ORDER
Troy L. Nunley, United States District Judge
This matter is before the Court pursuant to Defendants City of Lodi (“Lodi”), City of Lodi Police Department (“LPD”) and Mark Helms’s (“Chief Helms”) Motion for Summary Adjudication (ECF No. 163) and Defendants Miles Scott Bratton (“Corporal Bratton”) and Adam Lockie’s (“Officer Lockie”) Motion for Summary Judgment, or in the alternative, Summary Adjudication (ECF No. 164).
I. Preliminary Discussion op the Officer Defendants’ Motion
This case arises out of a fatal police shooting. None of the non-officer witnesses (the “Non-Party Witnesses”) observed the entirety of the dynamic encounter between Parminder Singh Shergill (“Parminder”) and the Officer Defendants. The Non-Party Witnesses who witnessed the shooting itself could not see whether there was .a knife in Parminder’s hands at the time he was shot. However, their testimony does call into question the' key factual assertion which underlies the Officer Defendants’ motion: “[t]he [Officer Defendants] did not use deadly force until [Parminder] abruptly turned back and ‘charged toward’ them with the knife.” (ECF No. 164-1 at 38.) This factual dispute turns on a jury’s credibility determinations and cannot be resolved by the Court on summary judgment.
Unfortunately, the Officer Defendants’ motion takes for granted that this crucial factual assertion is undisputed to such a degree' that it is virtually impossible to intelligently engage their arguments with-' out reciting their version of events. Consequently, the Court will set out a brief summary of the Officer’ Defendants’ version of events in the “Factual Background” section of this Order followed by the material facts that Plaintiffs assert are in dispute. The Court will also include a brief summary of the deposition testimony of four Non-Party Witnesses who saw (or heard) the shooting because Plaintiffs inaccurately cite two of them for the proposition that it can be definitively stated Par-minder “never ‘armed himself with a knife.” (ECF No. 177-1 at 15 (emphasis added).)
The Court mentions an additional item of note. Plaintiffs submitted more than 60 evidentiary objections to the Officer Defendants’ proposed statement of undisputed material facts. (See ECF No. 177-1.) However, Plaintiffs acknowledge the Court need not separately address these eviden-tiary objections in order to resolve this motion. They have correctly cited Burch v. Regents of Univ. of Cal.,
II. Factual Background of Officer Defendants’ Motion
A. The Officer Defendants’ Version of Events
The Officer Defendants responded to a 9-1-1 call placed from 23 Elderica Way, Lodi, CA (the “Family Home”) on the morning of January 25, 2014. (ECF No.
The Officer Defendants arrived approximately 11 minutes after the 9-1-1 call was placed. (Compare ECF- No. 164-2 at ¶ 11 with ECF No. 164-2 at ¶ 4.) They were told upon arrival that Parminder had already left the Family Home on foot. (ECF No. 164-2 at ¶ 14.) They were also informed that Parminder suffered from post-traumatic stress disorder and was off of his medication. (ECF No. 164-2 at ¶ 16.) Sarabjit Shergill (“Sarabjit”), Parminder’s brother, reported to the Officer Defendants that Parminder was “having .an episode” and could likely be found at a nearby park. (ECF No. 164-2 at ¶21.) Corporal Bratton was given a description of Parmin-der, including the clothes he was wearing. (Bratton Dep., ECF No. 164-4 at 112:6-9.)
Corporal Bratton located Parminder in Peterson Park near the basketball courts and parked his vehicle on Evergréen Drive, which fronts the east side of the park. (See ECF No. 164-2 at ¶ 36.) Par-minder was observed walking through the middle of a coordinated exercise group in Peterson Park. (ECF No. 164-2 at ¶ 41.) Parminder, who was walking east toward Corporal Bratton and eventually past him, did not respond when Corporal Bratton spoke to him. (ECF No. 164-2 at ¶¶ 40, 42-43.) Parminder walked past Officer Lockie, who was in his patrol vehicle at the intersection of Elderica Way and Evergreen Drive at the border of Peterson Park, while Corporal Bratton trailed behind Parminder, attempting to speak with Parminder and asking Parminder to stop. (ECF No. 164-2 at ¶¶ 45-46, 48.) As Par-minder continued walking, he told Corporal Bratton, “Fuck you. I am not talking to you.” (ECF No. 164-2 at ¶49.) Parminder was walking in the general direction of the Family Home. (ECF No. 164-2 at ¶[¶ 49-50.) As he did this, Parminder removed a black knife from his clothing, opened it
At some point after Parminder armed himself with a knife, the Officer Defendants drew their guns. (ECF No. 164-2 at ¶¶ 55, 57, 59.) Parminder continued to walk in the general direction of his home while ignoring the commands of the Officer Defendants, including commands to drop his knife. (ECF No. 164-2 at ¶¶ 57-58, 60-61.) Both of the Officer Defendants grew concerned that Parminder was a threat to his family. (ECF No. 164-2 at ¶¶ 56, 63.) Ultimately, Corporal Bratton radioed that “[w]e are going back on to Elderica, I need you to call the [9-1-1 caller] back and advise them to barricade the front door” noting that the “subject is armed with a knife” and “very agitated.” (ECF No. 164-2 at ¶ 64.) The Officer Defendants indicate that they followed Parminder trailing approximately ten'to twenty feet behind him and approximately ten to twelve feet from each other. (ECF No. 164-2 at ¶ 66.) Par-minder, while continuing to walk away and ignore commands, screamed “you want to talk to me motherfucker.” (ECF No. 164-2 at ¶ 67.) Corporal Bratton ordered Parmin-der to “stop,” “drop the weapon,” “put down the weapon,” and “stop or I will shoot.” (ECF No. 164-2 at ¶ 68.)
Parminder then quickly turned around and faced the Officer Defendants, while screaming with his knife in his right hand near his own head and the blade pointed at Corporal Bratton. (ECF No. 164-2 at ¶¶ 70-71.) Corporal Bratton again ordered Parminder to “stop,” “drop the weapon,” and “stop or I will shoot.” (ECF No. 164-2 at ¶ 72.) Corporal Bratton testified Par-minder then charged him giving out a “war' cry” and screaming: “Fuck you. I’m going to fucking kill you. Fucking kill me.” (ECF No. 164-4 at 135:11-136:16.) Officer Lockie testified that he perceived Parminder to be coming “towards [him].” (ECF No. 164-4 at 96:14-18.) At this point, Corporal Brat-ton was approximately twelve to fifteen away from Parminder. (ECF No. 164-2 at ¶ 75.)' The Officer Defendants were standing in front of 61 Elderica Way with Corporal Bratton in the driveway and Officer Lockie to his left. (ECF No. 164-2 at ¶¶ 75-76.) The Officer Defendants fired multiple shots at Parminder when he charged them with his knife. (ECF No. 164-2 at ¶¶ 80-85.) Officer Lockie estimated “maybe a second or two” elapsed between the time Parminder turned towards them and when they began shooting. (ECF No. 164-2 at ¶ 86.) The'Officer Defendants continued to shoot until Parminder fell to his knees and stopped advancing. (ECF No. 164-2 at ¶¶ 87-88.) After Parminder was shot, Officer Lockie slid Parminder’s knife away with his boot and radioed “shots fired.” (ECF No. 164-2 at ¶¶90-91.) Parminder was then handcuffed and emergency personnel were immediately called. (ECF No. 164-2 at ¶ 93.) The Officer Defendants performed first-aid until emergency personnel arrived. (ECF No. 164-2 at ¶¶ 96-97.) A California Department of Justice DNA analysis of the knife revealed that Parminder’s DNA was on the knife, but not the Officer Defendants. (ECF No. 164-2 at ¶ 108.)
