Acosta v. California Highway Patrol
Filing
58
ORDER GRANTING IN PART AND DENYING IN PART 45 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 6/24/2019. (blflc3S, COURT STAFF) (Filed on 6/24/2019)
1
2
3
UNITED STATES DISTRICT COURT
4
NORTHERN DISTRICT OF CALIFORNIA
5
SAN JOSE DIVISION
6
7
CRISTOBAL ACOSTA,
Plaintiff,
8
9
10
United States District Court
Northern District of California
11
12
Case No. 18-cv-00958-BLF
v.
CALIFORNIA HIGHWAY PATROL, et al.,
Defendants.
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
[Re: ECF 45]
As Mr. Cristobal Acosta sat in his car stopped at the side of the road with a mechanical
13
breakdown that caused “backfiring,” two California Highway Patrol (“CHP”) officers responded
14
to an on-duty sergeant’s report of an explosion from the car or possible “shots fired,” and
15
approached Acosta’s stopped car from behind in their respective patrol vehicles. After hearing a
16
loud sound coming from Plaintiff’s car that was actually a backfire, one officer exclaimed “Shots
17
fired!” and “Back up.” After hearing a second loud sound from Plaintiff’s car seconds later, both
18
officers opened fire, believing that the loud sounds coming from Plaintiff’s car were gunfire. One
19
of the bullets struck Plaintiff, who was in fact not armed and had committed no crime.
20
Arising from this incident, Plaintiff Acosta brings suit against the CHP, Sergeant Daniel
21
Hill (“Sergeant Hill”), Officer David Morasco, Jr. (“Officer Morasco”), and Officer Jonas Bleisch
22
(“Officer Bleisch”) (collectively, “Defendants”). Plaintiff claims that Officers Morasco and
23
Bleisch violated his civil rights secured by the Fourth Amendment and 42 U.S.C. § 1983. Plaintiff
24
also claims that the incident was the result of Defendants’ negligence and that the CHP and
25
Officers Morasco and Bleisch are liable under three additional state law claims. Defendants seek
26
summary judgment on all claims, including dismissal of Plaintiff’s federal claim under qualified
27
immunity. See Motion, ECF 45. For the reasons discussed below, Defendants’ motion for
28
summary judgment is GRANTED IN PART and DENIED IN PART.
I.
1
STATEMENT OF FACTS1
Events Leading up to the Officers’ Arrival on the Scene
2
A.
3
On the night of January 8, 2017, Plaintiff was driving a black Volkswagen Jetta in San
Jose, CA. See Acosta Depo. at 45:11–14, Ex. 9 to Motion, ECF 45-1; Photographs of Acosta’s
5
Vehicle, Ex. 2 to Booth Decl., ECF 51-1. Plaintiff’s vehicle was experiencing mechanical issues,
6
described by Plaintiff as “explo[sions]” that caused the engine to “turn[] off by itself.” See Acosta
7
Depo. at 45:1–4. Plaintiff initially pulled over near a Walgreens but was able to successfully
8
restart his vehicle and continue driving. See id. at 45:5–10. Plaintiff proceeded to drive down
9
McKee Road toward U.S. Highway 101 (“US-101”) and entered US-101 heading north. See id.
10
at 45:11–16. After a few miles Plaintiff’s vehicle made another “explosion” sound and Plaintiff
11
United States District Court
Northern District of California
4
pulled over and stopped on the shoulder of the connector ramp between northbound US-101 and
12
northbound Interstate 880 (“I-880”). See Statement of Cristobal Acosta, pg. 10–11 of District
13
Attorney Report, Ex. 10 to Motion, ECF 45-1.
Meanwhile, Sergeant Hill was on duty in the San Jose area. See Hill Decl. ¶ 2, Ex. 2 to
14
15
Motion, ECF 45-1. Officer Morasco was also working that night, January 8, 2017. See Morasco
16
Decl. ¶ 2, ECF 46-5. Sometime after 11:00 p.m., Officer Morasco “was assisting with traffic
17
control around an [unrelated] accident scene near the interchange between [US-]101 and [I-]880 in
18
San Jose.” Id. Officer Bleisch was likewise working that night and assisting with traffic control
19
around the unrelated accident. See Bleisch Decl. ¶ 2, ECF 46-3.
At approximately 11:30 p.m., Sergeant Hill was standing outside of his patrol vehicle on a
20
21
connector ramp (between northbound I-880 and northbound US-101) adjacent to the ramp where
22
Plaintiff would ultimately stop, assisting a tow driver with a vehicle involved in the unrelated
23
traffic collision. See Hill Decl. ¶ 2. Sergeant Hill then “heard a loud bang sound” coming from
24
the northbound US-101 to northbound I-880 ramp behind him. See id. Sergeant Hill walked over
25
to the cement wall separating the two ramps and saw a black sedan, later identified as Plaintiff’s
26
Volkswagen, stopped on the right shoulder of the northbound US-101 to northbound I-880 ramp,
27
28
1
The facts set forth in this section are undisputed unless otherwise noted.
2
1
approximately 100 yards from Hill’s location. See id. ¶¶ 2–3. From this vantage point, Sergeant
2
Hill “saw a flash coming from Mr. Acosta’s vehicle, which appeared consistent with a firearm
3
muzzle flash or some type of explosion, and [] heard a loud bang sound that was similar to that of
4
a gun.” Id. ¶ 3.
5
Next, Sergeant Hill contacted the Golden Gate Communications Center dispatch
6
(“Dispatch”) to report his observations. Defendants have submitted an audio recording of the
7
dispatch clip, see Ex. 3 (lodged manually) to Motion, ECF 45-1, as well as a transcript of the first
8
two minutes (the relevant portion) of the clip, see Dispatch Transcript, Ex. 3-A to Fong Decl.,
9
ECF 55. Sergeant Hill reported to Dispatch that “[i]t looks like somebody TC’d [traffic
collision/crashed] northbound 101 to northbound 880. Uh, there’s something on the right
11
United States District Court
Northern District of California
10
shoulder.” See Dispatch Transcript at 2:6–8. Officer Morasco, who was listening to the dispatch
12
call, responded, “I’m in the area. I can turn around.” See id. at 2:15–16. Sergeant Hill
13
immediately added that “I’m not sure what happened, but something just exploded from that car
14
or it could’ve been shots fired. I’m not sure.” See id. at 2:18–20 (emphasis added).
15
Dispatch then repeated back, “[p]ossibly shots fired.” See Dispatch Transcript at 2:21.
16
Dispatch also activated a “clearance tone,” see id. at 2:21–25, which advises other CHP officers to
17
stay off the radio unless it is an emergency, see Morasco Decl. ¶ 2. A few moments later, Officer
18
Morasco confirmed that he was “[o]n [his] way” to investigate Sergeant Hill’s report of an
19
explosion or possible shots fired from the yet-to-be-identified vehicle (Plaintiff’s vehicle). See
20
Dispatch Transcript at 3:5–9.
21
As these events unfolded, Officer Bleisch was listening to the dispatch broadcast and
22
“heard Officer Morasco respond to Sergeant Hill over the radio.” See Bleisch Decl. ¶ 3. Officer
23
Bleisch testifies that “Officer Morasco then passed my patrol vehicle in his patrol vehicle, headed
24
toward the stopped car.” Id. After a few moments, Officer Bleisch “followed Officer Morasco to
25
assist.” Id. Both officers had activated the overhead blue and red flashing lights on their vehicles
26
as they approached the stopped car, automatically triggering the dash camera system (Mobile
27
Video Audio Recording System or “MVARS”) installed on each patrol vehicle. See Bleisch
28
Decl. ¶ 3; Morasco Decl. ¶ 3.
3
The Officers’ Arrival on the Scene and Subsequent Events
1
B.
2
As Officer Morasco and Officer Bleisch approached in their patrol vehicles, Plaintiff’s
3
vehicle was stopped on the right hand shoulder of the connector ramp between northbound US-
4
101 and northbound I-880. See Bleisch Decl. ¶ 3. The officers’ arrival on the scene and
5
subsequent events were captured by the MVARS on each of the officers’ two patrol vehicles.
