Perkins v. City of Modesto ( 2022 )

Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 1 of 42 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON B. PERKINS, No. 1:19-cv-00126-NONE-EPG 12 Plaintiff, 13 v. ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS’ 14 CITY OF MODESTO, et al., MOTION FOR SUMMARY JUDGMENT AND GRANTING REQUEST TO CONSIDER 15 Defendants. NEW AUTHORITY 16 (Doc. Nos. 85 & 96) 17 18 Plaintiff Jason B. Perkins filed this civil rights action against defendants City of Modesto 19 (the “City”), Modesto Police Department (“MPD”), MPD Chief of Police Galen L. Carroll 20 (“Carroll”) in his individual capacity, MPD officer Jerry J. Ramar (“Ramar”) in his individual 21 capacity, and MPD officer Ryan Olson (“Olson”) in his individual capacity, after plaintiff was 22 shot multiple times by defendant Ramar. (Doc. No. 22.) The complaint brings claims under both 23 the Fourth and Fourteenth Amendments to the United States Constitution, Article I § 13 of the 24 California Constitution, as well as various state law claims. (Id.) The court previously denied 25 plaintiff’s motion for summary adjudication. (Doc. No. 68.) 26 Now pending before the court is defendants’ motion for summary judgment brought on 27 the grounds that defendant Ramar’s and officer Olson’s use of force was reasonable under the 28 Fourth Amendment; Olson’s conduct did not amount to integral participation in the alleged 1 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 2 of 42 1 deprivation of plaintiff’s rights; defendant Ramar is entitled to qualified immunity; the City and 2 MPD are not liable under Monell v. Department of Social Services of the City of New York, 436 3 U.S. 658 (1978), and its progeny; and defendants did not violate any state law. (Doc. No. 85 at 4 2.) For the reasons explained below, defendants’ motion for summary judgment will be denied in 5 part and granted in part.1 6 BACKGROUND 7 The background set forth below is drawn from the following: defendants’ statement of 8 material facts and plaintiff’s responses (Doc. No. 93-2 (Defendants’ Statement of Material Facts 9 and Plaintiff’s Responses, “DSF”)); plaintiff’s statement of material facts and defendants’ 10 responses (Doc. No. 95-2 (Plaintiff’s Statement of Material Facts and Defendants’ Responses, 11 “PSF”)); the exhibits cited by each statement, including and particularly the video recording from 12 the body camera worn by officer Olson capturing the shooting of plaintiff (See Pl.’s Ex. (“PX”) 9 13 (Body Camera Footage of Officer Ryan Olson, “Body Camera”));2 and filings on the docket in 14 this action. To the extent either party has objected on evidentiary grounds to the opposing party’s 15 materials, the court has relied on such materials only to the extent they are relevant and 16 admissible. 17 ///// 18 19 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 20 in this district long-ago reached crisis proportion. That situation, which continued unabated for 21 over twenty-two months but has now been partially addressed by the U.S. Senate’s confirmation of a new district judge for this court on December 17, 2021, left the undersigned presiding over 22 1,300 civil cases and criminal matters involving 735 defendants at last count. Unfortunately, that situation sometimes results in the court not being able to issue orders in submitted civil matters 23 within an acceptable period of time. This situation has been frustrating to the court, which fully realizes how incredibly frustrating it is to the parties and their counsel. 24 2 25 Plaintiff objects to various statements on the grounds that they are unsupported by any material on the court’s electronic filing system docket. (See, e.g., DSF at ¶ 1.) Defendants do not explain 26 why they did not file documentary exhibits, including either officers’ declarations, on the court’s electronic filing system, in contravention of this court’s Local Rules. (See Doc. No. 95-1 27 passim.) Defendants are admonished for their failure to comply with the local rules. See E.D. Cal. R. 133(a). Defendants are directed to file all exhibits as required by Local Rules 133 and 28 138 within fourteen (14) days of the date of this order. 2 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 3 of 42 1 The court notes that defendants were previously found to have spoliated prejudicial 2 evidence and that plaintiff has requested the imposition of sanctions in that regard. (Doc. Nos. 3 44, 57.) As relevant here, the assigned magistrate judge concluded as follows: after plaintiff filed 4 a citizen’s complaint and this lawsuit, defendant Ramar resigned from the MPD. (Doc. No. 57 at 5 24–26.) At that time, defendants erased all contents of Ramar’s MPD-issued cell phone even 6 though they knew or should have known of the need to preserve that evidence. (Id. at 26–27.) 7 The magistrate judge, who reviewed defendants’ conduct both after this lawsuit was filed and 8 then after plaintiff made discovery requests for electronically stored information, concluded that a 9 presumption of prejudice was appropriate and left to the assigned district judge to decide the 10 appropriate sanctions to be imposed. (Id. at 22–27.) The court finds that it can resolve 11 defendants’ pending motion without determining the appropriate sanctions to be imposed against 12 defendants at this time. 13 A. The Shooting 14 Defendant Ramar and officer Olson were employed by the MPD on the day of the 15 shooting, November 6, 2017. That day, they received a dispatch to be on the lookout for a 16 suspect—plaintiff—who was reportedly “wanted for a 417 on a TPD officer’3 and potentially 17 ‘armed and dangerous.’” (PSF at ¶ 2.)4 The officers were informed that plaintiff was in a black 18 Infiniti G35 vehicle at a Bank of America parking lot. (DSF at ¶ 17.) When the two officers 19 arrived there by motorcycle, they parked well behind plaintiff’s vehicle. (Body Camera 20 17:45:19–20.) Plaintiff was alone in the front seat of the car. (DSF at ¶ 22.) Olson activated his 21 body camera, but Ramar, in violation of MPD policy, did not. (Id. at ¶ 27.) 22 Once defendant Ramar and officer Olson met at the parking lot, Ramar got off his 23 motorcycle, drew his firearm, and jogged to plaintiff’s car. (Body Camera 17:45:21–26.) As he 24 3 25 California Penal Code § 417(c) generally criminalizes drawing or exhibiting a firearm in the immediate presence of a police officer in a rude, angry or threatening manner, if the offender acts 26 with the requisite mental state. Defendants have provided a detailed description of plaintiff’s alleged criminal history, which the court has reviewed. (See DSF ¶¶ 1–12.) 27 4 Defendants assert that dispatch stated the suspect was “wanted for brandishing or assault with a 28 firearm” but plaintiff disputes that this level of detail was provided by dispatch. 3 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 4 of 42 1 approached the driver’s-side window, Ramar yelled, “Show me your hands, show me your hands! 2 I’m going to shoot you!” (Id. at 17:45:27–30.) Plaintiff was in the driver’s seat, with his left 3 hand pressing a button to roll up his window and his right hand on the steering wheel, which was 4 visible to both officers. (PSF at ¶¶ 11, 12.) Within one second of issuing his directive, Ramar 5 shot twice into plaintiff’s car (“first volley”). (Body Camera at 17:45:30.) The first volley hit 6 plaintiff and shattered his car window. (PSF at ¶ 14.) 7 After the first volley, plaintiff’s car traveled “several yards” in reverse, hit an island 8 within the parking lot, and came to a stop. (DSF ¶ 38; Body Camera 17:45:30–36.) Neither 9 defendant was in the car’s path when it moved in reverse, since they were both to the car’s side. 10 (Id.) According to plaintiff, the first volley “disabled” him “and caused him involuntarily to 11 depress the vehicle’s gas pedal.” (PSF at ¶ 16.)5 This appears to be some degree of supposition; 12 plaintiff testified at his deposition that he did not remember putting the car in reverse because he 13 does not remember much after he pulled into the parking lot. (Defs.’ Ex. (“DX”) G, 138:6–8, 14 139:1–2.) 