Elifritz v. Fender et al
Filing
72
OPINION & ORDER: The Court GRANTS Defendants' Motion for Summary Judgment 29 . Plaintiff's section 1983 claims against all Defendants are dismissed with prejudice. Plaintiff's wrongful death claim is dismissed with prejudice. All claims against Defendants Bailey and Damerville are dismissed with prejudice. Signed on 5/13/2020 by Judge Marco A. Hernandez. (jp)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BARBARA ELIFRITZ, Personal Representative
for the Estate of John Elifritz, and Guardian
for minor child S.E.,
Plaintiff,
v.
OFFICER KAMERON FENDER, OFFICER
ALEXANDRU MARTINIUC, OFFICER
BRADLEY NUTTING, OFFICER CHAD
PHIFER, OFFICER ANDREW POLAS,
OFFICER RICHARD BAILEY, OFFICER
JUSTIN DAMERVILLE, and CITY OF
PORTLAND,
Defendants.
Andrew M. Stroth
Carlton Odim
ACTION INJURY LAW GROUP, LLC
191 North Wacker Drive, Suite 2300
Chicago, IL 60606
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No. 3:18-cv-00903-HZ
OPINION & ORDER
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Timothy R. Volpert
TIM VOLPERT P.C.
610 SW Alder Street, Suite 415
Portland, OR 97205
Attorneys for Plaintiff
Ashley M. Carter
Naomi Sheffield
J. Scott Moede
CITY OF PORTLAND
1221 SW Fourth Avenue, Room 430
Portland, OR 97204
Attorneys for Defendants
HERNÁNDEZ, District Judge:
Plaintiff Barbara Elifritz, personal representative for the estate of John Elifritz and
guardian for minor child S.E., brings this action against Defendants City of Portland (“the City”)
and Officer Kameron Fender, Officer Alexandru Martiniuc, Officer Bradley Nutting, Officer
Chad Phifer, Officer Andrew Polas, Officer Richard Bailey, and Officer Justin Damerville (“the
officer defendants”). Plaintiff brings a Fourth Amendment claim under 42 U.S.C. § 1983 and a
state law claim for wrongful death. Defendants move for summary judgment on each of
Plaintiff’s claims. The Court grants Defendants’ motion for summary judgment.
The circumstances of this case required several police officers to make a split-second
decision that ended Mr. Elifritz’s life. At the time, Mr. Elifritz was experiencing a mental health
crisis, was under the influence of drugs, or both. Mr. Elifritz’s death is a tragedy for all
concerned, including Mr. Elifritz, his family, and the police officers and bystanders who were
present at the scene. Notwithstanding its tragic nature, however, it is clear that the officers’ use
of deadly force under the unique circumstances of this case did not violate the Fourth
Amendment or create a basis for a wrongful death claim under Oregon law.
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BACKGROUND
A.
Before Elifritz Arrived at CityTeam
On April 7, 2018, John Elifritz (“Elifritz”) called Portland Police Bureau (“PPB”) at
around 2:20 p.m. Pl. Resp. Mot. Sum. J. (“Pl. Resp.”) Ex. 1 at 1-2,1 ECF 59-1. He reported that
someone had murdered his wife and child by slitting their throats, and he said that they were in a
house across the street from a library. Id. at 3. He did not request police assistance, but he said
that possible gang members had killed his family. Id. Officer Wuthrich, Officer Storm, Officer
Kemple, and Officer Britt responded to the call. As officers were in route, other people called
PPB to report that Elifritz was screaming and exhibiting alarming behavior. Id. Officers
responded to the duplex where Elifritz said that someone had murdered his wife and child. Id. A
contractor at the duplex let the officers in to confirm that no one was injured inside. Id. The
contractor told the officers that a “crazy” guy had been outside and had made him feel
uncomfortable. Id. Other officers located Elifritz nearby. Id. Elifritz did not believe that the
officers were police officers. Id. He refused to speak to them and put a knife to his own throat
when officers tried to talk to him. Id. Elifritz told the officers that he would not hurt himself or
anyone else and that he did not need help from the officers. Id. The officers decided to
disengage and left Elifritz alone. Id.
Officer Loomis completed a PPB “Mental Health Template” that described the encounter
and included the subject “mental health.” Id. Officers Wuthrich and Kemple also completed
reports that described the incident and that were incorporated into Officer Loomis’s mental
health template. Officer Wuthrich’s report said that she responded to a report by Elifritz that his
wife and daughter were dead in the townhomes across from the library. Id. at 6. Officer
1
This exhibit is not page-numbered, so citations to this exhibit refer to the ECF page numbers.
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Wuthrich pulled her patrol vehicle next to Elifritz, rolled down the window, and asked him to
stop. Id. Elifritz was sweating, yelling, and Officer Wuthrich could not understand what he said.
Id. When Officer Wuthrich told Elifritz that she needed to talk to him, he backed away from her
patrol vehicle and pulled a knife from his pocket. Id. Officer Wuthrich got out of her vehicle to
get her less lethal launcher2 and heard someone say that Elifritz had put the knife to his own
throat. Id. Officer Wuthrich loaded her less lethal launcher as Elifritz ran away. Id. Officer
Wuthrich said that Officer Storm asked Elifritz if he wanted to hurt anyone, and Elifritz told
Officer Storm that he did not want to hurt himself or others. Id. At that point, another officer
ordered Officer Wuthrich to disengage because police presence seemed to agitate Elifritz further.
Id. After they disengaged with Elifritz, Officer Wuthrich and Officer Britt pulled their patrol
vehicles next to one another in a nearby park and were talking when a third vehicle pulled up.
Id. The driver of that vehicle said that a man nearby was “waving around a knife” and had tried
to get into his vehicle. Id. Officer Britt asked him if he wanted to report that he had been the
victim of an attempted carjacking. Id. The man said no and told the officers that he just wanted
them to know that it had happened. Id. Officer Wuthrich updated dispatch with that
information, and the officers decided to continue to disengage. Id. Officer Wuthrich completed
a report with a subject line that stated, “high subject with knife.” Id.
Officer Kemple reported similar facts. Officer Kemple’s “BHU referral” with the subject
line “mental health crisis” reported that when they encountered him, Elifritz was standing about
seventy-five yards away from the other officers and was not threatening anyone. Id. Officer
Less lethal launchers shoot beanbags and other projectiles intended to “induce compliance by
causing sudden, debilitating, localized pain, similar to a hard punch or baton strike.” Deorle v.
Rutherford, 272 F.3d 1272, 1277 (9th Cir. 2001). Beanbags are “rounds made of lead shot”
launched from a shotgun, and they can cause serious injuries or even death. Id.
2
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Kemple also said that when police officers approached Elifritz, he pulled a knife and held it to
his throat. Id. Officer Kemple reported that he kept his distance and did not approach Elifritz
because other officers were trying to engage with him at that time. Id. Officer Kemple cleared
the scene without contacting Elifritz. Id.
Officer Loomis completed the mental health template at 3:36 p.m. Id. at 3. Officer
Kemple added his narrative to the report at 4:02 p.m., and Officer Wuthrich added hers at 6:14
p.m. Id. at 4-6. The report was approved that day, but the report does not reflect what time it
was approved. Id. at 1. When a mental health template is approved, the computer dispatch
system does not immediately notify all on-duty officers of the report. Volpert Decl. Ex. 6-A
(“Foxworth Dep.”) 25:12-20. An officer who wants to access the template would have to go into
a specific program, enter the subject’s name and date of birth, and retrieve it. Id. The filing of
the report generates a flag for mental illness that attaches to the individual’s name and appears
when an officer enters the individual’s information into a search. Id.
About two hours after the officers’ encounter with Elifritz, at around 4:30 p.m., PPB
received a report that a man had carjacked a vehicle in southeast Portland. Jones Decl. ¶ 5, ECF
37. The caller reported that a man had opened the driver side door of his daughter’s silver SUV
and forced her out of the vehicle while screaming, “they’re going to kill somebody.” Sheffield
Decl. Ex 1 at 2-4, ECF 42-1. A few hours later, at 7:25 p.m., PPB received a report of a road
rage incident. Jones Decl. ¶ 6. The caller reported that the driver of a silver vehicle with the
license plate “ZRO 832” had chased the caller and anaother person after they had left a Wal-Mart
store and tried to hit them. Sheffield Decl. Ex. 2 at 2:8-12, 4:2-3, ECF 42-1. The caller
described the driver as a bald man wearing no shirt with tattoos on his body, and the caller said
that the driver had something in his hand, but the caller could not see what it was. Id. at 3:6-7.
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The caller told the dispatcher that he had a video of the driver, and the dispatcher told the caller
that an officer would come to look at the video. Id. at 4:21-5:9. The dispatcher sent a report to
officers through computer-aided dispatch (“CAD”) that said, “5 AGO, L/S EB COLUMBIA
RECKLESS AGGRESSIVE DRIVER IN 57 GRY HOND CRV OR/ZRQ832, MALE DRIVER
NO SHIRT LOTS OF TATTOOS, COMP THINK DRIVER POINTED A GUN AT HIM, HAS
VIDEO, WOULD LIKE CONTACT AT HIS HOME.” Jones Decl. Ex. 13 at 1, ECF 37-1.3
About five minutes later, PPB received calls reporting that a man had crashed a silver
Honda CRV at Southeast Martin Luther King, Jr. Boulevard and Southeast Stark Street. Jones
Decl. ¶ 9, ECF 37; Jones Decl. Ex. 14 at 1, ECF 37. The dispatcher told officers that the crashed
vehicle was the same vehicle that had been reported stolen earlier and the same vehicle that had
been involved in the road rage incident where the driver was “flashing a gun.” Sheffield Decl.
Ex. 3 at 2:14-20, 4:13-22, ECF 42-1. The dispatcher notified officers that the suspect was either
John Elifritz or another individual. Id. at 4:19-22. Officers began to perform an area check to
look for the man who had crashed the car. Id. at 3:14-24. An officer identified on the dispatch
transcript as K9-1 then notified dispatch that the video taken by the road rage victim “doesn’t
really show the guy. No gun actually seen. He was just reaching for something.” Id. at 6:10-12.
The dispatcher repeated over the radio that no gun had been involved in the carjacking. Id. at
6:18-21.
While officers continued to search the area, dispatch received another report at 7:49 p.m.
The caller reported that a white man in his thirties to fifties with a graying goatee and a bald head
was standing outside the doorway of the Jackson’s convenience store on Southeast Grand
Avenue holding a knife with a three to four-inch blade in his hand. Id. at 7:1-7, 9:4-6. The caller
3
This exhibit is not page-numbered, so citations to this exhibit refer to the ECF page numbers.
