Case 2:20-cv-00259-ODW-AFM Document 98 Filed 05/12/22 Page 1 of 23 Page ID #:2459

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8 United States District Court 9 Central District of California

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11 LUKE CARLSON, et al., Case № 2:20-cv-00259-ODW (AFMx)

12 Plaintiffs,

ORDER DENYING DEFENDANTS’

13 v.

MOTION FOR SUMMARY

14 CITY OF REDONDO BEACH; et al., JUDGMENT [45]

15 Defendants.

16 17 I. INTRODUCTION 18 Plaintiffs Luke Carlson (“Carlson”) and his parents—Jeanne Zimmer and 19 Jeffery Carlson—bring this excessive force action against Defendants the City of 20 Redondo Beach (the “City”), Officer Ryan Crespin, Officer Patrick Knox, and 21 Sergeant Mark Valdivia, based on allegations that they used unreasonable deadly 22 force when they shot Carlson, and excessive force when apprehending his parents. 23 Defendants move for summary judgment, or partial summary judgment, on Plaintiffs’ 24 eight claims and claim for punitive damages. (Mot. Summ. J. (“Mot.” or “Motion”), 25 ECF No. 45.) As discussed below, genuine disputes of material fact preclude 26 summary judgment as to all claims and the Court DENIES Defendants’ Motion.1 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Case 2:20-cv-00259-ODW-AFM Document 98 Filed 05/12/22 Page 2 of 23 Page ID #:2460

1 II. BACKGROUND 2 The following facts are undisputed unless otherwise noted. On January 8, 3 2019, at approximately 9:07 p.m., the Redondo Beach Police Department (“RBPD”) 4 received a 911 call of a family disturbance, indicating that the caller’s neighbors were 5 screaming and that a male voice was yelling he was going to kill somebody. (Defs.’ 6 Statement Uncontroverted Facts (“DSUF”) 1, 2, ECF No. 46.) Multiple other callers 7 reported the same disturbance. (Id. at 3.) One caller reported hearing someone say, 8 “I’ll kill you with my bare hands” and another caller reported hearing the cocking of 9 a shotgun with a female screaming in the background. (Id. at 3, 4.) 10 RBPD officers—including Crespin, Knox, and Valdivia—responded to the 11 calls.2 (Id. at 5.) Upon arrival, the officers were unsure of the exact location of 12 where the disturbance was but attempted to establish an arrest rescue team based on 13 the serious nature of the call. (Id. at 6, 7.) Valdivia instructed the other officers to 14 contain the area in order to identify the exact location of the disturbance. (Id. at 8.) 15 Defendants assert that they heard yelling coming from the residence of 1002 16 Esplanade Avenue (the “Residence”) and according to Crespin, the loud screams 17 sounded like somebody was in distress; however, Plaintiffs dispute that any officer 18 heard such yelling or screams. (Pls.’ Statement Genuine Disputes (“PSGD”) 10, 11, 19 ECF No. 62-1.) Knox then led the other officers down a narrow pathway on the side 20 of the Residence. (DSUF 12, 13.) Defendants contend that as Crespin neared the 21 back gate of the Residence, he looked over his right shoulder and saw through the last 22 window before the gate a male—later identified as Carlson—holding a black 23 semiautomatic handgun with his right hand to the right side of his head. (Id. at 16.) 24 Plaintiffs assert that Carlson never had a gun in his hand or pointed at his own head, 25 and his hands were visibly empty during the incident. (PSGD 16.) Crespin then 26 yelled, “Gun, gun” to notify the other officers of Carlson’s alleged gun. (DSUF 19.) 27

28 2 The Court uses “the officers” to generally refer to all officers at the scene of the incident, including Defendant-officers Crespin, Knox, and Valdivia, as well as non-party officers.

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1 Crespin estimated that Carlson's parents were about three to four feet away 2 from Carlson at this time. (Id. at 18.) Crespin commanded Carlson to “drop the 3 gun.” (Id. at 20.) Defendants contend that Carlson then brought “the gun at a 45- 4 degree angle and start turning towards Officer Crespin.” (Id. at 21.) Defendants 5 assert that at this time, “Officer Crespin thought [Carlson] was going to open fire at 6 him, and then, exit the back door, where [Carlson] would encounter Officer Knox, 7 who was entering the backyard.” (Id. at 22.) Within seconds of Crespin’s command 8 to “drop the gun,” Crespin fired his gun at Carlson. (Id. at 23.) Defendants assert 9 that “within a second after Officer Crespin fired his last shot, Officer Crespin heard 10 another shot . . . [and] believed [Carlson] was exiting the back door.” (Id. at 24.) 11 However, the gunshot that followed “within a second” after Crespin’s was fired by 12 Knox, who was waiting at the back gate at the time. (Id. at 25; DSUF 33.) 13 Before firing his gun, Knox heard Crespin’s “drop the gun” command 14 followed by gunshots, and also allegedly “saw flashes.” (PSGD 25, 26.) Knox then 15 saw Carlson start to walk out the back door and turn towards him. (Id. at 27.) Knox 16 could not see Carlson’s hands, which were angled down toward Carlson’s waistband. 17 (Id. at 28.) According to Knox, Carlson appeared to have a weapon. (Id. at 29; Decl. 18 Craig Smith (“Smith Decl.”) ¶ 21, Ex. 19 (“Knox Dep.”) 9:1–12, ECF Nos. 45-1, 45- 19 3.) Knox gave commands to Carlson, stating “Let me see your hands.” (DSUF 30.) 20 The parties dispute whether Carlson complied. (PSGD 31.) 21 Defendants contend that Carlson walked toward Knox, who had no cover at the 22 time; Plaintiffs dispute both of these contentions. (Id. at 27, 32, 33.) Knox fired one 23 shot at Carlson. (DSUF 33.) Carlson then fell to the ground and another officer 24 assisted Knox in immediately securing and handcuffing Carlson. (Id. at 35.) Officers 25 observed multiple gunshot wounds on Carlson including two bullet wounds to the 26 chest under the left pectoral and a bullet wound to his back. (PSGD 157.) Carlson 27 was unarmed. (Id. at 57, 88, 105, 124.) 28

