Napier et al v. San Diego County et al

Filing 106

Amended Order Regarding Defendants' Motion for Summary Judgment [Doc. No. #50 ]. Signed by Judge Cathy Ann Bencivengo on 7/17/2017. (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GABRIEL NAPIER by and through his
guardian ad litem, LILLY QUIROZ ,

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AMENDED ORDER REGARDING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT [Doc. No.
50]

Plaintiff,

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Case No.: 15cv581-CAB-KSC

v.
SAN DIEGO COUNTY, a government
entity; SAN DIEGO COUNTY
SHERIFF'S DEPARTMENT, a
department of San Diego County;
WILLIAM GORE, an individual;
BRANDON BOISSERANC, an
individual; NICHOLAS DANZA, an
individual; and DYLAN NAPIER, an
individual ,
Defendant.

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On October 12, 2016, Defendants filed a motion for summary judgment. [Doc.

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No. 50.] On November 9, 2016, Plaintiff filed an opposition to the motion. [Doc. No.

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55.] On November 16, 2016, Defendants filed a reply to the opposition. [Doc. No. 56.]

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On January 4, 2016, a hearing was held with regard to the motion. Estevan R. Lucero,

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Esq. appeared on behalf of Plaintiff. David Brodie, Esq. and Christina Vilaseca, Esq.

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appeared on behalf of Defendants. Initially, this Court denied the motion for summary
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judgment as to all claims. [Doc. No. 69.] On May 12, 2017, this Court issued an order to

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show cause regarding whether Defendants should be granted qualified immunity in light

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of a recent Ninth Circuit decision. [Doc. No. 101.] On June 2, 2017, Plaintiff filed a

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response to the OSC. [Doc. No. 103.] On June 16, 2017, Defendants filed a reply to

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Plaintiff’s response. [Doc. No. 104.] On July 17, 2017, this Court vacated its previous

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order regarding Defendants’ motion for summary judgment. [Doc. No. 105.] This order

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now replaces the original summary judgment order. For the reasons set forth below, the

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motion for summary judgment as to the Fourth Amendment claim is GRANTED on the

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basis of qualified immunity, and DENIED as to the state law claim for battery.

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STATEMENT OF FACTS

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On January 31, 2014, five San Diego County Sheriff’s deputies in the Gang

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Enforcement Team went to a Vista apartment complex in order to arrest Michael Napier.

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(Deposition of Brandon Boisseranc (“Boisseranc Depo.”), Exhibit 2, at page 93, lines 2-

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4; 99:19-22; 109:17-23; 116-117; 139:16-19, ; Deposition of Michael Astorga (“Astorga

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Depo.”), Exhibit 4, at 37-38; 40; 113-114; 153; Deposition of Jarett Moyette (“Moyette

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Depo.”), Exhibit 3, at 14, 23, 38; Deposition of Bogar Ortiz (“Ortiz Depo.”), Exhibit 5, at

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51-52; 109:20-24.) Napier had an outstanding felony warrant for his arrest from a drug-

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related conviction (Health and Safety Code section 11377(a) – possession of

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methamphetamine). (Deposition of Nicholas Danza (“Danza Depo.”), Exhibit 1, at 156-

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158; Boisseranc Depo. at 77-78.) He was also on probation, the terms of which subjected

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Napier to warrantless searches by law enforcement at any time, with or without cause.

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(Exhibit 12, COSD 1730.)1
On that day, Napier was working on his bike in his father’s garage. (Peacock Decl.,

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Exh. 1 [Denfeld Depo.] at pp. 22:06-24:01.) Contemporaneously, four plainclothes San

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Diego Sheriff’s Deputies were conducting a surveillance operation, which they

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Defendant’s request for judicial notice as to this document is granted pursuant to Fed. R. Evid. 201.
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completed when they arrested an individual for purchasing narcotics. (Peacock Decl.,

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Exh. 2 [Danza Depo.] at 136:23-137:9, 141:14-20, 152:10-20, 154:4-8.) The deputies

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convened in a grocery store parking lot to plot their next operation. (Peacock Decl., Exh.

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2 [Danza Depo.] at 154:23-155:13.) One of the deputies raised a Special Bulletin, known

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as a Be On the Lookout (“BOL”), which suggested that Napier was a suspect in the theft

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of some personal property from a garage. (Peacock Decl., Exh. 3 [COSD 165]; Exh. 2

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[Danza Depo.] at 156:4-6-156:17-19, 158: 1-5) The BOL also indicated that Napier had

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an outstanding felony warrant for drug possession. (Peacock Decl., Exh. 3 [COSD 165];

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Exh. 2 [Danza Depo.] at 157:2-11, 246:21-24.)