6
Defendants submitted the MVARS video recording from Officer Morasco’s patrol vehicle,
see Ex. 7 (lodged manually) to Motion, ECF 45-1, as well as a transcript, see Morasco MVARS
8
Transcript, Ex. 7-A to Fong Decl., ECF 55. The Morasco MVARS video is approximately
9
fourteen minutes in length. The first 90 seconds are of primary importance to the instant motion.
10
In parallel, Plaintiff submitted the MVARS video recording from Officer Bleisch’s patrol vehicle,
11
United States District Court
Northern District of California
7
see Ex. 1 (lodged manually) to Booth Decl., ECF 51-1, and an accompanying transcript, see
12
Bleisch MVARS Transcript, Ex. 1-A to Booth Decl., ECF 56. The Bleisch MVARS video is
13
approximately eleven and a half minutes in length. The first 125 seconds overlaps the 90-second
14
time period from the Morasco MVARS video that is of primary importance to the instant motion.
15
Officer Morasco was the first to approach Plaintiff’s vehicle. The Morasco MVARS video
16
shows Officer Morasco traveling northbound on I-880 and taking the US-101 north exit (exit 4C).
17
Morasco MVARS Video at 00:00–00:22. Officer Morasco then went off-road, turning left and
18
driving across a grassy area to reach the connector ramp between northbound US-101 and
19
northbound I-880 where Plaintiff’s vehicle was stopped. See id. at 00:22–00:34. Officer Morasco
20
activated his lights as he entered the grassy area. See id. Officer Morasco reached the connector
21
ramp (on which Plaintiff’s vehicle was stopped farther down) at approximately the 00:34 mark,
22
and Plaintiff’s vehicle became visible a few seconds later, as Officer Morasco continued to drive
23
along the ramp. See id. at 00:34–0:39. The video shows Plaintiff’s vehicle stopped on the right
24
shoulder of the ramp and two lights on the rear of Plaintiff’s vehicle visibly blinking. See id.
25
at 0:39–0:44. Officer Morasco came to a stop approximately 30 feet behind Plaintiff’s vehicle.
26
See id. Plaintiff cannot be seen or heard on the video at this point in time. See id. Plaintiff’s
27
vehicle had a tinted rear window. See Morasco Decl. ¶ 3; Photographs of Acosta’s Vehicle, Ex. 2
28
to Booth Decl., ECF 51-1.
4
1
Officer Bleisch was the second to approach Plaintiff’s vehicle. The Bleisch MVARS
video shows Officer Bleisch initially parked on the shoulder of the exit (exit 4C) from I-880 north
3
to US-101 north. See Bleisch MVARS Video at 00:00–00:51. The video then shows Officer
4
Morasco driving past Officer Bleisch, at which point Officer Bleisch begins following Officer
5
Morasco. See id. at 00:51–01:04. Officer Bleisch activated his lights at approximately the 01:04
6
mark, shortly before turning left to enter the grassy area between the two ramps. See id. at 01:04–
7
01:13. Officer Bleisch reached the connector ramp (on which Plaintiff’s vehicle was stopped
8
farther down) at approximately the 01:27 mark, at which point Officer Morasco’s patrol vehicle is
9
visible farther down the ramp. See id. at 01:13–01:27. As Officer Bleisch approaches (on the left
10
side of Officer Morasco’s patrol vehicle), Officer Morasco is visible outside of his vehicle, behind
11
United States District Court
Northern District of California
2
his open driver-side door. See id. at 01:27–01:34. At the 01:34 mark, Officer Bleisch’s vehicle is
12
still moving and Plaintiff’s vehicle is only partially visible. See id.
13
Turning back to the Morasco MVARS video, Officer Morasco’s vehicle is stationary
14
behind Plaintiff’s vehicle at this point in time. See Morasco MVARS Video at 00:44–00:53. At
15
approximately the 00:53–00:54 mark, a loud sound emanates from Plaintiff’s vehicle, followed
16
immediately by a clearly visible puff of smoke. See id. at 00:53–00:54. This same sound and puff
17
of smoke is captured on the Bleisch MVARS video at approximately the 01:35–01:36 mark. See
18
Bleisch MVARS video at 01:35–01:36.
19
Upon hearing the loud sound at the 00:53–00:54 mark, Officer Morasco exclaimed, “Shit!
20
Shots fired! Shots fired, shots fired, shots fired? 89Boy shots fired!” See Morasco MVARS
21
Transcript at 2:7–9; see also Morasco MVARS Video at 00:54–00:59. Officer Morasco’s “shots
22
fired” language is also audible on the Bleisch MVARS video. See Bleisch MVARS Video
23
at 01:37–01:40; Bleisch MVARS Transcript at 3:12–14. Dispatch then repeated back “Shots
24
fired.” See Morasco MVARS Transcript at 2:10; see also Morasco MVARS Video at 00:59–
25
01:00. A few seconds later, Officer Morasco said, “Back up. Back up. Back up. Back up.” See
26
Morasco MVARS Transcript at 2:11–12; see also Morasco MVARS Video at 01:01–01:04.
27
28
At this instant—the 01:04–01:05 mark of the Morasco MVARS video—a second loud
sound and puff of smoke emanated from Plaintiff’s vehicle. See Morasco MVARS Video at
5
1
01:04–01:05; see also Bleisch MVARS video at 01:45–01:46. Moments later, Officer Morasco
2
opened fire on Plaintiff’s vehicle, emptying a full magazine2 of rounds. See Morasco MVARS
3
Video at 01:06–01:15; Morasco Decl. ¶ 12. Simultaneously, Officer Bleisch backed up his patrol
4
vehicle a few feet and then opened fire on Plaintiff’s vehicle, also emptying a full magazine of
5
rounds. See Bleisch MVARS video at 01:47–01:57; Bleisch Decl. ¶ 9.
No additional shots were fired. A few seconds later, Officer Bleisch yelled in the direction
6
7
of Plaintiff, “Put your hands up. Let me see your f****** hands.” See Bleisch MVARS
8
Transcript at 3:25–4:1; see also Bleisch MVARS Video at 2:04–2:07. One of the officers also
9
said, “Drop the gun. Put your hands up.” See Morasco MVARS Transcript at 2:19–20. However,
there is no evidence that Plaintiff actually possessed a gun during the encounter, nor do
11
United States District Court
Northern District of California
10
Defendants so argue in the instant motion. Instead, the loud sounds and puffs of smoke coming
12
from Plaintiff’s vehicle were actually caused by the vehicle “backfiring,” although the officers
13
state they did not know so at the time. See Morasco Decl. ¶ 11; Bleisch Decl. ¶ 10.
After a period of time during which the officers continued to give instructions, Plaintiff
14
15
exited his vehicle and positioned himself face down on the ground. See Morasco MVARS Video
16
at 1:16–6:32. A few minutes later, Plaintiff rose from the ground, walked backwards from his
17
vehicle in the direction of Officer Morasco’s patrol vehicle, and was detained by other officers
18
who had subsequently arrived on the scene. See Morasco Decl. ¶ 14; Bleisch Decl. ¶ 11; see also
19
Morasco MVARS Video at 7:09–8:40.
After the scene was “stabilized,” Sergeant Hill “requested emergency medical [personnel]
20
21
to immediately respond to the scene to provide treatment to Mr. Acosta.” See Hill Decl. ¶ 9.
22
Sergeant Hill notes that “[i]t appeared that Mr. Acosta received a grazing gunshot wound to his
23
head as a result of the incident.” Id. Indeed, Plaintiff had been struck by one of the bullets fired
24
by Officer Morasco and Officer Bleisch. See Photo of Acosta Head Wound, Ex. 11 to Motion,
25
ECF 45-1; see also Opp’n at 5, ECF 51 (stating that “only one of the bullets struck Mr. Acosta”).
26
Plaintiff received emergency medical aid at the scene and was then transported to the Santa Clara
27
28
2
Each magazine contained 12 bullets. See Motion at 6.
