Brawley v. Punt et al
Filing
77
OPINION and ORDER, IT IS ORDERED that the plaintiff's 26 Motion for Partial Summary Judgment is DENIED. Officer Punt's 29 Motion for Summary Judgment and the City's 35 Motion for Summary Judgment are GRANTED. IT IS FURTHER ORDERED that all other motions are DENIED as MOOT. IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment in favor of the defendants and close this case. Signed by Judge Donald W. Molloy on 5/11/2016. (EMH, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
HEATHER BRAWLEY, as Personal
Representative of the ESTATE OF
DANIEL BRAWLEY,
MAY 11 2016
Clel1<, U S District Court
District Of Montana
Missoula
CV 15-03-BLG-DWM
OPINION and
ORDER
Plaintiff,
vs.
OFFICER DAVID PUNT and the CITY
OF BILLINGS,
Defendants.
On January 6, 2013, Daniel Brawley was fatally shot by Billings Police
Officer David Punt. His wife and personal representative, Heather Brawley, sued
Officer Punt and the City of Billings in a 42 U.S.C. § 1983 action, alleging
Daniel's death was caused by an unconstitutional use of excessive force. The
parties each seek summary judgment on the question of liability. Officer Punt's
motion for summary judgment is granted because even if the use of force was not
objectively reasonable, the law at the time did not clearly establish that Officer
Punt's conduct would violate the Constitution. Officer Punt is therefore entitled to
qualified immunity. Likewise, the City's motion for summary judgment is granted
because Chief St. John's actions do not show that he made a conscious,
1
affirmative choice to approve Officer Punt's actions and to adopt them as City
policy, both of which are necessary to establish municipal liability.
BACKGROUND
1
On January 5 or early January 6, 2013, Daniel and Heather Brawley broke
into an unoccupied home on Miles Avenue in Billings, Montana. Shortly after
9:00 a.m. on January 6, the break-in was discovered when the girlfriend of the
homeowner encountered Daniel inside. She called 911, and police officers from
the Billings Police Department were dispatched to the scene. The Brawleys found
several firearms in the residence, took them, and then hid in a crawl space in the
basement. A standoff ensued, and the Billings SWAT team was called in. The
standoff lasted several hours, while the police negotiated a voluntary surrender.
The Brawleys were escorted from the home by the police and placed in flex
cuffs with their hands behind their backs. The surrender itself was without
incident. Heather was agitated upon being removed from the home, but Daniel
appeared calm. She was placed in metal handcuffs and put in the back of a patrol
car. Officer Punt was told to transport Daniel Brawley ("Brawley") separately.
The facts are those stipulated to by the parties, (Doc. 22 at~ 4), those provided in
support of the summary judgment motions, (Docs. 27, 31, 37, 54, 56 & 61), and those taken from
video footage of the incident, (conventionally filed, including video from Officer Punt's patrol
car, video from Officer Foster's patrol car, KTVQ video clip, and KULR video clip). The facts
are undisputed unless otherwise indicated. Disputed facts are construed in favor of the
nonmovant. Tolan v. Cotton,_ U.S._, 134 S. Ct. 1861, 1863 (2014) (per curiam).
1
2
Before placing Brawley in his patrol car, Officer Punt stored his service rifle in its
case on the front seat of the cruiser in "patrol-ready" condition, meaning it was
loaded with an ammunition magazine, with the hammer down, the chamber empty,
and the safety on. There was also a shotgun in "patrol-ready" condition in an
overhead rack in the front compartment of the cruiser. Strangely, Officer Punt left
the keys to his cruiser in the ignition. Officer Punt took Brawley in the flex cuffs,
patted him down, and placed him in the back driver's side seat of the police
cruiser. He could not get the plexiglass security divider between the front and rear
seat to go all the way up into a secure position. Even so, with the two loaded
firearms in his police cruiser, keys in the ignition, and the inoperable security
divider, he left the cruiser to talk to the other officers on the scene.
While Officer Punt was out of the cruiser, he saw a tan color in the partition
between the front and rear of the vehicle. When he realized that Brawley was
trying to get into the front seat he scrambled to get back to the cruiser. Brawley
had removed one of the flex cuffs from his wrists, crawled over the back of the
front seat of the cruiser, and got into the driver's seat. The prisoner put the cruiser
in reverse and then drive and tried to flee the scene. While Brawley backed away
in reverse, Officer Punt ran to the cruiser and was struck in a glancing way and
knocked to the ground by the front, driver's side of the hood. The cruiser, still in
3
reverse, went up on the curb and hit a tree. Brawley then put the cruiser in drive
and tried to go forward, fishtailing and spinning the rear wheels. Officer Punt,
meanwhile unhurt, got up off the ground and ran toward the cruiser, drawing his
service weapon and discharging it at the cruiser nine times. The time from when
the cruiser hit the tree to when the first shot is fired is 3 seconds. Brawley was hit
once and died as a result of a single gunshot wound. The first shot was likely the
fatal shot, which entered the cruiser through the front passenger window and
struck Brawley in the right armpit, passing through his chest. When Officer Punt
fired his service weapon there were civilians in the area who, upon hearing the
shots, dropped to the ground. Officer Punt, out of all the police on the scene, was
the only officer to fire at the cruiser being driven away by Brawley.