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The deputies knew Napier was a documented member of a criminal street gang

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called the Vista Home Boys, and that his gang nickname was “Bullet.” (Danza Depo. at

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168-69; Boisseranc Depo. at 83-84; Astorga Depo. at 135; Exhibit 14, Danza Response to

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Interrogatory No. 17; Exhibit 13, Boisseranc Response to Interrogatory No. 17.) The

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deputies also knew Napier had possessed firearms in the past (Moyette Depo. at 72-73),

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and had seen a photograph on Facebook showing him holding a machine gun.

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(Boisseranc Depo. at 122; Astorga Depo. at 106-107; 135; Moyette Depo. at 43; 47-48;

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Danza Response to Interrogatory No. 17; Boisseranc Response to Interrogatory No. 17.)

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They knew he had been arrested and convicted for drug use and drug possession, as well

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as several other convictions. (Moyette Depo. at 45:2-13; Danza Response to Interrogatory

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No. 17; Boisseranc Response to Interrogatory No. 17.) They also knew that Napier had

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recently posted on his Facebook page that he planned to move out of California soon.

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(Boisseranc Depo. at 77-78; Astorga Depo. at 106-107; 137.)

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Deputy Danza had previously arrested Napier for possession of a BB gun.

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(Peacock Decl., Exh. 2 [Danza Depo.] at 161:2-161:18, 162:16-25.) Danza did not

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consider that specific incident to make Napier violent. (Id.) Deputy Boisseranc had

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previously interacted with Napier to discuss Napier’s activities while Napier was working

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as a sign twirler. (Peacock Decl., Exh. 6 [Boisseranc Depo.] at 78:22-80:22, 85:4-88:10.)

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Boisseranc acknowledged that when he approached Napier on that day he did not feel
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there was any reason to draw his weapon for safety. (Id.) Deputy Astorga claims that

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during the parking lot briefing the deputies discussed Napier’s past history with guns and

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prior offenses. (Peacock Decl., Exh. 4 [Astorga Depo.] at 105:11 – 107:18.) When

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Deputy Ortiz gave a statement to a homicide detective, however, he stated that during this

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parking lot briefing no concerns were raised about taking extra caution with Napier.

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(Peacock Decl., Exh. 5 [01/31/2014 Deputy Ortiz Interview page 17-19].)

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The BOL made known to the deputies was posted on January 29, 2014, and stated

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there was an active warrant for Napier’s arrest (the methamphetamine possession charge),

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and that he was wanted for questioning for a burglary incident. (Danza Depo. at 156-158;

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173-174; Moyette Depo. at 39; Ortiz Depo. at 108.) The BOL also indicated Napier may

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be staying at his parents’ apartment complex at 2000 S. Melrose Place in Vista, and that

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he may be spending time at a garage in the complex (garage #31, which belonged to his

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father). (Danza Depo. at 180-181; Astorga Depo. at 115:8-11.)

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The deputies drove to the apartment complex, and two deputies parked near the

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garage. One of them, Michael Astorga, saw a woman drive up to the garage, and then saw

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Napier come out of the garage and put a box in the woman’s trunk. (Danza Depo. at 194;

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Boisseranc Depo. at 119; Astorga Depo. at 116:2-25; 117:1-22;119:11-23; 161-162;

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Moyette Depo. at 50:13-16; Ortiz Depo. at 112-114.) From his vantage point, Astorga

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positively identified Napier to the other deputies who were listening on their radios.

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(Danza Depo. at 194-195; Boisseranc Depo. at 92; Astorga Depo. at 143.)

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Four of the deputies approached the garage on foot, while Astorga stayed in his

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vehicle, coordinating the approach via his radio and watching the scene. (Boisseranc

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Depo. at 116-117; Astorga Depo. at 122.) It was early evening, and it was dark outside.

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(Astorga Depo. at 120:14-24; 138:14-23.) The deputies who approached the garage were

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Brandon Boisseranc, Nicholas Danza, Jarrett Moyette, and Bogar Ortiz. Moyette and

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Ortiz were in uniform; Boisseranc and Danza were in plainclothes. (Moyette Depo. at

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52:1-10; Danza Depo. at 135-137; 183; Boisseranc Depo. at 93-94; Astorga Depo. at 118,

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142; Ortiz Depo. at 90:12-18.) All four deputies had their green Sheriff’s Department
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tactical vests on over their clothes. The vest has a cloth Sheriff’s badge on the front, and

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“Sheriff’s Department” is printed in large block letters on the back. (Danza Depo. at

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207:18-22; Boisseranc Depo. at 117-118; Astorga Depo. at 142:13-22; Ortiz Depo. at

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115:5-7.) Meanwhile, Napier was working on his bicycle in the garage. (Peacock Decl.

