NEM et al v. City of Salinas et al

Filing 55

ORDER granting in part and denying in part 41 Motion for Summary Judgment. Signed by Judge Edward J. Davila on 11/6/2017. (ejdlc1S, COURT STAFF) (Filed on 11/6/2017)

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4
N. E. M., et al.,

5

Case No. 5:14-cv-05598-EJD

Plaintiffs,
6

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

v.
7
CITY OF SALINAS, et al.,

8

Re: Dkt. No. 41

Defendants.
9
Carlos Mejia-Gomez was shot and killed by City of Salinas police officers in 2014. His

11
United States District Court
Northern District of California

10

survivors, N.E.M., Roberto Mejia-Gomez and Elias Mejia-Baires,1 subsequently filed this civil

12

action against the City and the two officers involved in the incident, Danny Warner and Josh

13

Lynd,2 for federal and state causes of action, derivatively and on their own behalf.

14

Federal jurisdiction arises under 28 U.S.C. § 1331, and presently before the court is

15

Defendants’ Motion for Summary Judgment. Dkt. No. 41. Plaintiffs oppose the motion. Having

16

carefully considered the parties’ arguments in conjunction with the record which includes two

17

videos of the incident, the court concludes that disputed factual issues preclude entry of summary

18

judgment on all causes of action. Accordingly, Plaintiffs’ motion will be granted in part and

19

denied in part for the reasons explained below.

20

I.

BACKGROUND

21

A.

22

On May 20, 2014, at approximately 12:13 p.m., Juana Lopez called 911 from her home in

23

Facts

Salinas and reported a drunk male with scissors was trying to enter her home. Decl. of Bruce D.

24
25
26
27
28

1

In this order, “Plaintiffs” refers to N.E.M., Roberto Mejia-Gomez, and the Estate of Elias MejiaBaires, the latter of which is now a party per separate order filed this same date.
2

“Defendants” refers to the City and Officers Warner and Lynd, collectively.
Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
1

1

Praet, Dkt. No. 41, at Ex. 1. Lopez told the operator the man tried to kill her dog and exposed

2

himself, and had told Lopez to call the police “to come get him.” Id. The subject of Lopez’s

3

report, later identified as Carlos Mejia-Gomez, eventually put the scissors into a backpack he was

4

carrying and began to walk away from Lopez’s residence. Id.

5

Officers Warner and Lynd responded to the scene at the corner of Elkington and Del

6

Monte, and found Mejia-Gomez “faced away” and looking at Lopez. Warner Depo., at 62:3-4.

7

Lopez made eye contact with the officers and began pointing at Mejia-Gomez, causing Mejia-

8

Gomez to turn in the direction of the officers. Id. at 7-11. Warner reported seeing “huge shears”

9

sticking out of Mejia-Gomez’s backpack. Id. at 62:24-63:4.
The officers drew their firearms and, in Spanish and English, commanded Mejia-Gomez to

11
United States District Court
Northern District of California

10

stop and put his hands up. Warner Depo., at 63:5-8; Lynd Depo., at 11-22. Mejia-Gomez did not

12

comply and began walking down Elkington toward Sanborn, “crossing the street from side of Del

13

Monte to the other side,” while the officers followed at a distance between four and eight feet, and

14

continued to command him to stop. Warner Depo., at 69:13-22; Lynd Depo., at 38:21-44:17;

15

Praet Decl., at Ex. 6 (“Prieto video”). Officer Lynd told Officer Warner to deploy his taser while

16

Officer Lynd “stayed lethal.” Lynd Depo., at 44:18-22. In response, Officer Warner activated his

17

taser and pulled the trigger but it did not deploy. Id. at 69:24-70:18. After Officer Warner told

18

Officer Lynd his taser was not functioning, Officer Lynd told Officer Warner to “switch,”

19

meaning that Officer Lynd transitioned to his taser while Officer Warner transitioned to his

20

firearm. Id. at 11-13.

21

Mejia-Gomez turned to face officers and began walking backwards. Prieto video. By

22

then, Mejia-Gomez had removed the shears from his backpack and was holding them near his

23

head. Id. Officer Lynd discharged his taser toward Mejia-Gomez, but it had no effect. Lynd

24

Depo., at 48:4-11. Mejia-Gomez tripped over a partition and fell onto his back but was still

25

holding the shears. Prieto video; Warner Depo., at 10-13; Lynd Depo., at 57:12-20. Officers

26

Warner and Lynd “closed the distance” to four to eight feet while Mejia-Gomez was on the

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
2

1

ground, but did not apprehend him. Prieto video; Lynd Depo., at 53:10-12.
Mejia-Gomez got up and began walking away from the officers in the same direction as

2
3

before. Id. Officers Warner and Lynd became concerned Mejia-Gomez would endanger the

4

patrons of a busy bakery he was approaching, and decided he could not be permitted to make it to

5

the next corner. Warner Depo., at 77:7-25; Lynd Depo., at 55:5-25. Mejia-Gomez, still holding

6

the shears, stopped before he reached the corner and turned around toward Officer Lynd, who was

7

attempting a leg sweep. Warner Depo., at 87:4-9; Lynd Depo., at 61:22-62:6. Both officers then

8

discharged their firearms. Warner Depo., at 87:10-11; Lynd Depo., at 62:6. Mejia-Gomez died at

9

the scene. Prieto video. Toxicology tests taken after Mejia-Gomez’s death were positive for

10

alcohol and methamphetamine. Praet Decl., at Ex. 8.

United States District Court
Northern District of California

11

B.

12

Plaintiffs initiated this case on December 23, 2014. Nine causes of action are asserted in

The Instant Action

13

the Complaint, eight of which are brought solely by N.E.M.: (1) violation of § 1983 for wrongful

14

death, (2) violation of § 1983 for survival, (3) violation of § 1983 for Monell liability, (4)

15

wrongful death in violation of California Civil Procedure Code §§ 377.60 and 377.61, (5)

16

violation of California Civil Code § 52.1, (6) violation of California Civil Code § 51.7, (7)

17

intentional infliction of emotional distress, and (8) gross negligence. One cause of action asserting

18

violation of § 1983 for disruption of the right to familial relationship is brought jointly by

19

Plaintiffs.