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also reported that the man appeared to be high on opiates. Id. at 7:1-7. Officers responded to
Jackson’s and showed a Jackson’s employee a picture of Elifritz. Id. at 8:8-14. The employee
confirmed that the man who had appeared with a knife was Elifritz. Id.; Simpkins Decl. ¶ 7,
ECF 40. The dispatcher advised officers over the radio that “a couple calls earlier today,”
Elifritz had held “a knife to his throat, was ranting about his wife and daughter being murdered.
We disengaged from that on East.” Sheffield Decl. Ex. 3 at 8:17-19. Officer Fender completed
a record check after the Jackson’s employee identified Elifritz and found the mental health
template completed by officers earlier that day. Volpert Decl. Ex. 6-E (“Fender Dep.”) 30:1824, 32:10-23, ECF 59-11. Officer Phifer ran a record check to find a photo of Elifritz. Volpert
Decl. Ex. 6-D (“Phifer Dep.”) 45:7-8, ECF 59-10. He did not look at the list of police
encounters and arrests involving Elifritz because he was driving at that time. Id. at 45:21-46:18.
Dispatch then notified officers that “Medic 332” had just left Columbia Shelter, located at
509 Southeast Grand, and said that a male wearing a hoodie was standing outside the locked
door of the shelter holding a knife to his throat.4 Id. at 9:15-25. Officer Nutting responded to
Columbia Shelter and reported to dispatch that Elifritz was no longer there. Id. at 10:12-14;
Sheffield Decl. Ex. 5 (“Nutting Dep.”) 39:9-20, ECF 42-1.
Outside Columbia Shelter, Deputy Simpkins, one of the officers who had responded to
Jackson’s, heard people across the street outside CityTeam Ministries (“CityTeam”)5 shouting,
4
That information was inaccurate. Elifritz had in fact held a knife to the neck of a man standing
outside Columbia Shelter. With the knife on the man’s neck, Elifritz told the man that they were
going to go for a ride in the ambulance. McKimmy Decl. ¶¶ 2, 5, ECF 38. When the man got
away from Elifritz, he went inside Columbia Shelter and told a medic that Elifritz had a knife
and intended to hijack the ambulance. Id. at ¶ 6. Because the officers did not have that
information when they encountered Elifritz, the Court did not consider it in its Fourth
Amendment analysis.
5
CityTeam Ministries is a city shelter. Sheffield Decl. Ex. 3 at 10:24-11:6.
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“He’s over here.” Simpkins Decl. ¶ 9. As officers approached, a person standing outside
CityTeam said that someone inside CityTeam was holding a knife to his own throat. Fox Decl. ¶
10, ECF 34. Deputy Sieczkowski, who was working with Deputy Simpkins,6 saw a man
matching Elifritz’s description standing inside CityTeam. Sieczkowski Decl. ¶ 8, ECF 39.
Elifritz had a knife in his hand, and Deputy Sieczkowski saw blood on Elifritz’s neck. Id. An
officer then notified dispatch, “I think he’s in CityTeam across the street.” Sheffield Decl. Ex. 3
at 10:24-25. Another officer reported to dispatch, “We got him inside,” and said that Elifritz’s
throat was bleeding heavily. Id. at 11:3-9. The dispatcher sent a medical unit to CityTeam to
render medical assistance. Id. at 11:10-19.
B.
After Elifritz arrived at CityTeam
Several nearby police officers ran to the entrance of CityTeam. Sieczkowski Decl. ¶ 9.
People were running out of CityTeam, and one person told officers that Elifritz was trying to stab
people. Simpkins Decl. ¶ 10; Cohen Decl. Ex. 19 (“Combined Video”) 1:59-2:00, ECF 32-1.
Deputy Simpkins drew his handgun as he approached. Simpkins Decl. ¶ 10. People inside
CityTeam were backing away from Elifritz, and they appeared to be afraid of him. Sieczkowski
Decl. ¶ 9; Combined Video 1:17-1:24. Elifritz cut his neck several times before officers opened
the CityTeam doors. Nutting Dep. 53:1-12; Combined Video 1:17-1:24. When Deputy
Sieczkowski opened the door, Elifritz began to back away from the door into the right side of the
room. 7 Nutting Dep. 53:13-18; Combined Video 2:19-2:22. The officers did not immediately
Deputy Sieczkowski is a Multnomah County Sheriff’s Deputy, and Deputy Simpkins is a
Clackamas County Sheriff’s Deputy; they are not PPB officers. Sieczkowski Decl. ¶ 1;
Simpkins Decl. ¶ 1.
7
All references in this Opinion to the left, right, front, and back (or rear) of the room refer to
those areas from the officers’ perspective as they stood inside the CityTeam doorway facing into
the room.
6
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enter CityTeam. From the threshold of the doorway, Officer Damerville, who had a 40millimeter less lethal launcher, shouted, “Hey, drop the knife or you’re going to get bean
bagged.” Combined Video 2:18-2:20; Sheffield Decl. Ex. 8 (“Damerville Dep.”) 37:2-6, ECF
42-1. Officers told Elifritz twice more that he would “get bean bagged” before firing any less
lethal rounds. Combined Video 2:24-2:25, 2:32-2:33. While he was backing away from the
doorway, Elifritz bumped into a man and grabbed the man’s jacket. Sieczkowski Decl. ¶ 10;
Combined Video 2:19-2:22. Sieczkowski thought that Elifritz would take the man hostage and
radioed to other officers that there may be hostage situation. Sieczkowski Decl. ¶ 11. The man
slipped away, and Elifritz moved toward the rear of the right side of the room from the officers’
perspective. Id.; Combined Video 2:19-2:20. Officers told Elifritz to drop the knife and get
down on the ground, but Elifritz did not comply. Id. at 2:23-2:26. An officer then told Elifritz,
“If you come at everyone, you get shot. Do you want to get shot?” Id. at 2:35-2:39. Officers
continued to yell repeatedly at Elifritz to drop the knife and get on the ground. Simpkins Decl. ¶
14; Combined Video 2:20-2:39.
As Elifritz backed into the right side of the room, most of the bystanders moved to the
left side of the room. Combined Video 2:45-2:51. The surveillance video shows that a short
wall partially separated the back of the left and right sides of the room. There was a stairway
leading downstairs in the center of the front of the room. The stairway was enclosed by walls
that appear from the Court’s estimation to be about five feet tall. There was enough space
between the end of the short wall in the back of the room and the enclosed stairwell in the front
of the room to walk between the left and right sides of the room. The right side of the room was
arranged with several rows of chairs facing the back of the room where a table sat facing the
rows of chairs, and the rows of chairs were divided down the center by an open aisle. Most of
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the chairs had been occupied by people when Elifritz entered CityTeam. Several chairs had been
bumped out of place and slid easily across the floor when the bystanders left their seats to get
away from Elifritz.
From the right side of the room, Elifritz moved toward the bystanders on the left side of
the room. Id. He walked to the space between the short wall and the wall that enclosed the
staircase while bystanders shoved chairs and other objects in his path to keep him away from
them. Id. at 2:51-2:55. Officers told the bystanders to go inside one of the rooms along the left
side of the room or get out of CityTeam. Id. at 2:55-3:04. Officers Bailey and Damerville shot
less lethal rounds at Elifritz several times. Damerville Dep. 37:2-6; Combined Video 2:53-2:54,
3:07-3:08, 3:19-3:21, 3:25-3:27, 3:46-3:48, 3:50-3:52; Sheffield Decl. Ex. 7 (“Bailey Dep.”)
30:2-13, ECF 42-1; Sheffield Ex. 3 at 11:15-18. Elifritz was unphased by the less lethal rounds.
Sieczkowski Decl. ¶ 13; Fox Decl. ¶ 14. Although officers struck Elifritz with less lethal rounds
several times, he “remained in an athletic stance, still staring at [the officers] and holding the
knife.” Sieczkowski Decl. ¶ 13; Combined Video 3:05-3:25.
For several seconds, Elifritz stood near the center of the room, between the enclosed
staircase and the short wall, focused on the officers standing at the threshold of the door. He
appeared to be taking cover from the less lethal rounds behind the wall surrounding the staircase.
Combined Video 3:25-3:50. At that point, officers began to enter CityTeam. Id. at 3:50-3:52;
Sheffield Decl. Ex. 9 (“Martiniuc Dep.”) 16:4-7, ECF 42-1 at 100. The officers created a
semicircle formation inside the entrance and began to widen the formation along the left wall of
the room to position themselves between Elifritz and the bystanders, which allowed some
bystanders to get out of CityTeam. Martiniuc Dep. 16:19-24; Nutting Dep. 53:20-25. Officer
Gore, a K-9 officer, entered the room with a police canine, but did not use the canine against
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Elifritz. Gore Decl. ¶ 5, ECF 35. As officers entered CityTeam, Elifritz walked back to the right
side of the room and positioned himself behind a pillar in the right rear corner of the room.
Combined Video 3:51-3:55. Along with the pillar, positioned between Elifritz and the officers
were the table and the rows of chairs that bystanders had been sitting in before Elifritz entered
the room. Id.
At that point, several bystanders remained in the rear left corner of the room separated
from Elifritz only by the short wall. Id. After standing behind the pillar for several seconds,
Elifritz stepped out and took about five steps toward the officers, navigating around the pillar and
the table. Combined Video 4:07-4:08. When Elifritz passed the table and reached the open aisle
between the rows of chairs, he quickened his pace and began to run toward the officers, holding
the knife in front of him. Combined Video 4:08-4:09. Officers Nutting, Martiniuc, Phifer,
Polas, Fender, and Deputy Sieczkowski fired their weapons at Elifritz, and he fell to the floor.
Combined Video 4:09-4:12; Nutting Dep. 72:1-16; Martiniuc Dep. 29:12-22; Phifer Dep. 68:2-3;
Sheffield Decl. Ex. 10 (“Polas Dep.”) 33:17-18; Sheffield Decl. Ex. 11 (“Fender Dep.”) 60:3-5;
Sieczkowski Decl. ¶¶ 15-16; Volpert Decl. Ex. 4 at 4-5, ECF 59-4. The gunshots lasted two to
three seconds. Combined Video 4:09-4:12. It appears from the Court’s view of the video that
Elifritz came within a few seconds of reaching the nearest officers when they fired the first shot.
Id. After the officers shot him, Elifritz rolled on the floor and came to rest face down with both
of his arms and the knife positioned under his body. Elifritz died as a result of the shooting.
Volpert Decl. Ex. 4 at 4-5. The time that had elapsed since officers had first appeared at the
CityTeam doorway until they shot Elifritz was just over two minutes, and the officers had
entered CityTeam only one minute and six seconds before they shot him. Volpert Decl. Ex. 2;
Combined Video 2:04-4:10.
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The officers acknowledged that Elifritz’s behavior was unusual. Some of them could not
tell whether he was having a mental health crisis. Damerville Dep. 24:10-17; Martiniuc Dep.