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Exh. 2 [Danza Depo.] at 231:16-20; Peacock Decl., Exh. 5 [01/31/2014 Deputy Ortiz

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Interview page 25-26]; and Peacock Decl., Exh. 7 [02/13/2014 Adela Myers Interview

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page 2].)

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All four deputies approached the garage with their guns drawn. (Astorga Depo. at

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126-127; Danza Depo. at 245:13-16; Boisseranc Depo. at 117-118; Moyette Depo. at

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83:14-20; Ortiz Depo. at 138:8-12.) The garage was partially opened, and the deputies

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could see that there was a light on inside. Their plan was to push the garage fully open

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while announcing themselves as Sheriff’s deputies, and then place Napier under arrest.

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(Danza Depo. at 181:15-24; 202-204; 207:23-25; 215:21-25; Boisseranc Depo. at 99-102;

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117-118; Astorga Depo. at 143:2-9; 156:10-19; Moyette Depo. at 68-69.)

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The four deputies approached the garage, and Deputy Danza reached down and

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pulled up hard on the garage door. But it only moved up several inches and then stopped,

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making a loud grinding noise. The garage was now open 3-4 feet, and the four deputies

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quickly crouched down under the garage door with their weapons drawn, and they could

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see Napier inside, standing five to six feet away from them. (Danza Depo. at 205-206;

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215:7-13; 226:11-12; Astorga Depo. at 130-131; Moyette Depo. at 53:15-18; 59-60; Ortiz

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Depo. at 140:9-15.) The deputies did not anticipate that the garage would not open.

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(Peacock Decl. Exh. 6 [Boisseranc Depo.] at 121:3-21.)

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The deputies had begun yelling loudly, “Sheriff’s Department!”, “Show me your

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hands!”, and “Put your hands up!” (Danza Depo. at 204:21-25; 215:21-25; Boisseranc

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Depo. at 122-123; Astorga Depo. at 132:3-24; Moyette Depo. at 53:13-21; 61:15-19;

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Ortiz Depo. at 116:19-22; 129-130.) Danza claims he announced that he was with the

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Sheriff’s Department and yelled at Napier to raise his hands. (Id.) Boisseranc then began

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yelling at the same time, demanding that Napier show him his hands. (Peacock Decl.,
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Exh. 6 [Boisseranc Depo.] at 122:25 – 123:13.) Boisseranc acknowledged that everyone

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was yelling and there was a lot of noise, and he himself could only make out what he was

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saying. (Id.)Facing the garage, Deputy Danza was on the left, Deputy Boisseranc was to

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his right, and Deputy Moyette was to the far right. Deputy Ortiz crouched behind

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deputies Boisseranc and Danza. (Danza Depo. at 206:9-15; Boisseranc Depo. at 107:11-

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19; Astorga Depo. at 127-130; Ortiz Depo. at 115-116.)

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Napier appeared to be holding a bicycle tire; he dropped the tire, looked surprised,

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and made several noises (deputies remember him saying “Oh fuck” or “Oh shit” several

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times). Although at first he started to raise his hands, he then dropped them and appeared

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to be patting his stomach and waist area as if he was looking for something. The deputies

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continued yelling at him to show them his hands, their voices getting louder as Napier

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continued patting his waist area instead of lifting his hands. The deputies saw he was

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wearing a dark jacket or sweatshirt. (Danza Depo. at 216-217; 220-221; Boisseranc

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Depo. at 123-126; Moyette Depo. at 57:16-19; 64:19-24; Ortiz Depo. at 117:1-5; 130:10-

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15.)

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Moyette acknowledges that Napier had no “escape route” from the garage.

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(Moyette Depo. at 69: 21-22.) Moyette also testified that, when Napier was patting his

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pockets or was putting his hands in his pockets, Moyette did not shoot him at that point

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because he could see Napier’s hands and did not feel threatened by him. (Moyette Depo.

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at 91: 2-10.) Moyette just thought Napier was “acting strange.” (Moyette Depo. at 91:

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10-11.)

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Boisseranc claims that Napier never put up his hands. (Peacock Decl., Exh. 6

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[Boisseranc Depo.] at 124:5-7.) Danza, however, admitted that initially Napier put up his

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hands. (Peacock Decl., Exh. 2 [Danza Depo.] at 216:1-10.) Danza explained that, as the

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cross-yelling continued, Napier would lift his arms up, then drop them; then when Danza

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would yell again, Napier would then lift them up. (Peacock Decl., Exh. 2 [Danza Depo.]

