Wade v. City of Fruitland et al

Filing 43

MEMORANDUM DECISION AND ORDER denying 35 Defendants' Motion for Summary Judgment. A separate notice of hearing for a telephonic scheduling conference to set trial and pre-trial deadlines will be issued. Signed by Judge Candy W. Dale. (klw) Modified on 3/4/2014 to add full caption of order to text (cjm).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JAMEE L. WADE,
Case No. 1:12-cv-00465-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
CITY OF FRUITLAND; CITY OF
FRUITLAND POLICE
DEPARTMENT; AND OFFICER BILL
COPELAND, CITY OF FRUITLAND
POLICE DEPARTMENT,
Defendants.

INTRODUCTION
Plaintiff Jamee Wade filed this civil rights action pursuant to 42 U.S.C. § 1983
against Defendants City of Fruitland, its Police Department, and Officer Bill Copeland,
claiming that Officer Copeland’s use of deadly force incident to a call regarding a
domestic disturbance constituted excessive force under the Fourth Amendment. Wade
brings two additional claims under the Idaho Tort Claims Act for reckless, willful and
wanton conduct, and gross negligence.
Defendants filed a motion for summary judgment, arguing that the facts are
undisputed as a matter of law and they are entitled to judgment on all four counts asserted
in the Complaint. The Court conducted a hearing on February 26, 2014. After carefully
MEMORANDUM DECISION AND ORDER - 1

considering the parties’ arguments, the relevant authorities, and the record before the
Court, the Court finds there are disputed issues of material fact that preclude summary
judgment. The Court’s analysis follows.
FACTS 1
On December 22, 2011, Wade attended a movie with his mother, Eva Wade, and
became agitated during the movie. During the ride home, Wade and his mother argued,
and Wade threatened to kill his mother. 2 Fearing for her safety, Mrs. Wade drove to her
mother’s house located at NW 2nd Avenue in Payette County rather than returning to her
home alone with her son. Initially, Wade prevented his mother from exiting the car, but
she eventually was able to leave. On her way inside her mother’s residence, Mrs. Wade
called 911, informing the dispatcher that a relative was threatening to kill her. Once Mrs.
Wade was inside her mother’s residence, she locked the doors and waited for police to
arrive. Wade remained in the passenger seat of the vehicle, which was parked in the
driveway.
Officer Copeland and Officer Carter were dispatched separately to the residence,
with Officer Copeland assigned an assisting role. Officer Copeland recalls being
informed by police dispatch that Wade was making threats, but that he had remained in
the car. Enroute, Officer Carter briefed Officer Copeland about an incident that occurred
1

The Court finds the following facts material and undisputed or, when disputed, taken in the light
most favorable to Wade, the Plaintiff and non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (recognizing the district court’s obligation to construe the record
in the light most favorable to the non-moving party on motion for summary judgment).
2

Wade was being treated for mental illness, and was suspected by his mother of having
consumed alcohol before arriving at the movie theater.

MEMORANDUM DECISION AND ORDER - 2

the night before, where Wade had called police dispatch and demanded they send out a
SWAT team, and that Wade “was looking for a fight.” Copeland Depo. at 90 (Dkt. 3610.) Officer Carter had actually spoken to Wade the night before, and “talked Jamee
down.” Carter Depo. at 45 (Dkt. 36-11.) Carter felt Copeland needed to know of the
incident the night prior so Officer Copeland could know what type of situation he might
be getting himself into, as there was a possible officer safety issue. Carter Depo. at 46
(Dkt. 35-4.) As a result of Officer Carter’s briefing, Officer Copeland had a “heightened
sense of awareness.” Copeland Depo. at 90. Officer Copeland had responded also to an
attempted suicide call on September 12, 2011, the subject of which was Wade, who had
slit his wrists using a small boot knife.
Officer Copeland arrived at the residence first, and turned on his spotlight and
take-down lights to illuminate the area in front of the car. Officer Copeland then exited
his vehicle. Officer Carter had not yet arrived.
The next set of events occurring in the driveway the night of December 22, 2011,
differ depending upon witness recollection, and there is no audio or video recording of
Wade’s initial encounter with Officer Copeland after Copeland arrived on the scene.
According to Officer Copeland, as he approached the parked vehicle, the passenger door
opened, Wade exited and started walking toward the patrol car. Copeland described
Wade as wearing a hoody sweatshirt and winter clothes. Copeland reportedly
commanded Wade to stop and show his hands, but instead, Wade threw the sweatshirt
hoody over his face, put his hands in his pockets, and continued walking toward
Copeland’s patrol car. Copeland allegedly gave Wade more commands to stop and show
MEMORANDUM DECISION AND ORDER - 3