24:4-8. Some officers testified that he appeared to be struggling with a mental issue or having a
mental health crisis. Phifer Dep. 44:17-20; Martiniuc Dep. 24:13-25. Other officers believed
that he was under the influence of methamphetamine or other stimulants. Martiniuc Dep. 24:4-8;
Bailey Dep. 26:4-16; Phifer Dep. 6:21-25; Polas Dep. 22:8-25; Fender Dep. 45:24-46:5. The
officers testified that they were trying to isolate Elifritz from the bystanders, deescalate the
situation, take him into custody, and get him the medical care that he needed. Axthelm Decl. ¶
13, ECF 30; Damerville Dep. 24:1-6. Elifritz did not obey any of their commands. Axthelm
Decl. ¶ 18.
A toxicology report confirmed the presence of amphetamine and methamphetamine in
Elifritz’s blood. Sheffield Decl. Ex. 16, ECF 42-2.
C.
City of Portland Training and Policies
i.
Training
PPB officers attend a 16-week basic police academy taught by the state of Oregon that it
requires all new law enforcement recruits in the state to attend.8 After basic academy, PPB
officers attend an advanced academy that PPB teaches and requires all PPB officers to attend.
Sheffield Decl. Ex. 12 (“Gerritsen Dep.”) 38:3-11, ECF 42-1. At basic academy, the officer
defendants received Crisis Intervention Training, which included training to recognize mental
health issues, identify mental crises, and learning how to communicate with people in an
8
PPB may waive the requirement than an officer attend basic academy if the officer has attended
an equivalent police academy in another state. Officer Fender had experience as a law
enforcement officer in Nevada before PPB hired him, so he did not attend Oregon’s basic
academy. Instead, he took an equivalency exam and attended PPB’s advanced academy. Fender
Dep. 6:1-24.
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elevated emotional state. Damerville Dep. 5:18-23; Martiniuc Dep. 35:11-18. They received
additional Crisis Intervention Training at advanced academy. Gerritsen Dep. 38:22-24. After
completing basic and advanced academy, PPB officers receive a cumulative total of forty hours
of mandatory Crisis Intervention Training. Id. at 38:18-24.
PPB also offers a forty-hour Enhanced Crisis Intervention Training course to officers on
a voluntary basis. Gerritsen Dep. 39:1-2. Officers Nutting and Damerville had received
Enhanced Crisis Intervention Training before the incident. Nutting Dep. 90:20-91:1; Damerville
Dep. 5:15-17, 7:22-8:3. PPB officers also receive in-service training at least annually, and
responding to mental health crises is often a topic of in-service training. Phifer Dep. 47:2-7. The
crisis intervention training offered during in-service trainings includes role-playing exercises that
require officers to work through scenarios involving people experiencing mental health issues.
Id. at 47:16-22.
PPB trains its officers to use lethal force when there is an immediate threat of death or
serious physical injury to the officer or others. Phifer Dep. 6:4-8; Damerville Dep. 78:4-9.
ii.
Policies
PPB’s Policy No. 1010.00 establishes PPB standards for using force. It requires officers
to use de-escalation techniques, when feasible, to avoid using force or reduce the force used to
arrest a subject. Volpert Decl. Ex. 3 (“PPB use of force policy”) at ¶ 5. It also requires officers
to “attempt to avoid or minimize the use of force against individuals in perceived behavioral or
mental health crisis or those with mental illness and direct such individuals to the appropriate
services, where possible.” Id. at ¶ 6. When practical and appropriate, officers should call
specialized behavioral health units to respond and “assist in de-escalating the situation or
devising a disengagement strategy or otherwise assist in safely resolving the incident.” Id. at ¶
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1.1.2. When engaging with a person who is not following officers’ commands, officers should
“consider whether a subject’s lack of compliance is a deliberate attempt to resist or an inability to
comply based on factors including, but not limited to: 1) medical conditions; 2) mental
impairment; 3) developmental disability; 4) physical limitation; 5) language barrier; 6) drug or
alcohol impairment; and 7) mental health crisis.” Id. at ¶ 1.2. The policy defines a “mental
health crisis” as:
An incident in which someone with an actual or perceived mental illness
experiences intense feelings of personal distress (e.g., anxiety, depression, anger,
fear, panic, hopelessness), a thought disorder (e.g., visual or auditory
hallucinations, delusions, sensory impairment or cognitive impairment), obvious
changes in functioning (e.g., neglect of personal hygiene) and/or catastrophic life
events (e.g., disruptions in personal relationships, support systems or living
arrangements; loss of autonomy or parental rights; victimization or natural
disasters), which may, but not necessarily, result in an upward trajectory of intensity
culminating in thoughts or acts that are dangerous to self and/or others.
Id. at 3. When they engage with a person experiencing a mental health crisis, officers should
consider de-escalation and disengagement techniques and create a response plan. Id. at ¶ 1.3.
The PPB use of force policy states that “nothing in this policy requires a member to
retreat or be exposed to possible physical injury before applying reasonable force.” Id. at 5.
However, the policy states that it is more restrictive than state and federal laws. Id. The policy
incorporates the requirements of Graham v. Connor and allows officers to use force to prevent or
terminate the commission of a crime, suicide, or serious self-inflicted injury and to make an
arrest, prevent an escape, or defend the officer and others. Id. at ¶ 2.1.
PPB’s use of force policy requires officers to first give a warning and, if the officer
intends to use less lethal force, tell the subject that the officer intends to use it. Id. at ¶ 3. Less
lethal force includes use of weapons like batons, less lethal launchers, and canines. Id. at ¶ 6.4.
Under the policy, officers may use less lethal launchers—referred to as impact munitions in the
policy—to respond to active aggression, to prevent suicide or immediate harm, to avoid using a
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higher level of force, and to prevent escape. Id. at ¶ 6.4.2. Officers may use canines to protect
the officer, the canine, or the community from an immediate threat or to apprehend a subject. Id.
at ¶ 6.4.5.
The policy permits officers to use deadly force “to protect themselves or others from
what they reasonably believe to be an immediate threat of death or serious physical injury.” Id.
at ¶ 8.1. Officers must summon medical services at the earliest available opportunity after using
deadly force and render aid within their training and skills until medical assistance arrives. Id. at
9.1. PPB categorizes deadly force as a “Category I” use of force, which triggers the investigative
response outlined in Directive 1010.10.
Directive 1010.10, entitled “Deadly Force and In-Custody Death Reporting and
Investigation Procedures,” was in effect at the time of the incident. Bell Decl. ¶ 2, ECF 31. The
policy establishes the procedure for investigating uses of deadly force by PPB police officers.
The policy requires an internal affairs investigation of every use of deadly force and requires that
investigation to take place concurrently with the underlying criminal investigation. Id. at ¶ 3.
When the investigator completes the investigation, the investigator presents their findings to the
Police Review Board, which consists of an assistant chief, two citizens, two officers, the
Responsibility Unit Manager, and the Independent Police Review Director. Id. at ¶ 4. The
Police Review Board advises the Chief of Police about whether the involved officer(s) complied
with PPB policy and whether it recommends corrective action or additional officer training. Id.
The Chief of Police then makes the final determination regarding whether the officers’ conduct
was within PPB policy and whether corrective or disciplinary action is necessary. Id. at ¶ 5.
///
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The DOJ Report
In September 2012, the United States Department of Justice (“USDOJ”) found that there
was “reasonable cause to believe that PPB engages in a pattern or practice of unnecessary or
unreasonable force during interactions with people who have or are perceived to have mental
illness” and reported its findings to the City. Volpert Decl. Ex. 7 (“USDOJ Report”) at 1, ECF
59-15. The USDOJ Report described the investigation that USDOJ conducted jointly with the
United States Attorney’s Office for the District of Oregon under the Violent Crime Control and
Law Enforcement Act of 1994 (“the Act”). Id. The Act authorizes the United States to take
legal action against law enforcement agencies when there is reasonable cause to believe that an
agency has engaged in a pattern or practice of constitutional violations. Id. The USDOJ Report
found a “pattern of dangerous uses of force against persons who posed little or no threat and who
could not, as a result of their mental illness, comply with officers’ commands.” Id. at 2. It also
found that “PPB employs practices that escalate the use of force where there were clear earlier
junctures when the force could have been avoided or minimized.” Id. The USDOJ Report
recommended several remedial measures, including additional officer training and policy
revision aimed at (1) reducing the amount of force that PPB officers use during interactions with
individuals in crisis, and (2) streamlining the investigation of uses of force and complaints of
officer misconduct. Id. at 40-41.
EVIDENTIARY OBJECTIONS
Plaintiff objects to the declaration of Joshua Cohen and Exhibits 18-20 to Cohen’s
declaration, which are video files that Cohen prepared from the CityTeam surveillance footage
and the audio file recorded by Officer Fox’s Mobile Audio Video (“MAV”) system. Pl. Resp.
12. Defendants rely on Cohen’s declaration to establish two facts: (1) the speed that Elifritz
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traveled toward officers before officers shot him; and (2) the distance between Elifritz and the
nearest officer before and after officers fired their weapons at him. Cohen Decl. ¶¶ 17-20.
Cohen’s declaration also explains the process he used to combine the video footage from several
camera angles with the MAV system audio recording to create a comprehensive video that
synchronizes the available video and audio files in a single video. Id. at ¶¶ 4-12. Plaintiff
objects to Cohen’s declaration and Exhibits 18-20 under Fed. R. Civ. P. 26(a)(2)(B) and Fed. R.
Evid. 702. Plaintiff does not allege that the videos inaccurately depict the events that occurred at
CityTeam.
A.
Rule 26 Objection
The Court did not impose a deadline for the parties to exchange expert reports and the
other information required by Fed. R. Civ. P. 26(a)(2)(B). Rule 26 provides that unless
otherwise ordered by the Court, the parties must disclose the information listed in Fed. R. Civ. P.
26(a)(2)(B) ninety days before trial. Fed. R. Civ. P. 26(a)(2)(D). When Defendants filed this
motion in August 2019, trial was more than ninety days away, so Defendants were not yet
required to provide the expert disclosures required by Rule 26. Even if Rule 26 required
Defendants to disclose Cohen’s opinions in August 2019, Defendants had provided Plaintiff the
information that Rule 26 requires. Cohen’s declaration describes the documents and videos that
he reviewed, the software he used, and includes a statement of his opinions. Cohen Decl. ¶¶ 422. Attached to Cohen’s declaration was a copy of his curriculum vitae, a list of cases he had
testified in during the previous four years, and a list of presentations he had given. Cohen Decl.
Ex. 17, ECF 32-1. Thus, to the extent that disclosure was required, Cohen’s declaration and the
attachments to it met the requirements of Fed. R. Civ. P. 26(a)(2)(B). In their reply, also filed
more than ninety days before the then-existing trial date, Defendants provided Cohen’s entire
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report. Cohen Decl. II Ex. 36, ECF 64. Plaintiff’s objections under Rule 26 to Cohen’s
declaration and Exhibits 18-20 are overruled.
B.
