Hemsley v. Lunger et al

Filing 54

ORDER by Judge Lucy H. Koh granting 31 Motion for Summary Judgment (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 1/24/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOHN A. HEMSLEY,
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Plaintiff,
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v.
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OFFICER LUNGER,
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Defendant.
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No. C 09-6002 LHK (PR)
ORDER GRANTING
DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT

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Plaintiff, a California prisoner proceeding pro se, filed a second amended civil rights
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action pursuant to 42 U.S.C. § 1983 against Defendant Officer Lunger (“Defendant”).
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Defendant has filed a motion for summary judgment, arguing that there is no genuine issue of
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material fact and that he is entitled to judgment as a matter of law. Although given an
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opportunity, Plaintiff has not filed an opposition. Having carefully considered the papers
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submitted, Defendant’s motion for summary judgment is GRANTED.
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BACKGROUND1

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On May 25, 2008, Defendant, employed by the Hayward Police Department, was driving
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his police vehicle when he noticed Plaintiff’s car driving at approximately 50 miles per hour in a
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residential neighborhood, which had a 25 mile per hour speed limit. (Decl. Lunger at ¶¶ 2-3.) R.
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The following facts are undisputed unless otherwise indicated.

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DeRespini was a passenger in Defendant’s car at the time. (Id. at 2.) Suddenly, Defendant

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noticed Plaintiff’s car rapidly decelerate and slowly pass Defendant’s vehicle at around 10 miles

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per hour. (Id. at ¶ 4.) Defendant began to follow Plaintiff’s car in an attempt to catch up with

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him. (Id.) Plaintiff’s car moved erratically, and Defendant believed it might have collided with

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a parked car along the curbside. (Id.) Defendant then learned that the registration for Plaintiff’s

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car was expired. (Id.) Plaintiff’s car continued to swerve, and Defendant believed that Plaintiff

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was impaired or intoxicated. (Id.)

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Defendant turned on his emergency lights in an attempt to stop Plaintiff’s car and
conduct a sobriety check. (Id. at ¶ 5.) In response, he heard Plaintiff’s car muffler get louder,

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and observed Plaintiff’s car accelerating. (Id. at ¶ 6.) Defendant turned off his police lights and

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continued to follow Plaintiff. (Id.) Defendant estimated that both cars were proceeding at

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approximately 40 miles per hour. (Id.) Defendant continued to observe Plaintiff driving in an

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erratic manner by both swerving and fluctuating his speed between 5 and 40 miles per hour. (Id.

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at ¶¶ 7-8.) Defendant requested additional patrolmen via the police department dispatcher. (Id.

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at ¶ 7.) Plaintiff’s car then skidded to a stop at 7th Street, where he parked in a private driveway.

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Defendant believed Plaintiff was going to try to escape by foot. (Id. at ¶¶ 9-10.)

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Defendant positioned his patrol car so that the left front bumper was in line with the

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middle of the driveway where Plaintiff’s car stopped. (Id. at ¶ 10.) Defendant’s car did not

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block the driveway. (Id.) Plaintiff quickly reversed out of the drive, passing in front of

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Defendant’s car, and collided with a parked car alongside the curb. (Id.) Defendant put his own

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car in reverse, believing that Plaintiff was going to try to flee. (Id. at ¶ 11.)

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Defendant asserts that Plaintiff accelerated toward his car and slammed into the front

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passenger side bumper, reversed, and ran into Defendant’s vehicle again, close to where

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DeRespini was sitting. (Id. at ¶ 11.) Defendant believed that Plaintiff was willing to engage

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with a police officer rather than flee. (Id. at ¶ 12.) Plaintiff asserts that Defendant attempted to

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stop him by ramming the front of Plaintiff’s car. (SAC at 3.) Because Defendant was in fear for

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his life and DeRespini’s life, Defendant exited the car, drew his gun, and positioned himself at

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the rear of the police car. (Decl. Lunger at ¶ 12.)
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Defendant yelled out, “Let’s see your hands,” but, due to the dim lighting, Defendant

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could not see inside Plaintiff’s car. (Id.) As Defendant began to approach Plaintiff’s car, he saw

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Plaintiff’s car “lurch” forward and accelerate quickly. (Id. at ¶ 14.) Defendant believed that

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Plaintiff was going to try to run him over. (Id.) As a result, Defendant shot a “volley” of bullets

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into the front of Plaintiff’s car. (Id. at ¶ 15.) Plaintiff’s car stopped. (Id. at ¶ 16.) Defendant

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believed he had “neutralized the threat,” and slowly moved toward the driver’s side of Plaintiff’s

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car. (Id.) Suddenly, Plaintiff’s car accelerated again toward Defendant, and, believing that his

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life was in danger, Defendant fired his gun again as Plaintiff’s car drove past him. (Id.)

