1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FRANCES GALLARDO, ) Case No. CV 18-09835 DDP (AFMx) ) 12 Plaintiff, ) ) 13 v. ) ORDER GRANTING DEFENDANTS’ MOTION ) FOR SUMMARY JUDGMENT 14 COUNTY OF SAN LUIS OBISPO, )

ET AL., )

15 ) [Dkt. 29] Defendants. ) 16 17 18 On January 9, 2017, San Luis Obispo (SLO) County Senior Deputy 19 Sheriff Gregory Roach responded to a trespassing call involving 20 Decedent Josue Gallardo (“Gallardo”), who was reported to be 21 driving a gray Cadillac sedan. (Declaration of Gregory Roach ¶¶ 22 16, 18.) Although Gallardo had left the scene by the time Roach 23 arrived, Roach did encounter a gray Cadillac sedan nearby, and 24 determined that the car was registered as a rental. (Id. ¶ 23.) 25 Roach also learned that Gallardo had an outstanding arrest warrant 26 for a misdemeanor domestic battery charge, was violating a 27 restraining order, was currently on probation for domestic battery, 28 and had consented to search as a condition of probation. (Id. ¶ 1 Approximately two weeks later, in the early morning hours of 2 January 24, 2017, Roach and Deputy Sheriff Jonathan Calvert 3 (“Calvert”) were on patrol on Highway 101 when they observed a gray 4 Cadillac sedan that appeared to be the same vehicle Roach had 5 observed two weeks prior. (Roach Decl. ¶ 25.) Roach ran the plates 6 and confirmed that the car was a rental, identified the driver as 7 Gallardo, then instructed Calvert to pull Gallardo over because 8 Gallardo had an arrest warrant and had consented to probation 9 searches. (Id. ¶¶ 26-28.) According to Calvert, Gallardo appeared 10 agitated, “and was potentially a methamphetamine user.” 11 (Declaration of Jonathan Calvert ¶ 19.) 12 Once Gallardo pulled over, Calvert exited his police car and 13 approached the driver’s side of Gallardo's vehicle with his firearm 14 drawn. (Exhibit H in Support of MSJ (“Video”).) After radioing in 15 the incident, Roach then exited the police car and walked towards 16 the passenger side of Gallardo’s vehicle, also with gun drawn. 17 (Id.) Calvert ordered Gallardo to show his hands. (Id.) Gallardo 18 first asked, “Why?” before then complying with Calvert’s repeated 19 command. (Id.) Gallardo then said, “Shoot me, I don’t care,” to 20 which Calvert responded, “I don’t want to shoot you, I don’t know 21 you.” (Id.) Gallardo then complied with Calvert’s instruction to 22 turn off the car. 23 Calvert then said, “Because of the way you’re acting, I want 24 you to get out of the car and lay on the ground right now.” (Id.) 25 A brief colloquy ensued. Although the entirety of the conversation 26 is not audible, Calvert later stated that Gallardo again asked 27 Calvert to shoot him. (Calvert Decl. ¶ 28.) Calvert responded, “I 28 don’t want to shoot you,” and holstered his weapon. (Video.) By this point, Roach had approached the passenger side and was looking at Gallardo through the passenger-side window with a flashlight. 3} (Id.) 4 After further protest from Gallardo, Calvert again drew his firearm and asked whether Gallardo had a gun. (Id.) Gallardo responded, “A gun?” Calvert asked the question again, then instructed Gallardo to show his hands. (Id.) Gallardo did not comply, and Calvert began to back away from the driver’s side door toward the rear of the vehicle. (Id.) Approximately five seconds 10] after Calvert instructed Gallardo to show his hands, the brake lights activated and the driver’s side door began to open. (Id.) 12 According to Roach, Gallardo was moving his hand furtively toward his right pants pocket as he conversed with Calvert. (Roach Decl. @ 33.) Roach saw Gallardo quickly pull a handgun out of his 15] pants pocket in a gripped firing position and move the gun to his left toward Calvert. (Id. @ 34.) Roach immediately fired several rounds into the car at Gallardo while moving backward away from the 18} car. (Id. 97 38; video.) At that point, Calvert also fired his weapon into the car toward Gallardo. (Calvert Decl. {@ 32; video.) 20 After backup units and medical personnel arrived, Roach and 21] Calvert again approached the vehicle. Both observed a handgun on 221 Gallardo’s lap. (Calvert Decl. 7 39; Roach Decl. 44.) No photographs of the gun were taken, however, before Roach removed the gun from the vehicle.’ (Exhibit I in support of motion (“SLO video”)). Roach then confirmed that Gallardo was not breathing and 26 20 28 t The weapon was a BB-gun replica of a Walther PPK. (Declaration of James Voge J 18.)