Rule 702 Objection
Plaintiff argues that for the Court to rely on an expert opinion to decide a motion for
summary judgment, the opinion must be admissible under Fed. R. Evid. 702. Plaintiff argues
that Cohen’s declaration and its attachments do not meet the admissibility requirements of Rule
702 because they do not qualify him as an expert and because Cohen’s opinions are unreliable.
As a result, Plaintiff argues, the Court should not consider Cohen’s opinions about the distance
between the people in the room at different points in time and Elifritz’s speed as he approached
the officers. The Court need not rely on the speed and distance calculations and related opinions
in Cohen’s declaration to resolve this motion, so the Court declines to rule on Plaintiff’s Rule
702 objections.
Exhibits 18-20 to Cohen’s declaration do not contain opinions that are subject to Fed. R.
Evid. 702. It does not require specialized education, experience, or training to use computer
software to line up an audio file and a video file and play them simultaneously, and the Court
does not require the opinion of an expert to determine whether the synchronization of those files
is accurate. For those reasons and the reasons that the Court explained on the record, Plaintiff’s
objections to Exhibits 18-20 under Rule 702 are overruled.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
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admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927-28
(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the
light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d
1108, 1112 (9th Cir. 2011). If the factual context makes the nonmoving party’s claim as to the
existence of a material issue of fact implausible, that party must come forward with more
persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment is improper
where divergent ultimate inferences may reasonably be drawn from the undisputed
facts.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014)
(internal quotation marks omitted); see also Int’l Union of Bricklayers & Allied Craftsman Local
Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985) (“Even
where the basic facts are stipulated, if the parties dispute what inferences should be drawn from
them, summary judgment is improper.”).
///
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DISCUSSION
Defendants move for summary judgment on each of Plaintiff’s claims. For the reasons
explained in this Opinion, the Court grants Defendants’ motion.
I.
Section 1983 Claims Against the Officer Defendants
Plaintiff’s section 1983 claims are based on Fourth Amendment violations stemming
from the officer defendants’ use of deadly force against Elifritz.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law[.]
42 U.S.C. § 1983.
The officer defendants admit that they acted under color of state law and deny that they
violated the Fourth Amendment when they used deadly force against Elifritz. To determine
whether the force used by a police officer was excessive under the Fourth Amendment, the Court
must determine whether the officers’ actions were objectively reasonable under the totality of the
circumstances. Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018); Bryan v.
MacPherson, 630 F.3d 805, 823 (9th Cir. 2010). The analysis must balance the intrusion on an
individual’s rights against the countervailing government interests at stake without considering
the officers’ underlying intent or motivations. Graham v. Connor, 490 U.S. 386, 396-97 (1989).
“The intrusiveness of a seizure by means of deadly force is unmatched” and implicates
the highest level of Fourth Amendment protection. Tennessee v. Garner, 471 U.S. 1, 9 (1985);
Vos v. City of Newport Beach, 892 F.3d 1024, 1031 (9th Cir. 2018). To determine the nature of
the government interests at stake, the Court considers several non-exclusive factors, including:
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(1) whether the suspect posed an immediate threat to anyone, (2) whether the suspect resisted or
attempted to evade arrest, and (3) the severity of the crime at issue. Graham, 490 U.S. at 396;
Vos, 892 F.3d at 1031. Whether a use of force was reasonable depends on the unique facts of
each case and “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.
Only information known to an officer at the time of the officer’s conduct is relevant to the
analysis. Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546-47 (2017); Glenn v. Wash. Cty.,
673 F.3d 864, 873 n. 8 (9th Cir. 2011).
The most important Graham factor is whether the suspect posed an immediate threat to
anyone’s safety. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). The use of
deadly force is reasonable only if a suspect “poses a significant threat of death or serious
physical injury to the officer or others.” Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th
Cir. 2014) (internal quotation marks omitted). Other relevant factors include “the availability of
less intrusive alternatives to the force employed, whether proper warnings were given and
whether it should have been apparent to officers that the person they used force against was
emotionally disturbed.” S.B. v. Cty. of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017) (quoting
Glenn, 673 F.3d at 872).
Officers are not “required to use the least intrusive degree of force possible” as long as
the degree of force used is reasonable. Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir.
1994). Reasonableness is “judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Plaintiff bears the
burden of proving that the force used was unreasonable. Arpin v. Santa Clara Transp. Agency,
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261 F.3d 912, 922 (9th Cir. 2001). Summary judgment “should be granted ‘sparingly’ in
excessive force cases, particularly ‘where the only witness other than the officers was killed
during the encounter.’” S.B., 864 F.3d at 1014 (quoting Gonzalez, 747 F.3d at 795). Whether
the force used was objectively reasonable under the Fourth Amendment is a question of law.
Scott v. Harris, 550 U.S. 372, 381 n. 8 (2007).
A.
Use of Less Lethal Force
Officers Bailey and Damerville used only less lethal force against Elifritz. They did not
fire any weapons during the encounter other than their less lethal launchers. Plaintiff conceded
both in her response to Defendants’ motion and at oral argument that her claim is based solely on
the officer defendants’ use of deadly force against Elifritz and that her claims against Officers
Bailey and Damerville should be dismissed. The Court thus dismisses Plaintiff’s claims against
Defendants Bailey and Damerville with prejudice.
B.
Use of Deadly Force
Whether the use of deadly force was reasonable depends primarily on whether Elifritz
posed an immediate threat of serious injury or death when the officers shot him. The Court finds
that Elifritz posed an immediate threat of serious injury or death to the officer defendants and
that the officer defendants did not violate the Fourth Amendment when they used deadly force
against Elifritz in response to that threat.
i.
Immediate threat
Defendants argue that Elifritz posed an immediate threat of serious injury or death to the
officers when they used deadly force against him because he was running toward the officers
with a knife. Plaintiff argues that, despite the existence of a video, a question of fact remains
about whether the threat posed by Elifritz was immediate. Specifically, Plaintiff argues that the
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threat was not immediate because of the distance between Elifritz and the officers and because
there were “barriers in the form of furniture, walls and pillars” in the space between Elifritz and
the officers. Pl. Resp. 18. Plaintiff also points out that Elifritz was not within arm’s reach of
anyone and was on the other side of the short wall from the bystanders when the officer
defendants shot him, so he could not have reached out and injured anyone with the knife. Id.
The threat was not immediate, according to Plaintiff, because the officers had less lethal
launchers, TASERS, and a canine and had the “ability to disengage, withdraw and move around
the room” to de-escalate the situation using the techniques described in PPB’s use of force
policy. Id. Finally, Plaintiff argues that the officers “created the conditions which caused Mr.
Elifritz to move toward them, by provoking him with ineffectual use of less-than-lethal rounds
and by failing to proactively de-escalate the situation.” Pl. Resp. 10.
Possession of a dangerous weapon alone does not automatically justify the use of deadly
force, but threatening behavior coupled with the possession of a dangerous weapon can create an
immediate threat of serious injury or death that justifies the use of deadly force. Glenn, 673 F.3d
at 873; Long v. City and Cty. of Honolulu, 511 F.3d 901, 905 (9th Cir. 2007) (suspect who raised
a rifle and shouted a threat posed immediate threat of serious injury or death); Blanford v.
Sacramento Cty., 406 F.3d 1110, 1116 (9th Cir. 2005) (suspect who ignored officers’ commands,
raised a two and a half foot sword, growled, and headed for a house posed an immediate threat of
serious injury or death); George v. Morris, 736 F.3d 829, 838 (9th Cir. 2003) (When a person is
armed, “a furtive movement, harrowing gesture, or serious verbal threat might create an
immediate threat.”); Scott v. Henrich, 39 F.3d 912, 914-15 (9th Cir. 1994) (suspect who opened a
door and pointed a long gun at officers posed an immediate threat of serious injury or death).
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The surveillance video shows the basic facts, which are not in dispute.9 The officer defendants
here were not confronted with a person who possessed a dangerous weapon in a non-threatening
manner. When the officer defendants confronted Elifritz holding a knife, a bystander had told
them that he had tried to stab someone with the knife, he was inside a room with other people,
and he was behaving erratically and cutting himself with the knife. Officers saw him try to grab
a bystander while holding the knife, and then he charged at officers with the knife. Thus,
Elifritz’s threatening behavior while he held the knife created a sufficient threat for the officers
to respond with deadly force.
Although some bystanders had been able to hide in other rooms or leave CityTeam,
relocating to another room of the shelter did not eliminate the threat to those bystanders. In
addition, there were still several bystanders in the left side of the room with Elifritz, and some
bystanders remained on the right side of the room near where Elifritz stood behind the pillar.10
When officers shot him, Elifritz had closed some of the distance between himself and the officers
by running up the aisle between the rows of chairs in the right side of the room, and he was only
seconds short of reaching the officers with his knife when they fired the first shot. Any
9
Video footage does not eliminate all questions of fact. See Scott, 550 U.S. at 380-81 (On
summary judgment, when the facts are captured on video, courts should view the facts “in the
light depicted in the videotape.”); Vos, 892 F.3d at 1028 (“The mere existence of video footage
of the incident does not foreclose a genuine factual dispute as to the reasonable inferences that
can be drawn from that footage.”).
10
The surveillance video shows that one bystander had taken cover behind the piano on the right
side of the short wall dividing the back of the room. In addition, at least one bystander entered a
room through a door on the right side of the main room located just a few feet away from where
Elifritz stood behind the pillar before he charged the officers. Combined Video 3:33-3:48
(shelter rear camera).
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reasonable officer would have concluded under those circumstances that Elifritz posed an
immediate threat of serious injury or death to the officers when they shot him.11
Plaintiff’s argument that Elifritz did not create an immediate threat of serious injury or
death fails to account for the fact that Elifritz was running toward the officers with the knife
when they shot him. Had the officers shot Elifritz when he stood behind the pillar, the Court
may be inclined to agree that Elifritz did not pose an immediate threat of serious injury or death
to the officers and bystanders. But circumstances changed when Elifritz ran toward the officers
with the knife. At that point, Elifritz was closing the distance between himself and the officers
quickly, and except for a few errant objects and chairs that Elifritz moved aside with ease,
nothing stood between Elifritz and the officers. Those circumstances elevated the threat to an
immediate threat of serious injury or death to the officers. See City and Cty. of San Francisco v.
Sheehan, 575 U.S. 600, 135 S. Ct. 1765, 1775 (2015) (“it is reasonable for police to move
quickly if delay ‘would gravely endanger their lives or the lives of others.’”) (quoting Warden,
Md. Peniten. v. Hayden, 387 U.S. 294, 298-99 (1967)).
