Rivera v. Cater ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 SIERRA RIVERA, individually and No. 2:18-cv-00056 WBS EFB as successor in interest to 13 JESSE ATTAWAY, Deceased; BOBBI ATTAWAY, individually and as 14 successor in interest to JESSE MEMORANDUM AND ORDER RE: ATTAWAY, Deceased; JIM ATTAWAY, MOTION FOR SUMMARY JUDGMENT 15 individually, 16 Plaintiffs, 17 v. 18 ANDREW CATER; BAO MAI; SCOTT JONES; and COUNTY OF SACRAMENTO, 19 Defendants. 20 21 ----oo0oo---- 22 Plaintiffs Sierra Rivera and Bobbi Attaway, the 23 daughters of the late Jesse Attaway (“Attaway” or “decedent”), 24 along with decedent’s father, Jim Attaway, bring this action 25 individually and on behalf of the decedent alleging that 26 Sheriff’s Deputies Andrew Cater (“Cater”) and Bao Mai (“Mai”), 27 Sheriff of Sacramento County Scott Jones (“Jones”), and the 28 1 County of Sacramento (“the County”) violated Attaway’s civil 2 rights under state and federal law following his death on 3 September 23, 2016. 4 Plaintiffs Sierra Rivera and Bobbi Attaway, as 5 Attaway’s successors in interest, allege violation of Attaway’s 6 Fourth Amendment right to be free from unreasonable seizure and 7 excessive force pursuant to 42 U.S.C. § 1983; violation of 8 Attaway’s rights under Tom Bane Civil Rights Act, Cal. Civ. Code 9 § 52.1; claims for negligence, wrongful death, assault, and 10 battery under California common law; and municipal liability. 11 (First Am. Compl. (“FAC”) (Docket No. 22).) Then, in their 12 individual capacities, plaintiffs Sierra Rivera, Bobbi Attaway, 13 and Jim Attaway allege violation of their Fourteenth Amendment 14 right of substantive due process pursuant to 42 U.S.C. § 1983 for 15 denial of familial associations with Attaway. (Id.) Defendants 16 successfully obtained dismissal on plaintiffs’ claims for 17 negligence against the County and for municipal liability against 18 Jones and the County. (Docket No. 30.) 19 Defendants now move for summary judgment or, in the 20 alternative, partial summary judgment on plaintiffs’ remaining 21 claims. (Docket 44-1.) Summary judgment is proper “if the 22 movant shows that there is no genuine dispute as to any material 23 fact and the movant is entitled to judgment as a matter of law.” 24 Fed. R. Civ. P. 56(a). In deciding the motion, the court must 25 view the evidence in the light most favorable to the non-moving 26 party “so long as their version of the facts is not blatantly 27 contradicted by the video evidence.” Vos v. City of Newport 28 Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) (citing Scott v. 1 Harris, 550 U.S. 372, 378-79 (2007)). 2 I. Facts 3 Viewed in the light most favorable to the plaintiffs, 4 the evidence shows the pertinent facts as follows: 5 Cater and Mai fatally shot Attaway following reports of 6 a suspected burglary shortly after 5:00 a.m. on September 23, 7 2016. According to initial reports, Attaway entered a home in 8 Fair Oaks, Sacramento unannounced and uninvited. (FAC ¶ 17.) 9 The homeowner discovered Attaway standing in the front room, 10 holding a carton of milk apparently taken from the refrigerator. 11 (Id.) Attaway allegedly appeared startled when confronted by the 12 homeowner and expressed concerns that the police were after him. 13 (Id.) After begging the homeowner not to hurt him, Attaway left 14 the home without further incident or harm to the home’s 15 occupants. (Id.) Attaway then attempted to enter another home 16 through a partially open sliding glass door. (FAC ¶ 18.) When 17 confronted by the home’s residents, Attaway backed away from the 18 door, again begging not to be hurt. (Id.) Attaway left without 19 causing any harm to the people or property. (Id.) 20 Attaway’s behavior prompted multiple 911 calls, and 21 Deputies Cater and Mai responded to 911 dispatch’s request for 22 assistance. (Id. ¶ 19.) 