20

II.

LEGAL STANDARD

21

A motion for summary judgment or partial summary judgment should be granted if “there

22

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

23

law.” Fed. R. Civ. P. 56(a); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

24

The moving party bears the initial burden of informing the court of the basis for the motion

25

and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions,

26

or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v.

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
3

1

Catrett, 477 U.S. 317, 323 (1986). If the issue is one on which the nonmoving party must bear the

2

burden of proof at trial, the moving party need only point out an absence of evidence supporting

3

the claim; it does not need to disprove its opponent’s claim. Id. at 325.
If the moving party meets the initial burden, the burden then shifts to the non-moving party

4
5

to go beyond the pleadings and designate specific materials in the record to show that there is a

6

genuinely disputed fact. Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 324. A “genuine issue”

7

for trial exists if the non-moving party presents evidence from which a reasonable jury, viewing

8

the evidence in the light most favorable to that party, could resolve the material issue in his or her

9

favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
The court must draw all reasonable inferences in favor of the party against whom summary

11
United States District Court
Northern District of California

10

judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

12

However, the mere suggestion that facts are in controversy, as well as conclusory or speculative

13

testimony in affidavits and moving papers, is not sufficient to defeat summary judgment. Id.

14

(“When the moving party has carried its burden under Rule 56(c), its opponent must do more than

15

simply show that there is some metaphysical doubt as to the material facts.”); Thornhill Publ’g Co.

16

v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Instead, the non-moving party must come

17

forward with admissible evidence to satisfy the burden. Fed. R. Civ. P. 56(c).
“If the nonmoving party fails to produce enough evidence to create a genuine issue of

18
19

material fact, the moving party wins the motion for summary judgment.” Nissan Fire & Marine

20

Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). “But if the nonmoving party

21

produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats

22

the motion.” Id.

23

III.

24
25
26
27
28

DISCUSSION
A.

Fourth Amendment Cause of Action
i.

Objective Reasonableness

Defendants contend they are entitled to summary judgment on the § 1983 causes of action
Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
4

1

under the Fourth Amendment because the undisputed facts show that the force used by Officers

2

Warner and Lynd was objectively reasonable when tested under Fourth Amendment. The court

3

disagrees, however, because there exists on this record triable fact issues on the question of

4

objective reasonableness.

5
6

a. Governing Authority
“Section 1983 imposes liability upon any person who, acting under color of state law,

7

deprives another of a federally protected right.” Karim-Panahi v. Los Angeles Police Dep’t, 839

8

F.2d 621, 624 (9th Cir. 1988). A § 1983 plaintiff must prove two elements: (1) the defendants

9

acted under color of state law, and (2) the defendants deprived plaintiff of a right secured by the

10

United States District Court
Northern District of California

11

Constitution or federal statutes. Id.
For § 1983’s second element, N.E.M’s causes of action arise under the Fourth Amendment

12

and its prohibition on unreasonable seizures. See Graham v. Connor, 490 U.S. 386, 394 (1989)

13

(“In addressing an excessive force claim brought under § 1983, analysis begins by identifying the

14

specific constitutional right allegedly infringed by the challenged application of force.”)

15

(“Graham”); see also Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“[T]here can be no question that

16

apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of

17

the Fourth Amendment.”) (“Garner”).

18

“The fourth amendment, applicable to the states through the fourteenth amendment,

19

protects individuals against . . . the use of excessive force.” Id. To determine whether the force

20

used by officers was excessive, the court must “assess whether it was objectively reasonable ‘in

21

light of the facts and circumstances confronting [the officers], without regard to their underlying

22

intent or motivation.’” Gregory v. Cty. of Maui, 523 F.3d 1103, 1106 (9th Cir. 2008) (quoting

23

Graham, 490 U.S. at 397). This inquiry “requires a careful balancing of the nature and quality of

24

the intrusion on the individual’s Fourth Amendment interests against the countervailing

25

governmental interests at stake.” Graham, 490 U.S. at 396. “[C]areful attention” must be paid to

26

the “facts and circumstances of each particular case,” including the following factors: “the severity

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
5

1

of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or

2

others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by

3

flight.” Id. The most important of these factors is the second one. Mattos v. Agarano, 661 F.3d

4

433, 441 (9th Cir. 2011) (en banc).

5

The reasonableness of force “must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight, and its assessment “must embody

7

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

8

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

9

necessary in a particular situation.” Graham, 490 U.S. at 396-97. However, because this record

10

includes video recordings of the incident, the court must “view[] the facts in the light depicted by

11
United States District Court
Northern District of California

6

the videotape.” Scott v. Harris, 550 U.S. 372, 380-81 (2007).

12

Since the balancing by which a Fourth Amendment excessive force claim is examined

13

“nearly always requires a jury to sift through disputed factual contentions, and to draw inferences

14

therefrom . . . summary judgment or judgment as a matter of law . . . should be granted sparingly.”

15

Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003).

16
17

b. Analysis
In this circuit, excessive force claims are analyzed in three steps as articulated in Glenn v.

18

Washington County, 673 F.3d 864, 871 (9th Cir. 2011) (“Glenn”). First, the court must assess

19

“the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating ‘the type

20

and amount of force inflicted.’” Id. (quoting Espinosa v. City & Cty. of San Francisco, 598 F.3d

21

528, 537 (9th Cir. 2010)). Second, the court must evaluate the government’s interest in the use of

22

force. Id. Third, the court must “‘balance the gravity of the intrusion on the individual against the

23

government’s need for that intrusion.’” Id. (quoting Miller v. Clark Cty., 340 F.3d 959, 964 (9th

24

Cir. 2003)).

25
26
27
28

1. Step 1: Severity of the Intrusion
For the first step, it is undisputed Mejia-Gomez’s death resulted from the use of deadly
Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
6

1

force by Officers Warner and Lynd. The severity of this intrusion on Mejia-Gomez’s Fourth

2

Amendment interests was “extreme” and “unmatched.” A.K.H. ex rel. Landeros v. City of Tustin,

3

837 F.3d 1005, 1011 (9th Cir. 2016). Indeed, the “use of deadly force implicates the highest level

4

of Fourth Amendment interests both because the suspect has a ‘fundamental interest in his own

5

life’ and because such force ‘frustrates the interest of the individual, and of society, in judicial

6

determination of guilt and punishment.’” Id. (quoting Garner, 471 U.S. at 9).

