Ortega v. Rodenspiel et al

Filing 105

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT by Judge Yvonne Gonzalez Rogers denying 48 Plaintiffs' Motion for Partial Summary Judgment; granting 52 Defendants' Motion for Summary Judgment. The Court will enter Judgment by separate Order. (fs, COURT STAFF) (Filed on 10/4/2012)

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2
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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6
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JOSEPH ALEJANDRO ORTEGA,

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Plaintiff,

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vs.
KURT RODENSPIEL et al.,

Northern District of California

United States District Court

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Case No.: 10-CV-3239-YGR
ORDER ON CROSS-MOTIONS FOR SUMMARY
JUDGMENT: GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT; AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT

Defendants.

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Plaintiff Joseph Alejandro Ortega (“Plaintiff” or “Ortega”) brings this civil rights action

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against Defendants Officer Kurt Rodenspiel (“Officer Rodenspiel”), the San Mateo Police

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Department (“SMPD”), and the City of San Mateo (“City”) (collectively, “Defendants”) under 42

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U.S.C. §§ 19831 and 1985, the United States and California Constitutions, and California state law

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for injuries suffered when Officer Rodenspiel shot Plaintiff in the back. (Dkt. No. 1 (“Complaint”).)

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Plaintiff alleges six causes of action: (1) Unconstitutional Use of Excessive Force, Deprivation of

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Due Process of Law, and Interference with his Zone of Privacy pursuant to Section 1983 against all

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Defendants; (2) General Negligence against all Defendants; (3) Negligent Training and Supervision

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against SMPD and the City; (4) Assault and Battery against all Defendants; (5) Negligent Infliction

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of Emotional Distress against all Defendants; and (6) Interference with Civil and Constitutional

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Rights in violation of California Civil Code § 52.1 against all Defendants.

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Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983.

The part have file cross-mot
ties
ed
tions for sum
mmary judgm
ment. Defen
ndants move for summary

1
2

judg
gment on the grounds tha Officer Ro
e
at
odenspiel is entitled to q
qualified imm
munity becau he was
use

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justi
ified in using lethal force. Plaintiff moves for pa
g
m
artial summa judgmen on the bas that the City
ary
nt
sis
C

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ratif Officer Rodenspiel’s use of exce
fied
R
essive force in shooting Plaintiff and is therefore liable for his
d
e
h

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cond under Section 1983 The Court held a hear
duct
S
3.
t
ring on the cr
ross-motion on July 10 2012. On
ns
0,

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Aug 3, 2012, the Court is
gust
,
ssued an Ord staying th action pe
der
he
ending resolu
ution of Plain
ntiff’s appea
al

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of his criminal conviction. (Dkt. No. 10
h
c
03.)
Having carefully con
c
nsidered the papers subm
mitted, the pl
leadings in t action, a the oral
this
and

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9

argu
ument of cou
unsel, for the reasons set forth below the Court h
e
t
w,
hereby DENI Plaintiff Motion an
IES
f’s
nd

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GRA
ANTS Defend
dants’ Motio
on.

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I.

BACKG
GROUND

Northern District of California

United States District Court

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A.

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On Augu 13, 2009,2 Officer Ro
ust
odenspiel, an eleven-yea veteran of the SMPD3 shot Plainti
n
ar
f
iff

UNDISPUTED FACTS
D

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in th back whil Plaintiff was seated in the driver’s seat of his automobile. (Complain ¶ 9;
he
le
w
n
s
nt

15

Resp
ponse to Def
fendants’ Statement of Undisputed F
U
Facts (“Pl’s Resp. Statem
ment”), Dkt. No. 86, at

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No. 9; Defendan Responsi Statemen to Plaintif Separate Statement o Material F
nts
ive
nt
ff’s
e
of
Facts (“Defs’

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p.
t”),
.
1
me
ncident, Offic Rodensp was a
cer
piel
Resp Statement Dkt. No. 88, at No. 1.) At the tim of the in

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mem
mber of the Special Wea
S
apons and Ta
actics (“SWA
AT”) Team a working in the Spec
and
g
cial

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Inve
estigations Bureau of the SMPD. (P Resp. Sta
B
e
Pl’s
atement at N 9-10.)
Nos.

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The incident occurre while SM
ed
MPD officer’s carried out a valid, “hig risk” sear warrant
s
t
gh
rch

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for a drug raid. (Id. at No. 11.) Due to information that Hector Ramirez, th individual named on
1
n
he
l

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the warrant, was dangerous–
w
s
–Ramirez wa a known g
as
gang membe who was o parole for assault wit
er
on
th

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a de
eadly weapon
n–and might be armed with a gun, th search wa
t
w
he
arrant was co
onsidered “h
high risk.”

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(Id. at Nos. 12, 14.) The po
olice had info
ormation ind
dicating that a drug trans
saction woul occur whe
ld
en

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26
27
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2

Pla
aintiff alleges that the incid occurred on August 13 2009, how
dent
d
3,
wever Plaintiff Separate St
f's
tatements
mist
takenly indica that the in
ates
ncident occur
rred on Augus 9, 2009. (C
st
Complaint ¶ 9 Defs’ Resp. Statement at
9;
t
No. 1.)
3

SM
MPD is an age
ency within Defendant, Cit (Defs’ Re Statemen at No. 6.)
D
ty.
esp.
nt
2

1

a bu
uyer pulled up to Ramire home wh he wou then bring the drugs o to the bu
u
ez’s
here
uld
g
out
uyer’s car to

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com
mplete the sal (Id. at No 13.)
le.
o.