his hands, or he would shoot, but Copeland reported that Wade yelled, “Fuck it, do it,
fucking, let’s do it, or fucking do it, then, something to that effect.” Copeland Depo. at
108-109 (Dkt. 36-10.) The entire time, Copeland avers that Wade’s hands were in his
pockets, his face was covered, and Wade did not obey his commands. Although Copeland
did not see a weapon, because Wade failed to comply and “continued to aggress,”
Copeland fired two shots and Wade went down. Copeland knew the shots hit Wade,
because he described Wade as “grabbing his upper chest and arm area.” Copeland Depo.
at 111 (Dkt. 36-10.)
Mrs. Wade, who had moved inside the house to her mother’s bedroom, had a view
of the driveway from the bedroom window. She describes the events differently. She
stated she saw Wade “get out of the car with his hands up in the air and walk toward the
police car that was at the end of the driveway.” Eva Wade Depo. at 27 (Dkt. 35-4.) Mrs.
Wade described Wade’s hands as in the air “as soon as he got out of the car.” Eva Wade
Depo. at 65 (Dkt. 36-9.) Mrs. Wade remembers that Wade’s hands were in the air “from
the time he got out of his vehicle until the time he was out of [her] sight.” Mrs. Wade also
described her son as “not aggressive,” which she could see when she observed him
walking. Eva Wade Depo. at 76 (Dkt. 36-9.) After Wade walked out of Mrs. Wade’s line
of sight at the window, she heard two shots. The next time Mrs. Wade saw her son was
out by the road, after hearing three more gunshots. Eva Wade Depo. at 70 (Dkt. 36-9.)
Wade recalls he was told by Officer Copeland to exit the vehicle, and put his
hands in the air, “which [he] did,” and to take steps toward Officer Copeland, which he
did. Wade Depo. at 69, 92 (Dkt. 36-8.) Wade heard Officer Copeland say, “stop,” and
MEMORANDUM DECISION AND ORDER - 4

that because he was “halfway through a step,” Wade finished his step, and that is when he
was shot in the abdomen and in the right upper arm. Wade Depo. at 70 (Dkt. 36-8.) After
falling to the ground, Wade does not recall the next series of events. Id. at 95-97 (Dkt.
36-8.)
Copeland contends that he continued to give Wade commands while Wade was on
the ground to “show his hands,” and to stay on the ground, but that Wade stood up, and
began advancing upon Officer Copeland. Copeland Depo. at 115 (Dkt. 36-10.) Officer
Copeland described Wade as continuing to “aggress” him, and failing to obey his
commands to stop, causing Copeland to back up out into the road. Copeland Depo. at
111-113 (Dkt. 36-10.) Copeland did not see a weapon when Wade approached. Id. But
Copeland described Wade as aggressively advancing upon him, swinging his arms and
stalking toward him, and failing to comply with Officer Copeland’s verbal commands to
stop and get on the ground. Officer Copeland fired three more rounds, and Wade fell to
the ground.
Officer Carter arrived just prior to the second round of shots to see Officer
Copeland fire on Wade, and witnessed Wade fall to the ground. Carter Depo. at 34 (Dkt.
36-11.) Officer Carter had activated his camera and video recording device upon arriving
at the scene. Officer Carter described Wade’s gestures and demeanor as indicating rage.

MEMORANDUM DECISION AND ORDER - 5

Carter Depo. at 47. Defendants provided the video recording of the second round of shots
fired. Naylor Decl. Ex. C. 3 Copeland and Carter then secured Wade and the scene.
Defense expert Greg Meyer, a former member of the Los Angeles Police
Department, has offered the opinion that Officer Copeland’s tactical actions as the first
responder to arrive on scene were reasonable based upon his prior knowledge of Wade,
and the sudden aggressive action by Wade. As a result, Mr. Meyer is of the opinion that
Copeland’s initial use of deadly force was objectively reasonable given the totality of the
circumstances, and that the second use of deadly force against a determined, hostile and
aggressively advancing subject was objectively reasonable. In Mr. Meyer’s opinion,
Wade’s hands could not have been raised over his head when the first two shots were
fired based upon the trajectory of the bullet that hit Wade in the upper arm.
According to Plaintiff’s expert Jeffrey Noble, who was the Deputy Chief of Police
with the Irvine, California, Police Department for 28 years, neither use of force was
reasonable. Mr. Noble is of the opinion that Officer Copeland’s fear for his safety was
irrationally based solely upon Wade’s attire and the fact Wade’s hands were in his
pockets. Further, Mr. Noble’s opinion is that the second use of deadly force, after Wade
was shot twice, was unreasonable because Wade was already wounded, was not
brandishing a weapon, and was out of arm’s reach of Officer Copeland, and another
police officer was on the scene.