23 A video from an in car camera mounted on the dashboard 24 of Deputy Cater’s vehicle (“ICC Video”, Docket No. 48, Ex. 3) 25 vividly captures what transpired once the deputies encountered 26 Attaway. If it fairly can be said that a picture is worth a 27 thousand words, this video speaks volumes. It was mounted at the 28 front of the deputies’ patrol car in such a position that it 1 shows what happened from their perspective from beginning to end. 2 While the parties disagree in their characterization of the 3 movements Attaway made and what intention can be inferred from 4 them in the seconds that followed, the videotape indisputably 5 shows what the deputies saw, heard and did at the crucial time 6 relative to this motion. The court relies heavily upon it in 7 deciding the motion. 8 As the deputies’ patrol vehicle approached Attaway, 9 Deputy Mai yelled to Attaway, “Hey, come here. Come here.” (ICC 10 Video 5:14:32.) Attaway ignored these commands and walked away 11 from the deputies. (ICC Video 5:14:32-5:14:38.) Attaway 12 appeared to touch his face (ICC Video 5:14:39) and Cater warned 13 Mai that he’s “got something in his hands.” (ICC Video 5:14:40.) 14 The deputies exited their vehicle (ICC Video 5:14:41), while 15 Attaway continued to walk away, turning his body sideways with 16 his left shoulder pointing toward them. (ICC Video 5:14:43- 17 5:14:45.) His right hand was out of the deputies’ (and the 18 camera’s) view. (Id.) 19 The deputies again commanded Attaway to put his hands 20 up (ICC Video 5:14:43-5:14:45), and Attaway failed to comply. 21 Instead, Attaway raised his arms, clasped his hands together in 22 front of him, cocked his head between his arms, and screamed 23 “Ahhh!”. (ICC Video 5:14:46-5:14:49.) Cater yelled “Coming at 24 me!” (ICC Video 5:14:46-5:14:47) and again commanded Attaway to 25 get his hands up. (ICC Video 5:14:47.) Attaway did not raise 26 his hands, and the deputies fired at least fourteen shots at him. 27 (ICC Video, 5:14:46-5:14:50.) Attaway fell to the ground, 28 rolled, and then raised up onto his knees. (ICC Video 5:14:59.) 1 Attaway began to raise his arms again (ICC Video 5:15:02) and 2 Cater fired the last shots. (ICC Video 5:15:02.) 3 Attaway was struck four times: fatally in the head, and 4 in the abdomen, left flank, and left foot. (Pls.’ Separate 5 Statement of Disputed Facts (“Pls.’ Disputed Facts”) ¶ 4, 10, 59- 6 61 (Docket No. 47).) The deputies claim to have found Attaway’s 7 wallet approximately four feet away from his right foot after the 8 shooting. (FAC ¶ 26.) 9 II. Federal Claims 10 Title 42 U.S.C. § 1983 provides that “[e]very person 11 who, under color of [state law] subjects, or causes to be 12 subjected, any citizen of the United States ... to the 13 deprivation of any rights, privileges, or immunities secured by 14 the Constitution and laws, shall be liable to the party injured.” 15 However, public officials sued under § 1983 may be immune from 16 suit under the doctrine of qualified immunity. See Mitchell v. 17 Forsyth, 472 U.S. 511, 526 (1985). 18 Faced with a claim of qualified immunity, the court may 19 first address the question of whether a constitutional violation 20 has been shown and then determine whether defendants are entitled 21 to immunity, or it may address the question of qualified immunity 22 without first deciding whether a constitutional violation has 23 been proven. Pearson v. Callahan, 555 U.S. 223, 236 (2009). 24 Given the facts and circumstances of this case, this court elects 25 to “resolv[e] immunity questions at the earliest possible stage 26 in litigation” and determine whether qualified immunity applies 27 first. See id. at 232 (citing Hunter v. Bryant, 502 U.S. 224, 28 227 (1991) (per curiam)). 1 A. Qualified Immunity 2 In a suit for damages under § 1983, public officers 3 charged with violation of a federal statutory or constitutional 4 right are entitled to qualified immunity unless the unlawfulness 5 of their conduct was clearly established at the time of the 6 alleged conduct. District of Columbia v. Wesby, 138 S. Ct. 577, 7 589 (2018) (citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). 8 Qualified immunity acts as “an immunity from suit rather than a 9 mere defense to liability.” Mitchell, supra. It “provides ample 10 protection to all but the plainly incompetent or those who 11 knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 12 (1986). 