Harris v. City of Tulare ( 2022 )

Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 1 of 35 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANYKA HARRIS and BOBBY No. 1:18-cv-01135-NONE-SKO REEDOM, 12 Plaintiffs, 13 ORDER GRANTING IN PART AND v. DENYING IN PART DEFENDANTS’ 14 MOTION FOR SUMMARY JUDGMENT CITY OF TULARE, et al., 15 Defendants. 16 (Doc. No. 33) 17 18 19 INTRODUCTION 20 Plaintiffs Anyka Harris and Bobby Reedom (“plaintiffs”) were the mother and father, 21 respectively, of Jontell Reedom (“Jontell”). On March 12, 2018, defendants Clemente Clinton 22 (“Clinton”) and Jose Valencia (“Valencia”), who are police officers for defendant City of Tulare 23 (collectively, “defendants”), shot and killed Jontell after responding to a dispatch report that a 24 school-bus driver had been assaulted. Each plaintiff brought civil-rights actions in this federal 25 court, which were consolidated and merged in this case. (Doc. No. 12.) On June 10, 2020, 26 defendants filed a motion for summary judgment, which is now pending before the court. (Doc. 27 ///// 28 ///// 1 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 2 of 35 1 No. 33.) For the following reasons, defendants’ motion will be granted in part and denied in 2 part.1 3 BACKGROUND 4 A. Factual Background 5 Unless otherwise noted, the facts set forth below are undisputed by the parties. 6 1. Relevant Aspects of Jontell’s History 7 Jontell had previous contacts with both of the defendant officers. Within a year before the 8 shooting, while on patrol, officer Clinton responded to a complaint of Jontell causing a 9 disturbance. (Doc. No. 33-1 ¶¶ 15-18 (Joint Statement of Undisputed Facts, “JS”); Clinton 10 Deposition Transcript at 62:4–21.)2 When officer Clinton contacted Jontell, Jontell was 11 aggressive and confrontational, told Clinton he wanted to be left alone, and eventually walked 12 away. (JS ¶ 17.) Clinton did not use physical force during that encounter. (Id. ¶ 18.) 13 Officer Valencia also had one or two prior encounters with Jontell in downtown Tulare. 14 Jontell had been panhandling and had made patrons of a business uncomfortable. (Id. ¶¶ 20-21.) 15 Although Jontell was initially uncooperative with officer Valencia each time, he became 16 cooperative after speaking with officer Valencia. (Id. ¶ 23; Valencia Tr. 17:13-25.) Officer 17 Valencia also had contact with Jontell on April 18, 2009, in connection with a dog taken from a 18 backyard. (Doc. Nos. 39-1 at 19; 40-4 ¶ 98 (defendants’ objections to plaintiff Reedom’s 19 ///// 20 21 1 The undersigned apologizes for the excessive delay in the issuance of this order. This court’s overwhelming caseload has been well publicized and the long-standing lack of judicial resources 22 in this district long-ago reached crisis proportion. That situation, which continued unabated for over twenty-two months but has now been partially addressed by the U.S. Senate’s confirmation 23 of a new district judge for this court on December 17, 2021, left the undersigned presiding over 1,300 civil cases and criminal matters involving 735 defendants at last count. Unfortunately, that 24 situation sometimes results in the court not being able to issue orders in submitted civil matters within an acceptable period of time. This situation has been frustrating to the court, which fully 25 realizes how incredibly frustrating it is to the parties and their counsel. 2 26 Defendants and plaintiff Harris have filed different selections of the deposition transcripts of defendants Clinton and Valencia in connection with the pending motion. (See Doc. Nos. 33-4 27 (Clinton deposition); 33-5 (Valencia deposition); 34-1 (Clinton deposition); 35-2 (Valencia deposition); 40-2 (Clinton deposition); 40-3 (Valencia deposition)). When citing these transcripts 28 the court will refer to “Clinton Tr.” or “Valencia Tr.” 2 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 3 of 35 1 Separate Genuine Disputes of Fact, “PRDF”).)3 2 Jontell had numerous other contacts with Tulare police officers. Indeed, plaintiff Reedom 3 points to at least 53 other encounters Jontell had with the police, but it is unknown to what extent 4 officers Clinton or Valencia were aware of these incidents. (PRDF ¶ 97.) 5 Plaintiff Reedom contends that Jontell had been prescribed olanzapine (brand name 6 Zyprexa) to treat his schizophrenia. (PRDF ¶¶ 101, 105.) Defendants do not dispute that Jontell 7 was treated with that medicine for schizophrenia. According to plaintiff Reedom, Clinton and 8 Valencia were on notice of these facts. Plaintiff Reedom points to exhibit E of Edward Lyman’s 9 declaration, which are excerpts from Tulare police department reports. At times, plaintiff 10 Reedom points to 54 pages of the reports; at other times, plaintiff Reedom points to several 11 specific pages. (PRDF ¶¶ 101–105.) The cited pages do reflect that certain members of the 12 Tulare Police Department were aware that Jontell had been prescribed psychiatric medications 13 before his death. Once, for example, plaintiff Harris gave Tulare police officers Jontell’s 14 prescription medicine. (PRDF ¶ 104.) However, the record before the court on summary 15 judgment does not establish that officers Clinton or Valencia were aware of Jontell’s mental 16 illness or of the medication he was prescribed to treat his condition. (Doc. No. 39-1 at 10–11, 17 30.) 18 2. Initial Encounter 19 On March 12, 2018, police dispatch relayed to officers, including officers Clinton and 20 Valencia, a report that an individual had just assaulted a school-bus driver. (JS ¶¶ 1–2, 5.) The 21 dispatcher did not provide any information about whether the suspect was armed or whether 22 anyone had been injured but did inform the officers that the suspect—later identified as Jontell— 23 ///// 24 25 3 Defendants argue that the court should disregard plaintiff Reedom’s statement of disputed facts due to untimeliness. (Doc. No 40-4 at 1–2.) It is the case that plaintiff Reedom did not file his 26 statement of disputed facts until the day defendants’ reply in support of their motion for summary judgment was due. (See Doc. Nos. 38 & 39.) The court need not resolve any dispute over the 27 timeliness of Reedom’s filing, however, because it finds that plaintiff Reedom’s statement of disputed facts does not impact the resolution of the pending motion. The court includes several of 28 those facts in this section of its order only for purposes of providing adequate background. 3 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 4 of 35 1 was leaving the area on foot. (JS ¶¶ 24–25.)4 2 Officer Clinton responded to the scene first. (JS ¶ 2.) Upon arrival he saw Jontell from 3 his police car near the intersection of East Cross Avenue and Auburn Street but did not see any 4 weapons, nor did he witness Jontell commit a crime. (JS ¶ 26; Clinton Tr. 18:5–17.) Clinton 5 exited his vehicle and tried to speak with Jontell. (Id. 18:18–25.) Jontell replied, “fuck you, I 6 don’t even know if you’re a real cop” and then stated to officer Clinton that he thought Clinton 7 had slept with his girlfriend. (JS ¶¶ 2, 27-28.) Jontell also told officer Clinton “ ‘Don’t touch me’ 8 or words to that effect” and walked away. (JS ¶¶ 3, 29; Clinton Tr. 30:18-24.) 9 3. First Tasing and Beginning of the Fight 10 After Jontell walked away, officer Clinton ordered him to come back: 11 Q. What type of commands were you giving him when he was walking away from you? 12 A. I was telling him to stop, come here. He wasn’t free to leave. I 13 was trying to figure out what was going on. 14 Q. And that would have been as he was walking away from you, as you described? 15 A. Yes. 16 17 (Clinton Tr. 33:17–24.) Jontell eventually stopped and turned back toward officer Clinton. (JS 18 ¶ 32.) A few seconds later, officer Clinton then deployed his taser on Jontell in probe/dart mode. 19 (Id.; Clinton Tr. 33:25–34:8.) Officer Clinton estimated that Jontell was four feet away when he 20 tased him. (Id. 34:9–11.) Officer Clinton stated in a post-incident interview that Jontell’s fists 21 were closed when he was tased. (JS ¶ 32; Doc. No 33-10.)5 This tasing did not incapacitate 22 Jontell, and he began punching officer Clinton. (JS ¶ 4.) 23 24 4 Defendants contend that officers had been told that Jontell “had punched an innocent school 25 bus driver” (JS ¶ 24); the evidence defendants cite does not establish whether the driver had been injured, (id. ¶ 1; Doc. No. 33-3 at 2–3). 26 5 It is not clear who interviewed officer Clinton, and there are no indications that this statement 27 was given, for instance, under penalty of perjury. (See Doc. Nos. 33-2 at 3 (defense counsel’s declaration describing relevant exhibit as “true and correct excerpts from the post-incident 28 interview of Officer Clinton.”); 33-10 (not explaining context).) 4 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 5 of 35 1 Parts of what happened next are visible on a 60-second dashcam video taken by a civilian 2 driver which has been submitted to the court as evidence on summary judgment. (Doc. No. 33-5 3 (“Dashcam”).) The Dashcam first captures aspects of the police encounter with Jontell 27 4 seconds into the recording. At that point, two figures come into view on a sidewalk in the 5 distance. One person in a white shirt (Jontell) and another in a black shirt (Clinton) are seen 6 moving around. Based upon the court’s review of the Dashcam video it is not clear what is taking 7 place at this point of the recording. As the Dashcam gets closer to the action, the altercation 8 becomes clearer. At 31 seconds in, the video shows Jontell and officer Clinton fighting. At 32 9 seconds in, Clinton falls to the ground, presumably due to the fight, and Jontell continues to 10 punch him. At 37 seconds in, Jontell stops punching Clinton and can be seen standing above 11 him.6 12 Officer Clinton then pushed Jontell back using his feet to do so, Jontell walked away, and 13 Clinton stood back up. (JS ¶¶ 36–37; Clinton Tr. 35:4–36:14.) Officer Clinton then called for 14 expedited backup and followed Jontell. (JS ¶¶ 38–39; Clinton Tr. 36:14–16.) 15 4. Officer Valencia Arrives and Tases Jontell Twice 16 Officer Valencia arrived on the scene at approximately this point and saw Jontell walking 17 along East Cross Avenue towards Cherry Street. (JS ¶ 40.) Jontell walked towards officer 18 Valencia, who said “Jontell, stop.” (Id. ¶ 42.) After Jontell replied, “I’m not stopping,” and 19 Valencia then tased him without giving any further warning. (Id. ¶¶ 5, 42, 44.) Jontell ran away 20 after officer Valencia’s first tasing, and Valencia chased after him. (Id. ¶ 48.) 