Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 1 of 32

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 RICHARD W. KOLLIN, No. 1:18-cv-00617-NONE-JLT 12 Plaintiff, 13 v. ORDER DENYING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

14 CITY OF TEHACHAPI, et al., (Doc. No. 64) 15 Defendants. 16

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18 Plaintiff Richard W. Kollin filed this lawsuit against defendants City of Tehachapi and

19 various Tehachapi Police Department (“TPD”) officials in their individual capacity, including

20 Officer Bruce Medina (“Medina”), Officer Jared McCombs (“McCombs”), Sergeant Amelia

21 Thompson, and Chief of Police Kent Kroeger (also in his official capacity), after plaintiff was

22 shot twice in the back during a foot pursuit by Officers Medina and McCombs. Plaintiff brings a

23 claim for excessive use of force in violation of the Fourth Amendment to the U.S. Constitution, in

24 addition to state law claims for negligence, battery, and violation of California’s Bane Act. (Doc.

25 No. 33.) Currently pending before the court is defendants’ motion for summary judgment in

26 which they argue that the evidence presented: (1) establishes that the shooting of plaintiff was

27 objectively reasonable under the Fourth Amendment; (2) entitles defendants to qualified

28 immunity; and (3) that plaintiff’s state law claims fail in the absence of a constitutional violation. 1 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 2 of 32

1 (Doc. No. 64 at 2:5–8.) For the reasons set forth below, defendants’ motion for summary

2 judgment will be denied in its entirety.

3 BACKGROUND

4 The facts set forth below are based on the parties’ submission of the joint statement of

5 material facts (“JF”),1 which also includes plaintiff’s material facts and defendants’ responses

6 submitted thereto (“PF”). (Doc. No. 64-1.) Because defendants are moving for summary

7 judgment, the evidence regarding the incident submitted by plaintiff is critical to the resolution of

8 the pending motion. Below, the court will summarize all of the evidence before it on summary

9 judgment.

10 A. The Facts

11 On May 24, 2017, plaintiff was driving for work when he decided to stop at a Holiday Inn

12 Express in Tehachapi, California (“Holiday Inn”). (PF ¶ 22.) At approximately 11:15 p.m., TPD

13 received a report of a suspicious person—plaintiff—who had parked his vehicle in the parking lot

14 behind the Holiday Inn and had “been there for hours, and mov[ed] parking spots all night.”

15 (Doc. No. 64-3 (computer-aided dispatch report); see JF ¶ 1.) Officers Medina and McCombs

16 responded to the Holiday Inn, driving marked police vehicles. (JF ¶¶ 1–2.) Officer Medina knew

17 that there had been recent burglaries in the area, including at the Holiday Inn, and of one incident

18 where firearms were stolen from a vehicle. (Id. ¶ 3 (plaintiff objecting as to relevance of Officer

19 Medina’s knowledge); see Doc. No. 64-3 at 22 (deposition of Officer Medina).)2

20 Upon arriving at the parking lot, the officers stopped and detained plaintiff. (JF ¶ 4.) 21 Officer Medina “thoroughly” searched plaintiff for 20 seconds but found no “obvious weapons.”

22 (Id. ¶ 5; PF ¶ 25.) The search was a “modified standing search,” which consists of “having a

23 person spread their legs, in a standing position, with their back to the officer and hands interlaced

24 on top of the head.” (PF ¶¶ 24–25.) The parties dispute whether Officer Medina patted down “all

25 1 26 Plaintiff contends that JF numbers 1–4, 6–9, 11–13, and 20–21 are undisputed but JF numbers 5, 10, and 14–19 are disputed. (Doc. No. 64-1 at 1:23–25.) 27 2 There is no evidence before the court on summary judgment that plaintiff was connected to any 28 of the prior burglaries. 2 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 3 of 32

1 areas” where a person could conceal a firearm, because defendants assert that Officer Medina did

2 not search plaintiff’s “crotch or inside his boots.” (PF ¶ 25; but see Doc. No. 64-5 at 10:5–7.)3

3 Officer McCombs was aware that Officer Medina’s modified standing search of plaintiff did not

4 result in the recovery of any weapons. (PF ¶ 27.) Plaintiff also allowed Officer McCombs to

5 search his vehicle. (JF ¶ 6.) Officer McCombs saw an empty holster and military fatigues but did

6 not find any weapons inside plaintiff’s vehicle. (Id.)

7 While being questioned, plaintiff falsely told one of the officers that his name was “Rick

8 Knight.” (Id. ¶ 7.) Plaintiff declares that Officer Medina was “very nervous and aggressive”

9 during the questioning and was “constant[ly]” reaching for his firearm. (Doc. No. 65-11 ¶ 4.)

10 According to plaintiff, Officer Medina’s “nervous behavior caused [plaintiff] to fear for [his]

11 life,” and he “decided to run.” (Id.) According the parties, it is undisputed that plaintiff fled from

12 the officers while being lawfully detained. (JF ¶ 8.)

13 As he began to run, Officer Medina ordered plaintiff to “stop.” (Id. ¶ 9.) Defendants

14 assert that plaintiff yelled he had a gun and would shoot Officer Medina. (Id. ¶ 10; see Doc. No.

15 64-3 at 39 (deposition of Officer Medina).) Plaintiff disputes this. (JF ¶ 10.)4 Officer Medina

16 then performed a leg sweep on plaintiff, causing plaintiff to fall. (Id. ¶ 11.) Plaintiff stood up and

17 Officer Medina deployed a taser against plaintiff, which was ineffective. (Id. ¶ 12.) Plaintiff

18 continued to run away after Officer Medina’s unsuccessful attempt to subdue plaintiff with a

19 taser. (Id. ¶ 13.)

20 While running away again, defendants assert that plaintiff twice yelled again that he had a 21 gun. (Id. ¶ 14; see Doc. No. 64-3 at 74 (deposition of Officer McCombs).) Plaintiff disputes

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24 3 Officer Medina testified at his deposition that he searched plaintiff by crossing his hand across 25 plaintiff’s waistband as far as his hand could reach that area. (Doc. No. 64-5 at 10:17–20.) 26 4 Plaintiff disputes this, arguing that Officer Medina’s statement is self-serving because: (1) 27 Officer Medina’s modified standing search discovered no weapons on plaintiff; (2) Officer McCombs knew the search revealed no weapons; and (3) both officers refused to provide an 28 official statement regarding this incident until more than two months after the incident. (JF ¶ 10.) 3 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 4 of 32

1 this. (JF ¶ 14.)5 Officer McCombs broadcasted over the TPD radio that plaintiff had a gun. (JF

2 ¶ 15.) Plaintiff continued to run from the officers. (Id. ¶ 16.) Defendants assert that plaintiff

3 began to reach in his waistband at this point of the chase. (Id.; see Doc. No. 64-3 at 49

4 (deposition of Officer Medina), 75 (deposition of Officer McCombs).) Plaintiff disputes making

5 this movement. (JF ¶ 16.)6 Defendants assert that Officer McCombs warned plaintiff to stop or

6 he would be shot. (Id. ¶ 17; see Doc. No. 64-3 at 76 (deposition of Officer McCombs).) Plaintiff

7 purports to dispute that Officer McCombs provided such a warning. (JF ¶ 17.)7 Officer Medina

8 broadcasted over the TPD radio that plaintiff was reaching for his waistband. (Id. ¶ 18.)

9 Defendants assert that plaintiff then “abruptly turned clockwise (right) and extended his

10 right arm and fist in a shooting position.” (JF ¶ 19; see Doc. No. 64-3 at 50–51 (deposition of

11 Officer McCombs), 77–78 (deposition of Officer McCombs).) Plaintiff disputes that he made

12 these movements. (JF ¶ 19.)8 Officer McCombs then fired four shots and Officer Medina fired

13 5 It would appear that plaintiff cannot dispute this evidence directly because he has no 14 recollection of the incident. Nonetheless, plaintiff contests this fact arguing that Officer Medina’s 15 statement is self-serving because: (1) Medina’s modified standing search revealed no weapons on plaintiff; (2) Officer McCombs knew the search revealed no weapons; and (3) both officers 16 refused to provide an official statement regarding this incident until after more than two months. (JF ¶¶ 10, 14, 16.) 17 6 Again, the basis for plaintiff’s dispute with this evidence is based on his argument that Officer 18 Medina’s statement in this regard is self-serving for the same reasons set forth in fn. 5, above. 19 7 It does not appear that plaintiff actually disputes Officer McCombs’ assertion of providing a 20 warning before shooting. Citing to the portion of Officer McCombs’ deposition where he testified that he warned plaintiff prior to shooting, plaintiff argues that only one inference can be 21 drawn from the timing of Officer McCombs’ warning, not that Officer McCombs failed to 22 provide a warning. (JF ¶ 17; PF ¶ 29 (Plaintiff “could not have posed any threat of imminent serious bodily harm or death because officer McCombs decided to fire at him before he allegedly 23 turned his torso and pointed his arm at him.”).)