Parminder sustained a total of 14 gunshot wounds. (ECF No. 164-2 at ¶ 115.) One minute and forty-three seconds elapsed between the beginning of the Officer Defendants encounter with Parminder and the time Parminder was shot. (ECF No. 164-2 at ¶126.) The Officer Defendants had left their bean bag shotguns in
B. Plaintiffs’ Statement of Disputed Facts
On the morning of January 25, 2014, Parminder appeared to be experiencing symptoms of his mental illness. (ECF No. 177-2 at ¶ 1.) There is no evidence that Parminder consumed alcohol on January 25, 2014.- ,(ECF No. 177-1 at ¶ 1.) At no time during Parminder’s encounter with the Officer Defendants did he “arm himself with a knife.” (ECF No. 177-2 at 1f 3.) In front of the home located at 61 Elderica Way, Parminder stopped walking and began to turn and face the Officer Defendants. (ECF No. 177-2 at ¶4.) Before Parminder could complete the turn to face the Officer Defendants, they both began shooting Parminder. (ECF No. 177-2 at ¶ 4.) As Parminder was turning to face the Officer Defendants, he said “don’t shoot!” (ECF No. 177-2 at ¶ 5.) Parminder’s hands were either in his pockets or down at his sides at this time. (ECF No. 177-2 at ¶ 6.) At no time did Parminder move or advance towards the Officer Defendants. (ECF No. 177-2.at ¶ 7.) The Officer Defendants continued shooting Parminder, even as he was falling backwards. (ECF No. 177-2 at ¶ 8.) The DNA analysis cited by Officer Defendants states DNA from at least two contributors was found on the knife and does not state that the Officer Defendants’ DNA was not present. (ECF No. 177-1 at ¶ 108.)
C. Non-Party Witnesses of the Shooting
i. Timothy Antolin
In his deposition, Timothy Antolin stated that he is Cassandra Lopez’s son and that he was in her home at 61 Elderica Way at the time of the encounter between Parminder and the Officer Defendants. (See ECF No. 177-3 at 83:12-19, 84:15-18.) Mr. Antolin testified that he was in his upstairs bedroom when he heard what he initially assumed to be an argument between a father and child outside. (See ECF No. 177-3 at 85:23-24; 96:8-12.) It was after Mr. Antolin heard someone say “put down the weapon” that he began observing the encounter between Parminder and the Officer Defendants through the blinds of his bedroom window. (ECF No. 177-3 at 85:21-86:6.) Mr. Antolin states that “the man [was] standing ... arid the [officers] had him stopped and he was turned around talking to” the officers, who “had their guns pointed at him.” (See ECF No. 177-3 at 87:1-6.) Mr. Antolin indicated that at the time the man was shot by the officers he had not completely turned around to facé them. (See ECF No. 177-3 at 87:7-24.) Mr. Antolin stated that he could not see whether the man had anything in his hands at the time the man was shot. (ECF No. 88:15-19.) This was because Mr. Antolin “could not see the lower half of [the man’s] body” before he was shot. (ECF No. 88:15-19.) However, Mr. Antolin testified that the man had not lunged toward the officers. (ECF No. 88:20-22.) Rather, the man “didn’t move, he didn’t yell at them after a certain point ... he was just standing there.” (ECF No. 177-3 at 88:23-25.) After the man had fallen to the ground, Mr. Antolin stated the officer “put handcuffs on him” and “started rummaging through his pockets.”
■ii. Cassandra Lopez
In her deposition, Ms. Lopez testified that she went to' an upstairs window in her home after yelling outside drew her attention to the encounter between Parminder and the Officer Defendants. (ECF No. 177-3 at 67:14-15.) Ms. Lopez observed “two officers with their guns drawn on a man and they kept saying stop, drop your weapon, turn around, stop and drop your weapon.” (ECF No. 177-3 at 67:24-68:1.) She described the officers, as yelling “loud[ly]” with their guns “pointed” at the man. (ECF No. 177-3 a 72:23-73:3.) Ms. Lopez indicated the man .the officers were addressing “kept walking and then after a couple of steps he stopped and he was faced” with his back towards the officers. (ECF No. 177-3 at 68:5-9.) Finally, she saw the man “turn, but he didn’t surrender” by which she meant “[h]e didn’t put his hands up and then turn around[.]” (ECF No. 177-3 at 68:13-14.) Ms. Lopez also stated that the man turned around “quickly” but that he “didn’t go at the [officers]” and “didn’t charge them.” (ECF No. 177-3 at 69:13-17.) Ms. Lopez testified that the man was shot multiple times after turning around. (ECF No. 177-3 at 69:17-70:2.) Ms. Lopez noted that the man “didn’t fall immediately” after being shot. (ECF- No. 177-3 at 70:7.) Ms. Lopez noted that from her vantage point she could not see his whole body and in particular “if he’s, right-handed, [she doesn’t] know if there’s anything in this hand” because she “can’t see this.” (ECF No. -177-3 at 69:18-20.) However, Ms. Lopez clarified that she did not seé the man raise his right arm. (ECF No. 177-3 at 77:1-6.)
in. Bob Mendes
In his deposition, Bob Mendes testified that he lives directly opposite the Family Home. (ECF No. 177-3 at 179:19-21.) He witnessed police officers arrive and depart from the Family Home on the morning of January 25, 2014. (See, e.g., ECF No. 177-3 at 179:22-25; 181:17-23.) Mr. Mendes stated that later while he was in his garage he heard yelling and walked out to his driveway. (ECF No. 177-3 at 182:10-18.) Mendes could not identify the distance between the encounter he observed and where he was standing, but indicated that he had an unobstructed view. (ECF No. 177-3 at 185:10-22.) Mr. Mendes identified Parminder by name and stated that “I couldn’t tell what Parm was saying, I just know that he was yelling[.]” (ECF No. 177-3 at 183:11-12.) Mr. Mendes déscribes Parminder as facing south — which Mr. Mendes indicated meant Parminder was facing him — and moving in Mr. Mendes’s direction. (ECF No. 177-3 at 183:22-184:7.) Mr, Mendes then indicated Parmin-der “turned and moved north.” (ECF No. 177-3 at 184:6-7.) Mr. Mendes noticed at some point the officers’ weapons were drawn and pointed at Parminder. (ECF No. 177-3 at 185:1-7.) Mr. Mendes testified that immediately before Parminder was shot Parminder was “moving towards them .with ... his right arm up, almost as if he was ... point or yelling, ... like if you get in an argument^]” (ECF No. 164-5 at 96:11-14.) However, Mr. Mendes also stated that he could not see.anything in Parminder’s raised .right hand from where he was standing. (ECF No. 164-5 at 96:16-24.) He also indicated that by the time Parminder turned around “[t]he yelling on
iv. Alexandra Weise
The excerpt of Alexandra Weise’s deposition does not explicitly provide her precise location, but it is obvious from context that on the morning of the encounter she was sleeping in the house across from 61 Elderica Way. (ECF No. 177-3 at 103:1— 10.) She woke up after hearing voices outside her window. (ECF No. 177-3 at 103:12-13.) She remembered people yélling “stop.” (ECF No. 177-3 at 103:18.) Then someone said “don’t shoot.” (ECF No. 177-3 at 103:18-19.) Then, “all the gunshots went off,” (ECF No. 177-3 at 103:19.)