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1 Carlson’s parents were only feet away from him and watched Knox shoot him 2 down. (Id. at 124.) After the shooting, Valdivia walked into the backyard, where he 3 saw Carlson on the ground and Carlson’s parents yelling at the officers. (DSUF 40.) 4 All of the officers entered the backyard and Valdivia “tried to get [Carlson’s parents] 5 away from” the door; he “physically grabbed them” by their forearms and pulled 6 them, then pushed them down the walkway towards the street before handing them 7 off to another officer. (PSGD 128.) Carlson’s mother said it felt like the officers 8 “pulled her arm out of the socket.” (Id. at 132.) When handling Carlson’s father, the 9 officers—including Valdivia—pulled his arms so far behind his back that both of his 10 rotator cuffs tore and required surgery thereafter. (Id. at 134.) The parties dispute 11 whether Valdivia grabbed Carlson’s parents in a “forceful” manner and put their 12 hands behind their backs. (Id. at 43.) After Valdivia escorted Carlson’s parents to 13 the front of the Residence, he went inside the house and saw a handgun on top of a 14 washer or dryer near the backdoor of the Residence. (Id. at 46, 47.) 15 Plaintiffs filed this civil suit against Defendants, asserting eight claims, the first 16 four pursuant to 42 U.S.C. § 1983 and the remaining four under California law: 17 (1) excessive force, (2)–(4) municipal liability, (5) battery, (6) negligent infliction of 18 emotional distress, (7) negligence, and (8) violation of the Bane Act, California Civil 19 Code section 52.1. (Compl. ¶¶ 48–115, ECF No. 1.) Defendants now seek summary 20 judgment on all eight claims and on Plaintiffs’ claim for punitive damages. 21 III. LEGAL STANDARD 22 A court “shall grant summary judgment if the movant shows that there is no 23 genuine dispute as to any material fact and the movant is entitled to judgment as a 24 matter of law.” Fed. R. Civ. P. 56(a). The burden of establishing the absence of a 25 genuine issue of material fact lies with the moving party, see Celotex Corp. v. 26 Catrett, 477 U.S. 317, 322–23 (1986), and the court must view the facts and draw 27 reasonable inferences in the light most favorable to the nonmoving party, Scott v. 28 Harris, 550 U.S. 372, 378 (2007); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134

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1 (9th Cir. 2000). A disputed fact is “material” where the resolution of that fact might 2 affect the outcome of the suit under the governing law, and the dispute is “genuine” 3 where “the evidence is such that a reasonable jury could return a verdict for the 4 nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 5 Although the Court may not weigh conflicting evidence or make credibility 6 determinations, there must be more than a mere scintilla of contradictory evidence to 7 survive summary judgment. Addisu, 198 F.3d at 1134. 8 Once the moving party satisfies its initial burden, the nonmoving party cannot 9 simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” 10 about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. 11 at 322–23; Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); 12 Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 13 1468 (9th Cir. 1987). A “non-moving party must show that there are ‘genuine factual 14 issues that properly can be resolved only by a finder of fact because they may 15 reasonably be resolved in favor of either party.’” Cal. Architectural Bldg. Prods., 16 818 F.2d at 1468 (quoting Anderson, 477 U.S. at 250). Conclusory or speculative 17 testimony in affidavits is insufficient to raise genuine issues of fact and defeat 18 summary judgment, as is “uncorroborated and self-serving” testimony.” Villiarimo v. 19 Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); Thornhill Publ’g Co. v. 20 GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Courts should grant summary 21 judgment against a party who fails to demonstrate facts sufficient to establish an 22 element essential to his case when that party will ultimately bear the burden of proof 23 at trial. See Celotex, 477 U.S. at 322. 24 IV. EVIDENTIARY OBJECTIONS 25 The parties raise numerous objections to evidence presented in the various 26 filings. (See PSGD; Pls.’ Evid. Objs., ECF No. 62-2; Defs.’ Resp. PSGD, ECF 27 No. 75-1; Defs.’ Evid. Objs. PSGD, ECF No. 75-2.) Evidentiary objections in 28 motions for summary judgment are typically unnecessary and not useful. This is

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1 because, “[r]egardless of whether a party objects, the Court . . . will always recognize 2 plain error.” Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 3 2006) (first citing Fed. R. Evid. 103(d); and then citing McClaran v. Plastic Indus., 4 Inc., 97 F.3d 347, 357 (9th Cir. 1996)). “Nevertheless, attorneys routinely raise every 5 objection imaginable without regard to whether the objections are necessary, or even 6 useful, given the nature of summary judgment motions in general, and the facts of 7 their cases in particular.” Id. Evidentiary objections based “on the ground that it is 8 irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal 9 conclusion are all duplicative of the summary judgment standard itself.” Id. “Instead 10 of objecting, parties should simply argue that the facts are not material.” Id. 11 Thus, the Court OVERRULES all boilerplate objections and improper 12 argument in the parties’ objections. (See Scheduling & Case Mgmt. Order 7–9, ECF 13 No. 17.) When the objected evidence is unnecessary to the resolution of the 14 summary judgment motion or supports facts not in dispute, the Court need not resolve 15 those objections. To the extent the Court relies on objected evidence without 16 discussion in this Order, the Court OVERRULES the objections. See Burch, 433 F. 17 Supp. 2d at 1122 (proceeding with only necessary rulings on evidentiary objections). 18 V. DISCUSSION 19 Defendants move for summary judgment on all eight of Plaintiffs’ claims and 20 their claim for punitive damages. (Mot. 1.) Plaintiffs assert that genuine disputes of 21 material fact preclude summary judgment for Defendants on each of these claims. 22 (Opp’n 11–25, ECF No. 62.) 23 A. Excessive Force, 42 U.S.C. § 1983 24 Plaintiffs assert an excessive force claim based on Crespin’s and Knox’s use of 25 deadly force when shooting Carlson and Valdivia’s use of non-deadly force when 26 apprehending Carlson’s parents. (See Compl.) Defendants contend they are entitled 27 to summary judgment on Plaintiffs’ excessive force claim because the uncontroverted 28 evidence shows Crespin’s and Knox’s use of deadly force—and Valdivia’s and other

