther from his hands) (Camera 2,

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slides 67 and 68).46 At 17:34:15, there are two muzzle flashes from one officer’s gun (Camera 10,

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slides 69 and 73), after Mr. Perkins is on the ground, on his back (Camera 2, slides 69 and 73).47

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The first flash is approximately 715 milliseconds (Camera 10) after the gun is first visible falling to

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the ground (Camera 2) and the second is approximately one second (Camera 10) after the gun is

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visible falling to the ground (Camera 2).48 It is not possible to create an accurate record of each

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muzzle flash visible to the human eye during the shooting because muzzle flashes that occurred

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Northern District of California

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between frames (separated in time by 100 milliseconds for Camera 10) are not recorded.49
According to ShotSpotter, the shots were fired as follows: 50

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Shot

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17:34:11.525

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17:34:11.159

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Time

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17:34:12:725

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Id. at 14 (image-examination PDF), 16 (description of images).

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Id. at 14 (image-examination PDF), 16 (description of images).

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Id. at 14 (image-examination PDF), 16 (description of images).

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Id. at 14 (image-examination PDF), 17 (description of images).

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Id. at 14 (image-examination PDF), 17 (description of images).

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Id. at 17.

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Id.

50

Forensic Report, Ex. B to Greene Decl. – ECF No. 94-23 at 5; ShotSpotter Audio Recording, Ex. A to
Greene Decl. – ECF No. 94-22. ShotSpotter has three primary components: acoustic sensors, a locationserver application, and the ShotSpotter Flex user interface. Forensic Report, Ex. B to Greene Decl. –
ECF No. 94-23 at 2. Each acoustic sensor is triggered by impulsive sounds in its environment. Id. The
acoustic measurements of these sounds and the time that they are detected are transmitted to the location
server as possible gunshots. Id. The location server analyzes the data received and determines whether
the impulsive sound can be geographically located and classified as gunfire. Id. If it can be located and
classified as gunfire, the location server reports the incident to the ShotSpotter service-operations center,
where a human operator reviews the incident for classification accuracy. Id.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

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17:34:13.081

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17:34:13.381

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17:34:13.693

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17:34:14.074

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17:34:14.226

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17:34:14.449

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17:34:14.539

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17:34:14.596

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17:34:14.653

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Northern District of California

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17:34:14.807

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There is a command on the ShotSpotter audio that sounds like “ground” before the first two

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shots were fired, and a command to “get on the ground” before the remaining shots were fired.51
At 17:34:34, an officer picks up the gun (Camera 2, slides 346 to 352).52 (The officer was

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Officer Hughes, who realized then that it was a “replica” based on its weight.53) At 17:34:36, he
puts it back on the ground, two to three feet from its original position and farther away from Mr.
Perkins’s body (Camera 2, slide 378).54
Officer Hughes turned his body camera on immediately after the shooting.55 It records the

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following conversation between Officers Hughes and Faeth:

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51

ShotSpotter Audio Recording, Ex. A to Greene Decl. – ECF No. 94-22; Forensic Report, Ex. B to
Greene Decl. – ECF No. 94-23 at 5. The defendants characterize the first command as inaudible, Mot. –
ECF No. 94 at 14–15 n.10, and it was hard to hear on the court’s overhead system, but the version on
the lodged CD was audible.
52

Fredericks Report, Ex. C to Sorensen Decl. – ECF No. 112 at 14 (image-examination PDF), 17
(description of images).

53

OPD Administrative Report – ECF No. 107-7 at 26.

54

Fredericks Report, Ex. C to Sorensen Decl. – ECF No. 112 at 14 (image-examination PDF), 17
(description of images).

55

Body Camera Recording, Ex. F to Sorensen Decl. – ECF No. 116-1.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

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Officer Hughes:
Officer Faeth:
Officer Hughes:
Officer Faeth:
Officer Hughes:

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Oh my God, I thought he was trying to fucking get — he was, man.
Hey, he, he reached.
He had it out. He fucking had it out. He had it out, dude.”
I just saw his hand on it. All right. Just —
Oh, fuck man.56

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It is undisputed that Mr. Perkins said nothing to the officers.57

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The next sections summarize (1) the officers’ accounts of the shooting, (2) a civilian

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eyewitness’s account, (3) other evidence, and (4) the relevant procedural history.

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1. Officer Accounts of the Shooting

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1.1

Officer Allahno Hughes’s Account

During the debriefing, Officer Hughes saw Mr. Perkins walking down the sidewalk on 90th

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Northern District of California

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Avenue, toward the officers, and made eye contact with him.58 Mr. Perkins had a “determined”

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look, “like he was ready to get down,” which concerned Officer Hughes given the obvious police

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presence and squad cars with flashing lights.59 When Mr. Perkins was about 40 feet away, he —

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without breaking eye contact with Officer Hughes — reached under his sweatshirt with his right

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hand and into his pants, and pulled a gun “up and out and set it down by his leg.”60 Officer Hughes

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“immediately identified it as a Desert Eagle pistol, which [he] underst[ood] to be one of the most

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powerful handguns made.”61 He yelled something to the effect of, “Code 7” or “this guy is Code 7”

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(meaning, the person has a gun or a weapon) to warn the other officers.62

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56

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Transcript of Body Camera Recording, Ex. F to Sorensen Decl. – ECF No. 116 at 7.

57

See, e.g., Faeth Dep. – ECF No. 94-15 at 6 (p. 25:6–13).

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58

Hughes Dep. – ECF No. 111 at 24 (pp. 83:21–85:9, 85:13–20), 48 (p. 179:14–22).

59

Id. at 32 (p. 115:1–11), 48 (p. 179:14–22).

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Id. at 25 (p. 87:1–15), 32 (p. 115:8–9), 33 (p. 120:2–19); Google Image – ECF No. 94-8 at 30 (Officer
Hughes marked location); Scene Diagram, Ex. A to Chavez Decl. – ECF No. 94-20 at 2 (location of
officers’ vehicles and Mr. Perkins’s body); OPD Administrative Report – ECF No. 102-7 at 50
(officers’ locations).
61

Hughes Dep. – ECF No. 111 at 46–47 (pp. 173:25–175:6) (describing pistol as iconic); Hughes Decl.
– ECF No. 94-24 at 4 (¶ 10).

62

Hughes Dep. – ECF No. 111 at 25 (p. 87:16–24). “Code 7” means someone has a gun or weapon but
doesn’t convey what the person is doing with the weapon. Id. (p. 88:1–10).

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

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Officer Hughes pulled out his gun and moved north (toward Mr. Perkins) to try to take cover

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behind a vehicle and to put himself between Mr. Perkins and the other officers because some

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officers had their backs to Mr. Perkins.63 Mr. Perkins continued to walk south toward the officers.64

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Sergeant Turner “jumped up kind of on the sidewalk in front of” Mr. Perkins, who “had been

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carrying the gun . . . kind of behind him.”65 “As Sergeant Turner turned in front” of Mr. Perkins,

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Officer Hughes saw the gun “go from behind” Mr. Perkins’s “thigh where it was covered, blocked

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by a body, to more of this position, angled position in front of his body . . . .”66 Mr. Perkins was

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looking “straight in front of him” toward Sergeant Turner.67 The gun was “oriented at that angle we

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talked about towards the ground, not completely up,” at about a 45-degree angle from the ground.68
At that point, Mr. Perkins was about 15 feet away, and Officer Hughes fired two rounds at him

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Northern District of California

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because he thought Mr. Perkins was going to shoot Sergeant Turner.69 He thought that the first shot

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missed Mr. Perkins because Mr. Perkins “kept moving south towards Joe [Sergeant Turner]. He

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didn’t drop the gun.”70 He thought the second shot hit Mr. Perkins because “he twitched and his

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torso kind of opened up towards me, so I thought I got him, I hit him, that was a good hit.”71 Officer

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Hughes stopped to “assess[] for a second” to see whether Mr. Perkins would fall, drop the gun, or

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run, but Mr. Perkins continued to walk toward Sergeant Turner.72 Officer Hughes thought that Mr.

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63

Id. (pp. 88:11–89:11), 30 (p. 109:2–5).

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Id. at 25 (p. 89:15), 30 (p. 109:5–6).

65

Id. at 25 (p. 89:15–20).

66

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Id. (p. 89:21–22), 30 (p. 109:14–19), 47 (p. 176:21–24), 48 (p. 178:9–17).

67

Hughes Internal Affairs (“IA”) Interview – ECF No. 123 at 8 (p. 7:11–13).

23

68

21

24
25
26
27
28

Hughes Dep. – ECF No. 111 at 48 (p. 178:9–17), 35 (p. 129:4–12); Hughes IA Interview – ECF No.
123 at 7–8 (pp. 6:24–7:3), 39 (p. 38:11–21) (characterizing it as a natural walking motion, at his side,
“not necessarily in a low ready”).

69

Hughes Dep. – ECF No. 111 at 30 (p. 109:10–24), 33 (p. 121:24–25), 48 (pp. 179:2–12, 181:12–21);
Hughes IA Interview – ECF No. 123 at 8 (p. 7:8–17).

70

Hughes Dep. – ECF No. 111 at 30–31 (pp. 109:14–110:1).

71

Id. at 31 (p. 110:2–5).

72

Id. (p. 110:5–11).

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

10 

1

Perkins “had picked” Sergeant Turner and was “going after” him, so he fired again.73 He stopped

2

when he saw Mr. Perkins fall, about 30 feet from where Mr. Perkins pulled the gun initially.74 As

3

Mr. Perkins fell, the gun fell out of his hand and landed “a ways away from him.”75 Officer Hughes

4

did not have time to issue a warning to Mr. Perkins because of the immediate threat he posed to the

5

officers.76
1.2 Officer Jonathan Cairo’s Account

7

During the debriefing, Officer Cairo heard the Code 7 warning, looked north, and saw Mr.