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Defendant fired a total of nine shots. (Id. at ¶ 18; SAC at 3.) Plaintiff fled from the scene.

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Subsequent investigation revealed that Plaintiff was a wanted parolee at the time of the

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incident. (Decl. Hom, Ex. D, Declaration in Support of Probable Cause Summary.) Five days

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later, on May 30, 2008, Plaintiff was found with an apparent gunshot wound to his right arm.

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(Id.) Plaintiff was arrested the same day for the parole violation warrant. (Id.) On May 31,

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2008, Plaintiff was at Saint Rose Hospital (SAC at 3) and told Officer Obischere, “[T]ell that

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Officer I’m sorry for what happened. I didn’t mean it. I did not mean to hurt him, but I was

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afraid. . . . I was afraid man. That’s why I had to get away. I didn’t mean it man. I promise.”

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(Decl. Obischere at ¶ 3.) Officer Obischere understood Plaintiff to be referring to the May 25,

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2008 encounter with Officer Lunger. (Id. at ¶ 4.)

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ANALYSIS
I.

Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits demonstrate

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that there is “no genuine issue as to any material fact and that the moving party is entitled to

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judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect

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the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute

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

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verdict for the nonmoving party. Id.

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The party moving for summary judgment bears the initial burden of identifying those
portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine
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issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving

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party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no

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reasonable trier of fact could find other than for the moving party. But on an issue for which the

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opposing party will have the burden of proof at trial, as is the case here, the moving party need

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only point out “that there is an absence of evidence to support the nonmoving party's case.” Id.

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at 325.

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Once the moving party meets its initial burden, the nonmoving party must go beyond the

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pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a

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genuine issue for trial.” Fed. R. Civ. P. 56(e). The Court is only concerned with disputes over

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material facts and “factual disputes that are irrelevant or unnecessary will not be counted.”

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Liberty Lobby, Inc., 477 U.S. at 248. It is not the task of the Court to scour the record in search

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of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The

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nonmoving party has the burden of identifying, with reasonable particularity, the evidence that

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precludes summary judgment. Id. If the nonmoving party fails to make this showing, “the

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moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323.

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At the summary judgment stage, the Court must view the evidence in the light most

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favorable to the nonmoving party: if evidence produced by the moving party conflicts with

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evidence produced by the nonmoving party, the judge must assume the truth of the evidence set

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forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152,

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1158 (9th Cir. 1999).

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II.

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Legal Claims and Analysis
Plaintiff alleges that Defendant’s act of firing nine shots at him was excessive force, in

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violation of the Fourth Amendment. Defendant argues that he is entitled to summary judgment

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because, based on the undisputed facts, he did not violate Plaintiff's constitutional rights. In the

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alternative, Defendant contends he is entitled to qualified immunity.

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Here, the excessive force claim arises in the context of an arrest or investigatory stop of a

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free citizen, and so is most properly characterized as one invoking the protections of the Fourth

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Amendment, which guarantees citizens the right “to be secure in their persons . . . against
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unreasonable . . . seizures” of the person. Graham v. Connor, 490 U.S. 386, 394 (1989). A

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“seizure” triggering the Fourth Amendment’s protections occurs only when government actors

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have, “by means of physical force or show of authority, . . . in some way restrained the liberty of

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a citizen.” Id. at 395 n.10.

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

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

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

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stake.” Id. at 396 (citations and internal quotation marks omitted). “We first assess the quantum

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of force used to arrest [the plaintiff]” and then “measure the governmental interests at stake by

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evaluating a range of factors.” Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007).

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Factors that are considered in assessing the government interests at stake include, but are not

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limited to, “the severity of the crime at issue, whether the suspect poses an immediate threat to

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the safety of the officers or others, and whether he is actively resisting arrest or attempting to

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evade arrest by flight.” Graham, 490 U.S. at 396. Further, where it is or should be apparent that

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an individual is emotionally or mentally unstable, that is a factor that must be considered in

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determining the reasonableness of the force employed. See Drummond v. City of Anaheim, 343

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F.3d 1052, 1058 (9th Cir. 2003).

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The reasonableness inquiry in excessive force cases is an objective one, the question

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being whether the officer’s actions are objectively reasonable in light of the facts and

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circumstances confronting him, without regard to his underlying intent or motivation and

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without the “20/20 vision of hindsight.” Graham, 490 U.S. at 396. Police officers are not

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required to use the least intrusive degree of force possible; they are required only to act within a

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reasonable range of conduct. See Forrester v. City of San Diego, 25 F.3d 804, 806 n.2 (9th Cir.

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1994) (use of minimal and controlled force in manner designed to limit injuries was reasonable);

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see also Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994) (requiring officers to find and choose

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least intrusive alternative would require them to exercise superhuman judgment).