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1 officers’ use of force to move Carlson’s parents away from the scene—do not 2 constitute constitutional violations under the circumstances. (Mot. 18–23.) Thus, 3 Defendants argue that the force used is objectively reasonable, thereby entitling 4 Defendants to qualified immunity. (Id.) Defendants alternatively argue that even if a 5 jury could find the officers’ use of force is a not objectively reasonable and therefore, 6 is a constitutional violation, they are nevertheless entitled to qualified immunity 7 because there was no clearly established fact-specific precedent at the time of the 8 incident, putting them on notice that their conduct was a constitutional violation. (Id. 9 at 24–26.) 10 “The Supreme Court has explained that ‘[t]he doctrine of qualified immunity 11 protects government officials from liability for civil damages insofar as their conduct 12 does not violate clearly established statutory or constitutional rights of which a 13 reasonable person would have known.’” Mattos v. Agarano, 661 F.3d 433, 441 14 (9th Cir. 2011) (internal quotation marks omitted) (quoting Pearson v. Callahan, 15 555 U.S. 223, 231 (2009)). In determining whether qualified immunity applies, the 16 Ninth Circuit first determines “whether the officers actually violated a constitutional 17 right based on the record and plaintiffs’ alleged facts.” Monzon v. City of Murrieta, 18 978 F.3d 1150, 1156 (9th Cir. 2020). If the court finds that “no constitutional right 19 was violated, then no further analysis is required.” Id. However, if the court finds 20 “that the officers did violate a constitutional right [it would] then need to proceed to 21 the second step of the inquiry to decide if the constitutional right ‘was clearly 22 established at the time of [the officers’] alleged misconduct.’” Id. (second alteration 23 in original) (quoting Pearson, 555 U.S. at 232). 24 1. Constitutional Violation 25 “Because apprehending a suspect through the use of deadly force is considered 26 a Fourth Amendment seizure of the person, [courts] must determine if the officers 27 acted in an objectively reasonable manner when they [used] deadly force or if they 28 violated [the suspect’s] right to be free from unreasonable seizures.” Id. at 1157.

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1 Applying the holdings of Graham v. Connor, 490 U.S. 386 (1989), the Ninth 2 Circuit analyzes reasonableness by “considering the nature and quality of the alleged 3 intrusion” and “the governmental interests at stake by looking at (1) how severe the 4 crime at issue is, (2) whether the suspect posed an immediate threat to the safety of 5 the officers or others, and (3) whether the suspect was actively resisting arrest or 6 attempting to evade arrest by flight” (the “Graham factors”). Mattos, 661 F.3d at 441 7 (quoting Deorle v. Rutherford, 272 F.3d 1272, 1279–80 (9th Cir. 2001)); see 8 Graham, 490 U.S. at 396. “[T]here are no per se rules in the Fourth Amendment 9 excessive force context; rather, courts must still slosh their way through the 10 factbound morass of ‘reasonableness.’” Id. (alteration and internal quotation marks 11 omitted) (quoting Scott, 550 U.S. at 383). 12 The reasonableness of the force used is “judged from the perspective of a 13 reasonable officer on the scene.” Graham, 490 U.S. at 396. An officer cannot 14 simply claim that he “fear[ed] for his safety or the safety of others . . . there must be 15 objective factors to justify such a concern.” Young v. County of Los Angeles, 16 655 F.3d 1156, 1163 (9th Cir. 2011). Notably, the fact that the suspect was armed— 17 or even reasonably believed to be armed—with a deadly weapon does not render the 18 officers’ response per se reasonable under the Fourth Amendment. George v. Morris, 19 736 F.3d 829, 838 (9th Cir. 2013). 20 In light of the above, “[w]here the objective reasonableness of an officer’s 21 conduct turns on disputed issues of material fact, it is ‘a question of fact best resolved 22 by a jury’; only in the absence of material disputes is it ‘a pure question of law.’” 23 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) (first quoting Wilkins 24 v. City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003); and then quoting Scott, 25 550 U.S. at 381 n.8). As such, “summary judgment or judgment as a matter of law in 26 excessive force cases should be granted sparingly.” Id. at 1125. 27 28

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1 a. When Using Deadly Force Against Carlson 2 At least two genuine disputes material fact preclude summary judgment on the 3 excessive force claim as to Crespin’s and Knox’s deadly force against Carlson. 4 Specifically, the parties dispute facts material to the first two Graham factors: 5 (1) whether the crime at issue was severe, and (2) whether Carlson posed an 6 immediate threat of harm to the officers or others, which is the most significant 7 factor. See Mattos, 661 F.3d at 441; see also Smith v. City of Hemet, 394 F.3d 689, 8 702 (9th Cir. 2005) (en banc), cert. denied, 545 U.S. 1128 (2005) (finding whether 9 plaintiff posed a threat to be the most important of the Graham factors). 10 Additionally, Defendants cite no evidence to support their position as to the third 11 Graham factor: whether Carlson was actively resisting, or attempting to evade, arrest. 12 i. Whether the Crime was Severe 13 In this case, the parties factually dispute what crime was at issue when the 14 Crespin and Knox used deadly force against Carlson. The parties agree that the 15 police were called in response to a “family disturbance,” for which callers reported 16 hearing screaming, threats, and the cocking of a gun. (DSUF 1–3.) However, 17 Plaintiffs contend that they never committed any crime because “Plaintiffs were the 18 only people in 1002 Esplanade at the time . . . [and] were not screaming, making loud 19 noises, arguing loudly, and were not in a heated argument on the night of the 20 incident.” (PSGD 11, 14, 15.) Significantly, Plaintiffs assert that Carlson “never had 21 a gun in his hand” during the incident. (Id. at 16, 18 19.) Thus, Plaintiffs conclude, 22 “No crime was being committed; [Carlson] was unarmed, his hands were visibly 23 empty, [and he] did not make any violent, threatening or furtive movements or 24 gestures.” (Id. at 34.) Plaintiffs support their contentions with deposition testimony, 25 photographs, and police officer body camera footage. Plaintiffs argue that “the initial 26 call for service was to an unknown location which was never determined to be the 27 Plaintiffs’ home.” (Opp’n 13.) Plaintiffs further support their argument with 28 Defendants’ concession that the officers did not know from which residence the