8

Perkins “walking southbound on the west sidewalk” holding a “large handgun” in his right hand,

9

with a long barrel.77 “It was pointed down at the ground but in front of his leg, so forward down in

10

front of his leg, but still down in a downward stretch.”78 He looked for cover and lost sight of Mr.

11
United States District Court
Northern District of California

6

Perkins, and when he saw him again, Mr. Perkins was moving closer and was raising his right hand

12

(with the gun in it) towards the officers.79 “[T]he gun was coming up,” but Officer Cairo couldn’t

13

remember “the exact [angle] — if it was 90 or — I can’t tell you that. I don’t remember.”80 Officer

14

Cairo fired twice because he thought Mr. Perkins was going to shoot them.81 He saw Mr. Perkins

15

fall but did not see where the gun went.82

16
17
18
19

73

Id. (p. 110:12–16).

20

74

Id. (p. 110:15–17); Hughes Decl. – ECF No. 94-23 at 4–5 (¶ 16).

75

Hughes Dep. – ECF No. 111 at 31 (p. 110:17–19).

21
22
23
24

76

Hughes IA Interview – ECF No. 123 at 30 (p. 29:11–16); Hughes Decl. – ECF No. 94-24 at 5 (¶ 17)
(didn’t remember giving a warning but didn’t have time to do so).

77

Cairo Dep. – ECF No. 119 at 24 (pp. 82:4–84:11); Cairo IA Interview – ECF No. 125 at 13 (p. 12:11–
12), 17 (p. 16:3–15) (gun was aimed down, but as Mr. Perkins turned to the left, “it looked almost like
he was raising it . . . . [I]t wasn’t exactly pointed off the ground, but . . . I’m not sure . . . .”).

78

25

Cairo Dep. – ECF No. 119 at 24 (p. 84:9–11).

79

Id. at 25 (pp. 88:12–90:22), 28 (p. 100:18–23).

26

80

Id. at 26 (pp. 90:19–91:5).

81

Id. (p. 91:6–9); Cairo IA Interview – ECF No. 125 at 13 (p. 12:11–12).

82

Cairo Dep. – ECF No. 119 at 30 (p. 108:18–24).

27
28

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

11 

1

1.3

Officer Joshua Barnard’s Account

2

During the debriefing, Officer Barnard thought he heard Officer Hughes (who was standing next

3

to him) say, “Drop the gun. Drop the gun.”83 Officer Barnard looked north, where Officer Hughes

4

faced, and saw that Officer Hughes had drawn his firearm.84 He saw Mr. Perkins walking toward

5

them, holding a firearm in his right hand, which was “at his side slightly positioned behind him by

6

his back.”85 Officer Barnard began to “side-step” to his right, drew his firearm, and pointed it at Mr.

7

Perkins.86 Mr. Perkins “raise[d] the gun up from the initial position . . . to an upward position,” and

8

it was “pointed in a forward direction . . . higher” than 45 degrees.87 From his position, Officer

9

Barnard could not tell whether Mr. Perkins “was specifically pointing [his gun] at anyone.”88
Officer Barnard then fired four shots at Mr. Perkins because he “felt that [Mr. Perkins] was

11
United States District Court
Northern District of California

10

potentially going to shoot [him] or the other officers.”89 After he was shot, Mr. Perkins “twist[ed],

12

almost [at] a 180 motion” and fell onto his back.90 Officer Barnard did not shoot after Mr. Perkins

13

fell.91

14

1.4

Sergeant Joseph Turner’s Account

15

During the debriefing, Sergeant Turner heard Officer Hughes say “Code 7” while moving in

16

front of him, and Sergeant Turner turned in that direction.92 He saw Mr. Perkins walking toward the

17

officers, with his arms moving “with his walking motion,” with a “large, black handgun” in his right

18
19
20
21

83

Barnard Dep. – ECF No. 120 at 17 (p. 56:4–25) (he did not hear “Code 7”); Barnard IA Interview –
ECF No. 126 at 36 (p. 35:4–8) (did not hear anyone else give commands).

84

22

Barnard Dep. – ECF No. 120 at 18 (p. 59:13–20), 32 (p. 114:7–23).

85

Id. at 18 (pp. 59:18–60:6).

23

86

Id. at 19 (p. 65:9–22).

87

Id. at 20 (pp. 67:8–10, 68:17–21), 22 (p. 77:11–24).

88

25

Id. at 20 (p. 67:15–19).

89

Id. at 20 (pp. 67:11–14, 69:11–19).

26

90

Id. at 21 (pp. 71:23–72:13).

91

Id. at 22 (p. 75:2–4).

92

Turner Dep. – ECF No. 121 at 27 (p. 97:1–14), 28 (p. 98:2–6).

24

27
28

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

12 

hand, “pointed downwards.”93 Sergeant Turner drew his weapon and moved a short distance to his

2

left (west) toward the gas station.94 He heard (whom he believed to be) Officer Hughes tell Mr.

3

Perkins to “get down on the ground,” and he waited to see whether Mr. Perkins would obey the

4

command.95 Mr. Perkins then moved the gun from a position “angled towards the ground . . . to up

5

into the center mass of his body,” pointing toward the officers.96 As Mr. Perkins raised the gun,

6

Sergeant Turner lost sight of the gun because Mr. Perkins was backlit, and the gun disappeared into

7

the “dark mass of [Mr. Perkins’s] center mass area.”97 Sergeant Turner then heard several gunshots,

8

saw that Mr. Perkins was still standing and pointing the gun at the officers, and shot at Mr. Perkins

9

because he thought Mr. Perkins was going to shoot them.98 He did not see the gun again before he

10

began shooting.99 He did not warn him before shooting.100 He did not recall seeing Mr. Perkins fall

11
United States District Court
Northern District of California

1

or drop his gun.101

12

1.5

Officer Cullen Faeth’s Account

13

Officer Faeth (who worked and socialized with Officer Hughes and thus recognized his voice)

14

heard “Code 7,” thought it was Officer Hughes, thought Officer Hughes yelled “something like,

15

‘He’s got a gun,’” and heard other commands but didn’t recall exactly what they were.102 He saw

16

Mr. Perkins walking south toward the officers and (in his deposition) said that he did not see

17

anything in Mr. Perkins’s hands because Officer Hughes blocked his view.103 The plaintiffs’

18
19

93

20

Id. at 28 (pp. 98:10–99:3, 99:19–100:5).

94

Id. at 28–29 (pp. 100:19–102:16) (moved the equivalent of one large step).

21

95

Id. at 31 (pp. 111:24–112:9).

96

Id. (pp. 110:20–111:1), 33–34 (pp. 121:20–122:12).

97

Id. at 31 (p. 111:2–11).

22
23
24

98

Id. (p. 112:14–19), 40 (p. 146:4–10) (was standing “straight up”); cf. id. at 41 (pp. 151:7–152:18)
(Sergeant Turner did not recall shooting Mr. Perkins when he was on the ground).

99

Id. at 34–35 (pp. 125:13–126:4), 38 (p. 140:1–10).

25

100

Id. at 43–44 (pp. 161:19–162:24).

26

101

Id. at 44 (p. 163:17–20), 45 (p. 166:6–18).

102

Faeth Dep. – ECF No. 94-15 at 3–4 (p. 19:6–20:14).

103

Id. at 5–6 (pp. 24:24–25:4).

27
28

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

13 

1

counsel played the body-camera recording of Officer Faeth’s statements that Mr. Perkins “reached”

2

and (in response to Officer Hughes’s statement that “he had it out”) “I just saw his hand on it.”104

3

Officer Faeth acknowledged that he told Officer Hughes that he “just saw his hand on it” but said

4

that he did not remember “sit[ting] here today” whether he saw a gun in Mr. Perkins’s hand.105

5

1.6 Other Officers’ Accounts

6

Officer Bryan Budgin heard “Code 7” and saw Mr. Perkins with “a large, black, semiautomatic

7

handgun” in his right hand “down at the side slightly forward as he came into view.”106 He saw the

8

muzzle of the gun move “slightly forward and up” to approximately 45 degrees.107 Mr. Perkins then

9

“crossed into a plane where Officer Hughes was in front of me towards the right. At around that
time, I heard ‘Drop it, show me your hand,’ . . . followed by two gunshots.”108 He believed that he

11
United States District Court
Northern District of California

10

pointed his gun at Mr. Perkins.109

12

Officer Marco Noriega heard Officer Hughes say, “Code 7 gun,” thought he heard someone say

13

something along the lines of “[p]olice, don’t move,” and looked up.110 He saw Mr. Perkins walking

14

south (toward the police) with a firearm in his right hand, down near his right thigh, next to his right

15

buttock, “swinging the gun as someone does when walking,” in the low-ready position, “kind of

16

trying maybe to conceal, I guess, or hide” it.111 He heard officers say, “Put it down” and

17
18
19
20
104

21

Faeth Dep. – ECF No. 117 at 10–11 (pp. 29:8–30:10); see Transcript of Body Camera Recording, Ex.
F to Sorensen Decl. – ECF No. 116 at 7.

22

105

23

Faeth Dep. – ECF No. 117 at 11 (pp. 30:12–31:22).

106

Perkins Budgin Dep., No. 3:16-cv-04324-LB – ECF No. 91-1 at 147 (p. 19:21–25), 148 (p. 21:7–9),
151 (p. 24:19–21).

107

Id. at 152 (p. 25:1–5).

108

Id. at 149 (p. 22:21–25).

109

26

Id. at 155 (p. 30:4–12).

110

Perkins Noriega Dep., No. 3:16-cv-04324-LB – ECF No. 91-1 at 175–176 (pp. 16:19–17:4).

27

111

24
25

28

Id. at 176 (p. 17:4–14), 177 (p. 20:7–14); Noriega Dep. – ECF No. 94–13 at 4–5 (pp. 18:6–19:5);
Noriega IA Interview – ECF No. 127 at 6 (p. 5).