24 8 Plaintiff disputes this evidence on the basis that: (1) Officer McCombs decided to fire at plaintiff before plaintiff allegedly turned his torso and pointed his arm at the officers; 25 (2) defendants’ expert witness fails to corroborate the officers’ claims that plaintiff’s arm was 26 extended when he was shot; (3) defendants’ trajectory analysis fails to support the officers’ claims that plaintiff’s arm was extended when he was shot; (4) the shells from the bullet casings 27 demonstrate that the officers were standing still, and not running, when they shot plaintiff; and (5) the shells from the bullet casings also demonstrate that plaintiff had fallen to the ground 28 before he was shot. (JF ¶ 19; PF ¶¶ 29–32.) 4 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 5 of 32

1 two shots at plaintiff, hitting him. (JF ¶¶ 20, 21.)

2 Plaintiff contends that the other evidence before the court on summary judgment calls into

3 question the version of the events precipitating the shooting offered by Officers McCombs and

4 Medina. First, plaintiff asserts that Officer McCombs decided to fire at him before he allegedly

5 turned his torso and pointed his arm at the officer. (PF ¶ 29; see Doc. No. 64-5 at 25 (deposition

6 of Officer McCombs: “Prior to him turning, I had told him, ‘Stop, or I’m going to shoot you.’”)

7 Defendants do not dispute “[t]he timing of the warning.” (PF ¶ 29.) Second, plaintiff contends

8 that defendants’ bullet-trajectory expert “fails to corroborate the officers’ claim that [plaintiff]

9 ‘extended his right arm and made a fist in a shooting position.’” (PF ¶ 30) (quoting JF ¶ 19) (See

10 Doc. No. 64-5 at 27–28 (deposition of Jeremy J. Bauer).) Defendants, however, counter by

11 arguing that their expert has opined “that the evidence is consistent with the officers’ statements.”

12 (PF ¶ 30.) “In fact,” plaintiff claims, “defendants’ trajectory says nothing about the position of

13 [plaintiff’s] right arm. It only confirms that [his] right side of his torso was facing the shooter.”

14 (Id. ¶ 31; see Doc. No. 64-5 at 27–28 (deposition of Jeremy J. Bauer).) Plaintiff asserts that the

15 evidence of the discharged bullet shell casings show that the officers were actually standing still

16 at the time of the shooting, contrary to their earlier assertions that they were running when they

17 fired upon plaintiff. (PF ¶ 32.) Plaintiff also claims that he “had likely fallen to the ground prior

18 to being shot by both officers.” (Id.) Defendants “do not dispute physical evidence,” but note

19 that plaintiff “offers no evidence to support his opinion” that the physical evidence demonstrates

20 plaintiff did not pose an immediate threat prior to getting shot. (Id.) 21 In any event, it is undisputed that plaintiff was unarmed during the entire incident. (Id.

22 ¶ 28 (undisputed but defendants objecting as immaterial post-incident discovery).)

23 B. Bullet Trajectory Analysis

24 Plaintiff has submitted a bullet trajectory schematic prepared by Kern County Coroner,

25 Dr. Eugene Carpenter. (Doc. No. 65-8; see also Doc. No. 65 at 13:20–22.) Dr. Carpenter’s

26 schematic is labeled “Kollin,” and portrays two sides of a human body (i.e., the front and the 27 back) to demonstrate the location on plaintiff’s body where the bullets fired by the officers

28 entered him, as well as the angle from which they entered his body. (Id.) The schematic prepared 5 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 6 of 32

1 by Dr. Carpenter shows that plaintiff was shot twice on the back side of his body. (Id.) The first

2 bullet entered through the back of plaintiff’s right shoulder. (Id.) The schematic shows that the

3 first bullet traveled from a point lower than plaintiff’s right shoulder, at a 45-degree angle in an

4 upward direction, until it entered the back of plaintiff’s right shoulder. (Id.) The second bullet

5 entered through the back side of plaintiff’s right flank region. The schematic shows that the

6 second bullet traveled from a point higher than plaintiff’s flank, at a 45-degree angle in a

7 downward direction, until it entered the back side of plaintiff’s right flank. (Id.) Plaintiff also

8 cites two exchanges from Dr. Carpenter’s deposition to support his assertion that the bullet wound

9 evidence demonstrates that plaintiff may have been in a sitting position on the ground, with his

10 torso upright at the time he was shot. (Doc. No. 65-9 at 1:23–2:18, 3:14–4:14.)

11 Additionally, plaintiff has submitted an excerpt of the deposition of defendants’ expert

12 witness, Dr. Jeremy Bauer. (Doc. Nos. 64-5 at 27–28; 65 at 15:5–10.) Plaintiff highlights the

13 following exchange from Dr. Bauer’s deposition:

14 Q: [] Now, going to your opinion, your final opinion, basically it’s your opinion that Mr. Kollin was struck in the right side of the body 15 by two bullets, and that was consistent with him being rotated 90 degrees with respect to the path of the bullet, right? 16 A: Correct. 17 Q: Again, his body’s upper torso being – rotating 90 degrees to the 18 shooter tells us nothing about the actual position of his right arm. True? 19 A: Again, it doesn’t tell us exactly where his right arm is, but we 20 can rule out certain positions. 21 Q: We can rule out that the arm was pressed against his right flank, right? 22 A: Correct. 23 Q: And that’s about all you can rule out? 24 A: As far as the shot to the flank and his right arm, correct.” 25

26 (Doc. No. 64-5 at 27:14–28:6.) 27 In addition, plaintiff points to two photographs that purportedly show where the bullet

28 casings were recovered at the scene of the shooting. (Doc. No. 64-5 at 31–32.) Though the bullet 6 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 7 of 32

1 casings are difficult to locate in the photographs before the court on summary judgment, the

2 evidence markers in the field show that those casings were found about a foot, if not less, from

3 each other. (See id.)

4 C. Aerial Photograph and Video Surveillance of the Holiday Inn Parking Lot

5 Plaintiff has submitted an aerial photograph of the Holiday Inn and the adjacent field.

6 (Doc. No. 64-5.) The photo includes markers identifying where plaintiff’s vehicle was parked,

7 where the police vehicles were parked, where an officer’s notebook was recovered, where a taser

8 was found, and where bullet casings were recovered. (Id.) The field is south of the parking lot

9 and the Holiday Inn. (Id.) Just south of the parking lot is a sidewalk, a road, another sidewalk,

10 and then the field. (Id.) The aerial photo includes a measurement legend estimating the actual

11 distances between various aspects of the scene. (Id.) The field is about 100 feet south of the

12 parking lot. (See id.)

13 The Holiday Inn video surveillance footage has been submitted on summary judgment by

14 both parties (hereinafter “Holiday Inn Video”). (Doc. Nos. 64-3 at 88; 65-1.) The video is taken

15 from some distance and it is therefore impossible to identify the officers or plaintiff on the video.

16 (See id.) However, based on the parties’ representations, the court assumes the video accurately

17 portrays the following events: plaintiff was parked at the edge of the Holiday Inn parking lot.

18 (Id. at 22:12:30.) One patrol vehicle entered the video frame from the left, and one entered the

19 video frame from the bottom. (Id. at 22:13:15–50.) Because of the brightness of the parking lot

20 lampposts and the patrol vehicle lights, it is difficult to ascertain exactly what occurred next. It 21 appears plaintiff and one police officer were in close proximity to one another (which could be

22 when plaintiff was searched), while one police officer approached plaintiff’s vehicle (which could

23 be when plaintiff’s vehicle was searched). (Id. at 22:14:00–19:30.) When one of the officers

24 finished what appears to be the possible search of plaintiff’s vehicle, that officer joined plaintiff

25 and the other officer near the patrol car that had entered from the left side of the camera angle.

26 (Id. at 22:19:30.) For the next eight minutes of the video, it appears that plaintiff and both 27 officers were near the hood of the patrol car. (Id. at 22:19:30–27:30.) Then, one of the officers

28 returned to plaintiff’s vehicle. (Id. at 22:27:30.) Plaintiff and one of the officers appear to remain 7 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 8 of 32

1 at the hood of the patrol car for approximately two more minutes. (Id. at 22:27:30–29:40.) At

2 that point, plaintiff can be seen fleeing on foot in a southward direction toward the field. (Id. at

3 22:29:40–45.) Both officers gave chase. (Id.) Plaintiff is in the video camera’s frame for

4 approximately seven or eight seconds and, during that time, it does not appear that either officer

5 made any contact with plaintiff. (Id. at 22:29:45–29:53.)

6 Defendants have submitted another copy of the Holiday Inn Video with an audio

7 recording of TPD dispatch and the officers overlaid onto the video. (Doc. No. 64-3 at 86.) The

8 audio-overlaid copy of the video does not provide any more visual clarity with respect to the

9 incident. (See id.)

10 D. Plaintiff’s Interview with the District Attorney’s Office

11 Plaintiff has submitted an audio recording of his interview with a Kern County Deputy

12 District Attorney, conducted about 10 months after the shooting and outside the presence of his

13 counsel. (Doc. No. 65-3.) During the approximately one-hour long interview, plaintiff was

14 questioned about the incident but provided few details. Rather, plaintiff stated he did not

15 remember much. With respect to the beginning of the encounter, plaintiff did respond that he

16 remembered one of the police officers reaching for his gun and that this made plaintiff nervous.