3

At the hearing, the Court informed the parties that it was unable to view the video recording
provided on disc. Since the hearing, the Court was able to view the video recording with the assistance of
the Court’s information technology department. There was no audio on the recording.

MEMORANDUM DECISION AND ORDER - 6

Officer Copeland’s use of force was investigated by the Idaho State Police, which
concluded their investigation on January 31, 2012. Based upon the ISP investigation and
an Administrative Panel Review, Officer Copeland’s use of force was determined not to
violate any use of force policy of the City of Fruitland Police Department.
Based on the above facts, Wade’s four count Complaint alleges one constitutional
violation under 42 U.S.C. § 1983 of excessive force in violation of the Fourth
Amendment (Counts I and II); reckless, willful, and wanton conduct (Count III) pursuant
to Idaho Code § 6-901; and gross negligence pursuant to Idaho Code § 6-901 (Count IV).
Defendants seek summary judgment on all four of Wade’s claims.
DISPOSITION
1.

Summary Judgment Standards
A principal purpose of summary judgment is to “isolate and dispose of factually

unsupported claims ....” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). It is “not
a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually
insufficient claims or defenses [can] be isolated and prevented from going to trial with
the attendant unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986).
The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).
MEMORANDUM DECISION AND ORDER - 7

To carry this burden, the moving party need not introduce any affirmative evidence (such
as affidavits or deposition excerpts) but may simply point out the absence of evidence to
support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d
528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in its favor. Anderson, 477 U.S. at 256–57. The non-moving party
must go beyond the pleadings and show “by [its] affidavits, or by the depositions,
answers to interrogatories, or admissions on file” that a genuine issue of material fact
exists. Celotex, 477 U.S. at 324.
The party bearing the burden of proof at trial “must establish beyond controversy
every essential element of its ... claim.” S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d
885, 889 (9th Cir. 2003) (adopting decision of district court “as our own”). A party who
does not have the burden “may rely on a showing that a party who does have the trial
burden cannot produce admissible evidence to carry its burden as to the fact.” Fed. R.
Civ. P. 56(c)(1)(B) (advisory committee’s note.) As a general rule, the “party opposing
summary judgment must direct [the Court’s] attention to specific triable facts.” S. Cal.
Gas Co., 336 F.3d at 889. 4

4

An exception to this rule exists when cross-motions for summary judgment are filed. In that
case, the Court must independently review the record for issues of fact. Fair Housing Council of
Riverside Co., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). Here, Wade did not file a cross
motion.

MEMORANDUM DECISION AND ORDER - 8

2.

Section 1983: Civil Rights Violation Claims in General
The purpose of 42 U.S.C. § 1983 is to deter state actors from using the badge of

their authority to deprive individuals of their federally guaranteed rights and to provide
relief to harmed parties. See Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim
under § 1983, a plaintiff must allege facts which show a deprivation of a right, privilege
or immunity secured by the Constitution or federal law by a person acting under color of
state law. Id. Acting under color of state law is “a jurisdictional requisite for a § 1983
action.” West v. Atkins, 487 U.S. 42, 46, (1988). In this case, it is not disputed that Officer
Copeland was acting under color of state law. Therefore, the question becomes whether
the Defendants’ actions deprived Wade of a right, privilege or immunity secured by the
Constitution or federal law.
Although not articulated in the Complaint, Wade appears to bring both official
capacity and individual capacity claims against Defendants, but does not clearly identify
in what capacity each Defendant is sued. Neither party elaborated upon this crucial
distinction in their briefs. When an official, such as Officer Copeland, is sued under
§ 1983 for damages, it is presumed that the suit is against the state actor in his individual
capacity. Shoshone–Bannock Tribes v. Fish and Game Comm’n, 42 F.3d 1278, 1284 (9th
Cir. 1994). This is because a claim for damages against state officials is barred by the
Eleventh Amendment. Id.
Here, Wade adequately pleads Officer Copeland is an individual, and he seeks
money damages against Officer Copeland for alleged violations of Wade’s constitutional
rights. Count I, which includes all Defendants, and Count II, which includes only Officer
MEMORANDUM DECISION AND ORDER - 9