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

14 

1

“[s]omething along the lines of ‘get down,’ but I don’t remember.”112 Mr. Perkins did not

2

respond.113
Officer Robert Blakeley heard an officer say “Code 7,” saw an officer move through the circle

3
4

of police officers in a “northwestern direction,” looked in that direction, and unholstered his

5

firearm.114 He then saw Mr. Perkins walking toward the officers, carrying a “very large firearm in

6

his [right] hand.”115 “His right arm appeared to be at a 45-degree angle in the front of his body,” not

7

at shoulder height but “down closer to his leg.”116 The position was “similar to what would be a

8

low-ready position” but it was “not what we would consider a low-ready position. [A] [l]ow-ready

9

position would be like two hands on the firearm at a position ready to fire.”117 When asked whether
he heard any officer “shout a warning” before shots were fired, Officer Blakely said that he heard

11
United States District Court
Northern District of California

10

shouting that he believed were commands but did not remember specific words.118 He saw Mr.

12

Perkins raise the gun to “almost parallel” before he heard any shots fired.119 He did not fire at Mr.

13

Perkins because he did not have a clear shot.120
Officer Nicolas Petersen heard “Code 7” and officers “verbally challeng[ing]” Mr. Perkins, but

14
15

did not remember “what words were used.”121 Mr. Perkins had a “large firearm in his right hand . . .

16
17
18
19
112

Noriega Dep. – ECF No. 94-13 at 6–7 (pp. 23:19–24:3).

113

21

Id. at 7 (p. 24:4–6).

114

Blakely Dep. – ECF No. 94-10 at 3 (p. 31:2–13), 4 (p. 33:20–25).

22

115

Id. at 5–6 (pp. 34:23–35:2), 9–10 (pp. 38:6–39:3).

116

Id. at 7–8 (pp. 36:13—37:9).

117

Id. at 8–10 (pp. 37:12–39:8).

20

23
24
25

118

Id. at 11 (p. 70:14–18); Perkins Blakely Dep., No. 3:16-cv-04324-LB – ECF No. 91-1 at 138 (p.
58:1–13).

119

26

Blakely Decl. – ECF No. 94-18 at 3 (¶ 7).

120

Id. (¶¶ 6–7).

27

121

28

Petersen Dep. – ECF No. 94-12 at 7 (p. 29:14–18); Perkins Peterson Dep., No. 3:16-cv-04324-LB –
ECF No. 91-1 at 190 (p. 23:1–7).

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

15 

1

[t]o the right side of his body.”122 He saw Mr. Perkins “raise the gun . . . forward of his right leg and

2

coming forward.”123
Officer Uriel Martinez Contreras was sitting in his patrol car and saw Mr. Perkins walking south

3
4

toward the officers.124 Mr. Perkins passed the patrol car, turned to look at Officer Martinez

5

Contreras, and looked “normal.”125 A minute later, Officer Martinez Contreras heard a single shot,

6

got out of his car, saw Mr. Perkins standing, and at that moment, did not see Mr. Perkins with a gun

7

because it was not possible from his vantage point.126 He thought he heard Sergeant Turner say,

8

“Drop it,” and believed that he observed Sergeant Turner firing four or five shots.127 He then saw

9

Mr. Perkins turn to his right with a large semi-automatic weapon in his right hand, about chest

10

height.128 He then saw the gun drop to the ground.129
Officer Vanessa Kelley heard “Code 7.”130 A second or two before the first shots were fired, she

United States District Court
Northern District of California

11
12

also heard “Put it down. Put the gun down.”131 She saw Mr. Perkins, could not see below his neck,

13

and did not see his hands or whether he had anything in them.132

14
15

2. Civilian Eyewitness Christopher Wise’s Account
One civilian eyewitness — Christopher Wise, who had known Mr. Perkins for four years —

16
17

witnessed the shooting from outside of his then-home, Hampton Transitional Housing, across the

18
19
20
21

122

Perkins Peterson Dep., No. 3:16-cv-04324-LB – ECF No. 91-1 at 186–187 (pp. 17:21–18:10).

123

Id. at 187 (p. 18:11–15).

124

Perkins Martinez Contreras Dep., No. 3:16-cv-04324-LB – ECF No. 91-1 at 160 (p. 14:14–18), 161–
162 (pp. 15:25–16:3).

125

Id. at 162 (p. 16:4–9), 168 (p. 24:1–23).

126

23

Id. at 162–64 (pp. 16:4–18:8).

127

Id. at 162–63 (pp. 16:25–17:25).

24

128

Id. at 169 (p. 27:1–8).

129

Id. (p. 27:11–12).

130

Kelley Dep. – ECF No. 94-14 at 4 (p. 14:6–8).

22

25
26
27
28

131

Id. at 6 (p. 26:15–18); Perkins Kelley Dep., No. 3:16-cv-04324-LB – ECF No. 91-1 at 195 (p. 17:7–
18) (did not hear “If you don’t put the gun down, I will sho[o]t you.”).

132

Kelley Dep. – ECF No. 94-14 at 5 (p. 15:10–14), 6 (p. 26:19–23).

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

16 

1

street from the gas station.133 He gave the following information to the police in a recorded

2

statement.

3

Right before the shooting, he saw police cars and the officers standing on the sidewalk.134 He

4

saw Mr. Perkins “on the side by the pumps . . . [for] air and water.”135 He watched Mr. Perkins walk

5

up to the group of officers “semi-aggressive cuz he was moving hella fa- like fast like . . .

6

[s]tomping his feet, you know.”136 Mr. Perkins was “irritated,” but he “didn’t pull the gun out. The

7

gun was in his waist band.”137 Mr. Perkins “lift[ed] his shirt up like . . . to . . . show ‘em the firearm.

8

Like, he was kinda like surrendering, like not aiming, like grabbing for it . . . .”138 The officers

9

yelled, “Gun – Gun – Gun.”139 He then heard multiple shots — what “sounded like maybe a ten

10

clip” — and saw Mr. Perkins fall to the ground.140
The parties have been unable to locate Mr. Wise and thus did not depose him or obtain a

United States District Court
Northern District of California

11
12

declaration from him.141

13
14
15
16
17
18

133

Wise Video and Transcript, Ex. E to Sorensen Decl. – ECF Nos. 114 (pp. 7–10), 115; Wise
Transcript, Ex. C to Loebs Supp. Decl. – ECF No. 129-2 at 12 (p. 5:7–11), 13–15 (pp. 6:4–15:21).

134

Wise Transcript, Ex. C to Loebs Supp. Decl. – ECF No. 129-2 at 19–20 (pp. 12:5–13:13).

135

Id. at 16 (p. 9:1–11), 25 (p. 18:18) (standing by the pumps). The video shows Mr. Perkins falling to
the ground on the west sidewalk on 90th avenue, about 70 feet from the nearest pump. Camera 2 Video,
Ex. A to Loeb Decl. – ECF No. 94-2; Scene Diagram, Ex. A to Chavez Decl. – ECF No. 94-20 at 2.

19

136

Wise Transcript, Ex. C to Loebs Supp. Decl. – ECF No. 129-2 at 26–27 (pp. 19:17–20:1).

20

137

Id. at 27 (p. 20:3–4).

138

Id. at 11–12 (pp. 4:12–5:2).

139

22

Id. at 23 (p. 16:18–22).

140

Id. at 12 (p. 5:2–3), 28 (p. 21:2–3).

23

141

21

24
25
26
27
28

Loebs Supp. Decl. – ECF No. 129-1 at 3 (¶ 4). Mr. Wise’s statement is inadmissible hearsay. The
court can consider it at summary judgment if the underlying evidence “could be provided in an
admissible form at trial, such as by live testimony.” JL Beverage Co., LLC v. Jim Beam Brands Co., 828
F.3d 1098, 1110 (9th Cir. 2016) (citing Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003)); see
Curnow By and Through Curnow v. Ridgecrest Police, 952 F.2d 321, 324 (9th Cir. 1991). Given the
plaintiffs’ reliance on the Wise statement, the court will not rule as a matter of law that Mr. Wise will
not be available at trial and so considers the statement to determine whether there is a dispute of fact that
precludes summary judgment. Reply – ECF No. 129 at 13–14 n.7 (arguing that Mr. Wise will not be
available). At trial, if Mr. Wise is not available, then any disputes of fact that depend solely on his
hearsay statement are no longer disputes because his statement is inadmissible.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

17 

1

3. Other Evidence
John J. Ryan, the plaintiffs’ police-practices expert, also analyzed the gas-station videos. He

2
3

said:

4

[I]t appeared to me that Perkins[’s] arms were down at this side until about the time
the shooting occurred when his arm is [sic] went up over his shoulder. I saw no
movement in the video consistent with Perkins, in any way moving his body as if
presenting a weapon in the low-ready position or the pointing position.142

5
6
7

Among other things, Mr. Ryan opined that an officer’s denial of being able to see events

8

— such as Officer Faeth’s disavowal of seeing the gun — is one of the red flags for the cone

9

of silence.143 He opined that some officers’ disavowal of their initial statements in favor of
new positions was evidence of after-the-fact justification of the shooting.144 The record

11
United States District Court
Northern District of California

10

suggested collaboration by the officers to present a version of events to cast Mr. Perkins as

12

an immediate threat.145 If there was time to give a warning to “get on the ground,” there was

13

time to give a warning.146 He said that if the “various versions offered by the involved

14

officers were accepted as true [—] specifically that Mr. Perkins[,] while in possession of the

15

replica firearm, began raising the gun toward officers or completely raised the gun toward

16

officers while approaching the officers on the sidewalk [—] then the use of deadly force

17

would be consistent with generally accepted policies, practices, training, and legal mandates

18

trained to law enforcement officers.”147
The coroner’s autopsy report shows the following (among other things) about the

19
20

wounds. Bullet wounds 2 and 3 are front to back, “superior to inferior,” meaning, from top

21

to bottom, with wound 2 at a 40-degree angle and wound 3 at a 30-degree angle.148 Brian

22
142

Ryan Report – ECF No. 113 at 75 (¶ 169).