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1 screaming came. (Opp’n 13; DSUF 6; Defs.’ Resp. PSGD 65, 70.) Thus, at the very 2 least, there is a material factual dispute as to whether any crime was being committed 3 at the Residence, and therefore by the Plaintiffs, at all. 4 Here, both the existence and the seriousness of the domestic dispute are at 5 issue. Even assuming Defendants are correct that a “serious family disturbance” was 6 occurring at the Residence, (Mot. 21), such an offense would not necessarily 7 constitute a “severe crime[] in a Graham analysis,” Mattos, 661 F.3d at 444. 8 Although the Court acknowledges the danger that may result from domestic disputes, 9 the Ninth Circuit has held that even domestic disputes involving physical violence do 10 not “warrant the conclusion that [the suspect is] a particularly dangerous criminal or 11 that his offense was especially egregious.” Smith, 394 F.3d at 702; see Thomas v. 12 Dillard, 818 F.3d 864, 890 (9th Cir. 2016), as amended (May 5, 2016) (finding that 13 domestic violence involving a physical assault “was not particularly severe” under 14 Graham). Even if Carlson and his parents were engaged in a dispute, the 911-callers 15 only reported hearing verbal disputes and the cocking of a gun. (See DSUF 1–4.) 16 Defendants provide no evidence or allegations that any callers reported seeing or 17 hearing any actual physical violence. (Id.) Assuming such a domestic dispute 18 occurred, its seriousness remains unclear. Thus, the Court finds that there is a 19 genuine dispute of material fact as to the existence and severity of the crime. 20 ii. Whether Carlson Posed an Immediate Threat 21 Defendants argue that Carlson posed an immediate threat to the officers and 22 others because the 911-callers reported hearing death threats and the cocking of a gun 23 and the officers heard yelling coming from the Residence as they approached it. 24 (DSUF 2–4, 10, 14, 15.) Upon arrival at the Residence, Crespin observed Carlson 25 holding a gun to his head and, after commanding that Carlson drop the gun, Crespin 26 saw Carlson “start turning towards him.” (Id. at 16, 21.) Therefore, the issue is 27 whether these circumstances constituted an immediate threat to which Crespin 28 responded with his initial gunshots.

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1 Defendants assert that Knox heard Crespin’s “drop the gun” warnings and 2 gunshots and then saw flashes inside the Residence but “did not know whether the 3 gunshots came from inside or outside of the house.” (Id. at 25, 26.) Knox “saw 4 [Carlson] start to walk out the back door and turn towards [him]” but could not see 5 Carlson’s hands. (Id. at 27, 28.) Citing to Knox’s deposition testimony, Defendants 6 argue that Carlson was wearing a “bulky jacket” and Knox could not see his hands; 7 Knox stated that Carlson appeared to have a weapon. (Id. at 28, 29; Knox Dep. 8:20– 8 24, 9:1–12, 9:19–20, 10:11–14, 11:14–18.) Knox contends he commanded Carlson 9 to show his hands but Carlson did not comply with the commands and, instead, 10 started to turn to walk toward Knox. (DSUF 30–32; Knox Dep. 11:14–18; 14:14– 11 25.) Thus, the issue is whether these circumstances establish an immediate threat to 12 which Knox responded with his gunshot. 13 Plaintiffs dispute these contentions. Regarding the immediate harm to justify 14 Crespin’s gunshots, Plaintiffs argue that the officers never heard any yelling coming 15 from the Residence because they were not yelling, Carlson never held a gun, 16 “Carlson’s hands were visibly empty,” and Carlson never turned toward Crespin. 17 (PSGD 11, 14, 15, 16, 18–23.) Regarding the immediate harm to justify Knox’s 18 gunshots, Plaintiffs also dispute that Knox ever saw flashes from inside the 19 Residence, that Carlson was wearing any bulky clothing, that Carlson’s hands were 20 not visible, that Carlson had a weapon, and that Carlson ever turned and started to 21 walk towards Knox. (Id. at 28–31.) Plaintiffs support their arguments with the 22 deposition testimonies of Carlson and both his parents, as well as photographs and 23 police body camera video footage. Accordingly, Plaintiffs conclude, that Carlson 24 was unarmed and his hands were visibly empty and Carlson therefore posed no 25 immediate threat to Crespin, Knox, or others. Thus, there are genuine disputes of fact 26 as to whether Carlson posed an immediate threat. 27 Although Plaintiffs provide police body camera footage in an attempt to 28 resolve these disputes, (see Notice Manual Filing (“BC Footage”), ECF No. 68), the