The parties dispute Officer Punt's location relative to the cruiser at the time
Brawley tried to escape. Officer Punt insists that he was in the direct line of the
cruiser and that he feared for his life. The plaintiff claims the cruiser did not face
Officer Punt during its forward acceleration but that as Officer Punt got up from
the ground, the cruiser was headed down the street away from Officer Punt and
other law enforcement personnel. The video footage of the incident does not
blatantly contradict nor affirm either parties' rendition of the facts. See Scott v.
Harris, 550 U.S. 372, 380 (2007) ("When opposing parties tell two different
4
stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment."). Accordingly, certain factual
disputes remain "genuine" and must be construed in favor of the nonmovant.
Tolan v. Cotton,_ U.S._, 134 S. Ct. 1861, 1863 (2014) (per curiam).
Officer Punt was posted outside the house during the standoff and was
aware of Brawley' s involvement. While Heather made numerous statements after
the fact regarding Brawley' s mental state, this information has no bearing on the
Court's analysis because it was not known to Officer Punt or law enforcement at
the time of the shooting. 2 Graham v. Connor, 490 U.S. 386, 397 (1989)
(analyzing reasonableness "in light of the facts and circumstances confronting" the
officer); Deorle v. Rutheford, 272 F.3d 1272, 1281 (9th Cir. 2001) ("[A]n officer's
use of force must be objectively reasonable based on his contemporaneous
knowledge of the facts."). The video footage shows Punt driving up to the scene
shortly before the killing took place. The defendants claim, however, that before
the January 6, 2013 incident, Officer Punt knew of Brawley based on other calls
2
Heather stated in her deposition that Brawley may have been "in a mania" or
experiencing a bipolar episode and that he was not "in the right frame of mind" or did not have
"any control of his mind." (Doc. 31-1at56.) Heather also stated that Brawley repeatedly
asserted that he was "not going back to jail." (Id. at 47.)
5
involving him. Other than Punt's statement that he knew there had been warrants
for Brawley, the nature and extent of that knowledge is not clear from the record.
(See Depo. Punt, Doc. 31-1 at 11 (discussing prior call for Brawley on pages 17
and19 but omitting page 18).)
STANDARD
A party is entitled to summary judgment if it can demonstrate that "there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is warranted where
the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Only disputes over
facts that might affect the outcome of the lawsuit will preclude entry of summary
judgment; factual disputes that are irrelevant or unnecessary to the outcome are
not considered. Id. at 248. "[I]n ruling on a motion for summary judgment, the
evidence of the nonmovant is to be believed, and all justifiable inferences are to be
drawn in h[er] favor." Tolan,134 S. Ct. at 1863 (internal quotation marks and
alterations omitted).
.ANALYSIS
I.
Officer Punt's Liability
The outcome of this case seems inevitable given the status of the Supreme
6
Court's qualified immunity jurisprudence in vehicular flight cases. But it
shouldn't be. The jury of any given community in our federal system plays a
significant constitutional role. When violence occurs, whether prosecuted by the
state or claimed as a violation of the constitutional prohibition against the use of
excessive force, the community should have a role. Part of that role is structural.
Part of that role is based on the principle of transparency. Part of that role is based
on a community's judgment of the propriety and extent of force that is justifiable.
When lethal force is employed by the police it should not be immunized by a
judge who is confronted with an argument about qualified immunity, unless, and
only unless, the law is unclear. It defies common sense and logic to reduce the
level of generality in this analysis to a level of specificity that randomly occurs.
Such a view means the conduct of officers using deadly force to kill another
human being, a citizen, is never subject to the transparency of a public trial where
the objective reasonableness of the deadly use of force is measured by a properly
instructed jury. See Lytle v. Bexar Cnty., Tex., 560 F.3d a404, 411-12 (5th Cir.
2009) (reasserting that "the reasonableness of an officer's conduct under the
Fourth Amendment is often a question that requires the input of a jury" because
"we rely on the consensus required by a jury decision to help ensure that the
ultimate legal judgment of 'reasonableness' is itself reasonable and widely
7
shared"). Instead, "I was in fear for my life," and "I was concerned about my
fellow officers," becomes a rote post hoc incantation. The core question is
whether any community wants to immunize police officers who kill a person
whenever there is an escape attempt of a fleeing vehicle. Surely the cases from
our Supreme Court cannot be so broadly viewed, and yet, that seems the case.