Copeland, assert excessive force claims under the Fourth Amendment. But it is unclear
whether Count I, styled as “general allegations” for “violation of civil rights pursuant to
Title 42 U.S.C. § 1983,” actually asserts a claim separate from Count II. Absent
elaboration by either party, the Fourth Amendment claim for excessive force asserted
generally in Count I and specifically in Count II against Officer Copeland will be
construed as a claim against Officer Copeland in his individual capacity. 5
The Court will first address the claims asserted against Officer Copeland. Wade
brings a claim of unreasonable seizure by use of deadly force under the Fourth
Amendment. There is no dispute that Wade was ultimately “seized” at the conclusion of
the second round of gunfire. Defendants move for summary judgment for Officer
Copeland on the grounds that the two incidents of force used were objectively reasonable,
and therefore constitutional, and that Copeland is entitled to qualified immunity.
When a government official asserts the defense of qualified immunity in an
excessive force case brought under 42 U.S.C. § 1983, the threshold inquiry is whether the
plaintiff’s allegations, if true, establish a constitutional violation. Wilkins v. City of
Oakland, 350 F.3d 949, 954 (9th Cir. 2003) (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)). Then, in the context of a Fourth Amendment excessive force case, the Court
must determine whether the actions alleged violate a clearly established constitutional

5

As further support for the Court’s conclusion, Wade seeks monetary damages, including
punitive damages, against “Defendants” in Count I. However, punitive damages are not recoverable
against a municipal defendant in a § 1983 action, and are recoverable only against the officer in his
individual capacity. Muth v. Anderson, No. 1:11–cv–00461–EJL, 2012 WL 2525574 *5 (June 29, 2012)
(citing City of Newport v. Facts Concerts, Inc., 453, U.S. 247 (1981)).

MEMORANDUM DECISION AND ORDER - 10

right, “where ‘clearly established’ means that it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.” Id.
Graham v. Connor, 490 U.S. 386, 397 (1989), establishes the starting point for
analyzing whether the force used is excessive as measured by objective standards of
reasonableness. Wilkins, 350 F.3d at 954. Graham is applied at the first stage of the
qualified immunity analysis, and the inquiry is whether it would be objectively
reasonable for the officer to believe that the amount of force employed was required by
the situation he confronted. Wilkins, 350 F.3d at 954 (citing Saucier, 533 U.S. at 205).
“That is, the first step in the analysis is an inquiry into the objective reasonableness of the
officer’s belief in the necessity of his actions, and there is no Fourth Amendment
violation if the officer can satisfy this standard.” Wilkins, 350 F.3d at 954 (citing Liston v.
County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997)).
The second part 6 of the analysis “is to inquire whether the officer was reasonable
in his belief that his conduct did not violate the Constitution.” Wilkins, 350 F.3d at 955.
Here, the Court inquires into the reasonableness of the officer’s belief in the legality of
his actions. Id. (citing Saucier, 533 U.S. at 206). If the officer’s actions violated the
Fourth Amendment, a reasonable but mistaken belief that the conduct was lawful would
result in the grant of qualified immunity. Id. Qualified immunity thus “provides ample
protection to all but the plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986).
6

In Pearson v. Callahan, 555 U.S. 223 (2009), the United States Supreme Court held that the two
step sequence adopted by Saucier does not need to be addressed in any particular order.

MEMORANDUM DECISION AND ORDER - 11

A. Whether Copeland’s Actions Were Objectively Reasonable
The Fourth Amendment “has long recognized that the right to make an arrest ...
necessarily carries with it the right to use some degree of physical coercion or threat to
effect it.” Graham, 490 U.S. at 396. Although it is not required that police officers use
the “least intrusive degree of force possible ...”, Forrester v. City of San Diego, 25 F.3d
804, 807 (9th Cir. 1994), the “force which [i]s applied must be balanced against the need
for that force.” Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001) (quoting Liston
v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997)). However, because excessive
force cases usually turn on a jury’s credibility determination, summary judgment should
be granted sparingly. Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005).
Excessive force cases are decided on a case-by-case basis to determine whether
the totality of the circumstances justified the force used as judged from the perspective of
a reasonable officer at the scene. Graham, 490 U.S. at 396 (citing Tennessee v. Garner,
471 U.S. 1, 8–9 (1985)). “The calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second judgments in circumstances
that are tense, uncertain and rapidly evolving about the amount of force that is necessary
in a particular situation.” Id. at 396–97. Thus, the “reasonableness of a particular use of
force must be judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Id. at 397.
Determining whether the force used to effect an arrest was reasonable under the
Fourth Amendment, however, requires a balancing of the nature and quality of intrusion
on the individual’s interests against the governmental interests at stake. Id. at 396. The
MEMORANDUM DECISION AND ORDER - 12