17 (Id. at 16:25–41.) Other than this recollection, plaintiff denied recalling any details from his

18 initial encounter with Officers Medina and McCombs. For example, plaintiff stated during this

19 interview that he did not remember being searched or being patted down by any officer. (Id. at

20 16:43–56.) He also denied remembering anything about what the officers said during the 21 encounter. (Id. at 15:51–16:11.) The following exchange took place at the interview when

22 plaintiff was asked about his recollection of when he decided to flee from the officers:

23 Q: So, you ran. And what—what’s going through your mind when you’re running? 24 A: I’m going to be honest with you, ok? 25 Q: Mhm. 26 A: Ok? 27 Q: Please. 28 8 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 9 of 32

1 A: I’m going to be honest with you. God is my witness. And he’s sitting here right now. I said to myself, “God, please watch over 2 me and please protect me [unintelligible]. This is not going to happen.” Right? And I said, “When I die God, you come get me.” 3 That’s what I said. Because why? Because I knew I was going to die. 4

5 (Id. at 23:30–50.) Plaintiff told his interviewer that he did not recall if he said anything to the

6 officers while running away from them. (Id. at 30:53–31:09.) He also stated that he did not recall

7 how much time passed between when he initially fled and when the officers shot him. (Id. at

8 23:53–23:58.) According to plaintiff, he did not remember being tased. (Id. at 29:03–13.)

9 Additionally, plaintiff stated that he did not remember the moment that he was shot. (Id. at

10 24:47–55, 32:00–20.) However, during the interview plaintiff did provide the following:

11 Q: At some point while they are pursuing you, did you ever turn around and try to scare them off or fight back or something like 12 that? 13 A: No, nothing like that. 14 Q: Did you ever sort of turn around, like “Hey, I—I got a gun,” to make them stop or something like that? 15 A: Oh no, there is no way. I would have never done anything like 16 that. I would have never—you know—and I didn’t have a gun, so why would I say that? I don’t have a gun. 17

18 (Id. at 33:35–34:03.)

19 With respect to the end of the incident, plaintiff told the interviewer that he remembered

20 someone telling him to show his hands after he was shot and on the ground. (Id. at 24:54–25:05.)

21 Therefore, at the time of his interview at the District Attorney’s Office, the statement by plaintiff

22 the closest in time to the incident, it appears that plaintiff remembered only why he decided to

23 flee from the officers, that he did not turn and threaten officers or tell him he had a gun and then

24 waking up on the ground after he was shot. (See, e.g., id. at 16:12–20 (“So I didn’t feel

25 comfortable, and I took off. And when I took off, I remember gunshots. And when I got shot, I

26 was on the ground. And that’s all that I remember.”).)

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1 E. Plaintiff’s Deposition Testimony

2 Plaintiff and defendants have both submit various excerpts from plaintiff’s deposition in

3 support of and in opposition to the pending motion for summary judgment. Just as was the case

4 during his interview at the Kern County District Attorney’s Office, at his deposition plaintiff

5 claimed to remember scant facts surrounding the incident giving rise to this litigation. This is

6 reflected in the following exchange at his deposition:

7 Q: You told me a couple minutes ago that at some point in between when you were shot and when you remember being wheeled across 8 the ground that you were completely knocked out and that you weren’t coherent on what happened. 9 So what I’m trying to get at is – I guess I want to know the last 10 thing you recall before that period where you were completely knocked out. I want to know, for example, did you hit the ground 11 or did you stop forming memories while you were still standing and running? I just want to know what happened immediately 12 preceding that period [prior to losing consciousness] -- 13 A: I don’t remember. I just don’t remember. I don’t remember that. I don’t remember getting shot and I don’t remember – my 14 memory just went completely – I’ve tried to – I’ve tried to go over this in my head, but I haven’t been able to. 15 *** 16 Q: [] What is the last thing you remember? Is it talking to that police officer in the hotel parking lot? 17 A: You know, I remember parts of it, but it’s like I just can’t get it. 18 I can’t put it together. And that’s why they even asked me, do you did he search you, and I said no, because I don’t remember. I just 19 don’t remember. I can’t – and for the life of me, I can’t figure this out. It’s driving me crazy. You know, I want to be able to 20 remember. I want this to come back to me, but I cannot remember. I can’t remember stuff that I used to remember, like I could do 21 fractions. I can’t do them now. Why is that? 22 Q: Okay. Well, I think we’re getting close because we’ve been talking about you and this police officer having a conversation. 23 I just want to know if that’s the last thing you remember or you 24 remember anything after that? 25 A: You know, if – if I told you anything, it would be something that I think that happened and I’m not going to think it. I want to know 26 it. I want to know for sure. 27 Q: So do I, which is why I keep asking what’s the last thing you know happened before this period of time where your memory cuts 28 in? 10 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 11 of 32

1 A: Okay. I don’t – I don’t – I don’t remember. I can’t – I can’t be accurate. I can’t be a – I can’t be a good witness to it. You know, 2 as much as I want to be a good witness to it, I want to be a really good witness and say this is what happened, this is what they did. 3 But I do remember these things, certain things as I go, I remember that, I remember it. And I know myself, I would never run from a 4 cop. I would never do that. I had no reason to do that. That’s not what I would do. I don’t do those things. 5

6 (Doc. No. 64-3 at 3:5–21, 8:6–9:14.)

7 At his deposition, plaintiff testified he was not even sure how the encounter with Officers

8 Medina and McCombs began. (Id. at 10:15–18 (“I’m sure that, you know, he just didn’t all of a

9 sudden appear. You know, but I just don’t remember exactly how – it was done or whatever.”).)

10 Plaintiff testified at least twice in his deposition that he did not remember being searched by the

11 officers. (Id. at 5:16–23, 6:10–12, 8:10–13.) While plaintiff remembered at his deposition that

12 one of the officers appeared nervous (id. at 6:1–9), he could not give a physical description of that

13 officer. (Id. at 6:15–16 (“I don’t remember anything about him.”).) Plaintiff could not remember

14 running through the field, but only thought he must have done so, since that’s what he had been

15 told by his attorney. (Id. at 4:6–12, 4:21–23.) At his deposition, plaintiff also testified he did not

16 remember having his legs swept out from under him during the officers’ foot pursuit. (Id. at

17 12:2–5.) The following exchange at plaintiff’s deposition addressed the end of that foot pursuit:

18 Q: Do you have any memory of making a gesture whereby you pointed back towards the police with your right hand right before 19 you got shot?

20 A: No, I don’t – I don’t have anything – I would – would never even – why would I – I’m trying to run from the cops. Why would 21 I point back and wave at them?

22 (Id. at 65-4 at 1:8–14.) Finally, plaintiff testified he did not remember being shot. (Doc. No. 64-

23 3 at 7:4–5.)

24 F. Plaintiff’s Declaration Submitted in Opposition to the Summary Judgment Motion

25 Plaintiff has also submitted a declaration in opposition to defendants’ summary judgment

26 motion. (Doc. No. 65-11.) Therein, plaintiff declares as follows. At the time of the incident, he

27 weighed about 220 pounds and was about five feet and three inches tall. (Id. ¶ 1.) On the night in

28 question, he was wearing shorts, a t-shirt, and a pair of work boots and was on his way to 11 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 12 of 32

1 Bakersfield to pick up a throttle cable for his septic truck. (Id. ¶¶ 1–2.)

2 While parked in the Holiday Inn parking lot, plaintiff was approached by the officers.

3 (See id. ¶ 3.) Plaintiff consented to his body and car being searched, but he did not have a

4 weapon on his body or in his car. (Id.) As Officer Medina began to question him, Officer

5 Medina “appeared very nervous and aggressive” and was repeatedly “reaching for his firearm.”

6 (Id. ¶ 4.) Accordingly, plaintiff decided to run.9 (Id.) Although he addressed the foot pursuit,

7 plaintiff’s declaration provides few details about it. (See id. ¶¶ 4–7.) According to plaintiff, he

8 “lost consciousness” after he fell to the ground and felt the taser make contact with his body. (Id.

9 ¶ 6.) He “woke up on a gurney and found out [he] was shot twice in [his] back area” and was

10 then airlifted to a hospital for medical care. (Id. ¶ 7.) Plaintiff declares that “[a]t no point during

11 the entire incident did [he] threaten the officers nor did [he] ‘turn [his] torso clockwise’ and ‘point

12 [his] right arm at them.’” (Id. ¶ 5.)

13 Plaintiff avers that he suffers from “partial memory loss” as a result of the shooting

14 incident. (Id. ¶ 8.) “Mentally, [he] experience[s] periods of time when it’s arduous coping with

15 memories of the traumatic and near-death experience.” (Id. ¶ 10.) According to his declaration,

16 this “experience has been, and persists to be, physically debilitating as [he] continue[s] to endure

17 numbing pain and limited mobility.” (Id.)

18 As a threshold matter, defendants argue the court to find that plaintiff submitted a “sham

19 affidavit” in opposition to the pending motion for summary judgment and disregard plaintiff’s

20 declaration. (Doc. No. 68 at 2–5.) “The general rule in the Ninth Circuit is that a party cannot 21 create an issue of fact by an affidavit contradicting his prior deposition testimony.” Van Asdale v.