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A defendant is entitled to summary judgment on a claim of excessive force where there is
no genuine issue for trial because the record taken as a whole would not lead a rational trier of
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fact to find for the plaintiff. See Henderson v. City of Simi Valley, 305 F.3d 1052, 1061 (9th Cir.

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2002) (summary judgment in favor of defendant proper where evidence in the record in support

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of plaintiff’s excessive force claim was “woefully sparse”); see also Arpin v. Santa Clara Valley

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Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (plaintiff’s statement that she “did not resist

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arrest in any way” is conclusory allegation that is insufficient to defeat defendant’s motion for

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summary judgment).

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Here, the undisputed facts demonstrate that, prior to Defendant firing shots at Plaintiff’s

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car, he knew only that Plaintiff had been driving erratically, and was driving with an expired

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registration. Plaintiff attempted to evade Defendant’s car, accelerating after Defendant turned on

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his police emergency lights, and then abruptly stopped in a private driveway. Plaintiff’s car

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slammed into Defendant’s car twice, and Defendant feared for the safety of his passenger. At

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some point, Defendant rammed his car into Plaintiff’s in an effort to stop Plaintiff. Then,

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Defendant exited his vehicle, drew his weapon, and ordered Plaintiff to put his hands up. Rather

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than comply with Defendant’s order, Plaintiff accelerated toward Defendant two separate times,

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making Defendant believe that Plaintiff was attempting to run him over in order to escape. In

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response to Plaintiff’s actions, Defendant used deadly force, i.e., firing his gun nine times, in an

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attempt to prevent Plaintiff from injuring himself or others in his escape.

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Under the totality of the circumstances, and viewing the evidence in the light most

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favorable to Plaintiff, the Defendant’s use of force – shooting at Plaintiff’s car nine times – was

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reasonable. Considering the various factors identified by Graham, for the reasons stated below,

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the Court concludes as a matter of law that the force used was not excessive.

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A.

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Aside from Defendant’s firing his weapon at Plaintiff when he believed Plaintiff was

Quantum of force used

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going to run him over with the car, the only other time Defendant used force was when he

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utilized his own police vehicle to stop Plaintiff. Plaintiff submits no evidence as to how severely

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Defendant’s car hit his, what effect the “ramming” had on Plaintiff’s car, or the timing of when

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Defendant’s car hit his in relation to any other interaction they had that night.

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The Ninth Circuit has recognized that in some instances, a person has the “limited right
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to offer reasonable resistance to an arrest that is the product of an officer’s personal frolic. That

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right is . . . triggered . . . by the officer’s bad faith or provocative conduct.” Blankenhorn v. City

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of Orange, 483 F.3d 463, 479 (9th Cir. 2007) (quoting United States v. Span, 970 F.2 573, 580

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(9th Cir. 1992)). According to Plaintiff, Defendant rammed his police vehicle into his car in an

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attempt to stop Plaintiff. Assuming that Defendant’s action was taken in bad faith, Plaintiff had

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a limited right to offer reasonable resistance. Even viewing the facts in the light most favorable

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to Plaintiff, attempting to run over Defendant twice cannot be considered “reasonable

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resistance.” See, e.g., Blankenhorn, 483 F.3d at 480 (arrestee offered reasonable resistance when

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the officers assaulted him several times and there was no indication that the arrestee struck out at

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any of the officers or bystanders).

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Nonetheless, Plaintiff’s claim is that Defendant’s firing of nine shots – not that

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Defendant’s act of using his police car to stop Plaintiff – was excessive. The quantum of force

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was clearly deadly force. See Blanford v. Sacramento County, 406 F.3d 1110, 1115 n.9 (9th Cir.

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2005). In light of the Declaration of Probable Cause (Decl. Hom, Ex. D), a reasonable inference

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can be drawn that when Plaintiff was found and arrested on May 30, 2008, his apparent gunshot

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wound resulted from Defendant’s shooting at him. Nevertheless, the evidence is undisputed that

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Defendant attempted to temper the severity of the force by first, commanding Plaintiff to show

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his hands and then slowly approaching Plaintiff’s car. The shooting did not occur until after, and

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in response to, Plaintiff’s assaults. The undisputed evidence shows that Plaintiff drove his car

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directly at Defendant two times, resulting in Defendant believing that his life was in danger, as

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well as the lives of other officers if he was not able to stop Plaintiff. The law is clear that the use

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of deadly force is reasonable if “the officer has probable cause to believe that the suspect poses a

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significant threat of death or serious physical injury to the officer or others.” Tennessee v.

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Garner, 471 U.S. 1, 3 (1985).

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B.

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At the beginning of the encounter, the severity of the crime was not particularly serious.