143

Id. at 55 (¶ 123), 81 (¶ 183).

144

25

Id. at 80–81 (¶ 181).

145

Id.

26

146

Id. at 80 (¶ 180).

147

Id. at 74 (¶ 166).

148

Coroner’s Autopsy Report – ECF No. 118 at 16–17 (pp. 15:284–16:304).

23
24

27
28

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

18 

1

Peterson, a pathologist, opined that — based on the wound angles — wounds 2, 3, 4, 5, 8, 9,

2

and 10 “were sustained with Mr. Perkins supine and rolling to his left.”149 Wounds 6, 7, 13,

3

and 14 “were sustained while Mr. Perkins was upright,” and wound 1 “was delivered about

4

the same time, and likely just before. . . ” and caused the immediate ‘drop and roll’ visible in

5

the video; Mr. Perkins was deceased at this point.”150 Wounds 11, 12, and 15 “are

6

indeterminate as to body position.”151 Morphine and methamphetamine “were present at

7

toxic levels.”152

8

Police officers testified that Mr. Perkins was not a threat when he was on the ground.153

9

The defendants’ expert Kris Mohandie, a psychologist, opined that even if the officers
fired some shots when Mr. Perkins was falling or on the ground, the timing of the shots (12

11
United States District Court
Northern District of California

10

in the last two seconds) is consistent with the expected perception-reaction lag time, given

12

how fast the events unfolded.154 Once the officers decide to shoot, it takes some time to stop

13

after the officers perceive the threat is extinguished, especially in stressful circumstances.155

14

Dr. Mohandie also opined that Mr. Perkins’s death was “suicide by cop.”156
Mr. Ryan, the plaintiffs’ expert, disagreed that the reactionary gap existed based on the

15
16

physics of the shots here.157 The reactionary-gap studies explain why an officer who fires at

17

a suspect’s front actually hit the suspect’s back: that result happens because a suspect can

18
19
20
149

Peterson Report – ECF No. 102-24 at 7 (¶ 2).

150

Id. (¶¶ 1, 3).

151

23

Id. (¶ 4).

152

Id. (¶ 6).

24

153

25

154

Mohandie Report – ECF No. 94-30 at 15–18 (pp. 14–17).

26

155

Id.

156

Id. at 7–14 (pp. 8–13).

157

Ryan Report – ECF No. 113 at 78 (¶ 176).

21
22

27
28

See, e.g., Hughes Dep. – ECF No. 111 at 35 (p. 126:16–18); Cairo Dep. – ECF No. 119 at 30 (p.
109:15–18); Barnard Dep. – ECF No. 120 at 22 (p. 76:22–25).

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

19 

1

spin that fast.158 But here, an officer who fires a bullet at a standing person (who falls to the

2

ground from a previous shot) misses the person entirely.159

3

Elizabeth Smith Allen, Mr. Perkins’s relative by marriage, and Sharon Bershell, his

4

former girlfriend, testified that on several occasions, they witnessed Mr. Perkins threatening

5

people with a gun.160

6
7

4. Other Procedural History
There are two lawsuits: (1) the T.D.P. lawsuit filed by Mr. Perkins’s minor daughter T.D.P.

8
9
10

(through her mother), and (2) the Perkins lawsuit filed by Mr. Perkins’s mother Ada-Perkins
Henderson and his adult son Richard Perkins III.
The T.D.P. complaint has the following claims brought by T.D.P. individually and as her

United States District Court
Northern District of California

11
12

father’s successor in interest: (1) a violation of 42 U.S.C. § 1983 based on (a) an unreasonable

13

search and seizure in violation of the Fourth Amendment, (b) excessive and unreasonable force

14

during a seizure in violation of the Fourth Amendment, and (c) interference with the familial

15

relationship in violation of the First and Fourteenth Amendments (against the four officers who shot

16

Mr. Perkins); (2) a Monell claim (against the City of Oakland and former police chief Sean Whent);

17

(3) a violation of California’s Bane Act, Cal. Civ. Code § 52.1 (against all defendants on the same

18

theories as claim one); (4) negligence (against all defendants based on excessive-force and failure-

19

to-train-and-supervise theories); and (5) battery (against the four police officers and the City of

20

Oakland).161 The Perkins complaint has the following claims: (1) excessive force in violation of the

21

Fourth Amendment (brought by Richard Perkins as his father’s successor-in-interest against the

22

four officers who shot Mr. Perkins); (2) a violation of the parental right to a familial relationship in

23

violation of the Fourteenth Amendment (brought by Ms. Perkins-Henderson against the four

24
25
26
27
28

158

Id.

159

Id. at 78–79 (¶ 176).

160

Smith-Allen Dep. – ECF No. 94-17 at 8 (p. 42:18–20), 10 (p. 44:9–17), 14 (p. 48:14–18), 15–17 (pp.
53:23–55:22); Bershell Dep. – ECF No. 94-16 at 3 (p. 23:7–14), 4–5 (pp. 24:17–25:11), 6–9 (pp. 26:8–
29:6).

161

T.D.P. Compl., No. 3:16-cv-04132-LB – ECF No. 1 at 8–16 (¶¶ 31–57).

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

20 

1

officers); (3) a violation of the child’s right to a familial relationship in violation of the Fourteenth

2

Amendment (brought by Richard Perkins III against the four officers); (4) a Monell claim (brought

3

by Richard Perkins III as his father’s successor-in-interest against the City of Oakland; (5) a

4

violation of California’s Bane Act, Cal. Civ. Code § 52.1 (brought by Richard Perkins III as his

5

father’s successor-in-interest against all defendants); (6) battery (brought by Richard Perkins III as

6

his father’s successor-in-interest against all defendants); (7) negligence (brought by Richard Perkins

7

III as his father’s successor-in-interest against all defendants); and (8) wrongful death (brought by

8

Richard Perkins III as his father’s successor-in-interest against all defendants).162 The defendants

9

moved for summary judgment on all claims.163 The court held a hearing on January 24, 2019.164

10
SUMMARY-JUDGMENT STANDARD

United States District Court
Northern District of California

11

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

12
13

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

14

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

15

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

16

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

17

the non-moving party. Id. at 248–49.
The party moving for summary judgment bears the initial burden of informing the court of the

18
19

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

20

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

21

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party

22

must either produce evidence negating an essential element of the nonmoving party’s claim or

23

defense or show that the nonmoving party does not have enough evidence of an essential element to

24

carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos.,

25
26
27
28

162

Perkins Compl., No. 3:16-cv-04324-LB – ECF No. 1 at 4–9 (¶¶ 23–47).

163

T.D.P. Mot. for Summary Judgment, No. 3:16-cv-04132-LB – ECF No. 94; Perkins Mot. for
Summary Judgment, No. 3:16-cv-04324-LB – ECF No. 75.

164

Minute Entry – ECF No. 151.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

21 

1

Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.

2

2001) (“When the nonmoving party has the burden of proof at trial, the moving party need only

3

point out ‘that there is an absence of evidence to support the nonmoving party’s case.’”) (quoting

4

Celotex, 477 U.S. at 325).
If the moving party meets its initial burden, the burden then shifts to the non-moving party to

5

produce evidence supporting its claims or defenses. Nissan Fire & Marine, 210 F.3d at 1103. The

7

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

8

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

9

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

10

a genuine issue of material fact, the moving party is entitled to summary judgment. See Celotex, 477

11
United States District Court
Northern District of California

6

U.S. at 323.
In ruling on a motion for summary judgment, the court does not make credibility determinations

12
13

or weigh conflicting evidence. Instead, it views the evidence in the light most favorable to the non-

14

moving party and draws all factual inferences in the non-moving party’s favor. E.g., Matsushita

15

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986); Ting v. United States,

16

927 F.2d 1504, 1509 (9th Cir. 1991).

17
ANALYSIS

18
19

The defendants move for summary judgment on the following grounds: (1) the use of force was

20

reasonable under the Fourth Amendment, and in any event, they are entitled to qualified immunity;

21

(2) their actions did not violate the Fourteenth Amendment because they acted with a legitimate

22

law-enforcement objective, and they are entitled to qualified immunity; (3) there is no evidence of

23

any unconstitutional municipal custom, practice, or policy to support the plaintiffs’ Monell and

24

supervisory-liability claims; and (4) the state claims fail because the officers’ use of force was

25

reasonable.165 The court grants in part and denies in part the summary-judgment motion: (1) the

26

court denies the motion on the Fourth Amendment excessive-force claim because eyewitness

27
28

165

Mot. – ECF No. 94 at 21–34.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

22 

1

Christopher Wise’s account creates a genuine dispute of material fact (but if he is not a trial witness,

2

then the officers are entitled to qualified immunity); (2) the court grants the motion on the

3

Fourteenth Amendment claim; (3) the court grants the motion on the Monell and supervisory-

4

liability claims; and (3) the court denies the motion on the state-law claims.

5
6

1. Excessive Force — Fourth Amendment — 42 U.S.C. § 1983
The four officers who shot Mr. Perkins move for summary judgment on the excessive-force

7
8

claim on the grounds that their use of force was reasonable and they are entitled to qualified

9

immunity. Because witnesses disagree about whether Mr. Perkins had the pellet gun out or whether
it was in his waistband, the court cannot decide as a matter of law whether the use of force was

11
United States District Court
Northern District of California

10

reasonable or whether the officers have qualified immunity. The court thus denies the defendants’

12

motion for summary judgment on the Fourth Amendment claim. There is a caveat to this denial:

13

without eyewitness Christopher Wise’s account, the officers would be entitled to qualified

14

immunity because no controlling precedent establishes a Fourth Amendment violation for officers

15

acting under similar circumstances.
1.1

16
17

Governing Law
1.1.1

Excessive Force166

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

18
19

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

20

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

21

stake.” Graham v. O’Connor, 490 U.S. 386, 396 (1989) (citations and internal quotation marks

22

omitted). A court must evaluate “the facts and circumstances of each particular case, including

23

[(1)] the severity of the crime at issue, [(2)] whether the suspect poses an immediate threat to the

24

safety of the officers or others, and [(3)] whether he is actively resisting arrest or attempting to

25

evade arrest by flight.” Id. (citations omitted). The Graham factors are not exhaustive. George v.