21 This part of the altercation was also captured on a video which has also been submitted to 22 the court on summary judgment. (Doc. No. 33-8 (“Handheld Video”)). The Handheld Video 23 appears to have been taken by bystanders from a car, most likely with a cell phone. It begins with 24 a noise that could be the sound of a taser. One officer—apparently officer Clinton—is visible 25 near a police car. Jontell and the other officer—apparently officer Valencia—are obscured by a 26 bush. At three seconds into the video, however, Jontell can be seen running away. At eight 27 seconds in, there is a popping sound while officer Valencia is seen with his arm outstretched. It is 28 6 The remainder of this video is irrelevant to resolution of the pending motion. 5 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 6 of 35 1 undisputed that this was the second time officer Valencia tased Jontell. (JS ¶ 49.) Jontell then is 2 seen continuing to run away, and officer Valencia chases him. (Handheld Video at 0:09–15; 3 JS ¶ 52.) Jontell stopped running and Valencia is seen catching up to him. (Handheld Video at 4 0:17.) At this point in the video, Valencia “drive-stunned [Jontell] with his Taser,” and the two 5 began punching each other. (JS ¶¶ 8, 53–54, 57; Handheld Video at 0:17–23.) 6 5. Valencia’s Baton 7 The Handheld Video next shows Jontell and officer Valencia each taking a few steps back 8 from one another after exchanging more punches. (Handheld Video at 0:19–20.) At 22 seconds 9 into the Handheld Video, Valencia retrieves his baton and begins to advance toward Jontell. 10 (Accord JS ¶ 57.) Valencia is then seen swinging the baton at Jontell. (Handheld Video at 0:23– 11 25.) The parties dispute, however, whether officer Valencia hit Jontell with the baton. (See 12 JS ¶¶ 9, 61.) Valencia testified that he missed. (Valencia Tr. 28:7–12.) The Handheld Video 13 does not clearly establish whether he did in fact hit Jontell. (Handheld Video at 0:21–24.) 14 However, the parties do not dispute that according to the autopsy report, Jontell’s body also 15 showed “four distinctly colored dots to his right upper chest and three linear dots to the lower 16 right abdomen that could be consistent with taser marks” and that he also “sustained an elongate 2 17 1/8 inch abrasion to his mid abdomen consistent with a baton strike mark.” (JS ¶¶ 94–95.) 18 Officer Clinton is next seen on the video catching up to the other two and deploying 19 pepper spray at Jontell. (Handheld Video at 0:25–31; JS ¶¶ 10, 64.) After he sprayed Jontell, 20 officer Clinton put his hand to his own face and walked away. (Handheld Video at 0:31–33.) 21 Meanwhile, officer Valencia swung his baton again; the parties again dispute whether he hit 22 Jontell at this time. (Id.; JS ¶¶ 11, 68.)7 23 After one of officer Valencia’s swings, Jontell took the baton from him. (JS ¶¶ 12, 76; 24 Clinton Tr. 42:7–15.) It is unclear from the video how far away Jontell was from officer Valencia 25 when he took the officer’s baton. (See Handheld Video at 0:37–38; JS ¶¶ 76–77.) Later, officer 26 27 7 Specifically, defendants claim that “Valencia attempted more than one baton strike, but it is clear that only one, if any, may have connected, while all others missed and none subdued 28 [Jontell].” (JS ¶ 68.) Plaintiff Harris states that officer Valencia did strike Jontell this time. (Id.) 6 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 7 of 35 1 Valencia told a detective that Jontell was “[f]ive to ten feet [away]. I’m not sure.” (Valencia Tr. 2 35:9). Defendants now contend that Jontell was “within arm’s reach when he took Valencia’s 3 baton.” (JS ¶ 76.) Either way, it is undisputed that officer Valencia stepped back after Jontell 4 took his baton. (JS ¶ 78.) 5 6. The Shooting 6 The parties’ account of the actual shooting differs substantially. According to defendants, 7 Jontell advanced on officers Clinton and Valencia after taking Valencia’s baton. (JS ¶ 13.) 8 Under this account, Jontell then “raised [the baton] above his head and was making a forward 9 motion as if he was going to strike [officer Valencia] with it.” (Valencia Tr. 33:23–24.) Before 10 Jontell was able to swing the baton, officers Clinton and Valencia shot him. (JS ¶ 13.) Officer 11 Valencia estimated that Jontell was “[f]ive to seven feet” away from him when he first fired his 12 gun. (Valencia Tr. 36:19–24.) Officer Clinton testified that he was “[a]pproximately eight to ten 13 feet” away from Jontell when he fired his first shot. (Clinton Tr. 43:16.) According to officer 14 Valencia, Jontell “was still coming forward with the baton raised” after their first shots were 15 fired. (Valencia Tr. 38:15–16.) 16 Plaintiffs paint a very different picture of the evidence on summary judgment. Plaintiff 17 Harris argues that Jontell “was moving away from Officer Valencia and did not raise the baton in 18 a threatening manner prior to the shooting.” (Doc. No. 36 at 26.) Plaintiff Reedom argues that 19 after Jontell “took the baton, he moved back and away from Officer Valencia.” (Doc. No. 37 at 20 11.) The parties do agree, however, that defendants did not warn Jontell they would shoot him 21 before they fired. (JS ¶ 81.) Ultimately officer Clinton fired seven shots; officer Valencia fired 22 twice. (JS ¶ 79). All nine shots hit Jontell, and he died as a result. (JS ¶ 93.) 23 The Handheld Video before the court provides some additional context. At 35 seconds 24 into that video, a car begins to obscure the video’s view, just as Jontell grabbed officer Valencia’s 25 baton. At 38 seconds in, the car finishes passing in front of the camera. At that point, Jontell’s 26 white shirt and black pants are visible but out of focus. The video does not depict whether 27 Jontell’s hands were above his head or where the baton was. Based on the court’s review of the 28 ///// 7 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 8 of 35 1 evidence on summary judgment, the video does not provide support for either party’s version of 2 the events. 3 At almost the exact same time as Jontell becomes visible on the video, the first gunshot is 4 audible. More gunshots were fired as Jontell fell to the ground within one second of the first 5 gunshot. Again, the video submitted to the court does not clearly establish whether Jontell’s arms 6 were raised between the first shot and his falling to the ground. However, it does not appear on 7 the video that Jontell continued to move forward after the first gunshot was fired. (Id.) Finally, 8 the video depicts that after Jontell fell to the ground, officers Clinton and Valencia continued to 9 shoot him. (Id. at 0:39-40.) 10 7. Expert Opinion 11 Plaintiff Harris filed the expert declaration of Roger Clark in opposition to the pending 12 motion for summary judgment, who opines that the deadly force employed in this case by the 13 officers was unreasonable, stating: 14 A reasonable officer in the officers’ position would not have believed that they were being confronted with an immediate defense of life 15 situation, as Mr. Reedom never swung the baton at the officers or anyone and appeared to be backing away after he took the baton. The 16 officers had less-than-lethal alternatives to take Mr. Reedom into custody, including creating distance, giving additional commands to 17 Mr. Reedom to drop the baton, giving a verbal warning that deadly force was going to be used, using less-than-lethal force, and waiting 18 for backup to arrive to assist in the arrest. Officers are trained that they cannot shoot someone for simply having a wood or metal 19 weapon, knife, or gun in their hand. Officers are trained that being in a physical altercation alone is not sufficient justification for the 20 use of deadly force. 21 (Doc. No. 34-5 ¶ 18.) 22 B. Procedural Background 23 Plaintiff Anyka Harris filed a complaint against defendants City of Tulare and Does 1-10 24 on August 22, 2018, asserting claims under 42 U.S.C. § 1983 (“§ 1983”) and state law. (Doc. No. 25 1.) Plaintiff Bobby Reedom also filed a complaint in this district against defendant City of Tulare 26 and Does 1-10 on October 3, 2018. (Case No. 1:18-cv-01366-LJO-SKO, Doc. No. 1.) As 27 indicated above, the two actions were consolidated and merged on December 21, 2018. (Doc. 28 No. 12.) 8 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 9 of 35 1 Plaintiffs filed a combined first amended complaint on August 2, 2019 against defendants 2 City of Tulare, Clinton, Valencia, and Does 3-10. (Doc. No. 28.) The complaint’s federal claims 3 under § 1983 were for excessive use of force in violation of the Fourth Amendment, violations of 4 substantive due process, and various municipal-liability claims. (Id.) The complaint also 5 included state law tort claims for battery and negligence and a claim brought under California’s 6 Bane Act. (Id.) 7 Defendants moved for summary judgment on June 10, 2020, (Doc. No. 33), and plaintiff 8 Harris filed a declaration containing evidence in support of her opposition to that motion for 9 summary judgment, (Doc. No. 34). Both plaintiffs filed oppositions to defendants’ motion on 10 June 26, 2020. (Doc. Nos. 36 & 37.) On July 2, 2020, plaintiff Reedom filed a separate 11 statement of disputed issues of material fact and additional material facts, along with a declaration 12 that included evidence in support of plaintiffs’ opposition. (Doc. Nos. 38 & 39.) The same day, 13 defendants filed a reply. (Doc. No. 40.) 14 On May 18, 2021, the court noted that defense counsel’s declaration indicated that 15 plaintiff Harris had agreed to voluntarily dismiss with prejudice the municipal-liability claims. 16 The court ordered the parties to file an appropriate dismissal document reflecting that agreement. 17 (Doc. No. 56.) On May 19, 2021, the parties filed a stipulation of dismissal of the third, fourth, 18 and fifth causes of action from the first amended complaint as to both plaintiffs. (Doc. No. 57.) 19 In light of the stipulated dismissal, the municipal liability claims are no longer before the court. 20 LEGAL STANDARDS 21 Summary judgment is appropriate when the moving party “shows that there is no genuine 22 dispute as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. 23 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine 24 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 25 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where, as here, the non-moving party bears 26 the burden of proof at trial, “the moving party need only prove that there is an absence of 27 evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 28 477 U.S. at 325). If the moving party meets its initial burden, it shifts to the opposing party to 9 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 10 of 35 1 establish that a genuine dispute over a material fact actually exists. See Matsushita Elec. Indus. 