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at 219:2-13, 221:4-6.) Danza claims that Napier put his hand in a pocket, but he

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acknowledges he is not sure if it was a pocket or a waistband. (Peacock Decl., Exh. 2
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[Danza Depo.] at 222:18-25, 223:1-5.) Danza did not say anything to Napier in response

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to this action; instead, he opened fire and began shooting Napier. (Id.) At the same time,

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Boisseranc opened fire on Napier. (Peacock Decl., Exh. 6 [Boisseranc Depo.] at 124:23 –

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125:17. 127:20 – 128:5.) Boisseranc acknowledged that he was scared of the situation

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when he opened fire. (Peacock Decl., Exh. 6 [Boisseranc Depo.] at 126:12-128:10,

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128:11-130:16, 130:17-131:24.) He emptied his clip at Napier and began screaming to his

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other deputies for another clip of ammunition, even though in retrospect he actually had

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more clips on him. (Id.)

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Napier fell, and the deputies pulled him out of the garage, patted him down to

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make sure he was not armed (he was not), and began giving CPR. They immediately

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called an ambulance, but Napier died at the scene. (Danza Depo. at 234:18-19; 230:8-18;

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239:1-10; 241-242; Boisseranc Depo. at 137:3-10; Astorga Depo. at 161-162; Moyette

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Depo. at 65-66; 110-111; Ortiz Depo. at 141:1-17.)

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Danza admitted that he never saw Napier with a weapon in the garage. (Peacock

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Decl., Exh. 2 [Danza Depo.] at 224:9-10.) Danza never warned Napier that Danza would

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shoot Napier if Napier did not obey his commands. (Peacock Decl., Exh. 2 [Danza Decl.]

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at 245:17-24.) Boisseranc also did not warn Napier that he would shoot Napier if he

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failed to obey his commands (See Peacock Decl., Exh. 6 [Boisseranc Depo.] at 124:23-

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125:14, 127:19-25.)

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A ballistics expert examined the evidence from the shooting and determined that

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Napier’s left hand had been by his waistband at the time of the shooting. (Deposition of

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Lance Martini (“Martini Depo.”), Exhibit 8, at 21:15-25:25.) Laboratory tests of

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Napier’s blood were positive for methamphetamines at such a high level that an expert

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toxicologist determined Napier had ingested an amount of methamphetamine consistent

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with causing information processing problems and aggressive behavior. (Deposition of

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Dr. Richard Geller (“Dr. Geller Depo.”), Exhibit 7, at 32:13-36:20.)

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/////

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DISCUSSION

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A. Legal Standard.

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Summary judgment is appropriate where “there is no genuine issue as to any

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material fact and ... the moving party is entitled to judgment as a matter of law.”

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Fed.R.Civ.P. 56(c). It is the moving party's burden to show there is no factual issue for

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trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its

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burden, the burden shifts to the non-moving party to show there is a genuine issue for

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trial. Id. at 331.

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The Court considers the record as a whole and draws all reasonable inferences in

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the light most favorable to the non-moving party. Fairbank v. Wunderman Cato Johnson,

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212 F.3d 528, 531 (9th Cir.2000). The Court does not make credibility determinations or

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weigh conflicting evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

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Rather, the Court determines whether the record “presents a sufficient disagreement to

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require submission to a jury or whether it is so one-sided that one party must prevail as a

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matter of law.” Id. at 251–52.

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B. Analysis.

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Michael Napier’s son Gabriel Napier2 brings this action against Defendants County

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of San Diego, Sheriff William D. Gore, and Sheriff’s deputies Brandon Boisseranc and

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Nicholas Danza. Plaintiff has three remaining causes of action, one federal claim brought

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pursuant to 42 U.S.C. section 1983 (“section 1983”) (excessive force in violation of the

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Fourth Amendment) and a state law claim for battery/wrongful death).

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1. Section 1983.

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Defendants move for summary judgment on the grounds that Officers Boisseranc
and Danza did not use excessive force in attempting to stop Napier from reaching for

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Michael Napier also had another son, Dylan Napier, who is named as a defendant in this case. At the
hearing, counsel for Plaintiff and counsel for Defendants confirmed that neither had had any contact
with Dylan and had no information as to his whereabouts. Therefore, Dylan Napier’s potential claim is
deemed abandoned and he is HEREBY DISMISSED from this action.
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something near his waist and defending themselves, and further that they have qualified

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immunity from liability. [Doc. No. 50-1 at 12-20.] Under the Fourth Amendment, law

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enforcement may use “objectively reasonable” force to carry out seizures, and objective

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reasonableness is determined by an assessment of the totality of the circumstances.

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Graham v. Connor, 490 U.S. 386, 397 (1989). An officer's use of deadly force is

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reasonable only if “the officer has probable cause to believe that the suspect poses a

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

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Garner, 471 U.S. 1, 3 (1985). Because this inquiry is inherently fact specific, the

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“determination whether the force used to effect an arrest was reasonable under the Fourth

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Amendment should only be taken from the jury in rare cases.” Headwaters Forest Def. v.