26
27
28

166

The parties do not dispute that the officers acted under color of state law or that by shooting Mr.
Perkins, they seized him within the meaning of the Fourth Amendment.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

23 

1

Morris, 736 F.3d 829, 837–38 (9th Cir. 2013). Because “there are no per se rules in the Fourth

2

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

3

banc), courts must “examine the totality of the circumstances and consider ‘whatever specific

4

factors may be appropriate in a particular case, whether or not listed in Graham[,]’” Bryan v.

5

MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (citations omitted). Other factors relevant to the

6

analysis include the availability of less intrusive alternatives to the force used and giving proper

7

warnings before using force, if feasible. Glenn v. Washington Cty., 673 F.3d 864, 872 (9th Cir.

8

2011).
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a

10

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

11
United States District Court
Northern District of California

9

at 396 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)); see id. at 396 (“‘Not every push or shove,

12

even if it may later seem unnecessary in the peace of a judge’s chambers,’ . . . violates the Fourth

13

Amendment.”) (citations omitted). This is because “[t]he calculus of reasonableness must embody

14

allowance for the fact that police officers are often forced to make split-second judgments — in

15

circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is

16

necessary in a particular situation.” Id. at 396–97.

17

“Because [the excessive force inquiry] nearly always requires a jury to sift through disputed

18

factual contentions, and to draw inferences therefrom,” the Ninth Circuit has held that “summary

19

judgment . . . in excessive force cases should be granted sparingly.” Glenn, 673 F.3d at 871

20

(quotations and citations omitted). “This principle applies with particular force where the only

21

witness other than the officers was killed during the encounter.” Gonzales v. City of Anaheim, 747

22

F.3d 789, 795 (9th Cir. 2014) (en banc). The Ninth Circuit has said: “We are mindful that cases in

23

which the victim of alleged excessive force has died ‘pose a particularly difficult problem’ in

24

assessing whether the police acted reasonably, because ‘the witness most likely to contradict [the

25

officers’] story . . . is unable to testify.’” Gregory v. Cty. of Maui, 523 F.3d 1103, 1107 (9th Cir.

26

2008) (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994) (“[T]he court may not simply

27

accept what may be a self-serving account by the police officer.”)). “In cases where the best (and

28

usually only) witness who could offer direct testimony for the plaintiff about what happened before
ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

24 

1

a shooting has died, [Ninth Circuit] precedent permits the decedent’s version of events to be

2

constructed circumstantially from competent expert and physical evidence, as well as from

3

inconsistencies in the testimony of law enforcement.” George, 736 F.3d at 834 (citations omitted).

4

“Accordingly, [the court must] carefully examine ‘all the evidence in the record, such as medical

5

reports, contemporaneous statements by the officer[s] and the available physical evidence, . . . to

6

determine whether the officer[s’] story is internally consistent and consistent with other known

7

facts.’” Gonzales, 747 F.3d at 795 (quoting Scott, 39 F.3d at 915). The court “must also examine

8

‘circumstantial evidence that, if believed, would tend to discredit the police officer’s story.’” Id.

9

1.1.2

Qualified Immunity

“‘[T]he doctrine of qualified immunity protects government officials from liability for civil

11
United States District Court
Northern District of California

10

damages insofar as their conduct does not violate clearly established statutory or constitutional

12

rights of which a reasonable person would have known.’” Mattos, 661 F.3d at 440 (quoting Pearson

13

v. Callahan, 555 U.S. 223, 231 (2009)). “The purpose of qualified immunity is to strike a balance

14

between the competing ‘need to hold public officials accountable when they exercise power

15

irresponsibly and the need to shield officials from harassment, distraction, and liability when they

16

perform their duties reasonably.’” Id. (quoting Pearson, 555 U.S. at 231). Qualified immunity “is

17

‘an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is

18

effectively lost if a case is erroneously permitted to go to trial.’” Mueller v. Auker, 576 F.3d 979,

19

992 (9th Cir. 2009) (emphasis in original) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

20

“Under qualified immunity, an officer will be protected from suit when he or she ‘makes a decision

21

that, even if constitutionally deficient, reasonably misapprehends the law governing the

22

circumstances.’” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

23

“[Q]ualified immunity protects ‘all but the plainly incompetent or those who knowingly violate

24

the law.’” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017) (quoting Malley v. Briggs, 475 U.S. 335,

25

341 (1986)). “The doctrine of qualified immunity gives officials ‘breathing room to make

26

reasonable but mistaken judgments about open legal questions.’” Id. at 1866 (quoting Ashcroft v. al-

27

Kidd, 563 U.S. 731, 743 (2011)). “[I]f a reasonable officer might not have known for certain that

28

the conduct was unlawful[,] then the officer is immune from liability.” Id. at 1867.
ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

25 

In determining whether an officer is entitled to qualified immunity, courts consider (1) whether

1
2

the officer violated a constitutional right of the plaintiff, and (2) whether that constitutional right

3

was “clearly established in light of the specific content of the case” at the time of the events in

4

question. Mattos, 661 F.3d at 440 (citation omitted). Courts may exercise their sound discretion in

5

deciding which of these two prongs should be addressed first. Id. (citing Saucier v. Katz, 533 U.S.

6

194, 201 (2001)).
Regarding the second prong, the Supreme Court has cautioned that “‘clearly established law’

7
8

should not be defined ‘at a high level of generality’” but instead “must be ‘particularized’ to the

9

facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (citations omitted). The Supreme
Court has held that “[a]lthough [its] case law does not require a case directly on point for a right to

11
United States District Court
Northern District of California

10

be clearly established, existing precedent must have placed the statutory or constitutional question

12

beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (citing White, 137 S. Ct. at 551).

13

“Use of excessive force is an area of the law ‘in which the result depends very much on the facts of

14

each case,’ and thus police officers are entitled to qualified immunity unless existing precedent

15

‘squarely governs’ the specific facts at issue.” Id. at 1153 (citing Mullenix v. Luna, 136 S. Ct. 305,

16

309 (2015)).

17

1.2

Analysis

18

The parties do not dispute that Mr. Perkins walked down the sidewalk, toward eleven uniformed

19

officers and their five patrol cars. They dispute whether his pellet gun was in his hand or whether he

20

merely lifted his shirt to show the officers that the gun was in his waistband. If Mr. Perkins had the

21

gun in his hand — as the officers generally reported167 — the officers’ use of force might be

22
23
24
25
26
27
28

167

Hughes Dep. – ECF No. 111 at 35 (p. 129:4–12), 48 (pp. 178:9–179:12) (gun was pointed at ground;
Mr. Perkins raised it to about a 45-degree angle); Cairo Dep. – ECF No. 119 at 25–26 (pp. 88:12–91:9)
(Mr. Perkins was raising the gun); Barnard Dep. – ECF No. 120 at 18 (pp. 59:23–60:6), 20 (pp. 67:3–10,
68:17–21) (Mr. Perkins began to raise the gun); Turner Dep. – ECF No. 121 at 31 (pp. 110:20–112:19),
33–34 (pp. 121:20–122:12) (Mr. Perkins moved the gun from a position “angled toward the ground” up
to “the center mass of his body); Perkins Budgin Dep., No. 3:16-cv-04324-LB – ECF No. 91-1 at 151–
52 (pp. 24:19–25:5) (first saw the gun in Mr. Perkins’s right hand, down at his side and slightly forward,
and then saw the muzzle move slightly forward and up to about 45 degrees); Noriega Dep. – ECF No.
94-13 at 4–5 (pp. 18:6–19:9) (gun was in the low-ready position); Blakely Decl. – ECF No. 94–18 at 3
(¶ 7) (gun was at 45-degree angle); Perkins Petersen Dep., No. 3:16-cv-04324-LB – ECF No. 91-1 at
187 (p. 18:11–15) (gun was “forward of [Mr. Perkins’s] right leg and coming forward”); Perkins

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

26 

1

reasonable, and they in any event would be entitled to qualified immunity because no controlling

2

precedent establishes a Fourth Amendment violation for officers acting under similar

3

circumstances. But if Mr. Perkins lifted his shirt to reveal the gun, as eyewitness Christopher Wise

4

reports, a reasonable jury could find a Fourth Amendment violation on the ground that he posed no

5

immediate threat. This dispute of fact precludes summary judgment.

6

An officer may use deadly force if he has “probable cause to believe that the suspect poses a

7

threat of serious harm, either to the officers or to others[.]” Tennessee v. Garner, 471 U.S. 1, 11

8

(1985). When someone points a gun at an officer, the “Constitution undoubtedly entitles the officer

9

to respond with deadly force.” George, 736 F.3d at 838. But in the plaintiffs’ scenario, even with
Mr. Perkins’s erratic behavior (in the form of advancing on the police officers), “if the suspect

11
United States District Court
Northern District of California

10

doesn’t reach for his waistband or make some similar threatening gesture, it would clearly be

12

unreasonable for the officers to shoot him . . . .” Cruz v. City of Anaheim, 765 F.3d 1076, 1078 (9th

13

Cir. 2014). If Mr. Perkins only lifted his shirt to show the gun in his waistband, then a reasonable

14

jury could find that he did not pose an immediate threat and that in any event, a warning was

15

feasible. See, e.g., George, 736 F.3d at 832–33, 838–39.
The defendants nonetheless argue that the court can disregard Mr. Wise’s testimony because it

16
17

is inconsistent with the video evidence, particularly his demonstration of how Mr. Perkins raised his

18

shirt high over his chest.168 That argument fails for two reasons.
First, the videos do not show what Mr. Perkins did before he entered the cameras’ views. The

19
20

Camera 10 video shows Mr. Perkins and the police, but Mr. Perkins is visible only as he falls to the

21

ground, after he was shot.169 The Camera 2 video shows Mr. Perkins only .03 milliseconds before

22

he begins to fall.170 Both videos are incomplete accounts because events between frames (separated

23
24
25

Martinez Contreras Dep., No. 3:16-cv-04324-LB – ECF No. 191-1 at 169 (p. 27:1–8) (gun was at chest
height).
168

26

Reply – ECF No. 129 at 14

169

Camera 10 Video, Ex. B to Loebs Decl. – ECF Nos. 94-3.