13 A right is clearly established for purposes of 14 determining qualified immunity if the “contours of the right were 15 sufficiently clear that a reasonable official would understand 16 that what he is doing violates that right.” Saucier v. Katz, 533 17 U.S. 194, 202 (2001), overruled on other grounds by Pearson, 555 18 U.S. 223 (2009). If the officer could have reasonably, but 19 mistakenly, believed that his conduct did not violate a clearly 20 established constitutional right, he will be entitled to 21 qualified immunity. Id. at 205-06. 22 As in any qualified immunity analysis, the court must 23 first identify the law which must be clearly established before 24 the defendant may be deprived of qualified immunity. The 25 plaintiff bears the burden of showing that the rights allegedly 26 violated were “clearly established.” Shafer v. Cty. of Santa 27 Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (citing LSO, Ltd. v. 28 Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000)). While “a case 1 directly on point” is not required “for a right to be clearly 2 established, existing precedent must have placed the statutory or 3 constitutional question beyond debate.” Kisela v. Hughes, 138 S. 4 Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548, 5 551 (2017)). 6 The Supreme Court has “repeatedly told courts . . . not 7 to define clearly established law at a high level of generality.” 8 City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775-76 9 (2015) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). 10 Instead, the court must undertake this inquiry “in light of the 11 specific context of the case, not as a broad general 12 proposition.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) 13 (citing Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). This is 14 particularly important in excessive force cases because “[i]t is 15 sometimes difficult for an officer to determine how the relevant 16 legal doctrine, here excessive force, will apply to the factual 17 situation the officer confronts.” Id. (citing Saucier, 533 U.S. 18 at 205.) 19 With the teaching of the above cases in mind, the court 20 undertakes the often difficult task of defining the law which 21 plaintiff must show was clearly established in order to overcome 22 qualified immunity in this case. It appears to the court that 23 the relevant question to be addressed under the circumstances of 24 this case is whether the law was clearly established such that 25 reasonable officers on September 23, 2016 would have known that 26 the use of deadly force is unreasonable where an unarmed suspect 27 acts in a threatening, aggressive, and erratic manner and causes 28 the officers to fear for their lives. 1 1. Fourth Amendment 2 Plaintiffs’ first claim for relief is for violation of 3 Attaway’s Fourth Amendment right to be free from excessive force 4 brought under 42 U.S.C. § 1983. (FAC ¶ 42.) Although Fourth 5 Amendment rights are traditionally regarded as “personal rights 6 which . . . may not be vicariously asserted,” Alderman v. United 7 States, 394 U.S. 165, 174 (1969), in § 1983 actions, “the 8 survivors of an individual killed as a result of an officer’s 9 excessive use of force may assert a Fourth Amendment claim on 10 that individual’s behalf if the relevant state’s law authorizes a 11 survival action.” Moreland v. Las Vegas Metro. Police Dep’t, 159 12 F.3d 365, 369 (9th Cir. 1998) (citing 42 U.S.C. § 1988(a)). 13 In California, survivorship actions are governed by 14 California Code of Civil Procedure § 377. To have standing, 15 survivors must meet the statutory requirements of § 377.30. 16 Hayes v. Cty. of San Diego, 736 F.3d 1223, 1229 (9th Cir. 2013). 17 Attaway’s daughters met these statutory requirements by filing 18 the appropriate declaration and certified copy of Attaway’s death 19 certificate. (See Compl. at 16-18 (Docket No. 1).) Accordingly, 20 they have standing, as his successors in interest, to bring a 21 claim under the Fourth Amendment on Attaway’s behalf. (FAC ¶ 42, 22 44.) But while they have met the requirements to bring the 23 claim, they have failed to carry their burden of showing that the 24 right allegedly violated was “clearly established.” 