6
1
County Regional Medical Center. See Hill Decl. ¶ 9. Around this time, the San Jose Police
2
Department (“SJPD”) began an investigation into the incident. See Hill Decl. ¶ 10; SJPD Report
3
at 50, Ex. 8 to Motion, ECF 45-1.
4
Plaintiff “sustained a 1.5cm laceration to the back of [his] head” which was considered
5
“non life threatening.” See SJPD Report at 50. Plaintiff was released from the medical center at
6
2:43 a.m. on January 9, 2017, after which the SJPD transported Plaintiff to their office for an
7
interview. See SJPD Report at 50–51. Later that morning, an SJPD officer drove Plaintiff to an
8
address of Plaintiff’s request in Union City, CA.
9
The District Attorney for the County of Santa Clara provided a Report on the Non-Fatal
Shooting of Cristobal Acosta (“District Attorney Report”). See District Attorney Report, Ex. 10 to
11
United States District Court
Northern District of California
10
Motion, ECF 45-1. In evaluating the officers’ potential criminal liability, the District Attorney
12
Report considered “various narrative reports, documenting interviews of the involved officers and
13
civilian witnesses, audio recordings of those interviews, and crime scene details.” See District
14
Attorney Report at 3. The report concluded that under the totality of the circumstances “Officers
15
Morasco and Bleisch reasonably and actually believed that the driver of the stopped car, Cristobal
16
Acosta, posed a threat of imminent death or great bodily injury, either to the officers or others,”
17
and that both officers “were justified in their use of force in response to an immediate threat of
18
great bodily injury or death.” See id. at 23. Thus, the District Attorney found that the officers’
19
conduct “is legally justifiable and no criminal liability attaches.” See id.
20
C.
21
As previously discussed, Sergeant Hill heard some of the “backfires” from Plaintiff’s
Statements regarding whether the Backfires sounded like Gunshots
22
vehicle live and contemporaneously reported that “I’m not sure what happened, but something
23
just exploded from that car or it could’ve been shots fired. I’m not sure.” See Dispatch
24
Transcript at 2:18–20 (emphasis added). Officer Morasco, who was approximately 30 feet behind
25
Plaintiff’s vehicle when another backfire occurred (the first “loud sound” in the Morasco MVARS
26
video) contemporaneously reported, “Shots fired! Shots fired, shots fired . . . 89Boy shots fired!”
27
See Morasco MVARS Transcript at 2:7–9.
28
Officer Bleisch, for his part, submits testimony that he “heard the sound of a gunshot from
7
1
the vicinity of Mr. Acosta’s vehicle” and that “[a] few seconds later, I heard a second shot from
2
the vehicle.” See Bleisch Decl. ¶¶ 7–9. And Plaintiff acknowledges that he told policeman who
3
were interviewing him on January 9, 2017, “[my] car backfiring sounded like gunshots.” See
4
Acosta Depo. at 47:6–9. When asked why he said that, Plaintiff explained that “[t]he first thing
5
that came to my mind, maybe a gunshot. That’s the first thing that came to my mind.” See id.
6
at 47:10–13.
7
In addition, one civilian nearby the scene described hearing a “loud pop” and then “what
8
she thought was a gunshot.” See Statement of Sammanika Martica, pg. 11–12 of District Attorney
9
Report, Ex. 10 to Motion, ECF 45-1. This civilian “ran” after the “second one [that] sounded like
a gunshot.” See id. On the other hand, a separate civilian witness (Alberto Gonzalez-Pinales),
11
United States District Court
Northern District of California
10
who had a clear visual of the highway and the involved vehicles, heard a “loud bang” coming from
12
Plaintiff’s vehicle and was “unsure as to what the noise was, but believed it was the vehicle having
13
mechanical issues.” See Statement of Alberto Gonzalez-Pinales, pg. 12–13 of District Attorney
14
Report, Ex. 10 to Motion, ECF 45-1.
Procedural History and Plaintiff’s Claims
15
D.
16
Plaintiff filed this action in state court on January 17, 2018. See Compl., Ex. A to Notice
17
of Removal, ECF 1. On February 14, 2018, Defendants removed the action to federal court. See
18
Notice of Removal, ECF 1. On July 30, 2018, the Court granted the parties’ stipulation permitting
19
Plaintiff to file a first amended complaint (“FAC”), see ECF 24, which Plaintiff filed on August 2,
20
2018, see FAC, ECF 27. On October 9, 2018, the Court granted the parties’ stipulation permitting
21
Plaintiff to file a second amended complaint (“SAC”), see ECF 38, which Plaintiff filed on
22
October 10, 2018, see SAC, ECF 39. The SAC is the operative complaint and names four
23
defendants: the CHP, Sergeant Hill, Officer Morasco, and Officer Bleisch. See generally SAC.
24
Defendants answered the SAC on October 25, 2018. See Answer, ECF 42.
25
Plaintiff’s SAC pleads the following five causes of action:
26
(1) Violation of Civil Rights secured by the Fourth Amendment to the U.S. Constitution
27
28
and 42 U.S.C. § 1983 (against Officers Morasco and Bleisch);
(2) False Arrest and Imprisonment pursuant to Cal. Gov’t Code §§ 815.2(a) & 820.4
8
(against the CHP and Officers Morasco and Bleisch);
1
(3) Battery pursuant to California state law and Cal. Gov’t Code § 815.2(a)
2
(against the CHP and Officers Morasco and Bleisch);
3
(4) Violation of the Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1
4
(against the CHP and Officers Morasco and Bleisch); and
5
(5) Negligence under California law and Cal. Gov’t Code §§ 815.2(a) & 820.4
6
(against all Defendants).
7
8
See generally SAC. The SAC also requests punitive damages. See id.
Defendants filed their motion for summary judgment on January 24, 2019, seeking
9
judgment in their favor on all claims. See Motion, ECF 45. Plaintiff submitted his opposition
11
United States District Court
Northern District of California
10
brief on March 15, 2019, see Opp’n, ECF 51, and Defendants submitted their reply brief on March
12
26, 2019, see Reply, ECF 52. The Court held a hearing on Defendants’ motion for summary
13
judgment on May 2, 2019 (“the Hearing”).
14
15
II.
EVIDENTIARY OBJECTIONS
Under Federal Rule of Civil Procedure 56(c), a party can object to an opposing party’s
16
declarations and evidentiary material if it is not in a form that “would be admissible in evidence.”
17
Defendants object to portions of the Declaration of Roger Clark (ECF 51-2) submitted by Plaintiff
18
in opposition to Defendants’ motion for summary judgment. See Defendants’ Objections at 2–3,
19
ECF 52-1. The Court discusses each objection in turn.
20
1. Clark Decl. ¶ 9
21
Defendants object to the portion of Clark Decl. ¶ 9 that states “officers can usually avoid
22
firing their guns” and “[t]he use of deadly force against an unarmed, innocent person like
23
Mr. Acosta is an aberration and almost always avoidable.” See Defendants’ Objections at 2.
24
Defendants argue that this is a generalized statement that lacks foundation. See id.
25
Ruling: OVERRULED. The Court finds Mr. Clark qualified to form these opinions based
26
on his twenty-seven years of experience in the law enforcement field and review of CHP
27
procedures.
28
9
1
2. Clark Decl. ¶ 10
2
Defendants object to the portion of Clark Decl. ¶ 10 that states “the use of deadly force
3
against Mr. Acosta was not objectively reasonable” and that the officers created a “dangerous
4
situation” and “failed to take heed of various clues that indicated that Mr. Acosta was not a
5
threat.” See Defendants’ Objections at 2. Defendants argue that Clark improperly proffers a
6
“legally specialized term,” makes an improper legal conclusion, and attempts to testify about the
7
officers’ subjective knowledge. See id.
8
Ruling: SUSTAINED IN PART and OVERRULED IN PART. Mr. Clark’s statement that
the use of deadly force against Plaintiff was not objectively reasonable is an impermissible legal
10
conclusion. See Hangarter v. Provident Life, 373 F.3d 998, 1016 (9th Cir. 2014). However, the
11
United States District Court
Northern District of California
9
Court finds Mr. Clark qualified to form the remaining challenged opinions based on his review of
12
the evidence and twenty-seven years of experience in the law enforcement field.