following factors must be considered in this analysis: (1) the severity of the crime at
issue; (2) whether Wade posed an immediate threat to the safety of the officers or others;
and (3) whether Wade actively resisted arrest. Ramirez v. City of Ponderay, 2008 WL
2445483, at *7 (D. Idaho June 16, 2008) (citing Arpin, 261 F.3d at 921).
When evaluating an excessive force claim, summary judgment is appropriate for
the defendant if the court “concludes, after resolving all factual disputes in favor of the
plaintiff, that the officer’s use of force was objectively reasonable under all
circumstances.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). The Court concludes
there are disputed issues of material fact precluding the Court from holding, as a matter
of law, that Officer Copeland’s use of force was objectively reasonable under the totality
of the circumstances.
Although dispatched to a domestic disturbance and not to a crime scene, the threat
posed to Officer Copeland and others is the most significant Graham factor in this case.
Brooks v. City of Seattle, 599 F.3d 1018, 2010 WL 1135776, at *8 (9th Cir.2010) (citing
Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.1994)). The Ninth Circuit views officers’
safety as “the most important of the three factors.” Miller v. Clark, 340 F.3d 959, 964
(9th Cir. 2003) (quoting Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994)). However, “[a]
simple statement by an officer that he fears for his safety or the safety of others is not
enough; there must be objective factors to justify such a concern.” Deorle, 272 F.3d at
1281.
Under this factor, Wade argues he complied with all commands and posed no
threat, while Defendants argue that Wade acted aggressively, had his hands in his pockets
MEMORANDUM DECISION AND ORDER - 13

at all times, and could have been carrying a concealed weapon. Prior to arriving at the
scene, Officer Copeland knew that Wade had actively provoked a police confrontation
the previous night, and he had been suicidal in the recent past. But, there is conflicting
evidence based upon eyewitness reports and Wade’s own testimony whether Wade posed
an immediate threat, and whether Wade actively resisted arrest.
The facts are disputed whether Wade was not compliant with Officer Copeland’s
commands, or whether he had his hands up and was trying to comply with Copeland’s
verbal commands when he was shot the first time. There is no on-board video to confirm
or deny either version of events. Two experts 7 interpret the events differently based upon
the same facts before the Court. The conflicting expert reports are relevant evidence of
reasonableness, and a rational jury may rely upon expert evidence in assessing whether
an officer’s use of force was unreasonable. Sheehan v. City & Cnty. Of San Francisco,
No. 11-16401, Slip. Op. at 24, ___ F.3d ___ (9th Cir. Feb. 21, 2014). Viewing the facts in
a light most favorable to Wade, a reasonable jury could find objectively that Wade was
not a serious threat to Officer Copeland at the time of the first confrontation, when the
initial two shots were fired.
As for the second round of shots, the Court is confronted again with a
disagreement between two experts regarding the events. On the one hand, Copeland knew
Wade had been shot twice from the first volley of shots. But, both Copeland and Carter
viewed Wade as aggressive. Nevertheless, two experts, whom neither party disputes is
7

Neither party filed an objection to the Court’s consideration of the opposing party’s expert
opinion at this stage in the proceedings.

MEMORANDUM DECISION AND ORDER - 14

qualified, have rendered contrary opinions after watching the same on-board video from
Officer Carter’s vehicle, and reviewing the officers’ statements. It is not for the Court to
weigh the evidence upon summary judgment, or determine the credibility 8 of the experts.
Based upon the record before it, the Court cannot conclude on summary judgment
as a matter of law that the two instances of deadly force were reasonable and not
excessive under the Fourth Amendment.
B. Whether Copeland’s Actions Were Legally Permissible
Copeland next asserts that, even if his actions were not objectively reasonable, he
is entitled to qualified immunity because, under the second prong of the qualified
immunity analysis, “another officer under the same circumstances could have reasonably
acted in the same way as Officer Copeland. . . . There is no sufficient case law that would
have given Officer Copeland fair warning that he could not use deadly force in defending
himself against an unprovoked and aggressively violent subject, who potentially has a
hidden weapon, who had credibly threatened to kill his own mother and the officer
himself, and was non-compliant to repeated police commands.” Defs.’ Mem. at 16 (Dkt.
35-1.) In other words, Officer Copeland argues that even if his use of force violated the
Fourth Amendment, he is nevertheless entitled to qualified immunity because the law
was not clearly established that he could not use deadly force under the factual
circumstances presented.

8

At the hearing, Defendants argued Wade’s expert relied upon incomplete information. Again,
however, it is not for the Court to weigh the experts’ opinions upon summary judgment.