Contrary to Plaintiff’s assertion, there is no evidence in the record that any non-lethal
methods would have been effective in stopping Elifritz’s charge. Two police officers each had
shot several rounds from less lethal launchers at Elifritz with no appreciable effect before he
charged the officers. Other officers considered using a TASER and a police canine but decided
that those methods would have been ineffective or would have risked injuring bystanders.12
11
That is exactly what the officers who confronted Elifritz concluded. Each of the officers who
used deadly force testified that they fired their weapons at Elifritz because they thought that
Elifritz would try to stab an officer with the knife. Nutting Dep. 72:1-16; Martiniuc Dep. 29:1222; Phifer Dep. 68:2-3; Polas Dep. 33:17-18; Fender Dep. 60:3-5; Sieczkowski Decl. ¶¶ 15-16;
Volpert Decl. Ex. 4 at 4-5.
12
Officer Gore decided not to use his canine because he worried that with so many people in the
room, the canine might bite the wrong person. Gore Decl. ¶ 6. Officer Gore considered using a
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Even if other options for responding to the threat posed by Elifritz were possible, that face alone
does not make the officer defendants’ use of deadly force unreasonable. When Elifritz started
running toward them with the knife, the Fourth Amendment required only that the officer
defendants’ use of deadly force be objectively reasonable under a totality of the circumstances.
The Fourth Amendment did not require the officer defendants to retreat, try to use less than
lethal launchers again, protect themselves with chairs, or use any of the other methods argued by
Plaintiff. See Forrester, 25 F.3d at 807 (Officers are not “required to use the least intrusive
degree of force possible.”); Graham, 490 U.S. at 396-97 (the analysis must consider that officers
are forced to make decisions in “tense, uncertain, and rapidly evolving” situations).
Plaintiff’s argument that Elifritz did not pose an immediate threat of serious injury or
death relies heavily on Glenn v. Wash. Cty. In Glenn, police officers responded to a home where
an intoxicated teenager armed with a pocketknife had threatened to kill himself. 673 F.3d at 867.
The teenager’s parents and two of his friends were standing next to the teenager when officers
arrived and told the officers that the teenager had not threatened anyone else. Id. at 868. The
officers instructed the teenager’s parents to go into the house and told his friends to get behind
the officers. Id. at 873-74. The teenager ignored the officers’ commands to drop the knife, but
otherwise stood still and did not threaten anyone. Id. at 873. While the teenager stood there,
officers deployed beanbag rounds at him to try to get him to drop the knife. Id. at 873-74. At
that point, the teenager began to run away from the officers toward the house, and the officers
shot him. Id. at 874. The court held that a question of fact existed as to whether the teenager
TASER, but he thought that it would have been ineffective because Elifritz was too far away. Id.
at ¶ 7. Officer Bailey also considered using a TASER, but he did not believe that it was the
appropriate tool under the circumstances. Bailey Dep. 29:20-30:7. Officer Phifer agreed that
using a TASER would not have been feasible under the circumstances. Phifer Dep. 32:4-9.
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posed an immediate threat to anyone when the officers deployed beanbag rounds at him because
“[n]o new action by [the teenager] precipitated the use of less-lethal force.” Id. In considering
the other Graham factors, the court noted that police were called to help the teenager, not to
respond to any crime committed by him, and he was not actively trying to flee or evade arrest
when officers deployed beanbag rounds at him, even though he refused to comply with the
officers’ commands. Id. at 874-75.
The facts of this case differ from the facts of Glenn in significant respects. Rather than
responding to a call to help Elifritz, the officer defendants were responding to serious crimes that
he had committed, including the carjacking and road rage incidents earlier in the day and the
bystander’s report that Elifritz had tried to stab someone. No similar facts were present in Glenn.
After officers responded, the teenager in Glenn had stood still and threatened no one but himself
with the knife. In contrast, based on the bystander’s report, the officer defendants reasonably
believed that Elifritz had tried to stab people, saw Elifritz try to grab a bystander in the room
while holding the knife, and Elifritz then ran toward officers with the knife before the officers
used deadly force against him. Unlike the facts of Glenn, there was not an officer between
Elifritz and all the bystanders, and the bystanders appeared to feel threatened by Elifritz and tried
to get away from him. Elifritz actively resisted arrest by refusing to comply with officers’
commands and running toward them with a knife. Consequently, Glenn does not establish that
the officer defendants’ use of deadly force was unreasonable under the facts of this case.
Plaintiff also relies on Vos, which suffers from similar critical factual distinctions. In
Vos, police responded to a call that a schizophrenic man had become agitated in a 7-Eleven store.
892 F.3d at 1028. Someone in the store had reported that Vos had been yelling, held a pair of
scissors, and the person said that there were still people in the store. Id. at 1029. The officers
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evacuated the store and learned that a clerk had received a small cut on the clerk’s hand when the
clerk tried to disarm Vos. The officers positioned two police cars outside the convenience store
entrance in a “v” formation and used them for cover. Id. The officers had less lethal launchers, a
canine, and firearms at the scene. Id. They propped open the doors of the convenience store so
that they could communicate with Vos, who was alone in a back room of the store, but they did
not tell him to come out or otherwise try to communicate with him. Id. The officers knew that
Vos was agitated and may have been mentally unstable or under the influence of drugs. Id.
About twenty minutes after officers arrived, Vos came out of the back room, walked to the front
of the store holding an object in his hand over his head, and started running toward the open
doors. Id. He was about thirty feet from officers at that time. Id. Officers twice told him to
drop the weapon, but he kept running toward the officers with the object overhead. Id. One
officer shouted, “shoot him,” and the officer with a less lethal launcher fired at Vos, along with
two other officers who fired their firearms at him. Id.
Analyzing the government interests under Graham, the court noted that officers had been
called to address Vos’s erratic behavior, not to respond to a crime, and that Vos had little
opportunity to flee. Id. at 1031. The court also noted that he was not resisting arrest while
officers staged outside the store because officers did not try to communicate with him or give
him any commands. Id. The court found that a question of fact remained about whether Vos
was an immediate threat to the officers because: (1) officers had the front door of the store
surrounded and had taken cover behind their police vehicles; (2) officers outnumbered Vos eight
to one; (3) officers saw something in Vos’s hand, but they knew it was not a gun; (4) officers had
less lethal launchers available to stop Vos from charging. Id. at 1032.
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The court in Vos distinguished the case from Lal v. California, in which it had found the
use of deadly force reasonable where Lal, who was “intent on ‘suicide by cop,’” had “forced the
issue by advancing on the officers” with a football-sized rock. Id. The court in Lal held that the
officers did not have to endanger their own lives by allowing Lal to continue to advance on them.
Lal v. California, 746 F.3d 1112, 1114 (9th Cir. 2014). The Vos court distinguished Lal for three
reasons: (1) the officers who confronted Lal did not have less lethal means available, and those
who confronted Vos did; (2) Lal had committed serious crimes that showed that he was a danger
to others, and Vos had not; and (3) Vos was surrounded, and Lal was not. Vos, 892 F.3d at 1033.
The Vos court also emphasized that there was no evidence that less lethal force would not have
subdued Vos. Id.
Contrary to Plaintiff’s assertion, the facts here distinguishable from those in Vos for the
same reasons that the facts of Vos are distinguishable from Lal. In Vos, it was undisputed that
officers had less lethal force available, and there was no evidence to suggest that it would not
have worked. Id. at 1034. Here, the officer defendants had used less lethal force, and they knew
that it would be ineffective against Elifritz. Elifritz had a knife, was close to bystanders, ignored
officers’ commands, and officers did not have a formation of vehicles for cover to protect
themselves from Elifritz’s charge. Under those circumstances, any reasonable officer would
have believed that Elifritz posed an immediate threat of serious injury or death to the officers.
ii.
Severity of the crime
Before officers confronted Elifritz in CityTeam, he had committed a string of serious
offenses. Earlier in the day, he had pulled a woman from her car, stolen the car, driven it
recklessly, and endangered two other people with the car. Those crimes amount to multiple
felonies under Oregon law. See, e.g., Or. Rev. Stat. § (“O.R.S.”) 164.055 (first-degree theft);
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O.R.S. 163.165 (third-degree assault). Elifritz then crashed the stolen vehicle, fled the scene,
and stood outside a convenience store with a knife. When officers located Elifritz, someone told
the officers that Elifritz was trying to stab people. Those are serious crimes that gave the officer
defendants an objectively reasonable belief that Elifritz would endanger other people in the room
and provided a basis for the officer defendants to use force against him. Plaintiff does not argue
that the crimes that Elifritz committed earlier in the day were not severe.
iii.
Resist or attempt to evade arrest
The final Graham factor, whether Elifritz had resisted or attempted to evade arrest, also
supports officers’ use of deadly force. Plaintiff does not argue that Elifritz was not trying to
evade or resist arrest when the officer defendants shot him. To determine whether an officer’s
use of deadly force was reasonable, the Court considers the degree of resistance or attempt to
evade arrest in relation to the force used. For example, the Ninth Circuit has suggested that it
may not be reasonable to use a high degree of force in response to passive forms of resistance
such as refusing to obey officers’ commands. Bryan, 630 F.3d at 830 (although “passive
resistance” can support the use of force, “the level of force an individual’s resistance will support
is dependent on the factual circumstances underlying that resistance.”); Smith v. City of Hemet,
394 F.3d 689, 703 (9th Cir. 2005) (suspect’s refusal to obey commands and brief period of
physical resistance were not “particularly bellicose” because suspect did not try to flee or
physically attack officers). When the degree of resistance escalates to the level of attacking an
officer, a high degree of force is reasonable. Sheehan, 135 S. Ct. at 1775 (holding that the use of
deadly force was reasonable when individual came within a few feet of an officer with a knife);
Garner, 471 U.S. at 11 (officer may use deadly force to prevent escape if the suspect threatens
the officer with a weapon.).
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Elifritz was uncooperative when the officers confronted him at CityTeam. When the
officers arrived, Elifritz failed to follow their commands or submit to arrest. Officers made
several unsuccessful attempts to gain his compliance with their commands and less intrusive
methods of force, but Elifritz attacked them with a knife. The high degree of resistance by
Elifritz and the threat he posed to officers thus supports the officer defendants’ use of deadly
force.
iv.
Whether a lesser degree of force was available
When Elifritz did not comply with officers’ commands to drop the knife, the officers
escalated the level of force they used against Elifritz from verbal to physical force by shooting
rounds from less lethal launchers at him. Officer Damerville testified that he used less lethal
force, in part, to avoid using a greater degree of force. Damerville Dep. 37:3-14. Several
officers considered using a TASER but thought that it would not be feasible under the
circumstances. Gore Decl. ¶ 7; Bailey Dep. 29:20-30:7; Phifer Dep. 32:4-9. Officer Gore, the
K-9 unit on scene, considered whether using the canine to arrest Elifritz would have been
reasonable. Gore Decl. ¶¶ 5-6. At that time, there were several bystanders in the room with
Elifritz, and some bystanders were running from the room. Under those cirumstances, Officer
Gore concluded that the risk that the canine would make a mistake and attack a bystander instead
of Elifritz was too high to justify releasing the canine. Id. at ¶ 6.