13
3. Clark Decl. ¶ 11
14
Defendants object to various portions of Clark Decl. ¶ 11. See Defendants’ Objections
15
at 3. Defendants argue that Clark offers no foundation for the challenged statements and
16
improperly testifies about Sergeant Hill’s subjective state of mind. See id.
17
Ruling: SUSTAINED IN PART and OVERRULED IN PART. Mr. Clark’s statement that
18
Sergeant Hill had “no necessity . . . to intervene with regard to Mr. Acosta’s mechanical
19
problems” lacks foundation. In addition, Mr. Clark’s statement that Sergeant Hill’s conduct was
20
“reckless[]” is a determination within the province of the trier of fact and therefore improper. See
21
Cotton v. City of Eureka, 2011 WL 4047490, at *2 (N.D. Cal. Sept. 8, 2011). However, the Court
22
finds the remaining opinions in this paragraph warranted.
23
4. Clark Decl. ¶ 12
24
Defendants object to the portion of Clark Decl. ¶ 12 that states it was “reasonably
25
foreseeable” that Defendants’ conduct could easily lead to serious injuries or death. See
26
Defendants’ Objections at 3. Defendants argue this statement is an improper legal conclusion. Id.
27
28
Ruling: OVERRULED. The Court does not read this statement to be a legal conclusion
but instead an opinion that Mr. Clark is qualified to form based on his twenty-seven years of
10
1
experience in the law enforcement field and review of CHP procedures and the evidence in this
2
case.
3
5. Clark Decl. ¶ 13
4
Defendants object to the portion of Clark Decl. ¶ 13 that states “there was no justification
5
for the use of deadly force,” the officers’ response was not “reasonable,” and the officers
6
“violate[d] Mr. Acosta’s Fourth Amendment rights.” See Defendants’ Objections at 3.
7
Defendants argue these statements are improper legal conclusions. Id.
8
9
Ruling: SUSTAINED. These statements are improper legal conclusions. See Hangarter
v. Provident Life, 373 F.3d 998, 1016 (9th Cir. 2014).
6. Clark Decl. ¶ 14
11
United States District Court
Northern District of California
10
Defendants object to the portion of Clark Decl. ¶ 14 that states Officers Morasco and
12
Bleisch “rush[ed] to a determination about what was happening.” See Defendants’ Objections
13
at 3. Defendants argue this statement is an improper attempt to testify about the officers’
14
subjective knowledge. Id.
15
Ruling: OVERRULED. The Court does not read this statement as testimony that goes to
16
the officers’ subjective knowledge.
17
7. Clark Decl. ¶ 15
18
Defendants object to the portion of Clark Decl. ¶ 15 that states “[t]here could have been
19
small children in the car for all [the officers] knew” and that the officers’ response was “reckless
20
and unreasonable” in nature. See Defendants’ Objections at 3. Defendants argue the former
21
statement is speculative and the latter statement is an improper legal conclusion. See id.
22
Ruling: SUSTAINED IN PART and OVERRULED IN PART. Mr. Clark has foundation
23
for the former statement based on his review of the evidence. The latter statement is a legal
24
conclusion and therefore improper.
25
8. Clark Decl. ¶ 16
26
Defendants object to the portion of Clark Decl. ¶ 16 that states the officers “lost their
27
composure and therefore failed to act reasonably and rationally.” See Defendants’ Objections at 3.
28
Defendants argue that this statement goes to the officers’ subjective state of mind and that Mr.
11
1
Clark’s legal conclusion is inadmissible. See id.
Ruling: SUSTAINED. Mr. Clark’s statement that the officers “lost their composure” is an
2
3
impermissible opinion of the officers’ state of mind, and the remainder of the statement is
4
essentially a legal conclusion and therefore improper.
5
9. Clark Decl. ¶ 17
6
Defendants object to the portion of Clark Decl. ¶ 17 that states the officers’ subjective
7
feelings and beliefs do not render the officers’ actions “objectively reasonable.” See Defendants’
8
Objections at 3. Defendants argue this statement is an improper legal conclusion. Id.
Ruling: SUSTAINED. This statement is an improper legal conclusion. See Hangarter v.
9
Provident Life, 373 F.3d 998, 1016 (9th Cir. 2014).
11
United States District Court
Northern District of California
10
III.
LEGAL STANDARD
12
A.
13
“A party is entitled to summary judgment if the ‘movant shows that there is no genuine
Summary Judgment
14
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of
15
Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P.
16
56(a)). Material facts are those that may affect the outcome of the case. Anderson v. Liberty
17
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists if there is sufficient
18
evidence for a reasonable jury to return a verdict for the nonmoving party. Id. at 248–49.
19
The party moving for summary judgment bears the initial burden of informing the court of
20
the basis for the motion, and identifying portions of the pleadings, depositions, answers to
21
interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material
22
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party
23
must either produce evidence negating an essential element of the nonmoving party’s claim or
24
defense or show that the nonmoving party does not have enough evidence of an essential element
25
to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz
26
Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
27
28
If the moving party meets its initial burden, the burden shifts to the nonmoving party to
produce evidence supporting its claims or defenses. Id. at 1103. If the nonmoving party does not
12
1
produce evidence to show a genuine issue of material fact, the moving party is entitled to
2
summary judgment. Celotex, 477 U.S. at 323. “The court must view the evidence in the light
3
most favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s favor.”
4
City of Pomona, 750 F.3d at 1049. In judging evidence at the summary judgment stage, “the
5
Court does not make credibility determinations or weigh conflicting evidence, and is required to
6
draw all inferences in a light most favorable to the nonmoving party.” First Pac. Networks, Inc. v.
7
Atl. Mut. Ins. Co., 891 F. Supp. 510, 513–14 (N.D. Cal. 1995). “[T]he ‘mere existence of a
8
scintilla of evidence in support of the plaintiff’s position’” is insufficient to defeat a motion for
9
summary judgment. Id. (quoting Anderson, 477 U.S. 242, 252 (1986)). “‘Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
11
United States District Court
Northern District of California
10
genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
12
U.S. 574, 587 (1986)).
13
B.
14
“The doctrine of qualified immunity protects government officials from liability for civil
Qualified Immunity
15
damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or
16
constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
17
conduct.’” Wood v. Moss, 134 S. Ct. 2056, 2066–67 (2014) (quoting Ashcroft v. al-Kidd, 131 S.
18
Ct. 2074, 2080 (2011)). In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a
19
two-part approach for analyzing qualified immunity. The analysis contains both a constitutional
20
inquiry and an immunity inquiry. Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir.
21
2003). The constitutional inquiry requires the court to determine this threshold question: “Taken
22
in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s
23
conduct violated a constitutional right?” Saucier, 533 U.S. at 201. If the Court determines that a
24
constitutional violation could be made out based on the parties’ submissions, the second step is to
25
determine whether the right was clearly established. Id. “The relevant, dispositive inquiry in
26
determining whether a right is clearly established is whether it would be clear to a reasonable
27
officer that his conduct was unlawful in the situation he confronted.” Id. at 202.
28
The Supreme Court has clarified that the sequence of analysis set forth in Saucier is not
13
1
mandatory and that a court may exercise its sound discretion in determining which of the two
2
prongs of the qualified immunity analysis to address first. Pearson v. Callahan, 555 U.S. 223,
3
241–42 (2009). Thus, in some cases, it may be unnecessary to reach the ultimate constitutional
4
question when officers would be entitled to qualified immunity in any event, a result consistent
5
with longstanding principles of judicial restraint.
The Supreme Court recently reiterated the longstanding principle that a “clearly
7
established” constitutional right “should not be defined ‘at a high level of generality.’” White v.
8
Pauly, 137 S. Ct. 548, 552 (2017) (quoting al-Kidd, 563 U.S. at 742). Rather, it must be
9
“particularized” to the facts of the case. Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640
10
(1987)). Defining the right at too high a level of generality “avoids the crucial question whether
11
United States District Court
Northern District of California
6
the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff v.