3

On the morning of th incident, the officers set up surve
m
he
eillance on R
Ramirez’s ho
ome. (Id. at

4

No. 15.) Plainti pulled up to the reside
iff
ence in a Mi
itsubishi Ecl
lipse, paralle parking at the curb nex
el
xt

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R
ome. (Id.) Plaintiff then got out of th car and ap
P
he
pproached th residence a few
he
e;
to Ramirez’s ho

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minutes later Plaintiff and sat down in th driver’s s
he
seat. (Id.) S
Shortly thereafter, Ramir came out
rez
t

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of th residence and sat in th passenger seat of the Eclipse. (Id
he
he
r
d.)

8

1.
1

9

Sergeant Ant
S
thony Sanch made the decision to detain Plain and Ram
hez
e
ntiff
mirez while

The Arrest.
A

hom (Id. at No. 16.) A minivan with four officers including Officer Rod
me.
m
s,
denspiel, dro up from
ove

12

Northern District of California

they were seated in Plaintiff Mitsubish Eclipse an then exec the searc warrant o Ramirez’s
y
d
f’s
hi
nd
cute
ch
on
s

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United States District Court

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behi Plaintiff car to bloc an escape from behin (Id.) The officers, in
ind
f’s
ck
e
nd.
e
ncluding Rod
denspiel,

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quic
ckly exited th minivan. (Id. at No. 17.) Officer Todd Mef
he
rs
fford and Mi
ikhail Venik arrived in
kov
n

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a Fo Explorer and blocked Plaintiff’s car from the front. (Id. at No. 16.) The officers were clearl
ord
r
d
e
s
ly

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iden
ntified by the clothing and yelled co
eir
a
ommands to the occupan of the ve
o
nts
ehicle: “Poli
ice!” and

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“Sea
arch Warran
nt!” (Id. at No. 18.)
N

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2.
2

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When the off
W
ficers’ Ford Explorer wa five to six feet from P
as
x
Plaintiff’s Mi
itsubishi

The Collision.
C

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Ecli
ipse, Plaintif accelerated his vehicle and collide with the F
ff
d
e
ed
Ford Explore (Id. at No 20.) The
er.
o.

20

Mits
subishi Eclip operated by Plaintiff was a hatch
pse
d
f
hback; the O
Officers were in an SUV. At the time
e
e

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of th collision, Officers Me
he
efford and Venikov were inside of th Explorer but the door to the
V
e
he
rs

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vehi may hav been open (Id.)
icle
ve
n.

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3.
3

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Officer Rode
O
enspiel, who was at the r
rear of the M
Mitsubishi Ec
clipse, move to his righ
ed
ht

The Shooting.
S

25

and began to bri his MP5 rifle from a low ready p
ing
position up t his should
to
der. (Id. at N 24, 25.)
Nos.

26

he
me,
d
f
exed position to the trigg
n
ger. (Id. at N 25.)
No.
At th same tim he moved his finger from the inde

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Offi Rodensp then trip
icer
piel
pped on the curb and his weapon disc
c
charged firin one round which
ng
d,

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ente
ered through the trunk of Plaintiff’s car and struc Plaintiff. (Id. at Nos. 28-29.) Pla
f
c
ck
aintiff and

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1

Ram
mirez were ta
aken into cus
stody, and Plaintiff was taken to the hospital for his injuries. (Id. at No.
P
r

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34.) After the in
ncident, the San Mateo County Distr Attorney charged an prosecuted Plaintiff fo
C
rict
y
nd
or

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assa on a peace officer with a deadly weapon (a v
ault
vehicle) or b means of f
by
force likely to produce

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grea bodily inju (Count 1); and assau with a dea
at
ury
1
ult
adly weapon (Count 2), b
n
both in viola
ation of

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Cali
ifornia Penal Code § 245 (Id. at No 35.)
l
5.
o.

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4.
4

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On Decembe 16, 2010, Plaintiff was convicted f felony as
O
er
P
s
for
ssault with a deadly

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Plain Convicte for Felony Assault Wi a Deadly Weapon for Using his
ntiff
ed
y
With
y
r
Car in a Manner Likely to Ca
ause Death o Great Bod Injury.
or
dily

wea
apon. The ju found Or
ury
rtega guilty “of willfully and unlawfu commit
“
y
fully
tting an assa with a
ault

Dec
claration of Patrick R. Co (“Co Dec.” Ex. 6, “V
P
o
”),
Verdict Form Dkt. No. 62-6.) By d
m,”
definition, the

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Northern District of California

dead weapon, to wit: a car in violation of Penal C
dly
r,
Code Section 245(a)(1).” (Id. at No. 37;
n
”

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United States District Court

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jury found that Plaintiff will
y
P
lfully used his car in suc a way that it was capa and like to cause
h
ch
t
able
ely

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deat or great bo
th
odily injury when he dro his vehic in the dir
ove
cle
rection of the Ford Explo that
e
orer

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Offi
icers Meffor and Venik were driv
rd
kov
ving. (Co D
Dec., Ex. 4, D No. 62-4, at 616:7-1
Dkt.
10.) The

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judg
gment was affirmed on appeal and th California Supreme C
a
he
a
Court denied Plaintiff’s p
d
petition for

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review. See Peo v. Orteg A131244 2012 WL 1621564 (C Ct. App. May 9, 2012),
ople
ga,
4,
Cal.

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unpu
ublished (M 9, 2012), as modified on denial of reh’g (Jun 5, 2012), r denied (
May
d
ne
rev.
(Aug. 15,

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2012
2).

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5.
5

inistrative Re
eview.
Admi

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After the inci
A
ident, Capta Raffaeli o the SMPD conducted an administ
ain
of
D
trative

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disc
ciplinary revi of Offic Rodenspi
iew
cer
iel’s conduct during the incident and issued a rep titled
t
d
port

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Inter-Office Com
mmunication regarding the Administ
n
t
trative Revie Firearm Discharge and Use of
ew:
ms
e
f

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Forc
ce–1448 New
wbridge Ave
enue, San Mateo, dated S
Ma
September 2 2009 (“R
28,
Report”). (De Resp.
efs’

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Stat
tement at No 2 & 3.) The Report found that Of
os.
T
fo
fficer Roden
nspiel did no violate any laws,
ot
y

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regu
ulations, rule or proced
es,
dures in oper
rating his MP weapon, and as a resu no discip
P5
ult
plinary action
n

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was imposed ag
gainst Officer Rodenspiel. (Id.)

