Insook Kim v. City of Santa Clara

MEMORANDUM **

Plaintiff, Insook Kim (Kim), individually and as a successor in interest to decedent Aziz James (James), appeals from the dis *782 trict court’s summary judgment in favor of the defendants in her action alleging that the defendants violated James’ Fourth Amendment rights when they used deadly force against him and failed to provide medical care after shooting him.

1. No reversible error exists regarding Kim’s evidentiary objections. The district court expressly stated in its summary judgment findings that it considered Kim’s evidentiary objections, but that “even if decided in her favor, [the disputes] do not ultimately impact the holding of this case.” See United States v. Layton, 767 F.2d 549, 554 (9th Cir.1985) (discussing the deference afforded evidentiary rulings made by trial courts).

2. The district court analyzed the totality of the circumstances viewing the facts in the light most favorable to Kim. Even so, no material issue of fact emerged, warranting entry of summary judgment in favor of the defendants on Kim’s excessive force claim. See Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir.2010). The undisputed facts, even in the light most favorable to Kim,…

dissenting:

I respectfully dissent. Because the dog attack was an unreasonable use of force as a matter of law, which then precipitated the officers’ use of lethal force, I would reverse the district court’s grant of summary judgment in favor of defendants in this § 1983 excessive force case.

1. The majority ignores the single most important factor in judging whether the use of force is reasonable: the immediacy of the threat posed by the suspect to the officers. Graham v. Connor, 490 U.S. 386, 396 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989); Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.1994) (citing Tennessee v. Garner, 471 U.S. 1, 11 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985)). There is no evidence in the record to suggest that the officers believed that James posed an immediate threat, and yet they unleashed “severe” force. Chew, 27 F.3d at 1442 , Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.2003) (discussing the severity of the use of canines to arrest suspects).

When the officers released the dog into the room where James was confined, he was surrounded by the police. Officers were posted at the only window of the bedroom where James had been holed up for more than an hour,…

facts in the light most favorable to Kim. Even so, no material issue of fact

emerged, warranting entry of summary judgment in favor of the defendants on

Kim's excessive force claim. See Wilµinson v. Torres, 610 F.3d 546, 551 (9th Cir.

2010). The undisputed facts, even in the light most favorable to Kim, established

that James had jumped through two windows, was armed with a six-inch µnife, had

2 stabbed two victims, had barricaded himself in a stranger's home, and was

unresponsive to the officers' commands. In addition, James was actively resisting

arrest by barricading the bedroom door with his feet. See Liberal v. Estrada, 632

F.3d 1064, 1079 (9th Cir. 2011) (listing factors). Although the officers could have

waited indefinitely to taµe James into custody, they were not required to do so. See

Miller v. Clarµ, 340 F.3d 959, 961 (9th Cir. 2003) (approving a five-second lapse

between the warning and use of a canine). Considering the totality of these

circumstances, the use of a canine to obtain compliance was a reasonable use of

force. See id. at 965-968.

Once James stabbed the canine and leaned toward the officers with the µnife,

the situation…