12
Ricard, 134 S. Ct. 2012, 2023 (2014). “[A] defendant cannot be said to have violated a clearly
13
established right unless the right’s contours were sufficiently definite that any reasonable official
14
in the defendant’s shoes would have understood that he was violating it.” Id. “In other words,
15
‘existing precedent must have placed the statutory or constitutional question’ confronted by the
16
official ‘beyond debate.’” Id. (quoting al-Kidd, 563 U.S. at 741). “A right can be clearly
17
established despite a lack of factually analogous preexisting case law, and officers can be on
18
notice that their conduct is unlawful even in novel factual circumstances.” Ford v. City of Yakima,
19
706 F.3d 1188, 1195 (9th Cir. 2013). “The relevant inquiry is whether, at the time of the officers’
20
action, the state of the law gave the officers fair warning that their conduct was unconstitutional.”
21
Id. Finally, a plaintiff bears the burden of showing that the right was clearly established. Emmons
22
v. City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019).
23
IV.
24
DISCUSSION
Defendants move for summary judgment on all of Plaintiff’s claims. Alternatively,
25
Defendants move for partial summary judgment as to each party and claim. See Motion at 3.
26
Specifically, Defendants’ motion presents the following seven issues: (1) whether Officers
27
Morasco and Bleisch acted reasonably in firing their weapons at Plaintiff; (2) whether the officers
28
are entitled to qualified immunity under prong two of the analysis; (3) whether Plaintiff’s Bane
14
1
Act claim fails because the officers lacked the requisite intent; (4) whether Defendants are entitled
2
to discretionary immunity under Cal. Gov’t Code § 820.2; (5) whether Defendants are entitled to
3
immunity under Cal. Gov’t Code § 821.6 for their investigatory acts; (6) whether Sergeant Hill’s
4
communications to Dispatch are privileged under Cal. Civ. Code § 47; and (7) whether punitive
5
damages are barred. See Motion at 3–4.
6
However, based on Plaintiff’s opposition brief and discussion at the Hearing, the issues to
7
be decided have been significantly narrowed. First, Plaintiff has expressly “decided not to pursue
8
his Bane Act claim” (Plaintiff’s fourth cause of action). See Opp’n at 2. Second, Plaintiff has
9
expressly dropped “his prayer for punitive damages.” See id. Third, Defendants point out in their
reply brief that Plaintiff “offers no substantive opposition to the reasonableness of his brief
11
United States District Court
Northern District of California
10
detention, to the extent he was detained by [Defendants], following the subject incident.” See
12
Reply at 5. Indeed, at the Hearing, Plaintiff stated that he was no longer putting forth his false
13
arrest/imprisonment claim (Plaintiff’s second cause of action) and that he understood the claim
14
would be foreclosed in this action. See Hearing Tr. at 5:22–6:4, ECF 57. Accordingly, the Court
15
hereby GRANTS summary judgment for Defendants as to Plaintiff’s Bane Act claim, Plaintiff’s
16
false arrest/imprisonment claim, and Plaintiff’s prayer for punitive damages.
17
As to the remainder of the issues, for the reasons discussed below, Defendants’ motion for
18
summary judgment is GRANTED IN PART and DENIED IN PART. The Court first addresses
19
Plaintiff’s federal civil rights claim, followed by Plaintiff’s remaining state law claims.
20
A.
21
Plaintiff alleges that Officers Morasco and Bleisch violated his civil rights secured by the
Civil Rights Claim (under the Fourth Amendment and 42 U.S.C. § 1983)
22
Fourth Amendment and 42 U.S.C. § 1983 in “us[ing] excessive and unreasonable force when they
23
fired numerous shots at [Plaintiff] even though he posed no threat to them.” See SAC ¶ 10.
24
Although the SAC mentions additional actions taken by the officers, at the Hearing, Plaintiff
25
confirmed that “[t]he firing of the bullets . . . is the illegal use of force and the sole theory upon
26
which we’re proceeding at this point under [Plaintiff’s civil rights claim].” See Hearing Tr.
27
at 7:19–25. Defendants move for summary judgment on Plaintiff’s claim for excessive use of
28
force in violation of his civil rights on the grounds that Officers Morasco and Bleisch did not use
15
1
objectively unreasonable force in shooting at Plaintiff, and that Officers Morasco and Bleisch are
2
entitled to qualified immunity for their actions. See Motion at 1. Plaintiff counters that there are
3
triable issues as to the reasonableness of the shooting and that qualified immunity does not apply.
4
See Opp’n at 2. As discussed below, the Court finds that Officers Morasco and Bleisch are
5
entitled to qualified immunity.
6
7
1. Qualified Immunity Prong One
Under the first prong of qualified immunity, the Court considers whether, taken in the light
8
most favorable to the party asserting the injury, the facts alleged show the officer’s conduct
9
violated a constitutional right. Saucier, 533 U.S. at 201. However, the Supreme Court has
clarified that a court may exercise its sound discretion in determining which of the two prongs of
11
United States District Court
Northern District of California
10
the qualified immunity analysis to address first. Pearson, 555 U.S. at 241–42 (2009). Here,
12
consistent with longstanding principles of judicial restraint, the Court finds it unnecessary to reach
13
the ultimate constitutional question as the Court finds that Officers Morasco and Bleisch are
14
entitled to qualified immunity in any event under prong two, as subsequently discussed.
15
16
2. Qualified Immunity Prong Two
The second prong of the qualified immunity analysis asks whether the constitutional right
17
in question “was ‘clearly established’ at the time of the challenged conduct.’” Wood v. Moss, 134
18
S. Ct. 2056, 2066–67 (2014) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)). The
19
question is whether at the time of the shooting Officer Morasco and Bleisch’s actions violated
20
clearly established law.
21
Turning to the parties’ respective definitions of the right in question, Defendants argue that
22
Officers Morasco and Bleisch are entitled to qualified immunity because it was not clearly
23
established that a constitutional violation arises when an officer uses “deadly force to defend
24
against a perceived threat when the officer is responding to a report of possible gunfire coming
25
from a vehicle, and then is met immediately upon arriving to the scene by the sound of gunfire,
26
even if the sound is caused by the vehicle backfiring.” See Motion at 16. On the other hand,
27
Plaintiff frames the question as whether “it was clearly established in the law that it is a Fourth
28
Amendment violation for officers to fire their guns into a car without having seen a gun, without
16
1
knowing who was in the car and without having given the occupant(s) a warning or the
2
opportunity to cooperate, [i.e. to confront Plaintiff without proper planning after hearing sounds
3
the officers thought were gunshots].” See Opp’n at 2, 8. The Court finds each party’s definition
4
of the “clearly established” right is properly “particularized” to the facts of the instant action. See
5
White, 137 S. Ct. at 552.
6
On summary judgment, the right in question under the second prong of qualified immunity
7
is framed by the plaintiff’s version of the facts, not the defendant’s. See Torres v. City of Los
8
Angeles, 548 F.3d 1197, 1210 (9th Cir. 2008) (explaining that “defendants are only entitled to
9
qualified immunity as a matter of law if, taking the facts in the light most favorable to [the
plaintiff], they violated no clearly established constitutional right”). Here, however, in their
11
United States District Court
Northern District of California
10
respective definitions of the “clearly established” right, the parties do not dispute what occurred
12
leading up to the shooting. Plaintiff acknowledges that Officers Morasco and Bleisch were
13
informed that “gunshots ‘may’ have been emanating from the vicinity of [Plaintiff’s] car before
14
they arrived on scene.” See Opp’n at 8; see also Dispatch Transcript at 2:18–20 (Sergeant Hill
15
reporting to the officers that “something just exploded from that car or it could’ve been shots
16
fired”). Plaintiff further acknowledges that in the moments before opening fire, Officers Morasco
17
and Bleisch “hear[d] two more sounds that they thought were gunshots.” See Opp’n at 8; see also
18
Morasco MVARS Video at 00:54–00:59; Morasco MVARS Transcript at 2:7–9 (Officer Morasco
19
exclaiming “Shots fired!” after a loud sound emanates from Plaintiff’s vehicle). In addition,
20
Plaintiff stated that “[my] car backfiring sounded like gunshots,” see Acosta Depo. at 47:6–9, and
21
another civilian witness near the scene reported hearing “what she thought was a gunshot.” See
22
Statement of Sammanika Martica, pg. 11–12 of District Attorney Report. While a separate
23
witness stated that he heard a “loud bang” coming from Plaintiff’s vehicle and was “unsure as to
24
what the noise was, but believed it was the vehicle having mechanical issues,” see Statement of
25
Alberto Gonzalez-Pinales, pg. 12–13 of District Attorney Report, there is no dispute that multiple
26
officers and multiple civilian witnesses mistook the backfires for gunshots.