22 Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (quoting Kennedy v. Allied Mut. Ins. Co.,

23 952 F.2d 262, 266 (9th Cir. 1991)). A district court may “disregard ‘sham’ affidavits that

24 contradict deposition testimony submitted solely to generate [an] issue of fact for summary

25 judgment purposes.” Adler v. Fed. Republic of Nigeria, 107 F.3d 720, 728 (9th Cir. 1997). At

26 the same time, however, “the sham affidavit rule should be applied with caution because it is in 27 9 Plaintiff provides no other details of the initial encounter and does not address in his declaration 28 any words spoken between him and the officers. 12 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 13 of 32

1 tension with the principle that the court is not to make credibility determinations when granting or

2 denying summary judgment” or weighing conflicting evidence. Yeager v. Bowlin, 693 F.3d 1076,

3 1080–81 (9th Cir. 2012) (internal quotations and citation omitted); see also Van Asdale, 577 F.3d

4 at 998. There are thus two important limitations on a district court’s discretion to disregard a

5 sham affidavit. Van Asdale, 577 F.3d at 998. First, the district court must make a factual

6 determination that the contradiction was actually a “sham”; and second, the inconsistency

7 between the prior testimony and subsequent affidavit must be clear and unambiguous. Id. at 998–

8 99. The non-moving party is not prohibited from elaborating on or clarifying prior testimony and

9 “minor inconsistencies that result from an honest discrepancy, mistake, or newly discovered

10 evidence.” Id. at 999.

11 In Yaeger, for example, the plaintiff testified during his deposition that he “did not recall”

12 the answer to many questions that were “central to the case.” 693 F.3d at 1080. Three months

13 later in opposition to a motion for summary judgment, he submitted a declaration recalling “those

14 same events with perfect clarity” but provided no “credible explanation as to how his recollection

15 was refreshed.” Id. The disparity between the deposition testimony and declaration was “so

16 extreme” as to render them contradictory, and the Ninth Circuit concluded that the district court

17 was within its discretion to disregard the plaintiff’s declaration as a sham. Id. at 1081; see also

18 Kennedy, 952 F.2d at 266 (“[I]f a party who has been examined at length on deposition could

19 raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this

20 would greatly diminish the utility of summary judgment as a procedure for screening out sham 21 issues of fact.” (quoting Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1462 (9th Cir.1985))).

22 It is true that in this case, plaintiff could hardly recall any details regarding the shooting

23 incident based on his personal knowledge during his deposition. He testified that he remembered

24 one of the officers appeared nervous and certain events after he was shot. (Doc. No. 64-3 at 6:1–

25 9, 7:11–8:5.) But plaintiff repeatedly testified he did not remember anything else about the

26 shooting incident, and even stated he could not be a “good witness to it.” (Id. at 9:7–9.) Now, 27 plaintiff states in his declaration that “[a]t no point during the incident” did he threaten the

28 officers in any manner. (Doc. No. 65-11 ¶ 5.) This inconsistency between plaintiff’s deposition 13 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 14 of 32

1 and his declaration would appear to be “clear and unambiguous” with respect to his current claim

2 of never threatening the officers. See Van Asdale, 577 F.3d at 998–99. Plaintiff argues that to the

3 extent his deposition testimony appears to contradict his declaration, the inconsistency can be

4 explained by his claimed trauma-induced memory loss. (See Doc. No. 65-11 ¶¶ 8, 10.) However,

5 plaintiff offers no medical evidence to support this claim. In addition, it is unclear how a

6 purported trauma-induced memory loss would explain why plaintiff forgot critical details about

7 the shooting during his deposition but then remembered them later in opposing summary

8 judgment. See Yeager, 693 F.3d at 1081. However, the court is also compelled to note that

9 plaintiff’s declaration in critical respects is consistent with his earlier recorded statement; the one

10 he gave to the Deputy District Attorney closer in time to the incident and in which he denied ever

11 threatening the officers during the foot pursuit. (See Doc. No. 65-3 at 33:35–34:03.)10

12 Defendants appear to go a step further in arguing plaintiff’s lack of memory regarding the

13 incident means he cannot survive summary judgment. (See Doc. No. 68 at 4–5.) However, as

14 discussed in further detail below, plaintiff has come forward with evidence—not based on his

15 own memory—giving rise to reasonable inferences that support his version of the shooting. See

16 Eliot v. Cty. of Orange, No. SACV 14-893-CJC, 2016 WL 11505590, at *5 (C.D. Cal. Dec. 1,

17 2016) (denying defendants’ motion for summary judgment where the plaintiff “d[id] not recall the

18 incident” of excessive force because he presented other facts that supported his version of the

19 incident). For instance, plaintiff points to Officer Medina’s deposition testimony regarding the

20 extent of the search of plaintiff that occurred and established he was not armed, (Doc. No. 64-5 at 21 9–16), the materially inconsistent testimony of the officers regarding plaintiff’s verbal threats,

22 (compare Doc. Nos. 64-3 at 39:18–20, and id. at 72–74, with id. at 69:7–9, and 65-6 at 3:21–4:4),

23 the schematics of the scene and the testimony of a Kern County coroner regarding plaintiff’s body

24 position when he was shot twice in the back, (Doc. Nos. 65-8, 65-9), and the testimony of

25 10 26 The court recognizes, as defendants note, that plaintiff also appears to contradict himself with respect to when he lost consciousness during the incident. He went from not remembering when 27 he lost consciousness to knowing the precise moment it happened (i.e., after he was tased). (Compare Doc. Nos. 64-3 at 3:10–17, with 65-11 ¶ 6.) Regardless of the precise moment plaintiff 28 lost consciousness, the fact remains that he remembers very little from the shooting incident. 14 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 15 of 32

1 defendants’ own expert regarding the positioning of plaintiff’s arm at the time he was shot. (Doc.

2 No. 64-5 at 27:14–28:6.) Accordingly, the court need not resolve the question of whether

3 plaintiff’s declaration in opposition to summary judgment is a sham affidavit, because even if the

4 court disregards his declaration, disputed issues of material fact have been established by the

5 evidence before the court thereby precluding a grant of summary judgment in favor of defendants.

6 LEGAL STANDARD

7 Summary judgment is appropriate when the moving party “shows that there is no genuine

8 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

9 Civ. P. 56(a). In summary judgment practice, the moving party “initially bears the burden of

10 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d

11 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving

12 party may accomplish this by “citing to particular parts of materials in the record, including

13 depositions, documents, electronically stored information, affidavits or declarations, stipulations

14 (including those made for purposes of the motion only), admissions, interrogatory answers, or

15 other materials” or by showing that such materials “do not establish the absence or presence of a

16 genuine dispute, or that the adverse party cannot produce admissible evidence to support the

17 fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). If the moving party meets its initial responsibility, the

18 burden then shifts to the opposing party to establish that a genuine issue as to any material fact

19 actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

20 (1986). In attempting to establish the existence of this factual dispute, the opposing party may 21 not rely upon the allegations or denials of its pleadings but is required to tender evidence of

22 specific facts in the form of affidavits, and/or admissible discovery material, in support of its

23 contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11;

24 Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider

25 admissible evidence in ruling on a motion for summary judgment.”). The opposing party must

26 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the 27 suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W.

28 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the 15 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 16 of 32

1 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the

2 nonmoving party. See Wool v. Tandem Computs., Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

3 In the endeavor to establish the existence of a factual dispute, the opposing party need not

4 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

5 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

6 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce

7 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

8 Matsushita, 475 U.S. at 587 (citations omitted).

9 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the

10 court draws “all reasonable inferences supported by the evidence in favor of the non-moving

11 party.” Walls v. Cent. Contra Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is

12 the opposing party’s obligation to produce a factual predicate from which the inference may be

13 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985),

14 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Undisputed facts are taken as true for purposes of a

15 motion for summary judgment. Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 745

16 (9th Cir. 2010). To demonstrate a genuine issue, the opposing party “must do more than simply

17 show that there is some metaphysical doubt as to the material facts . . .. Where the record taken

18 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

19 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

20 Finally, where there is video evidence of the incident giving rise to the excessive force 21 claim, a court must “view[] the facts in the light depicted by the videotape.” Scott v. Harris, 550

22 U.S. 372, 380–81 (2007). Nonetheless, even where video evidence exists, the circumstances may

23 be such that a reasonable factfinders could draw divergent conclusions from what the video

24 evidence shows. See S.R. Nehad v. Browder, 929 F.3d 1125, 1132–39 (9th Cir. 2019) (disputed

25 issues of material fact precluded summary judgment in an action alleging excessive use of force

26 even though the evidence included surveillance footage); Glenn v. Washington Cty., 673 F.3d 27 864, 878 (9th Cir. 2011) (“The circumstances of this case can be viewed in various ways, and a

28 ///// 16 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 17 of 32

1 jury should have the opportunity to assess the reasonableness of the force used after hearing all

2 the evidence.”).

3 Below, the court will consider each of the arguments advanced in support of defendants’

4 motion for summary judgment in light of these standards.