The evidence shows that the officers used force in graduating degrees, each time
considering whether less force would have been adequate or effective under the circumstances.
They tried to subdue Plaintiff with less lethal launchers, but the less lethal launchers were
ineffective. Plaintiff has offered no evidence to create a question of fact concerning whether a
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lesser degree of force would have been reasonable under the circumstances. Like the other
Graham factors, this factor also supports officers’ use of deadly force under the circumstances.
v.
Warnings
One factor a court may consider when determining whether the force used was
reasonable under the Fourth Amendment is whether officers warned the subject before using
force. Deorle v. Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001) (“[W]arnings should be given,
when feasible, if the use of force may result in serious injury, and . . . the failure to do so is a
factor to be considered in applying the Graham balancing test.”). Here, between repeated
commands that instructed Elifritz to drop the knife and get on the floor, officers warned Elifritz
that if he did not drop the knife, he was “going to get bean bagged.” Combined Video 2:33.
They also warned Elifritz: “If you come at everyone, you get shot. Do you want to get shot?”
Id. at 2:35-2:39. Elifritz received those warnings about a minute and a half before officers shot
him. In the interim, officers continued to tell him to “drop the weapon” and “drop the knife” and
shot less lethal rounds at him. Plaintiff does not argue that the warnings the officers gave to
Elifritz were inadequate.
In Deorle, the Ninth Circuit held that police officers violated the Fourth Amendment
when they shot a man who was “walk[ing] in the direction of an officer at a steady gait with a
can or bottle in his hand.” Id. The court held that deadly force was unreasonable under the
circumstances because the officer did not order the man to stop, tell the man to drop the bottle, or
warn the man that the officer would shoot the man if he did not stop, even though there “was
ample time to give that order or warning and no reason whatsoever not to do so.” Id.
Here, officers warned Elifritz several times that they would use less lethal launchers
against him if he did not drop the knife. They also warned Elifritz once that he would “get shot”
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if he “c[a]me at everyone.” To the extent that additional warnings were desirable, it was not
feasible for the officer defendants to warn Elifritz a second time before using deadly force
because Elifritz was running toward them with a knife and would have reached them quickly if
officers did not immediately stop him. Accordingly, this factor does not alter the Court’s
conclusion that it was reasonable for officers to use deadly force against Elifritz.
vi.
Emotional disturbance
Plaintiff essentially argues that a different reasonableness standard should apply when an
officer uses force against a person experiencing a mental health crisis. Whether a person suffers
from emotional disturbance is relevant to the Fourth Amendment analysis, but it is not
dispositive. Glenn, 673 F.3d at 876; Deorle, 272 F.3d at 1283 (“[W]e emphasize that where it is
or should be apparent to the officers that the individual involved is emotionally disturbed, that is
a factor that must be considered in determining, under Graham, the reasonableness of the force
employed.”). However, the Ninth Circuit has “refused to create two tracks of excessive force
analysis, one for the mentally ill and one for serious criminals.” Bryan, 630 F.3d at 829; Deorle,
272 F.3d at 1283. When police use deadly force against a person who has committed serious
crimes and presents an immediate threat of serious injury or death to others, the presence of
emotional disturbance does not reduce the governmental interest in using deadly force. See
Sheehan, 135 S. Ct. at 1775; Lal, 746 F.3d at 1117-18 (“[t]he fact that Lal was intent on ‘suicide
by cop’ did not mean that the officers had to endanger their own lives by allowing Lal to
continue in his dangerous course of conduct.”).
In Sheehan, officers responded to a group home to transport a mentally ill woman, who
had threatened staff at the group home with a knife, to a mental health treatment facility. 135 S.
Ct. at 1770. When the officers opened the door to her room, the woman, who was alone in her
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room, threatened the officers with the knife. Id. The officers used pepper spray to prevent the
woman from harming them as they entered her room, but the pepper spray was not effective. Id.
at 1771. As the officers sprayed pepper at her face, the woman continued to move toward the
officers with the knife, so they shot her when she was a few feet away. Id. The Supreme Court
held that the officers’ use of deadly force was reasonable under those circumstances. Id.
(“Nothing in the Fourth Amendment barred [the officers] from protecting themselves[.]”).
The facts here are not significantly different from the facts of Sheehan. Here, officers
confronted Elifritz, who they believed may have been experiencing a mental health crisis, and
they tried to use a lower degree of force unsuccessfully until Elifritz charged them with a knife.
Officers shot Elifritz when he was within seconds of reaching the officers with the knife. Under
those circumstances, the officer defendants’ use of force was reasonable, even if Elifritz was
experiencing a mental health crisis. Id.
vii.
Provocation
Plaintiff argues that officers provoked Elifritz’s charge by shooting less lethal rounds at
him. According to Plaintiff, when the officers shot Elifritz with less lethal rounds, they “created
the conditions which caused Mr. Elifritz to move toward them by provoking him with [the]
ineffectual use of less-than-lethal rounds and by failing to proactively de-escalate the situation.”
Pl. Resp. 10. Plaintiff did not develop that argument in her response to Defendants’ motion. The
Supreme Court has rejected the theory that police conduct that “created a situation which led to
the use of force” can form the basis of an excessive force claim when the resulting use of force
was reasonable under Graham. Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 1548 (2017)
(rejecting provocation theory and holding that a reasonable use of force did not give rise to an
excessive force claim even if it resulted from a warrantless search because courts must
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independently analyze each Fourth Amendment violation under Graham). Thus, Plaintiff’s
provocation argument fails to establish that the officer defendants’ use of force was excessive
under the Fourth Amendment.
viii.
PPB De-escalation Policy
Rather than use less lethal launchers, Plaintiff argues, the officer defendants should have
used the de-escalation techniques described in PPB’s use of force policy. Violation of police
policy does not establish section 1983 liability unless the violation of the policy also violated a
federal constitutional right. Cf. Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (section
1983 liability does not arise from violating prison policy; the plaintiff must prove that the prison
official violated a constitutional right); Manzanillo v. Jacquez, 555 F. App’x 651, 653 (9th Cir.
2014) (mem.) (affirming summary judgment on the plaintiff’s claim that the defendants violated
prison policy when violation of policy did not violate a federal right). Still, police policy may be
relevant to determining whether a use of force was excessive, but “only when one of [the
policy’s] purposes is to protect the person against whom force is used.” Scott, 39 F.3d at 915-16.
If the policy is designed only to protect police officers or the public, it is not relevant to the
analysis. Id. at 916 (A defendant “can’t complain about the violation of a rule not intended for
his benefit.”).
The PPB use of force policy requires officers to use de-escalation techniques “when time
and circumstances reasonably permit.” Volpert Decl. Ex. 3 at ¶ 1.1. It provides that “[m]embers
shall take proactive steps to eliminate the immediacy of the threat, establish control and
minimize the need for force.” Id. The policy lists the following de-escalation methods:
1) using verbal techniques to calm an agitated subject and promote rational decision
making; 2) allowing the subject appropriate time to respond to direction; 3)
communicating with the subject from a safe position using verbal persuasion,
advisements, or warnings; 4) decreasing exposure to a potential threat by using
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distance, cover, or concealment; 5) placing barriers between an uncooperative
subject and an officer; 6) ensuring there are an appropriate number of members on
scene; 7) containing a threat; 8) moving to a safer position; and 9) avoiding physical
confrontation, unless immediately necessary.
Id. at ¶ 1.1.1. The policy provides that “when practical and appropriate,” officers should call
specialized units or consultants to assist with de-escalating the situation and should “establish
and maintain [one-on-one] communication with the subject and avoid giving simultaneous
directions or having multiple members verbally engaging the subject to avoid confusion.” Id. at
¶¶ 1.1.2-1.1.3. In addition, officers should “consider whether a subject’s lack of compliance is a
deliberate attempt to resist or an inability to comply based on other factors, including but not
limited to: 1) medical conditions; 2) mental impairment; 3) developmental disability; 4) physical
limitation; 5) language barrier; 6) drug or alcohol impairment; and 7) mental health crisis.” Id. at
¶ 1.2.
The policy’s stated purpose of “taking steps to minimize the use of force” shows that at
least one purpose of the policy is to protect members of the public from excessive force, so it is
relevant to the Court’s analysis. See Scott, 39 F.3d at 915-16. However, even if the officer
defendants violated a PPB policy during their encounter with Elifritz, which Plaintiff has not
established,13 any PPB policy violation that may have occurred when the officer defendants shot
Elifritz does not establish a Fourth Amendment violation under the facts of this case. There is no
evidence, beyond Plaintiff’s unsupported argument, that verbal techniques would have calmed
The policies Plaintiff relies on include qualifiers such as “when time and circumstances
reasonably permit” and “when practical and appropriate” to clarify when officers should use deescalation techniques. Plaintiff has not tried to establish that any of the techniques would have
been “practical and appropriate” under the circumstances present here, where Elifritz was
running toward officers with a knife. In addition, PPB’s use of force policy does not require
officers to use de-escalation techniques in response to an imminent threat of serious injury or
death: “[N]othing in this policy requires a member to retreat or be exposed to possible physical
injury before applying reasonable force.” Volpert Decl. Ex. 3 at 5.
13
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Elifritz, caused him to behave rationally or cooperate, or that using distance, cover, barriers, or
other methods to isolate Elifritz were viable options. See Lal, 746 F.3d at 1117 (rejecting
argument that officers should have used methods to de-escalate the situation when “Lal forced
the issue by advancing on the officers” and threatened them with a rock from seven or eight feet
away). Officers had just over two minutes from the time that bystanders alerted them to
Elifritz’s presence inside CityTeam until he charged the officers with the knife to assess the
scene, isolate him from the bystanders, and develop a plan. When Elifritz charged the officers,
they were still trying to isolate him from the bystanders. Under those circumstances, the officer
defendants were not required to respond to the imminent threat posed by Elifritz with verbal
techniques, cover, or retreat. See Sheehan, 135 S. Ct. at 1775. As a result, even if a violation of
PPB policy occurred, the policy violation does not establish that the officer defendants
committed a constitutional violation when they shot Elifritz.
ix.
Conclusion
Viewing the facts in the light depicted in the videotape and drawing all reasonable
inferences in Plaintiff’s favor, there is no genuine dispute of fact that the officer defendants’ use
of deadly force against Elifritz was reasonable under the circumstances. Elifritz had committed
serious crimes, did not respond to officers’ commands, behaved erratically, did not respond to
the use of less lethal force, and attacked the officers with a knife minutes after a bystander told
the officers that Elifritz had tried to stab people. As a result, Elifritz posed an immediate threat
of serious injury or death to the officers, and it was reasonable for the officers to respond with
deadly force, even if Elifritz was experiencing a mental health crisis. No reasonable juror could
conclude otherwise from the evidence in the record. The officer defendants did not violate the
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Fourth Amendment when they shot Elifritz, so they are entitled to summary judgment on
Plaintiff’s section 1983 claim.
II.