25 Plaintiffs have been unable to cite, and the court has 26 been unable to identify, any judicial precedent which would place 27 a reasonable officer on notice that conduct similar to the 28 circumstances here violated the Fourth Amendment. The cases 1 plaintiffs offer both in their brief (Opp. to Defs.’ Mot. for 2 Summ. J. at 22 (Docket No. 45)) and at the summary judgment 3 hearing were decided on facts that are distinguishable from the 4 ones presented by this case.1 Plaintiffs do little more than 5 cite general excessive force principles. While these are “not 6 inherently incapable of giving fair and clear warning to 7 officers, [] they do not by themselves create clearly established 8 law outside an obvious case.” S.B. v. Cty. of San Diego, 864 9 F.3d 1010, 1015 (9th Cir. 2017) (citing White, 137 S. Ct. at 552 10 (internal citations and quotations omitted)). 11 Plaintiffs argue that there are disputes of material 12 fact as to what happened after the deputies found Attaway. (Opp. 13 to Defs.’ Mot. for Summ. J. at 22.) Each side characterizes 14 Attaway’s movements differently and puts a different spin on the 15 deputies’ response. But many, if not all, of these disputes are 16 definitively settled upon watching the ICC Video. While “[t]he 17 mere existence of video footage of the incident does not 18 foreclose a genuine factual dispute as to the reasonable 19 inferences that can be drawn from that footage,” the court can 20 discount a party’s version of the facts if it is “blatantly 21 contradicted by the video evidence.” Vos, 892 F.3d at 1028 22 (citing Scott, 550 U.S. at 378-80). Just as in Scott v. Harris, 23 1 See, e.g., Longoria v. Pinal Cty., 873 F.3d 699 (9th 24 Cir. 2017) (denying qualified immunity when surrendering unarmed suspect, surrounded by law enforcement, was shot and killed); 25 Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011) (denying qualified immunity when officer confused gun with taser, killing 26 the suspect); Adams v. Spears, 473 F.3d 989 (9th Cir. 2007) 27 (denying qualified immunity after suspect rammed car into patrol car and officer shot and killed suspect after suspect exited his 28 vehicle). 1 the video here can “speak for itself.” 550 U.S. at 378 n.5. 2 Plaintiffs, for example, dispute the claim that Attaway 3 assumed a “shooter’s stance” or that he appeared to be pointing a 4 gun at the deputies. (Pls.’ Disputed Facts ¶ 35.) They argue 5 there was sufficient time between the first volley of shots and 6 the second volley for the deputies to contemplate. (Opp. to 7 Defs.’ Mot. for Summ. J. at 24-25.) They argue that Attaway did 8 not appear to pose a threat to the deputies after he was on the 9 ground. (Id. at 25.) The video, however, dispels these 10 arguments. It shows Attaway’s arms extended, hands clasped 11 together in front of him, and head cocked between his arms in a 12 manner which would cause any reasonable person, whether a police 13 officer or not, to reasonably fear they were about to be shot. 14 (ICC Video 5:14:46-49.) It records Cater yelling “Coming at me!” 15 (ICC Video 5:14:46-5:14:47) after Attaway screams (ICC Video 16 5:14:46), and it captures what was indisputably a shooting in 17 self-defense. 18 After Attaway falls to the ground, the video shows him 19 attempting to raise his hands again while on his knees. (ICC 20 Video 5:14:59-5:15:02.) Just reading a verbal description of 21 what happened, it may be easy to argue this could have been an 22 attempt to surrender or an innocent reaction to being shot, but 23 when you look at the video and see what the deputies saw at the 24 time, that is clearly not how it appears. It appears that 25 Attaway is attempting to resume his shooting posture and that the 26 deputies were responding to a perceived threat to their lives. 27 (ICC Video 5:15:02.) There was no clearly established law to put 28 these officers on notice that the use of deadly force was 1 unreasonable under these circumstances. 2 Accordingly, defendants are entitled to qualified 3 immunity on plaintiffs’ Fourth Amendment claim. 