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28

4

1

B.

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The part dispute whether: (1) the shooting of Plaintiff was intenti
ties
w
g
f
ional or accid
dental; (2) th
he

DISPUTED FACTS
A

3

shoo
oting occurre simultane
ed
eous with or after the veh
hicles collid (3) the p
ded;
position of th other
he

4

offic posed a hazard; and (4) Officer Rodenspiel placed his f
cers
d
finger on the trigger prem
e
maturely in

5

violation of SMPD policy. Plaintiff poi to eviden that at th time Offic Rodensp
ints
nce
he
cer
piel’s weapon
n

6

disc
charged, Offi Rodensp was eva
icer
piel
aluating the s
situation and prepared to use lethal f
d
o
force but did
d

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not intend to use lethal force (Pl’s Rep 7.) Plaint points to evidence th Officer R
e
e.
ply
tiff
o
hat
Rodenspiel

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fired his weapon after the co
d
n
ollision occu
urred and aft the Mitsu
ter
ubishi Eclips had stoppe moving.
se
ed

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(Id. at 6-7.) Pla
aintiff conten that the positioning o the vehicles and office during th shooting
nds
p
of
ers
he

inten
ntionally sho
ooting at Pla
aintiff would have placed Officer Me
d
d
efford in dan
nger. (Defs’ Resp.
’

12

Northern District of California

crea crossfire and backdr hazards, which place Officer R
ated
e
rop
ed
Rodenspiel in a position w
n
whereby

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United States District Court

10

Stat
tement at No 1; Pl’s Rep 7.) Plain also con
o.
ply
ntiff
ntends that O
Officer Rode
enspiel place his finger on
ed

13

the trigger of the weapon pr
t
e
rematurely, while in the l
w
low-ready, w
waist height position, an prior to
nd

14

shou
uldering or aiming the weapon, in vi
a
w
iolation of SMPD policy
y.

15

II.

DISCUS
SSION

16

Plaintiff moves for partial summ
f
p
mary judgmen on the iss of whether the Defen
nt
sue
ndants ratifie
ed

17

Offi Rodensp
icer
piel’s conduc of alleged using exc
ct
dly
cessive force in shooting Plaintiff an are thereb
e
g
nd
by

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liabl under Monell. Defend moves for summary judgment o the issue of qualified immunity–
le
dant
y
on
d

19

whe
ether an obje
ectively reaso
onable office in Officer Rodenspiel situation would have been justifie
er
r
l’s
ed

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in using lethal force.
fo

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A.

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Summar judgment is appropria where the are no ge
ry
ate
ere
enuine issues of material fact and the
s
l
e

LEGAL STAN
NDARD FOR SUMMARY J UDGMENT

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ving party ca demonstra that it is entitled to ju
an
ate
udgment as a matter of law. Fed. R. Civ. P.
mov

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56(a A party seeking sum
a).
s
mmary judgm bears the initial burd of inform
ment
e
den
ming the cou of the
urt

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basi for its mot
is
tion. Celotex Corp. v. Catrett, 477 U 317, 323 (1986). A fact is mate
x
C
U.S.
erial if it

26

might affect the outcome of the suit, and a dispute is genuine if the evidence is such tha it could
f
d
at
s

27

lead a reasonabl jury to retu a verdict for either p
d
le
urn
party. Ander
rson v. Liber Lobby, In 477 U.S.
rty
nc.,

28

242, 248 (1986) A court co
).
onsidering a motion for s
summary jud
dgment mus view the fa in the
st
acts

5

1

light most favorable to the non-moving party and give that party the benefit of all reasonable

2

inferences that can be drawn from those facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

3

Corp., 475 U.S. 574, 587 (1986); Anderson, 477 U.S. at 255. However, “at this stage of litigation,

4

the judge does not weigh conflicting evidence with respect to a disputed material fact” nor make

5

“credibility determinations with respect to statements made in affidavits, answers to interrogatories,

6

admissions, or depositions.” T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d

7

626, 630 (9th Cir. 1987) (citing Anderson, 477 U.S. at 253).

8

B.

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A municipality may be liable under Section 1983 when the enforcement of a municipal policy

PLAINTIFF’S SECTION 1983 MONELL CLAIM

Dep’t of Social Servs., 436 U.S. 658, 663-64 (1978). An authorized policymaker’s ratification of a

12

Northern District of California

or custom was the moving force behind the violation of a constitutionally protected right. Monell v.

11

United States District Court

10

subordinate’s decision can also form the basis of Monell liability. City of St. Louis v. Praprotnik, 485

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U.S. 112, 127 (1988). Failure to investigate or mere acquiescence in a single instance of alleged

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unconstitutional conduct is not sufficient to demonstrate ratification. Id. at 113, 130; Gillette v.

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Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992).
Plaintiff argues that there are no genuine issues of material fact that the City ratified Officer

16
17

Rodenspiel’s conduct and therefore, the City is subject to Monell liability for Officer Rodenspiel’s

18

actions if a jury finds Officer Rodenspiel liable for use of excessive force. (Plaintiff’s Mot. 2-3.)

19

While it is for the Court to identify those officials with policymaking authority,4 Plaintiff does not

20

provide any evidence (or legal authority) that shows anyone with policymaking authority ratified

21

Officer Rodenspiel’s conduct.5 As such, Plaintiff has failed to carry his burden to show the absence

22

of a genuine issue of material fact for trial. Accordingly, summary judgment in favor of Plaintiff on

23

the issue of ratification is not appropriate.