Qualified Immunity
The officer defendants are also entitled to summary judgment because they are entitled to
qualified immunity. “Qualified immunity attaches when an official’s conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (alterations and internal
quotation marks omitted). “Because the focus is on whether the officer had fair notice that her
conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the
conduct.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam).
Although existing cases need not be “directly on point for a right to be clearly
established, existing precedent must have placed the statutory or constitutional question beyond
debate.” White, 137 S. Ct. at 551 (internal quotation marks omitted). Qualified “immunity
protects all but the plainly incompetent or those who knowingly violate the law.” Id. (internal
quotation marks omitted). The Supreme Court has “repeatedly told courts . . . not to define
clearly established law at a high level of generality.” Sheehan, 135 S. Ct. at 1775-76 (quotation
marks omitted); see also Brosseau, 543 U.S. at 198-99. “General excessive force principles, as
set forth in Graham and Garner, are ‘not inherently incapable of giving fair and clear warning to
officers,’ but they ‘do not by themselves create clearly established law outside [of] an obvious
case.’” S.B., 864 F.3d at 1015 (quoting White, 137 S. Ct. at 551).
“[S]pecificity is especially important in the Fourth Amendment context, where the Court
has recognized that it is sometimes difficult for an officer to determine how the relevant legal
doctrine, here excessive force, will apply to the factual situation the officer confronts.” Mullenix
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v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation marks omitted). Use of
excessive force is an area of the law “in which the result depends very much on the facts of each
case,” and thus police officers are entitled to qualified immunity unless existing precedent
“squarely governs” the specific facts at issue. Id. at 309 (internal quotation marks omitted and
emphasis deleted). Cases involving similar facts can help move a case beyond the otherwise
“hazy border between excessive and acceptable force” and provide notice to a police officer that
a specific use of force is unlawful. Id. at 312 (internal quotation marks omitted).
“When constitutional guidelines seem inapplicable or too remote, it is insufficient for a
court simply to state that an officer may not use unreasonable and excessive force, deny qualified
immunity, and then remit the case for a trial on the question of reasonableness.” Kisela v.
Hughes, 138 S. Ct. 1148, 1153 (2018). An officer “cannot be said to have violated a clearly
established right unless the right’s contours were sufficiently definite that any reasonable official
in the defendant’s shoes would have understood that he was violating it.” Plumhoff v.
Rickard, 572 U.S. 765, 778-79 (2014).
As discussed in Part I above, the officer defendants did not violate Elifritz’s Fourth
Amendment rights when they used deadly force against him. As a result, the officer defendants
are entitled to qualified immunity. Even if the officers’ use of deadly force had violated the
Fourth Amendment, however, the officer defendants still would be entitled to qualified immunity
because no precedent squarely governs the facts they faced and, as a result, the right was not
clearly established. The officer defendants faced a man who had carjacked a vehicle, engaged in
aggressive road-rage style driving, crashed the vehicle he stole, and had, according to a
bystander, tried to stab people inside the shelter. The officer defendants also personally observed
Elifritz behave erratically while wielding a knife that he had used to cut himself inside the
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crowded shelter. In the two minutes that officers had to try to arrest Elifritz before he charged
them, Elifritz tried to grab a bystander, creating the appearance that he was trying to take a
hostage, and did not respond to officers’ commands or their use of less lethal launchers. Against
that backdrop, and with several bystanders in the room, the officer defendants had to make a
split-second decision about what to do when Elifritz began to run toward them with the knife.
No Fourth Amendment case “squarely governs” those facts or establishes that only an
incompetent officer or one who knowingly violated Elifritz’s Fourth Amendment rights would
have used deadly force under the circumstances.
In Kisela v. Hughes, police had received reports that a woman was hacking a tree in a
neighborhood with a kitchen knife. 138 S. Ct. at 1151. When police responded to the area, a
bystander pointed out the direction that the woman had walked away and described the woman
to the officers. Id. A few minutes later, police noticed a woman standing next to a car parked in
the driveway of a home surrounded by a locked chain link fence. Id. A second woman who
matched the subject’s description walked out of the home holding a knife and stopped within six
feet of the woman standing next to the car. Id. The three officers drew their weapons and
ordered her to drop the knife. Id. The woman appeared to be calm but ignored their commands.
Id. An officer then shot the woman holding the knife because he feared for the safety of the
woman standing next to the car. Id. The Supreme Court held that those circumstances were “far
from an obvious case in which any competent officer would have known that shooting [the
woman] to protect [the woman standing next to the car] would violate the Fourth Amendment.”
Id. at 1153.
Similarly, in Reese v. Cty. of Sacramento, the Ninth Circuit held that officers who shot a
man in his apartment did not violate any clearly established right. 888 F.3d 1030, 1038 (9th Cir.
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2018). The officers had received a report that a man had fired a weapon outside his apartment
and was inside his apartment with a knife. Id. at 1035. When officers knocked on his apartment
door, the man flung open the door with a knife raised. Id. One of the officers fired a rifle at the
man, and the man backed into the apartment out of the officers’ sight. Id. Another officer, who
thought that the round from the rifle had hit the man, went inside and found the man still
standing, which surprised the officer. Id. The officer could not see the man’s hands, so he fired
his handgun at the man’s chest several times from about three away. Id. The Court held that the
officers’ conduct did not violate any clearly established right. Id. at 1039-40.
The facts here made it even less clear to the officer defendants that they would violate a
clearly established constitutional right when they used deadly force against Elifritz. The
Supreme Court in Kisela and the Ninth Circuit in Reese held that officers were entitled to
qualified immunity for their use of deadly force even though the subjects in those cases were not
attacking the officers or bystanders when the officers used deadly force. Elifritz was running
toward officers with a knife when they shot him. Under those circumstances, the Court cannot
conclude that only an officer who is “plainly incompetent or who knowingly violates the law”
would have used deadly force against Elifritz or that it was beyond debate that using deadly force
would violate Elifritz’s Fourth Amendment rights. Mullenix, 136 S. Ct. at 310 (internal
quotation marks and brackets omitted); White, 137 S. Ct. at 551. As a result, the officer
defendants did not violate a clearly established right by using deadly force against Elifritz, and
they are entitled to qualified immunity.
III.
Monell Claim
To prevail on a municipal liability claim under section 1983, Plaintiff must show that a
municipal custom or policy caused the violation of Elifritz’s constitutional rights. Monell v.
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Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978) (holding that a municipality
is a “person” subject to damages liability under section 1983 when it causes a constitutional tort
through “a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers”). If no constitutional violation occurred, then a municipal
liability claim fails under section 1983. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)
(a Monell claim cannot survive without an underlying constitutional violation).
Thus, to establish Monell liability, a plaintiff must show a constitutional violation by (1)
an employee acting under an expressly adopted official policy; (2) an employee acting pursuant
to a longstanding practice or custom; or (3) an employee acting as a final policymaker. Webb v.
Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003). To establish Monell liability caused by a
government policy or longstanding practice or custom, the plaintiff must show that (1) the
plaintiff was deprived of a constitutional right; (2) the municipality had a policy, longstanding
practice, or custom; (3) the policy, practice, or custom amounted to “deliberate indifference to
the plaintiff’s constitutional right;” and (4) the policy, practice, or custom was “the moving force
behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir.
2011) (internal quotations omitted).
Monell liability can also arise from a failure to train, supervise, or discipline that amounts
to a deliberate indifference to individuals’ constitutional rights. Horton v. City of Santa Maria,
915 F.3d 592, 602-03 (9th Cir. 2019). Deliberate indifference is “a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious consequence of his
action.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997). To show
deliberate indifference, Plaintiff must demonstrate that the need “‘for more or different’ action
‘is so obvious, and the inadequacy [of existing practice] so likely to result in the violation of
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constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.” Hyun Ju Park v. City and Cty. of Honolulu, 952 F.3d 1136,
1141 (9th Cir. 2020) (quoting Harris, 489 U.S. at 390 n. 10) (brackets in original).
The threshold question in determining whether Plaintiff can establish Monell liability is
whether a constitutional violation occurred. As explained in Part I, above, the officer defendants
did not violate the Fourth Amendment when they used deadly force against Elifritz. Because no
constitutional violation occurred, Plaintiff’s Monell claim must be dismissed as a matter of law.
Heller, 475 U.S. at 799. However, even if the officer defendants had violated Elifritz’s Fourth
Amendment rights, Plaintiff’s Monell claim fails on both her longstanding practice or custom
theory and her failure to train, supervise, and discipline theory of municipal liability. Plaintiff
has produced insufficient evidence to create a question of fact about whether any such
longstanding practice or custom exists and whether PPB was deliberately indifferent in its failure
to train, supervise, and discipline officers who used excessive force. As a result, the Court grants
summary judgment to the City on Plaintiff’s Monell claim.
A.
Longstanding Practice or Custom
Plaintiff argues that PPB has longstanding practices of (1) using excessive force against
people experiencing a mental health crisis; (2) observing a police code of silence; and (3)
encouraging its officers to use excessive force. To succeed on a Monell claim based on a
longstanding custom or practice, the custom or practice “must be so ‘persistent and widespread’
that it constitutes a ‘permanent and well settled city policy.’” Trevino v. Gates, 99 F.3d 911, 919
(9th Cir. 1996) (quoting Monell, 436 U.S. at 691).
i.
Using excessive force against people experiencing a mental health crisis
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Plaintiff argues that the USDOJ Report established the longstanding practice or custom of
PPB officers using excessive force against individuals experiencing mental health crises and that
the practice of using excessive force continued in 2018 when officers shot Elifritz. There is no
evidence in the record that anyone had diagnosed or treated Elifritz for mental illness or that he
experienced symptoms of a mental illness, but there is evidence that some officers believed that
Elifritz was experiencing a mental health issue.14 The Court will assume for the purpose of this
Opinion only that Elifritz was experiencing a mental health crisis when the officer defendants
shot him.
Viewing the evidence in the light most favorable to Plaintiff, the evidence in the record
establishes only that in 2012 a custom or practice of deliberate indifference to the constitutional
rights of individuals experiencing mental health crises existed within PPB. There is no evidence
in the record to create a question of fact about whether the custom or practice of using excessive
force against people experiencing mental health crises continued after 2012 or that any
constitutional violations occurred between 2012 and 2018, when police shot Elifritz.15 As a
result, Plaintiff failed to meet her burden to establish a Monell claim based on a longstanding
custom or practice of allowing PPB officers to use excessive force against people experiencing a
mental health crisis. See Trevino, 99 F.3d at 918 (Monell liability “must be founded upon
practices of sufficient duration, frequency and consistency that the conduct has become a
14
Although the record establishes the presence of amphetamines and methamphetamine in
Elifritz’s blood, it contains no corresponding testimony to explain whether the quantities present
in his blood caused his erratic behavior when police shot him.