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1 BC Footage is not sufficiently clear that it blatantly contradicts either version of the 2 events. See A.G., 1-4 v. City of Fresno, 804 F. App’x 701, 702 (9th Cir. 2020) (citing 3 Scott, 550 U.S. at 381) (finding the court may “view[] the facts in the light depicted 4 by the video[]” to the extent that it “blatantly contradict[s]” one party’s version of the 5 incident). Viewing these factual disputes in the light most favorable to Plaintiffs— 6 that Carlson had no weapon, his hands were visibly empty, he complied with 7 Crespin’s and Knox’s commands, and did not move towards them—a reasonable jury 8 could conclude that either or both Crespin’s and Knox’s use of force was not 9 objectively reasonable. Thus, this factor cannot be resolved on summary judgment. 10 iii. Whether Carlson Was Attempting to Resist or Evade Arrest 11 Defendants do not offer any evidence to show that Carlson was attempting to 12 resist or evade arrest. Furthermore, the parties agree that after the officers shot 13 Carlson, he “did not resist at all.” (PSGD 154.) This factor therefore weighs slightly 14 against finding that the officers acted with objective reasonableness. 15 iv. Whether Crespin and Knox Had Other Means to Capture Carlson 16 Finally, although not an explicit Graham factor, “[c]ourts may also consider 17 ‘the availability of alternative methods of capturing or subduing a suspect.’” Davis v. 18 City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007) (quoting Smith, 394 F.3d 19 at 701). Based on the above discussion and conclusions, there is also a genuine 20 dispute as to whether Crespin’s and Knox’s only choice in capturing Carlson was by 21 shooting him, or if they could have taken additional time to give Carlson additional 22 verbal warnings and commands to capture or subdue him. Additionally, Defendants 23 themselves assert that prior to the shooting, the officers “discussed a tactical plan, 24 which included one of the officers, Officer Siegfried, to carry a less-lethal weapon, a 25 .40 millimeter.” (DSUF 9.) The parties agree that Siegfried was in fact equipped 26 with that less-lethal weapon and another officer was assigned the ballistic shield to 27 protect the officers. (PSGD 33–34.) The officers were “also equipped with other 28 less-lethal tools such as a Taser, OC spray, and baton.” (Id. at 76.) Accordingly,

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1 whether the officers could have used these alternative methods of capturing or 2 subduing Carlson—or whether they did not have the time or physical ability to risk 3 using less deadly means—is a question of material fact that is in genuine dispute and 4 not resolvable on summary judgment. 5 Thus, in view of the above Graham factor analysis, Defendants are not entitled 6 to summary judgment on the basis that the deadly force used against Carlson was not 7 a constitutional violation. 8 b. When Apprehending Carlson’s Parents 9 Defendants also argue Plaintiffs do not have evidence to support their claim 10 that Valdivia or other officers used excessive force when apprehending Carlson’s 11 parents and moving them away from the scene of the shooting. (Mot. 23.) 12 Defendants contend that even if Plaintiffs do have such evidence, the “scene was not 13 secure” and there was a gun inside the house—warranting the force Valdivia and 14 other officers used against Carlson’s parents. (Id.) The Court first looks to the 15 severity of the force used and then again looks to the other Graham factors to 16 determine if Defendants are entitled to summary judgment on Plaintiffs’ excessive 17 force claim as applied to Carlson’s parents. 18 Here, Valdivia and the other officers apprehended Carlson’s parents with so 19 much force that they injured Carlson’s mother and tore both of Carlson’s father’s 20 rotator cuffs so that he requires surgery. (PSGD 130, 133, 134.) The officers also 21 “shoved [Carlson’s father] . . . into a thorned bougainvillea . . . which cut his neck.” 22 (Id. at 135.) The force used against Carlson’s parents was not deadly and instead, 23 was relatively moderate. See, e.g., Petros v. Duncan, No. 1:19-cv-00277-SAB, 24 2019 WL 3459094, at *3 (E.D. Cal. July 31, 2019), (finding that an officer “used at 25 least moderate force” when he “swept [the suspect’s] legs and ‘slammed’ him to the 26 ground”); Wilson v. Kelly, ID No. 6540, No. 11-cv-2296-LAB (RBB), 2013 WL 27 3864339, at *3 (S.D. Cal. July 24, 2013) (describing the officers’ conduct of holding 28 the suspect’s arms behind his back, punching, and beating him, as “moderate force”).

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1 Although this lesser force lowers the degree of justification the officers 2 needed, on balance against the Graham factors, Defendants still fail in their burden to 3 show that this moderate force was objectively reasonable when Carlson’s parents had 4 not and were not committing any crime or resisting the officers. See id. (finding that 5 the officers were not entitled to qualified immunity on summary judgment because— 6 when construing the facts in the light most favorable to the non-movant—the 7 officers’ moderate force was excessive when the suspect was only reported for 8 assault and did not resist arrest). 9 First, Defendants offer no evidence to demonstrate that any crime was being 10 committed when the officers apprehended Carlson’s parents. The parties agree that 11 the officers handcuffed Carlson—the suspect in this case—immediately after 12 shooting him. (DSUF 35.) Thus, the possible crime of a domestic dispute between 13 Carlson and his parents was no longer at issue. Additionally, Defendants do not 14 contend that, at the time Valdivia originally apprehended them, Carlson’s parents 15 were doing anything besides yelling at the officers who had just shot their son; this is 16 not a crime. Finally, the parties agree that “Valdivia never saw [Carlson’s parents] 17 commit any crime and had no information that they had committed a crime before.” 18 (PSGD 139.) And Plaintiffs cite to deposition testimony to support their claim that 19 no crime was ever being committed. (Id. at 88.) Thus, the severity of the crime 20 committed when Valdivia and the other officers apprehended Carlson’s parents 21 strongly weighs against the objective reasonableness of the officers’ conduct. 22 Second, Defendants offer no evidence of a threat of immediate harm posed to 23 the officers or others when they apprehended Carlson’s parents. Although 24 Defendants contend that the scene was not secure and there was a gun in the house, 25 (Mot. 23), any threat of immediate harm was diminished by the fact that Carlson was 26 already handcuffed and Carlson’s parents were not inside the house or near the gun, 27 (PSGD 149). Defendants make no showing that Carlson’s parents attempted to 28 reenter the house, posed any threat to the officers or otherwise compromised