24

4

25
26
27
28

“[T]he identification of those officials whose decisions represent the official policy of the local governmental
unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury.” Jett v.
Dallas Independent School Dist., 491 U.S. 701, 737 (1989) (emphasis in original). To identify officials with
final policy-making authority, the court should look to state law. Praprotnik, supra, 485 U.S. at 124
(“identification of policymaking officials is not a question of federal law, and it is not a question of fact in the
usual sense”). Authority to make municipal policy may be granted directly by the legislature or delegated by
an official with policymaking authority. Id.
5
At oral argument, counsel for Plaintiff conceded that Plaintiff failed to meet his burden.
6

Based on the foregoi analysis, the Court DENIES Plain
n
ing
,
ntiff’s Motio for Partial Summary
on
l

1
2

Judg
gment.

3

C.

4

The doct
trine of qual
lified immun protects government officials “fr
nity
t
from liability for civil
y

QUALIFIED IMMUNITY

of which a reaso
w
onable perso would hav known.” Harlow v. F
on
ve
Fitzgerald, 457 U.S. 800 818 (1982)
0,
).

7

Qua
alified immu
unity is “imm
munity from suit rather th a mere d
han
defense to lia
ability.” Mit
tchell v.

8

Fors
syth, 472 U.S. 511, 526 (1985). Qua
alified immu
unity may op
perate “to pr
rotect officer from the
rs

9

som
metimes ‘hazy border betw
y
ween excess and acce
sive
eptable force
e.’” Saucier v. Katz, 533 U.S. 194,
r

10

201, 206 (2001) abrogated in part on other ground by Pearso v. Callaha 555 U.S. 223 (2009).
),
o
ds
on
an,
.

11

ublic officia shield of qualified im
al’s
f
mmunity is lo only if a plaintiff can establish bo that (1)
ost
n
oth
A pu

12

Northern District of California

dam
mages insofar as their con
r
nduct does not violate cl
n
learly establi
ished statuto or constit
ory
tutional righ
hts

6

United States District Court

5

the officer’s con
o
nduct violate a constitutional right, and (2) the r
ed
right was “c
clearly establ
lished” at the

13

time of the defen
e
ndant’s alleg miscond 6 Id. at 201. “The r
ged
duct.
relevant disp
positive inqu in
uiry

14

dete
ermining whether a right is clearly es
t
stablished is whether it w
would be cle to a reaso
ear
onable office
er

15

that his conduct was unlawf in the situ
t
ful
uation he con
nfronted.” B
Brosseau v. H
Haugen, 534 U.S. 194,
4

16

199 (2004) (inte
ernal citation omitted). Defendants seek summ
ns
s
mary judgment on the basis that an

17

ective reason
nable officer under Offic Rodenspi
r
cer
iel’s circums
stances wou be justifie in using
uld
ed
obje

18

lethal force. De Mot. at 5-9. As set forth below, Plaintiff can
efs’
5
f
nnot establis a constitu
sh
utional

19

efore, Office Rodenspie is entitled to qualified immunity.
er
el
d
violation. There

20

D.

FOURTH AMENDMENT CLAIM
M

21

1.
1

22

Plaintiff’s fir cause of action is brou
P
rst
a
ught under 4 U.S.C. § 1983 for exc
42
cessive use of
o

23

ce.
ve
ms
he
mendment “r
reasonablene standard.
ess”
forc Excessiv force claim are analyzed under th Fourth Am

24

Gra
aham v. Conn 490 U.S 386, 396 (1989). Dec
nor,
S.
(
ciding wheth an officer use of for was
her
r’s
rce

25

reas
sonable requires the Cou to balance “the nature and quality of the intru
urt
e
e
y
usion on the i
individual’s

26

Fou Amendm interests against the countervail
urth
ment
e
ling governm
mental intere at stake.” Id. (intern
ests
nal

Fram
mework.

27
28

6

The Court has th discretion to decide “wh of the tw prongs of t qualified i
he
hich
wo
the
immunity ana
alysis should be
addr
ressed first in light of the circumstances in the particu case at h
c
s
ular
hand.” Pearso supra, 555 U.S. at 236.
on,
5
.
7

1

quotation marks omitted). This determination “requires careful attention to the facts and

2

circumstances of each particular case, including the severity of the crime at issue, whether the suspect

3

poses an immediate threat to the safety of the officers or others, and whether he is actively resisting

4

arrest or attempting to evade arrest by flight.” Id. (citing Tennessee v. Garner, 471 U.S. 1, 8-9

5

(1985)). “Because such balancing nearly always requires a jury to sift through disputed factual

6

contentions, and to draw inferences therefrom … judgment as a matter of law in excessive force

7

cases should be granted sparingly.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (internal

8

citations omitted).

9

The inquiry is “whether the officer’s actions are ‘objectively reasonable’ in light of the facts

Graham, 490 U.S. at 397. “The reasonableness of a particular use of force must be judged from the

12

Northern District of California

and circumstances confronting them, without regard to their underlying intent or motivation.”

11

United States District Court

10

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

13

Arpin v. Santa Clara Valley Trans. Agcy., 261 F.3d 912, (9th Cir. 2003) (quoting Graham, supra,

14

490 U.S. at 396). “The calculus of reasonableness must embody allowance for the fact that police

15

officers are often forced to make split-second judgments―in circumstances that are tense, uncertain,

16

and rapidly evolving―about the amount of force that is necessary in a particular situation.”

17

Graham, supra, 490 U.S. at 396-97. Accordingly, there is not “a magical on/off switch that triggers

18

rigid preconditions” for the use of deadly force. Scott v. Harris, 550 U.S. 372, 382 (2007).