7

2. Step 2: Government Interest

8

For the second step, the government’s interest in the use of force is determined by

9

evaluating the objective reasonableness of the intrusion through its attendant factors. Id. Taking
those factors in order, the transcript of Lopez’s 911 call reveals the “crimes at issue” were a

11
United States District Court
Northern District of California

10

possible trespass, a possible assault, or a threatened property damage in light of Lopez’s statement

12

to the operator that Mejia-Gomez had entered her yard and home, threatened her with garden

13

shears, exposed himself, and attempted to strangle her dog. The record does not show, however,

14

that Officers Warner and Lynd were aware of this much detail when they arrived at the scene since

15

they did not review the 911 call before responding, and did not speak with Lopez prior engaging

16

Mejia-Gomez. Lynd Depo., at 36:17-37:5. Based on their testimony, it appears Officers Warner

17

and Lynd knew from dispatch that Mejia-Gomez had an “edged weapon” with him. Lynd Depo.,

18

at 41:19-23.

19

In any event, it is undisputed that Mejia-Gomez was on the public street and began

20

walking away from Lopez’s house when Officers Warner and Lynd responded. Lynd Depo., at

21

35:11-19; 40:7-12. The aforementioned “edged weapon,” which was revealed to be garden shears,

22

had by then been placed in Mejia-Gomez’s backpack, which he was holding. Lynd Depo., at 36:4-

23

6. Any crime Mejia-Gomez had committed against Lopez was complete by the time the officers

24

engaged him, and there is no evidence that Mejia-Gomez continued to commit crimes in the

25

officers’ presence, other than failing to comply with their commands. Accordingly, a reasonable

26

jury could find that neither Lopez nor her property was still in jeopardy of injury or damage when

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
7

1
2

Officers Warner and Lynd came upon the area.
Turning to the most important factor, the evidence supports a finding, when construed in

3

the light most favorable to Plaintiffs, that Mejia-Gomez did not “pose[ ] an immediate threat to the

4

safety of the officers or others.” Graham, 490 U.S. at 396. Again, there is no dispute that Mejia-

5

Gomez’s encounter with Lopez had already ended when Officers Warner and Lynd arrived, and

6

the Prieto and Bakery videos (Decl. of Melissa Nold, Dkt. No.44, at Ex. 7) demonstrate that

7

though there were several bystanders, no other individuals were near enough to Mejia-Gomez to

8

be immediately threatened as he moved down the sidewalk and away from Lopez’s home.

9

Although Officers Warner and Lynd state they were concerned for patrons of a nearby business
given its location and the time of day, nothing currently in the record shows or suggests an actual,

11
United States District Court
Northern District of California

10

immediate threat to anyone in particular from an objective perspective. See Deorle v. Rutherford,

12

272 F.3d 1272, 1281 (9th Cir. 2001) (“[A] simple statement by an officer that he fears for his

13

safety or the safety of others is not enough; there must be objective factors to justify such a

14

concern.”).

15

Nor does Mejia-Gomez’s possession of the garden shears negate a triable issue on whether

16

he posed an immediate threat to Officers Warner and Lynd or others. While deadly force is

17

permissible “if the suspect threatens the officer with a weapon” (Garner, 471 U.S. at 11), or makes

18

“a furtive movement, harrowing gesture, or serious verbal threat (George v. Morris, 736 F.3d 829,

19

838 (9th Cir. 2013)), the fact that a “‘suspect was armed with a deadly weapon’ does not render

20

the officers’ response per se reasonable under the Fourth Amendment.” Id. (quoting Glenn, 673

21

F.3d at 872-73). Here, the Prieto and Bakery videos show that Mejia-Gomez removed the garden

22

shears from the backpack and was holding the shears above and around his head as he backed

23

away from the officers. The videos also appear to show that Mejia-Gomez was holding one of the

24

shears’ handles immediately before he was shot. Other than that evidence - which a jury could

25

interpret as threatening in the way the officers apparently did, or as a non-threatening reaction to

26

being followed by officers at gunpoint - the videos do not overtly show that Mejia-Gomez used

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
8

1

the garden shears to immediately threaten anyone, including Officers Warner and Lynd, though

2

they testified otherwise at their depositions by stating that Mejia-Gomez twice lunged at Officer

3

Lynd with the shears. While the videos do not foreclose the possibility that Mejia-Gomez lunged

4

at some point, they do not objectively support that fact either. Thus, a jury could find that Mejia-

5

Gomez did not lunge, and at this stage the court must adopt that interpretation of the evidence.

6

Moreover, a reasonable jury could find based on the videos that Mejia-Gomez did not have

7

sufficient control of the garden shears to actually brandish them as a weapon, particularly since he

8

was walking away from the officers during a period of their encounter, tripping and falling onto

9

his back at one point, and that the officers’ assessment of fear for their safety was therefore

10

United States District Court
Northern District of California

11

unreasonable. See Deorle, 272 F.3d at 1281.
Furthermore, the fact that Officers Warner and Lynd had adequate time to formulate a plan

12

to shoot Mejia-Gomez if he reached the corner where the business was located could undercut

13

before a jury any testimony from the officers claiming immediacy to the threat posed by Mejia-

14

Gomez.

15

On the final factor, even if a factfinder could determine that Mejia-Gomez was “actively

16

resisting arrest or attempting to evade arrest by flight” by failing to comply with commands and

17

continuing to walk away from Officers Warner and Lynd, this determination would not render the

18

intrusion constitutional. If Mejia-Gomez was fleeing, a reasonable jury could find based on the

19

Prieto and Bakery videos that he was not doing so quickly enough to justify the use of deadly

20

force at the moment he was shot. The videos also show that Officers Warner and Lynd had little

21

trouble keeping up with Mejia-Gomez by simply walking behind him. And on the issue of

22

whether Mejia-Gomez was evading arrest because he failed to comply with the officers’ demands

23

to stop and put his hands up, it is notable that neither officer warned Mejia-Gomez he would be

24

shot if he continued to walk toward the corner despite their plan to shoot if he did so. Given the

25

pace at which the videos show the event was unfolding, a reasonable jury could find that such a

26

warning was practicable under the circumstances. See Gonzalez v. City of Anaheim, 747 F.3d

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
9

1

789, 794 (9th Cir. 2014) (en banc) (“[W]e have recognized that an officer must give a warning

2

before using deadly force ‘whenever practicable.’”).