2 Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 3 To meet their burden, the parties may not simply rest on their pleadings. Rather, parties 4 must cite to specific parts of the record to show whether there is a genuine dispute over a material 5 fact. See Fed. R. Civ. P. 56(c); see also Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th 6 Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for 7 summary judgment.”). A fact is material if it might affect the outcome of the suit under 8 governing law, and the dispute, genuine if a reasonable jury could return a verdict for the non- 9 moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 10 Although the court takes undisputed facts as true and draws all inferences supported by 11 the evidence in favor of the non-moving party, see Anthoine v. N. Cent. Counties Consortium, 12 605 F.3d 740, 745 (9th Cir. 2010), the party opposing summary judgment “must do more than 13 simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 14 U.S. at 587 (citation omitted). However, the non-moving party need not establish a material issue 15 of fact conclusively in its favor. It is enough that “sufficient evidence supporting the claimed 16 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 17 truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630–31 (9th 18 Cir. 1987) (“[A]t this [summary judgment] stage of the litigation, the judge does not weigh 19 conflicting evidence with respect to a disputed material fact. Nor does the judge make credibility 20 determinations with respect to statements made in affidavits, answers to interrogatories, 21 admissions, or depositions.”). “Where the record taken as a whole could not lead a rational trier 22 of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 23 U.S. at 587 (citation omitted). Likewise, “a complete failure of proof concerning an essential 24 element of the non-moving party’s case necessarily renders all other facts immaterial.” Celotex, 25 477 U.S. at 322. 26 When examining police officers’ use of deadly force at summary judgment, courts are 27 mindful that the plaintiff has died and thus cannot testify. Accordingly, in such circumstances 28 courts “carefully examine all the evidence in the record, such as medical reports, 10 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 11 of 35 1 contemporaneous statements by the officer and the available physical evidence, to determine 2 whether the officer’s story is internally consistent and consistent with other known facts. [Courts] 3 must also examine circumstantial evidence that, if believed, would tend to discredit the police 4 officer’s story.” Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014); see also Estate 5 of Lopez v. Gelhaus, 871 F.3d 998, 1006, 1008-09 (9th Cir. 2017). Thus, “[i]n cases where the 6 best (and usually only) witness who could offer direct testimony for the plaintiff about what 7 happened before a shooting has died, [Ninth Circuit] precedent permits the decedent’s version of 8 events to be constructed circumstantially from competent expert and physical evidence, as well as 9 from inconsistencies in the testimony of law enforcement.” George v. Morris, 736 F.3d 829, 834 10 (9th Cir. 2013). 11 Finally, where there is video evidence of the incident giving rise to an excessive use of 12 force claim, a court must “view[] the facts in the light depicted by the videotape.” Scott v. Harris, 13 550 U.S. 372, 380–81 (2007) (explaining that courts should not rely on “such visible fiction” that 14 “is so utterly discredited by the record”); Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th 15 Cir. 2018) (“The record is viewed in light most favorable to the nonmovants . . . , so long as their 16 version of the facts is not blatantly contradicted by the video evidence.” (citations omitted)). 17 Nonetheless, even where video evidence exists, reasonable factfinders might be able to draw 18 divergent conclusions from what the video evidence shows. See Nehad v. Browder, 929 F.3d 19 1125, 1132–39 (9th Cir. 2019) (disputed issues of material fact precluded the granting of 20 summary judgment in an action alleging excessive use of force even though the evidence 21 included surveillance footage); Glenn v. Washington County, 673 F.3d 864, 878 (9th Cir. 2011) 22 (“The circumstances of this case can be viewed in various ways, and a jury should have the 23 opportunity to assess the reasonableness of the force used after hearing all the evidence.”); see 24 also Branscum v. San Ramon Police Dep’t, 606 F. App’x 860, 862 (9th Cir. 2015)8 (where “the 25 video footage is . . . susceptible to more than one interpretation,” a district court may find genuine 26 dispute of material fact). 27 8 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 11 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 12 of 35 1 DISCUSSION 2 A. Qualified Immunity as to Excessive Force 3 Defendants Clinton and Valencia move for summary judgment in their favor as to 4 plaintiffs’ §1983 claims on qualified immunity grounds. (Doc. No. 33 at 17–20.) “Public 5 officials are immune from suit under 42 U.S.C. § 1983 unless they have violated a statutory or 6 constitutional right that was clearly established at the time of the challenged conduct.” City & 7 Cnty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 611 (2015). To defeat qualified 8 immunity on summary judgment, a plaintiff must “[r]aise[] a genuine issue of fact showing (1) a 9 violation of a constitutional right, and (2) that the right was clearly established at the time of the 10 defendant’s alleged misconduct.” Evans v. Skolnik, 997 F.3d 1060, 1064 (9th Cir. 2021) (quoting 11 Pearson v. Callahan, 555 U.S. 223, 232 (2009). 12 1. Whether Defendants Violated the Fourth Amendment 13 Defendants Clinton and Valencia also move for summary judgment on the ground that as 14 a matter of law the deadly force they employed was objectively reasonable. (Doc. No. 33 at 2.) 15 Plaintiffs allege that officers Clinton and Valencia used excessive force “when they discharged a 16 Taser at [Jontell], punched [Jontell] multiple times, struck [Jontell] with a baton, employed 17 pepper spray at [Jontell], and ultimately shot and killed [Jontell].” (Doc. No. 28 ¶ 30.) 18 Defendants’ argument in moving for summary judgment, however, is tailored to the use of deadly 19 force and does not independently address their preceding use of non-deadly force. (See Doc. No. 20 33 at 14–17.) The court will therefore confine its analysis to only the issues raised by the moving 21 party and will analyze defendants’ use of force only with respect to the deadly force employed. 22 Section 1983 provides a cause of action for the deprivation of “rights, privileges, or 23 immunities secured by the Constitution or laws of the United States” by a person acting “under 24 color of any statute, ordinance, regulation, custom, or usage.” Gomez v. Toledo, 446 U.S. 635, 25 639 (1980). To prevail under § 1983, a plaintiff must prove “(1) that a right secured by the 26 Constitution or laws of the United States was violated, and (2) that the alleged violation was 27 committed by a person acting under the color of State law.” Long v. Cty. of Los Angeles, 442 28 F.3d 1178, 1185 (9th Cir. 2006). 12 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 13 of 35 1 A claim that a law enforcement officer used excessive force during an arrest is analyzed 2 under the Fourth Amendment’s objective reasonableness standard. See Graham v. Connor, 490 3 U.S. 386, 395 (1989); Tennessee v. Garner, 471 U.S. 1, 7–8 (1985). Under the standard, “the 4 question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and 5 circumstances confronting them, without regard to their underlying intent or motivation.” 6 Graham, 490 U.S. at 397. Fundamental to “Graham’s objective-reasonableness test is the clear 7 principle that the force used to make an arrest must be balanced against the need for force: it is 8 the need for force which is at the heart of the Graham factors.” Velazquez v. City of Long Beach, 9 793 F.3d 1010, 1025 (9th Cir. 2015); see also Liston v. County of Riverside, 120 F.3d 965, 976 10 (9th Cir. 1997); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 11 2003). Thus, in any such case, the court must balance “the nature of the harm and quality of the 12 intrusion on the individual’s Fourth Amendment interests against the countervailing 13 governmental interests at stake.” Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010) 14 (quoting Graham, 490 U.S. at 396); see also Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002) 15 (“Force is excessive when it is greater than is reasonable under the circumstances.”); Liston, 120 16 F.3d at 976. 17 This test “calls for a fact-intensive inquiry requiring attention to all circumstances 18 pertinent to the need for the force used.” Velazquez, 793 F.3d at 1024. This inquiry considers the 19 possibility that while officers might have been justified in using some force, the amount used 20 might have been excessive. Santos, 287 F.3d at 853. In considering the pending motion for 21 summary judgment, the following admonition of the Ninth Circuit with respect to summary 22 judgment in cases involving claims of excessive use of force must be kept in mind: 23 Under the Fourth Amendment, law enforcement may use “objectively reasonable” force to carry out such seizures; as in the 24 unlawful arrest analysis, this objective reasonableness is determined by an assessment of the totality of the circumstances. . . . Because 25 this inquiry is inherently fact specific, the “determination whether the force used to effect an arrest was reasonable under the Fourth 26 Amendment should only be taken from the jury in rare cases.” 27 Green v. City & Cnty. of San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014) (citations omitted); 28 see also Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) (“Because the excessive 13 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 14 of 35 1 force inquiry nearly always requires a jury to sift through disputed factual contentions, and to 2 draw inferences therefrom, . . . summary judgment or judgment as a matter of law in excessive 3 force cases should be granted sparingly.”); see also Newmaker v. City of Fortuna, 842 F.3d 1108, 4 1117 (9th Cir. 2016) (“Because this case requires a jury to sift through disputed factual 5 contentions . . . summary judgment was inappropriate.”). 6 “The gravity of the particular intrusion that a given use of force imposes upon an 7 individual’s liberty interest is measured with reference to the type and amount of force inflicted.” 8 Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011). The intrusion is balanced 9 against the government’s interest in the use of force. There are three main enumerated factors: 10 “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the 11 safety of the officers or others, and (3) whether the suspect was actively resisting arrest or 12 attempting to evade arrest by flight.” Id. at 1163 (citation omitted). In addition, there is a fourth, 13 catchall factor to be considered in the government-interest analysis: “any other exigent 14 circumstances that existed at the time of the arrest.” Deorle v. Rutherford, 272 F.3d 1272, 1280 15 (9th Cir. 2001) (internal quotation marks and citations omitted). 