5 DISCUSSION

6 Title 42 U.S.C. § 1983 provides a cause of action for the deprivation of “rights, privileges,

7 or immunities secured by the Constitution or laws of the United States” by a person acting “under

8 color of any statute, ordinance, regulation, custom, or usage.” Gomez v. Toledo, 446 U.S. 635,

9 639 (1980). To succeed on his § 1983 claim, plaintiff must demonstrate that the action

10 (1) occurred “under color of state law,” and (2) resulted in the deprivation of a constitutional or

11 federal statutory right. Leer v. Murphy, 844 F.2d 628, 632–33 (9th Cir. 1988) (citations omitted);

12 see also West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981). As

13 the moving party, defendants bear the initial on summary judgment of pointing out “an absence of

14 evidence to support [plaintiff’s] case.” Celotex, 477 U.S. at 325.

15 A. The Claimed Constitutional Violation: Excessive Force

16 Under the Fourth Amendment, “[t]he right of the people to be secure in their persons,

17 houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and

18 no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. “The Fourth

19 Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those

20 which are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citations omitted); see 21 also United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997) (“For purposes of the

22 Fourth Amendment, a seizure occurs when a law enforcement officer, by means of physical force

23 or show of authority, in some way restrains the liberty of a citizen.”).

24 The Fourth Amendment requires law enforcement officers making an arrest to use only an

25 amount of force that is objectively reasonable in light of the circumstances facing them. Graham

26 v. Connor, 490 U.S. 386, 395 (1989); Tennessee v. Garner, 471 U.S. 1, 7–8 (1985). Determining 27 the objective reasonableness of a particular use of force, requires balancing the “nature and

28 quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing 17 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 18 of 32

1 governmental interests at stake.” Graham, 490 U.S. at 396. Under this standard, “‘[t]he force

2 which [i]s applied must be balanced against the need for that force: it is the need for force which

3 is at the heart of the Graham factors.’” Liston v. Cty. of Riverside, 120 F.3d 965, 976 (9th Cir.

4 1997) (quoting Alexander v. City & Cty. of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994));

5 see also Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003).

6 Thus, in light of the facts and circumstances surrounding a law enforcement officer’s actions,

7 courts “must balance the nature of the harm and quality of the intrusion on the individual’s Fourth

8 Amendment interests against the countervailing governmental interests at stake.” Bryan v.

9 MacPherson, 630 F.3d 805, 823 (9th Cir. 2010) (internal quotations and citation omitted); see

10 also Scott, 550 U.S. at 383–84; Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002); Deorle v.

11 Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001); Liston, 120 F.3d at 976. Thus, “[f]orce is

12 excessive when it is greater than is reasonable under the circumstances.” Santos, 287 F.3d at 854

13 (citing Graham, 490 U.S. 386).

14 “Because the test of reasonableness under the Fourth Amendment is not capable of precise

15 definition or mechanical application, however, its proper application requires careful attention to

16 the facts and circumstances of each particular case, including the severity of the crime at issue,

17 whether the suspect poses an immediate threat to the safety of the officers or others, and whether

18 he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.

19 (internal quotations and citation omitted). “[T]he reasonableness of force used is ordinarily a

20 question of fact for the jury.” Liston, 120 F.3d at 976 n.10. “Because the excessive force inquiry 21 nearly always requires a jury to sift through disputed factual contentions, and to draw inferences

22 therefrom, [the Ninth Circuit has] held on many occasions that summary judgment or judgment as

23 a matter of law in excessive force cases should be granted sparingly.” Avina v. United States, 681

24 F.3d 1127, 1130 (9th Cir. 2012) (internal quotations and citations omitted); see also Green v. City

25 & Cty. of San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014) (“Because this inquiry is inherently

26 fact specific, the ‘determination whether the force used to effect an arrest was reasonable under 27 the Fourth Amendment should only be taken from the jury in rare cases.’” (citation omitted)).

28 ///// 18 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 19 of 32

1 First, with respect to the nature and quality of the intrusion at issue here, shooting a

2 suspect with a firearm constitutes use of deadly force. Blanford v. Sacramento Cty., 406 F.3d

3 1110, 1115 n.9 (9th Cir. 2005) (defining “deadly force” as “force creating a substantial risk of

4 causing death or serious bodily injury” (citing Smith v. City of Hemet, 394 F.3d 689, 704–07 (9th

5 Cir. 2005) (en banc))). It is well established that:

6 The intrusiveness of a seizure by means of deadly force is unmatched. The use of deadly force implicates the highest level of 7 Fourth Amendment interests both because the suspect has a fundamental interest in his own life and because such force 8 frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. 9

10 A. K. H. by & through Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016) (internal

11 quotations and citations omitted). Accordingly, “[d]eadly force is permissible only ‘if the suspect

12 threatens the officer with a weapon or there is probable cause to believe that he has committed a

13 crime involving the infliction or threatened infliction of serious physical harm.’” Id. (quoting

14 Garner, 471 U.S. at 11).

15 Having identified the quantum of force at issue, the court must balance the use of that

16 force against the need for such force. See Glenn, 673 F.3d at 871; Bryan, 630 F.3d at 823; Liston,

17 120 F.3d at 976. In analyzing the government’s interests at issue, courts must consider a number

18 of factors, including (1) the severity of the crime, (2) whether the suspect posed an immediate

19 threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or

20 attempted to evade arrest by flight, and any other exigent circumstances. Estate of Diaz v. City of 21 Anaheim, 840 F.3d 592, 605 (9th Cir. 2016); Glenn, 673 F.3d at 872; Mattos v. Agarano, 661

22 F.3d 433, 441 (9th Cir. 2011) (en banc); Deorle, 272 F.3d at 1280. Courts may also consider,

23 when appropriate, whether a warning was given before force was used. See Deorle, 272 F.3d at

24 1283–84 (“[W]arnings should be given, when feasible, if the use of force may result in serious

25 injury, and . . . the giving of a warning or the failure to do so is a factor to be considered in

26 applying the Graham balancing test.”); see also Glenn, 673 F.3d at 876 (in determining whether 27 an officer’s shooting was reasonable under the Fourth Amendment, courts consider “whether

28 officers gave a warning before employing the force” at issue.”). Ultimately, the court must 19 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 20 of 32

1 “examine the totality of the circumstances and consider whatever specific factors may be

2 appropriate in a particular case, whether or not listed in Graham.” Hughes v. Kisela, 862 F.3d

3 775, 779 (9th Cir. 2016) (internal quotations and citation omitted), rev’d on other grounds,

4 ___U.S.____, 138 S. Ct. 1148 (2018); Mattos, 661 F.3d at 441.

5 Here, it is undisputed that Officers Medina and McCombs shot plaintiff after he ran from

6 them and they pursued him on foot. (JF ¶¶ 8, 13, 20–21.) The Ninth Circuit has explained that in

7 this context, “the Supreme Court has crafted a more definitive rule: An officer may use deadly

8 force to apprehend a fleeing suspect only if ‘the officer has probable cause to believe that the

9 suspect poses a threat of serious physical harm, either to the officer or to others.’” Orn v. City of

10 Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020) (quoting Garner, 471 U.S. at 11) (involving an

11 officer who shot at a suspect attempting to flee in a vehicle). While both parties mention all three

12 Graham factors in connection with the pending motion for summary judgment, the primary focus

13 of their briefs is on whether plaintiff posed an immediate threat to the officers. (See Doc. Nos. 64

14 at 15:15–16:24; 65 at 19:24–23:2.) The court agrees that this is the critical issue for purposes of

15 resolving defendants’ motion for summary judgment. See Vos v. City of Newport Beach, 892

16 F.3d 1024, 1031–32 (9th Cir. 2018) (explaining that “whether [the suspect] posed an immediate

17 threat to the safety of officers or others” was “[t]he most important factor”). “The key question,

18 then, is whether [Officers Medina and McCombs] had an objectively reasonable basis for

19 believing that [plaintiff] posed a threat of serious physical harm” to the officers. See Orn, 949

20 F.3d at 1174. In the context of defendants’ motion for summary judgment, this analysis must be 21 /////

22 /////

23 /////

24 /////

25 /////

26 ///// 27 /////

28 ///// 20 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 21 of 32

1 undertaken while viewing the facts in a light most favorable to plaintiff.11

2 1. Did Plaintiff Pose an Immediate Threat to the Officers?

3 The most important governmental interest factor is whether the suspect poses an

4 immediate threat to the safety of the officer or others. Hughes, 862 F.3d at 779; A. K. H., 837

5 F.3d at 1011; Bryan, 630 F.3d at 826; Smith, 394 F.3d at 702; see also Rodriguez v. Swartz, 899

6 F.3d 719, 728–29 (9th Cir. 2018), vacated on other grounds, 140 S. Ct. 1258 (mem.). It has been

7 recognized that “[a] desire to resolve quickly a potentially dangerous situation is not the type of

8 governmental interest that, standing alone, justifies the use of force that may cause serious

9 injury.” Hughes, 862 F.3d at 780 (quoting Deorle, 272 F.3d at 1281); see also Estate of Diaz,

10 840 F.3d at 605; George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013); Deorle, 272 F.3d at 1281

11 (“[A] simple statement by an officer that he fears for his safety or the safety of others is not

12 enough; there must be objective factors to justify such a concern.”). Accordingly, “even when a

13 felony suspect tries to escape, ‘where the suspect poses no immediate threat to the officer and no

14 threat to others, the harm from failing to apprehend him does not justify the use of deadly force to

15 do so.’” Rodriguez, 899 F.3d at 729 (quoting Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir.