3

Also, “‘alternative methods of capturing or subduing a suspect’ available to the officers”

4

are relevant to the reasonableness of force. Id. at 794 (quoting Smith v. City of Hemet, 394 F.3d

5

689, 703 (9th Cir. 2005) (en banc)). There is no dispute that attempts by Officers Warner and

6

Lynd to deploy their tasers were unsuccessful. However, a reasonable jury could find that a taser

7

was not the only non-lethal option available to the officers. The record shows that Officer Lynd

8

had access to a baton and contemplated a “leg sweep,” and the evidence supports other

9

possibilities: the officers could have apprehended Mejia-Gomez when he tripped and was on his
back, or could have shot him in a manner less likely to cause death. The Prieto and Bakery videos

11
United States District Court
Northern District of California

10

provide a basis upon which a jury could find sufficient time for the officers to utilize one or more

12

of those options, especially when this evidence is coupled with the officers’ contemplation of

13

when it would be appropriate to shoot Mejia-Gomez.

14
15

3. Step 3: Balancing
Considering the totality of circumstances in the light most favorable to Plaintiffs (A.K.H.,

16

837 F.3d at 1011), and balancing “the gravity of the intrusion” against “the government’s need for

17

that intrusion” (Garner, 471 U.S. at 8), there is sufficient evidence in the record upon which a

18

reasonable jury could find that Officers Warner and Lynd violated the Fourth Amendment by

19

fatally shooting Mejia-Gomez. As described, the record could support a conclusion that the

20

extreme intrusion on Mejia-Gomez’s Fourth Amendment rights substantially outweighed any

21

interest in using deadly force. Consequently, Defendants’ argument based on objective

22

reasonableness does not entitle them to summary judgment.

23
24
25

ii.

Qualified Immunity

Defendants also argue for entry of summary judgment in their favor because Officers
Warner and Lynd are entitled to qualified immunity.

26
27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
10

a. Governing Authority

1

“The defense of qualified immunity protects ‘government officials performing

2
discretionary functions . . . from liability for civil damages insofar as their conduct does not
3
violate clearly established statutory or constitutional rights of which a reasonable person would
4
5
6
7

have known.’” Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th Cir. 1991) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). It “gives ample room for mistaken judgments by protecting
all but the plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502
U.S. 224, 229 (1991). The doctrine also “balance[s] two important, competing interests: the need

8
to hold public officials accountable for irresponsible actions, and the need to shield them from
9
10

United States District Court
Northern District of California

11
12

liability when they make reasonable mistakes.” Morales v. Fry, --- F.3d ----, 2017 WL 4582732,
at *4 (9th Cir. 2017). “Therefore, regardless of whether the constitutional violation occurred, the
officer should prevail if the right asserted by the plaintiff was not ‘clearly established’ or the
officer could have reasonably believed that his particular conduct was lawful.” Romero, 931 F.2d

13
at 627.
14
Two questions are relevant to an examination of whether qualified immunity shields an
15
16
17

officer’s conduct. “First, viewing the facts in the light most favorable to the plaintiffs, did [the
officers] use excessive force in violation of the Fourth Amendment?” A.K.H., 837 F.3d at 1010.
“Second, if [the officers] used excessive force, did [they] violate a clearly established right?” Id.

18
Answering either question in the negative results in immunity to the officer. See White v. Pauly,
19

137 S. Ct. 548, 551 (2017) (“Qualified immunity attaches when an official’s conduct does not

20
violate clearly established statutory or constitutional rights of which a reasonable person would
21
22
23
24

have known.” (internal quotation marks omitted; emphasis added)) (“White”); see also Hughes v.
Kisela, 862 F.3d 775, 783 (9th Cir. 2016) (“[A]t summary judgment, an officer may be denied
qualified immunity in a Section 1983 action ‘only if (1) the facts alleged, taken in the light most
favorable to the party asserting injury, show that the officer’s conduct violated a constitutional

25
right, and (2) the right at issue was clearly established at the time of the incident such that a
26
27
28

reasonable officer would have understood [his] conduct to be unlawful in that situation.’”
Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
11

1
2
3

(emphasis added)).
b. Analysis
1. Question 1: Excessive Force

4

On the first question, the court has identified in the preceding discussion the record facts

5

upon which a reasonable jury could find that the use of force by Officers Warner and Lynd was

6

excessive. As such, the analysis of qualified immunity’s first question merges with that of

7

objective reasonableness. The court therefore finds, viewing the evidence in the light most

8

favorable to Plaintiffs, that the fatal shooting of Mejia-Gomez violated the Fourth Amendment.

9
10

2. Question 2: Clearly Established Rights
On the second question, the court observes that “[f]or a constitutional right to be clearly

United States District Court
Northern District of California

11

established, its contours must be sufficiently clear that a reasonable official would understand that

12

what he is doing violates that right.” Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1082 (9th Cir.

13

2013). Stated differently, “[a] clearly established right is one that is ‘sufficiently clear that every

14

reasonable official would have understood that what he is doing violates that right.’” Mullenix v.

15

Luna, 136 S. Ct. 305 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

16

In rendering this legal decision (Morales, 2017 WL 4582732, at *3), the court must look to

17

“cases relevant to the situation [the officers] confronted,” Brosseau v. Haugen, 543 U.S. 194, 200

18

(2004) (quotation marks omitted) (“Brosseau”), keeping in mind that a case need not be “directly

19

on point.” Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013) (quoting Ashcroft v.

20

al-Kidd, 563 U.S. 731, 741 (2011)). Existing precedent, however, “must have placed the . . .