19

Deadly force is justified when necessary to prevent serious physical harm to police officers

20

or others. Garner, supra, 471 U.S. at 11 (officer may reasonably use deadly force where he “has

21

probable cause to believe that the suspect poses a threat of serious physical harm, either to the

22

officers or to others”); Scott v. Harris, 550 U.S. 372, 382 (2007) (same); Brown v. Ransweiler, 171

23

Cal. App. 4th 516, 528 (Cal. Ct. App. 2009) (police officer’s use of deadly force is reasonable if the

24

officer has probable cause to believe that the suspect poses a significant threat of death or serious

25

physical injury to the officer or others). The jury found that Plaintiff willfully used his car “in such a

26

way that it [wa]s capable of causing and likely to cause death or great bodily injury” when he drove

27

his vehicle in the direction of the Ford Explorer that Officers Mefford and Venikov were driving.

28

8

1

2.
2

2

The doctrine of Heck v. Humphrey, 5 U.S. 477 (1994), pre
T
H
512
7
ecludes a Section 1983

The Doctrine of Heck v. Hum
D
H
mphrey, 512 U.S. 477 (19
994).

3

claim based on actions whic would “re
m
a
ch
ender a conv
viction or sen
ntence invali where th conviction
id”
hat
n

4

has not been rev
versed, expun
nged, or call into ques
led
stion by issu
uance of a wr of habeas corpus. 512
rit
s

5

Heck, in other words, says that if a cri
r
iminal convi
iction arising out of the same facts
g
U.S. at 487. “H

6

stan and is fun
nds
ndamentally inconsisten with the un
y
nt
nlawful beha
avior for which section 1
1983 damage
es

7

are sought, the 1983 action must be dism
s
1
m
missed.” Sm
mithhart v. To
Towers, 79 F. 951, 952 (9th Cir.
.3d
2

8

1996). “Conseq
quently, the relevant que
r
estion is whe
ether success in a subseq
s
quent 1983 su would
uit

9

cessarily imp or ‘demonstrate’ the invalidity o the earlier conviction or sentence ….” Beets v.
ply’
e
of
r
v
‘nec

10

Cou of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2011) (qu
unty
A
uoting Heck, supra, 512 U.S. at 487) 7
,
).

11

The jury found Orteg guilty “of willfully an unlawfull committin an assault with a dead
y
ga
f
nd
ly
ng
t
dly

Northern District of California

United States District Court

12

wea
apon, to wit: a car, in vio
olation of Pen Code Se ction 245(a)
nal
)(1).” (Co. D
Dec., Ex. 6, “
“Verdict

13

Form
m.”)

14

The jury was instruc that to convict Orteg for felony assault with a deadly w
y
cted
ga
y
h
weapon unde
er

15

Cali
ifornia Penal Code § 245
l
5(a), the Stat needed to prove the fo
te
ollowing bey
yond a reaso
onable doubt:
(1) “Mr. Ortega did an act with a deadly wea
apon that by its nature w
y
would directl and
ly
probably result in the applica
n
ation of forc to a person
ce
n”;
(2) “Mr. Ortega did that act willf
fully”;
(3) “When Mr. Orteg acted, he was aware o facts that would lead a reasonable person
ga
of
e
to realize that his act by its nature would directly and probably r
s
n
d
d
result in the
ication of force to someo
one”; and
appli
(4) “When Mr. Orteg acted, he had the pres ability t apply forc with a dea
ga
sent
to
ce
adly
weap
pon.”8

16
17
18
19
20
21

(Co Dec., Ex. 4, Dkt. No. 62 at 615:5
,
2-4,
5-13.)

22
23
24
25
26

7

“Th instruction given on th charge that Morales assa
he
ns
he
t
aulted a peace officer with a deadly wea
e
h
apon required
d
that to convict Morales, the jur had to find that she acte willfully ag
ry
d
ed
gainst a police officer who was ‘lawfull
o
ly
perfo
forming his du
uties as a peac officer,’ an that the off
ce
nd
ficer was not ‘using unreas
sonable or ex
xcessive force in
his or her duties.’ Accordingly the jury’s conviction of Morales rejec any cont
o
’
y,
c
cted
tention that D
Deputy Winter
r
used excessive fo
d
orce, and thus any recovery by the plaint
y
ntiffs in this ci action wo
ivil
ould be contra to the jury
ary
y’s
deter
rmination.” Beets, supra, 669 F.3d at 1045.
B
1
8

27
28

The jury acquitt Ortega of Count 1, assa on a peac officer, wh
ted
ault
ce
hich would ha required p
ave
proof beyond a
reaso
onable doubt of two additi
ional elements: (5) when M Ortega ac
Mr.
cted, the perso assaulted were lawfull
ons
d
ly
perfo
forming their duties as peac officers; an (6) when M Ortega ac
d
ce
nd
Mr.
cted, he knew or should ha known tha
ave
at
the persons assau
p
ulted were pea officers who were perf
ace
w
forming their duties.
9

1

Addition
nally, the jur was instru
ry
ucted that: “A deadly we
A
eapon is any object, instrument, or
y

2

wea
apon that is inherently de
eadly or dang
gerous or on that is use in such a w that it is capable of
ne
ed
way
s

3

caus
sing and like to cause death or grea bodily inj ury.” (Id. at 616:7-10.) This instruc
ely
d
at
t
ction set fort
th

4

two separate wa in which a weapon may be consi
ays
m
idered deadly The first is where an object,
y.