III. Standard op Review
Summary judgment is appropriate when the moving party demonstrates no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co.,
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
In the endeavor to establish the existence of a- factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank, 391, U.S. at 288-89,
IY. Analysis of Officer Defendants’ Motion
The following eight claims against the Officer Defendants’ are included in the •third amended complaint (“TAC”) (ECF No. 88). The First Claim — excessive force in violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983 (“Section 1983”) — is brought by Sukhwinder, as successor in interest to Parminder. The Second Claim — intentional or reckless provocation in violation of the Fourth Amendment pursuant to Section 1983 — is brought by Sukhwinder, as successor in interest to Parminder. The Third Claim— deprivation of familial association in violation of the Due Process Clause of the Fourteenth Amendment pursuant to Section 1983 — is brought by Sukhwinder, individually. The Fourth Claim — deprivation of familial association in violation of the First Amendment pursuant to Section 1983 — is brought by Plaintiffs. The Ninth Claim
-The Officer Defendants move for summary judgment on each claim. (ECF No. 164.) The Officer Defendants argue that they are entitled to qualified immunity on each of Plaintiffs’ Section 1983 claims. (ECF No. 164-1 at 20.) For this reason, the Court will briefly describe the Section 1983 and qualified immunity standards generally before addressing each of the Section 1983 claims separately. The state law claims will be discussed together, as this is how they are treated in the Officer Defendants’ motion.
A. Section 1983 and Qualified Immunity
Section 1983 provides that “[ejvery person who, under color of any [state law] subjects, or causes to be subjected, any citizen of the United States ... to1 the deprivation of any rights, privileges, or immunities secured by the Constitution
However, “[a]n official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Plumhoff v. Rickard, — U.S. -,
A district court evaluating whether a government official' is entitled to qualified immunity at the summary judgment stage asks two questions: (1) whether, taking the facts in the light most favorable to the nonmoving party, the officers’ conduct violated a federal statutory or constitutional right, and (2) whether the right was clearly established at the time of the alleged misconduct. See Saucier v. Katz,
With respect to the second prong, “[b]ecause the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.” Brosseau v. Haugen,
B. First Claim: Excessive Force
The Officer Defendants argue that summary judgment should be granted on Plaintiffs’ claim for excessive force in violation of the Fourth Amendment because their use of deadly force on Parminder was objectively reasonable taking their view of the facts, which they contend are undisputed. (ECF No. 164-1 at 20-30.) Additionally, even if the Court concludes that then-use of force violates the Fourth Amendment on those facts, the Officer Defendants argue that they are entitled to quali-. fied immunity because it was not clearly established that their use of deadly force was unconstitutional at the time of the shooting. (ECF No. 164-1 at 20, 30-34.)
Plaintiffs argue that it is improper to grant summary judgment on this claim because a jury must resolve the disputed material facts surrounding the use of deadly force, e.g., whether Parminder was armed at all, ‘let alone whether he was threatening the Officer Defendants with a knife. (ECF No. 177 at 17-26.) Plaintiffs further argue that viewing the record in the light most favorable to them a reasonable jury could conclude that the Officer Defendants use of deadly force violated the Fourth Amendment and did so in a way that violated clearly established law. (ECF No. 177 at 38-42.)
i. Fourth Amendment Standard
Allegations of excessive . force are examined under the Fourth Amend
The Ninth Circuit has articulated a three-step approach to the Graham balancing test. See Glenn v. Washington Cty.,
“Because [the excessive force inquiry] nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held-on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.” Smith v. City of Hemet,
ii. The Severity of the Intrusion
With respect to the first step, the severity of the intrusion, there is no dispute that the Officer Defendants used deadly force which resulted in Parminder’s death. (EOF No. 164-1 at 21.) “The intrusiveness of a seizure by means of deadly force is unmatched.” Gamer,
Hi The Government’s Interest in the Use of Force
With respect to the second step, the “strength of -the government’s interest in the force used is evaluated by examining three primary factors: (1) ‘whether the suspect poses an immediate threat to the safety of the officers or others,’ (2) ‘the severity of the crime at issue,’ and (3) ‘whether he is actively resisting arrest or attempting to evade arrest by flight.’ ” Glenn,
The three primary factors for evaluating the second step of the Graham test, however, are not exclusive. See Bryan v. MacPherson,
The Court will first examine the core Graham factors. The Court will then consider those additional factors raised, in the Officer Defendants’ motion.
a. Immediate Threat to the Safety of the Officers or Others
Contrary to the Officer Defendants’ assertions, whether Parminder was charging them, .brandishing a knife, and threatening to kill them when they shot him to death is. a disputed question of material fact that must be resolved , by a jury. As discussed below, the deposition testimony of the Non-Party Witnessés calls into question the Officer Defendants’ accounts of these key moments. The Officer Defendants’ suggestion that “witnesses corroborate the [Officer Defendants’] version of events” is misleading. (ECF No, 164-1 at 23.) No more successful is the Officer Defendants’ argument that these crucial factual questions should be taken from a jury because one of their experts “opines that all of the physical evidence is consistent with the [Officer Defendants’] version of events” or because Parminder’s DNA was on a knife found at the scene of the .shooting. (ECF No. .164-1 at 23-24.) Once these disputed facts are properly resolved in Plaintiffs’ favor, as they must be on summary judgment, it cannot be said that Parminder was an immediate threat to the safety of the Officer Defendants or others at the, time he was shot.
The deposition testimony of four Non-Party Witnesses — Timothy Antolin, Cassandra Lopez, Robert Mendes, and Alexandra Weise — conflicts with the Officer Defendants’ accounts in three ways. First, the deposition testimony of Timothy Anto-lin and Cassandra Lopez squarely conflicts with the Officer Defendants’ assertion that Parminder was charging them when they shot him. Ms. Lopez specifically states that after Parminder turned around he “didn’t go at the [officers]” and “didn’t charge them.” (ECF No. 177-3 at 69:13-15.) Mr. Antolin testified that Parminder had not lunged toward the officers. (ECF- No. 177-3 at 88:20-22.) Rather, Parminder “didn’t move, ... he was just standing there.” (ECF No. 177-3 at 88:23-25.)
Second, the testimony of Mr. Antolin and . Ms. Lopez contradicts .the Officer Defendants, assertion that Parminder “turned and faced [the Officer Defendants] from less than fifteen (15) feet with the knife raised near .his head.” (ECF No. 164-1 at 22.) Both Antolin and Lopez heard the Officer Defendant make references to a
Third, the testimony of Mr.. Antolin, Mr. Mendes and Ms. Weisé calls into question whether Parminder was yelling and letting out a “war cry” while charging the Officer Defendants. (See ECF No.- 164-1 at 22.) Mr. Antolin testified Parminder had stopped yelling prior to beginning to turn around. (ECF No. 177-3 at 88:20-25.) Mr. Mendes indicated that by the time Parmin-der turned around “[t]he yelling on [Par-minder’s] part was kind of over at that point[.]” (ECF No. 177-3 at 184:5-16.) Ms. Weise testified she heard someone say “don’t shoot” just before the shots were fired. (ECF No. 177-3 at 103:18-19.)
As is apparent from the Officer Defendants’ discussion in their brief, Mr. Mendes testimony differs from Mr. Antolin and Ms. Lopez’s testimony and is in some ways consistent with the Officer Defendants’ testimony. (See ECF No. 164-1 at 23.) However, this misses the point. The question at the summary judgment stage is not whether Mr. Mendes’s testimony is as supportive of the Officer Defendants’ version of events as they suggest. It is similarly not the question whether the Non-Party Witnesses’ accounts are entirely consistent with each other. The question is whether the Officer Defendants’ version of events is rendered genuinely in dispute by the evidence properly before this Court. It is.