16 The court now turns to the application of the balancing test to this case based upon the 17 evidence presented on summary judgment. 18 a. The Nature of the Harm and the Quality of the Intrusion 19 The court begins its analysis by assessing both the type and the amount of force used. See 20 Bryan, 630 F.3d at 824; Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007). In this 21 case it is undisputed that deadly force, the highest degree of force, was employed by the 22 defendant officers. Blanford v. Sacramento Cnty., 406 F.3d 1110, 1115 n.9 (9th Cir. 2005) ) 23 (defining “deadly force” as “force creating a substantial risk of causing death or serious bodily 24 injury”) (citing Smith v. City of Hemet, 394 F.3d 689, 704–07 (9th Cir. 2005) (en banc)); see also 25 A. K. H. by & through Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016) (“The 26 intrusiveness of a seizure by means of deadly force is unmatched. The use of deadly force 27 implicates the highest level of Fourth Amendment interests both because the suspect has a 28 fundamental interest in his own life and because such force frustrates the interest of the 14 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 15 of 35 1 individual, and of society, in judicial determination of guilt and punishment.”) (citations and 2 quotation marks omitted). 3 b. Government Interest in Use of Force 4 Having identified the degree of force used, the court next considers the government’s 5 interest in its use. In analyzing the government’s interests at issue, courts must consider a number 6 of factors, including (1) the severity of the crime, (2) whether the suspect posed an immediate 7 threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or 8 attempted to evade arrest by flight, and any other exigent circumstances. Estate of Diaz v. City of 9 Anaheim, 840 F.3d 592, 605 (9th Cir. 2016); Glenn, 673 F.3d at 872; Mattos v. Agarano, 661 10 F.3d 433, 441 (9th Cir. 2011) (en banc); Deorle, 272 F.3d at 1280. Courts may also consider, 11 when appropriate, whether a warning was given before force was used. See Deorle, 272 F.3d at 12 1283–84 (“[W]arnings should be given, when feasible, if the use of force may result in serious 13 injury, and . . . the giving of a warning or the failure to do so is a factor to be considered in 14 applying the Graham balancing test.”). In addition, the court must “examine the totality of the 15 circumstances and consider whatever specific factors may be appropriate in a particular case, 16 whether or not listed in Graham.” Hughes v. Kisela, 862 F.3d 775, 779 (9th Cir. 2016) (internal 17 citation and quotation marks omitted), rev’d on other grounds, ___U.S.___, 138 S. Ct. 1148 18 (2018); Mattos, 661 F.3d at 441. Ultimately, in considering this factor, “[t]he most important 19 factor, however, is whether [the suspect] posed an immediate threat to the safety of officers or 20 others.” Vos, 892 F.3d at 1031–32. 21 i. Severity of the Crime at Issue 22 The court is next to consider the severity of the crime at issue. Graham, 490 U.S. at 396; 23 A. K. H., 837 F.3d at 1011; Deorle, 272 F.3d at 1280–81. Initially, in this case officers Clinton 24 and Valencia were responding to a reported assault and battery. Later in the encounter, Jontell 25 fought the officers, which may have constituted a different crime. Plaintiffs argue that the court 26 should consider the initial crime when determining the severity of the crime for Fourth 27 Amendment purposes. (Doc. No. 36 at 20-21.) Defendants disagree and contend the proper 28 question is the crime at issue when the deadly force was applied by officers. (Doc. No. 40 at 16.) 15 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 16 of 35 1 The Ninth Circuit has acknowledged it has not consistently applied this factor. Nehad v. 2 Browder, 929 F.3d 1125, 1136 (9th Cir. 2019). One approach is to employ the 3 felony/misdemeanor dichotomy. Under that approach, “a particular use of force would be more 4 reasonable, all other things being equal, when applied against a felony suspect than when applied 5 against a person suspected of only a misdemeanor.” Id. Here, Jontell was initially suspected of 6 committing an assault9 and later fought with police officers, grabbing away one of their batons. 7 Certainly the latter conduct could be prosecuted as a felony under California law. See Cal. Penal 8 Code §§ 17 (defining felonies), 243(c)(2) (batteries against officers in the performance of their 9 duties). 10 Under the other approach, courts “have used the severity of the crime at issue as a proxy 11 for the danger a suspect poses at the time force is applied.” Nehad, 929 F.3d at 1136. Under this 12 approach, for instance, even when a “suspect had physically assaulted his wife but was standing 13 alone on his porch when the officers arrived, the nature of the crime at issue provided little, if 14 any, basis for the use of force.” Id. (citing Smith, 394 F.3d at 702–03). Using this second 15 approach, Jontell’s conduct at the time the force at issue was used against him—fighting police 16 officers—would favor permitting police officers to employ a greater degree of force in response. 17 However, in Nehad the Ninth Circuit found it unnecessary to decide which approach should be 18 adopted in considering this factor. See 929 F.3d at 1136. 19 Such is the case here as well and it is unnecessary for the court to resolve which approach 20 is appropriately applied. As will become apparent below, whether this factor is framed as 21 involving investigation of a felony offense for fighting police officers or a misdemeanor battery 22 against the bus driver, the court’s final analysis and conclusion are the same. This is because 23 consideration of the immediate-threat factor far outweighs the severity-of-the-crime factor in light 24 of the evidence on summary judgment. 25 ///// 26 27 9 Under California law assault and battery are misdemeanor offenses. Pen. Code §§ 240, 242, 243(a). However a battery involving the infliction of serious bodily injury is a felony offense. 28 Pen. Code, §§ 242, 243(d). 16 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 17 of 35 1 ii. Immediate Threat to Safety of Officers or Others 2 As noted above, whether there was an immediate threat to safety of officers or others is 3 the most important factor to consider in situations involving the use of deadly force by police. 4 Vos, 892 F.3d at 1031–32; A. K. H., 837 F.3d at 1011; see also Bryan, 630 F.3d at 826; Smith, 5 394 F.3d at 702. “In deadly force cases, where the suspect poses no immediate threat to the 6 officer and no threat to others, the harm resulting from failing to apprehend him does not justify 7 the use of deadly force to do so.” Glenn v. Washington Cnty., 673 F.3d 864, 879 (9th Cir. 2011). 8 Similarly, “[a] desire to resolve quickly a potentially dangerous situation is not the type of 9 governmental interest that, standing alone, justifies the use of force that may cause serious injury. 10 There must be other significant circumstances that warrant the use of such a degree of force at the 11 time it is used.” Deorle, 272 F.3d at 1281. Nonetheless, “where a suspect threatens an officer 12 with a weapon such as a gun or a knife, the officer is justified in using deadly force.” Smith, 394 13 F.3d at 704. Deadly force may also be appropriately used by an officer being beaten with a baton. 14 But see Hopkins v. Andaya, 958 F.2d 881, 883–84, 887 (9th Cir. 1992) (where an officer claimed 15 that he feared for his life because the suspect was beating the officer with his own baton, the use 16 of deadly force was not justified when the suspect no longer wielded the baton because “[t]he 17 baton—the one that had caused Andaya to fear for his life—was gone.”), overruled on other 18 grounds as stated in Federman v. Ctny. of Kern, 61 F. App’x 438, 440 (9th Cir. 2003).10 19 The Ninth Circuit has also cautioned that 20 a simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to 21 justify such a concern. In short, an officer’s use of force must be objectively reasonable based on his contemporaneous knowledge of 22 the facts. 23 Deorle, 272 F.3dat 1281. “If the person is armed—or reasonably suspected of being armed—a 24 furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat.” 25 George, 736 F.3d at 838. “This balance must be judged from the perspective of a reasonable 26 officer on the scene, rather than with the 20/20 vision of hindsight.” Boyd v. Benton Cty., 374 27 10 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 17 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 18 of 35 1 F.3d 773, 779 (9th Cir. 2004) (citing Graham, 490 U.S. at 396). Nonetheless, it has long been 2 established “that the fact that the ‘suspect was armed with a deadly weapon’ does not render the 3 officers’ response per se reasonable under the Fourth Amendment.” George, 736 F.3d at 838 4 (emphasis in original) (quoting Glenn, 673 F.3d at 872–73); see also Harris v. Roderick, 126 F.3d 5 1189, 1204 (9th Cir. 1997) (“Law enforcement officials may not kill suspects who do not pose an 6 immediate threat to their safety or to the safety of others simply because they are armed.”); 7 Curnow v. Ridgecrest Police, 952 F.2d 321, 323, 325 (9th Cir. 1991) (holding that use of deadly 8 force was unreasonable where, according to the plaintiff’s version of facts, the decedent 9 possessed a gun but was not pointing it at the officers and was not facing the officers when they 10 shot him). 11 Here, it is disputed on summary judgment what took place immediately after Jontell 12 seized officer Valencia’s baton. The court must view the evidence in the light most favorable to 13 plaintiffs as the non-movants. See Vos, 892 F.3d 1028. Moreover, as recognized above, because 14 Jontell is deceased and cannot testify, the court must also “carefully examine all the evidence in 15 the record . . . to determine whether [each] officer’s story is internally consistent and consistent 16 with other known facts.” Gonzalez, 747 F.3d at 795. In addition, the court must consider the 17 videotape evidence submitted on summary judgment and “view[] the facts in the light depicted by 18 the videotape.” Scott, 550 U.S. at 380. Thus, even though video evidence exists, the 19 circumstances may be such that reasonable factfinders could draw divergent conclusions from 20 what that video evidence depicts. See Nehad, 929 F.3d at 1132–39 (disputed issues of material 21 fact precluded summary judgment in an action alleging excessive use of force even though the 22 evidence on summary judgment included surveillance footage). 