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County of Humboldt, 240 F.3d 1185, 1205–06 (9th Cir.2000), judgment vacated on other

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grounds, 534 U.S. 801 (2001); see also Torres v. City of Madera, 648 F.3d 1119, 1125

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(9th Cir.2011) (summary judgment “in excessive force cases should be granted

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sparingly”); Liston v. County of Riverside, 120 F.3d 965, 976 n. 10 (9th Cir.1997)

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(finding that excessive force is “ordinarily a question of fact for the jury”); Chew v.

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Gates, 27 F.3d 1432, 1443 (9th Cir.1994) (“[W]hether a particular use of force was

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reasonable is rarely determinable as a matter of law.”).

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In the deadly force context, courts are not permitted to “simply accept what may be

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a self-serving account by the police officer.” Scott v. Henrich, 39 F.3d 912, 915 (9th

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Cir.1994). “Because the person most likely to rebut the officers' version of events-the one

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killed-can't testify, ‘[t]he judge must carefully examine all the evidence in the record ... to

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determine whether the officer's story is internally consistent and consistent with other

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known facts.’ ” Cruz v. City of Anaheim, 765 F.3d 1076, 1079 (9th Cir.2014) (quoting

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Scott, 39 F.3d at 915). Where the officer's story would justify his use of deadly force, the

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proper inquiry is whether any reasonable jury could find it more likely than not that the

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officer's story is false. See id.

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“An officer using deadly force is entitled to qualified immunity, unless the law was
clearly established that the use of force violated the Fourth Amendment.” Wilkinson v.
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Torres, 610 F.3d 546, 550 (9th Cir.2010) (citing Brosseau v. Haugen, 543 U.S. 194, 198

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(2004)). Qualified immunity involves a two-part inquiry: first, “whether the facts that a

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plaintiff has alleged ... or shown ... make out a violation of a constitutional right,” and

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second, “whether the right at issue was ‘clearly established’ at the time of defendant's

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alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v.

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Katz, 533 U.S. 194 (2001)).

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a. Violation of the Fourth Amendment
Could any reasonable jury find it more likely than not that Napier did not create a

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substantial risk of serious harm to the officers? Defendants' motion for summary

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judgment relies on the testimony of the four officers to support their claim that in

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response to their commands to show or raise his hands Napier instead reached down

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toward his waist thereby putting them a fear for their safety. Plaintiff has submitted

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evidence that could give a reasonable jury pause in reaching that determination.

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“The strength of the government's interest in the force used is evaluated by

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examining three primary factors: (1) ‘whether the suspect poses an immediate threat to

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the safety of the officers or others,’ (2) ‘the severity of the crime at issue,’ and (3)

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‘whether he is actively resisting arrest or attempting to evade arrest by flight.’” S.B. v.

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County of San Diego, --- F.3d --- (2017), 2017 WL 1959984, *4 (9th Cir., May 12, 2017),

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quoting Graham, 490 U.S. at 396. These factors, however, are not exclusive. S.B., 2017

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WL 1959984 at *4, citing Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir.2010). We

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“examine the totality of the circumstances and consider ‘whatever specific factors may be

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appropriate in a particular case, whether or not listed in Graham.’ ” S.B., 2017 WL

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1959984 at *4 (internal citations omitted). Other relevant factors include the availability

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of less intrusive alternatives to the force employed, whether proper warnings were given

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and whether it should have been apparent to officers that the person they used force

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against was emotionally disturbed. Id. (citations omitted).

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In looking at the first factor, whether the suspect poses an immediate threat to the
safety of the officer or others, Plaintiff provided evidence that, while Napier had a
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criminal history, it was primarily for drug offenses, not for any violent crimes. (Moyette

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Depo. at 45:2-13.) Several of the deputies had previous encounters with Napier and did

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not feel threatened during those encounters. (Danza Depo. at 161:2 – 161:18, 162:16 –

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25; Boisseranc Depo. at 78:22 – 80:22, 85: 4 – 88:10.) Plaintiff’s evidence contradicts a

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conclusion that Napier was known to the Defendants to be dangerous or that they

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expected Napier to be armed. In addition, Plaintiff offers that Napier in fact made no

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deliberate threatening gesture, supported by the fact that he had no weapon or contraband

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on him that would explain him reaching for his waist or pocket. (Danza Depo. at 224:9-

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10, 234: 18 – 19, 230: 8 – 18, 239: 1-10, 241 – 241.) Finally, at least one of the deputies

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on the scene (Moyette) did not shoot when Napier put his hands near his waist because he

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did not feel threatened; he just thought Napier was acting strange. (Moyette Depo. at 91:

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10-11.)