Severity of the crime

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Defendant initially observed Plaintiff driving with an expired registration, see Cal. Vehicle Code

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§ 4601, and then, committing the misdemeanor of evading a police officer while in a motor
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vehicle, see Cal. Penal Code § 2800.1.2

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C.

Immediacy of threat to the safety of officers or others

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At the time Defendant fired his weapon, the undisputed facts show that Plaintiff posed an

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immediate threat to the safety of Defendant and his passenger. The Ninth Circuit has

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characterized the threat posed by a suspect as the “most important single element of the three

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[Graham] factors.” Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005). Plaintiff had

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slammed his car into the passenger side of Defendant’s car, where DeRespini was sitting,

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unarmed. After Defendant exited the car with his weapon drawn, and ordered Plaintiff to show

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his hands, Plaintiff appeared to ignore Defendant’s direction, and instead, accelerated toward

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Defendant with Plaintiff’s tires screeching. Defendant believed Plaintiff was going to run him

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over and began shooting at Plaintiff’s car. Defendant slowly approached Plaintiff’s car when it

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had stopped, and Plaintiff quickly accelerated toward Defendant. Defendant fired his weapon at

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Plaintiff’s car again when it was approximately five feet from him. Defendant believed that if he

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did not stop Plaintiff, Plaintiff might injure him or another officer who would soon be in the area

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in response to Defendant’s previous call for back-up.

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D.

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Plaintiff does not dispute Defendant’s observation that he was attempting to evade the

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Active resistance to arrest or attempt to evade arrest by flight

police.

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The Court recognizes that leisurely second-guessing regarding potential alternatives that

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Defendant may have chosen ignores the directive to analyze the force making “allowance for the

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fact that police officers are often forced to make split-second judgments – in circumstances that

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are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a

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particular situation.” Graham, 490 U.S. at 397. Under these undisputed facts, this Court

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concludes that no reasonable jury could find that Defendant applied an excessive amount of

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force against Plaintiff.

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Although Defendant points out that Plaintiff had an outstanding warrant (MSJ at 9),
there is no indication that Defendant knew about it at the time of their encounter.
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In light of the above, Plaintiff has failed to establish a triable issue of fact as to whether

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he was subjected to excessive force by Defendant. Defendant is entitled to judgment as a matter

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of law.

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III.

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Qualified Immunity
The defense of qualified immunity protects “government officials . . . from liability for

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

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constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

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457 U.S. 800, 818 (1982). In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth

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a two-pronged test to determine whether qualified immunity exists. The threshold question is:

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“Taken in the light most favorable to the party asserting the injury, do the facts alleged show the

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officer’s conduct violated a constitutional right?” Id. at 201. If no constitutional right was

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violated if the facts were as alleged, the inquiry ends and defendants prevail. See id. If,

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however, “a violation could be made out on a favorable view of the parties’ submissions, the

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next, sequential step is to ask whether the right was clearly established. . . .’ The contours of the

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right must be sufficiently clear that a reasonable official would understand that what he is doing

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violates that right.’ . . . The relevant, dispositive inquiry in determining whether a right is clearly

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

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the situation he confronted.” Id. at 201-02 (quoting Anderson v. Creighton, 483 U.S. 635, 640

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(1987)). Although Saucier required courts to address the questions in the particular sequence set

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out above, courts now have the discretion to decide which prong to address first, in light of the

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particular circumstances of each case. See Pearson v. Callahan, 129 S.Ct. 808, 818 (2009).

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As shown in the preceding section, the evidence in the record does not establish a

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violation of Plaintiff’s Fourth Amendment rights. However, even assuming that there was a

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violation, the evidence is undisputed that Defendant believed Plaintiff was going to run him over

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with his car, and that if Defendant did not stop him, Plaintiff could injure another officer on his

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way to assist. “Police officers are entitled to employ reasonable methods to protect themselves

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and others in potentially dangerous situations.” Allen v. City of Los Angeles, 66 F.3d 1052, 1056

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(9th Cir. 1995); see Garner, 471 U.S. at 3. Officers need not avail themselves of the “least
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intrusive means of responding to an exigent situation,” but rather must act reasonably under the

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circumstances. Id. at 1056-57. Under these undisputed facts, it would not have been clear to a

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reasonable officer that it was unlawful to fire his weapon at Plaintiff’s oncoming car, after

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Plaintiff attempted to evade Defendant and rammed into his police car twice, in order to subdue

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him and prevent injury to himself or others.

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Defendant is entitled to judgment as a matter of law on the qualified immunity defense.

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CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED.
Defendant is entitled to judgment as a matter of law on the merits of the Fourth Amendment

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claim and on his defense of qualified immunity. Judgment will be entered in favor of Defendant

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and against Plaintiff. The Clerk shall close the file.

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IT IS SO ORDERED.
DATED:

1/23/12
LUCY H. KOH
United States District Judge

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