23 Having reviewed all of the evidence submitted on summary judgment, the undersigned 24 concludes that a reasonable jury could conclude that the Handheld Video shows that Jontell was 25 not holding the baton above his head when officers Clinton and Valencia shot him. (See 26 Handheld Video at 0:34–39.) The evidence before the court does not establish that Jontell’s arms 27 were raised when the first shots were fired. For instance, his white shirt does not appear to go up 28 as one might reasonably expect if he were brandishing a baton above his head. Thus, a 18 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 19 of 35 1 reasonable jury might view the video evidence and conclude, as plaintiffs argue, that it shows 2 Jontell was not brandishing the baton at all. 3 Plaintiff Harris also argues that the video evidence is in fact inconsistent with defendants’ 4 deposition testimony. (Doc. No. 36 at 18.) For instance, officer Valencia testified that after he 5 shot the first time, Jontell “was still coming forward with the baton raised.” (Valencia Tr. 38:15– 6 16.) The court concludes that from the evidence submitted, a reasonable jury could find that such 7 testimony is inconsistent with the Handheld Video. A jury could conclude instead that the video 8 evidence shows that Jontell did not move forward after the first shot was fired by officers and 9 instead dropped directly to the ground. (See Handheld Video 0:38.) If the jury were to so 10 conclude, it could also find that Jontell grabbed officer Valencia’s baton to defend himself and 11 that he thereafter moved away from the officers, thus posing even less of a threat to them. 12 The question becomes, then, whether a reasonable jury would have to conclude Jontell 13 posed an immediate threat to the safety of the officers or others when he was shot and killed. The 14 evidence on summary judgment, viewed in the light most favorable to plaintiffs, can be 15 summarized as follows. Jontell had been involved in a physical fight with the officers and was 16 evading them on a city street with cars nearby. Officers Clinton and Valencia had tried other 17 methods of subduing Jontell. Jontell had taken officer Valencia’s baton and was moving away 18 from the officers when officers Clinton and Valencia shot and killed him. Jontell was not 19 brandishing the baton above his head when shot. 20 Plaintiff Harris points to Clark’s expert opinion to argue that the amount of force 21 employed here was unreasonable. (Doc. No. 36 at 25–27.) Clark opines that Jontell did not pose 22 an immediate threat. (Doc. No. 34-5 ¶¶ 18–19.) Clark reasons that backup had been called by the 23 officers, that Jontell never swung the baton, that Jontell appeared to be backing up after taking 24 officer Valencia’s baton from him, that Jontell was never given a warning that lethal force would 25 be used against him, and that officers Clinton and Valencia had other less-than-lethal options that 26 they should have employed to address the situation. (Id.) 27 Citing to the decision in Sheehan, defendants argue that plaintiffs improperly rely on this 28 expert opinion in an attempt to defeat summary judgment. (Doc. No. 33 at 8; JS ¶ 88.) In 19 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 20 of 35 1 Sheehan, the Supreme Court held that “so long as a reasonable officer could have believed that 2 his conduct was justified, a plaintiff cannot avoid summary judgment by simply producing an 3 expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, 4 inappropriate, or even reckless.” 575 U.S. at 616. The Supreme Court’s statement in this regard 5 was made in connection with consideration of the second step of the qualified-immunity analysis, 6 i.e., whether the violated right was clearly established at the time. In fact, the language quoted by 7 defendants here tracks parts of the Court’s second step’s analysis in discussing what a reasonable 8 officer could have believed under the circumstances. Defendants’ reliance on the decision in 9 Sheehan is therefore misplaced here. Nothing in that decision prohibits this court from 10 considering Clark’s expert opinion on summary judgment as to the issue of whether the deadly 11 force used by police in this case was excessive. 12 The decision of another judge of this court in Estate of Casillas v. City of Fresno, 342 F. 13 Supp. 3d 990 (E.D. Cal. 2018), provides a helpful comparison. In that case, Casillas fled on foot 14 to evade arrest for a traffic offense. 342 F. Supp. 3d at 993. The police officers eventually 15 located him as he walked out of an apartment carrying a pipe. Id. at 997. One officer claimed 16 that Casillas was about five feet from the officer and “quickly moved toward him, raising the pipe 17 to his chest in a pre-assaultive motion.” Id. Stating later that he believed he might be hit in the 18 head with the pipe, the officer shot and killed Casillas. Id. However, pointing to factual 19 discrepancies in the officer’s version of the events, the district court found that a reasonable jury 20 could disbelieve the officer’s self-serving version of events. Id. at 998–99. The plaintiff had 21 proffered expert testimony that the officer had alternative means of subduing Casillas and had no 22 reason to use deadly force. Id. at 999. With that in mind, the district court concluded that given 23 the evidence before it on summary judgment, a reasonable finder of fact could determine that 24 Casillas did not pose an immediate threat to the officer when shot. Id.11 25 ///// 26 27 11 The jury in that case later unanimously determined that Casillas had not posed an immediate threat to the officer at the time of the shooting and that the officer use of deadly force was 28 excessive in violation of the constitution. (Casillas, No. 1:16-cv-01042-AWI-SAB, Doc. No. 88.) 20 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 21 of 35 1 Likewise, here, viewing the evidence on summary judgment most favorably to plaintiffs, 2 Jontell was not holding the baton over his head at the time of the shooting. The undersigned 3 notes that in Casillas, the defendants contended the decedent was five feet away from the officer 4 at the time of shooting. Here, officer Valencia has testified that Jontell might have been farther 5 away from him than that: 6 Q. Towards the top [of a statement] it looks like Detective Ramos is asking when he took the baton away from you, what the distance was. 7 You say, “Five to ten feet. I’m not sure.” Ramos says, “Five to ten feet.” You say, “Yeah.” Do you see that portion of your statement? 8 A. I see it. 9 Q. After you – after he took the baton from you, did you step back 10 at all before you fired? 11 A. Yes. 12 Q. How far did you step back? 13 A. I took maybe a step or two. 14 (Valencia Dep. at 35:6–18.) 15 Defendants contend this portion of officer Valencia’s deposition testimony is misleading 16 and that in fact Jontell “had advanced to within 7–10 feet of Officer Clinton when the first shot 17 was fired” and was still coming toward him after Clinton started shooting. (Doc. No. 40 at 8–9.) 18 Regardless, this distance is still at least as much as the five feet of separation the defendants 19 claimed in Casillas where summary judgment was denied and a jury ultimately determined the 20 use of deadly force to be excessive and in violation of the constitution.12 21 Viewing the facts in the light most favorable to plaintiffs, and in light of Clark’s 22 declaration, the court finds that a reasonable jury could conclude that Jontell was no more 23 12 The circumstances presented in Casillas were arguably distinguishable from those in this case 24 in some respects, yet ultimately those distinctions are not material. First, while Jontell was 25 actively fighting the officers shortly before he was shot, Casillas was not. Second, the officers in Casillas had not employed other means to attempt to subdue the suspect before shooting him. At 26 first glance, these facts might make Jontell seem more threatening to a reasonable officer, but Casillas’ subsequent conduct changes this calculus to some degree. Casillas went into a building 27 as the police were searching for him and came out brandishing a metal pipe, certainly suggesting his intent to cause harm. In contrast, a reasonable jury could conclude that Jontell’s repeatedly 28 evading officer Valencia and Clinton indicated his intent not to keep fighting them. 21 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 22 of 35 1 threatening than Casillas was. As such, the court finds that a reasonable jury could conclude from 2 the evidence that Jontell did not pose an immediate threat to the officers or others. 3 iii. Resisting or Evading Arrest 4 The final enumerated Graham factor that plays a part in the court’s evaluation of the 5 government’s interest at stake is whether the suspect was actively resisting arrest or attempting to 6 evade arrest by flight. Deorle, 272 F.3d at 1280. There is no doubt Jontell was not permitting the 7 defendant officers to arrest him at the time of the shooting, and plaintiff Harris concedes that 8 Jontell resisted arrest. (Doc. No. 36 at 22.) Plaintiff Harris, however, does argue that Jontell’s 9 resistance was lawful because a reasonable jury could determine that plaintiff was not fleeing but 10 rather avoiding the officers’ use of excessive force. In support of this argument, plaintiff cites to 11 the Ninth Circuit’s decision in Young, 655 F.3d at 1164, for the proposition that “an officer’s 12 provocative conduct can trigger an individual’s limited right to offer reasonable resistance.” In 13 this regard, the Ninth Circuit has explained that 14 a person has the limited right to offer reasonable resistance to an arrest that is the product of an officer’s personal frolic. That right is 15 not triggered by the absence of probable cause, but rather by the officer’s bad faith or provocative conduct. Thus, we must ask 16 whether a reasonable jury could conclude, viewing the evidence in the light most favorable to Blankenhorn, that the Defendant officers 17 acted in bad faith or engaged in provocative conduct when arresting him. If so, and Blankenhorn’s resistance was reasonable, a 18 constitutional violation occurred. 19 Blankenhorn v. City of Orange, 485 F.3d 463, 479 (9th Cir. 2007) (internal quotation marks and 20 citations omitted). 21 However, the cases in which courts have found that a suspect acted within this limited 22 right to offer reasonable resistance have all involved suspects who used less force in resisting than 23 Jontell did here. For instance, in Young, the only such case to which plaintiffs cite in support of 24 their argument in this regard, the suspect had not actively fought any officers. 655 F.3d at 1164. 