21

constitutional question beyond debate.” al-Kidd, 563 U.S. at 740. Ultimately, “[t]he dispositive

22

question is ‘whether the violative nature of particular conduct is clearly established.’” Mullenix,

23

136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742). “The plaintiff bears the burden of proof that

24

the right allegedly violated was clearly established[.]” Romero, 931 F.2d at 627.

25

Moreover, the analysis “is limited to ‘the facts that were knowable to the defendant

26

officers’ at the time they engaged in the conduct in question.” Longoria v. Pinal Cty., --- F.3d ----,

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
12

1

2017 WL 4509042, at *7 (9th Cir. 2017) (quoting Hernandez v. Mesa, 137 S. Ct. 2003, 2008

2

(2017)). But because this is a determination on summary judgment, any disputed facts - including

3

those presented by the video evidence - must be construed in the light most favorable to Plaintiffs

4

to the extent there is room for debate. Id.
In a string of published and unpublished opinions responding to recent Supreme Court

6

precedent, the Ninth Circuit has clarified the district court’s duty when determining whether a

7

purported violation involves a “clearly established right.”3 To that end, the Ninth Circuit holds

8

that before qualified immunity can be denied and liability imposed on an officer, the district court

9

must identify precedent in existence on the date of the incident that put the officer “on clear notice

10

that using deadly force in [the] particular circumstances would be excessive.” S.B. v. Cty. of San

11
United States District Court
Northern District of California

5

Diego, 864 F.3d 1010, 1015 (9th Cir. 2017) (“S.B.”). “General excessive force principles,” such

12

as those stated in Graham and Garner, are not “‘inherently incapable of giving fair and clear

13

warning to officers,’ but they ‘do not by themselves create clearly established law outside an

14

obvious case.’” Id. (quoting White, 137 S.Ct. at 552). Thus, in most situations, the court must

15

identify a case where an officer acting under similar circumstances was held to have violated the

16

Fourth Amendment. Id. at 1015-16. But “[i]n the absence of ‘a case directly on point,’ [the court]

17

compare[s] ‘specific factors’ relevant to the excessive force inquiry to determine whether a

18

reasonable officer would have known that the conduct in question was unlawful.” Isayeva v.

19

Sacramento Sheriff’s Dep’t, 872 F.3d 938, 947 (9th Cir. 2017) (quoting Bryan v. MacPherson,

20

630 F.3d 805, 826 (9th Cir. 2010)).
Despite these clear instructions and the emphasis the Supreme Court and the Ninth Circuit

21
22
23
24
25
26
27
28

3

In addition to those cases cited or discussed above, the Ninth Circuit has recently discussed or
decided qualified immunity with respect to the conduct of law enforcement in the following cases:
Bartlett v. Nieves, --- Fed. App’x. ----, 2017 WL 4712440 (9th Cir. 2017); McGuigan v. Cty. of
San Bernardino, --- Fed. App’x ----, 2017 WL 4570610 (9th Cir. 2017); Shafer v. Cty. of Santa
Barbara, 868 F.3d 1110 (9th Cir. 2017); Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir. 2017);
Sharp v. Cty. of Orange, 871 F.3d 901 (9th Cir. 2017); Krueger v. City of Missoula, 685 Fed.
App’x 631 (9th Cir. 2017), and Bui v. City & Cty. of San Francisco, --- Fed. App’x ----, 2017 WL
2814388 (9th Cir. 2017).
Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
13

1

have placed on identifying similar cases, Plaintiffs’ two rounds of briefing on this issue are

2

incomplete and unpersuasive. In the initial opposition, Plaintiffs cited only one case when

3

discussing the “clearly established” question, Long v. City and County of Honolulu, 511 F.3d 901

4

(2007). Long, however, does not involve officers acting under circumstances similar to those that

5

confronted Officers Warner and Lynd, and Plaintiffs make no effort to analogize its “specific

6

factors.” Instead, Plaintiffs cite Long for a basic principle of Fourth Amendment excessive force

7

law: that the use of deadly force is reasonable only if the officer has probable cause to believe that

8

the suspect poses a significant threat of death or serious physical injury to the officer or others.

9

511 F.3d at 906. That citation is not enough to meet their burden. The Supreme Court has
established that legal statements like the one from Long that merely constitute a formulation of

11
United States District Court
Northern District of California

10

“Garner’s ‘general’ test for excessive force” are not specific enough to constitute clearly

12

established law. Mullenix, 136 S. Ct. at 308-309.

13

Plaintiffs’ supplemental arguments filed after the summary judgment hearing are similarly

14

unconvincing. Dkt. No. 52. They conflate the separate questions that must be answered to

15

determine whether qualified immunity applies by arguing that “[w]hile this Court asked for cases

16

showing the Defendants Lynd and Warner’s actions amounted to constitutional violations that

17

were clearly established . . . , Plaintiffs maintain that the presence of material fact questions

18

prevent this determination.” That statement is incorrect because the result it assumes does not

19

automatically follow the cause; a dispute of material fact as to whether an officer’s conduct

20

constitutes a constitutional violation does not mean that qualified immunity must be denied. See

21

Isayeva, 872 F.3d at 945 (holding the district court erred because “the existence of a genuine

22

dispute about the reasonableness of an officer’s use of force does not preclude granting qualified

23

immunity” since the doctrine “involves two questions”). This is because such a dispute in the

24

facts cannot resolve the second question requiring the identification of clearly established law.

25

That is a legal inquiry, examined apart from the factual record, which also must be completed and

26

satisfied. If it is, disputed material facts may then prevent summary judgment in the officer’s

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
14

1

favor. But if it is not, judgment on the basis of qualified immunity should be entered even if the

2

facts are disputed.
In addition, Plaintiffs imply the court should not follow S.B. and excuse the requirement

3
4

that she produce a similar Fourth Amendment case because “S.B. is an overly expansive

5

interpretation” of the Supreme Court’s holding in White. Whether Plaintiff’s assessment of S.B. is

6

accurate or not is of no moment; this court is bound to follow S.B.’s holding unless and until it is

7

overruled. In re Zermeno-Gomez, 868 F.3d 1048, 1052 (9th Cir. 2017) (holding that under the

8

“law of the circuit” doctrine, a published decision from the Ninth Circuit is binding and must be

9

followed until “overruled by a body competent to do so”). Thus, any invitation to overlook S.B.