27

170

28

Camera 2 Video, Ex. A to Loebs Decl. – ECF No. 94-2; Fredericks Report, Ex. C to Sorensen Decl. –
ECF No. 112 at 14 (image-examination PDF, slides 13 to 56), 15 (description of images).

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

27 

1

in time by 100 milliseconds for Camera 10 and 143 milliseconds for Camera 2) are not recorded.171

2

The gun can be seen for the first time only in midair.172 A reasonable jury could conclude based on

3

Mr. Wise’s account that Mr. Perkins only lifted his shirt to show the gun and that the shots caused

4

the gun to dislodge from his waistband.
Second, any inconsistency does not render Mr. Wise necessarily a liar. The police interviewed

5
6

him ninth months after the shooting.173 Memory can change. Witness accounts can vary. Indeed, the

7

officers’ accounts are inconsistent too. For example, some officers reported hearing warnings before

8

shots were filed, but no officer reported giving a warning.174 Another example is that the officers’

9

accounts varied about the gun position and other details.175 This is normal and is not grounds to

10

discount testimony entirely. Instead, it goes to the weight that a jury gives the evidence:

United States District Court
Northern District of California

11

Sometimes a witness may something that is not consistent with something else he or
she said. Sometimes different witnesses will give different versions of what happened.
People often forget things or make mistakes in what they remember. Also, two people
may see the same event but remember it differently. You may consider these
differences, but do not decide that testimony is untrue just because it differs from other
testimony.

12
13
14
15

9th Cir. Model Jury Instr. 1.14, Credibility of Witnesses.

16

Without Christopher Wise’s eyewitness account, the result is different. Whether Mr. Perkins

17

pointed the gun at the officers, had the gun in his hand at around 45 degrees in a walking motion (or

18

in the low-ready position) and did not point, or put his hand on the gun (as an apparent precursor to

19

pulling it out), he posed an immediate risk of harm. George, 736 F.3d at 838 (if a person is armed,

20

or reasonably suspected to be armed, “a furtive movement, harrowing gesture, or serious verbal

21

threat might create an immediate threat”). And given the serious-looking gun in Mr. Perkins’s hand,

22

the officers had split seconds to draw their guns, move to cover positions, and fire.

23
171

Fredericks Report, Ex. C to Sorensen Decl. – ECF No. 112 at 17.

172

Id. at 16.

173

26

Wise Transcript, Ex. C to Loebs Supp. Decl. – ECF No. 129-2 at 8 (August 24, 2016 interview).

174

See supra Statement (summarizing the officers’ accounts).

27

175

24
25

28

See supra Statement; T.D.P. Opp., No. 3:16-cv-04132-LB – ECF No. 102–3 at 16–18 (pointing out
discrepancies).

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

28 

1

The plaintiffs argue that merely being armed does not justify force.176 George v. Morris and

2

other cases establish the point that a weapon may not pose an immediate threat. See, e.g., id. at 832–

3

33, 838–39 (reasonable jury could find a Fourth Amendment violation if the officers “indeed shot

4

the sixty-four-year-old decedent without objective provocation while he used his walker, with his

5

gun trained on the ground”); Glenn, 673 F.3d at 873–78 (no immediate threat in a 911 scenario

6

without flight or an alleged crime when the officers shot a person holding, but not brandishing, a

7

pocket knife); Curnow, 952 F.2d at 323, 325 (according to the plaintiff’s version of the facts, the

8

decedent had a gun but was not pointing it at the officers or facing them when they shot him).
These cases involve scenarios where the threat is not immediate and warnings are feasible. By

10

contrast, here, an armed man advanced on a group of uniformed police officers next to their patrol

11
United States District Court
Northern District of California

9

cars, with emergency lights flashing, near a brightly lit gas station, at nightfall. The perceived risk

12

was immediate. That immediacy distinguishes this case from Lopez v. Gelhaus, where a reasonable

13

jury could conclude that the police shot a teenager, who was openly carrying a toy AK-47 during

14

the day, pointed at the ground, as he moved away from the officer, in a park. Lopez v. Gelhaus, 871

15

F.3d 998, 1006–13 (9th Cir. 2017). That scenario allowed for other options (such as a warning)

16

before the use of deadly force. Id. at 1002–03, 1007–08 (a reasonable jury could find a Fourth

17

Amendment violation based on the shooting of a teenager based on, among other facts, the

18

teenager’s open carrying of a toy AK-47 pointed at the ground in an open park with no other people

19

around, the possibility based on other confiscations that it was a toy, the officer’s giving a warning

20

from 65 feet away to “drop the gun,” the teenager’s “natural” reaction in turning around and not

21

knowing until then that the “warner” was a police officer, and the availability of other options such

22

as giving a warning about the use of deadly force); accord Curnow, 952 F.2d at 325.
Mr. Perkins’s threatening behavior (reaching for or pointing a gun) is more like the hypothetical

23
24

scenario in Cruz, 765 F.3d at 1078. In Cruz, a confidential informant told the police (among other

25

things) that Cruz — a known parolee with a prior felony firearms conviction — was a gang

26
27
28

176

T.D.P. Opp., No. 3:16-cv-04132-LB – ECF No 110 at 21; Perkins Opp., No. 3:16-cv-04324-LB –
ECF No. 91 at 21–22.
ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

29 

1

member, sold methamphetamine, carried a gun in his waistband, and “had made it clear that ‘he was

2

not going back to prison.’” Id. at 1077–78. After police officers converged on Cruz’s car in marked

3

and unmarked police cars, Cruz tried to escape, backing his SUV into one police car, but eventually

4

stopped. Id. at 1078. The officers got out of their cars, weapons drawn, and shouted to Cruz (as he

5

allegedly got out of his car) to get on the ground. Id. Four officers said that he reached for his

6

waistband, and five officers shot about 20 shots in two to three seconds. Id. Police officers found

7

Cruz’s body tangled in his seatbelt and hanging from it. Id. He had no weapon, but they later

8

recovered a gun from the passenger seat. Id. The Ninth Circuit said:
It would be unquestionably reasonable for police to shoot a suspect in Cruz’s position
if he reaches for a gun in his waistband, or even if he reaches there for some other
reason. Given Cruz’s dangerous and erratic behavior up to that point, the police would
doubtless be justified in responding to such a threatening gesture by opening fire.

9
10

United States District Court
Northern District of California

11
12
13

Id.; see id. at 1079–80 (disputes of fact and inconsistent reports about whether Cruz reached for the
gun precluded summary judgment).
The plaintiffs also contend that — even if Officer Hughes’s first two shots were the reasonable

14
15
16
17
18
19
20
21

exercise of force — the second volley of twelve shots was not reasonable because Mr. Perkins was
no longer a threat.177 Given the split-second reaction times and the fact that four officers shot, the
timeline probably is not amenable to parsing. See Plumhoff v. Rickard, 572 U.S. 765, 777 (2014)
(15 shots in 10 seconds in case involving traffic stop of car with a broken window, flight and a
high-speed chase, and subsequent stop and subsequent high-speed flight). The initial shots did not
“clearly incapacitate[]” Mr. Perkins and “end[] . . any threat,” or involve Mr. Perkins’s “clearly
giv[ing] himself up.” Id. at 777.
Citing Cruz, the plaintiffs argue that summary judgment is improper because the only evidence

22
23
24
25
26

is the officers’ self-serving testimony and “a jury could find that that [sic] [Mr.] Perkins would have
no reason to reach, and did not reach, for a toy gun in front of multiple armed officers.”178 Cruz is
distinguishable because there, “circumstantial evidence . . . could give a reasonable jury pause.
177

27

T.D.P. Opp., No. 3:16-cv-04132-LB – ECF No. 110 at 23–24; Perkins Opp., No. 3:16-cv-04234 –
ECF No. 91 at 25.

28

T.D.P. Opp., No. 3:16-cv-04132-LB – ECF No. 110 at 20 (citing Cruz, 765 F.3d at 1080); Perkins
Opp., No. 3:16-cv-04234 – ECF No. 91 at 21–22.

178

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

30 

1

Most obvious is the fact that Cruz didn’t have a gun on him, so why would he have reached for his

2

waistband?” 765 F.3d at 1079. The Cruz court elaborated:
Cruz probably saw that he was surrounded by officers with guns drawn. In that
circumstance, it would have been foolish — but not wholly implausible — for him to
have tried to fast-draw his weapon in an attempt to shoot his way out. But for him to
make such a gesture when no gun is there makes no sense whatsoever. A jury may
doubt that Cruz did this. Of course, a jury could reach the opposite conclusion. It might
believe that Cruz thought he had the gun there, or maybe he had a death wish, or
perhaps his pants were falling down at the worst possible moment. But the jury could
also reasonably conclude that the officers lied.

3
4
5
6
7
8

Id. at 1079–80.
The undisputed facts here, in contrast to Cruz, is that Mr. Perkins had a gun. Unlike Cruz, there

9

is corroboration of the officers’ account. See Scott, 39 F.3d at 915 (examining evidence other than

11
United States District Court
Northern District of California

10

the officers’ testimony “to determine whether the officer’s story is internally consistent and

12

consistent with other known facts”) (citation omitted). The Camera 2 video shows the gun in midair,

13

next to Mr. Perkins’s right hip, and below his raised right arm.179 The morphine and

14

methamphetamine in Mr. Perkins’s system were “at toxic levels.”180
Still, excluding Mr. Wise’s testimony, a reasonable jury could find from the officers’ testimony

15
16

that Mr. Perkins did not point a gun at the officers, the gun was swinging at his side in a walking

17

motion, he was walking calmly down the sidewalk in the direction of (but not directly at) the

18

officers, and it was feasible for officers (particularly Officer Hughes) to give a warning (such as

19

“get on the ground or I’ll shoot” or “drop the gun or I’ll shoot”181) in the interval between Officer

20

Hughes’s seeing Mr. Perkins and firing the shots. But under this scenario, the officers are entitled to

21
22
23
24
25
26
27
28

179

Fredericks Report, Ex. C to Sorensen Decl. – ECF No. 112 at 114 (image-examination PDF, slides
49–61).