27
28
As discussed below, under neither definition of the “clearly established” right does
Plaintiff point to any case in his favor even remotely close to these facts. As such, Officers
17
1
2
Morasco and Bleisch are entitled to qualified immunity.
Qualified immunity is a question of law, not of fact. Torres v. City of Los Angeles, 548
3
F.3d 1197, 1210 (9th Cir. 2008). The doctrine shields a government official performing
4
discretionary functions from liability for civil damages if the officer’s conduct does not violate a
5
“clearly established statutory or constitutional right of which a reasonable person would have
6
known.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018); White v. Pauly, 137 S.Ct. 548, 551
7
(2017). While the doctrine “does not require a case directly on point for a right to be clearly
8
established, existing precedent must have placed the statutory or constitutional question beyond
9
debate.” White, 137 S.Ct. at 551; Kisela, 138 S.Ct. at 1152.
10
Defendants argue that Officers Morasco and Bleich “did not violate any clearly established
United States District Court
Northern District of California
11
law” by employing deadly force in firing on Plaintiff’s vehicle under the circumstances of this
12
action. See Motion at 16–17. The Court agrees. Plaintiff relies on Tennessee v. Garner, 471
13
U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989); Acosta v. City and County of San
14
Francisco, 83 F.3d 1143 (9th Cir. 1996); A.K.H. by and through Landeros v. City of Tustin, 837
15
F.3d 1005 (9th Cir. 2016); and Estate of Lopez by and through Lopez v. Gelhaus, 871 F.3d 998
16
(9th Cir. 2017). See Opp’n at 6–9. However, all of these cases are inapposite and do not support
17
Plaintiff’s position. Put differently, none of Plaintiff’s cases requires an officer to “make a plan”
18
while under the belief that she is facing gunfire. And, in any event, the Court notes that the
19
undisputed facts show that Officers Morasco and Bleisch did make a plan (to “back up”) after
20
hearing the first “shot” and then changed their strategy after the second “shot” from Plaintiff’s
21
vehicle. The Court discusses the cases relied on by Plaintiff in turn.
22
First, the Supreme Court has expressly stated that Garner and Graham cannot be used to
23
show clearly established law except in “an obvious case” because Garner and Graham “lay out
24
excessive-force principles at only a general level.” See White v. Pauly, 137 S.Ct. 548, 552 (2017)
25
(internal quotations and citations omitted). The instant action is far from “an obvious case” where
26
Graham and Garner provide a basis for decision; thus, these two cases do not support Plaintiff.
27
Second, Acosta is inapposite. In Acosta, a San Francisco police officer who was off-duty
28
and in plainclothes was standing in front of his car when he heard a woman scream and saw two
18
1
young men running with what the officer believed to be a purse. Acosta v. City and County of San
2
Francisco, 83 F.3d 1143, 1144 (9th Cir. 1996). The officer drew his gun and chased the two men
3
around the block. Id. After the two men entered a waiting car, the officer fired two shots into the
4
car, one of which killed the driver. Id. After the jury found that the officer violated the driver’s
5
constitutional rights by using excessive force against him, the district court granted the officer’s
6
motion for judgment as a matter of law under qualified immunity. See id. at 1145. The Ninth
7
Circuit reversed, holding that the district court was bound by the jury’s factual finding that the
8
officer did not face a threat of serious harm at the time he fired his gun, so was not entitled to
9
qualified immunity. See id. at 1148. The Ninth Circuit noted that Acosta concerned “the law
governing ‘shooting to kill’ a fleeing suspect.” See id. Here, by contrast, the facts do not involve
11
United States District Court
Northern District of California
10
a suspected theft or a “fleeing suspect.” Moreover, the officer in Acosta did not believe that he
12
had been fired upon and therefore was not faced with “making a plan” in response to perceived
13
gunfire. Accordingly, Acosta did not place the statutory or constitutional question confronted by
14
Officers Morasco and Bleisch in the instant action “beyond debate.” White, 137 S.Ct. at 551.
15
Third, A.K.H. is likewise dissimilar to the facts of the instant action. In A.K.H., a police
16
officer in Tustin, California, fatally stop Benny Herrera, who was on foot, during an attempted
17
investigatory stop. A.K.H. by and through Landeros v. City of Tustin, 837 F.3d 1005, 1008 (9th
18
Cir. 2016). The officer was investigating a dispatch report of domestic violence and that Herrera
19
had taken a cell phone from his ex-girlfriend, who had called 911 to report Herrera. See id. The
20
officer, who was in his patrol vehicle, encountered Herrera, who was on foot in the middle of the
21
roadway, moving in the direction of traffic. See id. One of Herrera’s hands was in his pocket. Id.
22
The officer commanded Herrera to take his hand out of his pocket, and less than a second later,
23
just as Herrera’s hand came out of his pocket, the officer shot Herrera twice, killing him. See id.
24
The district court denied the officer’s motion for summary judgment based on qualified immunity,
25
and the Ninth Circuit affirmed on interlocutory appeal, concluding that viewing the evidence in
26
the light most favorable to the plaintiffs, the officer “violated clearly established Fourth
27
Amendment law when he shot and killed Herrera.” See id. at 1009–10, 1013–14. The Ninth
28
Circuit noted that “[t]he dispatcher expressly told the officers that Herrera was not known to carry
19
1
weapons” and that the officer “had no articulable basis to think [Herrera] was armed.” See id.
2
at 1013 (internal quotations and citations omitted). These facts are in sharp contrast to the instant
3
action where the backfires from Plaintiff’s vehicle sounded like gunshots to Officers Morasco and
4
Bleisch, Plaintiff, and at least one other witness. Furthermore, A.K.H. did not involve “knowing
5
who is in the car” or “proper planning,” both of which are elements of Plaintiff’s definition of the
6
right in question here, see Opp’n at 2, 8. A.K.H. is simply inapposite.
7
Fourth, Estate of Lopez does not support Plaintiff. The facts of Estate of Lopez are utterly
8
tragic. A county deputy fatally shot thirteen-year-old Andy Lopez after the deputy observed Andy
9
walking along a sidewalk and “noticed Andy’s gun, which [the deputy] believed to be an AK-47,”
although it was in fact a toy. Estate of Lopez by and through Lopez v. Gelhaus, 871 F.3d 998,
11
United States District Court
Northern District of California
10
1002 (9th Cir. 2017). The deputy instructed Andy to “Drop the gun!” but Andy did not drop the
12
gun. See id. at 1002–03. After a few seconds Andy “began to rotate his body clockwise” and the
13
deputy opened fired moments later, killing Andy. See id. 1003. The district court denied the
14
deputy’s motion for summary judgment based on qualified immunity, and the Ninth Circuit
15
affirmed on interlocutory appeal. See id. at 1022. The tragic facts in Estate of Lopez are
16
dissimilar to the facts of the instant action—for example, Estate of Lopez did not involve
17
“knowing who is in the car” or an officer’s decision to fire “without having seen a gun,” see
18
Opp’n at 2, 8. Accordingly, Estate of Lopez is inapposite.
19
Having considered Plaintiff’s submissions, the Court finds that Plaintiff has failed to meet
20
his burden of showing that the right in question was clearly established at the time of the shooting.