While circuit courts have generally held that the immediacy of the danger posed
by a fleeing driver raises factual questions, see, e.g., Gonzalez v. City ofAnaheim,
747 F.3d 789, 796-97 (9th Cir. 2014); Adams v. Speers, 473 F.3d 989, 993-94 (9th
Cir. 2007); Foster v. Patrick, 806 F.3d 883, 888-89 (6th Cir. 2015); Lytle, 560
F.3d at 412-18, the Supreme Court has never found the use of deadly force in
connection with a car chase to violate the Fourth Amendment, let alone to be a
basis for denying qualified immunity, see Mullenix v. Luna,_ U.S._, 136 S.
Ct. 305, 310 (2015) (per curiam) (collecting cases). It is under this conflicting
framework that this case must be resolved.
"The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation
marks omitted). Where qualified immunity is claimed, the question is: "Taken in
8
the light most favorable to the party asserting the injury, do the facts alleged show
the officer's conduct violated a constitutional right?" Brosseau v. Haugen, 543
U.S. 194, 197 (2004) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Questions of qualified immunity involve a two-pronged inquiry. Tolan, 134 S. Ct.
at 1865. The first prong is whether the facts, taken in the light most favorable to
the party asserting injury, show the officer's conduct violated a federal right. Id.
The second prong is whether the law was clearly established. Id. at 1866. "If the
law at that time did not clearly establish that the officer's conduct would violate
the Constitution, the officer should not be subject to liability or, indeed, even the
burdens of litigation." Brosseau, 543 U.S. at 198. "A clearly established right is
one that is sufficiently clear that every reasonable official would have understood
that what he is doing violates that right." Mullenix, 136 S. Ct. at 308 (internal
quotation marks omitted). There need not be a case directly on point, "but existing
precedent must have placed the statutory or constitutional question beyond debate.
Put simply, qualified immunity protects all but the plainly incompetent or those
who knowingly violate the law." Id. (internal quotation marks and citations
omitted).
There is discretion to decide the order in which to address this two-prong
test. Pearson, 555 U.S. at 236. When the facts are construed in favor of the
9
plaintiff, the circumstances here give rise to a constitutional violation. On the
other hand, because the law may not be clearly established, Officer Punt could be
entitled to qualified immunity as a matter of law. The constitutional question is
addressed first below. See Plumho.ff v. Rickard,_ U.S._, 134 S. Ct. 2012,
2020 (2014) (noting that while Pearson allows courts to begin with either
question, addressing whether the officer's conduct violated the Fourth Amendment
is "beneficial" to "developing constitutional precedent" (alteration omitted)).
A.
Fourth Amendment Violation
Apprehension by use of deadly force is a seizure subject to the
reasonableness requirement of the Fourth Amendment. Tennessee v. Garner, 471
U.S. 1,7 (1985); Brosseau, 543 U.S. at 197.
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
20120 vision of hindsight. . . . 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.
Graham, 490 U.S. at 396-97. "Determining whether the force used to effect a
particular seizure is 'reasonable' under the Fourth Amendment requires a careful
balancing of the nature and quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental interests at stake."
10
Id. at 396 (internal citations and quotation marks omitted). This balancing test
requires judges to evaluate "the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight." Id. This case is focused
on the most important Graham factor, whether Brawley posed an immediate threat
to Officer Punt or others at the time he was shot dead. Mattos v. Agarano, 66 l
F.3d 433, 441 (9th Cir. 2011). 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." Id. at 441-42 (internal quotation marks omitted).
The number of cases addressing police car chases and fatal shootings should
tell us something about the consequences of the doctrine of qualified immunity.
Even so judges "must still slosh ... through the factbound morass of
'reasonableness."' Scott, 550 U.S. at 383. "Nearly any suspect fleeing in a motor
vehicle poses some threat of harm to the public. As the cases addressing this alltoo-common scenario evince, the real inquiry is whether the fleeing suspect posed
such a threat that the use of deadly force was justifiable." Lytle, 560 F.3d at 415
(emphasizing that Scott v. Harris did not declare "open season" on suspects
fleeing in motor vehicles). "[A] suspect that is fleeing in a motor vehicle is not so
11
inherently dangerous that an officer's use of deadly force is per se reasonable. In
assessing the reasonableness of a police officer's use of force, [courts] must
instead delve into the facts and circumstances of each case." Id. at 416. Here,
Officer Punt gives the rote recitation of Agarano as justification for his use of
force: fear for his own safety and fear for the safety of others. Construing the facts
in the light most favorable to the plaintiff, a jury could find that Officer Punt's use
of deadly force was not reasonable under the circumstances. There are three
videos where in my view raise serious issues of fact about not only what happened
but also whether the "fear of personal safety" argument would be convincing to a
jury in Billings, Montana.