15 The officers moved again toward the car. Officer Olson and defendant Ramar positioned 16 themselves next to plaintiff’s broken driver-side window. Ramar was positioned in front of the 17 window such that he would have been able to see at least part of the front of plaintiff’s body. 18 Olson, and thus his body camera, was positioned slightly behind the door and could see less of 19 plaintiff’s body. (Id. 17:45:30–38.) Ramar then shouted “let me see your hands!” twice. (Id. 20 17:45:36–38.) It is undisputed that plaintiff then raised his right hand, “which was visibly 21 empty.” (PSF at ¶ 17.) Plaintiff, who had just been shot, did not raise his left hand. (Body 22 Camera 17:45:36–43.) Within two seconds of shouting his order, Ramar shot plaintiff again 23 (“second volley”). (Id.) Ramar did not warn plaintiff before firing the second volley. 24 Immediately after Ramar shot the second volley, plaintiff’s body slumped to the right. 25 (PSF at ¶ 21.) Defendant Ramar then yelled, “Show your hands! Show your hands!” (Id. at 26 27 5 Although it is not clear from the video evidence before the court that the first volley disabled plaintiff or caused him to press the gas pedal, based on that video evidence, a reasonable jury 28 could so conclude. 4 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 5 of 42 1 ¶ 22.) Plaintiff’s left shoulder visibly twitched but he did not turn or show his hands. (Body 2 Camera 17:45:43–49.) Ramar then shot plaintiff again without warning (“third volley”). (Id.) It 3 is undisputed that plaintiff sustained a total of six gunshot wounds, including to his jaw, chest, 4 and left arm. (PSF at ¶ 26.) 5 After Ramar fired the six shots, the officers stood next to plaintiff’s window and pointed 6 their firearms at him for approximately one minute. (PSF ¶ 34; DSF ¶ 44.) After additional 7 officers arrived at the scene, officer Olson removed plaintiff from the vehicle. (PSF ¶ 42.) 8 Plaintiff went face down onto the cement upon being removed from the car. (Body Camera 9 17:48:10–16.) Defendants argue he was “guided” down, and plaintiff argues his body “struck” 10 the ground. (PSF at ¶¶ 42–43.) Based on the court’s review of the video, viewing the facts in the 11 required light, when plaintiff’s body was pulled out of the car, much of his body hit the ground 12 with force, and his head was lowered more slowly. (Body Camera 17:48:10–16.) 13 B. After the Shooting 14 On November 7, 2017, defendant Ramar was interviewed by MPD’s Investigative 15 Services Division (“ISD”). (Id. at ¶ 51.) In that interview Ramar stated that: (1) he believed that 16 he saw a gun when plaintiff rolled up his window, and he had fired the first volley of shots when 17 plaintiff “was still reversing” his vehicle; (2) Romar believed that he saw plaintiff “reaching 18 towards his feet or towards the floorboard” before firing the second volley of shots; and (3) he 19 believed that he saw “a movement like [plaintiff] was going down even further” before firing the 20 third volley. (PSF at ¶ 52.) 21 MPD maintains a use-of-force policy. (DSF ¶ 52; DX A § 300.1 et seq.; PSF at ¶ 28.) 22 The parties dispute whether Ramar’s use of force violated MPD policies. (PSF at ¶ 29.) 23 However, it is undisputed by the parties that Chief Carroll “is a policy making official on behalf 24 of” MPD. (Id. at ¶ 53.) On December 20, 2017, Carroll approved of defendant Ramar’s 2017 25 performance evaluation, which concluded that Ramar’s overall performance “Meets 26 Expectations,” although at least two pages were missing from that evaluation and thus it is 27 unclear if the shooting of plaintiff was considered in evaluating Ramar’s performance. (Id. at 28 ¶ 54.) Plaintiff asserts that the failure to maintain a complete performance evaluation for Ramar 5 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 6 of 42 1 violates MPD policy which requires evaluations to be “kept on file.” (Id. at ¶ 55.) 2 On July 31, 2018, MPD Internal Affairs (“IA”) issued a report regarding Ramar’s 3 shooting of plaintiff. (Id. at ¶ 57; see also DX K (Declaration of Lieutenant Aaron Tait (“Tait 4 Decl.”).) On December 17, 2018, MPD convened a “Shooting Review Board,” of which Chief 5 Carroll was a member, to review the shooting. (PSF at ¶ 58.) The Shooting Review Board 6 concluded as follows: (1) defendant Ramar “reasonably feared that [plaintiff] posed a threat of 7 serious bodily harm or death” and (2) Ramar “fired his handgun to defend himself from a 8 perceived immediate attack, including the fact that [plaintiff] did not comply with Ramar’s initial 9 commands, but instead immediately rolled up the tinted car window, in what Ramar could 10 reasonably interpret as being an effort to conceal [plaintiff’s] movements, and then failed to 11 comply with subsequent commands while continuing to make movements consistent with 12 Ramar’s belief that [plaintiff] was trying to access a weapon.” (Id. at ¶ 59.) Based on these 13 findings, the Shooting Review Board found that the shooting of plaintiff by Ramar was “Within 14 Policy.” (Id.) On January 18, 2019, Carroll adopted and “approved” of the Shooting Review 15 Board’s disposition of the matter. (Id. at ¶ 60.) Carroll also approved a written reprimand against 16 Ramar “for failing to activate his [body camera] during this incident;” however, no written 17 reprimand was ever issued by MPD itself nor was one placed in Ramar’s personnel file. (Id. at 18 ¶ 61.) 19 On June 28, 2018, plaintiff submitted a citizen complaint to MPD, pursuant to California 20 Penal Code § 832.5, complaining that defendant Ramar’s shooting of him amounted to excessive 21 use of force. (Id. at ¶ 62.) On February 25, 2019, Ramar resigned from his employment with 22 MPD, effective March 11, 2019, to accept a position with a different police department. (Id. at 23 ¶ 63.) On May 8, 2019, MPD responded to plaintiff’s June 28th citizen complaint, stating the 24 complaint was closed due to Ramar’s resignation from the MPD. (Id. at ¶ 64.) The parties agree 25 that had the citizen complaint been resolved on the merits, MPD would have concluded that it 26 was “unfounded” because the Shooting Review Board determined Ramar’s actions were “within 27 department policy.” (Id. at ¶ 65.) Plaintiff filed a subsequent citizen’s complaint about MPD’s 28 spoliation of Ramar’s cell phone. (Id. at ¶ 69.) There are either five or six possible dispositions 6 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 7 of 42 1 that could result from such complaints. The parties agree that the March 24, 2020, plaintiff’s 2 complaint was classified as “Other,” but they dispute whether such a disposition was in 3 accordance with state law. (Id. ¶¶ 69–71.)6 4 C. Defendant Ramar’s Statements 5 Defendant Ramar filed a declaration in support of his opposition to plaintiff’s earlier 6 motion for summary adjudication, almost exactly two years after the shooting of plaintiff 7 occurred and about a year before he filed his declaration in support of the now pending motion 8 for summary judgment. (See Doc. No. 36-1 at 4–7.) In his previous declaration filed in 9 November 2019, Ramar repeatedly asserted that the threat he perceived was from plaintiff 10 himself. For instance, before he fired the first volley at plaintiff, Ramar declared that he “thought 11 [he] saw firearm in Plaintiff’s right hand.” (Id. ¶ 12.) In that 2019 declaration, defendant Ramar 12 never suggested that he perceived any threat from plaintiff’s vehicle or that plaintiff somehow 13 posed a flight risk. The only threat that Ramar previously identified as providing him with the 14 justification for his use of lethal force was his belief that plaintiff was reaching for a gun. In his 15 second declaration (DX I, Declaration of Officer Jerry Ramar (“Ramar Decl.”)), Ramar now 16 declares that he approached plaintiff’s vehicle quickly because he was “in fear that the plaintiff 17 would be willing to assault officers or citizens in an attempt to evade arrest.” (Id. at ¶ 8.) 