180

Peterson Report – ECF No. 102-24 at 7 (¶ 6).

181

Although some officers testified that they heard warnings, no officer said he gave a warning. The
ShotSpotter evidence establishes only a command that sounds like “ground” before the first two shots
were fired and a command to “get on the ground” before the remaining shots were fired. ShotSpotter
Audio Recording, Ex. A to Greene Decl. – ECF No. 94-22; Forensic Report, Ex. B to Greene Decl. –
ECF No. 94-23 at 5.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

31 

1

qualified immunity.182 Existing precedent does not “place[] the statutory or constitutional question

2

beyond debate.” Muellenix v. Luna, 136 S. Ct. 305, 308 (2015) (quotation omitted); see Plumhoff,

3

572 U.S. at 779. Indeed, the hypothetical scenario in Cruz — it would be reasonable for police to

4

shoot a suspect if he reaches for a gun in his waistband (or reaches there for some other reason) if

5

the suspect demonstrates dangerous and erratic behavior up to that point — shows that qualified

6

immunity is appropriate here.
The cases that the plaintiffs cite do not compel a different result because they do not involve

7
8

split-second reactions to erratic behavior or establish that officers acting in similar circumstances

9

violated the Fourth Amendment.183
In C.V. v. City of Anaheim, the police responded to a 911 call about a suspected drug dealer,

11
United States District Court
Northern District of California

10

armed with a shot gun that turned out to be a BB gun, loitering in the parking area of an apartment

12

complex. 823 F.3d 1252, 1253–54 (9th Cir. 2016). The officers reported that they told the decedent

13

to put his hands up and drop the gun, but their accounts were inconsistent about how he responded

14

(“quick movement” to grab the barrel of the gun that was resting on the ground versus holding the

15

gun with the tip pointing straight up). Id. at 1255–56. The Ninth Circuit held that a jury could

16

conclude that the decedent was not pointing the gun at the officers and was complying as the

17

officers told him to drop the gun, and the officers did not give him time to comply or give a warning

18

before they shot him. Id. at 1256. There thus were disputes of fact about perceived risk and an

19

ability (depending on the resolution of those facts) to warn before shooting. By contrast, this case

20

involves the immediate risk of an armed person advancing toward a group of police officers, who

21

had only seconds to respond.

22
23
24
25
26
27

182

Officer Faeth’s statement — that he just saw Mr. Perkins’s hand on the gun — does not necessarily
render the force unreasonable, given the similarity to the Cruz hypothetical. See Cruz, 765 F.3d at 1078.
But it might influence how a jury would evaluate and credit the officers’ different reports of what they
saw.
183

T.D.P. Opp., No. 3:16-cv-04132-LB – ECF No. 110 at 27–29; Perkins Opp., No. 3:16-cv-04234 –
ECF No. 91 at 21–22.

28
ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

32 

1

The other cases also involve scenarios where the threats were less immediate and the officers

2

had time to give a warning. George v. Morris involved an elderly man, using a walker, holding a

3

gun, with disputes of fact about whether the gun was pointed at the ground. 736 F.3d at 838.

4

Curnow also involved disputes of fact about whether the decedent, who was not directly facing the

5

officers, was pointing the gun down or at the officers when they shot him. 952 F.2d at 324–25. In

6

Lopez, under a plausible view of the facts, a teen-aged boy was carrying a toy AK-47 in broad

7

daylight, in a park moving away from the officers. Id. at 1002–03, 1007–08. In A.K.H. v. City of

8

Tustin, the unarmed decedent was complying with the police officer’s command to take his hand

9

out of his pocket. 837 F.3d 1005, 1008–09, 1012–13 (9th Cir. 2016).
In sum, if Mr. Wise is available to testify at trial, disputes of material fact (about whether the

11
United States District Court
Northern District of California

10

gun was in the waistband or in Mr. Perkins’s hand) preclude summary judgment. If Mr. Wise is not

12

available to testify, then the officers are entitled to qualified immunity, and the court will grant

13

summary judgment in their favor on the Fourth Amendment excessive-force claim.

14
15
16

2. Due Process — Parent-Child Relationship — Fourteenth Amendment — 42 U.S.C. § 1983
The officer-defendants move for summary judgment on the Fourteenth Amendment claims on

17

the grounds that the officers’ conduct did not shock the conscience and they in any event are

18

entitled to qualified immunity. The court holds that the officers are entitled to qualified immunity.

19

2.1

Governing Law

20

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

21

oppressive exercise of government power. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 845–46

22

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

23

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

24

through official conduct. See Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1075 (9th Cir.

25

2013) (parents and children); Curnow, 952 F.2d at 325 (parent); Crumpton v. Gates, 947 F.2d 1418,

26

1421–24 (9th Cir. 1991) (child); cf. Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 1992)

27

(sibling has no constitutionally protected interest in brother’s companionship under Section 1983).

28
ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

33 

The standard that a plaintiff must satisfy to establish a due-process violation under the

2

Fourteenth Amendment is higher than the standard for excessive-force claim under the Fourth

3

Amendment. Whereas an alleged Fourth Amendment violation is evaluated under a reasonableness

4

standard, Ohio v. Robinette, 519 U.S. 33, 34 (1996), “the Due Process Clause is violated by

5

executive action only when it ‘can be properly characterized as arbitrary, or conscience shocking, in

6

a constitutional sense[,]’” Lewis, 523 U.S. at 847 (quoting Collins v. Harker Heights, 503 U.S. 115,

7

128 (1992)); accord Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (“[O]nly official

8

conduct that ‘shocks the conscience’ is cognizable as a due process violation.”) (citing Lewis, 523

9

U.S. at 846). “Where actual deliberation is practical, then an officer’s ‘deliberate indifference’ may

10

suffice to shock the conscience.” Hayes v. Cty. of San Diego, 736 F.3d 1223, 1230 (9th Cir. 2013)

11
United States District Court
Northern District of California

1

(citing Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)). If the deliberate-indifference

12

standard applies, the plaintiffs must show that the officers acted with “conscious or reckless

13

disregard of the consequence[s] of [their] acts or omissions.” Tatum v. Moody, 768 F.3d 806, 821

14

(9th Cir. 2014) (quotation omitted). “On the other hand, where a law enforcement officer makes a

15

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

16

only if he acts with a purpose to harm unrelated to legitimate law enforcement objectives.” Hayes,

17

736 F.3d at 1230.

18

In Zion v. County of Orange, the Ninth Circuit rejected an argument that the “deliberate

19

indifference” standard applied where the police fired a total of 18 shots at the victim, half of them at

20

close range, while the suspect was already on the ground. 874 F.3d 1072, 1077 (9th Cir. 2017). The

21

Ninth Circuit instead applied the heightened “purpose to harm” standard, holding that the police

22

officer’s actions came in rapid succession without time for reflection. Id. “Whether excessive or not,

23

the shootings served the legitimate purpose of stopping a dangerous suspect” and thus did not

24

violate the Fourteenth Amendment. Id.

25

2.2

26

The incident lasted seconds, and deliberation was impractical. If the more stringent purpose-to-

27

harm standard applies, the plaintiffs have not met it. If the deliberate indifference standard applies,

28

there is insufficient evidence to support the conclusion that the officers acted with conscious or

Application

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

34 

1

reckless disregard of the consequences of their acts or omissions. Tatum, 768 F.3d at 821. In any

2

event, the defendants are entitled to qualified immunity.

3
4

3. Monell and Supervisory Liability — 42 U.S.C. § 1983
The plaintiffs bring Monell and supervisory-liability claims against the City of Oakland and the

5

OPD’s former police chief on the theory that Oakland and the OPD failed to train police officers

7

adequately on the need for a warning, and that failure caused the constitutional injury.184 The City

8

and former chief move for summary judgment on the grounds that (1) they train officers to give

9

verbal warnings when feasible before using deadly force, (2) a shortfall in one officer’s training

10

does not establish liability, and (3) any training failure did not cause the injury here because all

11
United States District Court
Northern District of California

6

officers testified that they knew that they had to give a warning when feasible.185 The court grants

12

the summary-judgment motion because the training was not deficient and did not cause the injury.

13

3.1

Governing Law

14

Local governments can be sued under § 1983 if the public entity maintains a custom, practice,

15

or policy that amounts to deliberate indifference to a plaintiff’s constitutional rights, and the policy

16

results in violation of a plaintiff’s constitutional rights. Monell v. Dep’t of Social Servs. of New

17

York, 436 U.S. 658, 690–91 (1978). There are three ways to show a policy or custom:
(1) by showing “a longstanding practice or custom which constitutes the ‘standard
operating procedure’ of the local government entity;” (2) “by showing that the
decision-making official was, as a matter of state law, a final policymaking authority
whose edicts or acts may fairly be said to represent official policy in the area of
decision;” or (3) “by showing that an official with final policymaking authority either
delegated that authority to, or ratified the decision of, a subordinate.”

18
19
20
21
22

Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (quotation omitted). The practice or

23

custom must consist of more than “random acts or isolated events” and instead, must be the result of

24

a “permanent and well-settled practice.” Thompson v. City of Los Angeles, 885 F.2d 1439, 1443–44

25

(9th Cir. 1988), overruled on other grounds by Bull v. City and Cty. of San Francisco, 595 F.3d 964

26
184

27

T.D.P. Opp., No. 3:16-cv-04132-LB – ECF No. 110 at 30; Perkins Opp., No. 3:16-cv-04234 – ECF
No. 91 at 25–26.

