51 F. Supp. 3d 999
D. Nev.2014Background
- Nevada case arising from officer-involved shooting at Speedee Mart, Las Vegas, on Nov 15, 2010.
- Plaintiffs Lydia Vasquez-Brenes and Ricardo Brenes are Brenes’ wife and father; decedent is Anthony Brenes.
- Officer Miller of LVMPD fired a fatal shot after Brenes allegedly resisted with a cane.
- Brenes was tased twice and shot with beanbags before the fatal shot; video footage is partially unclear.
- Plaintiffs narrowed claims to excessive force under §1983, substantive due process, battery, and negligence; Monell and some claims were dismissed.
- Court has denied in part and granted in part the defendants’ motion for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Excessive force under §1983, qualified immunity. | Miller used deadly force despite no immediate threat. | Qualified immunity shields reasonable officers from liability. | Genuine factual disputes remain; summary judgment denied on §1983 claim. |
| Substantive due process claim against Miller. | Brenes’ family rights were shocked by officer’s conduct. | No deliberate harm intended beyond legitimate duties; not shocks conscience. | Summary judgment granted for Miller on due process claim. |
| Discretionary-function immunity for LVMPD on state tort claims. | LWMPD’s negligence/hiring decisions violate constitution; not protected. | Discretionary immunity applies to policy judgments like training/supervision. | Discretionary-function immunity applies; LVMPD entitled to summary judgment on battery/negligence claims. |
| Battery and negligence claims against Miller survive. | Use of force was unlawful battery and negligent**. | Reasonableness of force disputed; immunity not applicable to Miller’s conduct. | Battery and negligence claims against Miller remain for trial. |
| Punitive damages under §1983. | Punitive damages potentially available for unconstitutional conduct. | Premature to determine; state-law punitive damages not applicable. | Premature; court declines to rule on punitive damages at this time. |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (U.S. 1989) (objective reasonableness of force in totality of circumstances)
- Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (deadly force reasonableness depends on circumstances)
- Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001) (consideration of threat and immediacy in Graham factors)
- Tennessee v. Garner, 471 U.S. 1 (U.S. 1985) (deadly force limits when suspect poses no immediate threat)
- Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010) (context of deadly force and immediate threat)
- Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002) (use of deadly force when suspect violently resists)
- Reynolds v. County of San Diego, 84 F.3d 1162 (9th Cir. 1996) (threatening weapon to justify deadly force (knife))
- City of Hemet v. District, 394 F.3d 689 (9th Cir. 2005) (context of reasonable use of force when threat exists)
- Porter v. Osborn, 546 F.3d 1131 (9th Cir. 2008) (deliberate indifference review for due process)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard; evidence viewed in nonmovant’s favor)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (burden-shifting framework for summary judgment)
- Martinez v. Maruszczak, 168 P.3d 727 (Nev. 2007) (Nevada discretionary-function immunity test (Berkovitz-Gaubert))