18 D. Expert Materials 19 In connection with their pending motion for summary judgment, defendants have 20 submitted a report prepared by a use of force expert opining on the underlying shooting. (DX F 21 (Expert Report of Steve Papenfuhs).) In short, the defense expert states two opinions: the 22 officers were responding to an emergency event, namely locating and arresting “a suspect with an 23 6 Plaintiff filed three relevant exhibits in opposition to defendants’ pending motion for summary 24 judgment. Exhibit 37 lists five possible dispositions by MPD with respect to such citizen 25 complaints: Unfounded, Exonerated, Not Sustained, Sustained, and Other. (PX 37, at 431–34.) Exhibit 38 is a letter from internal affairs to Chief Carroll concerning plaintiff’s complaint. (PX 26 38.) It also lists five possible dispositions, but instead of “Other” it lists “Closed.” (Id.) Exhibit 36 is a letter from Carroll to plaintiff’s counsel stating that “the complaint has been deemed as 27 ‘Other’.” (PX 36.) See also Cal. Penal Code § 832.7(d) (listing four dispositions for complaints: “sustained, not sustained, exonerated, or unfounded). Although that statute has been amended 28 since plaintiff filed his complaint with the MPD, the relevant text has remained the same. 7 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 8 of 42 1 outstanding warrant for crimes of violence”; and defendant Ramar reasonably believed plaintiff 2 posed an “imminent and immediate threat to life.” (Id. at 10, 12.) 3 Defendant Ramar did not timely activate his body camera to allow his shooting of plaintiff 4 to be captured from his perspective. In place of what would have been that potentially highly 5 relevant video evidence, defendants have submitted a video purportedly reconstructing the 6 incident from Ramar’s perspective at the time he fired the second and third volleys (but not the 7 first volley). (DX E (“Incident Reconstruction Video”); see also DX D (Expert Report of Jason 8 Fries).) Utilizing laser scanning and 3D modeling, this Incident Reconstruction Video purports to 9 depict Ramar’s line-of-sight which defendants argue shows that he did not have a clear view of 10 plaintiff’s hands.7 11 In opposition to the pending motion for summary judgment, plaintiff has submitted a 12 report from an expert with 27 years of experience with the Los Angeles County Sheriff’s 13 Department as a deputy sheriff, sergeant, and 15 years as a lieutenant. (PX 3 (Expert Report of 14 Roger Clark) at 24.) In his report, plaintiff’s expert concludes that defendant Ramar’s firing of all 15 three volleys of shots was unreasonable for a variety of reasons, including that plaintiff never 16 posed an imminent lethal threat to Ramar or anyone else. (Id. at 21–22.) Instead, expert Clark 17 concludes, Ramar “ran directly into the scene without making any tactical approach” and his 18 “abrupt shooting” was unnecessary and inappropriate. (Id. at 21.) 19 LEGAL STANDARD 20 Summary judgment is appropriate when the moving party “shows that there is no genuine 21 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 22 Civ. P. 56(a). In summary judgment practice, the moving party “initially bears the burden of 23 proving the absence of a genuine issue Celotex of material fact.” In re Oracle Corp. Sec. Litig., 24 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). 25 The moving party may accomplish this by citing to particular parts of materials in the record,” or 26 by showing that such materials “do not establish the absence or presence of a genuine dispute, or 27 7 This may contradict the undisputed fact that “Plaintiff’s right hand was on the steering wheel, 28 which was visible to Defendants Ramar and Olson.” (PSF ¶ 11.) 8 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 9 of 42 1 that the adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 2 56(c)(1)(A), (B). If the moving party meets its initial responsibility, the burden then shifts to the 3 opposing party to establish that a genuine issue as to any material fact actually does exist. See 4 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 5 establish the existence of this factual dispute, the opposing party is required to tender evidence of 6 specific facts in the form of affidavits, and/or admissible discovery material, in support of its 7 contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; 8 Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider 9 admissible evidence in ruling on a motion for summary judgment.”). The opposing party must 10 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the 11 suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. 12 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the 13 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the 14 nonmoving party, see Wool v. Tandem Computs., Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 15 In the endeavor to establish the existence of a factual dispute, the opposing party need not 16 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 17 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 18 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 19 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 20 Matsushita, 475 U.S. at 587 (citations omitted). 21 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 22 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 23 party.” Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the 24 opposing party’s obligation to produce a factual predicate from which the inference may be 25 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), 26 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Undisputed facts are taken as true for purposes of a 27 motion for summary judgment. Anthoine v. N. Cent. Cntys. Consortium, 605 F.3d 740, 745 (9th 28 Cir. 2010). To demonstrate a genuine issue, the opposing party “must do more than simply show 9 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 10 of 42 1 that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a 2 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 3 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 4 Finally, where there is video evidence of the incident giving rise to the excessive use of 5 force claim, a court must “view[] the facts in the light depicted by the videotape.” Scott, 550 U.S. 6 at 380–81. Nonetheless, even when video evidence exists, the circumstances may be such that a 7 reasonable finder of fact could draw divergent conclusions from what the video evidence shows. 8 See Nehad v. Browder, 929 F.3d 1125, 1132–39 (9th Cir. 2019) (disputed issues of material fact 9 precluded summary judgment in an action alleging excessive use of force even though the 10 evidence included surveillance footage); Glenn v. Washington Cnty., 673 F.3d 864, 878 (9th Cir. 11 2011) (“The circumstances of this case can be viewed in various ways, and a jury should have the 12 opportunity to assess the reasonableness of the force used after hearing all the evidence.”). 13 ANALYSIS 14 Defendants move for summary judgment and present their arguments in the following 15 order: (A) neither officer used excessive force in violation of the Fourth Amendment; 16 (B) defendant Ramar is entitled to summary judgment in his favor on qualified immunity 17 grounds; (C) neither officer had a purpose to harm unrelated to a legitimate objective in violation 18 of the Fourteenth Amendment; (D) plaintiff’s Monell claim against the City and MPD does not 19 survive summary judgment; (E) Chief Carroll is entitled to summary judgment as to plaintiff’s 20 supervisory liability claim; (F) plaintiff’s state-law claims fail to survive summary judgment 21 because they are redundant of his Fourth Amendment claim; (G) an award of punitive damages 22 are not warranted in this case as a matter of law; and (H) any claims brought against the so-called 23 “DOE Defendants” must be dismissed. (See Doc. No. 85 at 4.) 