10

or its interpretation of White must be rejected.
In any event, Plaintiff embraces one point from S.B. without actually acknowledging it.

United States District Court
Northern District of California

11
12

The S.B. court recognized that the Graham and Garner legal standards may qualify as clearly

13

established law for cases involving obvious or “run-of-the-mill” Fourth Amendment violations

14

(864 F.3d at 1017), and Plaintiff likewise recognizes this possibility in her supplemental brief

15

through citation of Brosseau, a case in which the Supreme Court noted that Graham and Garner

16

can sufficiently inform officers “in an obvious case . . . even without a body of relevant case law.”

17

Applying those portions of S.B. and Brosseau to this case, the court concurs that one general

18

articulation of Fourth Amendment authority is relevant and constitutes clearly established law

19

under these factual circumstances: that is, an officer must give a warning before using deadly force

20

whenever practicable. Gonzalez, 747 F.3d at 794; accord Garner, 471 U.S. at 11-12. That legal

21

declaration, undoubtedly in existence on May 20, 2014, does not require the definition afforded by

22

another case with similar facts in order for officers to understand its mandate and application. 4
Here, there is no evidence that either Officer Warner or Officer Lynd warned Mejia-

23
24

Gomez he would be shot before they discharged their firearms, despite the testimony from both

25
26
27
28

4

In fact, the Ninth Circuit in 1997 described the requirement that officers provide a warning if
possible before utilizing deadly force as a clearly established principle. Harris v. Roderick, 126
F.3d 1189, 1201 (9th Cir. 1997), cert. denied, 522 U.S. 1115 (1998).
Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
15

1

officers that they gave Mejia-Gomez several other commands. Nor is there any evidence that

2

either officer communicated to Mejia-Gomez he would face deadly force if he made it to the

3

corner. Viewing the evidence in the light depicted by the Prieto and Bakery videos, a reasonable

4

jury could conclude that such warnings were practicable under the pace at which the events

5

unfolded.

6

But that does not end the matter, because the court also finds that two cases cited by

7

Plaintiffs can be considered clearly established law here. Though not directly on point, these cases

8

have comparable “specific factors” relevant to the use of force engaged against Mejia-Gomez.

9

See Isayeva, 872 F.3d at 947.
In Glenn, officers were summoned to a home by parents whose 18-year-old son, Lukus,

11
United States District Court
Northern District of California

10

was intoxicated and threatening to kill himself. When the officers arrived, Lukus was holding a

12

knife to his neck but not threatening anyone else. The officers screamed commands at Lukus,

13

such as “drop the knife or you’re going to die,” but Lukus may not have heard or understood the

14

commands because he was intoxicated. The officers also instructed Lukus’ parents and

15

grandmother to return to the residence and close the door, which they all did. At that point, “the

16

officers could have positioned themselves between Lukus and the front door to the home without

17

having to get any closer to Lukus, but they chose to stand elsewhere.” 673 F.3d at 869. Another

18

officer then arrived and shot Lukus with a beanbag shotgun. Lukus recoiled in response and

19

began to move away from the beanbag fire toward the alcove between the house and the garage.

20

Seeing that, the officers “independently determined that if Lukus made a move toward the house

21

with his parents inside, they would use deadly force.” Id. They then shot Lukus after he took one

22

or two steps, killing him.

23

The district court granted summary judgment to the officers after finding the use of force

24

did not violate Lukus’ Fourth Amendment rights and that the officers were entitled to qualified

25

immunity. The Ninth Circuit reversed. Significantly, the Glenn court found summary judgment

26

improper because a jury could find that Lukus did not pose an immediate threat to the safety of

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
16

1

others at the time he was shot. Indeed, though the evidence showed Lukus did not heed orders to

2

put down the knife, it also showed when viewed in the plaintiff’s favor that Lukus had not

3

committed a severe crime, the officers had an unobstructed view of Lukus during the incident and

4

had guns trained on him, Lukus did not attack the officers or threaten to attack them (and the

5

officers could have easily moved if he did), all bystanders had complied with the officers’

6

directions to return to their residence, no one was close enough to Lukus to be harmed by him

7

before officers could intervene, the officers did not warn Lukus they would use lethal force if he

8

continued to walk toward the residence, Lukus was not fleeing or resisting arrest, and the officers

9

did not attempt to employ less lethal alternatives.

10

Comparing the “specific factors” from Glenn to this record when viewed in Plaintiffs’

United States District Court
Northern District of California

11

favor, a reasonable officer would have known that the use of deadly force against Mejia-Gomez

12

was unlawful. Officers Warner and Lynd testified that Mejia-Gomez, like Lukus, did not respond

13

to commands that he drop the shears. But also like Lukus, the evidence shows that Mejia-

14

Gomez’s crimes were not “severe,” that Mejia Gomez did not threaten or attack the officers or

15

anyone else with the shears after the officers arrived at the scene, and that Mejia-Gomez was not

16

in active flight or resisting arrest, particularly since the videos appear to show that one officer

17

could have safely placed himself between Mejia-Gomez and the corner, or between Mejia-Gomez

18

and any business, without also coming in range of the shears.

19

The surrounding circumstances were also comparable to Glenn; Officers Warner and Lynd

20

had an unobstructed view of Mejia-Gomez with guns drawn the entire time and could have

21

intervened before someone was harmed, though harm to others appears unlikely since the videos

22

show that no one was close enough to Mejia-Gomez to be injured by the shears. In addition, like

23

the officers in Glenn, neither Officer Warner nor Officer Lynd warned Mejia-Gomez he would be

24

shot if he kept walking to the corner despite their decision to do so, and they did not employ other

25

less lethal alternatives after the failed taser attempt, even though other alternatives were available

26

and contemplated.