25 Rather, the suspect may have moved or circled around the officer. Id. As the court there 26 observed, the suspect’s “disobedience of a police officer t[oo]k the form of passive 27 noncompliance that create[d] a minimal disturbance and indicate[d] no threat, immediate or 28 otherwise, to the officer or others.” Id. at 1165. The Ninth Circuit concluded that if a jury were 22 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 23 of 35 1 to find that the suspect moved or circled around the officer, it could also conclude that his actions 2 were “simply a reasonable response from an individual who was pepper sprayed from behind 3 without warning while sitting on the sidewalk.” Id. at 1164. In contrast, here, it is undisputed on 4 summary judgment that Jontell essentially engaged in a fistfight with the officers. 5 Other cases in which courts have concluded that individuals were acting within their 6 limited right to offer reasonable resistance are distinguishable on similar grounds. See, e.g., 7 Blankenhorn, 485 F.3d at 479–80 (an individual acted within his limited right when he struggled 8 with officers for several seconds after being gang-tackled by surprise; he did not strike any officer 9 or bystanders; rather, he merely tried to stay on his feet while being wrestled); Garlick v. Cnty. of 10 Kern, 167 F. Supp. 3d 1117, 1128, 1148 (E.D. Cal. 2016) (the decedent acted within limited right 11 to offer reasonable resistance by moving away from officers and briefly attempted to get a police 12 dog to stop biting him but without striking officers); Gonzalez v. City of El Monte, No. 2:18-CV- 13 02346-ODW-GJSX, 2019 WL 4918095, at *7 (C.D. Cal. Oct. 4, 2019) (concluding that a 14 reasonable jury could determine that the plaintiff was acting within his limited right to resist; even 15 assuming he stiffened his muscles in anticipation of punches and tucked his hands beneath his 16 body, since “there is no allegation that Plaintiff struck or attempted to strike either officer”). 17 Young and its progeny are therefore not on point given the undisputed evidence on summary 18 judgment in this case. 19 As a result, because it is undisputed that Jontell was offering more resistance than 20 permitted under any limited right he had to offer reasonable resistance to the officer’s commands, 21 consideration of this factor favors defendants argument that their use of force was reasonable. 22 iv. Other Relevant Factors 23 Plaintiffs point to other factors that they argue favor a finding that the deadly force used in 24 this case was excessive. First, it is undisputed that officers Clinton and Valencia did not warn 25 Jontell before using various types of force—including before shooting him. (Doc. No. 36 at 22– 26 23 (argument); JS ¶¶ 42, 44, 81.) “A jury could consider [defendants’] failure to provide such a 27 warning as evidence of objective unreasonableness.” Nehad, 929 F.3d at 1138. Thus, 28 consideration of this factor weighs in favor of a finding that defendants acted unreasonably. 23 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 24 of 35 1 Second, plaintiffs contend that the officers knew, or should have known, that Jontell was 2 mentally ill. (Doc. Nos. 36 at 8–9, 21; 37 at 9–11.) “Even when an emotionally disturbed 3 individual is ‘acting out’ and inviting officers to use deadly force, the governmental interest in 4 using such force is diminished by the fact that the officers are confronted, not with a person who 5 has committed a serious crime against others, but with a mentally ill individual.” Glenn v. 6 Washington Cty., 673 F.3d 864, 876 (9th Cir. 2011) (internal quotation marks and citations 7 omitted). Plaintiffs point to evidence of Jontell’s erratic behavior at the beginning of the 8 encounter and the officers’ previous experience with him, such as Jontell’s accusing officer 9 Clinton of sleeping with his girlfriend and his expressing doubt that officer Clinton was “a real 10 cop.” (Doc. No. 36 at 21.) For similar reasons, plaintiffs’ expert Clark opines that “a reasonable 11 officer in Officer Clinton and Officer Valencia’s positions would have recognized that Mr. 12 Reedom was mentally ill or suffering from a mental crisis.” (Doc. No. 34-5 ¶ 10.) 13 Defendants argue that officers Clinton and Valencia believed Jontell was under the 14 influence, not mentally disturbed, and that they had no notice that he suffered from mental illness. 15 (Doc. Nos. 33 at 9; 40 at 10.) However, the relevant analysis of this factor is objective, not 16 subjective. Young, 655 F.3d at 1161 (“The reasonableness of a seizure turns on whether officers’ 17 actions are objectively reasonable in light of the facts and circumstances confronting them, which 18 we determine by balancing the nature and quality of the intrusion on the individual’s Fourth 19 Amendment interests against the countervailing governmental interests at stake.” (internal 20 quotation marks and citations omitted)). Here, a reasonable jury could conclude from the 21 evidence on summary judgment that the officers should have known that Jontell was mentally ill. 22 Thus, consideration of this factor weighs in favor of a finding that defendants acted unreasonably. 23 v. Conclusion as to Government Interest 24 After weighing all of the relevant factors under the evidence presented on summary 25 judgment, the court concludes that, viewing the evidence in the light most favorable to plaintiffs, 26 a reasonable jury could determine that officers Clinton and Valencia used excessive force and 27 thereby violated Jontell’s constitutional rights. The court therefore turns to the second prong of 28 the qualified-immunity analysis. 24 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 25 of 35 1 2. Whether Defendants Violated a Clearly Established Right 2 A constitutional right is clearly established when “it would be clear to a reasonable officer 3 that his conduct was unlawful in the situation he confronted.” Young, 655 F.3d at 1167 (quoting 4 Saucier v. Katz, 533 U.S. 194, 202 (2001)). “In determining whether the law has been clearly 5 established, there does not need to be ‘a case directly on point, but existing precedent must have 6 placed the constitutional question beyond debate.’” Vos, 892 F.3d at 1035 (quoting Ashcroft v. 7 al-Kidd, 563 U.S. 731, 740 (2011)); see also Mullenix v. Luna, 577 U.S. 7, 12 (2015); A. K. H., 8 837 F.3d at 1013. Rather, “the relevant inquiry is whether the state of the law at the time of the 9 official conduct complained of was such as to give the defendants fair warning that their conduct 10 was unconstitutional—that a fair application of well-established legal principles would warrant 11 such a conclusion.” Young, 655 F.3d at 1167; see also Clement v. Gomez, 298 F.3d 898, 906 12 (9th Cir. 2002) (“The proper inquiry focuses on ... whether the state of the law [at the relevant 13 time] gave ‘fair warning’ to the officials that their conduct was unconstitutional.” (quoting 14 Saucier, 533 U.S. at 202). The plaintiffs bear the burden of showing that the right in question 15 was clearly established at the time. Vos, 892 F.3d at 1035. Thus, unless officers Clinton and 16 Valencia obviously violated Jontell’s constitutional rights, there must be “a case where an officer 17 acting under similar circumstances as [Clinton and Valencia] was held to have violated the Fourth 18 Amendment.” White v. Pauly, ___ U.S. ___, 137 S. Ct. 548, 552 (2017). 19 Plaintiffs strenuously argue that granting summary judgment in favor of defendants on 20 qualified immunity grounds is inappropriate where, as here, there is a genuine dispute of material 21 facts. (Doc. No. 36 at 27.) However, as defendants point out, (Doc. No. 40 at 13), qualified 22 immunity may still be appropriate despite a genuine dispute of material fact if, even viewing the 23 evidence in the light most favorable to plaintiffs, defendants are still entitled to qualified 24 immunity under the applicable legal standards. Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 25 938, 945 (9th Cir. 2017). 26 Viewing the evidence on summary judgment in this case in the light most favorable to 27 plaintiffs, Jontell was mentally ill, had recently been fighting with police officers, had disarmed 28 one of them of his baton, was moving away from the officers, and was not threatening them. He 25 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 26 of 35 1 was shot without warning, resulting in his death. This occurred outside, in public, and in 2 proximity to a city street with cars passing by. Nonetheless, under binding precedent, to avoid the 3 granting of summary judgment in favor of defendants on qualified immunity grounds, plaintiffs 4 must establish that officers Clinton and Valencia had fair warning that shooting Jontell was 5 unconstitutional under these circumstances. The Ninth Circuit’s decision in Lam v. City of Los 6 Banos, 976 F.3d 986 (9th Cir. 2020) (“Lam II”), is instructive in making the determination of 7 whether plaintiffs have met that burden here. 8 In Lam II, in September 2013,13 officer Acosta was called to Lam’s home to investigate a 9 possible assault and found Lam in his room. Lam II, 976 F.3d at 992. Lam, who was mentally 10 ill, yelled at officer Acosta and told him to leave the room. Id. Acosta tried to get Lam to leave 11 the room with him, but Lam was uncooperative; he made punching motions through the air and 12 pushed Acosta out of his room. Id. Lam then grabbed a pair of scissors, which officer Acosta 13 stated he believed was a knife, and stabbed Acosta with them. Id. at 991–92. Acosta then shot 14 Lam once and retreated down the hall to unjam his gun. Id. at 992. Lam approached Acosta 15 again but was not holding scissors at this point. Id. at 995. Nonetheless, Acosta shot a second 16 time, and Lam died of his wounds. Id. at 991, 995. At trial, the jury found that officer Acosta’s 17 firing of the second shot constituted the excessive use of force. Id. at 994. On appeal, the Ninth 18 Circuit determined that the law was clearly established that an officer may not shoot a previously 19 armed person who was no longer posing a threat and, therefore, that officer Acosta was not 20 entitled to qualified immunity with respect to his firing of the fatal second shot. Id. at 999–1000. 21 Among other reasons, the Ninth Circuit observed “[a]t the time of the incident, caselaw had made 22 clear that an officer violates the Fourth Amendment by shooting a person who had previously 23 injured someone but no longer posed an immediate threat.” Id. at 1001. 24 Lam II is analogous to this case in many respects. First, both Lam and Jontell were 25 mentally ill, and police officers were responding to calls regarding their allegedly violent 26 13 The Ninth Circuit’s opinion does not make it clear when the shooting occurred, but an order 27 issued in the case by the district court stated that it took place on September 2, 2013. Lam v. City of Los Banos, No. 2:15-cv-00531-MCE-KJN, 2017 WL 1179136, at *1 (E.D. Cal. Mar. 30, 28 2017). 