1 had no pulse. (Roach Decl. ¶ 44.) Medical personnel pronounced 2 Gallardo dead at the scene. (Id.) 3 Investigators later discovered that Gallardo had recently 4 purchased the gun found in the vehicle, had posted images to social 5 media of himself holding the gun to his head, made statements to 6 numerous people indicating an intent to commit suicide, was seen 7 listening to a police scanner shortly before the encounter with 8 Calvet and Roach, and left a suicide note in the trunk of the 9 vehicle. (Declaration of James Voge.) Investigators also 10 discovered alcohol and cocaine in Gallardo’s blood. (Id.) 11 Gallardo’s widow and successor in interest, Plaintiff Frances 12 Gallardo, filed the instant suit alleging several civil rights 13 claims against Calvert, Roach, SLO County, the SLO County Sheriff’s 14 Department, and the SLO County Sheriff, in his official capacity. 15 Defendants now move for summary judgment on all claims against 16 them.2 17 II. Legal Standard 18 Summary judgment is appropriate where the pleadings, 19 depositions, answers to interrogatories, and admissions on file, 20 together with the affidavits, if any, show “that there is no 21 genuine dispute as to any material fact and the movant is entitled 22 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party 23 seeking summary judgment bears the initial burden of informing the 24 court of the basis for its motion and of identifying those portions 25 2 Plaintiff’s eighth cause of action is alleged only against 26 Doe Defendants, and Defendants do not address that claim. Plaintiff has also indicated that she will dismiss her Third Claim 27 for Denial of Medical Care and all Monell claims. At oral argument, Plaintiff expressed an intention to dismiss the eighth 28 cause of action as well. 1]}of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from 4] the evidence must be drawn in favor of the nonmoving party. See 5] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not bear the burden of proof at trial, it is 7! entitled to summary judgment if it can demonstrate that “there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 323. 10 Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. Summary judgment is warranted if a 14] party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 17] 477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving 19] party,” and material facts are those “that might affect the outcome 20]}/of the suit under the governing law.” Anderson, 477 U.S. at 248. There is no genuine issue of fact “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 23 ])/nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio 24]| Corp., 475 U.S. 574, 587 (1986). 25 It is not the court’s task “to scour the record in search of a 26|| genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 271278 (9th Cir. 1996). Counsel have an obligation to lay out their 28 |) support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d

1} 1026, 1031 (9th Cir. 2001). The court “need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate 4] references so that it could conveniently be found.” Id.

III. Discussion

6 A. Excessive Force 7 Many of Plaintiff’s claims are premised on the contention that Roach and Calvert’s use of deadly force against Gallardo was unreasonable and excessive. In Fourth Amendment excessive force cases, the question is whether police officers’ actions are objectively reasonable given the totality of the circumstances. Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010). The 13] officers’ underlying intent and motivations are not pertinent. 14] Graham v. Connor, 490 U.S. 386, 396-97 (1989). Whether a use of force was reasonable will depend on the facts of the particular case, including, but not limited to, (1) whether the suspect posed 17}/ an immediate threat to anyone, (2) whether the suspect resisted or attempted to evade arrest, and (3) the severity of the crime at issue. Id. at 396. Of these, the most important factor is whether the suspect posed an immediate threat to anyone’s safety. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). Only information known to the officers at the time the conduct occurred 23]}is relevant. Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 24], 1546-47 (2017); Glenn v. Washington Cty., 673 F.3d 864, 873 n.8 (9th Cir. 2011). The use of deadly force is only reasonable if a suspect “poses a significant threat of death or serious physical 27 injury to the officer or others.” Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014) (emphasis added) (internal quotation