16 1997)). Moreover, “[l]aw enforcement officials may not [use deadly force against] suspects who

17 do not pose an immediate threat to their safety or to the safety of others simply because they are

18 armed.” Roderick, 126 F.3d at 1204; see also George, 736 F.3d at 838 (It has long been

19

20 11 Plaintiff argues that the standard applied by courts when a suspect dies in-custody should apply here because he lost consciousness and suffers from memory loss. (Doc. No. 65 at 21:8– 21 12.) The Ninth Circuit has explained that cases involving an in-custody death pose “a particularly 22 difficult problem” because “the witness most likely to contradict [an officer’s] story” is not available to testify. Gonzalez v. City of Anaheim, 747 F.3d 789, 794–95 (9th Cir. 2014) (quoting 23 Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). In such cases, the court must “carefully examine” the evidence “to determine whether the officer’s story is internally consistent and 24 consistent with other known facts.” Id. (explaining courts “must also examine ‘circumstantial evidence that, if believed, would tend to discredit the police officer’s story’”). There is no 25 authority for the proposition that this standard applies where the plaintiff allegedly lost 26 consciousness and has a limited recollection of the events but is still alive and able to testify. Accordingly, the undersigned rejects plaintiff’s unsupported argument in this regard, while noting 27 that adoption of plaintiff’s contention would not change the outcome under the standard approach which requires viewing the evidence presented in a light most favorable to plaintiff and drawing 28 all reasonable inferences in his favor as the party opposing summary judgment. 21 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 22 of 32

1 established “that the fact that the ‘suspect was armed with a deadly weapon’ does not render the

2 officers’ response per se reasonable under the Fourth Amendment.” (quoting Glenn, 673 F.3d at

3 872–73)); Curnow v. Ridgecrest Police, 952 F.2d 321, 323, 325 (9th Cir. 1991). Nonetheless,

4 officers need not “delay their fire until a suspect turns his weapon on them.” George, 736 F.3d at

5 838. “If the person is armed—or reasonably suspected of being armed—a furtive movement,

6 harrowing gesture, or serious verbal threat might create an immediate threat.” Id.

7 Here, defendants move for summary judgment in their favor, arguing that plaintiff posed

8 an immediate threat to them during the foot pursuit when he said he had a gun, would kill Officer

9 Medina, yelled he had a gun again, reached in his waistband, “abruptly turned,” and “extend[ed]

10 his arm and fist in a manner consistent with pointing a gun at the officers.” (Doc. Nos. 64 at

11 16:6–21; 68 at 6:19–20.) In short, defendants assert that the officers reasonably believed that

12 plaintiff was armed, because he yelled that he had a gun, and they saw him make a series of

13 “furtive” or threatening movements. See George, 736 F.3d at 838. Defendants point to the

14 officers’ depositions where they testified that they saw plaintiff “digging” into his waistband

15 (Doc. No. 64-3 at 49:16–17, 75:10–11), and saw plaintiff turn towards them and extend his right

16 arm with a clenched fist. (Id. at 50:9–11, 77:11–78:10.)

17 Though both officers claim they saw plaintiff make the same threatening movements, the

18 court notes that their recollection of plaintiff’s alleged verbal threats are not consistent with one

19 another. In this regard, defendants cite to the deposition testimony of Officer Medina that just

20 before he performed a leg sweep on plaintiff, plaintiff had yelled that he had a gun and would kill 21 Officer Medina. (See Doc. No. 64-3 at 39:18–20, 40:25–41:6.) Moreover, according to Officer

22 Medina, Officer McCombs was close behind him when plaintiff “yelled” the words “I’m going to

23 kill you, I have a gun.” (Id. at 43:24–44:22.) However, Officer McCombs testified that he did

24 not hear plaintiff “say anything right before the leg sweep.” (Id. at 69:7–9.) Defendants also cite

25 to Officer McCombs’ deposition testimony that plaintiff yelled he had a gun (a second time) after

26 the leg sweep and after the taser was deployed at plaintiff. (See id. at 72–74.) However, Officer 27 Medina testified at his deposition that plaintiff only yelled he had a gun once during the foot

28 pursuit, right before Officer Medina attempted the leg sweep. (Doc. No. 65-6 at 3:21–4:4.) 22 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 23 of 32

1 Moreover, plaintiff advances a number of arguments disputing defendants’ version of the

2 facts. (See JF ¶¶ 10, 14, 16, 19.) With respect to the officers’ testimony that plaintiff yelled he

3 was armed, plaintiff argues such evidence is “self-serving” given that Officer Medina’s search of

4 plaintiff revealed no weapons and Officer McCombs was aware of this fact. (Id. ¶¶ 10, 14.) Of

5 course, the fact that no gun was recovered does not necessarily mean that plaintiff did not yell he

6 had one. Further, plaintiff himself concedes that he does not recall much of the incident. Thus,

7 reliance on plaintiff’s memory of the events alone to dispute defendants’ version of the events is

8 not appropriate.

9 The critical inquiry here is whether under the undisputed evidence on summary judgment

10 it was objectively reasonable for the officers to believe that plaintiff was armed as they chased

11 him. See George, 736 F.3d at 838; see also Price v. Sery, 513 F.3d 962, 968 (9th Cir. 2008) (“[A]

12 law enforcement officer’s use of force will be justified, or not, by what that officer reasonably

13 believed about the circumstances confronting him.”) (emphasis added). Under some

14 circumstances, it could be appropriate for the court to conclude that there is no triable issue as to

15 whether plaintiff was “reasonably suspected” of being armed, given that he cannot dispute the

16 contention that he yelled he had a gun due to his own lack of memory. For example, in Simmonds

17 v. County of Genesse, a suspect’s father called the police to report that “his son had threatened to

18 kill the parents of his former girlfriend” and that “his son might be armed.” No. 09-12286, 2010

19 WL 1246778, at *1 (E.D. Mich. Mar. 25, 2010). The suspect, who did not survive, could not

20 personally refute “the officers’ uniform recital that he raised his hands as if to shoot and yelled 21 that he had a gun.” Id. at *4. Under the circumstances, the police had been unable to search the

22 suspect prior to shooting him. Based on such evidence, the district court in Simmonds concluded

23 that it was reasonable as a matter of law for the officers to believe the suspect was armed and that

24 their use of deadly force was justified, thereby granting defendants’ summary judgment motion.

25 Id. at *4–6. However, the present case is clearly distinguishable from Simmonds. For, even if it

26 is undisputed that plaintiff at some point yelled to the officers that he was armed, here, the 27 officers’ own accounts of the incident is inconsistent in material respects and the officers search

28 of plaintiff prior to the pursuit and the shooting revealed to them that plaintiff was unarmed. 23 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 24 of 32

1 Indeed, plaintiff points to evidence before the court indicating that Officer Medina

2 “thoroughly” searched him, “looking for immediate weapons while padding [sic] down all areas

3 where a person may conceal one.” (JF ¶ 5; PF ¶ 25 (defendants objecting that Officer Medina

4 patted down “all areas” because he did not search plaintiff’s “crotch or inside his boots”); but see

5 Doc. No. 64-5 at 10:5–7 (Officer Medina’s deposition: “Q[uestion.] Okay. And when you search

6 his waistband, you cross your hand across his waistband, correct? A[nswer.] Correct.”); id. at

7 10:17–20 (“Q[uestion.] And when you’re searching the waistband, you’re passing it throughout

8 the – as far as your hand can reach in the waistband area, right? A[nswer.] Correct.”).) Plaintiff

9 avers he was wearing a pair of shorts, a t-shirt, and work boots when he was searched. (Doc. No.

10 65-11 ¶ 1.) It is undisputed that the search occurred in a section of the Holiday Inn parking lot

11 that was brightly lit. (See generally Holiday Inn Video.) Yet Officer Medina found no weapons

12 on plaintiff, even after searching plaintiff’s “crotch” area (see Doc. No. 64-5 at 10:5–20), and

13 Officer McCombs was aware that no weapons were recovered from plaintiff as a result of Officer

14 Medina’s search of him. (PF ¶ 27 (undisputed).) There is also no evidence that plaintiff went to

15 his car, or some other location, to retrieve a gun after he was searched. (Doc. No. 64-3 at 35:3–6

16 (deposition of Officer Medina: “Q[uestion.] At any point in time did he make his way closer or

17 even approach his own vehicle when you’re trying to identify him? A[nswer.] No.”).) Rather, it

18 appears from the evidence that plaintiff was closely watched by at least one of the officers the

19 entire time between when he was searched and when he fled. (Holiday Inn Video at 22:19:30–

20 29:45.) Even if plaintiff cannot genuinely dispute that he yelled he had a gun based on his own 21 memory, defendants have failed to provide any support for the contention that a statement by a

22 suspect that he has a gun is always enough to find that an immediate threat exists no matter the

23 circumstances, let alone in a situation such as here where the suspect was “thoroughly” searched

24 before the shooting. See, e.g., Hesselbein v. Beckham, 168 F. Supp. 3d 1252, 1259 (E.D. Cal.