24 Below, the court will first evaluate defendant Ramar’s argument that he is entitled to 25 summary judgment on the ground of qualified immunity with respect to plaintiff’s excessive use 26 of force claim and will then address defendants’ other arguments in turn. 27 ///// 28 ///// 10 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 11 of 42 1 A. Qualified Immunity as to Plaintiff’s Excessive Use of Force Claim Against Ramar 2 Qualified immunity is an affirmative defense that “shield[s] an officer from personal 3 liability when an officer reasonably believes that his or her conduct complies with the law.” 4 Pearson v. Callahan, 555 U.S. 223, 244 (2009). The doctrine “protects government officials 5 ‘from liability for civil damages insofar as their conduct does not violate clearly established 6 statutory or constitutional rights of which a reasonable person would have known.’” Id. at 231 7 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); accord Mullenix v. Luna, 577 U.S. 7, 8 11 (2015) (quoting id.); see also City & Cnty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 9 611 (2015). It is a defendants’ burden to establish that they are entitled to qualified immunity. 10 Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005). 11 When presented with a qualified immunity defense, the central questions for the court are: 12 (1) whether the facts, taken in the light most favorable to the plaintiff, demonstrate that the 13 defendants’ conduct violated a statutory or constitutional right; and (2) whether the right at issue 14 was “clearly established” at the time of the event in question. Saucier v. Katz, 533 U.S. 194, 201 15 (2001); accord Pearson, 555 U.S. at 236–42 (holding that courts need not analyze the two prongs 16 in any particular order). Below, the court will address the two prongs of the Saucier standard in 17 order. 18 1. Fourth Amendment Excessive Use of Force Standard 19 Title 42 U.S.C. § 1983 provides a cause of action for the deprivation of “rights, privileges, 20 or immunities secured by the Constitution or laws of the United States” by a person acting “under 21 color of any statute, ordinance, regulation, custom, or usage.” Gomez v. Toledo, 446 U.S. 635, 22 639 (1980). To succeed on his § 1983 claim, plaintiff must demonstrate that the action 23 (1) occurred “under color of state law,” and (2) resulted in the deprivation of a constitutional or 24 federal statutory right. Leer v. Murphy, 844 F.2d 628, 632–33 (9th Cir. 1988) (citations omitted); 25 see also West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981), 26 overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Long v. Cty. of Los 27 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). As the moving party, defendants here bear the 28 ///// 11 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 12 of 42 1 initial burden on summary judgment of pointing out “an absence of evidence to support 2 [plaintiff’s] case.” Celotex, 477 U.S. at 325. 3 Under the Fourth Amendment, “[t]he right of the people to be secure in their persons, 4 houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 5 no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. “The Fourth 6 Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those 7 which are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citations omitted); see 8 also United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997) (“For purposes of the 9 Fourth Amendment, a seizure occurs when a law enforcement officer, by means of physical force 10 or show of authority, in some way restrains the liberty of a citizen.”). 11 A claim that a law enforcement officer used excessive force during an arrest is analyzed 12 under the Fourth Amendment’s objective reasonableness standard. See Graham v. Connor, 490 13 U.S. 386, 395 (1989); Tennessee v. Garner, 471 U.S. 1, 7–8 (1985). Under the standard, “the 14 question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and 15 circumstances confronting them, without regard to their underlying intent or motivation.” 16 Graham, 490 U.S. at 397. Fundamental to “Graham’s objective-reasonableness test is the clear 17 principle that the force used to make an arrest must be balanced against the need for force: it is 18 the need for force which is at the heart of the Graham factors.” Velazquez v. City of Long Beach, 19 793 F.3d 1010, 1025 (9th Cir. 2015); see also Liston v. County of Riverside, 120 F.3d 965, 976 20 (9th Cir. 1997); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 21 2003). Thus, in any such case, the court must balance “the nature of the harm and quality of the 22 intrusion on the individual’s Fourth Amendment interests against the countervailing 23 governmental interests at stake.” Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010) 24 (quoting Graham, 490 U.S. at 396); see also Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002) 25 (“Force is excessive when it is greater than is reasonable under the circumstances.”); Liston, 120 26 F.3d at 976. 27 This test “calls for a fact-intensive inquiry requiring attention to all circumstances 28 pertinent to the need for the force used.” Velazquez, 793 F.3d at 1024. This inquiry considers the 12 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 13 of 42 1 possibility that while officers might have been justified in using some force, the amount used 2 might have been excessive. Santos, 287 F.3d at 853. In considering the pending motion for 3 summary judgment, the following admonition of the Ninth Circuit with respect to summary 4 judgment in cases involving claims of excessive use of force must be kept in mind: 5 Under the Fourth Amendment, law enforcement may use “objectively reasonable” force to carry out such seizures; as in the 6 unlawful arrest analysis, this objective reasonableness is determined by an assessment of the totality of the circumstances. . . . Because 7 this inquiry is inherently fact specific, the “determination whether the force used to effect an arrest was reasonable under the Fourth 8 Amendment should only be taken from the jury in rare cases.” 9 Green v. City & Cnty. of San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014) (citations omitted); 10 see also Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) (“Because the excessive 11 force inquiry nearly always requires a jury to sift through disputed factual contentions, and to 12 draw inferences therefrom, . . . summary judgment or judgment as a matter of law in excessive 13 force cases should be granted sparingly.”); see also Newmaker v. City of Fortuna, 842 F.3d 1108, 14 1117 (9th Cir. 2016) (“Because this case requires a jury to sift through disputed factual 15 contentions . . . summary judgment was inappropriate.”). 16 2. The Use of Force Employed in this Case 17 As noted above, the court must balance the governmental intrusion with the countervailing 18 governmental interests at stake. First, this case concerns the use of deadly force. Blanford v. 19 Sacramento Cnty., 406 F.3d 1110, 1115 n.9 (9th Cir. 2005) (defining “deadly force” as “force 20 creating a substantial risk of causing death or serious bodily injury” (citing Smith v. City of 21 Hemet, 394 F.3d 689, 704–07 (9th Cir. 2005) (en banc)). It is well established that 22 The intrusiveness of a seizure by means of deadly force is unmatched. The use of deadly force implicates the highest level of 23 Fourth Amendment interests both because the suspect has a fundamental interest in his own life and because such force 24 frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. 25 26 A.K.H. by & through Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016) (internal 27 quotation marks and citations omitted). Accordingly, the use of “[d]eadly force is permissible 28 only ‘if the suspect threatens the officer with a weapon or there is probable cause to believe that 13 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 14 of 42 1 he has committed a crime involving the infliction or threatened infliction of serious physical 2 harm.’” Id. (quoting Garner, 471 U.S. at 11). 3 Having identified the quantum of force at issue here, the court must balance the use of that 4 force against the government’s interest in its use. See Glenn, 673 F.3d at 871; Bryan, 630 F.3d at 5 823; Liston, 120 F.3d at 976. In analyzing the government’s interests at issue, courts must 6 consider a number of factors, including (1) the severity of the crime, (2) whether the suspect 7 posed an immediate threat to the safety of the officers or others, and (3) whether the suspect 8 actively resisted arrest or attempted to evade arrest by flight, and any other exigent circumstances. 