The Officer Defendants’ suggestion that their account is corroborated by the California Department of Justice’s finding of Parminder’s DNA on a knife recovered from the scene does not change this. (ECF No. 164-1 at 24.) Although this may be consistent with their accounts, it is not inconsistent with the account of the eyewitnesses. As previously noted Mr. Antolin believed Parminder’s hands may have been in his pockets. He then testified that after Parminder fell to the ground, an officer “put handcuffs on him” and he “started rummaging through his pockets.” (ECF No. 177-3 at 89:19-20.) It was only after' this that Mr. Antolin saw a knife near the scene of the shooting. (ECF No. 177-3 at 95:9-15.) A jury could find that Parminder owned a knife which had his DNA on it, but that it had been in his pocket at the time of the shooting. Therefore, they could conclude that he did not present an immediate threat to officers or anyone else.
Similarly, the opinion of Alexander Jason, the Officer Defendants’ “bullet wound expert,” that the physical evidence is “consistent” with the Officer Defendants’ accounts does not render their version of events undisputed. (ECF No 164-1 at 23.) The Court will briefly demonstrate this for Findings 2 through 5 contained in Mr. Jason’s Declaration.
Finding 2 is that the’ “wound paths of the decedent are consistent with him moving forward toward Officer-Bratton while being struck by the bullets.” (ECF No. 164-9 at ¶ 17.) Jason makes no effort to explain why the wound paths are inconsistent with the accounts of the Non-Party
Jason gives no explanation why having “rotational movement” suggests forward motion. Jason does not state whether this rotation came before Parminder’s supposed charge — which would be consistent with statements of Antolin and Lopez that Parminder was shot as he was turning or having just completed his turn toward the Officer Defendants — or after the shooting commenced — which may simply have been an effort to turn away as Parminder was being shot multiple times. Likewise, Jason does not indicate why leaning forward is inherently aggressive. It is noteworthy that Jason’s own analysis suggests that five of the eleven shots that struck Par-minder as he faced the Officer Defendants did not have a downward trajectory — one shot to the abdomen, two to the chest, and two in the legs. (See ECF No. 164-9 at ¶ 17.) If any or all of those five shots struck first, there are plausible alternative explanations for why Parminder was leaning forward that Jason does not discuss, let alone rule out. Might Parminder have been doubled over in pain when he was hit with the downward trajectory bullets? Did Parminder reflexively lean forward to look down to see where he had been hit? Was this some futile, instinctive attempt to make himself a smaller target? Tucking his chin to his- chest seems just as plausibly explained by any of these.
Finding 3 is that one of the three gunshot wounds not previously discussed entered Parminder’s arm in a manner consistent with Parminder’s right hand being in an “outstretched position toward the shooterf.]” (ECF No. 164-9 at ¶ 18.) Finding 4 is that the path of another of these three gunshot wounds suggests that Par-minder was “shot with right upper arm raised to his shoulder level[,]” which Jason opines is consistent with holding a knife up in “stabbing motion.” (ECF No. 164-9 at ¶ 19.) Finding 5 is that “bullet defects on decedent’s clothing are consistent with the right arm being raised when at least one of the bullets struck.” (ECF No. 164-9 at ¶ 19.) Again, there are plausible alternative explanations as to why Parminder might have his right arm raised with an outstretched hand to shoulder height that are inconsistent with the Officer Defendants’ account, which Jason makes no effort to rule out. Parminder might have been gesturing at the Officer Defendants to back off or leave' him alone — which would be consistent with Mr. Mendes’s testimony. {See ECF No. 164-5 at 96:11-14.) He might have been raising his hands to surrender or in effort to signal to the Officer Defendants not to shoot (or not to continue shooting) — which would be consistent with Ms. Weise hearing someone say “don’t shoot.” {See ECF No. 177-3 at 103:18-19.) Quite simply, these factual questions are not appropriately resolved by the Court on summary judgment. Therefore, this factor does not support granting the Officer Defendants’ motion.
b. Severity of the Crime at Issue
Viewing the summary judgment record through the proper lens, by the time the Officer Defendants encoun
As this Court recently explained, under California law, the distinction between felony and misdemeanor domestic violence is whether the victim has suffered a physical injury. See Reed v. City of Modesto,
That this misdemeanor involved domestic violence does not support a conclusion that the Officer Defendants’ use of force was reasonable because at the time they encountered Parminder the reported domestic diápute was not ongoing and the alleged victim was not in immediate danger. While the Ninth Circuit has emphasized the increased danger officers- face when responding to domestic disturbances, Ninth Circuit precedent has distinguished cases where (i) the domestic dispute terminated before officers arrived and (ii) the alleged abuser is no longer in the presence of or close proximity to the victim. This precedent can be succinctly summarized as follows:
Domestic violence situations are “partic-, ularly dangerous” because “more officers are killed or injured on domestic violence calls than on any other type of call.” Mottos,661 F.3d at 450 . At the same time, we explained in Mattos that the legitimate escalation of an officer’s “concern[] about his or her safety” is less salient “when the domestic, dispute is, seemingly over by the time the officers begin their investigation.” Id. Years before that we had held — in another en banc decision — that a husband’s criminal abuse of his spouse “provide[d] little, if any, basis for the officers’ use of physical force" because when law enforcement “arrived [the husband] was standing on his porch alone and separated from his-wife.” Smith,394 F.3d at 703 .
George v. Morris,
The Officer Defendants’ characterization of the crime at issue in their briefing results from a refusal to review the record through the prism of the traditional summary judgment standard, The Officer . Defendants suggest that the crimes at issue were “[a]ssault with a deadly weapon or by
For the foregoing reasons, this factor does not support granting the Officer Defendants’ motion.
c. Resisting Arrest or Attempting to Evade Arrest by Flight
At the time of the shooting, viewing the evidence in the light most favorable to Plaintiffs, a jury could conclude Parminder was neither .resisting nor attempting to flee, for the .reasons set forth above. Parminder was asked to. stop. A jury could conclude that he did. Two witnesses indicated Parminder did not move toward the Officer Defendants at that point and turned (or was in the process of turning) to face them. An earwitness testified she heard a person say "don’t shoot.”