4 2. Fourteenth Amendment 5 Attaway’s daughters and father allege Attaway’s 6 “untimely and wrongful death” deprived them, in their individual 7 capacities, of their liberty interest in familial associations 8 under the Fourteenth Amendment. (FAC ¶ 70.) In the Ninth 9 Circuit, parents and children have a Fourteenth Amendment liberty 10 interest in “the companionship and society” of each other. See, 11 e.g., Hayes, 736 F.3d at 1229-30; Moreland, 159 F.3d at 371; 12 Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). 13 Only official conduct that “‘shocks the conscience’ in depriving 14 [a child] of that interest is cognizable as a violation of due 15 process.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 16 2010). The “shocks the conscience” standard may be met by 17 showing that the officials acted either with (1) deliberate 18 indifference or (2) a purpose to harm for reasons unrelated to 19 legitimate law enforcement objectives. Porter v. Osborn, 546 20 F.3d 1131, 1137 (9th Cir. 2008). “Legitimate law enforcement 21 objectives include, among others, arrest, self-protection, and 22 protection of the public.” Foster v. City of Indio, 908 F.3d 23 1204, 1211 (9th Cir. 2018). 24 The “purpose to harm” standard applies when there is no 25 time for deliberation. Cty. of Sacramento v. Lewis, 523 U.S. 26 833, 853-54 (1998). The Ninth Circuit has previously applied the 27 “purpose to harm” standard when officers used deadly force in 28 self-defense, Hayes, 736 F.3d at 1230-31, or when the “rapidly 1 escalating nature” of the confrontation eliminated time for 2 adequate deliberation. Porter, 546 F.3d at 1137 (finding purpose 3 to harm standard applied to five-minute altercation that ended in 4 decedent’s shooting). Here, upon examination of the video, the 5 court concludes that defendants did not have time to deliberate 6 during the twelve second confrontation and the purpose to harm 7 standard applies. 8 Plaintiffs bear the burden of showing the officer acted 9 with a purpose to harm. Moreland, 159 F.3d at 372. To carry 10 that burden, plaintiffs must submit non-speculative evidence that 11 demonstrates an officer’s improper motive. Jeffers v. Gomez, 267 12 F.3d 895, 907 (9th Cir. 2001). Here, plaintiffs offer no 13 evidence to show the deputies’ actions were inconsistent with 14 “any purpose other than self-defense.” See Hayes, 736 F.3d at 15 1231. Just as there was no clearly established law to put the 16 officers on notice that their conduct was violative of the Fourth 17 Amendment, there was even less law to even suggest that their 18 conduct violated the Fourteenth Amendment right to familial 19 association. Therefore, the defendants are entitled to qualified 20 immunity on plaintiffs’ Fourteenth Amendment claim. 21 III. State Law Claims 22 Plaintiffs Sierra Rivera and Bobbi Attaway bring the 23 state law claims discussed below on Attaway’s behalf as his 24 successors in interest. (See FAC ¶¶ 46, 51, 57.) They also have 25 standing as Attaway’s children to pursue a wrongful death claim 26 based on the underlying torts under California Code of Civil 27 Procedure § 377.60(a). See Quiroz v. Seventh Ave. Ctr., 140 Cal. 28 App. 4th 1256, 1263 (2006) (“The elements of the cause of action 1 for wrongful death are the tort (negligence or other wrongful 2 act), the resulting death, and the damages, consisting of the 3 pecuniary loss suffered by the heirs.”). 4 It does not follow from the court’s determination of 5 qualified immunity on plaintiffs’ federal claims that plaintiffs 6 may not proceed to trial on these state law claims. As 7 contrasted with § 1983 law, “California law is clear that the 8 doctrine of qualified governmental immunity is a federal doctrine 9 that does not extend to state tort claims against government 10 employees.” Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir. 11 2009) (internal quotations and citations omitted). 12 Although some of the questions the court has addressed 13 in the qualified immunity analysis may seem similar, or even 14 superficially identical, to the questions the jury must address 15 on the issues of liability on plaintiffs’ state law claims, they 16 are not the same. Thus, while it is incumbent upon the court to 17 determine the “objective legal reasonableness” of police conduct 18 in the qualified immunity context (See Ziglar v. Abbasi, 137 S. 19 Ct. 1843, 1867 (2017)), in the context of determining liability 20 on a claim of excessive force under state or federal law, “the 21 reasonableness of force used is ordinarily a question of fact for 22 the jury.