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
17

1

A “specific factor” comparison can also be made to Hayes v. County of San Diego, 736

2

F.3d 1223 (9th Cir. 2013). In Hayes, two officers arrived at a residence in response to a domestic

3

disturbance call. The officers spoke with Hayes’ girlfriend, who informed them the couple had

4

been arguing about Hayes’ suicide attempt. The officers entered the dimly-lit residence with guns

5

holstered to check on Hayes’ welfare. They encountered Hayes standing in an adjacent kitchen

6

area once they entered the living room, and one officer ordered Hayes to show his hands. While

7

taking one or two steps toward the officers, Hayes raised his hands to shoulder level and “revealed

8

a large knife pointed tip down in his right hand.” 736 F.3d at 1227-28. One officer drew his gun

9

and fired at Hayes, killing him. The officer later stated he shot Hayes because “he wasn’t
stopping,” but Hayes’ girlfriend, who witnessed the shooting, indicated Hayes was not charging

11
United States District Court
Northern District of California

10

the officers. Id. at 1228.

12

The district court granted summary judgment to the officers, but the Ninth Circuit

13

reversed. Analyzing state law claims under the Fourth Amendment standard for objective

14

reasonableness, the Hayes court held that reasonable jurors, viewing the evidence in the light most

15

favorable to the plaintiff, could conclude the officers’ use of deadly force not objectively

16

reasonable. The court noted, inter alia, that there was no evidence Hayes was actively resisting

17

arrest or attempting to evade arrest, that Hayes may have been walking toward the officers but was

18

not charging them, that there was no clear evidence Hayes threatened the officers or others with

19

the knife, and that Hayes was not warned before he was shot.

20

In light of Hayes, a reasonable officer would have been aware that using deadly force

21

against Mejia Gomez was unlawful. As already noted, a reasonable jury viewing the evidence in

22

Plaintiffs’ favor could find that Officers Warner and Lynd used unreasonable deadly force because

23

Mejia-Gomez, like Hayes, was not actively resisting arrest or attempting to evade arrest, was

24

walking away but did not lunge at the officers, did not threaten the officers or others with the

25

shears, and was not warned before he was shot.

26
27
28

In sum, the court finds that it was clearly established on May 20, 2014, that an officer must
Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
18

1

give a warning before using deadly force whenever practicable. The court also finds that Glenn

2

and Hayes clearly established for Officers Warner and Lynd whether or not deadly force against

3

Mejia-Gomez was lawful under the circumstances. Consequently, Officers Warner and Lynd are

4

not entitled to qualified immunity at this time because there is a material issue of fact as to

5

whether they violated Mejia-Gomez’s clearly established constitutional rights. In turn,

6

Defendants’ summary judgment motion must be denied as to Plaintiff’s Fourth Amendment

7

excessive force cause of action.
B.

9

Turning to the other federal claim, Defendants move for summary judgment on Plaintiffs’

10

cause of action under the Fourteenth Amendment. “Such a claim requires the plaintiffs to prove

11
United States District Court
Northern District of California

8

that the officers’ use of force ‘shock[ed] the conscience.’” Gonzalez, 747 F.3d at 797 (quoting

12

Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). The primary legal question under that

13

standard is whether it can be met by a showing of deliberate indifference, or whether the plaintiff

14

must instead show a purpose to harm for reasons unrelated to legitimate law enforcement

15

objectives. Porter, 546 F.3d at 1137. If the circumstances were such that actual deliberation was

16

practical, liability may attach from an officer’s deliberate indifference. Id. at 1138.

17

“Deliberation” for the purposes of the “shocks the conscience” test is not a literal concept and is

18

not necessarily tied to the amount of time allowed for consideration before action. Id. at 1139. In

19

addition, the court may not “parse an officer’s intentions and initial decisions to use force” when

20

deciding “the level of culpability to apply under the shocks the conscience test.” Id. at 1138.

21

Fourteenth Amendment Cause of Action

Placing this case on the spectrum between deliberate indifference and purpose to harm, the

22

court finds the conditions as they presented to Officers Warner and Lynd are more akin to “an

23

evolving set of circumstances that took place over a short time period,” to which the “purpose to

24

harm” level of culpability applies, rather than an extended opportunity to do better teamed with a

25

protracted failure even to care, which calls for application of deliberate indifference. Id. at 1139.

26

As captured on the Prieto video, the entire incident occurred in less than two minutes, leaving the

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
19

1

officers little opportunity to reflect on their decision to shoot once it was made. Although a jury

2

could find that the officers’ fear for public safety was unwarranted and could also find the use of

3

force was excessive, these possibilities do not alter the urgency the officers perceived from the

4

situation based on their knowledge of the area, even if that perception was mistaken. See Porter,

5

546 F.3d at 1138.

6

Plaintiff’s arguments to the contrary are unpersuasive. They focus on disputed facts such
as whether the officers felt threatened by Mejia-Gomez, note there were no visible bystanders

8

close enough to Mejia-Gomez to be injured, and state that a “reasonable jury could find that the

9

Defendant Officers’ conduct of premeditating to a point at which they would shoot” Mejia-Gomez

10

violates the Fourteenth Amendment. But as the Ninth Circuit has explained, such facts “are more

11
United States District Court
Northern District of California

7

relevant to the next step of the analysis,” occurring after the applicable level of culpability is

12

determined. Id. at 1140.

13

Thus, Plaintiffs must demonstrate that Officers Warner and Lynd acted with a purpose to

14

harm Mejia-Gomez that was unrelated to legitimate law enforcement objectives. Plaintiffs have

15

not done so, even when the facts are viewed in their favor. They have not produced any evidence

16

showing that the officers had motives outside of those related to law enforcement. As such,

17

Defendants are entitled to summary judgment on Plaintiffs’ cause of action under the Fourteenth

18

Amendment.

19

C.

20

The Supreme Court has held that “a municipality may only be sued under section 1983 if

21

the action that is alleged to be unconstitutional implement [ed] or execute[d] a policy statement,

22

ordinance, regulation, or decision officially adopted and promulgated by that body’s officers, or

23

the city made a deliberate or conscious choice to fail to train its employees adequately.” Boyd v.

24

Benton Cty., 374 F.3d 773, 784 (9th Cir. 2004) (citing Monell v. Dep’t of Soc. Servs., 436 U.S.

25

658, 690 (1978)); Mackinney v. Nielsen, 69 F.3d 1002, 1010 (9th Cir. 1995)) (internal citations

26

and quotation marks omitted). Defendants move for summary judgment on Plaintiffs’ Monell

27
28

Monell Cause of Action

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
20

1

cause of action against the City on two grounds.