MEMORANDUM DECISION AND ORDER - 15

Copeland’s argument contains a fundamental flaw in the application of the second
prong of the qualified immunity analysis. The second prong of the analysis concerns the
reasonableness of the officer’s mistake of law, contrary to the first prong, which involves
a mistake of fact. Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011). For
example, an officer might correctly perceive “all of the relevant facts but have a mistaken
understanding as to whether a particular amount of force is legal in those circumstances.
If the officer’s mistake as to what the law requires is reasonable, however, the officer is
entitled to the immunity defense.” Saucier, 533 U.S. at 205. But an official can still have
fair warning that his conduct violates established law “even in novel factual
circumstances.” Torres, 648 F.3d at 1129. Copeland does not identify any legal mistake
regarding the contours of Wade’s Fourth Amendment right. And, under the law applied
in the Ninth Circuit, “an unreasonable mistake in the use of deadly force against an
unarmed, nondangerous suspect violates the Fourth Amendment.” Torres, 648 F.3d at
1129.
Rather, Copeland’s argument asserts factual mistakes which, as explained above,
are disputed. Mrs. Wade describes her son as “not aggressive,” with his hands in the air
from the moment he exited the car. Wade also describes himself as compliant with
Officer Copeland’s demands. In contrast, Officer Copeland describes Wade as aggressive
with his hands in his pockets. Whether Officer Copeland’s mistake of fact was reasonable
depends upon which version of the facts a jury accepts, and which expert the jury finds
more credible on this issue. If the facts are construed in the light most favorable to Wade,
and he was indeed compliant with Officer Copeland’s initial demands to stop and put his
MEMORANDUM DECISION AND ORDER - 16

hands up, Officer Copeland could not have reasonably believed that the initial use of
deadly force was lawful. Torres, 648 F.3d at 1129. 9
Because the lawfulness of the seizure by use of force turns on the reasonableness
of Officer Copeland’s factual mistake, the Court finds that the second prong of the
immunity analysis is inapplicable. See Wilkins v. City of Oakland, 350 F.3d 945, 955-56
(9th Cir. 2003) (where the officers’ entitlement to qualified immunity depends on the
resolution of disputed issues of fact in their favor and against the non-moving party,
summary judgment is not appropriate).
C. Liability of the City of Fruitland and the Fruitland Police Department
Wade’s claims against Defendants City of Fruitland and the Fruitland Police
Department are not as clear. A municipality may not be held liable under Section 1983
solely because it employed a constitutional wrongdoer. Monell v. Dept. of Social
Services, 436 U.S. 658 (1978). Municipalities can only be held liable “if either a policy or
custom leads to the violation of the constitutional right.” Mason v. City of Camas, 2006
WL 2871832 (W.D. Wash. Oct.6, 2006) (citing Monell, 436 U.S. at 690–91). To establish
liability, a plaintiff must “allege that the action inflicting injury flowed from either an
explicitly adopted or tacitly authorized city policy.” Gibson v. United States, 781 F.2d
9

Wade is not immune from misunderstanding the doctrine of qualified immunity. He argues that
named Defendants City of Fruitland and its police department are not shielded from liability on the basis
of qualified immunity. But the doctrine of qualified immunity protects city officials “from personal
liability in their individual capacities for their official conduct;” it therefore does not apply to municipal
defendants. Community House, Inc. v. City of Boise, 623 F.3d 945, 964 (9th Cir. 2010). Further, a city
official may be entitled to qualified immunity with respect to constitutional violations asserted against
him in his individual capacity, but remain subject to suit in his official capacity as a municipal policy
maker. Id. at 973.

MEMORANDUM DECISION AND ORDER - 17

1334, 1337 (9th Cir. 1986). This requires the plaintiff establish evidence of a “formal
policy” or “widespread practice” by the county. Nadell v. Las Vegas Metro. Police Dept.,
268 F.3d 924, 929 (9th Cir.2001).
A custom may be inferred from “evidence of repeated constitutional violations for
which the errant municipal officers were not discharged or reprimanded.” Gillete v.
Delmore, 979 F.2d 1342, 1349 (9th Cir.1992). However, “[a] plaintiff cannot prove the
existence of a municipal policy or custom based solely on the occurrence of a single
incident or unconstitutional action by a nonpolicymaking employee.” Davis v. City of
Ellsenburg, 869 F.2d 1230, 1233 (9th Cir. 1989). Additionally, it must be shown that it
was the municipality’s deliberate conduct that was the moving force behind the injury
alleged. Bd. of the County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 397
(1997) (emphasis in original). In other words, a plaintiff must identify the local
government act---the policy---that is the cause of the constitutional violation. 10 In the
absence of a constitutional violation, a municipality cannot be held liable under
Section 1983. Sweaney v. Ada County, 119 F.3d 1385, 1392 (9th Cir. 1997).
Further, “section 1983 claims against government officials in their official
capacities are really suits against the government employer because the employer must
10

For example, a municipality's failure to train or supervise its employees can be an
unconstitutional “policy” for purposes of § 1983 liability. City of Canton v. Harris, 489 U.S. 378, 387
(1989). To be actionable under § 1983, the failure to train or supervise must amount to “‘deliberate
indifference to the rights of persons' with whom those employees are likely to come into contact.” Lee v.
City of Los Angeles, 250 F.3d 668, 681 (9th Cir.2001) (quoting City of Canton, 489 U.S. at 388–89). The
most often cited example—hypothesized by the Supreme Court in Canton—is a city that arms its police
officers but fails to train them on the proper use of deadly force despite knowing “to a moral certainty”
that officers will be required to capture fleeing felons. City of Canton, 489 U.S. at 390 n. 10.