omitted). Although “the mere fact that a suspect possesses a weapon does not justify deadly force,” “where a suspect threatens 31 an officer with a weapon such as a gun or a knife, the officer is 4] justified in using deadly force.” Hayes v. County of San Diego, 5] 736 F.3d 1223, 1233 (9th Cir. 2013) (internal alteration omitted); 6] Smith v. City of Hemet, 394 F.3d 689, 704 (9th Cir. 2005); see also Cruz v. City of Anaheim, 765 F.3d 1076, 1078 (9th Cir. 2014) (“It would be unquestionably reasonable for police to shoot a suspect . . if he reaches for a gun in his waistband.”) 10 The central question in the instant case, therefore, is 11] whether a rational trier of fact could conclude that Gallardo, contrary to Roach’s version of events, did not draw a gun on Calvert. Having reviewed the evidence submitted by the parties, the court concludes that no reasonable factfinder could reach such a conclusion. 16 “[S]ummary judgment should be granted sparingly in excessive force cases,” especially “where the only witness other than the officers was killed during the encounter.” Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) In deadly force cases, the Decedent is, of course, not able to contradict the shooting 21] officers’ account of events. Accordingly, this Court must carefully examine all evidence in the record, including circumstantial evidence that might discredit the officers’ story, “to determine whether the officer’s story is internally consistent and consistent with other known facts.” Id. (quoting Scott v. 26|| Henrich, 39 F.3d 912, 915 (9th Cir. 1994); Cruz, 765 F.3d at 1079- 80. In this case, however, the record includes video of the entire 28 incident. Although the video is not conclusive as to certain