15
Plaintiff’s complaint identifies several people who allegedly had mental illnesses and who
PPB officers shot and seriously injured or killed between 2012 and 2018. Pl. Am. Compl. ¶ 3,
ECF 11. There is no evidence in the record to support those allegations or to establish whether
PPB’s use of force against those individuals was excessive under the circumstances.
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traditional method of carrying out policy.”); Bias, 508 F.3d at 1218 (The nonmoving party must
go beyond the pleadings and designate facts showing an issue for trial.).
ii.
Code of silence
Plaintiff alleges that PPB officers observe a code of silence that encourages officers to
refuse to report misconduct by other officers and to remain silent or provide false or misleading
information during investigations into police misconduct to protect themselves or other officers
from disciplinary action and civil or criminal liability. Pl. Am. Compl. ¶ 33. There is no
evidence in the record to support that allegation. Even if that evidence existed, the record is also
devoid of anything that could create a question of fact about whether a code of silence was the
moving force behind the violation of Elifritz’s constitutional rights. As a result, a police code of
silence, if one existed, does not form the foundation of a Monell liability claim against the City
in this case. See Hason v. City of Los Angeles, No. CV 11-5382-SVW (JPR), 2014 WL
12852497, at *2 (C.D. Cal. Aug. 7, 2014) (granting motion to dismiss Monell claim against city
based on “vague allegations of a department-wide ‘code of silence’”); Orellana v. Cty. of Los
Angeles, No. CV 12-01944 MMM (CWx), 2013 WL 12122692, at *27 (C.D. Cal. Apr. 29, 2013)
(granting summary judgment on the plaintiff’s Monell claim because there was no link between
police code of silence and officers’ alleged misconduct), aff’d, 630 F. App’x 730 (2016);
Arredondo v. Las Vegas Metro. Police Dep’t, No. CV-S-04-0593-RLH (LRL), 2005 WL
8161267, at *5 (D. Nev. Aug. 23, 2005) (granting summary judgment to city on the plaintiff’s
Monell claim because the plaintiff identified only one instance of a shooting in which police
followed a code of silence), vacated, 280 F. App’x 633 (2008).
iii.
Encouraging use of excessive force
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Plaintiff alleges that PPB encourages the use of excessive force. Pl. Am. Compl. ¶ 33.
Again, Plaintiff presents no evidence to support that allegation. Plaintiff refers to the 2012
USDOJ Report in support of that allegation, but even if the USDOJ Report demonstrated that
PPB encouraged its officers to use excessive force, Plaintiff offers no evidence to establish a
longstanding custom or practice of encouraging the use of excessive force that continued in
2018. As a result, Plaintiff fails to establish a basis for Monell liability on that theory. Bias, 508
F.3d at 1218.
iv.
Failure to investigate of uses of force
Plaintiff claims that PPB has a longstanding custom or practice of failing to investigate its
officers’ uses of force that amounts to a policy of deliberate indifference. PPB has a detailed
written policy for investigating every use of deadly force, and the unrefuted evidence in the
record suggests that PPB carries out that policy by thoroughly investigating each use of deadly
force by its officers. Bell Decl. ¶¶ 2-5; Bell Decl. Ex. 15. There is no evidence in the record
that, since 2012, PPB failed to investigate any use of deadly force by its officers or that any such
previous failure to investigate caused the officers to violate Elifritz’s constitutional rights when
they shot him. As a result, any alleged failure to investigate a use of force by PPB cannot
buttress a municipal liability claim against the City under Monell.
B.
Failure to Train, Supervise, and Discipline
Plaintiff alleges that PPB has a longstanding custom or practice of failing to properly
hire, train, supervise, discipline, transfer, monitor, counsel, and control its officers who use
excessive force. Pl. Am. Compl. ¶ 33. Inadequate training can create section 1983 liability
“only where the failure to train amounts to deliberate indifference to the rights of persons with
whom police come into contact.” Harris, 489 U.S. at 388. To establish that level of inadequacy,
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Plaintiff “must demonstrate a conscious or deliberate choice” by the City to not train its officers
by showing that the City “disregarded the known or obvious consequence that a particular
omission in their training program would cause [City] employees to violate citizens’
constitutional rights.” Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1158-59 (9th Cir. 2014)
(internal quotation marks and citations omitted).
Plaintiff offered no evidence that PPB was deliberately indifferent to the need to train and
supervise its officers. Plaintiff has not pointed to any category of inadequate training or
explained how the training that PPB gave its officers fell so short of adequately protecting the
constitutional rights of the City’s residents that it amounted to deliberate indifference. PPB
policy requires all new recruits to attend the state of Oregon basic police academy or an
approved academy in another state, and all the officer defendants attended approved academies.
PPB also requires its officers to attend an additional advanced academy, which PPB uses to train
its officers on its own policies and practices, and all officers involved in the shooting of Elifritz
also attended that academy. The officer defendants all received Crisis Intervention Training.
Some officers also attended an optional Enhanced Crisis Intervention Training to learn additional
practical skills and strategies for handling situations involving individuals in crisis. Each officer
attended annual or semi-annual in-service trainings, many of which educated officers about how
to handle situations involving individuals in crisis. Plaintiff has offered no evidence to support
her claim that PPB’s training was inadequate or that it failed to protect individuals’ constitutional
rights. No evidence in the record demonstrates that the City made a conscious and deliberate
choice to disregard a known or obvious consequence that omissions in PPB’s training program
would cause its officers to violate individuals’ constitutional rights. As a result, Plaintiff failed
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to meet her burden to identify a question of material fact that precludes summary judgment on
that theory of municipal liability.
Plaintiff can also establish liability under a failure to discipline theory by showing
“repeated constitutional violations for which the errant municipal officials were not discharged
or reprimanded.” Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992) (citing McRorie v.
Shimoda, 795 F.2d 780, 784 (9th Cir. 1986)). Plaintiff has produced no such evidence. There is
no evidence in the record that PPB has allowed any officer to commit repeated constitutional
violations without reprimand or disciplinary action. As a result, Plaintiff’s failure to discipline
theory also fails to support a Monell claim against the City.
IV.
Wrongful Death Claim
Oregon law allows the personal representative of an estate to pursue a remedy for a
decedent’s death when it is “caused by the wrongful act or omission of another . . . if the
decedent might have maintained an action, had the decedent lived, against the wrongdoer for an
injury done by the same act or omission.” O.R.S. 30.020. However, the personal representative
of a decedent’s estate may not bring a claim if the wrongful death occurred when the person
“was engaged in conduct at the time that would constitute . . . a Class A or a Class B felony.”
O.R.S. 31.180(1). Felonious conduct is a complete defense that the defendant must prove by a
preponderance of the evidence. O.R.S. 31.180(1), (2).
The felonious conduct defense applies to injuries that occur during a justifiable response
to criminal conduct. Harryman v. Fred Meyer, Inc., 289 Or. App. 324, 329 (2017), rev. den.,
362 Or. 665 (2018). The defense does not apply if the death resulted from deadly force that was
not justifiable. O.R.S. 31.180(5). The Court finds by a preponderance of the evidence that
Elifritz was engaged in felonious conduct at the time of his death. That conduct was a
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substantial factor in bringing about his death, and the deadly force used by the officers in
response to Elifritz’s criminal conduct was justifiable. Defendants are thus entitled to a complete
defense to Plaintiff’s wrongful death claim.
Defendants argue that when the officer defendants used deadly force, Elifritz was
engaged in conduct that constituted attempted aggravated murder and attempted assault in the
first degree. Under Oregon law, an attempt to commit a crime occurs when a person
“intentionally engages in conduct which constitutes a substantial step toward a commission of
the crime.” O.R.S. 161.405(1). Assault in the first degree occurs when a person intentionally
causes serious physical injury to another with a deadly or dangerous weapon. O.R.S.
163.185(1)(a). A dangerous weapon is “any weapon, device, instrument, material or substance
which under the circumstances in which it is used, attempted to be used or threatened to be used,
is readily capable of causing death or serious physical injury.” O.R.S. 161.015(1). A serious
physical injury is defined as a “physical injury which creates a substantial risk of death or which
causes serious and protracted disfigurement, protracted impairment of health or protracted loss or
impairment of the function of any bodily organ.” O.R.S. 161.015(8). Attempted assault in the
first degree is a Class B felony. O.R.S. 163.185(3).
Distilling the requirements of those statutes, a person commits an attempted assault in the
first degree if the person intentionally engages in conduct that constitutes a substantial step
toward intentionally causing serious physical injury to another with a weapon that is readily
capable of causing serious physical injury or death. Elifritz’s conduct met those requirements.
He intentionally ran toward officers, which was an intentional substantial step toward the assault,
and meets the requirements for the attempt element. He then charged officers while holding a
knife, which is enough evidence for a factfinder to infer his intent to cause serious physical
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injury with the knife, which establishes assault. State v. Spieler, 302 Or. App. 432, 440-41
(2020) (affirming trial court’s finding that accelerating a car toward officers standing in front of
the car was enough to infer the defendant’s intent to injure the officers, even if by doing so the
defendant also intended to try to escape); State v. Smith, 21 Or. App. 270, 276 (1975) (quoting
Commentary, Proposed Oregon Criminal Code 97 (1970)) (“‘An unsuccessful attempt to cause
intended physical injury is an attempted assault.’”).
The Court need not determine whether Elifritz was engaged in an attempted aggravated
murder at the time of his death because the Court finds by a preponderance of the evidence that,
at a minimum, Elifritz was committing an attempted assault in the first degree, a Class B felony,
when officers used deadly force against him. Defendants are thus entitled to a complete defense
to Plaintiff’s wrongful death claim unless their conduct was unjustified. O.R.S. 161.239
provides that “[a] peace officer may use deadly physical force only when the peace officer
reasonably believes that . . . the use of deadly physical force is necessary to defend the peace
officer or another person from the use or threatened imminent use of deadly physical force . . .
[or] [t]he officer’s life or personal safety is endangered in the particular circumstances involved.”
Elifritz’s attempted assault met those requirements. Thus, the officers’ use of deadly physical
force against Elifritz was justified under O.R.S. 161.239.
Elifritz’s commission of a Class B felony at the time of his death was a substantial factor
in bringing about his death. The officers’ use of deadly force was justified under Oregon law
because it was necessary to prevent Elifritz’s threatened imminent use of deadly physical force
under circumstances that caused officers to reasonably believe that Elifritz endangered their life
and personal safety. As a result, Elifritz’s felonious conduct is a complete defense to Plaintiff’s
wrongful death claim.
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CONCLUSION
The Court GRANTS Defendants’ Motion for Summary Judgment [29]. Plaintiff’s
section 1983 claims against all Defendants are dismissed with prejudice. Plaintiff’s wrongful
death claim is dismissed with prejudice. All claims against Defendants Bailey and Damerville
are dismissed with prejudice.
IT IS SO ORDERED.
DATED: ____________________.
May 13, 2020
MARCO A. HERNÁNDEZ
United States District Judge
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