The Ninth Circuit found an officer's shooting of a fleeing motorist was
unreasonable, or potentially so, where the driver posed a lesser or disputed risk of
harm. In Gonzalez, an officer shot a van's driver in the head from close range as
the van accelerated forward. 747 F.3d at 792-93. Because there was no evidence
that either the officer or his partner were in danger of being hit and there was no
indication that anyone else was in danger, the court held that a jury could find the
officer did not act reasonably. Id. at 796-97. While the Ninth Circuit held no
constitutional violation occurred where an officer shot the driver of a minivan
because he feared for the immediate safety of his fellow officer, who he believed
12
may have been-or was in the process of being-run over by the suspect,
Wilkinson v. Torres, 610 F.3d 546, 551-52 (9th Cir. 2010), the court reaffirmed in
Gonzalez that its precedent does not stand for the proposition that the threat of
sudden acceleration always justifies the use of deadly force, 74 7 F .3d at 796.
Rather, all the facts surrounding the incident, including the failure to consider
alternative, lesser applications of force and the failure to provide a warning, if
practicable, should be accounted for. Id. at 797; but see Mullenix, 136 S. Ct. at
210-11 (holding that the officer did not need to consider alternatives). Similarly,
in Adams, where a suspect led police on a chase "largely within the speed limit"
for over an hour, an officer twice rammed the suspect's vehicle and later, without
warning, shot and killed the suspect as the suspect's vehicle rolled away. 473 F.3d
at 991-92. The Ninth Circuit found it "obvious" that "[n]o officer acting
reasonably within these circumstances could have believed that he could use
deadly force to apprehend" the suspect. Id. at 993-94.
Several cases from other circuits with facts similar to this case also provide
useful guidance. In Foster v. Patrick, an officer approached a woman and her two
children walking down the median of an interstate in Tennessee. 806 F .3d 883,
885 (6th Cir. 2015). The officer exited his vehicle with the motor still running and
asked her why she was walking on the highway and insisted she could not remain
13
there. Id. The officer, believing the woman's intended ride was not imminent,
told her that he was going to give them a ride and if she refused, he was going to
take her to jail. Id. At this point the accounts vary: the officer claims the woman
came toward him with a knife and he drew his weapon while the children recount
that their mother did not pull a knife but jumped on the officer's back. Id. at 88586. Either way, following her altercation with the officer, the woman jumped in
the police car and drove off. Id. The officer fired four or five times, told her to get
out of the cruiser, and then fired additional rounds as she pulled out onto the
highway. Id. The officer fired thirteen or fourteen shots in total, eight of which
made contact with the woman. Id. at 886.
Under those facts, the Sixth Circuit held that the officer's use of force was
not objectively reasonable because even assuming that the woman had assaulted
the officer, the struggle between them had terminated and she was fleeing at the
time he shot her. Id. at 887 ("[W]hile such action by a suspect justifies force, it
does not justify deadly force, especially when the struggle has concluded and the
suspect is in flight." (emphasis and alteration in original)). The court further
emphasized that no one was in the cruiser's path and nothing suggested the fleeing
woman would endanger others. Id. at 887-88. In this Sixth Circuit case, like here,
there were two deadly weapons in the cruiser, a loaded shotgun above the driver's
14
seat and a loaded rifle in the trunk. Id. at 888-89. The court concluded, however,
that "nothing from the facts suggests that [the woman] knew about the weapons in
the police cruiser or attempted to gain access to either of them." Id. at 889. While
the court acknowledged the danger present when someone steals a police car, it
concluded that such danger, without more, is "not so grave as to justify the use of
deadly force," relying in part on an earlier Sixth Circuit case, Smith v. Cupp, 430
F.3d 766, 773 (6th Cir. 2005).
In Smith, a suspect was arrested for making harassing telephone calls,
cuffed, and placed in the back of a police car, and the car was left running for the
air conditioning. 430 F.3d at 769. There was no security partition between the
front and back seats. Id. While the officer was out of the cruiser speaking to a
tow truck driver, the suspect climbed into the front seat and took control of the
cruiser and accelerated forward. Id. The officer ran toward the cruiser with his
firearm drawn and fired four times. Id. at 770. In finding a constitutional
violation, the court focused on the evidence presented by the plaintiffs that the
fatal shot was fired after the police car passed the officer and that there was no
immediate danger to anyone in the vicinity. Id. at 774-75. The court also noted
the driver was previously compliant and arrested for a non-violent offense. Id.
A Fifth Circuit case is also informative. In Lytle v. Bexar County, Texas, an
15
officer responded to a report of threatened domestic violence. 560 F.3d 404, 407
(5th Cir. 2009). The officer knew the suspect was a car thief driving a stolen car,
was on bond for charges of felony theft, and was unlawfully carrying a weapon.
Id. After a quarter- to a half-mile chase with speeds in the thirty-mile-per-hour
range, the suspect' s vehicle collided with another car, came to a stop on a
residential street, and began backing up toward the officer's car. Id. The officer
fired two shots into the back of the suspect's vehicle, killing a passenger. Id. The
court held that a jury could conclude that the fleeing car posed some threat of harm
as the chase took place at high speeds within a residential area, there were children
playing nearby, and the car struck another vehicle. Id. at 416. But, the court
concluded that a jury could also find the car "did not pose a sufficient threat of
harm such that the use of deadly force was reasonable." Id. The pursuit was short,
there were no bystanders in the path of the vehicle, and the vehicle appeared to be
a good distance down the block from the officer. Id. While the fleeing car's
collision with another vehicle gave the court some pause, it determined "the jury
should assess the depravity that this collision evidenced." Id. at 417.