9 Est. of Diaz v. City of Anaheim, 840 F.3d 592, 605 (9th Cir. 2016); Glenn, 673 F.3d at 872; 10 Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc); Deorle v. Rutherford, 272 F.3d 11 1272, 1280 (9th Cir. 2001). These Graham factors, however, are not exhaustive. George v. 12 Morris, 736 F.3d 829, 837– 38 (9th Cir. 2013). Because “there are no per se rules in the Fourth 13 Amendment excessive force context,” Mattos, 661 F.3d at 441, courts are to “examine the totality 14 of the circumstances and consider ‘whatever specific factors may be appropriate in a particular 15 case, whether or not listed in Graham.’” Bryan, 630 F.3d at 826 (quoting Franklin v. Foxworth, 16 31 F.3d 873, 876 (9th Cir. 1994)). “Other relevant factors include the availability of less intrusive 17 alternatives to the force employed” and “whether proper warnings were given[.]” Glenn, 673 18 F.3d at 872. Certainly an officer’s failure to provide the suspect a warning that deadly force 19 would be employed “is a factor to be considered in applying the Graham balancing test.” Deorle, 20 272 F.3d at 1283–84. 21 Finally, “[t]he ‘reasonableness’ of a particular use of force must be judged from the 22 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 23 Graham, 490 U.S. at 396 (citation omitted). This is because, where appropriate, “[t]he calculus 24 of reasonableness must embody allowance for the fact that police officers are often forced to 25 make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving— 26 about the amount of force that is necessary in a particular situation.” Id. at 396–97. 27 Here, defendants argue that they are entitled to summary judgment with respect to 28 plaintiff’s excessive use of force claim because of the strong governmental interest in detaining a 14 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 15 of 42 1 felony suspect with a no-bail warrant, given the threat plaintiff posed throughout his encounter 2 with police, plaintiff’s attempts to evade the officers, and the purported warnings by defendant 3 Ramar given to plaintiff prior to the firing of each volley of shots. (Doc. No. 85 at 19–23.) 4 Plaintiff counters that consideration of several factors precludes summary judgment as to Ramar’s 5 firing of each volley of shots at plaintiff, arguing that the evidence on summary judgment 6 establishes that he did not pose an imminent and immediate threat to the officers at any point 7 during the incident and that a jury could reasonably conclude that Ramar’s use of force was 8 unreasonable. (Doc. No. 93 at 17–21.) 9 a. Immediate Threat 10 In determining whether an officer’s application of force was reasonable under the Fourth 11 Amendment, the “most important” governmental-interest factor “is whether the suspect posed an 12 immediate threat to the safety of the officer or others.” Mattos, 661 F.3d at 441 (cleaned up); see 13 also Vos, 892 F.3d at 1031–32 (“The most important factor, however, is whether [the suspect] 14 posed an immediate threat to the safety of officers or others.”); A. K. H., 837 F.3d at 1011; Bryan, 15 630 F.3d at 826; Smith, 394 F.3d at 702. “In deadly force cases, where the suspect poses no 16 immediate threat to the officer and no threat to others, the harm resulting from failing to 17 apprehend him does not justify the use of deadly force to do so.” Glenn v. Washington Cnty., 673 18 F.3d 864, 879 (9th Cir. 2011). Similarly, “[a] desire to resolve quickly a potentially dangerous 19 situation is not the type of governmental interest that, standing alone, justifies the use of force that 20 may cause serious injury. There must be other significant circumstances that warrant the use of 21 such a degree of force at the time it is used.” Deorle, 272 F.3d at 1281. Thus, “[l]aw 22 enforcement officers may not shoot to kill unless, at a minimum, the suspect presents an 23 immediate threat to the officer or others, or is fleeing and his escape will result in a serious threat 24 of injury to person.” Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997). Moreover, an 25 armed suspect is not inherently an immediate threat to the officers’ or others’ safety. Roderick, 26 126 F.3d at 1204; George, 736 F.3d at 838 (“[T]he fact that the ‘suspect was armed with a deadly 27 weapon’ does not render the officers’ response per se reasonable under the Fourth Amendment.” 28 (quoting Glenn, 673 F.3d at 872–73)); Deorle, 272 F.3dat 1281 (“a simple statement by an officer 15 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 16 of 42 1 that he fears for his safety or the safety of others is not enough; there must be objective factors to 2 justify such a concern.”). At the same time, officers need not “delay their fire until a suspect 3 turns his weapon on them.” George, 736 F.3d at 838. “If the person is armed—or reasonably 4 suspected of being armed—a furtive movement, harrowing gesture, or serious verbal threat might 5 create an immediate threat.” Id. 6 Defendants argue that plaintiff posed an immediate threat prior to defendant Ramar firing 7 each of the three volleys of shots. (Doc. No. 85 at 20–22.)8 Plaintiff disagrees and argues that it 8 was unreasonable for Ramar to claim a belief that plaintiff was armed throughout his encounter 9 with police. (See Doc. No. 93 at 18–19.) 10 Here, viewing the evidence presented on summary judgment in a light most favorable to 11 plaintiff, the court finds several genuine disputes of material fact concerning the immediate-threat 12 factor. The parties agree plaintiff was unarmed and nothing resembling a gun was recovered in 13 his vehicle. (PSF ¶ 10.) Thus, any belief to the contrary was incorrect. “Where an officer’s 14 particular use of force is based on a mistake of fact, we ask whether a reasonable officer would 15 have or should have accurately perceived that fact.” Torres v. City of Madera, 648 F.3d 1119, 16 1124 (9th Cir. 2011). “[W]hether the mistake was an honest one is not the concern, only whether 17 it was a reasonable one.” Id. at 1127. 18 A jury could find Ramar’s stated belief that plaintiff was armed to be unreasonable for 19 several reasons. It is undisputed on summary judgment that when Ramar approached plaintiff, 20 “Plaintiff’s right hand was on the steering wheel, which was visible to Defendants Ramar and 21 Olson.” (PSF at ¶ 11.) A jury could conclude that Ramar’s claimed belief that plaintiff’s was 22 holding a firearm in plaintiff’s right hand (Ramar Decl. at ¶ 13) was unreasonable, given that 23 plaintiff’s right hand was visibly on the steering wheel of his vehicle. Moreover, plaintiff’s left 24 hand was pressing a button to roll up his window. A jury could also conclude that plaintiff’s act 25 8 Defendants also move for summary judgment on plaintiff’s excessive use of force the claim 26 brought against defendant Ramar to the extent that claim is premised on Ramar pointing his gun at plaintiff prior to his firing of the first volley of shots. (Doc. No. 85 at 20–21.) Plaintiff does 27 not oppose defendants’ motion for summary judgment on this basis. (See Doc. No. 93.) Accordingly, defendants’ motion for summary judgment on plaintiff’s excessive use of force 28 claim will be granted as to this limited aspect of the pending motion. 16 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 17 of 42 1 of rolling up the car window was inconsistent with any suggestion that he was about to somehow 2 use a weapon from inside of the vehicle. In short, a reasonable jury could conclude from the 3 evidence that it is unreasonable to believe that someone rolling up a window is about to shoot out 4 of it. In sum, a jury could conclude from the evidence that there was no reasonable basis to 5 believe plaintiff was armed. 6 If a jury concluded that Ramar had no reasonable basis to suspect that plaintiff was 7 armed—Ramar’s rationale for why he believed plaintiff posed a threat—Ramar’s use of deadly 8 force would be unreasonable as a matter of law. See Nehad, 929 F.3d at 1132–33 (“The use of 9 deadly force is only reasonable if a suspect ‘poses a significant threat of death or serious physical 10 injury to the officers or others.’” (quoting Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th 11 Cir. 2014))). 