MEMORANDUM DECISION AND ORDER - 18

pay any damages awarded.” Butler v. Elle, 281 F.3d 1014, 1023 n. 8 (9th Cir.2002). In
such suits, the real party in interest is the entity for which the official works. Hafer v.
Melo, 502 U.S. 21, 25 (1991). Therefore, a suit against Officer Copeland in his official
capacity is the same as a suit against the City of Fruitland—the payor of any damages
that may be awarded.
Wade’s Complaint, and the parties’ briefs, do not articulate whether Officer
Copeland was sued also in his official capacity. Count II of the Complaint alleges that
Copeland, “in acting in compliance with Defendant, City of Fruitland policies, failed to
abide by constitutional practice when conducting a search and seizure, which led to
application of deadly and excessive force against Plaintiff.” The Complaint fails to
identify a specific policy. But, because Officer Copeland was not a policy maker, the
proper Defendant is the City of Fruitland to the extent Wade asserts that a policy or
custom caused the deprivation of his Fourth Amendment rights. Count I includes a
constitutional allegation against all Defendants, but fails to identify, articulate, or even
mention that a policy caused the constitutional deprivation of Wade’s rights.
Additionally complicating matters, Defendants collectively moved for summary
judgment on all claims in the Complaint (Motion, Dkt. 35), but in their moving brief,
only articulate arguments regarding Officer Copeland’s use of force and entitlement to
qualified immunity, all the while acknowledging that the Complaint asserts excessive
force claims against both Officer Copeland and the City of Fruitland (Defs.’ Mem. at 2—
17, Dkt. 35-1). Not until Defendants reply brief do they address the Monell issue,
ostensibly to respond to Wade’s Monell argument in his response brief.
MEMORANDUM DECISION AND ORDER - 19

Wade cites Monell in the context of a heading that “qualified immunity is
inapplicable to the City of Fruitland and its Police Department.” Pl.’s Response at 176
(Dkt. 36.) But, as noted above, the doctrine of qualified immunity does not apply to
municipalities. Next, Wade’s argument about the City’s policy is nonsensical. In
essence, Wade argues that because Officer Copeland was exonerated during the ISP and
Administrative Review investigation because he “followed policy,” the use of deadly
force, having been carried out in compliance with “policy,” was unconstitutional. But
Wade fails to articulate how the “policy” caused, or was the moving force behind, the
constitutional deprivation.
In Wade’s brief, he cites to one potential policy. The policy is described, then
quoted, as follows:
it is the stated policy of the Fruitland Police Department to forego the use
of non-lethal force unless there is another officer backing them up:
During prior training at the Fruitland Police Department for
"Less Lethal Shotgun," it had been strongly recommended
that officer should not deploy "less lethal" weapons unless
they have another officer backing them up with lethal force,
This is done so that in the event "less lethal" weapons do not
have the desired effect lethal force can be initiated to stop the
threat if need. Dkt 35-7 at 10.
Fruitland has a Use of Deadly Force Review Board that can only make two
findings:
1. The employee’s actions were within department policy and procedures;
or
2. The employee’s actions were in violation of department policy and
procedures. (Exhibit E).
The “policy” cited indicates that the department, during training, recommends the use of
lethal force in the absence of another officer on the scene. Wade asserts that Officer
MEMORANDUM DECISION AND ORDER - 20

Copeland followed police policy; identifies the above policy; and then concludes that the
policy itself caused the violation of Wade’s constitutional rights because Copeland must
have followed it. But Wade fails to articulate how this policy was the “moving force”
behind the shooting other than in a conclusory fashion. See City of Canton, Ohio v.
Harris, 489 U.S. 378, 388 (1989) (“[M]unicipal liability under § 1983 attaches where—
and only where—a deliberate choice to follow a course of action is made from among
various alternatives” by city policymakers.).
Further, the referenced policy does not appear in the record to be an actual policy
adopted by the City. Wade cites to Exhibit E as the source of the policy. (Dkt. 36-7.) But
Exhibit E, referred as Policy 302, is the “deadly force review policy.” 11 The citation to
Docket 35-7 at 10 is to a paragraph of the Incident Report prepared by the Idaho State
Police during its investigation into the shooting. No policy manual, or other evidence of
City policy, is in the record before the Court. In other words, there is no proof that the
quoted passage constitutes a policy adopted by the City of Fruitland or the Fruitland
police department; rather, it appears to be a training recommendation. See, e.g., Mott v.
City of McCall, Idaho, 2007 WL 1430764 *6-7 (D. Idaho May 14, 2007) (noting that the
defendants, in support of their motion, submitted the policies adopted by the McCall
Police Department and that the plaintiff failed to show any alleged violation of policy
was the result of a government policy or custom).