With these cases in mind, the question here is whether Brawley posed a
threat to Officer Punt. Construing the facts in the plaintiffs favor insofar as they
are consistent with the video footage, Scott, 550 U.S. at 380, a jury could conclude
16
that he did not. Officer Punt did not start firing his weapon until after the cruiser
hit him. Punt ran toward the cruiser while it was reversing in an arc, made contact
with the driver's side of the cruiser and hood, and then slid off the front of the
cruiser. After he was on the ground, the cruiser continued to reverse away from
him along its arced path. Punt then got up and approached the cruiser on foot
during the cruiser's forward acceleration apparently in a direction where he was
not in the zone of danger where he might be hit by the accelerating cruiser. At the
point he fired, the cruiser was no longer facing him, but parallel to him as the first
and fatal shot went through the passenger window into Brawley's side. Officer
Punt then continued to shoot at the right side and rear of the cruiser as it
accelerated down the street. When the cruiser crashed into a pickup, Officer Punt
turned away from the catastrophe and took a few steps away from the cruiser
before turning back around and running back to Brawley. None of the many
officers on the scene drew a weapon or fired a shot despite seeing, or hearing, the
whole incident play out. A reasonable jury could conclude that, similar to the
situations in Foster, Smith, and Lytle, Officer Punt was not in immediate danger at
the time he fired. Compare Cowan ex. rel Est. of Cooper v. Breen, 352 F.3d 756,
763 (2d Cir. 2003) (finding a constitutional violation where officer was not in
front of vehicle but substantially off to side when he fired fatal shot), and Scott v.
17
Edinburg, 346 F.3d 752, 757 (7th Cir. 2003) (concluding a genuine issue of
material fact existed as to whether officer was compelled to fire to protect himself
when car may have been moving away at the time he fired), with Hathaway v.
Bazany, 507 F.3d 312, 321-22 (5th Cir. 2007) (no constitutional violation where
officer fired contemporaneously with being struck by vehicle).
While it may have been objectively reasonable for Officer Punt to shoot at
one point, reasonableness changes with the circumstances. See Waterman v.
Batton, 393 F.3d 471, 482 (4th Cir. 2005) (holding that officers are required to
consider new information regarding passing threat and it was not objectively
reasonable for them to continue firing at the car in question after it passed them);
Lytle, 560 F.3d at 414 (holding that the officer may have had sufficient time to
perceive that threat passed by the time he fired); but see Wilkinson, 610 F .3d at
552 (holding that an officer need not reevaluate whether a deadly threat has been
eliminated after the firing of each shot during nine-second, close quarters situation
where officer feared for the safety of another officer). While less than thirty
seconds passed between the time Officer Punt first ran toward the cruiser and
when he fired the final shot, (Officer Punt SUF, Doc. 31 at 'if'il 41, 67-70), Officer
Punt's proximity to the cruiser and the threat it posed to him changed dramatically
in that time. He did not fire at first and it was a mere six seconds from when he
18
saw Brawley reverse the cruiser until he was at the driver's side door. Two
seconds later he was on the ground being tossed by the inertia of the cruiser's
rearward movement. Four seconds later he was on his feet drawing his firearm.
Three seconds later, as the cruiser moves away, he fires the first of many bullets at
Brawley. Construing the facts in the plaintiffs favor, a jury could find even if
there was a sufficient risk to Officer Punt at the time the cruiser initially hit him,
there was no immediate risk to Officer Punt's safety at the time the shots were
fired. Lytle, 560 F.3d at 414.
The next question is whether Brawley posed an immediate threat to others.
Here, a jury could conclude, as the courts determined in Foster, Smith, and Lytle,
that he did not or that ifhe did, Officer Punt's response was not reasonable under
the circumstances. "[A]s a general matter, an officer may not use deadly force
once the car moves away, leaving the officer and bystanders in a position of
safety." Cass v. City ofDayton, 770 F.3d 368, 375 (6th Cir. 2014) (internal
quotation marks omitted). "An officer may, however, continue to fire at a fleeing
vehicle even when no one is in the vehicle's direct path when the officer's prior
interactions with the driver suggest that the driver will continue to endanger others
with his car." Id. (internal quotation marks omitted).
Some courts have found that the use of deadly force is reasonable where it
19
followed a prolonged, highspeed chase. See Scott, 550 U.S. at 386 ("A police
officer's attempt to terminate a dangerous high-speed car chase that threatens the
lives of innocent bystanders does not violate the Fourth Amendment, even when it
places the fleeing motorist at risk of serious injury or death."); Plumhoff, 134 S.