25 2016) (granting a new trial and observing that “where plaintiff had been thoroughly searched for a

26 weapon and was handcuffed in the back of a secure patrol car, it would seem to the court that the 27 only reasonable response to the statement, ‘I have a gun’ would be for an officer to ask,

28 ‘Where?’”). 24 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 25 of 32

1 Accordingly, the determination of whether the officers could have reasonably believed

2 that plaintiff was armed under these circumstances turns on disputed material facts regarding the

3 extent of the search that occurred prior to the shooting and the officers’ knowledge at the time of

4 the shooting. See LaLonde v. Cty. of Riverside, 204 F.3d 947, 953 (9th Cir. 2000) (holding that if

5 “there is a material dispute as to the facts regarding what the officer or the plaintiff actually did,

6 the case must proceed to trial”). Here, construing the evidence in a light most favorable to

7 plaintiff, as the court must on defendants’ motion for summary judgment, the court concludes that

8 a reasonable jury could find that plaintiff was thoroughly searched prior to the shooting “in all

9 areas where a person may conceal [a weapon,]” (PF ¶ 25), and both officers knew that plaintiff

10 was unarmed at the time they shot him. For these reasons, the court concludes that there is a

11 triable issue of fact to be resolved by the fact-finder in this case. “Because the excessive force

12 inquiry” here “requires a jury to sift through disputed factual contentions, and to draw inferences

13 therefrom,” summary judgment is inappropriate. See Avina, 681 F.3d at 1130 (citation omitted).

14 In light of the conclusion reached above, the court need not address whether genuine

15 disputes exist as to plaintiff’s alleged furtive movements immediately prior to the shooting,

16 namely whether plaintiff reached into his shorts, raised his arm with a clenched fist, and pointed

17 at one or both of the officers in a threatening manner. (See JF ¶¶ 16, 19.) Even if it were

18 undisputed that plaintiff made these movements, which it is not, a reasonable jury could conclude

19 that the officers knew plaintiff was not armed and that any furtive movements he made would not

20 justify the use of deadly force.12 21 2. Remaining Graham Factors

22 The court will turn briefly to consideration of the remaining Graham factors: whether the

23 severity of the crime that the officers responded to in the Holiday Inn parking lot that night and

24 12 Moreover, the court notes that the bullet trajectory evidence before it also appears to 25 undermine defendants’ version of events. As Dr. Carpenter, the Kern County coroner, explained, 26 plaintiff’s bullet wounds could be consistent with him sitting on the ground with his torso in an upright position before he was shot (Doc. No. 65-9 at 1:23–2:18, 3:14–4:14), thus calling into 27 question whether plaintiff was running and abruptly turned around just before he was shot, as defendants assert. In any event, determining whether genuine disputes exist as to plaintiff’s 28 alleged movements is not necessary for the resolution of the pending summary judgment motion. 25 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 26 of 32

1 plaintiff’s subsequent flight on foot weighs in favor of finding the officers’ use of deadly force

2 reasonable. For the purposes of defendants’ motion for summary judgment, the court concludes

3 that the answer to both questions is no.13

4 First, defendants do not argue that the seriousness of any crime that was being

5 investigated weighs in favor of the officers’ decision to shoot plaintiff. (See id.)14 Nonetheless,

6 in opposing the pending motion, plaintiff argues it is unreasonable for a police officer to shoot a

7 suspect who merely provides a false identification. (Doc. No. 65 at 19:24–25.)15 Providing false

8 identification is a misdemeanor offense, see California Penal Code § 148.9, and is neither a

9 particularly serious nor violent crime. See, e.g., Hesterberg v. United States, 71 F. Supp. 3d

10 1018, 1029 (N.D. Cal. 2014) (“Although lying to a police officer is not a trivial offense, it is also

11 not inherently dangerous or violent.”); id. (concluding “that providing a false last name in

12 connection with a warning about the leash law violation was not a severe crime”).

13 With respect to consideration of the final Graham factor, plaintiff’s flight alone is

14 insufficient to warrant the use of deadly force. As noted above, “even when a felony suspect tries

15 to escape, ‘where the suspect poses no immediate threat to the officer and no threat to others, the

16 harm from failing to apprehend him does not justify the use of deadly force to do so.’”

17 13 In moving for summary judgment defendants only briefly address these two Graham factors. (See generally Doc. No. 64.) 18 14 19 For the first time in their reply brief, defendants advance an additional argument regarding the Graham analysis with respect to the severity-of-the-crime factor. Defendants argue that 20 plaintiff’s commission of California Penal Code § 69(a) (threatening a police officer while fleeing) weighs in favor of a finding that the officers’ shooting of plaintiff was objectively 21 reasonable under the Fourth Amendment. (See Doc. No. 68 at 5:19–6:2.) Because defendants 22 failed to raise this issue in their motion for summary judgment, (see generally Doc. No. 64), thereby depriving plaintiff of the opportunity to respond, defendants have waived this argument. 23 See United States v. Rozet, 183 F.R.D. 662, 667 (N.D. Cal. 1998) (“Legal issues raised for the first time in reply briefs are waived.”); see also United States v. Gianelli, 543 F.3d 1178, 1184 n.6 24 (9th Cir. 2008) (“[A]rguments raised for the first time in a reply brief are generally considered waived.”). Moreover, as discussed fully above, fleeing alone is insufficient to justify the use of 25 deadly force and the evidence with respect to the legitimacy of any threat posed by plaintiff is 26 disputed.

27 15 Perhaps more accurately, plaintiff argues that it is unreasonable to shoot a “person for mere suspicion of giving a false name.” (Doc. No. 65 at 19:25.) However, plaintiff does not dispute 28 that he “gave Officers the false name of Rick Knight.” (PF ¶ 7 (undisputed).) 26 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 27 of 32

1 Rodriguez, 899 F.3d at 729 (quoting Roderick, 126 F.3d at 1201). Construing the facts in favor of

2 plaintiff in considering defendants’ motion for summary judgment, a reasonable jury could

3 conclude that plaintiff did not pose an immediate threat to the officers or others during the foot

4 pursuit. Thus, plaintiff’s flight—with nothing more—is clearly an insufficient basis upon which

5 to grant summary judgment in favor of defendants.

6 Accordingly, based upon the evidence presented by the parties, a reasonable trier of fact

7 could find in plaintiff’s favor with respect to his Fourth Amendment claim.16 Defendants’ motion

8 for summary judgment based on the assertion that the deadly force employed was objectively

9 reasonable under the circumstances of this case must therefore be denied.

10 B. Qualified Immunity

11 As noted at the outset, defendants have also moved for summary judgment in their favor

12 on qualified immunity grounds. (Doc. No. 64 at 2, 16–19.) Qualified immunity is an affirmative

13 defense that “shield[s] an officer from personal liability when an officer reasonably believes that

14 his or her conduct complies with the law.” Pearson v. Callahan, 555 U.S. 223, 244 (2009). The

15 doctrine “protects government officials ‘from liability for civil damages insofar as their conduct

16 does not violate clearly established statutory or constitutional rights of which a reasonable person

17 would have known.’” Id. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see

18 also Mullenix v. Luna, 577 U.S. ____, 136 S. Ct. 305, 308 (2015). It is defendants’ burden to

19 establish that they are entitled to qualified immunity. Moreno v. Baca, 431 F.3d 633, 638 (9th

20 Cir. 2005). 21 When presented with a qualified immunity defense, the central questions for the court are:

22 (1) whether the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that

23 16 In determining whether an officer’s shooting was reasonable under the Fourth Amendment, 24 courts consider “whether officers gave a warning before employing the force” at issue. Glenn, 673 F.3d at 876. Here, it is undisputed that Officer McCombs said to plaintiff, “stop, or I am 25 going to shoot you” prior to shooting plaintiff. (PF ¶ 29 (disputed only as to whether the fact that 26 the warning was given prior to plaintiff even turning means that plaintiff was not posing a threat of imminent harm).) Defendants note, but do not otherwise emphasize, the fact that Officer 27 McCombs provided plaintiff with a verbal warning prior to shooting. (See Doc. No. 64 at 11:8– 9.) Most importantly, defendants do not argue that Officer McCombs’ giving of this warning is 28 enough on its own to compel the granting of summary judgment in their favor. 27 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 28 of 32

1 the defendants’ conduct violated a statutory or constitutional right; and (2) whether the right at

2 issue was “clearly established” at the time of the event in question. Saucier v. Katz, 533 U.S.

3 194, 201 (2001); accord Pearson, 555 U.S. at 236–42 (holding that courts need not analyze the

4 two prongs in any particular order). In addressing the pending motion with respect to plaintiff’s

5 Fourth Amendment claim above, the court has already found that a triable issue exists as to

6 whether plaintiff’s rights under the Fourth Amendment were violated when he was shot in the

7 back as he fled on foot from police. Accordingly, in considering qualified immunity on summary

8 judgment, the court turns to the second step of the qualified immunity analysis: whether

9 plaintiff’s right not to be shot in the back as he fled the officers on foot was clearly established at

10 the time of the shooting.