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As to the second factor, the severity of the crime at issue, Defendants were there to

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arrest Napier for possession of methamphetamine (Danza Depo. at 156-158), which is not

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a violent crime.

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As to the third factor, whether Napier was actively resisting arrest or attempting to

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evade arrest by flight, Plaintiff points to evidence that the garage door not opening as

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anticipated obstructed the Defendants’ tactical plan and caught the officers by surprise

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contributing to the confusion. (Boisseranc Depo. at 121:3-21.) In addition, the officers

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giving slightly different commands (Boisseranc Depo. at 122:25 – 123: 13) could account

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for Napier’s hesitation in response to their commands. Finally, Plaintiff was in a garage

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surrounded by officers and had no escape route (Moyette Depo. at 69: 21 – 22), thus

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making it unlikely he was trying to escape.

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As to the other relevant Graham factors, there is evidence that proper warnings

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were not given, in that there were slightly conflicting warnings given at the same time.

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(Boisseranc Depo. at 122:25 – 123: 13.) Moreover, the deputies did not specifically warn

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Napier they were going to shoot him before shooting him. (Danza Depo. 245:17-24;

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Boisseranc Depo. 124:23 – 125:14, 127:19-25.) Finally, there is some evidence that the
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officers may have known Napier was not going to be entirely coherent, as they were there

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to arrest him for possession of methamphetamine. (Danza Depo. at 156 – 158.) Thus, a

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reasonable jury could conclude that Napier did not pose a risk of serious harm to the

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officers to justify the use of deadly force.

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At this stage, the Court does not weigh the evidence or resolve issues of credibility.

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Anderson, 477 U.S. at 255. If a jury believes Plaintiff's evidence and rejects Defendants'

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evidence, it could find that events did not unfold as the officers testified. In light of the

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circumstantial evidence and drawing all reasonable inferences in favor of the nonmoving

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party, a jury could find that Defendants’ use of deadly force was not objectively

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reasonable, and therefore violated Napier’s Fourth Amendment right against excessive

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force.

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b. Clearly Established Right.
Under the second prong of the qualified immunity test, the Court must decide if the

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alleged violation of Napier's Fourth Amendment right against excessive force “was

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clearly established at the time of the officer's alleged misconduct.” C.V. by and through

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Villegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016)(citations omitted). If

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not, the officer receives qualified immunity. To be clearly established, “[t]he contours of

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the right must be sufficiently clear that a reasonable official would understand that what

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[the official] is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107

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S.Ct. 3034, 97 L.Ed.2d 523 (1987). “We do not require a case directly on point, but

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existing precedent must have placed the statutory or constitutional question beyond

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debate.” Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308 (2015) (per curiam)

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(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Further, the clearly established

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inquiry “must be undertaken in light of the specific context of the case, not as a broad

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general proposition,” especially in the Fourth Amendment context, where “[i]t is

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sometimes difficult for an officer to determine how the relevant legal doctrine, here

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excessive force, will apply to the factual situation the officer confronts.” Id. (citations and

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internal quotation marks omitted). Put another way, only the “plainly incompetent”

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officer will not enjoy qualified immunity. Id. (citation omitted).

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Before this court can impose liability on Defendants, it must identify precedent as

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of January 31, 2014—the day of the shooting—that put Defendants “on clear notice that

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using deadly force in these particular circumstances would be excessive.” S.B. v. County

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of San Diego (“S.B.”), --- F.3d --- (2017), 2017 WL 1959984, at *6. “General excessive

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force principles, as set forth in Graham and Garner, are ‘not inherently incapable of

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giving fair and clear warning to officers,’ but they “do not by themselves create clearly

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established law outside an obvious case.’” Id. at 552 (citations and internal quotation

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marks omitted). Instead, we must “identify a case where an officer acting under similar

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circumstances as [Defendants] was held to have violated the Fourth Amendment.” Id.

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Plaintiff argues that specific case precedent is not required because this is an

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“obvious case” of a Fourth Amendment violation for which the general excessive force

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principles set forth in Graham and Garner provide clear notice to the Defendants. [Doc.

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No. 103 at 16 – 19.] According to Plaintiff, using deadly force on an individual who is

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unarmed and “standing with his hands in the air” is an “obvious” Fourth Amendment

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violation. Id. However, there is no admissible evidence before this Court that Napier

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“was standing with his hands in the air” at the time of the shooting. In the original

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opposition to Defendants’ motion for summary judgment, Plaintiff did not present any

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evidence, nor make any argument, that Napier was standing with his hands in the air.

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[See generally Doc. No. 55.] Thus, any such evidence is untimely.