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1 anyone’s safety, interfered with the officers’ arrest of Carlson, or otherwise 2 jeopardized the officers’ investigation. In fact, the parties agree that Carlson’s father 3 “complied with officer commands to take his hands out of his pockets, and even put 4 his hands straight up in the air at one point” and Carlson’s mother was “unarmed and 5 not moving at all” at the time. (Id. at 141, 144.) Notably, “Valdivia admitted that it 6 would not be appropriate to use force against [Carlson’s parents].” (Id. at 138.) 7 Thus, this factor weighs against objective reasonableness of the officers’ conduct. 8 Third, Defendants make no showing that Carlson’s parents were attempting to 9 evade arrest. To the contrary, citing to undisputed facts, Plaintiffs contend that 10 Carlson’s parents were compliant with the officers. (Opp’n 16.) The factor of 11 whether Carlson’s parents were attempting to evade the officers therefore weighs 12 against the objective reasonableness of the officers’ conduct. 13 Finally, with regard to alternative means of apprehension, Defendants do not 14 suggest the officers had no other means of subduing Carlson’s parents and, 15 conversely, Plaintiffs argue that Carlson’s parents were compliant with the officers, 16 thereby suggesting they would have responded to verbal commands to walk away 17 from the scene, or that the officers could have used less force when moving them 18 away. Thus, this factor also weighs against finding Valdivia’s and the other officers’ 19 conduct was objectively reasonable. Accordingly, Defendants do not meet their 20 burden of showing that the force used against Carlson’s parents was objectively 21 reasonable, and therefore not a constitutional violation. 22 2. Clearly Established, Fact-Specific Precedent 23 Defendants alternatively argue that, even if they are not entitled to summary 24 judgment based on the lack of a constitutional violation, Defendants are nevertheless 25 entitled to summary judgment on the excessive force claim because Plaintiffs have no 26 evidence to support the second step of the qualified immunity analysis: whether 27 clearly established fact-specific precedent existed that rendered the officers’ use of 28

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1 deadly force against Carlson unconstitutional.3 Thus, the Court must determine 2 whether the officers’ conduct “violate[d] clearly established statutory or 3 constitutional rights of which a reasonable person would have known.” Bryan v. 4 MacPherson, 630 F.3d 805, 832 (9th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 5 U.S. 800, 818 (1982)). 6 As discussed above, the Court finds that there are genuine disputes of material 7 fact as to the circumstances surrounding Crespin’s and Knox’s use of deadly force 8 against Carlson. Thus, the Court views all disputed facts in the light most favorable 9 to Plaintiffs, the non-movants. Under this recitation of the facts, the officers fired 10 lethal gunshots at Carlson when he had not and was not committing any crime, had 11 no weapon, made his empty hands visible to the officers, did not threaten or move 12 toward the officers, and complied with the officers’ commands—thereby posing no 13 immediate threat to the officers or others. At the time of these events, every police 14 officer would have known that it is objectively unreasonable to shoot an unarmed 15 suspect who poses no immediate threat. See Tennessee v. Garner, 471 U.S. 1, 11 16 (1985) (“A police officer may not seize an unarmed, nondangerous suspect by 17 shooting him dead.”). Thus, viewing the disputed facts in the light most favorable to 18 Plaintiffs, it was clearly established at the time of the incident that Crespin’s and 19 Knox’s deadly force against Carlson was unconstitutional. See id. (concluding 20 deadly force is permissible only when “the suspect threatens the officer with a 21 weapon or there is probable cause to believe that he has committed a crime involving 22 the infliction or threatened infliction of serious physical harm . . . .”). 23 In summary, there is a genuine dispute of material fact regarding whether 24 Carlson posed an immediate threat to the officers or others, which precludes the 25 Court from finding the officers’ force against Carlson was not a constitutional 26 violation. See Smith, 394 F.3d at 701 (“Because [the excessive force inquiry] nearly 27 3 Although Defendants argue that there is no fact-specific precedent regarding Crespin’s and 28 Knox’s deadly force against Carlson, Defendants do not assert this same argument as applied to Carlson’s parents. (See Mot. 24–26.) Thus, the Court does not consider such an argument.

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1 always requires a jury to sift through disputed factual contentions, and to draw 2 inferences therefrom, we have held on many occasions that summary judgment or 3 judgment as a matter of law in excessive force cases should be granted sparingly.” 4 (alteration in original)); see also Headwaters Forest Def. v. County of Humboldt, 5 240 F.3d 1185, 1198 (9th Cir. 2001), cert. granted, judgment vacated, 534 U.S. 801 6 (2001) (“Although excessive force cases can be decided as a matter of law, they 7 rarely are because the Fourth Amendment test for reasonableness is inherently fact- 8 specific.”) Additionally, Defendants did not meet their burden to show that the use of 9 force against Carlson’s parents was not a constitutional violation. Finally, 10 Defendants failed to show Crespin and Knox are entitled to qualified immunity based 11 on a lack of fact-specific precedent rendering their deadly force unconstitutional. 12 Thus, the Court DENIES Defendants’ Motion as to Plaintiffs’ excessive force claim. 13 B. Municipal Liability Claims 14 Pursuant to 42 U.S.C. § 1983, Plaintiffs assert municipal liability claims for 15 (i) an unconstitutional custom, policy or practice, (ii) ratification, and (iii) failure to 16 train. Defendants seek summary judgment on all three claims, arguing that Plaintiffs 17 lack supporting evidence. As explained below, the Court finds that a reasonable jury 18 could conclude that Plaintiffs offer sufficient evidence to establish their claims. 19 1. Municipal Liability Against Individual Officers 20 Defendants first argue that they are entitled to summary judgment on 21 Plaintiffs’ municipal liability claims against Crespin, Knox, and Valdivia because 22 there is no evidence of any constitutional violation, as required under Monell v. Dep’t 23 of Soc. Servs., 436 U.S. 658 (1978). (Mot. 26.) As discussed, the Court finds there is 24 a genuine dispute of material fact as to whether the officers’ force was a 25 constitutional violation. Thus, the Court denies Defendants’ Motion as to this claim. 26 2. Unconstitutional Custom or Policy 27 Defendants next seek summary judgment as to Plaintiffs’ second claim against 28 the City, arguing that Plaintiffs have no evidence of an unconstitutional custom or

