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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 JOSEPH ALEJANDRO ORTEGA, 8 Plaintiff, 9 10 vs. KURT RODENSPIEL et al., Northern District of California United States District Court 11 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. 12 Plaintiff Joseph Alejandro Ortega (“Plaintiff” or “Ortega”) brings this civil rights action 13 14 against Defendants Officer Kurt Rodenspiel (“Officer Rodenspiel”), the San Mateo Police 15 Department (“SMPD”), and the City of San Mateo (“City”) (collectively, “Defendants”) under 42 16 U.S.C. §§ 19831 and 1985, the United States and California Constitutions, and California state law 17 for injuries suffered when Officer Rodenspiel shot Plaintiff in the back. (Dkt. No. 1 (“Complaint”).) 18 Plaintiff alleges six causes of action: (1) Unconstitutional Use of Excessive Force, Deprivation of 19 Due Process of Law, and Interference with his Zone of Privacy pursuant to Section 1983 against all 20 Defendants; (2) General Negligence against all Defendants; (3) Negligent Training and Supervision 21 against SMPD and the City; (4) Assault and Battery against all Defendants; (5) Negligent Infliction 22 of Emotional Distress against all Defendants; and (6) Interference with Civil and Constitutional 23 Rights in violation of California Civil Code § 52.1 against all Defendants. 24 25 26 27 28 1 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 3 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 4 ratif Officer Rodenspiel’s use of exce fied R essive force in shooting Plaintiff and is therefore liable for his d e h 5 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, 6 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 7 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 8 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 10 GRA ANTS Defend dants’ Motio on. 11 I. BACKG GROUND Northern District of California United States District Court 12 A. 13 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 14 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 16 No. 9; Defendan Responsi Statemen to Plaintif Separate Statement o Material F nts ive nt ff’s e of Facts (“Defs’ 17 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 18 mem mber of the Special Wea S apons and Ta actics (“SWA AT”) Team a working in the Spec and g cial 19 Inve estigations Bureau of the SMPD. (P Resp. Sta B e Pl’s atement at N 9-10.) Nos. 20 The incident occurre while SM ed MPD officer’s carried out a valid, “hig risk” sear warrant s t gh rch 21 for a drug raid. (Id. at No. 11.) Due to information that Hector Ramirez, th individual named on 1 n he l 22 the warrant, was dangerous– w s –Ramirez wa a known g as gang membe who was o parole for assault wit er on th 23 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.” 24 (Id. at Nos. 12, 14.) The po olice had info ormation ind dicating that a drug trans saction woul occur whe ld en 25 26 27 28 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 2 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 5 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 6 minutes later Plaintiff and sat down in th driver’s s he seat. (Id.) S Shortly thereafter, Ramir came out rez t 7 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 11 United States District Court 10 behi Plaintiff car to bloc an escape from behin (Id.) The officers, in ind f’s ck e nd. e ncluding Rod denspiel, 13 quic ckly exited th minivan. (Id. at No. 17.) Officer Todd Mef he rs fford and Mi ikhail Venik arrived in kov n 14 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 15 iden ntified by the clothing and yelled co eir a ommands to the occupan of the ve o nts ehicle: “Poli ice!” and 16 “Sea arch Warran nt!” (Id. at No. 18.) N 17 2. 2 18 When the off W ficers’ Ford Explorer wa five to six feet from P as x Plaintiff’s Mi itsubishi The Collision. C 19 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 21 of th collision, Officers Me he efford and Venikov were inside of th Explorer but the door to the V e he rs 22 vehi may hav been open (Id.) icle ve n. 23 3. 3 24 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 27 Offi Rodensp then trip icer piel pped on the curb and his weapon disc c charged firin one round which ng d, 28 ente ered through the trunk of Plaintiff’s car and struc Plaintiff. (Id. at Nos. 28-29.) Pla f c ck aintiff and 3 1 Ram mirez were ta aken into cus stody, and Plaintiff was taken to the hospital for his injuries. (Id. at No. P r 2 34.) After the in ncident, the San Mateo County Distr Attorney charged an prosecuted Plaintiff fo C rict y nd or 3 assa on a peace officer with a deadly weapon (a v ault vehicle) or b means of f by force likely to produce 4 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 5 Cali ifornia Penal Code § 245 (Id. at No 35.) l 5. o. 6 4. 4 7 On Decembe 16, 2010, Plaintiff was convicted f felony as O er P s for ssault with a deadly 8 9 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 12 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 ” 11 United States District Court 10 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 13 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 14 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 15 judg gment was affirmed on appeal and th California Supreme C a he a Court denied Plaintiff’s p d petition for 16 review. See Peo v. Orteg A131244 2012 WL 1621564 (C Ct. App. May 9, 2012), ople ga, 4, Cal. 17 unpu ublished (M 9, 2012), as modified on denial of reh’g (Jun 5, 2012), r denied ( May d ne rev. (Aug. 15, 18 2012 2). 19 5. 5 inistrative Re eview. Admi 20 After the inci A ident, Capta Raffaeli o the SMPD conducted an administ ain of D trative 21 disc ciplinary revi of Offic Rodenspi iew cer iel’s conduct during the incident and issued a rep titled t d port 22 Inter-Office Com mmunication regarding the Administ n t trative Revie Firearm Discharge and Use of ew: ms e f 23 Forc ce–1448 New wbridge Ave enue, San Mateo, dated S Ma September 2 2009 (“R 28, Report”). (De Resp. efs’ 24 Stat tement at No 2 & 3.) The Report found that Of os. T fo fficer Roden nspiel did no violate any laws, ot y 25 regu ulations, rule or proced es, dures in oper rating his MP weapon, and as a resu no discip P5 ult plinary action n 26 was imposed ag gainst Officer Rodenspiel. (Id.) 27 28 4 1 B. 2 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 7 not intend to use lethal force (Pl’s Rep 7.) Plaint points to evidence th Officer R e e. ply tiff o hat Rodenspiel 8 fired his weapon after the co d n ollision occu urred and aft the Mitsu ter ubishi Eclips had stoppe moving. se ed 9 (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 11 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 18 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 20 in using lethal force. fo 21 A. 22 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 23 ving party ca demonstra that it is entitled to ju an ate udgment as a matter of law. Fed. R. Civ. P. mov 24 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 25 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. 9 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 13 U.S. 112, 127 (1988). Failure to investigate or mere acquiescence in a single instance of alleged 14 unconstitutional conduct is not sufficient to demonstrate ratification. Id. at 113, 130; Gillette v. 15 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

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