Ct. at 2021-22 (holding the force used was justified after fleeing vehicle stopped
but was intent on resuming flight); Cole v. Brown, 993 F.2d 1328, 1333-34 (8th
Cir. 1993) (holding no constitutional violation where suspect driving an eighteen
wheeler led officers on high-speed chase for over 50 miles forcing others off the
road and running a roadblock). Some courts have found that the use of deadly
force is reasonable where a suspect is willing to risk injury to others in the process
of escape. See Waterman, 393 F.3d at 479-80 ("Waterman's aggressiveness
toward officers trying to capture him suggested he was about to turn toward
officers not yet in his direct path."); Smith v. Freland, 954 F.2d 343, 347 (6th Cir.
1992) (suspect had demonstrated he was willing to do just about anything in order
to evade capture); Williams v. City of Grosse Pointe Park, 496 F.3d 482, 487 (6th
Cir. 2007) ("While there are no pedestrians or vehicles in the immediate field of
view of the camera in [the officer]'s cruiser, there can be no question that [the
driver]' s reckless disregard for the safety of those around him in attempting to
escape posed a threat to anyone in the vicinity.").
20
Nevertheless, a jury should be allowed to assess the nature of the short
chase here, the fact that Brawley hit both Officer Punt in a glancing blow and
reversed into a tree in his attempt to flee, the severity of the escape involved, and
all the other circumstances in the case, Lytle, 560 F.3d at 417, including the fact
that there were no bystanders in the immediate path of the vehicle as it accelerated
forward, Foster, 806 F.3d at 888. Indeed, one of the videos shows two civilians
on the sidewalk down the block from where the cruiser backed into a tree. (City
Ex. 5, Doc. 37-5 at :32-34 (conventionally filed)). While bystanders in the
immediate vicinity may have been at risk, Scott, 346 F.3d at 759, the greater risk
may have been from one of Officer Punt's nine shots going wide. As was the case
in Lytle, a jury could accept Officer Punt's version of the facts but might be
troubled by his firing of his sidearm down the block in a residential area and find
that it "posed a risk that the shots might strike an unintended target." 560 F.3d at
412-13. Thus, even assuming Brawley posed a significant threat of harm, a jury
could conclude that Officer Punt's killing him in response to that threat was
unreasonable. See id. at 413; see also Cowan, 352 F.3d at 763 (explaining that
even if the officer is in grave danger, the decision to shoot can still be
unreasonable if shooting may put the officer or others in even greater danger); c.f
Vaughan v. Cox, 343 F.3d 1323, 1332-33 (1 lth Cir. 2003) ("[A] reasonable officer
21
would have known that firing into the cabin of a pickup truck, traveling at
approximately 80 miles per hour on Interstate 85 in the morning, would transform
the risk of an accident on the highway into a virtual certainty."). Moreover,
Officer Punt testified in his deposition that he did not think there were civilians in
the immediate area because the streets had been cordoned off and the surrounding
houses evacuated. (Doc. 31-1 at 28.) While Officer Punt's subjective belief is
irrelevant, 3 the fact that no other officers fired at Brawley may show the lack of
danger was not just known to Officer Punt, but an objective reality.
Officer Punt argues that Brawley' s involvement in the immediately
preceding standoff and burglary is indicative of the threat he posed. That
knowledge is tempered, however, by the fact that Brawley's previous conduct
terminated before he stole the cruiser and Brawley was calm after his arrest and
restrained in flex cuffs. Foster, 806 F .3d at 887. It is undisputed that Brawley
was fleeing at the time he was shot. Even assuming his theft of the car was a
second crime, that action alone does not justify the use of deadly force. Id.; Smith,
430 F.3d at 773. Nor does the mere fact that the car was a police car. While a
3
Equally, the plaintiffs argument that Officer Punt acted out of embarrassment and
humiliation is not relevant. Officer Punt's underlying intent or motivation is immaterial; the only
question before the Court is one of objective reasonableness. Graham, 490 U.S. at 397; Cass,
770 F.3d at 377. That must be measured against the conduct of all the other officers at the scene,
none of whom fired a weapon, all of whom were aware of what was going on once Brawley
backed the cruiser into a tree.
22
fully marked and fully equipped police cruiser has a greater potential for causing
harm, see Long v. Slaton, 508 F.3d 576, 582-83 (1 lth Cir. 2007) (collecting cases
on unlawful uses of a stolen police cruiser), that fact alone does not justify the use
of deadly force, Smith, 430 F.3d at 774-75; Foster, 806 F.3d at 887. There is no
indication that Brawley was going to use the cruiser for anything other than escape
or that Brawley knew about the weapons or attempted to use or gain access to
either of them. Foster, 806 F.3d at 888-89.
Considering the circumstances of this case in the light most favorable to the
plaintiff, a jury could conclude that Brawley was not an immediate threat to
Officer Punt or others at the time he was shot and killed. Even if a jury
determined that he posed a threat, it could find that Officer Punt's response to that
threat was unreasonable.
B.
Clearly Established Right
Whether a right is clearly established is based on the specific context of a
case. Mullenix, 136 S. Ct. at 308. The Supreme Court has always found that an
officer is entitled to qualified immunity in a shooting involving a fleeing vehicle.