5

rument, or weapon is inh
w
herently deadly or dange
erous; the se
econd is whe an object, instrument,
ere
instr

6

or weapon is use in such a way that it is capable of causing and likely to cause death o great bodily
w
ed
i
f
d
or

7

inju
ury. Here, th undisputed facts demo
he
d
onstrate that the offense for which O
Ortega was co
onvicted was
s

8

the second way; Ortega used an object or instrumen in such a w that it w capable o causing an
s
;
d
o
nt
way
was
of
nd

9

likel to cause death or grea bodily inju
ly
d
at
ury. Specific
cally, “[t]he jury found t Plaintiff willfully
that
f

drov his vehicl in the dire
ve
le
ection of the Ford Explor that Offic Mefford and Veniko were
rer
cers
d
ov

12

Northern District of California

used his car in such a way th was capa and like to cause d
d
s
hat
able
ely
death or grea bodily injury” when he
at
h

11

United States District Court

10

driv
ving.

13

Thus, Or
rtega’s conv
viction rested upon the ju
d
ury’s determ
mination that Ortega drov his
ve

14

Mits
subishi Eclip into the Ford Explor that Offic Mefford and Veniko were driv
pse
F
rer
cers
d
ov
ving “in such
h

15

a wa that it [wa … likely to cause death or great bodily injury to Officers Mefford a Venikov
ay
a]s
y
ry”
and
v.

16

Und Heck, to the extent th this action seeks to ne
der
hat
egate that el
lement of the crime for w
e
which

17

Plaintiff has bee convicted it is barred absent proo that his co
en
d,
d
of
onviction has been invali
s
idated.

18
19
20

Therefor the Court must accep the jury’s d
re,
t
pt
determinatio that Orteg acted such that he was
on
ga
h
s
eat
jury.”
“likely to cause death or gre bodily inj
3.
3

Immin Danger
nent
r.

21

a)

22

tiff
e
was
mminent dang that
ger
Plaint disputes whether the situation w one of im

Undispute facts.
ed

23

ified the use of lethal for
rce. Accord
ding to Plaint a reason
tiff,
nable police officer woul not have
ld
justi

24

perc
ceived the sit
tuation as re
equiring the use of deadly force. In h oppositio Plaintiff proffers fact
u
y
his
on,
ts

25

that are not mate
erial, are not supported by the record or both. S Hernand v. Spacel
t
b
d,
See
dez
labs Med.,

26

9th
3)
ving party “m produce evidence in response ….
must
e
n
…
Inc., 343 F.3d 1107, 1112 (9 Cir. 2003 (non-mov

27

e
feat
y
w
ions in the co
omplaint, or with unsupp
r
ported
[H]e cannot defe summary judgment with allegati

28

conj
jecture or co
onclusory sta
atements”). First, Plainti argues th the driver of the Mitsu
iff
hat
r
ubishi Eclipse

10
0

1

was unknown. (Pl’s Opp’n 12.) This fact not material, as the driver, Plaintiff, “willfully used his car

2

in such a way that was capable and likely to cause death or great bodily injury” to Officers Mefford

3

and Venikov. Second, Plaintiff argues that his Mitsubishi Eclipse was moving forward and not

4

endangering the officers behind it, including Rodenspiel. This fact is not material to whether the

5

Mitsubishi Eclipse was “likely to cause death or great bodily injury” to the police officers in front of

6

the car, namely, Officers Mefford and Venikov, and therefore, created a situation of imminent danger

7

to officers on the scene. Third, Plaintiff argues that he was not disobeying police commands, not

8

attempting to evade arrest or escape and could not escape because his car was blocked by a Ford

9

Explorer in front and a minivan from behind. Whether Plaintiff was resisting or evading arrest is not

death or great bodily injury” to Officers Mefford and Venikov. Fourth, Plaintiff contends that there

12

Northern District of California

material to whether Plaintiff used his vehicle “in such a way that was capable and likely to cause

11

United States District Court

10

was no indication that weapons were in the Eclipse or on the driver or Ramirez. This fact is

13

irrelevant as the undisputed evidence shows the police were executing a “high risk” search warrant

14

and had reason to believe that Ramirez would be armed. Fifth, Plaintiff argues that property damage

15

was the worst that would happen from a low speed collision between his Mitsubishi Eclipse and a

16

much larger Ford Explorer. While possible, the Court cannot analyze the issue from a place of 20/20

17

hindsight. Moreover, this assertion is contrary to the jury’s determination that “Plaintiff willfully

18

used his car in such a way that was capable and likely to cause death or great bodily injury” to

19

Officers Mefford and Venikov and the fact that Officer Mefford sustained physical injuries as a result

20

of the crash.

21

b)

Facts offered to create a triable issue.

22

i.

Whether other officers were in the line of fire?

23

Plaintiff’s expert opines that, at the time that Officer Rodenspiel’s

24

weapon discharged, Officer Mefford was in the line of fire such that Officer Rodenspiel should not

25

have fired his weapon because it would have endangered Officer Mefford. Defendants argue that the

26

expert’s analysis ignores that at the time of the shooting Ortega posed an immediate threat to the

27

safety of the other officers. Plaintiff fails to explain how a potential breach of the standard of care

28

owed to another police officer creates a triable issue of fact regarding whether Officer Rodenspiel

11

1

violated Plaintiff’s constitutional rights. See Baker v. McCollan, 443 U.S. 137, 146 (1979) (“Section

2

1983 imposes liability for violations of rights protected by the Constitution, not for violations of

3

duties of care arising out of tort law.”).
ii.

4
5
6
7
8
9
10
11

Northern District of California

United States District Court

12
13
14
15

Plaintiff argues that there is a factual dispute, which precludes
summary judgment, regarding whether there was a time gap between the collision and when Officer
Rodenspiel moved his finger to the trigger. Had a sufficient amount of time passed after the vehicles
collided and the situation calmed down, then there may be an issue of fact as to whether the use of
deadly force was still justified. Here, the undisputed facts show that it was a tense, uncertain, rapidly
evolving situation. (Pl’s Resp. Statement at No. 18.) Plaintiff has not pointed to any evidence to
support his assertion that there is an issue of fact for a jury to decide whether, after the collision, a
sufficient amount of time had passed for a reasonable officer on the scene to reassess the situation
and determine if the use of lethal force still was justified. Accordingly, Plaintiff has not carried his
burden to show that there is a material issue of fact for trial concerning the timing of the collision and
the shot.