12 Alternatively, based on the Body Camera evidence alone, a reasonably jury could 13 conclude that, even if Ramar reasonably believed plaintiff had a weapon in the car, plaintiff did 14 not make any furtive movements—at least not any visible to defendant Ramar—that would justify 15 the use of deadly force in his firing of the second and third volley of shots. See George, 736 F.3d 16 at 838. Among other things, plaintiff had been shot in his left arm and on the left side of his body 17 before the second and third volleys were fired. The Body Camera footage before the court on 18 summary judgment clearly shows plaintiff raising his right arm in what could reasonably be 19 interpreted as an attempt to surrender. (Body Camera at 17:45:37.) Based upon this evidence a 20 reasonable jury could disbelieve Ramar’s claims that plaintiff made furtive movements with 21 either arm. See Longoria v. Pinal Cnty., 873 F.3d 699, 710 (9th Cir. 2017) (there is a clearly 22 established right against being shot “while unarmed, surrounded by law enforcement, and in the 23 process of surrendering” and “it would be clear to a reasonable officer that his conduct was 24 unlawful in the situation he confronted.” (citation omitted)). 25 Defendants now argue that the immediate threat was plaintiff’s vehicle, not just plaintiff 26 himself. (See Doc. No. 85 at 21–22.) They cite to one paragraph in defendant Ramar’s second 27 declaration in which he states that he was concerned about one patron in the parking lot who 28 could have gotten between Ramar and plaintiff and that Ramar therefore was “in fear that the 17 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 18 of 42 1 plaintiff would be willing to assault officers or citizens in an attempt to evade arrest.” (Ramar 2 Decl. at ¶ 8.) However, viewed in a light most favorable to plaintiff, the Body Camera evidence 3 presented on summary judgment is certainly arguably inconsistent with any assertion that 4 plaintiff’s vehicle posed a threat to anyone. Plaintiff’s vehicle was moving very slowly (if at all) 5 when Ramar first shot plaintiff. Moreover, plaintiff’s car was at a complete stop when Ramar 6 fired off the second and third volleys. The Body Camera evidence establishes that Ramar and 7 officer Olson were not in the path of plaintiff’s car, nor does it appear from the video that Ramar 8 was looking for or saw any citizens while he was shooting. (See Body Camera at 17:45:28– 9 17:45:45.) Therefore, based on this evidence a reasonable jury could reject defendants’ assertion 10 that plaintiff’s vehicle posed a danger to anyone when Ramar fired. Moreover, based on 11 applicable case law, it does not appear that plaintiff’s vehicle posed the type of threat that would 12 permit the use of deadly force in any event. See Orn v. City of Tacoma, 949 F.3d 1167, 1180 (9th 13 Cir. 2020) (“The cases upholding the use of deadly force to protect the public from a fleeing 14 motorist have typically involved suspects who drove at extremely high speeds, endangered other 15 motorists on the road, or intentionally targeted police officers with their vehicles.”). 16 Finally, defendant Ramar’s credibility may well be at issue in this case. “Summary 17 judgment is not appropriate in § 1983 deadly force cases that turn on the officer’s credibility that 18 is genuinely in doubt.” Newmaker v. City of Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016). 19 Although it is undisputed that plaintiff’s right hand was on the visible steering wheel, Ramar 20 declares that he thought he saw a firearm in plaintiff’s right hand. (PSF ¶ 11; Ramar Decl. ¶ 13.) 21 Moreover, the Body Camera evidence before the court does not clearly confirm critical aspects of 22 Ramar’s account of the events at issue. Defendants object to many of plaintiff’s statement of 23 material facts on the grounds that, according to them, the Body Camera evidence is “unclear”— 24 not because the video recording reinforces or supports Ramar’s stated belief that plaintiff’s 25 actions posed a danger to Ramar or others. (See, e.g., PSF at ¶¶ 21–23.) In addition, and as noted 26 above, Ramar did not activate his body camera until after firing his sixth and final shot at plaintiff 27 despite the fact that he had ample opportunity and reason to do so from the outset. The Bank of 28 America parking lot was Ramar’s second location in searching for defendant—a man wanted for 18 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 19 of 42 1 assaulting a police officer and whom Ramar claims he believed was armed and dangerous. A 2 reasonable jury could conclude that Ramar had ample time to activate his body camera before 3 getting to the parking lot or before approaching plaintiff. A reasonable jury may doubt Ramar’s 4 account of events on the basis that he had elected to violate MPD’s body-camera policy. See 5 Drummond ex rel. Drummond, 343 F.3d at 1059 (explaining that a failure to comply with 6 departmental policies may be indicative of the officer’ state of mind at the time force was 7 applied). 8 b. Severity of Crime 9 Defendants argue that consideration of the severity-of-the-crime factors weighs in favor of 10 granting their motion for summary judgment because the officers knew plaintiff had committed a 11 “417” on a police officer. (PSF at ¶ 2.) Assaulting a police officer with a firearm is a felony 12 offense under California law. See Cal. Penal Code § 417(c). Of course, the government has an 13 undeniable legitimate interest in apprehending felony criminal suspects. Miller v. Clark Cnty., 14 340 F.3d 959, 964 (9th Cir. 2003). However, it does not follow that it was reasonable for Ramar 15 to shoot plaintiff six times simply because officers had a legitimate reason to apprehend him. 16 The Ninth Circuit has discussed the severity-of-the-crime factor in another case where 17 officers responded to the scene of a suspect who was wanted for a “417” and explained that this 18 factor is often used “as a proxy for the danger a suspect poses at the time force is applied.” 19 Nehad, 929 F.3d at 1136 (emphasis added) (assuming the “417” was for a felony as opposed to 20 only a misdemeanor). This is partly because, as noted above, “[a] desire to resolve quickly a 21 potentially dangerous situation is not the type of governmental interest that, standing alone, 22 justifies the use of force that may cause serious injury.” Hughes v. Kisela, 862 F.3d 775, 780 (9th 23 Cir. 2016) (cleaned up), rev’d on other grounds sub nom, ___ U.S. ___, 138 S. Ct. 1148 (2018); 24 (quoting Deorle, 272 F.3d at 1281); see also George, 736 F.3d at 838. The Ninth Circuit has 25 applied this principle consistently, even in a case involving a suspect who had shot and killed a 26 federal agent a day prior. See Roderick, 126 F.3d at 1203 (“[T]he fact that [the suspect] had 27 committed a violent crime in the immediate past is an important factor but it is not, without more, 28 a justification for killing him on sight.”); Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 19 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 20 of 42 1 1159, 1177 (9th Cir. 2013) (“[N]ot knowing whether a suspect is armed is not the same as having 2 reason to believe the suspect is actually armed.”); Smith, 394 F.3d at 702–03 (holding that the 3 nature of the crime at issue “provid[ed] little, if any, basis” for the use of force where the suspect 4 had physically assaulted his wife but was standing alone on his porch when the officers arrived). 5 Here, defendant Ramar’s shooting of plaintiff cannot be justified based merely on the fact 6 that police dispatch had reported a suspect wanted in connection with a “417” on a police officer 7 at some time in the past. Regardless of police’s legitimate justification in arresting plaintiff, they 8 did not have open license to shoot him at the first opportunity to do so. Therefore, “[e]ven if 9 [plaintiff] had made felonious threats or committed a serious crime prior to [Ramar’s] arrival, he 10 was indisputably not engaged in any such conduct when [Ramar] arrived, let alone when [Ramar] 11 fired his weapon” at any point during the encounter. Nehad, 929 F.3d at 1136. Accordingly, 12 consideration of the severity-of-the-crime factor does not weigh in favor of granting defendants’ 13 pending motion for summary judgment. 