Id. at 310. The Supreme Court always holds that the law in such cases was not
clearly established. Brosseau, 543 U.S. at 200 (applying the law in 1999);
Plumhoff, 134 S. Ct. at 2024 (again in 2004); Mullenix, 136 S. Ct. at 312 (and
23
again in 2010). As a result, the law would only be clearly established for the
purposes of this case ( 1) if the facts were so markedly different from those three
cases as to make it distinguishable or (2) a significant change in the law occurred
between 2010 and 2013. Plumhoff, 134 S. Ct. at 2023. Neither is the case here.
While I believe our Ninth Circuit law on qualified immunity is the better
approach, I see no way around the view of the Supreme Court.
The circumstances of this case are comparable to Brosseau, Plumhoff, and
Mullenix. Brosseau involved a possibly armed suspect who got into a car, did not
engage in a chase, and posed, at most, a potential threat to people in area. 543
U.S. at 195-97 (the shooting officer "believed" suspect posed a threat to other
citizens who "might" be in the area). In Plumhoff, the suspect was involved in a
high-speed chase but was shot after he stopped the car because the police thought
he would resume his dangerous flight. 134 S. Ct. at 2021-22. The suspect in
Mullenix was armed, threatened to shoot officers in pursuit, and led officers on a
high-speed chase down a highway. 136 S. Ct. at 306-07. There, the Court noted
that previous excessive force cases revealed only a "hazy legal backdrop" from
which to compare the officer's actions. Id. at 309. As those same cases provide
the basis for the law here, the law was equally opaque under these circumstances.
Here, Officer Punt confronted a potentially armed, recently-arrested
24
individual set on escaping who was involved in a previous prolonged standoff
with law enforcement. The relevant inquiry is whether existing precedent places
the conclusion that Officer Punt acted unreasonably in these circumstances
"beyond debate." Id. While Foster, Smith, and Lytle come close, none of the
precedent "squarely governs" the facts here. Mullenix, 136 S. Ct. at 309. Under
Mullenix, given Brawley's conduct, it would be difficult to say that only someone
"plainly incompetent" who "knowingly violates the law" would have acted as
Officer Punt did. Id. (alteration omitted). Consequently, while I disagree, Officer
Punt is entitled to qualified immunity even if he was mistaken as the level of force
reasonable under the circumstances. See Saucier, 533 U.S. at 205 ("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.").
Mullenix gives great cause for consternation. It provides no guidance on the
constitutionality of similar conduct in future cases but instead stands for the
proposition that a suspect fleeing in a car always poses some sort of threat and
that, due to the nature of that threat, it is not clearly established-and likely never
will be-that deadly force cannot be used against that suspect. It seems to do what
25
Lytle was concerned Scott may be interpreted to do, i.e. declare "open season" on
fleeing motorists. See Lytle, 560 F.3d at 415. While couched as a discussion on
whether the law was "clearly established," Mullenix may have the practical effect
of eviscerating the Fourth Amendment reasonableness analysis beyond all
usefulness in the car-chase context. Moreover, it is vexing that the applicable law
in this all-too-common scenario remains "unclear" despite at least four Supreme
Court decisions and over thirty circuit court decisions addressing the use of deadly
force in vehicular flight situations. However, because the law of the Supreme
Court on the use of deadly force in such circumstances compels the conclusion
that the law was not clearly established specifically in the context of this case,
Officer Punt is entitled to qualified immunity. A far better resolution is to let a
jury decide if the fleeing suspect is fair game for the use of deadly force.
II.
The City's Liability
While local governments may be sued under 42 U.S.C. § 1983, they cannot
be held vicariously liable for their employees' constitutional violations. Monell v.
Dept. of Soc. Servs. of City ofNY., 436 U.S. 658, 691 (1978). However, a
municipality can be held liable under § 1983 if it had a "deliberate policy, custom,
or practice that was the 'moving force' behind the constitutional violation."
Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007). A plaintiff can establish
26
such a policy by showing "that the municipality's deliberate indifference led to its
omission and that the omission caused the employee to commit the constitutional
violation," Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1186 (9th Cir. 2002), or
that "'the individual who committed the constitutional tort was an official with
final policy-making authority' or such an official 'ratified a subordinate's
unconstitutional decision or action and the basis for it,"' Clouthier v. Cnty. of
Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010) (quoting Gillette v. Delmore,
979 F.2d 1342, 1346-47 (9th Cir. 2002)). The plaintiff must show both causationin-fact and proximate causation. Gravelet-Blondin v. Shelton, 728 F.3d 1086,
1096 (9th Cir. 2013). A municipality is not automatically liable under§ 1983 if an
officer applies a policy in an unconstitutional manner. Ewing v. City ofStockton,
588 F.3d 1218, 1235 (9th Cir. 2009) (citation omitted). Here, the plaintiffs claim
against the City is limited to Chief St. John's alleged ratification of Officer Punt's
use of force; that claim lacks merit. 4
Municipal liability can exist if an official with final policy-making authority
ratifies a subordinate's unconstitutional decision or action and the basis for it.