16

iii.

17
18
19
20
21

24
25
26

Whether Rodenspiel intended to shoot Plaintiff?

The parties dispute whether Officer Rodenspiel intended to shoot
Plaintiff. To the extent that Officer Rodenspiel intended to shoot Plaintiff, the above analysis
demonstrates that the level of force used was objectively reasonable under the totality of the
circumstances. However, irrespective of Officer Rodenspiel’s intent, his actions were objectively
reasonable in light of facts and circumstances.

22
23

Whether there was a time gap between the collision and
shooting?

Plaintiff argues that the underlying issue of whether the shot was an accidental discharge
caused by Officer Rodenspiel’s moving his finger from index to trigger prematurely and under
unsafe circumstances precludes qualified immunity. If a reasonable officer on the scene was
constitutionally authorized to fire a gun, an act that cannot be completed without first placing a
finger on the trigger,9 then it follows that the act of placing a finger on the trigger also was

27
28

9

No party argues that a weapon malfunction caused Officer Rodenspiel’s MP5 to discharge or that Officer
Rodenspiel placed his finger on the trigger by accident.
12

1

cons
stitutionally authorized. In other wo
ords, if it wa s reasonable for Officer Rodenspiel to discharge
e
e

2

his MP5 intentio
M
onally, an ac that could not be perfo
ct
ormed witho first placi a finger o the
out
ing
on

3

trigg it follow then that it was reason
ger,
ws
i
nable for Off
fficer Rodens
spiel to place his finger o the trigge
on
er

4

befo dischargi the weap
ore
ing
pon. Thus whether the d
w
discharge wa accidental or intention is not
as
l
nal

5

mate
erial to the determination of whether Officer Ro
d
r
odenspiel sho
ould be entit to qualif
tled
fied

6

imm
munity.
h
eness is often
ntimes a fact specific inq
t
quiry for the jury, a defe
e
endant can
Although reasonable

7
8

prev on summ
vail
mary judgme if the cou “conclude after reso
ent
urt
es,
olving all fac
ctual dispute in favor of
es
f

9

the plaintiff, tha the officer’s use of for was objec
p
at
rce
ctively reaso
onable under the circums
r
stances.”

Plaintiff used hi vehicle “in such a way that was ca
is
n
y
apable and li
ikely to caus death or g
se
great bodily

12

Northern District of California

Scot v. Henrich 39 F.3d 91 915 (9th Cir. 1994). Considering that a jury already dete
tt
h,
12,
g
ermined that

11

United States District Court

10

inju
ury” to Office Mefford and Venikov―circumst
ers
tances where the use of deadly force would be
e
e

13

obje
ectively reasonable―no disputed ma
aterial issues of facts pre
s
eclude summ
mary judgme on the issue
ent

14

of qualified imm
q
munity.

15

E.

EFFECT OF QUALIFIED IMMUNITY RULING ON PLAINTIFF’S CLAIMS

16

1.
1

17

Plaintiff’s First Cause of Action also alleges dep
P
f
o
privation of D Process and
Due

Plain
ntiff’s Other Constitution Claims in the First C
nal
n
Cause of Acti
ion.

18

inter
rference with the Zone of Privacy. (Complaint ¶ 17.) Defen
h
o
(
ndants argue correctly th they are
e
hat

19

entit to summ
tled
mary judgme on these alleged cons
ent
stitutional vi
iolations bec
cause claims that a law

20

enfo
orcement off
ficer used ex
xcessive forc in the cour of an arr or other “seizure” ar judged
ce
rse
rest
re

21

unde the Fourth Amendmen reasonabl
er
h
nt
leness standa
ard. Graham supra, 490 U.S. 395. Plaintiff does
m,

22

not argue to the contrary, wh the Cou takes to m
hich
urt
mean that Plaintiff has ab
bandoned th
hese claims.
Therefor the Court GRANTS Defendants’ M
re,
t
Motion for S
Summary Jud
dgment on th issue of
he

23
24

qual
lified immun as to the First Cause of Action.
nity
e
e
Secon Cause of Action: Gen
nd
neral Neglig
gence.10

25

2.
2

26

To prevail on his neglige
T
n
ence claim, P
Plaintiff mus prove that Officer Rod
st
denspiel acte
ed

27
28

10

Pl
laintiff alleges that Officer Rodenspiel had a duty to avoid causing unnecessary physical har and distress
s
h
g
y
rm
to Pl
laintiff while carrying out his law enfor
rcement activi
ities. (Compl
laint ¶ 20.)
13
3

1

unre
easonably an this proxim
nd
mately caused Plaintiff’ s injury. La v. County of San Ma
add
ty
ateo, 12 Cal.

2

4th 913, 917 (Cal. 1996) (in California, the element for neglige
n
ts
ence are: (a) a legal duty to use due
)
y

3

e;
ulting injury Where, a here, a “fe
y).
as
ederal court f
factually fin that the
nds
care (b) breach; and (c) resu

4

police officer[’s conduct was objectively reasonabl and grants summary ju
s]
w
le
s
udgment, that decision

5

bars a state negl
s
ligence actio premised upon violati of the sam primary right.” Sand v. City of
on
ion
me
ders

6

Fres 551 F. Supp.2d 114 1181 (E.D Cal. 2008 (citing City of Simi Va
sno,
S
49,
D.
8)
ty
alley v. Superior Court,

7

111 Cal. App. 4th 1077, 108 (Cal. Ct. App. 2003))
84
A
).

8
9

Based on the foregoi analysis, the Court G RANTS Def
n
ing
,
fendants’ Mo
otion for Sum
mmary
Judg
gment as to the Second Cause of Action for “Ge
t
C
eneral Neglig
gence.”