11

During the hearing, Defendants noted that their expert, Meyer, reviewed Police Department
Policy 300 regarding the use of force. However, Policy 300 is not part of the record other than its mere
mention in Meyer’s expert report.

MEMORANDUM DECISION AND ORDER - 21

Ultimately, however, it was Defendants’ burden to show why Defendants City of
Fruitland and the City of Fruitland Police Department should have the constitutional
claims, however pled, asserted against them adjudicated upon summary judgment.
Defendants did not move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to
state a claim. And, despite making an appearance on behalf of all named Defendants,
Defendants’ counsel never articulated a reason in their moving brief why named
Defendants City of Fruitland and City of Fruitland Police Department should be
dismissed from this lawsuit. 12
In short, Defendants failed to carry their burden as to why Defendants City of
Fruitland and City of Fruitland Police Department should be granted judgment as a
matter of law. And Wade, as the non-moving party, is not entitled to a legal
determination deciding his municipality liability theory allegedly contained in Counts I
and II of the Complaint. It does not follow, however, from the Court’s conclusion that the
claims against all Defendants are properly pled— only that the issue of summary
judgment in favor of Defendants City of Fruitland and Fruitland Police Department was
not properly presented upon Defendants’ motion.

12

At the hearing, Defendants’ counsel noted that the Answer to the Complaint asserted the City
of Fruitland Police Department was not a proper party because it is not a recognized political subdivision
subject to suit under § 1983. However, the first time Defendants mentioned this basis for dismissing the
City of Fruitland Police Department as a named party was at the hearing.

MEMORANDUM DECISION AND ORDER - 22

3.

State Law Claims
The remaining two counts in the complaint are alleged under state law. 13 Count III

alleges that Officer Copeland’s conduct was reckless, willful, and wanton because he
intentionally applied deadly force despite Wade’s compliance with Officer Copeland’s
instructions. Further, Wade relies upon Officer Copeland’s adherence to police
department policy in support of his allegation that Officer Copeland acted intentionally
and knowingly to cause Wade bodily harm. Wade’s final count alleges that Officer
Copeland committed gross negligence by utilizing deadly force after Wade had complied
with Officer Copeland’s instructions. Based upon the Complaint, Counts III and IV are
asserted against Defendant Copeland only. 14 If Wade intended to the contrary, the
Complaint is not clear.
Defendants collectively argue that statutory immunity protects Defendants from
Wade’s state law allegations because the Idaho Tort Claims Act, Idaho Code § 6-904,
exempts governmental entities and their employees acting within the course and scope of
their employment and “without malice or criminal intent” from a claim arising out of
assault or battery. Defendants argue that Officer Copeland’s use of excessive force
constitutes a battery, and as such, Defendants are immune from liability because the
definition of battery does not require malice. Wade, on the other hand, contends that a
13

Should the § 1983 claims be dismissed, federal court jurisdiction over the state law claims
would be eliminated. Dilts v. Blair, No. CV04–508–C–EJL, 2005 WL 2847415 *5 (Oct. 19, 2005).
14

In Defendants’ memorandum, they appear to be under the impression Counts III and IV apply
to all Defendants. But, upon examining the Complaint, the Court cannot discern any claim against the
municipality defendants other than the general reference to police policy.

MEMORANDUM DECISION AND ORDER - 23

jury could conclude that Officer Copeland acted without legal justification because his
actions were unconstitutional, and therefore his use of deadly force constitutes malice.
The Court posits that there is a much simpler conclusion. The allegations in
Wade’s complaint rely upon whether Wade complied with Officer Copeland’s
instructions. There are disputed issues of material fact, discussed above, regarding
whether Wade complied with Officer Copeland’s instructions to show his hands or put
them in the air, and whether his body language suggested aggression. Two experts
disagree based upon a review of the same record before this Court. As such, the Court is
unable to render a decision on Counts III and IV as a matter of law.

CONCLUSION
Defendants’ Motion for Summary Judgment will be denied. The parties are
strongly encouraged to clarify the issues and the parties remaining for trial in accordance
with the legal principals discussed above. The Court will conduct a telephonic scheduling
conference with the parties to discuss available trial dates and to set pre-trial deadlines. A
separate notice of hearing is forthcoming.

MEMORANDUM DECISION AND ORDER - 24

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Defendants’ Motion for Summary Judgment (Dkt. 35) is DENIED.

A separate notice of hearing for a telephonic scheduling conference to set trial and
pre-trial deadlines will be issued.

March 04, 2014

MEMORANDUM DECISION AND ORDER - 25