26 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 27 of 35 1 behavior. Both suspects initially fought the police officers. A reasonable jury did (or could in 2 this case) conclude that at the relevant time, neither Lam nor Jontell posed a threat to the officers 3 or to others. Although in Lam II the Ninth Circuit focused substantially on the fact that Lam was 4 unarmed when he was shot the second time, it was undisputed that Lam approached officer 5 Acosta before the second shot was fired. Similarly, based upon the evidence on summary 6 judgment here, a reasonable jury could conclude that Jontell was not carrying the baton in a 7 threatening manner and was trying to move away from the officers when he was shot. 8 Thus, the facts in Lam II are quite similar to those presented by the evidence before the 9 court in this case, except that Lam was unarmed and approaching the officer while Jontell was 10 armed with the officer’s baton but moving away from the officers. The Ninth Circuit has 11 repeatedly held that a person merely possessing a deadly weapon—assuming, for present 12 purposes, that a baton is such a weapon—is not an open invitation for police officers to use 13 deadly force. See, e.g., Roderick, 126 F.3d at 1204 (“Law enforcement officials may not kill 14 suspects who do not pose an immediate threat to their safety or to the safety of others simply 15 because they are armed.”); Glenn, 673 F.3d at 873 (where a mentally ill suspect was armed with 16 knife “which he did not brandish at anyone, but rather held to his own neck,” it was clearly 17 established that the use of deadly force by police was impermissible); George v. Morris, 736 F.3d 18 829, 838–39 (9th Cir. 2013) (“[T]he fact that the suspect was armed with a deadly weapon 19 does not render the officers’ response [of using deadly force] per se reasonable under the Fourth 20 Amendment.” (internal quotation marks and citation omitted)). Accordingly, even though the 21 facts in Lam were not identical to those before the court in this case, they are sufficiently 22 analogous to be instructive. 23 Lam’s rights were clearly established when he was shot in 2013, but the Ninth Circuit 24 issued its opinion in 2020. Meanwhile, Jontell was shot in 2018—between the time of Lam’s 25 death and the issuance of the Ninth Circuit’s opinion in Lam. The court in Lam II addressed this 26 issue. The Ninth Circuit in Lam II relied heavily on the decision in Zion v. County of Orange, 27 874 F.3d 1072 (9th Cir. 2017), which dealt with a police shooting that took place around the time 28 Lam was killed. In Zion, the Ninth Circuit had found that the decedent’s rights were clearly 27 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 28 of 35 1 established when he was shot. Given the factual similarities between Zion and Lam II, the Ninth 2 Circuit found that Lam’s rights were clearly established at the time of his shooting as well. Lam 3 II, 976 F.3d at 1002 (“Thus, although Zion had not been decided before this shooting, the events 4 underlying our decision in Zion occurred in the same timeframe as the events at issue here, and so 5 it is relevant as to what a reasonable officer would have known was unlawful at the time [Lam] 6 was shot.”). The same logic applies here. If Lam’s right to be free from the excessive use of 7 force under the circumstances of that case were clearly established in 2013, then so too was 8 Jontell’s in 2018 under the facts that a reasonable jury could find based upon the evidence in this 9 case. 10 This conclusion is also bolstered by the Ninth Circuit’s opinion in Newmaker, another 11 police shooting resulting in the death of the suspect. 842 F.3d at 1110. At midnight on the 12 morning of the shooting, Newmaker encountered officer Soeth, who believed Newmaker was 13 either mentally ill or on drugs based on his strange behavior. Id. at 1111. At 6 a.m., Soeth 14 responded to a call about a man—who might have been Newmaker—banging on the doors and 15 windows of a house. Id. Soeth located Newmaker, who fled from the officer. Id. Officer Soeth 16 eventually caught up, but Newmaker refused to comply with his commands to lay on the ground 17 and so Soeth physically brought him to the ground. Id. Officer Soeth eventually used a taser 18 multiple times on Newmaker, but the tasings were ineffective. Id. at 1111–12. A second police 19 officer then arrived and attempted to subdue Newmaker as officer Soeth took out his baton and 20 used it on Newmaker. Id. at 1112. According to the officers, Newmaker was then able to grab 21 Soeth’s baton and swung it violently and aggressively at the second officer’s head. Id. Soeth 22 shot Newmaker after ordering him to drop the baton. Id. Then, according to officer Soeth, he 23 shot Newmaker a second time “as he was getting up and starting to swing the baton again.” Id. 24 Newmaker died from the gunshot wounds. The district court, relying on this evidence, granted 25 summary judgment in favor of the defendant officers on qualified immunity grounds. 26 On appeal, the Ninth Circuit reversed the grant of summary judgment, noting that a 27 number of disputed issues of material fact had been established by the plaintiff. Id. at 1110. 28 Three are particularly relevant here. First, officer Soeth had previously provided a police 28 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 29 of 35 1 investigator a conflicting version of the events, including about whether Newmaker was standing 2 up when Soeth shot him. Id. at 1113–14. Second, a grainy video from the second officer’s 3 dashcam was inconsistent with the officers’ statements regarding what had occurred. Among 4 other things, the video did not show that Newmaker ever obtained officer Soeth’s baton. 5 Although Newmaker and the officers were not in clear sight of the video at some critical points in 6 time, the video evidence reflected “nothing clearly visible” in Newmaker’s hands just before the 7 shooting. Id at 1115. Third, and perhaps most critically, “Soeth appear[ed] to shoot” Newmaker 8 after Newmaker fell to the street. Id. Finally, the autopsy report concluded that Newmaker was 9 not standing when he was shot. Id. 10 Among other reasons that the granting of summary judgment on qualified immunity 11 grounds was found to be inappropriate, the Ninth Circuit found that “a reasonable jury could 12 conclude, given the trajectory of the bullets through Newmaker’s body, that even if Newmaker 13 had grabbed the baton Officer Soeth could not have fired his first shot while Newmaker was 14 standing up and swinging the baton.” Id. at 1116. The Ninth Circuit concluded that “[b]ecause 15 this case requires a jury to sift through disputed factual contentions—including whether the 16 officers were telling the truth about when, why, and how Soeth shot Newmaker—summary 17 judgment was inappropriate.” Id. at 1117 (internal quotation marks and citation omitted).14 18 Newmaker parallels the present case in many respects. Officers attempted to use tasers on 19 the decedent in both cases several times and physically tussled with them before shooting them to 20 death. The video evidence in Newmaker was grainy and did not show many critical details of the 21 confrontation. Here, too, the video evidence is grainy and does not show many critical aspects of 22 the encounter. For instance, just as “nothing [was] clearly visible” in Newmaker’s hands when 23 police claimed he was holding a baton, id.at 1115, here, it is not clearly depicted in the video that 24 Jontell’s hands were over his head wielding a baton before he was shot, as the defendant officers 25 14 In so concluding the Ninth Circuit also stated: “We hold that the district court erred in 26 granting qualified immunity to Officer Soeth. Summary judgment is not appropriate in § 1983 deadly force cases that turn on the officer’s credibility that is genuinely in doubt.” 842 F.3d at 27 1116 (citing Gonzalez v. City of Anaheim, 747 F.3d 789, 791 (9th Cir. 2014), C.V. v. City of Anaheim, 823 F.3d 1252, 1256 (9th Cir. 2016), Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 28 1994), and Wilson v. City of Des Moines, 293 F.3d 447, 454 (8th Cir. 2002). 29 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 30 of 35 1 contend was the case. In Newmaker, the video evidence was inconsistent with the officers’ 2 testimony that Newmaker was standing up and attacking them with a baton when he was shot the 3 second time. Here, the video evidence before the court on summary judgment appears to be 4 inconsistent with defendants’ claims that Jontell was still moving forward toward the officers 5 after he was shot the first time. In Newmaker, the Ninth Circuit found that even assuming the 6 decedent was holding a baton, a reasonable jury could conclude from the evidence submitted that 7 he was on the ground when he was shot. Id. at 1116. Similarly, here, a reasonable jury could 8 conclude from the evidence before the court on summary judgment that Jontell was moving away 9 from the officers when he was shot. 10 Accordingly, viewing the evidence facts in the light most favorable to plaintiffs 11 defendants are not entitled to summary judgment in their favor on qualified immunity grounds.15 12 B. Fourteenth Amendment Claims 13 In the Ninth Circuit, parents have substantive due process rights to associate with their 14 children. Porter v. Osborn, 546 F.3d 1131, 1136 (9th Cir. 2008). “To prevail on a substantive 15 due process claim under the Fourteenth Amendment, [p]laintiffs must show that [defendants’] 16 conduct shocks the conscience.” Nicholson, 935 F.3d at 692. A police officer can violate this 17 right if the officer acts with either (1) deliberate indifference or (2) a purpose to harm unrelated to 18 legitimate law enforcement objections. Porter, at 1137 (citing Cnty. of Sacramento v. Lewis, 523 19 U.S. 833, 836 (1998)). 20 “Deliberate indifference is the conscious or reckless disregard of the consequences of 21 one’s acts or omissions. It entails something more than negligence but is satisfied by something 22 less than acts or omissions for the very purpose of causing harm or with knowledge that harm will 23 result.” Gantt v. City of Los Angeles, 717 F.3d 702, 708 (9th Cir. 2013). However, this standard 24 15 25 The undersigned has previously endorsed the now widely-held view that the judicially created qualified immunity doctrine should be completely re-examined, particularly in cases involving 26 the use of deadly force by law enforcement officers. Ventura v. Rutledge, 398 F. Supp. 3d 682, 697 n.6 (E.D. Cal. 2019) (granting defendant’s motion for summary judgment on qualified 27 immunity grounds), aff’d 978 F.3d 1088 (9th Cir. 2020). Given the evidence on summary judgment in this case and for the reasons explained above, binding precedent dictates that 28 defendants’ motion brought on qualified immunity grounds be denied. 