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 23 2005) (quoting Liston v. County of Riverside, 120 F.3d 965, 976 24 n.10 (9th Cir. 1997)). 25 Accordingly, the court proceeds to examine whether 26 plaintiffs are entitled to summary judgment on the merits of each 27 of their state law claims. 28 A. California Common Law Claims 1 1. Negligence / Wrongful Death 2 Under California law, public employees “are statutorily 3 liable to the same extent as private persons for injuries caused 4 by their acts or omissions, subject to the same defenses 5 available to private persons.” Hayes v. Cty of San Diego (“Hayes 6 II”), 305 P.3d 252, 255 (Cal. 2013) (citing Cal. Gov. Code § 7 820). A public entity is liable for injuries caused by an act or 8 omission of its employees acting within the scope of their 9 employment. Cal. Gov. Code § 815.2(a). “[I]n order to prove 10 facts sufficient to support a finding of negligence, a plaintiff 11 must show that [the] defendant had a duty to use due care, that 12 he breached that duty, and that the breach was the proximate or 13 legal cause of the resulting injury.” Hayes II, 305 P.3d at 255 14 (citations omitted) (alterations original). 15 “In California, police officers ‘have a duty to act 16 reasonably when using deadly force.’” Vos, 892 F.3d at 1037 17 (quoting Hayes II, 305 P.3d at 256). In California state tort 18 actions, courts are to apply tort law’s “reasonable care” 19 standard, which “is broader than federal Fourth Amendment law.” 20 C.V. v. City of Anaheim, 823 F.3d 1252, 1257 n.6 (9th Cir. 2016). 21 Accordingly, under California law, “tactical conduct and 22 decisions preceding the use of deadly force” may “give[ ] rise to 23 negligence liability” if they “show, as part of the totality of 24 circumstances, that the use of deadly force was 25 unreasonable.” Hayes II, 305 P.3d at 263 (emphasis added). 26 The ICC Video reveals several decisions on the part of 27 the deputies that could allow a jury to find they acted 28 negligently, even before they fired the first shot. For example, 1 the deputies failed to identify themselves as law enforcement and 2 failed to warn Attaway that they would use deadly force before 3 shooting. (See generally ICC Video.) “[T]he absence of a warning 4 or order to halt prior to deploying forceful measures against a 5 suspect may suggest that the use of force was unreasonable.” 6 Nehad v. Browder, 929 F.3d 1125, 1137 (9th Cir. 2019) (citing 7 Deorle v. Rutherford, 272 F.3d 1272, 1283-84 (9th Cir. 2001)). 8 The deputies fired a total of eighteen shots. It will 9 be for the jury to determine whether under California law the 10 number of shots rendered the use of force unreasonable. Further, 11 several shots were fired after Attaway was on the ground. “If 12 the suspect is on the ground and appears wounded, he may no 13 longer pose a threat; a reasonable officer would reassess the 14 situation rather than continue shooting.” Zion v. County of 15 Orange, 874 F.3d 1072, 1076 (9th Cir. 2017). By defendant Mai’s 16 own admission, Attaway “was not a threat to us anymore” when he 17 fell to the ground. (Dep. of Bao Mai at 27:22-23 (Docket No. 44- 18 3, Ex. D).) 19 Under the broad negligence inquiry adopted by 20 California law, a reasonable jury could find defendants were 21 negligent and the County could be vicariously liable for their 22 negligence under Cal. Gov. Code § 815.2(a). Accordingly, the 23 court finds the facts present a genuine dispute of material fact 24 sufficient to deny summary judgment on plaintiffs’ negligence 25 claim. 26 2. Assault & Battery / Wrongful Death 27 Under California law, a claim for battery by a peace 28 officer requires the plaintiff to show: “(1) the defendant 1 intentionally touched the plaintiff, (2) the defendant used 2 unreasonable force to arrest, prevent the escape of, or overcome 3 the resistance of the plaintiff, (3) the plaintiff did not 4 consent to the use of that force, (4) the plaintiff was harmed, 5 and (5) the defendant’s use of unreasonable force was a 6 substantial factor in causing the plaintiff’s harm.” Buckhalter 7 v. Torres, No. 2:17-cv-02072-KJM-AC, 2019 WL 3714576, at *11 8 (E.D. Cal. Aug. 7, 2019) (citations omitted). 