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However, even if it was timely, it is inadmissible speculation. In response to the

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OSC, Plaintiff cites to photographic and physical evidence of the location of certain

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bullet holes in the body [Doc. No. 103 at 6] and then argues that such evidence shows

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Napier’s hands were in the air at the time he was shot based upon the perceived

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projectory of the bullets [Doc. No. 103 at 19]. However, Plaintiff does not provide any

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expert testimony to analyze the physical evidence and provide a foundation for this

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opinion. See FRE 202-703; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
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579, 591 (1993). Counsel’s mere speculation that the physical evidence shows Napier

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was “standing with his hands were in the air” is inadmissible. As a result, the Court does

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not consider this evidence. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.

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2002)(“A trial court can only consider admissible evidence in ruling on a motion for

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summary judgment.”) The only admissible expert evidence before the Court is that

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Napier’s hand was near his waistband when he was shot. [Martini Depo., Ex. 8, at 21:15-

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25:25.] Thus, this was not an “obvious” Fourth Amendment violation.

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Nevertheless, as set forth above, based upon the admissible evidence that was
timely provided in opposition to the motion for summary judgment, and assuming

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Napier’s hand was near his waistband when he was shot, a reasonable jury could find that

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a Fourth Amendment violation occurred. Therefore, pursuant to SB, Plaintiff must

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

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violated the Fourth Amendment in order to avoid a granting of qualified immunity. 2017

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WL 1959984, at *6.

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Plaintiff cites to the following cases as providing “clear notice” to the deputies:

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Torres v. City of Madera (“Torres”), 648 F.3d 1119 (9th Cir. 2011); Harris v. Roderick

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(“Harris”), 126 F.3d 1189 (9th Cir. 1997); Sheehan v. City & County of San Francisco

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(“Sheehan”), 743 F.3d 1211 (9th Cir. 2014); and Deorle v. Rutherford (“Deorle”), 272

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F.3d 1272 (9th Cir. 2001). None of these cases, however, meet the “exacting standard”

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required by SB to provide the deputies with the “clear notice” that using the amount of

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force they did was unlawful. 2017 WL 1959984, at *6. For example, Torres involved an

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officer who, while trying to deploy her taser on a man who was handcuffed in a police

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car, mistakenly drew her firearm and shot and killed the man. 648 F.3d at 1121. Here,

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Napier was not handcuffed, may not have been complying with instructions to raise his

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hands, and one of his hands was near his waist at the time he was shot. Thus, Torres is

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not sufficiently similar to provide the deputies with “clear notice.” S.B., 2017 WL

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1959984, at *6.

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The same is true of Harris, which involved a shootout with U.S. Marshals in Ruby

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Ridge, Idaho in 1992. Marshals came onto private property to serve an arrest warrant,

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and they shot and killed a dog. 126 F.3d at 1192-113. Then a 14-year-old boy shot at

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them, and they fired on the boy as he ran away, killing him. Id. at 1193. Here, Napier

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was an adult and had a criminal record (albeit not necessarily a violent one). Moreover,

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Napier was not running away from the officers. Rather, he was facing them, may not

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have been complying with their instructions, and had his hand near his waist when he was

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shot. Therefore, Harris is also not sufficiently similar to provide the deputies with “clear

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notice.” S.B., 2017 WL 1959984, at *6.

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Next, Plaintiff cites to Sheehan, 743 F.3d 1211 (9th Cir. 2014). However, Sheehan

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was reversed by the U.S. Supreme Court, and the deputies in that case were ultimately

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granted qualified immunity. City and County of San Francisco v. Sheehan, 135 S.Ct.

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1765, 1174-1177(2015). Moreover, Sheehan involved police trying to remove a mentally

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ill woman from her group home in order to place her in a psychiatric facility on an

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involuntary commitment. When the officers entered her room, she grabbed a knife and

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threatened the officers, who retreated to the hallway. They called back-up and reentered;

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when she threatened them with the knife again, they shot her with their firearms. 135

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S.Ct. at 1769-1771. Here, there was no issue of reentry, as all of the events transpired on

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the initial entry. Moreover, while Napier was a known drug user, he was not known to be

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mentally ill. Therefore, Sheehan is also not sufficiently similar to provide the deputies

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with “clear notice.” S.B, 2017 WL 1959984, at *6.3

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Plaintiff also argues that the deputies acted contrary to their training when they decided to enter the
garage after the door would not fully open, thus contributing to the chaotic situation that ensued. [Doc.
No. 103 at 10-11.] However, even if an officer acts contrary to his training, that does not itself negate
qualified immunity where it would otherwise be warranted. Sheehan, 135 S.Ct. 1765, 1777 (2015).
“Rather, so long as ‘a reasonable officer could have believed that his conduct was justified,’ a plaintiff
cannot ‘avoid[d] summary judgment by simply producing an expert’s report that an officer’s conduct
leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.’” Id. (internal
citations omitted).