d. Additional Factors to Consider
The Officer Defendants offer arguments with respect to five additional factors. The Court notes that four of these five arguments are little more than identifying factors that the Ninth Circuit has recognized as being appropriately considered in some cases coupled with a reformulation of their assertion that it is undisputed that they shot a man who was attacking them with a knife. The Ninth Circuit has unambiguously stated that “where a suspect threatens an officer with a weapon such as a gun or a knife, the officer is justified in using deadly force.” Smith,
Arguments of this sort are not helpful and do not warrant detailed responses on their own terms, i.e., discretely analyzing “additional” Graham factors only after improperly resolving crucial factual disputes in favor of the moving party. This is particularly true where it essentially assumes what the Ninth Circuit, sitting en banc, has twice described as the “most important” consideration under' Graham— whether the suspect posed an “immediate threat to the safety of the officers or others.” Mattos,
As to the Officer Defendants’ argument that the fast development of events supported their use of deadly force, this must be rejected. (See ECF No 164-1 at 27-28.) • A jury 'could find that at the time the Officer Defendants shot Parmin-der, he had come to a- stop, faced them, did
Similarly,.the Officer Defendants’ argument that time did not allow them to appropriately consider less lethal force must be rejected. (See EOF No. 164-1 at 27.) As already discussed, a jury could find Par-minder had come to a stop at the Officer Defendants’ request and said “don’t shoot” at the time he was shot. This would, permit the Officer Defendants to weigh alternatives -short of shooting Parminder repeatedly at close range. Less intrusive means are not limited to applications of lesser amounts of force as the Officer Defendants’ arguments seem to suggest. See Deorle,
The Officer Defendants argue that giving Parminder warnings supports granting their motion. (EOF No. 164-1 at 26.) This also fails. Ninth Circuit precedent does provide that “[appropriate warnings ... should be given, when feasible, if the use of force may result in serious injury.” Glenn,
The Officer Defendants’ argument with respect to Parminder’s mental illness also fails. In short, they suggest “cases [that] ■ have criticized the use of force against mentally ill persons” are distinguishable because Parminder was shot to death while attempting to stab the Officer Defendants to death. (EOF No. 164-1 at 28-29.) This does not warrant a response as it clearly ignores the summary judgment standard. Moreover, a jury need not accept the Officer Defendants statement that they “perceive[d]” themselves to be dealing with a dangerous criminal suspect .rather than a mentally ill person. (EOF No. 164-1 at 29.) Both of the Officer Defendants acknowledge that they were aware prior to their arrival at the Family Home that they were responding to an incident involving a reportedly mentally ill person. (See EOF No. 164-2 at ¶¶ 9-10.) A
Lastly, the Officer Defendants argue that their use of force was made more reasonable because of Parminder’s family’s “relative- culpability” in “creat[ing .this] dangerous situation.” (ECF No. 164-1 at 26-27.) The Officer Defendants’ rely on Espinosa v. City and Cty. of San Francisco,
“So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single, person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability.”
Scott,
For the foregoing reasons, none of the foregoing factors support granting the Officer Defendants’ motion.
iv. Balancing the gravity of the intrusion against government’s interest
The foregoing analysis makes evident that the question whether the force used here was reasonable is a matter that cannot be resolved in favor of the Officer Defendants on summary judgment. The Officer Defendants have failed to. meet their burden to show that there are no questions of material fact regarding whether the use of deadly force was reasonable.. Plaintiffs have proffered evidence from which a reasonable jury could find that the Officer Defendants (i) had reason to believe they were dealing with a mentally ill individual, (ii) who at most committed a misdemeanor, (in) was not fleeing, (iv).
Unless the Court concludes that the Officer Defendants are entitled to qualified immunity, the Officer Defendants’ motion must be denied with respect to this claim.
C. Qualified Immunity:.
Viewing the evidence in the light most favorable to Plaintiffs, the Officer Defendants’ conduct violated Parminder’s Fourth Amendment rights and it was “clearly established” that such conduct constituted a Fourth Amendment violation at the time of the Officer Defendants deadly encounter with Parminder. See Tolan,
As described above, a jury could conclude that the Officer Defendants shot to de:ath a man who at most"'committed a misdemeanor, was not fleeing, had not armed himself with a weapon, was not threatening the Officer Defendants or anyone else, and-asked them not to shoot him. As the Ninth Circuit has observed, “few things in our case law are as clearly established as the principle that an officer may not ‘seize an unarmed, nondangerous suspect‘by: shooting him dead’ in the absence of ‘probable cause to believe that the [fleeing] suspect poses a threat of serious'physical harm, either to the officer, or to others.’ ” Torres v. City of Madera,
The most charitable construction of the Officer Defendants’ qualified immunity argument suggests that the case law is not settled on whether a police officer may kill a disturbed person attacking him with a knife where the officer responds to what he believes is case of domestic violence. (ECF No. 164 at 30-34,) Of course, .the Court can no more accept the Officer Defendants’ assertion that Parminder was attacking them with a knife because it is reasserted in connection with their qualified immunity argument. See Tolan,
The fact Parminder was emotionally or mentally disturbed and the 9-1-1' call'reported an incident of domestic violence does not transform this into a scenario where officers were forced to grope for the “outer contours of the Fourth Amendment” without the benefit of. a. factually similar casé. Torres,'
In ¡short, Glenn made clear, that when officers are dealing with a person who may be mentally or emotionally disturbed, who has not committed a serious crime, is not trying to get away from the officers, is not threatening the officers or others, and is not involved in a physical altercation with anyone, those officers are not free to shoot him. Glenn further makes clear that this does not, change simply because the officers were initially told they were responding to a domestic dispute.
For the foregoing reasons, the Officer Defendants’ motion is DENIED with respect to the First Claim.
D. Second Claim: Provocation'
The Officer-Defendants moved for summary judgment on Plaintiffs’ Fourth Amendment provocation claim. (ECF No. 164-1 at 35-37.) However, the Court need not address the parties’ arguments in connection with this claim in light of the Supreme Court’s recent determination that the Ninth Circuit’s “provocation rule” is incompatible with the Supreme Court’s “excessive force jurisprudence.” Cty. of L.A., Calif. v. Mendez, — U.S.—,
E. Third Claim: Substantive Due Process — Familial Association
The Officer Defendants argue that summary judgment should be granted on Plaintiffs’ Fourteenth Amendment .familial claim for three reasons. First, they argue
The Ninth Circuit “has recognized that parents have a Fourteenth Amendment liberty interest in the companionship and society of then’ children.” Wilkinson v. Torres,
The Officer Defendants argue the applicability of “purpose to harm” follows from the Ninth Circuit’s decision in Porter. (ECF No. 164-1 at 38.) They observe that the officers in Porter were required to make “repeated split-second decisions” during the course of a “five-minute altercation.” (ECF No. 164-1 at 38.) In their view, the instant action is therefore an obvious case because their encounter with Parminder was shorter than the one in Porter and theirs left them with only a “second or two” to decide to shoot Parmin-der. (ECF No. 164-1 at 38.) Thus, there was “no time for deliberation only self-preservation.” (ECF No. 164-1 at 38.)
Again, this argument is premised on the Officer Defendants’ view that it is undisputed they were in a quickly evolving situation that abruptly culminated with a close range knife attack. Viewing the evidence in the light most favorable to Plaintiffs, a jury could conclude that the Officer Defendants found time to actually deliberate in the period between their departure from the Family Home — which was described by an eyewitness as “nonchalant” (ECF No. 177-3 at 181:19) — and their shooting of a man a jury could conclude was neither dangerous nor currently in flight. Further, a jury could conclude the duration of the encounter was a function of the Officer Defendants’ indifference (or worse) towards Parminder’s constitutional rights. Consequently, the Court finds that the submitted evidence creates a genuine dispute about which standard of culpability should apply in this case. See Rose v. Cty. of Sacramento,
In any event, viewing the evidence in the light most favorable to the Plaintiffs, a jury could find the more stringent purpose to harm standard satisfied. “The purpose to harm standard is a subjective standard of culpability.” A.D. v. California Highway Patrol,
This would present an “obvious” case such that “qualified immunity is inapplicable, even without a case directly on point.” See A.D.,
For the foregoing reasons, the Officer Defendants’ motion for summary judgment on the Third Claim is DENIED as they have failed to show they are entitled to judgment as a matter of law on this claim.