21
Emmons v. City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019). In fact, as pointed out by
22
Defendants, in 2015, the Eighth Circuit held that two Kansas City police officers were entitled to
23
qualified immunity under facts analogous to the facts of the instant action. See Ransom v. Grisafe,
24
790 F.3d 804, 812 (8th Cir. 2015). In Ransom, it was undisputed that the two officers knew a 911
25
call had reported shots fired, found Ransom’s van where the caller said it would be (corroborating
26
the call), heard the van backfire in a manner that both sides agreed could have been mistaken for a
27
gunshot, perceived Ransom to disregard their orders, and then opened fire. See id. at 811. The
28
Eighth Circuit concluded that under these facts, “the officers’ fear of harm was reasonable, and the
20
1
potential seizure from their gunshots did not violate Ransom’s Fourth Amendment rights.” See id.
2
Here, Officers Morasco and Bleisch heard a report of possible “shots fired” or an “explosion”
3
originating from a vehicle, approached the vehicle that was pulled over to the side of the road with
4
two rear lights visibly blinking, heard a loud sound and saw a puff of smoke emanating from the
5
vehicle that the officers (and multiple others) mistook for gunfire, initially held fire and backed up,
6
then upon hearing a second loud sound and seeing a second puff of smoke emanating from the
7
vehicle about 10 seconds later that the officers (and multiple others) again mistook for gunfire,
8
opened fire on the vehicle, in which Plaintiff was located. An officer familiar with the holding in
9
Ransom would conclude the conduct here was proper; thus, the statutory or constitutional question
10
United States District Court
Northern District of California
11
faced was open to debate. See Reichle v. Howards, 566 U.S. 658, 669–70 (2012).
In sum, in the context of prong two of qualified immunity and the facts of the instant
12
action, Eighth Circuit case law appears to favor Defendants and U.S. Supreme Court and Ninth
13
Circuit case law does not address the particular circumstances in this case. Accordingly, qualified
14
immunity applies because at the time of the shooting, the law did not clearly establish that Officer
15
Morasco and Bleisch’s conduct-at-issue would violate a plaintiff’s federal civil rights.
16
17
3. Conclusion
In conclusion, the Court finds that Officers Morasco and Bleisch are entitled to qualified
18
immunity as to Plaintiff’s federal civil rights claim under prong two of the qualified immunity
19
analysis. Accordingly, the Court hereby GRANTS Defendants’ motion for summary judgment as
20
to Plaintiff’s federal civil rights claim (Count I of the SAC).
21
B.
22
Plaintiff’s two remaining state law claims are for battery (against the CHP and Officers
Remaining State Law Claims
23
Morasco and Bleisch) and for negligence (against all Defendants). With respect to battery,
24
Plaintiff asserts that Officers Morasco and Bleisch used unreasonable and excessive force upon
25
Plaintiff by intentionally shooting numerous rounds at him and that the officers failed to take
26
reasonable steps to assess the situation and determine whether any threat existed. See SAC ¶ 20.
27
With respect to negligence, Plaintiff asserts that Sergeant Hill and Officers Morasco and Bleisch
28
breached their duty to not expose members of the public to unreasonable risks of harm and to act
21
1
reasonably in making strategic decisions preceding the use of deadly force. See SAC ¶ 30.
2
Plaintiff further alleges that Sergeant Hill and Officers Morasco and Bleisch were acting within
3
the scope of their duties and that the CHP is vicariously liable for the alleged wrongful acts. See
4
SAC ¶¶ 20, 31.
5
The relevant issues to be decided are (1) whether Officers Morasco and Bleisch acted
6
reasonably under state law in firing their weapons at Plaintiff; (2) whether Defendants are entitled
7
to discretionary immunity under Cal. Gov’t Code § 820.2; (3) whether Defendants are entitled to
8
immunity under Cal. Gov’t Code § 821.6 for their investigatory acts; and (4) whether Sergeant
9
Hill’s communications to Dispatch are privileged under Cal. Civ. Code § 47. See Motion at 3–4.
The Court addresses each issue in turn. As discussed below, the Court DENIES Defendants’
11
United States District Court
Northern District of California
10
motion as to all four of these issues.
12
1. Whether Officers Morasco and Bleisch Acted Reasonably under State Law
13
Defendants argue that Plaintiff’s state law claims fail because “Officer Morasco and
14
Officer Bleisch acted objectively reasonably under the circumstances.” See Motion at 8–9.
15
Plaintiff counters that there are triable issues as to the objective reasonableness of the officers’
16
actions. See Opp’n at 3. For the reasons discussed below, in the context of Plaintiff’s state law
17
claims, the Court finds that Plaintiff has raised a genuine issue of material fact as to whether
18
Officer Morasco and Bleisch’s conduct was objectively reasonable under the circumstances.
19
In order to establish liability for negligence, a plaintiff must show that the defendant had a
20
duty to use due care, breach of that duty, and resulting injury. Hayes v. Cnty. of San Diego, 57
21
Cal. 4th 622, 629 (2013) (citing Cal. Gov’t Code § 820). “[P]eace officers have a duty to act
22
reasonably when using deadly force.” Id. That duty “extends to the totality of the circumstances
23
surrounding the shooting, including the officers’ preshooting conduct.” Id. at 638. State
24
negligence law, which considers all of the circumstances surrounding any use of deadly force, thus
25
is broader than federal Fourth Amendment law, which focuses narrowly on the moment when
26
deadly force is used. Id. at 639. Under these standards, “[l]aw enforcement personnel’s tactical
27
conduct and decisions preceding the use of deadly force are relevant considerations . . . in
28
determining whether the use of deadly force gives rise to negligence liability.” Id. Similarly, in
22
1
order to prevail on a claim of battery against a police officer, the plaintiff bears the burden of
2
proving the officer used unreasonable force. See Edson v. City of Anaheim 63 Cal. App. 4th 1269,
3
1272 (1998). Put differently, “[a] peace officer who uses unreasonable or excessive force in
4
making a lawful arrest or detention commits a battery upon the person being arrested or detained
5
as to such excessive force.” See id. at 1273 (internal quotation and citation omitted).
6
7
a. Defendants’ Evidence
As the moving parties, Defendants have the initial burden to produce evidence negating an
8
essential element of Plaintiff’s state law claims or to show that Plaintiff does not have enough
9
evidence of an essential element of the claims to carry his ultimate burden of persuasion at trial.
See Nissan, 210 F.3d at 1102. Under the standards articulated above, Defendants may satisfy this
11
United States District Court
Northern District of California
10
burden by showing that the officers acted reasonably in using deadly force against Plaintiff.
12
Defendants submit the declarations of Sergeant Hill, Officer Morasco, and Officer Bleisch,
13
all of who maintain that the loud sounds coming from Plaintiff’s vehicle were similar to that of a
14
gun. See Hill Decl. ¶ 3; Morasco Decl. ¶ 8; Bleisch Decl. ¶ 7. Defendants also submit testimony
15
from Plaintiff and another witness that the backfires coming from Plaintiff’s vehicle sounded like
16
gunfire. See Acosta Depo. at 47:6–13; Statement of Sammanika Martica, pg. 11–12 of District
17
Attorney Report. Officers Morasco and Bleisch maintain that they followed the CHP’s “high-risk
18
procedures” leading up to the shooting, that they could not see inside Plaintiff’s vehicle, and that
19
after hearing the second loud sound they feared for their lives. See Morasco Decl. ¶ 4, 7–12;
20
Bleisch Decl. ¶ 7–10. In addition, Defendants submit an audio recording of the dispatch clip and a
21
transcript of the first two minutes (the relevant portion), see Dispatch Transcript. Defendants
22
further submit the MVARS video recording from Officer Morasco’s patrol vehicle and the
23
accompanying transcript, see Morasco MVARS Transcript. The Court has recounted the audio
24
clip and video recording in detail in Section I supra and finds that it corroborates much of
25
Defendants’ account of the events. Accordingly, the evidence submitted by Defendants is
26
sufficient to meet Defendants’ initial burden, as it indicates that the officers’ use of deadly force
27
was consistent with police standards and state law.
28
23
1
b. Plaintiff’s Evidence
Plaintiff controverts Defendants’ evidence with the declaration of their police procedures
3
expert, Roger Clark. See Opp’n at 4 –7; see generally Clark Decl., ECF 51-2. Clark opines that
4
Officers Morasco and Bleisch failed to conform to police practices and standards in a number of
5
ways, including escalating the situation, failing to delineate the role that each officer would
6
undertake and planning for various scenarios that might develop, and failing to properly account
7
for the fact that Plaintiff’s vehicle was pulled over to the side of the road with its hazard lights on.