2

First, Defendants argue the claim cannot proceed because the officers are entitled to

3

qualified immunity. This argument can only prevail if qualified immunity resulted from a finding

4

that no constitutional violation occurred. See City of Los Angeles v. Heller, 475 U.S. 796, 799

5

(1986) (holding that Monell liability will not attach “based on the actions of one of its officers

6

when in fact the jury has concluded that the officer inflicted no constitutional harm”); see also

7

Long, 511 F.3d at 907 (“If no constitutional violation occurred, the municipality cannot be held

8

liable . . . .”). Because a jury must decide whether the officers violated Mejia-Gomez’s rights

9

under the Fourth Amendment, this follow-along argument does not succeed in obtaining summary

10

United States District Court
Northern District of California

11

judgment on the Monell cause of action.
Second, Defendants argue Plaintiffs cannot produce sufficient evidence to prove a Monell

12

cause of action. Important to this discussion is the manner in which Plaintiffs frame their claim,

13

because the loose form of argument on this topic raises several potential issues. In response to

14

Defendants’ motion claiming a lack of evidence, Plaintiffs state they “do not argue that Defendant

15

City’s policy allowing the use of unconstitutional excessive force is the basis” of the claim.

16

Instead, “Plaintiffs maintain that Defendant City’s actual policies led to the constitutional harm

17

suffered by Plaintiffs. . . .” Plaintiffs then identify a “grievously vague policy that its police

18

officers were required to maintain their Tasers.” They also identify a policy that does not require

19

officers to carry any non-lethal equipment while on duty.

20

Additionally, Plaintiffs rely on a failure to train or supervise that gives rise to a “policy or

21

custom.” More specifically, Plaintiffs state that despite the death of Mejia-Gomez and the

22

recommendation of the manufacturer, the City “did not retrain the Defendant Officers on proper

23

taser use or maintenance.”

24

As the court understands their arguments, Plaintiffs rely both on affirmative policies of the

25

City, as well as on a policy of deliberate indifference. For Monell liability to attach based on the

26

former, “it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
21

1

the municipality.” Bd. of the Cty. Comm’rs of Bryan Cty. Okla. v. Brown, 520 U.S. 397, 404

2

(1997). “The plaintiff must also demonstrate that, through its deliberate conduct, the municipality

3

was the ‘moving force’ behind the injury alleged.” Id. (emphasis preserved). “That is, a plaintiff

4

must show that the municipal action was taken with the requisite degree of culpability and must

5

demonstrate a direct causal link between the municipal action and the deprivation of federal

6

rights.” Id. In other words, the identified policy must be both the “but-for” and proximate cause

7

of the violation. See Van Ort v. Estate of Stanewich, 92 F.3d 831 (9th Cir. 1996); see also Harper

8

v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).

9

Similarly, imposition of liability on a local governmental entity for failing to act to
preserve constitutional rights, otherwise known as a policy of deliberate indifference, contains a

11
United States District Court
Northern District of California

10

similar “moving force” causation requirement. Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470,

12

1474 (9th Cir. 1992) (citing City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)).

13

Viewing the record in the light most favorable to Plaintiffs, a reasonable jury could not

14

find the City’s policies as they identify them, or the lack of any “policy or custom,” was the

15

“moving force” behind the violation of Mejia-Gomez’s constitutional rights. As to the taser

16

policy, it may have been the “but-for” and proximate cause of Officer Warner’s failed attempt to

17

discharge his taser against Mejia-Gomez, as Plaintiffs argue. But that’s where the chain of

18

causation ends. The record shows that other intervening events occurred after the failed taser

19

attempt but before the shooting - including another failed taser attempt by Officer Lynd, a failed

20

leg sweep, and a decision by the officers to use deadly force when Mejia-Gomez reached a

21

specific area - such that no direct causal link can be made between the taser policy and the deadly

22

force used against Mejia-Gomez. See Van Ort, 92 F.3d at 837.

23

A like analysis applies to the policy concerning non-lethal equipment. The evidence

24

shows that Officers Warner and Lynd were carrying non-lethal equipment on the date of their

25

interaction with Mejia-Gomez, and there is no evidence in the record upon which a reasonable jury

26

could find the absence of additional non-lethal equipment, or a policy that does not require non-

27
28

Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
22

1

lethal equipment, was the “moving force” behind the violation.
Finally, Plaintiffs have not produced evidence supporting their theory based on a failure to

2

train or supervise officers concerning proper taser use. Plaintiffs cite to the City’s knowledge of

4

Mejia-Gomez’s death as well as recommendations from Taser and the Department of Justice

5

issued after the shooting occurred. But this is notice-after-the-fact evidence that does not show

6

that the failure to train reflects a “‘deliberate choice to follow a course of action . . . made from

7

among various alternatives’ by city policymakers,” such that the alleged policy of deliberate

8

indifference was the “moving force” behind the constitutional violation. City of Canton, 489 U.S.

9

at 389 (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985)). If anything, the evidence on

10

which Plaintiffs rely may show the City was deliberately indifferent by not retraining the officers

11
United States District Court
Northern District of California

3

after the violation occurred, but not that such deliberate indifference caused the violation.
In short, a reasonable jury could not find Monell liability even when viewing the evidence

12
13

in Plaintiffs’ favor. Summary judgment will be granted on the Monell cause of action.

14

D.

15

Defendants argue the state law causes of action are derivative of the Fourth Amendment

State Law Causes of Action

16

excessive force claim, and must stand or fall along with it. Because the Fourth Amendment cause

17

of action survives this motion, so do those asserted under state law.

18

IV.

19
20
21
22
23
24
25
26
27
28

ORDER
Based on the foregoing, Defendants’ Motion for Summary Judgment is GRANTED IN

PART and DENIED IN PART.
The motion is GRANTED as to the Fourteenth Amendment and Monell causes of action,
but is otherwise DENIED.
IT IS SO ORDERED.
Dated: November 6, 2017
______________________________________
EDWARD J. DAVILA
United States District Judge
Case No.: 5:14-cv-05598-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
23