F. Fourth Claim: First Amendment— Familial Association
The Ninth Circuit has recognized a First Amendment familial association claim. Lee v. Cty. of L.A.,
The Court concludes that Plaintiffs’ First Amendment rights to familial association are measured by the same standard as Fourteenth Amendment rights to familial association based on the Ninth Circuit’s analysis in Lee. There, the Ninth Circuit held: “plaintiffs have adequately alleged that defendants’ actions and policies constituted an ‘unwarranted interference’ with Kerry Sanders’s and his mother’s right to familial association under both the First-and Fourteenth Amendments.” Lee,
Mary Sanders Lee began searching for her son after his arrest. She contacted the Los Angeles Police Department, unknown employees of which told her that they had no record of, or information concerning, her son, when in fact, they knew or should have known that they had falsely arrested him and caused him to be extradited to New York. From 1993 to 1995, Mrs. Lee repeatedly contacted the Los Angeles Police Department regarding the whereabouts of Kerry Sanders. However, each time she was informed that his whereabouts were unknown .... [T]he reckless, intentionaland deliberate acts and omissions of defendants . were a direct and legal cause of the deprivation of [Plaintiffs’] constitutionally protected right under the First and Fourteenth Amendments to the association, companionship and society of one and other as mother and .son.
Id. at 685-86. Nothing in this analysis suggests a different standard applies. Nor does it allow for any principled basis for applying one.
Having already concluded that a jury could find that the Officer Defendants’ conduct “shocked the conscience,” even under the. “purpose to harm” standard, the .Court turns to whether the Officer Defendants are entitled to qualified immunity simply because it is unclear which constitutional provisions their conduct would offend. They are not. “When properly applied, [qualified immunity].protects ‘all but the plainly incompetent or those who. knowingly violate the law.’ ” al~ Kidd,
’ The Court now turns briefly to the Officer Defendants’ argument that Plaintiffs’ claim fails as a matter of law for failing to prove they had an expressive relationship with Parminder.
For the foregoing reasons, the Officer Defendants’ motion for summary judgment on the Fourth Claim, is DENIED as they have failed to show they are entitled to judgment as a matter of law on this claim.
G. Ninth through Twelfth Claims: State Law Claims
The Officer Defendants’ motion as it pertains to Plaintiffs’ state law claims requires little discussion. As a preliminary matter, Plaintiffs, acknowledge their Eleventh Claim (Negligent Infliction of Emotional Distress) fails as a matter of law. (ECF No. 177 at 37.) Consequently, the Officer Defendants’ motion is GRANTED with respect to that claim. With respect to remaining state law claims, the Officer Defendants argue these “state law claims” fall “[ljike dominoes ... with the federal claims” due to the similarities between the state and. federal standards. (ECF No. 164-1 at 41.) Having failed to tip the federal claim “dominoes,” the Officer Defendants have failed to show they are entitled to judgement' as a matter of law on the ■remaining state law claims. Therefore, the Officer Defendants’ motion for summary judgment with: respect to the Ninth, Tenth and Twelfth Claims is DENIED.
H. Punitive Damages
The Officer Defendants argument that Plaintiffs are not entitled to punitive damages as a matter of law is entirely inadequate. As Plaintiffs correctly observe, the Officer Defendants have not even “indicated whether they are moving for judgment on Plaintiffs’ punitive damages (prayer] under federal or state Jaw” or both. (ECF No. 177 at 43.) More importantly, in arguing that there is insufficient evidence to •support such an award, the Officer Defendants again presuppose jurors must accept their version of events. (ECF No. 164-1 at 42.) They need not. The Officer Defendants’ motion is therefore DENIED on this point.
V. Analysis of the City Defendants’ Motion
The City Defendants move for summary judgment on the following claims from TAC. (ECF No. 163.) The Fifth Claim-failure to enact adequate customs, policies and/or practices in violation of the Fourteenth Amendment pursuant to Section 1983 — is brought by Sukhwinder, as successor in interest to Parminder, against the City Defendants. The. Sixth Claim— failure to supervise and train in violation of
As the City Defendants’ arguments build on each other, the Court will discuss them in the order discussed in their opening beginning with the ADA claim. The Court will then discuss the Section 1983 claims followed by the state law claims. However, the Court will first discuss some matters that pertain to the motion generally-
A. Preliminary Discussion of the City Defendants’ Motion
As a preliminary note, the City Defendants have filed for joinder indicating that they adopt the entirety of the Officer Defendants’ statement of undisputed material facts. (ECF No. 163-6.) Additionally, the City Defendants filed a supplemental statement containing 39 items they submit are undisputed material facts. (ECF No. 163-2.) There are two running disagreements between the parties regarding fundamental points of summary judgment procedure. As these permeate the briefs, it will be more efficient to resolve them at the outset.
First, the parties disagree whether in connection with a motion for summary judgment the movant must always cite to evidence properly before the district court before the non-movant is forced to come forward with evidence to support her claim. Ninth Circuit precedent is settled on this point. “Under the federal [summary judgment] standard a moving defendant may shift the burden of producing evidence to the nonmoving plaintiff merely by ‘showing’ — that is, pointing out through argument — the absence of evidence to support plaintiffs claim.” Fairbank v. Wunderman Cato Johnson,
However, the subtext of this disagreement also warrants discussion. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion....” Celotex Corp.,
This first disagreement informs the second. Sukhwinder
As Sukhwinder correctly observes “[t]he law is clear ... that an expert report cannot be used to prove the existence of facts set forth therein.” In re Citric Acid Litig.,
Consequently, where the City Defendants cite expert declarants, who have no personal knowledge of the events relevant to the encounter between Parminder and the Officer Defendants, for the proposition that these facts occurred, they are improperly supported. See Doe v. City of San Diego,
The Court need not resolve the question of whether an expert's opinion may be included in a1 statement of undisputed material facts as it is unnecessary to resolve this motion. Moreover, the City Defendants’ mischaracterization of summaries of historical facts as expert opinion was not helpful. For example, the City Defendants suggest that it is an expert opinion whether during a “deposition [Parminder’s ex-wife] stated that during her marriage [Parminder] ... threatened to kill her or himself on three separate occasions.” (ECF No. 188-1,at ¶ 161.) That is remarkable. klore remarkable still is that this was done after Sukhwinder pincited authority drawing the distinction between expert opinion and factual summaries made by experts in the summary judgment' context. Because of this,' and the failure in several instances of the City Defendants to meet their burdens on other grounds, it will be more efficient to address whether specific proposed facts are properly supported in the context of discrete arguments relating to specific claims. Consequently, the Court will not include a separate factual background section with respect to the City Defendants’ motion as it is unnecessary to resolve their motion.
One last related point needs to be addressed, the City Defendants’ seeming misapprehension of the function of expert testimony in establishing that something is undisputed. Expert testimony is only admissible if it “will help the trier of fact to understand the evidence or to determine a fact in issue[.]” Fed. R. Evid. 702(a). However, helpful expert testimony is not restricted to opinions regarding factual mat-' ters that áre undisputed. See Williams v. Illinois,
B. The Eighth Claim: Title II of the ADA
The City Defendants move for summary judgment on Sukhwinder’s claim under Title II of the ADA for four reasons. First, the City Defendants argue that the ADA claim fails because the Officer Defendants acted reasonably under the circumstances. (ECF No. 163-1 at 17-21.) Second, they argue, Sukhwinder cannot show the existence of a reasonable accommodation that could have been provided to Parminder. (See ECF No. 163-1 at 17.) Third, they argue Sukhwinder cannot show the City Defendants discriminated against Parmin-
Title II of the ADA provides that “no. qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of ¡the-services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Under Ninth Circuit precedent, Title II of the. ADA applies to arrests. Sheehan v. City & Cty. of San Francisco (“Sheehan I”),
“(1) wrongful arrest, where police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity; and (2) reasonable accommodation, where, although police properly investigate and arrest a person with a disability for a crime unrelated to that disability, they fail to reasonably accommodate the person’s disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees.”