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Finally, in Deorle, officers confronted a drunk, suicidal man who was upset at

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being diagnosed with hepatitis. 272 F.3d at 1275-1278. The man followed several

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instructions that the officers gave him (including throwing away three potential

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weapons), and was observed at close proximity by officers on his property for 5-10

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minutes before he was shot with a lead-filled beanbag round. Id. Here, Napier was only

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observed for a few seconds, may not have been complying with instructions to raise his

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hands, and had one hand near his waist when he was shot. Thus, Deorle is also not

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sufficiently similar to provide the deputies with “clear notice.” S.B., 2017 WL 1959984,

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at *6.
For the reasons set forth above, the cases cited by Plaintiff do not provide “clear

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notice” to the deputies under the “exacting standards” required by White. S.B., 2017 WL

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1959984, at *6. Therefore, the motion for summary judgment as to the Fourth

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Amendment claim is GRANTED on the grounds of qualified immunity.

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2. State law Battery/Wrongful Death.
Defendants also move for summary judgment on Plaintiff’s state law claim of

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battery and wrongful death.4 Under California law, a plaintiff bringing a battery claim

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against a law enforcement official has the burden of proving the officer used

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unreasonable force. See Edson v. City of Anaheim, 63 Cal.App.4th 1269 (1998); see also

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Saman v. Robbins, 173 F.3d 1150, 1157 n. 6 (9th Cir.1999) (“A prima facie case for

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battery is not established under California law unless the plaintiff proves that an officer

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used unreasonable force against him to make a lawful arrest or detention.”). California

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law regards “Section 1983 ... as the federal counterpart of state battery or wrongful death

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actions.” Yount v. City of Sacramento, 43 Cal.4th 885, 902 (2008) (“[W]e cannot think of

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Defendants acknowledge that qualified immunity does not extend to Plaintiff’s state law claim. [Doc.
No. 104 at 8.] See C.V. by and through Villegas v. City of Anaheim, 823 F.3d 1252, 1257 (9th Cir.
2016); Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013); see also Cousins
v. Lockyer, 568 F.3d 1063, 1072 (9th Cir. 2009) (“California law is clear that the doctrine of qualified
governmental immunity is a federal doctrine that does not extend to state tort claims against government
employees” (citations, alterations, and internal quotation marks omitted)).
4

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a reason to distinguish between section 1983 and a state tort claim arising from the same

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alleged misconduct....”); Susag v. City of Lake Forest, 94 Cal.App.4th 1401, 1412–13

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(2002) (“[I]t appears unsound to distinguish between section 1983 and state law claims

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arising from the same alleged misconduct.”)
Because this Court has already determined that a jury could find that Defendants’

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use of deadly force was not reasonable, his battery/wrongful death claim is also viable.

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See Nelson v. City of Davis, 709 F.Supp.2d 978, 992 (E.D.Cal.2010), aff'd, 685 F.3d 867

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(9th Cir.2012) (“Because the same standards apply to both state law assault and battery

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and [s]ection 1983 claims premised on constitutionally prohibited excessive force, the

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fact that Plaintiff's 1983 claims under the Fourth Amendment survive summary judgment

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also mandates that the assault and battery claims similarly survive.”) A genuine dispute

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of material fact remains as to whether Officers Boisseranc and Danza used unreasonable

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force. Therefore, Defendants' motion for summary judgment as to the wrongful

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death/battery claim is DENIED.5

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CONCLUSION
For the reasons set forth above, Defendants’ motion for summary judgment as to

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the Fourth Amendment claim is granted on the grounds of qualified immunity.

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Defendant’s motion for summary judgment as to the wrongful death/battery claim is

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DENIED.

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A status conference shall be held on July 26, 2017 at 10:00 a.m. in Courtroom 4-C
/////

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Plaintiff has always proceeded on an excessive force/battery theory and did not purport to bring a
negligence claim until he submitted proposed jury instructions. [See Doc. Nos. 95 and 96.] However, as
this Court previously noted, it does not appear that Plaintiff has pled a negligence claim nor complied
with administrative procedures. [Doc. No. 97 at 2.] See Jacovez v. United Merch. Corp., 9 Cal.App.4th
88, 105 (1992)(“In any action for wrongful death resulting from negligence, the complaint must contain
allegations as to all the elements of actionable negligence.”); Nelson v. State of California, 139
Cal.App.3d 72, 79 (1982)(“If a plaintiff relies on more than one theory of recovery against [government
defendants], each cause of action must have been reflected in a timely claim.”) Therefore, at this time,
Plaintiff’s only viable state law claim is wrongful death based upon a battery.
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to discuss further proceedings.
IT IS SO ORDERED.
Dated: July 17, 2017

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