4
The plaintiffs claim also fails under the other formulations of Monell liability. There
is no proof in the record of longstanding practices or customs as to constitute standard operating
procedures or policies, Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), or that there was a
failure to train, Clouthier, 591 F.3d at 1249.
27
Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996); Clouthier, 591 F.3d at 1250.
"There must ... be evidence of a conscious, affirmative choice on the part of the
authorized policymaker." Clothier, 591 F.3d at 1250 (internal quotation marks
omitted). The mere fact that a final policymaker does not overrule a subordinate is
not sufficient. Gillette, 979 F.2d at 1348; Lytle v. Carl, 382 F.3d 978, 987 (9th
Cir. 2004). "For there to be ratification, there must be 'something more' than a
single failure to discipline or the fact that a policymaker concluded that the
defendant officer's actions were in keeping with the applicable policies and
procedures." Kong Meng Xiong v. City ofMerced, 2015 WL 4598861, at *29
(E.D. Cal. July 29, 2015) (internal quotation marks omitted).
Here, the plaintiffs ratification argument is based entirely on Chief St.
John's statement at the Coroner's Inquest that he "believe[d] that Officer Punt's
use of deadly force, based on the totality of the circumstances, specifically at the
moment when the vehicle was driving at him, was justified, it was within [the
City's] policy and guidelines as stipulated therein." (Coroner's Inquest Tr., Doc.
28-1 at 408-09.) The plaintiff argues that Chief St. John disguised or hid the
unjustified nature of Officer Punt's actions, establishing a policy of deception and
justification for the unauthorized use of force. Contrary to the plaintiffs
argument, however, Chief St. John's actions are insufficient to show that he made
28
a conscious, affirmative choice to approve Officer Punt's actions and adopt them
as policies. There must be something more.
In Larez v. City ofLos Angeles, 946 F.2d 630 (9th Cir. 1991), the court
found sufficient evidence of ratification in light of the obviously flawed
investigation of the plaintiffs excessive force complaint where the incident was
investigated by the unit responsible for the constitutional violation, there were
gaps in the investigation that went unchallenged by the chief, and the investigation
was found unreliable based on a two-year study of Los Angeles Police Department
complaints. Unlike Larez, the plaintiff cites no evidence other than Chief St.
John's review of the investigation and his statement at the Coroner's Inquest. This
alone is insufficient to establish ratification. See Peterson v. City ofForth Worth,
Tex., 588 F.3d 838, 848 (5th Cir. 2009) (finding no ratification where the chief of
police determined after investigation that the officers complied with department
policies). There is no evidence of a causal connection between Chief St. John's
acceptance of the investigation and conclusion and the alleged violation of
Brawley's constitutional rights. Kong Meng Xiong, 2015 WL 4598861, at *30.
Accordingly, the City is entitled to summary judgment as to the plaintiffs claims
29
against it under Monell. 5
III.
Other Constitutional Claims
The plaintiff also brings claims under the Fifth and Fourteenth
Amendments. The plaintiffs Fifth Amendment claim fails as a matter of law
because the Due Process Clause of the Fifth Amendment applies to federal, rather
than state, action. Dusenbery v. United States, 534 U.S. 161, 167 (2002); Lee v.
City ofL.A., 250 F.3d 668, 687 (9th Cir. 2001). The plaintiffs Fourteenth
Amendment substantive due process claim also fails as the Supreme Court has
previously held that "all claims that law enforcement officers have used excessive
force-deadly or not-in the course of an arrest, investigatory stop, or other
'seizure' of a free citizen should be analyzed under the Fourth Amendment and its
'reasonableness' standard, rather than under a 'substantive due process'
approach." Graham, 490 U.S. at 395 (emphasis in original). 6
CONCLUSION
In my view, this case should be tried to a jury. However, in light of our
Supreme Court's cases on deadly force in car chases, it won't be. Accordingly, IT
5
Because the City's motion for summary judgment is granted as to the issue ofliability,
the City's wrongful death damages argument is not addressed herein.
6
Substantive due process is generally limited to familial assertion claims, see Porter v.
Osborne, 546 F .3d 1131, 113 7 (9th Cir. 2008), or claims by those in a nonseizure, nonprisoner
context, see Cnty. ofSacramento v. Lewis, 523 U.S. 833, 843 (1998). Neither is the case here.
30
IS ORDERED that the plaintiffs motion for partial summary judgment (Doc. 26)
is DENIED. Officer Punt's motion for summary judgment (Doc. 29) and the
City's motion for summary judgment (Doc. 35) are GRANTED.
IT IS FURTHER ORDERED all other motions are DENIED as MOOT.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter
judgment in favor of the defendants and close this case.
~
Dated this
_lL day of May, 2016.
Donald
Uni(d
"'
31
. olloy, District Judge
State District Court
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