Id. Sukhwinder brings the latter. (See ECF No. 88 at 23-25.) With such a claim, the Ninth Circuit has explained that “the plaintiff bears the initial burden of producing evidence of the existence of a reasonable accommodation[.]” Id. Moreover, “the Ninth Circuit agreed that in the arrest context, “exigent circumstances' inform the reasonableness analysis under the ADA, just as they inform the distinct reasonableness analysis under-the Fourth Amendment.” Id.
With respect to the City Defendants’ first argument, the parties disagree over whether it is “proper” for the Court to apply the “Graham factors to the reasonableness of an accommodation under the ADA.” (Compare ECF No. 163-1 at 18 with ECF No. 178 at 21.) The Court need not resolve this dispute because, even assuming'that the City Defendants are correct that these factors' apply, this argument still fails. The City Defendants argue that “[Sukhwinder] cannot show that the ■ officers acted unreasonably” when their encounter with Parminder is viewed through the Tens of the Graham- factors “given the totality of the circumstances.” (ECF No. 163-1 at 20.) The Court has denied the Officer Defendants’ motion for summary judgment on Plaintiffs’ Fourth Amendment claims explaining in detail why a reasonable jury could conclude that the Officer Defendants’ actions were not reasonable within the meaning of the Fourth Amendment. For these same reasons, the City Defendants’ first argument also fails.
With respect to the City Defendants’ second argument, Sukhwinder has raised a triable issue regarding whether a reasonable accommodation existed citing to evidence properly before this Court. In short, Sukhwinder argues a jury could conclude that before the Officer Defendants shot Parminder to death they were aware of his mental illness and nevertheless issued him commands with guns.drawn and
The City Defendants’ “argument” in reply is wholly inadequate.
With respect to City Defendants’ third argument, they have neither demonstrated that Parminder was drinking alcohol prior to his encounter with the Officer Defendants nor that this is the only inference that can be drawn from the facts properly before the Court. Even where movant supports its position with a fact, “summary judgment is inappropriate when different ultimate inferences may be drawn from the evidence.” Cushman v. City of Troutdale, No. Civil No. 07-0012-HU,
The assertions that Parminder was drinking, was intoxicated, and that intoxication had an impact on his encounter with the Officer Defendants is premised on a single undisputed fact — a toxicology test conducted four days after the shooting showed there was a “measurable amount of alcohol” in Parminder’s corpse. {See ECF No. 178 at 23-25.) The focus of Sukhwinder’s opposition is that the City Defendants have offered “pure speculation” supported by “no evidence” that the presence of alcohol in a corpse under these circumstances must result from drinking alcohol, let alone to the point of intoxication. (ECF No. 178 at 23-24.) Mysteriously, the City Defendants have not bothered to respond to this point in their reply brief.
As to the fourth argument, a qualified immunity defense is unavailable to Chief Helms in connection with Sukhwin-der’s claim under Title II of the ADA for two separate reasons. First, as Sukhwin-der correctly observes, she has not brought this claim against Chief Helms in the first place. (See ECF No.'88 at 23-25.) Second, “[ijndividual liability is precluded under ADA Title II.” Roundtree v. Adams, No. 1:01-cv-06502-OWW-JLO,
For the foregoing reasons, the City Defendants’ motion for summary judgment on the Seventh Claim is DENIED.
C. Section 1983 Claims Against the City Defendants
The Fifth, Sixth, and Seventh Claims are each brought pursuant to Section 1983. Before discussing them individually, the Court will briefly set out the standard for municipal liability under said section. The Court will also briefly deal with one of City Defendants’ arguments common to the Fifth and Sixth Claims.
“In Monell, the Supreme Court held that municipalities are ‘persons’ subject to damages liability under section 1983 where ‘action pursuant to official- municipal policy of some nature cause[s] a constitutional tort.’” Gillette v. Delmore,
“First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity. Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy. Whether a particular official has final policy-making authority is a question of state law. Third,' the plaintiff may prove that an official with .final policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for it.” Id. at 1346-47 (internal citations and
quotation marks omitted).
The City Defendants argue that “because Plaintiffs failure to accommodate claims fails” her “Monell claims alleged in the Fifth and Sixth cause of action” must fail also as they are “based on- contacts with mentally ill persons.” (ECF No. 163-1 at 22.) The Court would first observe that the City Defendants have cited no authority for- this- proposition. In any event, this argument fails because the Court has denied the City Defendants’ motion on the Seventh Claim.-
D. The Fifth Claim: Failure to Enact Adequate Customs, Policies or Practices
The City Defendants argue they are entitled to' summary judgment on Su-khwinder’s Fifth Claim for two reasons. Each must be rejected. First, the City Defendants assert that “['a]t the summary judgment stage, [Sukhwinder] must show with evidence that there is a ‘proper way’ to interact with [Parminder], that the officers failed to do so, and that this was the moving force behind the violation” in order to make out this claim. (ECF, No, 163-1 at 22 (emphasis added).) The City Defendants neither cite authority nor offer legal analysis in support of this proposition. This seems to have been an attempt by the City Defendants to discharge their initial burden through argument. They have not met this burden, as this sentence does not “an argument make.”
Second,.- the City Defendants argue that “[b]ecause Officers Bratton and Lockie appropriately dealt with the situation as presented to them, [Sukhwinder] cannot show any deliberate indifference on behalf of [LPD], and this claim should be dismissed.” (ECF No. 163-1 at 23.) The Court will not tarry long over, this “argument.” The Court has already concluded that a reasonable jury could find that- the
For the foregoing reasons, the City Defendants’ motion for summary judgment on the Fifth Claim is DENIED.
E. The Sixth Claim: Failure to Supervise and Train
The City Defendants have offered two general arguments in favor of their motion for summary judgment on this claim. Each fails. The Court will discuss these first. A discussion of Defendant Helms’s separate, third argument relating to liability in his individual capacity follows.
The City Defendants begin their analysis with a citation to Connick v. Thompson,
What the Court construes as an attempt at a second' “argument” is wholly inadequate. For example, in two sentences copied and pasted from their supplemental statement of undisputed material facts, the City Defendants assert LPD officers receive training that is required by the State of California and the California Commission on Peace Officer Standards and Training. (ECF No. 163-1 at 24.) While Sukhwinder correctly observes the City Defendants have not properly submitted the records their expert is interpreting, there is a more serious problem, (ECF No. 178 at 18.) The City Defendants have made no argument why this entitles them to judgment as. a matter, of law on this federal constitutional claim. The final paragraph suffers from precisely the same problems. The City Defendants again have not met their burden.
Defendant Helms -moves for summary judgment on Plaintiffs Sixth Claim,
As previously discussed, Sukhwinder’s suggestion that Defendant Helms did not meet his initial burden is incorrect. (See ECF No. 178 at 12.) As Defendant Helms correctly observed, it is an essential element of a Section 1983 claim seeking damages against a government official that the government official be shown to have violated the constitution by his own actions. Starr v. Baca,
The opposition seeks to excuse this by arguing that “the actions and inactions of Defendant Helms necessarily encompass those of municipal Defendants City and LPD, for whom he was a policy-maker.” (ECF No. 178 at 12 (emphasis added).) This is incorrect. The cases cited in the opposition do not support this- argument. The source of the opposition’s confusion seems to be the use of “supervisory liability” in some opinions dealing with § 1983 suits or Bivens actions and the non-existence of vicarious liability for such claims. This was clarified in Iqbal. Ashcroft v. Iqbal,
For the foregoing reasons, the City Defendants’ motion for summary judgment on the Sixth Claim is GRANTED as to Defendant Helms, in his individual capacity. Otherwise, it is DENIED.