14 c. Resistance 15 The final factor in evaluating the government interest at stake is whether the suspect was 16 resisting arrest or attempting to evade arrest by flight. See Diaz, 840 F.3d at 605; Deorle, 272 17 F.3d at 1280. In this regard, the Ninth Circuit has “long distinguished between passive and active 18 resistance[.]” Rice v. Morehouse, 989 F.3d 1112, 1124 (9th Cir. 2021). Generally, “the level of 19 force an individual’s resistance will support is dependent on the factual circumstances underlying 20 that resistance.” Bryan v. MacPherson, 630 F.3d 805, 830 (9th Cir. 2010) (finding mere passive 21 resistance where a suspect failed to heed commands to exit his vehicle while “shouting gibberish 22 and hitting himself”); see also Smith, 394 F.3d at 703 (finding passive resistance where a suspect 23 “continually ignored” the officers’ instructions to remove his hands from his pockets and not to 24 enter his home). Furthermore, “even when a felony suspect tries to escape, ‘where the suspect 25 poses no immediate threat to the officer and no threat to others, the harm from failing to 26 apprehend him does not justify the use of deadly force to do so.’” Rodriguez, 899 F.3d at 729 27 (quoting Roderick, 126 F.3d at 1201). 28 ///// 20 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 21 of 42 1 In this case the parties dispute whether plaintiff actively resisted. (See Doc. Nos. 85 at 22; 2 93 at 19.) Plaintiff asserts that he was shot by the first volley prior to his vehicle moving in 3 reverse and that he was attempting to surrender when the second and third volley of shots were 4 fired by defendant Ramar. (Doc. No. 93 at 19.) Construing the evidence in a light most favorable 5 to plaintiff and ensuring that construction is consistent with the Body Camera video evidence 6 before the court on summary judgment, a jury could reasonably conclude that plaintiff did not 7 actively resist police during this encounter. But even if a jury were to conclude that there was 8 some degree of active resistance on plaintiff’s part prior to Ramar’s firing of the first volley, that 9 by itself would be insufficient to find Ramar’s use of force reasonable. See Garner, 471 U.S. at 10 11 (“It is not better that all felony suspects die than that they escape.”); see also Roderick, 126 11 F.3d at 1204 (“Other means exist for bringing the offender to justice, even if additional time and 12 effort are required.”). Accordingly, consideration of this factor also does not weigh in favor of 13 defendants for purposes of resolving the pending motion for summary judgment. 14 Having weighed all of the relevant factors and considered the evidence submitted by the 15 parties on summary judgment, the court finds that there are genuine disputes as to material issues 16 of fact that must be resolved by the finder of fact in determining whether defendant Ramar’s use 17 of force was reasonable. 18 3. Clearly Established 19 Having found that a triable issues of fact exist as to whether plaintiff’s rights under the 20 Fourth Amendment were violated, the court turns to the second step of the qualified immunity 21 analysis: whether plaintiff’s right was clearly established at the time of the shooting. “A 22 Government official’s conduct violates clearly established law when, at the time of the challenged 23 conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would 24 have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 25 741 (2011) (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); 26 see also Kisela v. Hughes, ___ U.S. ___, 138 S. Ct. 1148, 1152 (2018) (“Qualified immunity 27 attaches when an official’s conduct does not violate clearly established statutory or constitutional 28 rights of which a reasonable person would have known.” (quoting White v. Pauly, __ U.S. __, 137 21 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 22 of 42 1 S. Ct. 548, 551 (2017)); Young, 655 F.3d at 1167 (“[T]he relevant inquiry is whether the state of 2 the law at the time of the official conduct complained of was such as to give the defendants fair 3 warning that their conduct was unconstitutional—that a fair application of well-established legal 4 principles would warrant such a conclusion.”); Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 5 2002) (“The proper inquiry focuses on . . . whether the state of the law [at the relevant time] gave 6 ‘fair warning’ to the officials that their conduct was unconstitutional.” (quoting Saucier, 533 U.S. 7 at 202)). “While there does not have to be a case directly on point, existing precedent must place 8 the lawfulness of the particular action beyond debate.” City of Escondido v. Emmons, __U.S.__, 9 139 S. Ct. 500, 504 (2019) (quoting Kisela, 138 S. Ct. at 1153)); see also Mullenix, 577 U.S. at 10 12; A. K. H., 837 F.3d at 1013; Vos, 892 F.3d at 1035 (quoting Ashcroft, 563 U.S. at 740). “The 11 dispositive question is ‘whether the violative nature of particular conduct is clearly established.’” 12 Mullenix, 577 U.S. at 12 (quoting al-Kidd, 563 U.S. at 742). This inquiry must be undertaken in 13 light of the specific context of the particular case, rather than as a broad general proposition. 14 Emmons, 139 S. Ct. at 504; Saucier, 533 U.S. at 201. 15 Thus, “[i]n an ‘obvious case,’ the general standards established in Garner and Graham 16 can suffice to put an officer on notice that his conduct is unlawful.” Orn v. City of Tacoma, 949 17 F.3d 1167, 1178 (9th Cir. 2020) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). In less 18 obvious cases, there must be “precedent that holds ‘certain conduct is a constitutional violation 19 under facts not distinguishable in a fair way from the facts presented in the case at hand.’” Id. 20 (quoting Saucier, 533 U.S. at 202). Lower courts have been instructed in this regard, “not to 21 define the right at issue at a high level of generality.” Id.; accord Kisela, 138 S. Ct. at 1153. 22 Additionally, “[t]he determination of whether a reasonable officer could have believed his 23 conduct was lawful is a determination of law that can be decided on summary judgment only if 24 the material facts are undisputed.” LaLonde v. Cnty. of Riverside, 204 F.3d 947, 953 (9th Cir. 25 2000). If “there is a material dispute as to the facts regarding what the officer or the plaintiff 26 actually did, the case must proceed to trial[.]” Id. 27 In moving for summary judgment on qualified immunity grounds in this case, defendants 28 characterize the shooting as follows: “Plaintiff’s presence in public posed a lethal threat to the 22 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 23 of 42 1 officer who had the legal duty to arrest him and the public who may find themselves in danger of 2 the next likely vehicle pursuit.” (Doc. No. 85 at 25.) Citing the decision in Brosseau, 543 U.S. at 3 203–04, defendants contend that the Supreme Court has previously “held that qualified immunity 4 applied after an officer shot a fleeing motorist with a no bail warrant in the back after he ignored 5 commands to exit the vehicle.” (Doc. No. 85 at 25.) Defendants then cite various out-of-circuit 6 decisions for the general proposition that an officer may shoot a fleeing a motorist who is posing 7 a risk to the safety of the public, the officers, or both. (Id. at 25–26.) 8 There are at least three problems with defendants’ characterization of this shooting in light 9 of the evidence before the court on summary judgment. First, defendant Ramar’s statement about 10 his vehicle-related rationale is largely belied by the evidence.9 Second, plaintiff’s vehicle came to 11 a stop before Ramar fired the second and third volley of shots (Olson Decl. at ¶ 13), at which 12 time, viewing the evidence in the light most favorable to plaintiff, plaintiff could reasonably be 13 found to have been attempting to surrender to police. Finally, defendants’ characterization of the 14 events improperly draws all conceivable inferences from the evidence on summary judgment in 15 their favor. Viewing the evidence in the proper light, the court must determine whether plaintiff 16 had a clearly established right not to be shot six times in a slowly moving and/or parked vehicle 17 while unarmed and, with respect to the second and third volleys, attempting to surrender. 