30 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 31 of 35 1 is relevant only if actual deliberation is practical. Wilkinson v. Torres, 610 F.3d 546, 554 (9th 2 Cir. 2010). If law enforcement officers are in an escalating situation and must make snap 3 judgments, then the heightened purpose-to-harm standard applies. Id. The purpose-to-harm 4 standard requires proof of ulterior motives for the use of force. Gonzalez v. City of Anaheim, 747 5 F.3d 789, 797-98 (9th Cir. 2014) (“Where, as here, the officers did not have time to deliberate, a 6 use of force shocks the conscience only if the officers had a ‘purpose to harm’ the decedent for 7 reasons unrelated to legitimate law enforcement objectives.”). 8 Plaintiffs argue that the first standard—deliberate indifference—applies to their 9 Fourteenth Amendment claim in this case. (Doc. Nos. 36 at 29–30; 37 at 18–19.) Here, the key 10 interaction—between the time Jontell seized officer Valencia’s baton and the time officers 11 Clinton and Valencia shot Jontell—took place over the span of seconds. Such circumstances are 12 similar to those confronted by the court in Lam, where the officer had insufficient time to 13 deliberate before shooting Lam the second time, and which compelled the Ninth Circuit “to 14 conclude that actual deliberation sufficient for [the officer] to develop a purpose to harm 15 unrelated to a legitimate law enforcement objective was not practical before [the officer] shot 16 Sonny the second time.” 976 F.3d at 1003; see also Nehad, 929 F.3d at 1139 (applying the 17 purpose to harm standard where there was “some evidence that a suspect posed no danger” but 18 where there was “no evidence that [the officer] fired on [the suspect] for any other purpose than 19 self-defense, notwithstanding the evidence that the use of force was unreasonable”). Likewise, 20 here officers Clinton and Valencia did not have sufficient time to deliberate in the context of their 21 escalating fight with Jontell before using deadly force. Accordingly, the deliberate indifference 22 standard does not apply to plaintiffs’ Fourteenth Amendment claim. See Wilkinson, 610 F.3d at 23 554. 24 Defendants argue the purpose to harm standard applies and that there is no evidence 25 before the court establishing that defendant officers Clinton or Valencia had any motive other 26 than to stop Jontell. (Doc. No. 33 at 20–21.) Defendants point out that the officers had used 27 lesser means of force and applied deadly force only after Jontell seized an officer’s baton. (Id.) 28 Neither plaintiff cites to evidence presented on summary judgment establishing any ulterior 31 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 32 of 35 1 motive on the part of the officers, and plaintiff Harris does not even discuss the standard, or 2 evidence relating to it, in her opposition. See Gonzalez, 747 F.3d at 798 (holding that to establish 3 a purpose to harm, a plaintiff must make showing of ulterior motive). 4 Plaintiff Reedom argues that whether officers Clinton and Valencia acted with a purpose 5 to harm Jontell is a question of fact that should be left to a jury to resolve. (Doc. No. 37 at 17– 6 18.) At summary judgment, the court must determine whether a reasonable jury could determine 7 that officers Clinton and Valencia had a purpose to harm Jontell. Plaintiff Reedom points to no 8 evidence or argument in this regard, other than citing to cases providing the general standard 9 applicable to determining whether a purpose to harm has been established. (See id.). This is not 10 sufficient to satisfy plaintiff Reedom’s burden at summary judgment because “there is no issue 11 for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a 12 verdict for that party.” Anderson, 477 U.S. at 249. 13 Accordingly, the court will grant summary judgment in favor of defendants as to 14 plaintiffs’ Fourteenth Amendment claims. 15 C. Plaintiffs’ State-Law Claims 16 Defendants also seek summary adjudication in their favor as to plaintiffs’ state-law 17 claims. (Doc. No. 33 at 23–24.) In this regard, plaintiffs have brought claims for battery and 18 negligence, each related to Jontell’s allegedly wrongful death, as well as a claim under 19 California’s Bane Act. (Doc. No. 28 at 17–22.) 20 1. Battery and Negligence 21 The traditional elements of a negligence-based claim are “duty, breach of duty, causation, 22 and damages.” Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 588 23 (1989). Under California law, officers have a duty to use reasonable care in employing excessive 24 force. Hayes v. Cty. of San Diego, 57 Cal. 4th 622, 629 (2013). The reasonableness of an 25 officer’s actions is evaluated in light of the totality of circumstances, id., and “must be judged 26 from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 27 hindsight,” id. at 632 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The standard for 28 negligence under California law is “broader than federal Fourth Amendment law” because it 32 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 33 of 35 1 includes consideration of an officer’s conduct prior to moment when force is applied. Id. at 632, 2 639; accord Tabares v. City of Huntington Beach, 988 F.3d 1119, 1125 (9th Cir. 2021) (“Under 3 California law, the officer’s pre-shooting decisions can render his behavior unreasonable under 4 the totality of the circumstances, even if his use of deadly force at the moment of shooting might 5 be reasonable in isolation.”). 6 Defendants first argue that they are entitled to summary adjudication as to plaintiffs’ state 7 law claims because they are also entitled to summary judgment as to plaintiffs’ excessive use of 8 force claims. (Doc. No. 33 at 23–24.) Here, as discussed in detail above, the court has 9 determined that there is a genuine dispute of material fact as to whether officers Clinton and 10 Valencia used excessive force in violation of the constitution. Accordingly, a reasonable jury 11 could also determine that officer Clinton’s and officer Valencia’s pre-shooting decisions rendered 12 their behavior unreasonable under the totality of the circumstances. For instance, a reasonable 13 jury could be convinced by the expert opinion of witness Clark that officers Clinton and Valencia 14 “had the opportunity to de-escalate the situation. Instead, the officers acted contrary to police 15 practices and training by using more force and escalating the situation, including the use of the 16 Taser, pepper spray, and baton strikes,” (Doc. No. 34-5 ¶ 12), or that their “use of deadly force 17 against [Jontell] violated standard police practices, training, and POST standards on the use of 18 deadly force only in an immediate defense of life situation and only when all other reasonable 19 alternatives are unavailable,” (id. ¶ 18). In addition, as plaintiff Harris argues, qualified immunity 20 is not a defense to these state-law claims. Venegas v. Cty. of Los Angeles, 153 Cal. App. 4th 21 1230, 1243 (2007) (“The doctrine of qualified governmental immunity is a federal doctrine that 22 does not extend to state tort claims against government employees.”). Therefore, defendants are 23 not entitled to summary judgment in their favor as to plaintiffs’ state-law claims. 24 2. Bane Act 25 Plaintiffs have also brought a claim under the Bane Act, California Civil Code § 52.1. 26 Defendants argue they are entitled to summary adjudication in their favor as to this claim because 27 plaintiffs have failed to present evidence proving that defendants Clinton or Valencia had a 28 specific intent to violate Jontell’s rights. (Doc. No. 33 at 24.) 33 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 34 of 35 1 The Bane Act gives rise to a claim when “a person . . . whether or not acting under the 2 color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, 3 intimidation, or coercion” with a right secured by federal or state law. Cal. Civ. Code § 52.1(a). 4 Civil damages are available for violations of the Bane Act. Id. § 52.1(b). However, to hold an 5 officer liable for the excessive use of force, a plaintiff must prove the officer had a specific intent 6 to violate that person’s right to freedom from unreasonable seizure. Reese v. Cnty. of 7 Sacramento, 888 F.3d 1030, 1043–44 (9th Cir. 2018). A specific intent can be proved by 8 showing a reckless disregard for such rights. Id. Qualified immunity is not a defense to a claim 9 brought under California’s Bane Act. Id. at 1040–41. 10 Defendants argue that “the undisputed evidence shows that the intent of Officers Clinton 11 and Valencia was to defend themselves and others from a reasonable perception that [Jontell] 12 posed an immediate and ongoing threat to the officers and others,” and thus they did not act with 13 a specific intent to deprive Jontell of his constitutional rights. (Doc. No. 33 at 24.) Plaintiff 14 Harris argues that a reasonable jury could conclude from the evidence that officers Clinton and 15 Valencia acted with a reckless disregard for Jontell’s rights, as evidenced by Jontell’s attempts to 16 disengage from officers Clinton and Valencia, and the defendants’ use, nonetheless, of increasing 17 amounts of unreasonable force. (Doc. No. 36 at 31.) 18 At the outset, there is a genuine disputed issue of material fact in this case as to whether 19 officers Clinton and Valencia had a reasonable perception that Jontell posed an immediate and 20 ongoing threat to them or to others. Moreover, if a jury were to conclude that Jontell did not have 21 the baton raised above his head and were to also determine that officers Clinton and Valencia 22 were sufficiently far away from him when he was shot, the jury could also reasonably conclude 23 that officers Clinton and Valencia acted in reckless disregard of Jontell’s constitutional rights. 24 Therefore, the court concludes that defendants are not entitled to summary judgment in their favor 25 with respect to plaintiffs’ Bane Act claim. 26 ///// 27 ///// 28 ///// 34 Case 1:18-cv-01135-JLT-SKO Document 62 Filed 01/24/22 Page 35 of 35 1 CONCLUSION 2 For the reasons discussed above: 3 1. Defendants’ motion for summary judgment (Doc. No. 33) is GRANTED IN PART 4 and DENIED IN PART; 5 2. Pursuant to the parties’ May 19, 2021 stipulation of dismissal (Doc. No. 57), 6 plaintiffs’ claims against defendant City of Tulare are dismissed, and defendant City 7 of Tulare is dismissed from this action; 8 3. Summary judgment is granted in favor of defendants as to plaintiffs’ Fourteenth 9 Amendment claims brought under 42 U.S.C. § 1983; 10 4. Defendants’ motion for summary judgment is otherwise denied; 11 5. The Clerk of the Court is directed to now reassign this case to U.S. District Judge 12 Jennifer L. Thurston and to remove the “NONE” designation; and 13 6. This matter is set for a trial setting conference before Judge Thurston on March 11, 14 2022 at 1:30 p.m. 15 IT IS SO ORDERED. 16 Dated: January 21, 2022 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 35