28

185

Reply – ECF No. 129 at 21–22.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

35 

1

(9th Cir. 2010); see City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Thus, “a single

2

incident of unconstitutional activity is not sufficient to impose liability under Monell, unless” there

3

is proof that the incident “was caused by an existing, unconstitutional municipal policy . . . .” City of

4

Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985).
The former police chief “may be held liable as a supervisor under § 1983 if there exists either

5
6

(1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal

7

connection between the supervisor’s wrongful conduct and the constitutional violation.” Starr v.

8

Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (internal quotation marks and citation omitted).

9

“Supervisors can be held liable for: 1) their own culpable action or inaction in the training,
supervision, or control of subordinates . . . .” Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir.

11
United States District Court
Northern District of California

10

2000) (citation omitted).

12

3.2

Application

13

The OPD’s official policy is that warnings must be given when feasible.186 The plaintiffs

14

contend that the defendants were deliberately indifferent when they failed to train on that policy.187

15

As evidence of that failure, they assert that Sergeant Turner, Officer Thomas Sotto, and the former

16

police chief testified that there are circumstances where warnings are not required even if they are

17

feasible.188 Sergeant Turner and Officer Sotto were OPD instructors on the use of force.189
Sergeant Turner testified that giving a warning “depends on the circumstances” and that a

18
19

warning should be given “when safe to do so.”190 Officer Sotto testified that he “[did not] know

20

exactly . . . what is taught and how it’s taught.”191 The former police chief testified that “[t]raining

21
22
23
24
25
26
27
28

186

OPD Policy, Ex. 1 to Sotto Dep. – ECF No. 129-2 at 35–36; Sotto Dep. – ECF No. 129-3 at 37–38
(pp. 67:19–68:2), 39 (p. 93:4–20); Whent Dep. – ECF No. 129-3 at 58 (p. 48:19–23).

187

See, e.g., Perkins Opp., No. 3:16-cv-04234-LB at 25–26.

188

T.D.P. Opp., No. 3:16-cv-04132-LB – ECF No. 110 at 30; Perkins Opp., No. 3:16-vb-04234-LB at
25–26.
189

See Turner Dep. – ECF No. 121 at 16 (pp. 50:22–51:25), 18 (pp. 59:16–60:19), 20 (p. 68:15–22);
Sotto Dep. – ECF No. 129-3 at 34–36 (pp. 60:23–62:4), 37–38 (pp. 67:25–68:4), 39 (p. 69:4–20).
190

Turner Dep. – ECF No. 121 at 20–21 (pp. 66:23–68:12, 69:25–70:21).

191

Sotto Dep. – ECF No. 128 at 7–8 (pp. 21:12–22:2).

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

36 

1

did dictate that a warning should be given if feasible” and that “it’s in the training.”192 All officers

2

testified that they knew they had to give a warning if it was feasible.193 The plaintiffs have not

3

established a failure to train on warnings or that any failure caused the injury here. The court grants

4

summary judgment on the Monell and supervisory-liability claims.

5
6

4. Bane Act Claim
The defendants move for summary judgment on the plaintiffs’ claims for a violation of the Bane

7

Act, California Civil Code section 52.1. The Bane Act prohibits interference or attempted

9

interference with a person’s rights under the U.S. or California Constitutions and laws by “threats,

10

intimidation, or coercion.” Cal. Civ. Code § 52.1(a)–(b). The defendants contend that the plaintiffs

11
United States District Court
Northern District of California

8

did not establish (1) a threat independent of the constitutional violation (here, the claim of excessive

12

force) or (2) a genuine issue of material fact that the force was unreasonable.194 The court denies the

13

summary-judgment motion. The plaintiffs need not allege coercion beyond the coercion inherent in

14

the excessive force, and disputes of fact about the reasonableness of the force — with or without

15

Mr. Wise’s testimony — preclude summary judgment.
First, the plaintiffs do not need to establish a threat, intimidation, or coercion that is

16
17

“transactionally independent” from the constitutional violation. See Reese v. Cnty of Sacramento,

18

888 F.3d 1030, 1043 (9th Cir. 2018) (citing Cornell v. City and Cty. of San Francisco, 17 Cal. App.

19

5th 766, 799–802 (2017)). (The Bane Act does require a specific intent to violate the Fourth

20

Amendment. Id.)

21

Second, the disputes of fact that preclude summary judgment on the Fourth Amendment

22

excessive-force claim preclude summary judgment on the Bane Act claim.195 The parties dispute

23
24
25
26
27
28

192

Whent Dep. – ECF No. 122 at 14 (pp. 48:19–49:4).

193

Hughes Dep. – ECF No. 111 at 17 (p. 57:5–8); Cairo Dep. – ECF No. 119 at 18 (p. 59:4–6); Barnard
Dep. – ECF No. 120 at 13 (p. 40:21–25); Turner Dep. – ECF No. 121 at 20–21 (pp. 69:8–70:1).

194

Mot. – ECF No. 94 at 32–33.

195

Even if officers are entitled to qualified immunity on Fourth Amendment claims, they may remain
liable for damages under the Bane Act. Woods v. City and Cty. of San Francisco, No. 2018 WL
4896766, at * 10 (N.D. Cal. Oct. 9, 2018) (citing Reese v. Cty. of Sacramento, 888 F.3d 1030, 1038–39,
ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

37 

1

whether the gun was in Mr. Perkins’s waistband (as Christopher Wise reports) or in his hand (as the

2

officers report). Even if Mr. Wise is unavailable to testify, the claim survives. As discussed in the

3

Fourth Amendment analysis, a reasonable jury might find — depending on how it weighs evidence

4

and credibility —that Mr. Perkins did not point a gun at the officers, the gun was instead swinging

5

at his side in a walking motion, he was walking calmly down the sidewalk in the direction of (but

6

not at) the officers, and it was feasible for officers to give a warning before they shot. It is the jury’s

7

role to sift through the disputed factual contentions, draw inferences from them, and assess the

8

witnesses’ credibility. Glenn, 673 F.3d at 871. This is particularly true when the police shoot and

9

kill the decedent, who cannot challenge what may be the officers’ self-serving account. Gonzales,
747 F.3d at 795; Gregory, 523 F.3d at 1107. The court denies the motion for summary judgment on

11
United States District Court
Northern District of California

10

the Bane Act claim.

12
13

5. Negligence and Wrongful Death
The defendants move for summary-judgment on the plaintiffs’ claims for negligence and

14
15

wrongful death on the ground that the officers’ conduct was objectively reasonable.196 A negligence

16

claim may be predicated on a use of excessive force. Hayes v. Cty. of San Diego, 57 Cal. 4th 622,

17

629 (2013); see Quiroz v. Seventh Ave. Center, 140 Cal. App. 4th 1256, 1263 (2006) (elements of a

18

wrongful-death claim are the tort (negligence or other wrongful act), the death, and resulting

19

damages). The court denies the motion because the same fact disputes preclude summary judgment.

20

Also, under California law, the officers’ tactical conduct and decisions that precede a shooting are

21
22
23
24
25
26
27
28

1045 (affirming qualified immunity on a Fourth Amendment excessive-force claim but reversing
summary judgment on a Bane Act claim on the same facts)).
196

Mot. – ECF No. 94 at 33–34. The defendants also moved for summary judgment on T.D.P.’s claim
of negligent failure to train and supervise. Id. The T.D.P. opposition does not discuss the negligentfailure-to-supervise-and train claim and instead addressed only negligence in the form of excessive
force. Opp. – ECF No. 110 at 31–33. The court grants summary judgment on negligence predicated on a
failure to train and supervise. Even if the court deems the argument subsumed in T.D.P.’s Monell and
supervisory-liability claims, the analysis there supports a similar conclusion here: the policy required
warnings when feasible, and all officers knew that they must give a warning when feasible.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

38 

1

relevant in the determination of whether the officers’ conduct was reasonable under the totality of

2

the circumstances. Hayes, 736 F.3d at 1236.

3
4

6. Assault and Battery
The defendants move for summary-judgment on the plaintiffs’ claims for assault and battery on

5

the ground that the officers’ conduct was objectively reasonable.197 “In order to prevail on a claim

7

of battery against a police officer, the plaintiff bears the burden of proving the officer used

8

unreasonable force.” Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1102 (2004) (citation

9

omitted). The test for reasonableness for a state-law battery claim against a police office is the same

10

test for a Section 1983 claim alleging a Fourth Amendment claim. Id.; see Hayes, 736 F.3d at 1232.

11
United States District Court
Northern District of California

6

The court denies the motion because the same fact disputes preclude summary judgment.

12
13

7. Punitive Damages
The defendants move for summary judgment on the ground that that the officers’ conduct was

14
15

reasonable and in any event was not reckless or callous.198 A § 1983 plaintiff may recover punitive

16

damages “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when

17

it involves reckless or callous indifference to the federally protected rights of others.” Smith v.

18

Wade, 461 U.S. 30, 56 (1983). The court denies the motion. The disputes of fact mean that the issue

19

is appropriately reserved for the jury.
CONCLUSION

20
21

The court grants in part and denies in part the summary-judgment motion: (1) the court denies

22

the motion on the Fourth Amendment excessive-force claim because eyewitness Christopher Wise’s

23

account creates a genuine dispute of material fact (but if he is not a trial witness, then the officers

24

are entitled to qualified immunity); (2) the court grants the motion on the Fourteenth Amendment

25
26
27
28

197

Mot. – ECF No. 94 at 34.

198

Id. at 34–35.

ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

39 

1

claim; (3) the court grants the motion on the Monell and supervisory-liability claims; and (3) the

2

court denies the motion on the state-law claims.

3

IT IS SO ORDERED.

4

Dated: February 24, 2019

5

______________________________________
LAUREL BEELER
United States Magistrate Judge

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER – Nos. 3:16-cv-04132-LB; 3:16-cv-4324-LB

40