F. The Seventh Claim: Ratification
The City Defendants move for summary judgment on Sukhwinder’s ratification claim arguing that she cannot show that Defendant Helms’s actions amounted to the approval by a municipal policymaker of “both the [unconstitutional] action and the illicit basis for it.” (ECF No. 163-1 at 24.) Although the opposition incorrectly suggests it need not offer any evidence in support of its claim, it nonetheless submits its theory citing evidence: “[the] City Defendants’ ratification of [the] Officer Defendants’ action in this case was, essentially, a gratuitous media campaign professing justification in the face of conflicting eyewitness testimony.” (ECF No. 178 at 20.) In short, the opposition suggests that Defendant Helms should not have accepted the Officer Defendants’ version of events
Ninth Circuit precedent makes clear that the ratification theory “requires that a policymaker approve a subordinate’s decision and the basis for it before the policymaker will be deemed to have ratified the subordinate’s discretionary decision.” Gillette,
■This is clearly demonstrated by the Ninth Circuit’s analysis in Ellins. There, the plaintiff alleged that the chief of police delayed signing an application for a certification that would entitle him to a five percent raise as retaliation for exercising his First Amendment rights. Ellins,
The opposition suggests that a municipal policymaker must accept a plaintiffs'version of events surrounding an allegation of unconstitutional behavior by that policymaker’s subordinate until that plaintiffs version is conclusively disproven in order to avoid inadvertently ratifying the subordinate’s possibly unconstitutional behavior. This is not the law. See Gainor v. Douglas Cty., Georgia,
Perhaps more. importantly, the opposition’s argument “fails for lack of causation.” Long v. City & Cty. of Honolulu,
For the foregoing reasons, the City Defendants’ motion for' summary judgment on the Seventh Claim is GRANTED.
G. Ninth through Twelfth Claims: State Law Claims
The City Defendants “join” the Officer Defendants’ motion with respect to the state law claims and provide no additional analysis, (ECF No. 163-1 at 26.) The outcome is the same. The'motion is GRANTED with respect to the Eleventh Claim. It is DENIED with respect to the Ninth, Tenth and Twelfth Claims.
VI.. Conclusion
For the foregoing' reasons, the Officer Defendants’ motion is GRANTED in part and DENIED in part. It is GRANTED with respect to: (i) the Second Claim and (ii) the Eleventh Claim. Otherwise, it is DENIED.
For the foregoing reasons, the City Defendants’ motion is GRANTED in part and DENIED in part. It is GRANTED with respect to: ■ (i) the Sixth • Claim, as it applies to Chief Helms in his individual capacity, (ii) the Seventh Claim, and (iii) the Eleventh Claim. Otherwise, the City Defendants’ motion is DENIED.
IT IS SO ORDERED.
Notes
. Also pending are Plaintiffs’ several motions to exclude expert testimony (ECF Nos. 154-159) and motion to bifurcate (ECF No. 160).
. The parties have supplied excerpts of various depositions in their submissions. For ease of reference, the page numbers used in citations in this Order are the ECF page numbers.
. Certain claims pertain only to the City Defendants: The Court identifies claims as designated in TAC.
. Finding 1 deals with the geographical locátion of the shooting. (ECF No. 164-9 at ¶ 16.)
. That the decedent in Glenn is intoxicated and armed with a knife is happenstance. See Tolan,
. The Court has located three unpublished district court opinions in the Ninth Circuit also concluding the same standard applies but analyzes the issue independently. In Poster v. Osborn, No. 3:05-cv-00142 JWS,
. The Officer Defendants argue in their reply that Sukhwinder’s First Amendment' claim is duplicative of her Fourteenth Amendment
. The City Defendants’ motion only relates to claims brought by Sukhwinder.
. ’ The Court found it unnecessary to resolve the Officer Defendants’ objections to Plaintiffs' evidence offered in support of their opposition in order to resolve the Officer Defendants’ motion. (ECF No. 188-2.)
. In Sheehan II, "the Supreme Court declined to address whether Title II of the ADA applies to arrests.” Givens v. Cty. of Sacramento, No. 2:15-cv-0720-JAM-KJN PS, 2016 WL-6599810, at *4 (E.D. Cal. Nov. 7, 2016). Consequently, this Court is “bound by the Ninth Circuit’s decision that the ADA applies to arrests.” Id. ■ . ■
. The Court discusses this "argument” out of completeness, even though arguably it was not pressed until the reply brief. In its discussion under the heading "The ADA Claim Fails Because the Officers Acted Reasonably” the City Defendants mention in passing a "plaintiff bears the initial burden of producing evidence of the existence of a reasonable accommodation.” (ECF No. 163-1 at 17.) Nearly four pages later the City Defendants state "Plaintiff’s arguments that the officers should have acted differently to mitigate the risk do not save this argument in the absence of any evidence.” (ECF 163-1 at 20.) It is not even clear what "this argument” refers to. Nevertheless, in their reply, the City Defendants’ primary focus with respect to the ADA is that Plaintiff's "opposition shows that Plaintiff cannot meet this burden." (ECF 188 at 5.)
. The City Defendants are reminded that it is their burden to demonstrate that they are entitled to judgment as a matter of law. When a non-moving party's opposition seriously
. It is also noteworthy that in connection with the Officer Defendants' motion, Plaintiffs disputed the Officer Defendants’ proposed-undisputed fact that Parminder had been drinking by pointing out that none of the evidence cited stated Parminder had been drinking. (ECF No. 177-1 at ¶ 1.) This is accurate. Inferences that a party would have drawn from a fact are not properly included in a statement of undisputed facts.
. Strangely, the City Defendants have tucked into a thirty-one page document called “Municipal Defendants’ Reply to Plaintiffs' Response to Separate Statement of Undisputed Material Facts in Support of their Motion for Summary Adjudication” a one sentence statement that "[tjhere is no evidence the blood continued to metabolize post-mortem” and that such a suggestion is "nonsensical.” (ECF No. 188 — 1 at ¶ 172.) The parties are reminded the Court has no obligation to scour their filings in the hopes of finding an argument not included in their briefs. Williams, 190 F.Supp.2d át 1114 ("A judge is ... neither required to hunt down arguments plaintiffs keep camouflaged nor required to address perfunctory and undeveloped arguments.”) In any event, this "argument” ignores the above-cited portion of Defendants’ own submissions.
, The reply repeats that the City Defendants are generally of the view that there can be.no Monell liability under Section 1983 unless there is liability under Title II of the ADA. (ECF No. 188 at 6 ("Plaintiff's opposition puts the cart before the horse first arguing Monell liability then moving onto the ADA claim.")) Characteristically, no authority is cited for this proposition. The Court's best guess is the sentence at issue was an ineffectual attempt to argue the Court should engraft On Section 1983 claims the' initial burden placed on a plaintiff in a reasonable accommodation claim under Title II of the ADA. Putting aside that the City Defendants have offered no authority for this proposition, .the Court has - already found this burden satisfied in connection with Sukhwinder's ADA claim.
. Of course ‘‘[e]vidence that a police department has failed to investigate previous incidents similar to the incident in question may support a finding that a municipal custom •exists, and that such a custom encourages or allows officers to use excessive force without concern for punishment.” Mettler,