9 A plaintiff bringing a battery claim against a law 10 enforcement official has the burden of proving the officer used 11 unreasonable force. Bowoto v. Chevron Corp., 621 F.3d 1116, 1129 12 (9th Cir. 2010) (citing Edson v. City of Anaheim, 63 Cal. App. 13 4th 1269, 1272 (1998)). Again, California law demands the court 14 assess the “totality of the circumstances surrounding any use of 15 deadly force,” including the actions preceding the application of 16 force. See Hayes II, 305 P.3d at 263. For the reasons set forth 17 above, the court finds that a reasonable jury could find for 18 plaintiffs. Accordingly, the court denies defendants’ motion for 19 summary judgment on this claim. 20 B. Tom Bane Civil Rights Act 21 The Tom Bane Civil Rights Act authorizes civil actions 22 for damages and injunctive relief by individuals whose rights 23 under federal or state law have been interfered with by “threats, 24 intimidation or coercion.” Cal. Civ. Code § 52.1(a). While 25 plaintiffs do not need to show “threat, intimidation or coercion” 26 independent from the rights violation to prevail in an excessive 27 force case, they must show a “specific intent to violate the 28 arrestee’s rights to freedom from unreasonable seizure.” Reese 1 v. Cty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) 2 (citing Cornell v. City & Cty. Of San Francisco, 17 Cal. App. 5th 3 766, 799, 801 (2017)).2 As discussed above, plaintiffs have 4 created a genuine issue of material fact as to whether Attaway’s 5 rights were violated under state law. The question remaining is 6 whether the deputies had the specific intent to violate Attaway’s 7 rights. 8 Whether the deputies acted with specific intent 9 question is a question of fact. Cornell, 17 Cal. App. 5th at 10 804. Under this Act, plaintiffs must show the defendants 11 “intended not only the force, but its unreasonableness.” Reese, 12 888 F.3d at 1045 (citing United States v. Reese, 2 F.3d 870, 885 13 (9th Cir. 1993)). However, California courts have found 14 “[r]eckless disregard of the ‘right at issue’ is all that [is] 15 necessary.” Cornell, 17 Cal. App. 5th at 804. 16 Viewing the facts in the light most favorable to the 17 plaintiffs, a reasonable jury could find that defendants 18 “intended not only the force, but its unreasonableness, its 19 character as more than necessary under the circumstances” under 20 2 “The Bane Act’s requirement that interference with 21 rights must be accomplished by threats, intimidation, or coercion has been the source of much debate and confusion.” Cornell, 17 22 Cal. App. 5th at 801. In Chaudhry, the Ninth Circuit found the Bane Act “does not require proof of discriminatory intent” and 23 “that a successful claim for excessive force under the Fourth Amendment provides the basis for a successful claim under § 24 52.1.” Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014). But in Cornell, the California Court of Appeal 25 clarified the Bane Act’s requirements, finding specific intent was required to make out a claim. The Ninth Circuit adopted the 26 Cornell court’s findings in Reese v. County of Sacramento after finding “no ‘convincing evidence’” that the California Supreme 27 Court would not follow Cornell. 888 F.3d at 1043. This court is bound by that interpretation. 28 1 state law when they shot at Attaway eighteen times. See Reese, 2 888 F.3d at 1045 (internal quotations omitted). Accordingly, the 3 court will deny defendant’s motion for summary judgment on this 4 claim. 5 IT IS THEREFORE ORDERED that defendants’ motion for 6 summary judgment be, and the same hereby is, GRANTED on 7 | plaintiff’s claims under 42 U.S.C. 1983 for violations of the 8 Fourth and Fourteenth Amendments; 9 AND IT IS FURTHER ORDERED that defendants’ motion for 10 summary judgment be, and the same hereby is, DENIED on 11 plaintiffs’ state law claims for assault, battery, wrongful 12 death, negligence, and violation of the Tom Bane Civil Rights 13 Act. . 14 | Dated: October 11, 2019 ehh A, ha bee WILLIAM B. SHUBB 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 18