11 “A Government official’s conduct violates clearly established law when, at the time of the

12 challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable

13 official would have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd,

14 563 U.S. 731, 741 (2011) (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635,

15 640 (1987)); see also Kisela v. Hughes, ___ U.S. ____, 138 S. Ct. 1148, 1152 (2018) (“Qualified

16 immunity attaches when an official’s conduct does not violate clearly established statutory or

17 constitutional rights of which a reasonable person would have known.” (quoting White v. Pauly,

18 ___ U.S. ____, 137 S. Ct. 548, 551 (2017)). In this regard, while a case directly on point is not

19 required, “existing precedent must have placed the statutory or constitutional question beyond

20 debate.” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 741); see also Hughes, 862 21 F.3d at 783; A. K. H., 837 F.3d at 1013; Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002)

22 (“The proper inquiry focuses on . . . whether the state of the law [at the relevant time] gave ‘fair

23 warning’ to the officials that their conduct was unconstitutional.” (quoting Saucier, 533 U.S. at

24 202)). “The dispositive question is ‘whether the violative nature of particular conduct is clearly

25 established.’” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742). This inquiry must

26 be undertaken in light of the specific context of the particular case, rather than as a broad general 27 proposition. Id.; Saucier, 533 U.S. at 201.

28 ///// 28 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 29 of 32

1 Thus, “[i]n an ‘obvious case,’ the general standards established in Garner and Graham

2 can suffice to put an officer on notice that his conduct is unlawful.” Orn, 949 F.3d at 1178

3 (quoting Brosseau, 543 U.S. at 199). In less obvious cases, there must be “precedent that holds

4 ‘certain conduct is a constitutional violation under facts not distinguishable in a fair way from the

5 facts presented in the case at hand.’” Id. (quoting Saucier, 533 U.S. at 202). Lower courts have

6 been instructed in this regard, “not to define the right at issue at a high level of generality.” Id.;

7 see also Kisela, 138 S. Ct. at 1153; Mullenix, 136 S. Ct. at 308.

8 Additionally, “[t]he determination of whether a reasonable officer could have believed his

9 conduct was lawful is a determination of law that can be decided on summary judgment only if

10 the material facts are undisputed.” LaLonde, 204 F.3d at 953. If “there is a material dispute as to

11 the facts regarding what the officer or the plaintiff actually did, the case must proceed to trial[.]”

12 Id.; see also Estate of Lopez by and through Lopez v. Gelhaus, 871 F.3d 998 (9th Cir. 2017)

13 (“[S]ummary judgment in favor of moving defendants is inappropriate where a genuine issue of

14 material fact prevents a determination of qualified immunity until after trial on the merits.”

15 (quoting Liston, 120 F.3d at 975)).

16 Here, as determined above, a triable issue of fact exists as to whether Officers Medina and

17 McCombs had a reasonable belief that plaintiff was armed at the time of the shooting. This

18 triable issue turns in large part on genuine disputes regarding facts surrounding the search that

19 occurred prior to the chase and shooting. For instance, a jury could find that plaintiff was not

20 thoroughly searched by Officer Medina prior to the shooting and conclude that it was reasonable 21 for the officers to believe that plaintiff retrieved a gun from some part of his body that was

22 inadvertently not searched. If a jury found those facts to be true and also found that plaintiff

23 made the alleged furtive movements, the court could at that point conclude that qualified

24 immunity shields the officers from liability because it is clearly established that police officers

25 may shoot a suspect who is reasonably believed to be armed and makes threatening movements.

26 See George, 736 F.3d at 838. 27 Conversely, a reasonable jury could conclude that plaintiff, who was wearing only a t-shirt

28 and shorts, was thoroughly searched in a brightly lit area of the Holiday Inn parking lot and 29 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 30 of 32

1 decide not to credit the officers’ testimony that they believed plaintiff was armed when they shot

2 him twice in the back. If the jury found those to be the facts, qualified immunity most certainly

3 would not shield the officers from liability because, since the Supreme Court’s decision in

4 Garner, it has been clearly established that police officers may not shoot fleeing suspects in the

5 back who do not pose a physical threat to the officers or others. 471 U.S. at 11 (“Where the

6 suspect poses no immediate threat to the officer and no threat to others, the harm resulting from

7 failing to apprehend him does not justify the use of deadly force to do so.”); Rodriguez, 899 F.3d

8 at 729 (“[E]ven when a felony suspect tries to escape, ‘where the suspect poses no immediate

9 threat to the officer and no threat to others, the harm from failing to apprehend him does not

10 justify the use of deadly force to do so.’” (quoting Roderick, 126 F.3d at 1201)). Because the

11 court must consider all disputed facts in a light most favorable to plaintiff for purposes of

12 considering qualified immunity on summary judgment, Isayeva v. Sacramento Sheriff’s Dep’t,

13 872 F.3d 938, 946 (9th Cir. 2017), the court concludes that defendants are not entitled to

14 summary judgment in their favor on qualified immunity grounds.

15 C. State Law Claims

16 Plaintiff also asserts claims under California law for battery, negligence, and violation of

17 the Bane Act. (Doc. No. 33 ¶¶ 38–56.) Defendants move to dismiss plaintiff’s battery and

18 negligence claims because they argue, the analysis under federal law and state law for these two

19 claims is effectively “equally applicable.” (See Doc. No. 64 at 21:10–11.) In the police shooting

20 context, a plaintiff must demonstrate that the officers’ use of force was unreasonable to prevail on 21 a battery claim under California law. See Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272

22 (1998). Because, as discussed above, there is a genuine dispute as to whether the officers’

23 conduct was reasonable under the circumstances, defendants’ motion for summary judgment on

24 plaintiff’s battery claim will be denied.

25 The analysis for state-law violation of negligence in the police shooting context is

26 essentially the same as the analysis under the Fourth Amendment, except that California 27 negligence law allows courts to consider additional pre-shooting tactics, including whether the

28 officers “provoke[ed] a dangerous situation” that ultimately led to the use of deadly force. See 30 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 31 of 32

1 Hayes v. Cty. of San Diego, 57 Cal. 4th 622, 639, 630 (2013). Summary judgment in favor of

2 defendants on plaintiff’s negligence claim is thus also not called for here in light of the court’s

3 determination that a triable issue exists as to whether the officers violated plaintiff’s Fourth

4 Amendment right even without considering any additional pre-shooting tactics.

5 Next, defendants move to dismiss plaintiff’s Bane Act claim on the grounds that he has

6 failed to prove that the officers had “a specific intent to violate the arrestee’s rights.” (Doc. No.

7 64 at 21:4–5) (quoting Reese v. Cty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018).) The

8 Ninth Circuit has held that “for the necessary showing for an excessive force claim under the

9 Bane Act,” the statute “requires ‘a specific intent to violate the arrestee’s right to freedom from

10 unreasonable seizure.’” Reese, 888 F.3d at 1043 (quoting Cornell v. City & Cty. of San

11 Francisco, 17 Cal. App. 5th 766, 802 (2017)). “Evidence simply showing that an officer’s

12 conduct amounts to a constitutional violation under an ‘objectively reasonable’ standard is

13 insufficient to satisfy the additional intent requirement under the Bane Act. Losee v. City of

14 Chico, 738 Fed. App’x 398, 401 (9th Cir. 2018).17 “But it is not necessary for the defendants to

15 have been ‘thinking in constitutional or legal terms at the time of the incidents, because a reckless

16 disregard for a person’s constitutional rights is evidence of a specific intent to deprive that person

17 of those rights.’” Reese, 888 F.3d at 1046 (citation omitted).

18 Here, the evidence before the court on summary judgment established disputed issues of

19 fact as to whether Officers Medina and McCombs acted with the requisite mental state required

20 for plaintiff to prevail on his Bane Act claim. Viewing the evidence in a light most favorable to 21 plaintiff and drawing all reasonable inferences in his favor, a reasonable fact-finder could

22 conclude that the officers acted unreasonably and in reckless disregard of plaintiff’s Fourth

23 Amendment rights when they shot him twice in the back while he was running away from them,

24 and after a search of his person before the chase revealed that plaintiff was unarmed. See Reese,

25 888 F.3d at 1046; see also S.T. by & through Niblett v. City of Ceres, 327 F. Supp. 3d 1261, 1283

26 (E.D. Cal. 2018) (denying defendants’ motion for summary judgment on plaintiff’s Bane Act 27 17 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 31 Case 1:18-cv-00617-NONE-JLT Document 72 Filed 06/10/20 Page 32 of 32

1 claim because “a reasonable jury could conclude that officer Defendants acted unreasonably and

2 with reckless disregard for Thompson’s rights under the Fourth Amendment when they shot him

3 twice in the back while he was fleeing.”). Therefore, defendants’ motion for summary judgment

4 with respect to plaintiff’s Bane Act claim must also be denied.

5 CONCLUSION

6 For all of the reasons explained above, defendants’ motion for summary judgment (Doc.

7 No. 64) is denied.

8 IT IS SO ORDERED. 9 Dated: June 10, 2020 10 UNITED STATES DISTRICT JUDGE

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