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1 policy. (Mot. 26–27.) In Monell, the Supreme Court held that municipalities may be 2 held liable under § 1983 only for constitutional violations resulting from official 3 county custom or policy. 436 U.S. at 694. “The custom or policy must be a 4 deliberate choice to follow a course of action . . . made from among various 5 alternatives by the official or officials responsible for establishing final policy with 6 respect to the subject matter in question.” Benavidez v. County of San Diego, 7 993 F.3d 1134, 1153 (9th Cir. 2021) (alteration in original; internal quotation marks 8 omitted). The policies can include “written policies, unwritten customs and practices, 9 [and] failure to train municipal employees on avoiding certain obvious constitutional 10 violations.” Id. 11 Here, the parties agree that the City “had policies in effect at the time of 12 plaintiffs’ incident regarding the use of force and investigating domestic violence 13 calls.” (DSUF 53.) Defendants contend that these policies “complied with 14 applicable law” and therefore were not unconstitutional. (Mot. 27.) In support of 15 their contention, Defendants provide copies of these policies. (Smith Decl. ¶¶ 25, 26, 16 Exs. 23, 24, ECF Nos. 45-7, 45-8.) In opposition, Plaintiffs argue that “[o]n 17 Plaintiffs’ facts, City has a widespread, pervasive practice of insulating deputies from 18 accountability of shootings.” (Opp’n 22–23.) Specifically, Plaintiffs contend that in 19 the ten years prior to the incident, the City (i) determined that “zero” RBPD officer’s 20 use of deadly force has been out of policy, (ii) sustained “zero” unreasonable force 21 complaints, (iii) terminated “zero” RBPD officers due to a use of force issue, and 22 (iv) have disciplined “zero” officers as a result of their use of deadly force. 23 (PSGD 175.) Plaintiffs cite to several interrogatory responses in support of these 24 contentions. Defendants do not dispute these facts. (Defs.’ Resp. PSGD 175.) 25 Plaintiffs contend the City applied their practice of insulating officers from 26 accountability in this case by failing to take investigative or remedial action toward 27 the responding officers following the incident. Citing to numerous deposition 28 testimonies and responses to requests for admission, including testimony and

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1 responses provided by Defendants, Plaintiffs assert that (i) the officers were not 2 discipled by any person or agency for their actions during the incident; (ii) there was 3 no debriefing in the RBPD following this incident and the City did not conduct an 4 internal investigation into this incident; (iii) Defendants were not required to repeat 5 any training or undergo any additional training concerning the use of force based on 6 their actions during the incident; and (iv) Defendants did not provide any training or 7 retraining, or revise any policies or training, as a result of the incident. (Id. at 176– 8 179.) Defendants again do not dispute these facts. (Defs.’ Resp. PSGD 176–179.) 9 Based on Plaintiffs’ assertions and supporting evidence, a reasonable jury could find 10 that the City has at least an unwritten policy of not investigating, redressing, or 11 otherwise responding to excessive force incidents, which could constitute an 12 unconstitutional policy. Thus, the Court denies Defendants’ Motion as to this claim. 13 3. Ratification or Authorization 14 Defendants next contend that Plaintiffs have no evidence of the City ratifying 15 or authorizing an unconstitutional policy or custom, as required by Monell, and 16 Defendants and therefore entitled to summary judgment on Plaintiffs’ third claim. 17 (Mot. 27–28.) Municipalities alternatively “may be held liable under § 1983 when 18 the individual who committed the constitutional tort was an official with final 19 policy-making authority or such an official ratified a subordinate’s unconstitutional 20 decision or action and the basis for it.” Gravelet-Blondin v. Shelton, 728 F.3d 1086, 21 1097 (9th Cir. 2013) (internal quotation marks omitted). Here, the same evidence 22 Plaintiffs cite to support their claim of an unconstitutional custom or policy also 23 supports their claim that the City ratified or authorized such custom or policy. Thus, 24 the Court finds that a reasonable jury could conclude that Plaintiffs met their burden 25 as to this claim and the Court therefore denies summary judgment for Defendants. 26 4. Failure to Train 27 Finally, Defendants argue that Plaintiffs have no evidence of a failure to train 28 the officers and therefore cannot meet the elements of their fourth claim. (Mot. 28.)

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1 Here, Defendants cite to undisputed facts supported by evidence that RBPD officers 2 received training with respect to the use of force and responding to domestic dispute 3 calls. (DSUF 48.) Defendants state that Crespin was never trained that he could 4 shoot someone for merely seeing a gun in their hand but was trained that a warning 5 should be given when feasible. (Id. at 49–50.) Crespin was also trained to “to 6 reassess the situation and use the appropriate tools and force given” if a suspect 7 complied with his commands to drop the weapon. (Id. at 51.) Defendants contend 8 that Knox “was never trained that he could shoot someone if he could see their hands 9 and they did not have a weapon in their hands.” (Id. at 52.) In support of these 10 contentions, Defendants cite to the deposition testimonies of all three officers. 11 In opposition, Plaintiffs cite to the opinion of their police practices expert, 12 Roger Clark, finding “that the City of Redondo Beach has inadequate training and 13 policies regarding the use of force and tactics.” (PSGD 167.) Plaintiffs also cite to 14 deposition testimony and responses to requests for admission to support their claim 15 that the City failed to train RBPD officers to use deadly force only “as a last resort” 16 and “in limited circumstances.” (Id. at 168.) Based on this evidence, a reasonable 17 jury could find that the City has indeed failed to adequately train its officers. 18 Accordingly, the Court cannot grant summary judgment for Defendants on this claim. 19 Thus, Plaintiffs have offered evidence sufficient for a reasonable jury to find 20 for Plaintiffs on each of their municipal liability claims. The Court therefore 21 DENIES Defendants’ Motion for summary judgment on these claims. 22 C. State Law Claims 23 Defendants also move for summary judgment on Plaintiffs’ state law claims 24 for battery and negligence, negligent infliction of emotional distress (“NIED”), and 25 violation of the Bane Act. (Mot. 28–29.) As explained below, genuine disputes of 26 material fact preclude the Court from granting summary judgment on these claims. 27 28