10

3.
3

11

An element of Plaintiff’s claim for n egligent trai
A
o
s
ining and sup
pervision is that Plaintif
ff’s

ng
Third Cause of Action: Negli
d
ligent Trainin and Supe
ervision.

Northern District of California

United States District Court

12

cons
stitutional in
njury would have been av
h
voided had S
SMPD and/o the City o San Mateo properly
or
of
o

13

train Officer Rodenspiel. See Lee v. City of Los A
ned
R
C
Angeles, 250 F.3d 668, 6 (9th Cir. 2001).
0
681

14

Because there is no violation of Plaintif constituti
s
n
ff’s
ional rights, there is no b
basis for find
ding that

15

Offi Rodensp was inad
icer
piel
dequately tra
ained. See S
Saman v. Rob
bbins, 173 F
F.3d 1150, 11 (9th Cir.
157

16

1999 (“By find
9)
ding that officers did not use excessiv force aga
ve
ainst [plaintif
ffs], the ques
stion whethe
er

17

the City had a policy author
C
rizing or con
ndoning the u of excess force is moot becau the
use
sive
use

18

plain
ntiffs suffere no constit
ed
tutional depr
rivations.”).

19
20

Based on the foregoi analysis, the Court G RANTS Def
n
ing
,
fendants’ Mo
otion for Sum
mmary
Judg
gment as to the Third Ca
t
ause of Actio for “Negl
on
ligent Traini and Supe
ing
ervision.”

21

4.
4

22

Plaintiff’s assault and battery claim i dependent upon proof that Defend
P
is
t
f
dants applied
d

23

an unreasonable amount of force. Edson v. City of A
u
e
f
Anaheim, 63 Cal. App. 4 1269, 12 (Cal. Ct.
3
4th
273

24

App 1998); Cal Jury Instr.p.
l.
-Civ. 7.54 (“ peace off
“A
ficer who uses unreasona or excessive force in
able
i

25

mak
king an arres or detentio commits a battery upo the person being arres or detai
st
on
on
n
sted
ined as to the
e

26

exce
essive force” Since Of
”).
fficer Roden
nspiel’s actio cannot be viewed as unreasonabl under the
ons
e
le

27

circu
umstances, Plaintiff’s state law claim for assault and battery fails as wel See Samo supra, 17
P
m
t
y
ll.
on,
73

28

F.3d at 1157 n. 6 (Fourth Am
d
mendment standard of re
easonablene also appli under Ca
ess
ies
alifornia law).

Fourt Cause of Action: Ass
th
A
sault and Bat
ttery.

14
4

Based on the foregoi analysis, the Court G RANTS Def
n
ing
,
fendants’ Mo
otion for Sum
mmary

1
2

Judg
gment as to the Fourth Cause of Action for “Ass
t
C
sault and Bat
ttery.”

3

5.
5

4

California co
C
ourts do not view neglige infliction of emotion distress a an
v
ent
n
nal
as

Fifth Cause of Ac
ction: Neglig
gent Inflictio of Emotio
on
onal Distress
s.

5

inde
ependent tort but rather, the courts view it as a s
t,
v
species of ne
egligence to which the tr
raditional

6

ber
negl
ligence elem
ments apply. See Potter v. Firestone Tire & Rubb Co., 6 C 4th 965, 984, 863 P.2
v
Cal.
2d

7

795, 807 (Cal. 1993) (the to is negligence, of whic a duty to t plaintiff is an essenti element);
1
ort
ch
the
ial
;

8

Burg v. Supe
gess
erior Court, 2 Cal. 4th 10 1073 (C 1992). T
064,
Cal.
Thus, for the same reaso that
e
ons

9

Plaintiff cannot recover on his claim for general neg
h
r
gligence, his claim for negligent infl
s
liction of

10

emo
otional distre also fails.
ess
Based on the foregoi analysis, the Court G RANTS Def
n
ing
,
fendants’ Mo
otion for Sum
mmary

11

Northern District of California

United States District Court

12

Judg
gment as to the Fifth Cau of Actio for “Negli
t
use
on
igent Inflicti of Emoti
ion
ional Distres
ss.”

13

6.
6

14

The Bane Civ Rights Act, Cal. Civ. Code § 52.1, permits an individual to sue for
T
vil
A
.
n

Sixth Cause of Ac
ction: Califo
fornia Civil C
Code § 52.1.

15

dam
mages where his or her co
onstitutional rights are v
l
violated. See City of Sim Valley, sup 111 Cal
e
mi
pra,
l.

16

App 4th at 1085 Because there is no violation of P
p.
5.
t
v
Plaintiff’s co
onstitutional rights, there is no condu
e
uct

17

upon which to base a claim for liability under Sectio 52.1 of th California Civil Code
n
b
on
he
a
e.
Based on the foregoi analysis, the Court G RANTS Def
n
ing
,
fendants’ Mo
otion for Sum
mmary

18
19

Judg
gment as to the Sixth Ca
t
ause of Actio for “Viola
on
ation of Cali
ifornia Civil Code Sectio 52.1.”
on

20

III.

21
22

CONCL
LUSION
For the reasons set forth above, Plaintiff’s M
r
fo
P
Motion for Pa
artial Summ
mary Judgmen is DENIED,
nt
D

and Defendants’ Motion for Summary Judgment is GRANTED.
r
J

23

The Cou will enter judgment by separate O
urt
r
b
Order.

24

This Ord terminate Dkt. Nos. 48 & 52.
der
es

25

IT IS SO ORDERED.

26
27
28

Date October 4, 2012
ed:
r

_
___________
__________
___________
__________
_
YVON GONZAL ROGERS
NNE
LEZ
UNITED ST
TATES DISTR
RICT COURT JUDGE
T

15
5