1 questions, such as whether Gallardo indeed had a gun in his pocket 2 or on his lap, the video is consistent with Roach and Calvert’s 3 version of events. Nor do there appear to be any material 4 inconsistencies between the two deputies’ stories.3 5 Plaintiff nevertheless contends that there is a genuine 6 dispute of fact, primarily because Plaintiff’s expert, Dr. Jesse 7 Wobrock, conducted a “biomechanical analysis” indicating that 8 Gallardo was not reaching for a gun in his pocket or pointing a gun 9 at anyone. (Wobrock report at 8-9.) Dr. Wobrock’s “analysis,” 10 however, appears to consist solely of a reconstruction of bullet 11 trajectories.4 There does not appear to be any methodology linking 12 Dr. Wobrock’s trajectory analysis to the relevant conclusions, 13 including an opinion that the right front pocket “would be a very 14 unusual spot to keep a gun” and that Gallardo was attempting to 15 comply with Calvert’s orders. Indeed, all of Dr. Wobrock’s 16 conclusions appear to be premised on the fact that all but one of 17 the shots that hit Gallardo did so from the rear. That fact, 18 however, is in no way inconsistent with Calvert and Roach’s 19 descriptions or with the video, which shows both deputies firing as 20 they retreat away from Gallardo’s vehicle. Dr. Wobrock’s opinion 21 is not admissible, let alone sufficient to create a triable issue 22 3 Although Calvert did testify at his deposition that the 23 windows of the car were hard to see through from five to seven feet away, that testimony is not inconsistent with Roach’s statement 24 that he was able to see Gallardo through the passenger side window at close range with a flashlight. Video evidence confirms that 25 Roach was shining a flashlight into the vehicle from close range. 26 4 Wobrock’s analysis does not include any opinion about the sequence of bullet impacts. Wobrock does opine, however, that one 27 shot to the front of Gallardo’s leg likely occurred after previous shots, as Gallardo involuntarily turned his body toward the 28 passenger side. 1 of fact. See Fed. R. Evidence 702; Daubert v. Merrell Dow 2 Pharmaceuticals, Inc., 509 U.S. 579, 589 n.7, 595 (1993). 3 Nor, contrary to Plaintiff’s argument, is this case comparable 4 to Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001). There, 5 over a dozen officers responded to a situation involving a 6 disturbed suspect who was obviously suicidal. Deorle, 272 F.3d at 7 1280. The shooting officer observed the suspect for up to ten 8 minutes, before eventually firing when the suspect advanced, at a 9 steady gait, with a bottle or can in hand. Id. at 1281. Those 10 circumstances differ greatly from those here, where the evidence 11 indicates that Gallardo drew a seemingly lethal weapon at close 12 range and without warning. Furthermore, although Plaintiff’s 13 comparison appears to be rooted in officers’ knowledge of a 14 suspect’s disturbed mental state, Plaintiff has cited no admissible 15 evidence that Roach knew that Gallardo was suicidal, pointing only 16 to a letter from the SLO County District Attorney stating that 17 Gallardo had expressed suicidal desires to Roach in November of 18 2016.5 19 Plaintiff’s only other argument appears to be that the lack of 20 photographic evidence of the gun in Gallardo’s lap calls into 21 question Calvert and Roach’s statement that the gun was, in fact, 22 recovered from Gallardo’s lap. The plentiful evidence of 23 Gallardo’s history with the gun, however, precludes any genuine 24 dispute as to whether deputies planted the weapon. Furthermore, to 25 the extent Plaintiff suggests that Defendants may have, contrary to 26 5 Roach states in his reply declaration that the District 27 Attorney’s letter appears to mistakenly assume that statements made to Roach’s partner at the time were made to Roach as well. (Roach 28 reply dec. ¶¶ 3-8.) 1 their version of events, recovered the weapon from some other 2 location in the vehicle, video evidence does not support 3 Plaintiff’s theory. The post-shooting video shows Roach again 4 approaching Gallardo’s vehicle, opening the door, reaching quickly 5 into the driver’s area of the vehicle with his left hand, and then 6 recovering and removing the gun almost immediately, within 7 approximately two seconds. (SLO video.) Roach’s left shoulder 8 remains outside the vehicle, as does his head, which remains above 9 the roofline of the vehicle. (Id.) The video evidence is, 10 therefore, entirely consistent with Roach’s declaration. No 11 reasonable trier of fact could rely upon the absence of photographs 12 of the gun in Gallardo’s lap to conclude that Gallardo did not draw 13 a gun on Calvert.6 14 Although defendants in deadly force cases must meet a high bar 15 to obtain summary judgment, there is no triable issue here as to 16 whether Calvert and Roach’s use of deadly force was objectively 17 reasonable. Accordingly, Defendants are entitled to summary 18 judgment on all excessive force-based claims. 19 B. Reasonable Suspicion for the Traffic Stop 20 Gallardo’s Second Cause of Action alleges that Calvert and 21 Roach unreasonably detained Gallardo when they pulled him over. 22 There is no dispute, however, that there was an outstanding warrant 23 for Gallardo’s arrest, and that Roach was made aware of that 24 warrant two weeks prior, when he responded to the January 7 25 trespassing call involving Gallardo. Plaintiff glosses over this 26 6 Plaintiff also points to deputy instructions not to take 27 pictures as evidence of some kind of conspiracy or cover up. Those instructions were given, however, after the gun was recovered. 28 (Exhibit E in opposition to motion at 12-13.) 1 fact, arguing in passing that “Roach and Calvert did not bother to 2 even check” the warrant on January 24, and could not legitimately 3 stop Gallardo without “actual, current knowledge.” (Opp. at 22:19- 4 20.) Plaintiff does not cite, nor is the court aware of, any 5 authority for the proposition that police officers with knowledge 6 of an outstanding arrest warrant must confirm the current validity 7 of that warrant immediately prior to detaining a person. 8 Indeed, the Tenth Circuit has rejected a similar argument. In 9 United States v. Hewlett, a defendant argued that an arresting 10 officer lacked probable cause where eleven months had passed since 11 the officer confirmed the existence of an arrest warrant. Hewlett, 12 395 F.3d 458, 461 (D.C. Cir. 2005). The court disagreed, reasoning 13 that the circumstances, including an underlying murder charge, 14 reduced the chance that the warrant was no longer valid. Id. at 15 462. Here, although Gallardo’s offense conduct was far less 16 significant than that of the defendant in Hewlett, so too was the 17 time gap between the confirmation of the existence of the warrant 18 and Gallardo’s detention. Only two weeks had passed since Roach 19 learned of the existence of the warrant, and Gallardo was driving 20 the same rental car he had been driving while the warrant was 21 outstanding. Although Gallardo theoretically could have already 22 been arrested and released, and continued to rent or once again 23 rented the same car, that likelihood was nowhere near high enough 24 to deprive Roach of probable cause. Accordingly, Defendants are 25 entitled to summary judgment on Plaintiff’s Second Cause of 26 Action.7 27 7 Having concluded that there was probable cause to pull 28 (continued...) 1 IV. Conclusion 2 In all but the most compelling cases, decisions of liability 3 in civil rights cases involving deadly force should rightly be left 4 to juries. To do otherwise erodes the confidence of the public in 5 the integrity of the courts and in the continued viability of the 6 Civil Rights Act. This case, however, is one of those few 7 compelling cases that cannot go forward. That does not make it any 8 less a tragedy. A man lost his life, and the officers involved 9 will forever have to live with the knowledge that they took a life. 10 The officers were confronted with an impossible situation. In 11 hindsight, did they act perfectly? No. A man died. In such 12 situations there will always be room for after-the-fact criticisms. 13 But there can be no dispute that Defendants acted reasonably under 14 the circumstances, within the bounds of the law. Therefore, for 15 the reasons stated above, Defendants’ Motion for Summary Judgment 16 is GRANTED. 17 18 19

IT IS SO ORDERED.

20 21 22 Dated: August 5, 2020 23 DEAN D. PREGERSON United States District Judge 24 25 26 7(...continued) 27 Gallardo over, the court need not address Plaintiff’s arguments regarding Gallardo’s probation search condition and reasonable 28 suspicion.