8
Clark Decl. ¶¶ 10, 12, 13. Clark further opines that the officers should have used their PA system
9
to address Mr. Acosta and give him an opportunity to cooperate. See id. ¶ 14. Clark notes that
10
Mr. Acosta took no action that could reasonably be seen as threatening towards the officers and
11
United States District Court
Northern District of California
2
concludes that “[i]t was the officers who created a dangerous situation by confronting [Mr.]
12
Acosta.” Id. ¶ 10. In addition, Plaintiff submits evidence from one civilian witness who heard a
13
“loud bang” coming from Plaintiff’s vehicle and was “unsure as to what the noise was, but
14
believed it was the vehicle having mechanical issues.” See Statement of Alberto Gonzalez-
15
Pinales, pg. 12–13 of District Attorney Report.
16
Accordingly, the Court finds disputed facts as to essential elements of Plaintiff’s remaining
17
state law claims. The Court therefore DENIES Defendants’ motion for summary judgment that
18
Officers Morasco and Bleisch acted reasonably in the context of Plaintiff’s state law claims.
19
20
2. Whether Discretionary Immunity under Cal. Gov’t Code § 820.2 applies
Defendants argue that they are immune from Plaintiff’s state law battery and negligence
21
claims under Cal. Gov’t Code § 820.2. See Motion at 20. This section provides that “[e]xcept as
22
otherwise provided by statute, a public employee is not liable for an injury resulting from his act
23
or omission where the act or omission was the result of the exercise of discretion vested in him,
24
whether or not such discretion be abused.” Cal. Gov’t Code § 820.2. Plaintiff responds that
25
discretionary immunity does not apply to the instant action because the officers were not making a
26
“policy decision.” See Opp’n at 10 (citing Mendez v. County of Los Angeles, 897 F.3d 1067,
27
1083–84 (9th Cir. 2018).
28
In Mendez, the Ninth Circuit explained that “the California Supreme Court has held that
24
1
[§ 820.2] immunity applies only to policy decisions, not to operational decisions like the
2
[officers’] decision to enter the [plaintiff’s] residence.” 897 F.3d at 1084 (citing Caldwell v.
3
Montoya, 10 Cal. 4th 972, 981 (1995)). Moreover, this “discretionary immunity” does not apply
4
to excessive force claims. See Scruggs v. Haynes, 252 Cal. App. 2d 256, 267–68 (1967); see also
5
Blankenhorn v. City of Orange, 485 F.3d 463, 487 (9th Cir. 2007). Indeed, at the Hearing,
6
Defendants acknowledged this point. See Hearing Tr. at 18:25–19:3. Here, Plaintiff’s battery and
7
negligence claims allege that “unreasonable and excessive force” was employed against Plaintiff.
8
See SAC ¶¶ 20, 30. Thus, the Court finds that discretionary immunity under Cal. Gov’t Code
9
§ 820.2 does not apply. Accordingly, Defendants’ motion for summary judgment that Defendants
10
United States District Court
Northern District of California
11
12
13
14
are entitled to discretionary immunity under Cal. Gov’t Code § 820.2 is DENIED.
3. Whether Immunity under Cal. Gov’t Code § 821.6 for Investigatory Acts
applies
Defendants also argue that they are immune from Plaintiff’s state law battery and
negligence claims under Cal. Gov’t Code § 821.6. See Motion at 22. This section provides that
“[a] public employee is not liable for an injury caused by his instituting or prosecuting any judicial
15
or administrative proceeding within the scope of his employment, even if he acts maliciously and
16
17
18
19
20
21
22
without probable cause.” Cal. Gov’t Code § 821.6. Plaintiff counters that § 821.6 is “clearly not
applicable” to “[the instant] police shooting case.” See Opp’n at 13. The Court agrees with
Plaintiff. The California Supreme Court “has not extended § 821.6 immunity to actions outside of
malicious prosecution.” See Sharp v. County of Orange, 871 F.3d 901, 920–21 (9th Cir. 2017)
(discussing California law). Thus, as in Sharp, “this immunity does not apply here.” See id.
at 921. Accordingly, Defendants’ motion for summary judgment that Defendants are entitled to
immunity under Cal. Gov’t Code § 821.6 is DENIED.
23
24
4. Whether Sergeant Hill’s Communications are Privileged under Cal. Civ.
Code § 47
25
Defendants next argue that Sergeant Hill, who observed and reported the sound of possible
26
gunfire coming from Plaintiff’s vehicle, cannot be sued for negligence because his statement was a
27
privileged communication under Cal. Civ. Code § 47. See Motion at 23. This section provides in
28
part that “[a] privileged publication or broadcast is one made: (a) In the proper discharge of an
25
1
official duty. (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official
2
proceeding authorized by law . . . . (c) In a communication, without malice, to a person interested
3
therein, (1) by one who is also interested . . . .” Cal. Civ. Code § 47.
4
Defendants contend that as applied to reports made by police officers, “the Section 47
privilege is absolute.” See Motion at 24. Plaintiff responds that “Defendants have provided no
6
authority for the proposition that section 47 applies to communications made by and between
7
police officers.” See Opp’n at 15 (emphasis in original). The Court agrees with Plaintiff.
8
Defendants have failed to provide a basis for the proposition that Sergeant Hill’s communications
9
to Dispatch constitute a “police report” of the traditional type that would be covered by section 47.
10
Cf. Johnson v. Symantec Corp., 58 F. Supp. 2d 1107, 1108 (N.D. Cal. 1999) (applying section 47
11
United States District Court
Northern District of California
5
in the context of statements made by civilians to law enforcement officers and contained within a
12
police report). In fact, in Defendants’ reply brief, Defendants appear to advance a separate
13
argument—the absence of detrimental reliance—rather than continuing to argue privileged
14
communication. See Reply at 9–10, ECF 52.
15
16
In sum, Defendants’ motion for summary judgment that Sergeant Hill’s communications
are privileged under Cal. Civ. Code § 47 is DENIED.
5. Conclusion as to Plaintiff’s Remaining State Law Claims
17
18
In conclusion, the Court finds that Plaintiff has raised a genuine issue of material fact as to
19
whether Officers Morasco and Bleisch acted reasonably under California negligence law and
20
California battery law, and that the state law immunities and state law privilege raised by
21
Defendants do not apply.
22
//
23
//
24
//
25
//
26
//
27
//
28
//
26
1
V.
ORDER
2
For the foregoing reasons, IT IS HEREBY ORDERED that:
3
1. Defendants’ motion for summary judgment as to Plaintiff’s false arrest/imprisonment
4
5
6
7
8
9
10
claim (Count II of the SAC) is GRANTED.
2. Defendants’ motion for summary judgment as to Plaintiff’s Bane Act claim
(Count IV of the SAC) is GRANTED.
3. Defendants’ motion for summary judgment that Plaintiff is barred from collecting
punitive damages is GRANTED.
4. Defendants’ motion for summary judgment as to Plaintiff’s federal civil rights claim
(Count I of the SAC) is GRANTED based on qualified immunity prong two.
United States District Court
Northern District of California
11
5. Defendants’ motion for summary judgment that Officers Morasco and Bleisch acted
12
reasonably in the context of Plaintiff’s remaining state law claims is DENIED.
13
14
15
16
17
18
6. Defendants’ motion for summary judgment that Defendants are entitled to
discretionary immunity under Cal. Gov’t Code § 820.2 is DENIED.
7. Defendants’ motion for summary judgment that Defendants are entitled to immunity
under Cal. Gov’t Code § 821.6 is DENIED.
8. Defendants’ motion for summary judgment that Sergeant Hill’s communications are
privileged under Cal. Civ. Code § 47 is DENIED.
19
20
21
22
23
IT IS SO ORDERED.
Dated: June 24, 2019
______________________________________
BETH LABSON FREEMAN
United States District Judge
24
25
26
27
28
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?