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1 1. Battery 2 Defendants seek summary judgment on Plaintiffs’ battery claim, summarily 3 arguing that it fails “for the same reason their federal claim fails.” (Mot. 28.) 4 However, a battery claim arising out of excessive force by a peace officer is 5 evaluated by way of traditional Fourth Amendment analysis under Graham. See 6 Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1102 (2004), modified on 7 denial of reh’g (Aug. 17, 2004), disapproved of on other grounds by Hayes v. County 8 of San Diego, 57 Cal. 4th 622 (2013). As discussed, there are genuine disputes of 9 material fact as to whether the officers used unreasonable force against Carlson and 10 his parents. Thus, summary judgment on the battery claim is also inappropriate. 11 2. Negligence 12 Defendants seek summary judgment on Plaintiffs’ negligence claim, also 13 summarily arguing that it fails for the same reasons the federal claims fail. (Mot. 28.) 14 As the Court finds that genuine disputes of material fact preclude summary judgment 15 on those claims, Defendants are also not entitled to summary judgment on Plaintiffs’ 16 negligence claim. 17 3. NIED 18 Defendants move for summary judgment on Plaintiffs’ NIED claim, arguing 19 that it is not an independent tort. (Mot. 28–29.) Defendants are correct that the 20 California Supreme Court “has made abundantly clear, there is no such thing as the 21 independent tort of negligent infliction of emotional distress” and that an NIED claim 22 is merely a theory of recovery falling within the ambit of negligence claim. Hardin 23 v. Wal-Mart Stores, Inc., 813 F. Supp. 2d 1167, 1178 (E.D. Cal. 2011) (quoting 24 Lawson v. Mgmt. Activities, 69 Cal. App. 4th 652, 656 (1999)). However, 25 Defendants seek summary judgment on Plaintiffs’ NIED claim only insofar as 26 Plaintiffs assert it as an independent cause of action—and do not substantively 27 dispute Plaintiffs’ ability to recover for NIED as a part of their negligence claim. 28 Because the Court does not find that Defendants are entitled to summary judgment on

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1 Plaintiffs’ negligence claim, the court also does not find that they are so entitled as to 2 Plaintiffs’ NIED claim. 3 4. Bane Act 4 Defendants also seek summary judgment on Plaintiffs’ Bane Act claim, 5 arguing that “the uncontroverted facts demonstrate that defendants’ use of force was 6 objectively reasonable under the totality of the circumstances.” (Mot. 29.) The Court 7 has determined this is not the case, and based on genuine disputes of material fact, a 8 reasonable jury to find Defendant Officers’ use of force unreasonable. 9 California Civil Code section 52.1 provides a claim “against anyone who 10 interferes, or tries to do so, by threats, intimidation, or coercion, with an individual’s 11 exercise or enjoyment of rights secured by federal or state law.” Jones v. Kmart 12 Corp., 17 Cal. 4th 329, 331 (1998). A Bane Act claim is premised on the violation of 13 a federal constitutional right, and as such, a court must look to the elements of the 14 constitutional claim to determine whether a Bane Act claim has merit. See Knapps v. 15 City of Oakland, 647 F. Supp. 2d 1129, 1168 (N.D. Cal. 2009) (“The elements of a 16 section 52.1 excessive force claim are essentially identical to those of a § 1983 17 excessive force claim.”). As discussed above, there are genuine disputes of material 18 fact as to whether Defendants violated Plaintiffs’ constitutional rights. Accordingly, 19 summary judgment is not appropriate on the Bane Act claim. 20 Thus, Plaintiffs have offered evidence sufficient for a reasonable jury to find 21 for Plaintiffs on each of their state law claims. The Court therefore DENIES 22 Defendants’ Motion for summary judgment on these claims. 23 D. Punitive Damages 24 Finally, Defendants seek summary judgment as to Plaintiffs’ claim for punitive 25 damages, arguing that “there is no evidence that the defendants acted with malice, 26 oppression, or reckless disregard toward plaintiff’s rights.” (Mot. 30.) The Court 27 disagrees. Under California law, punitive damages are appropriate only “if the 28 defendant acted with intent or engaged in ‘despicable conduct.’” In re First All.

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1 || Mortg. Co., 471 F.3d 977, 998 (9th Cir. 2006) (quoting Cal. Civ. Code § 3294(c)). 2|| Punitive damages may be warranted even if the “despicable conduct” merely 3 | involves a conscious disregard of the rights and safety of others, without an 4|| affirmative intent to injure. /d. Based on the above discussion, a reasonable jury 5 | could find that Defendants acted with a “conscious disregard” for Plaintiffs’ rights 6 || and safety. Thus, the Court DENIES Defendants’ Motion for summary judgment as 7 || to punitive damages. 8 VI. CONCLUSION 9 For the reasons discussed above, the Court DENIES Defendants’ Motion for 10 | Summary Judgment. (ECF No. 45.) 11 12 IT IS SO ORDERED. 1B N Z □□ 14 May 12, 2022 HE: ATL Bp ‘ GM iid

16 OTIS D. WRIGHT, I 4 NITED STATES DISTRICT JUDGE

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