18 The court concludes that, seen in this light, this is an “obvious” case in which the general 19 standards set forth by the Supreme Court in Garner and Graham, as well as Ninth Circuit 20 precedent, put defendant Ramar on notice that he could not use deadly force against plaintiff. 21 First and foremost, there are triable issues of fact as to Ramar’s belief about plaintiff being armed. 22 A reasonable jury could conclude that the belief was unreasonable, or that Ramar never had such 23 a belief in the first place. If a jury so concludes, the primary rationale—or the sole one if the jury 24 ///// 25 ///// 26 27 9 Indeed, defendants have presented no evidence indicating that Ramar or officer Olson knew anything other than that plaintiff was wanted for a “417” on a police officer and that he was 28 considered possibly armed and dangerous. 23 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 24 of 42 1 disregards Ramar’s late-offered explanation that he also feared plaintiff’s vehicle10—Ramar 2 would not be entitled to qualified immunity with respect to any of the shots he fired. See Garner, 3 471 U.S. at 11 (“A police officer may not seize an unarmed, nondangerous suspect by shooting 4 him dead.”); Henrich, 39 F.3d at 914 (“An officer’s use of deadly force is reasonable only if ‘the 5 officer has probable cause to believe that the suspect poses a significant threat of death or serious 6 physical injury to the officer or others.’” (citation omitted)). Indeed, plaintiff contends he was 7 shot for no reason as he “posed no threat” to the officers or the public generally. (See Doc. No. 8 93 at 18.) If the jury accepts that view of the facts, then qualified immunity would not apply here. 9 Rodriguez, 899 F.3d at 733 (“Any reasonable officer would have known, even without a judicial 10 decision to tell him so, that it was unlawful to kill someone—anyone—for no reason.”). 11 Second, even if a jury concluded that defendant Ramar reasonably believed plaintiff was 12 armed, using deadly force against someone simply because they are armed, with no other 13 evidence of imminently threatening behavior, violates clearly established law. See George, 736 14 F.3d at 838-39 (Requiring an armed suspect to make some furtive or otherwise threatening 15 movement, stating “the fact that the suspect was armed with a deadly weapon does not render the 16 officers’ response [of using deadly force] per se reasonable under the Fourth Amendment.” 17 (cleaned up)); Hayes v. Cnty. of San Diego, 736 F.3d 1223, 1233 (9th Cir. 2013) (same); 18 Roderick, 126 F.3d at 1204 (“Law enforcement officials may not kill suspects who do not pose an 19 immediate threat to their safety or to the safety of others simply because they are armed.”). This 20 would be true with respect to any of the three volleys fired by Ramar, including the first volley 21 which was fired at the time plaintiff purportedly was attempting to flee—i.e., his vehicle started 22 to slowly move in reverse. See Garner, 471 U.S. at 11 (“Where the suspect poses no immediate 23 threat to the officer and no threat to others, the harm resulting from failing to apprehend him does 24 not justify the use of deadly force to do so.”). 25 ///// 26 27 10 Defendants concede that this contention represents a late change in their position. (Doc. No. 85 at n.78 (“In response to Plaintiff’s motion for summary adjudication, Defendants prematurely 28 suggested that ‘the threat was not the car.’”).) 24 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 25 of 42 1 Viewing the evidence on summary judgment in a light most favorable to plaintiff, that 2 plaintiff rolled up his car window immediately after Ramar shouted “show me your hands” did 3 not provide a reasonable basis for Ramar’s firing of the first volley of shots.11 Additionally, and 4 in particular viewing the evidence in a light most favorable to plaintiff, it was clearly established 5 that Ramar could not fire the second volley and third volley of shots. “[An individual]’s Fourth 6 Amendment right not to be shot [] while unarmed, surrounded by law enforcement, and in the 7 process of surrendering is clearly established such that [] ‘it would be clear to a reasonable officer 8 that his conduct was unlawful in the situation he confronted.’” Longoria, 873 F.3d at 710 9 (quoting Hernandez v. Mesa, ___ U.S. ___, 137 S. Ct. 2003, 2007 (2017))). Here, if a jury were 10 to find that it was unreasonable to suspect that plaintiff was armed or had made any furtive 11 movements, but that he was instead attempting to surrender immediately before the second and 12 third volleys were fired, Ramar would not be entitled to qualified immunity. See, e.g., Kaur v. 13 City of Lodi, 263 F. Supp. 3d 947, 967 (E.D. Cal. 2017) (“[The suspect] was asked to stop. A 14 jury could conclude that he did.”); see also Zion v. Cnty. of Orange, 874 F.3d 1072, 1076 (9th 15 Cir. 2017) (“[T]erminating a threat doesn’t necessarily mean terminating the suspect. If the 16 suspect . . . appears wounded, he may no longer pose a threat; a reasonable officer would reassess 17 the situation rather than continue shooting.”). 18 Finally, although there is no direct evidence before the court on summary judgment 19 suggesting that defendant Ramar himself perceived a threat from plaintiff’s vehicle (as opposed to 20 from plaintiff possibly reaching for a weapon). Even if such a threat could be inferred from the 21 evidence, Ramar still would not be entitled to qualified immunity. “The right not to be shot in a 22 car that poses no immediate danger to police officers or others is clearly established.” Losee v. 23 City of Chico, 738 F. App’x 398, 400 (9th Cir. 2018);12 see also Acosta v. City & Cnty. of San 24 11 25 From the evidence before the court a reasonable jury could conclude that plaintiff was not given time to process the directive or was confused by it, rather than doing anything that would 26 justify the first volley of shots. A jury must sift through this evidence and come to a determination based on it. 27 12 Citation to this and any other unpublished Ninth Circuit opinions cited herein is appropriate 28 pursuant to Ninth Circuit Rule 36-3(b). 25 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 26 of 42 1 Francisco, 83 F.3d 1143, 1148 (9th Cir. 1996) (“the law governing ‘shooting to kill’ a fleeing 2 suspect is clearly established” and “a reasonable officer could not have reasonably believed that 3 shooting at the driver of the slowly moving car was lawful”); Villanueva v. California, 968 F.3d 4 1158, 1172 (9th Cir. 2021) (“In light of Acosta, all reasonable officers would know it is 5 impermissible to shoot at a slow-moving car when he could simply step to the side to avoid 6 danger.”); Orn, 949 F.3d at 1180 (“The cases upholding the use of deadly force to protect the 7 public from a fleeing motorist have typically involved suspects who drove at extremely high 8 speeds, endangered other motorists on the road, or intentionally targeted police officers with their 9 vehicles.”). 10 Here, when defendant Ramar fired the first shots, plaintiff’s car was hardly moving. 11 (Body Camera 17:45:30–31.) For the second and third volleys, plaintiff’s car was completely 12 stopped. Thus, a reasonable jury could determine that plaintiff’s car was not a threat whatsoever, 13 and in such situations, the Ninth Circuit had determined qualified immunity is inappropriate. See, 14 e.g., Acosta, 83 F.3d at 1146 (“On the basis of the evidence presented at trial, the jury could have 15 reasonably concluded that a reasonable officer, who had positioned himself facing the driver so 16 that he was standing closer to the side than the dead-center of the car, would have recognized that 17 he could avoid being injured when the car moved slowly, by simply stepping to the side.”). 18 In sum, viewing the facts in a light most favorable to plaintiff, Ramar’s conduct would 19 squarely fall within the scope of existing caselaw establishing that use of deadly force amounts to 20 a constitutional violation. Accordingly, Ramar is not entitled to summary judgment in his favor 21 on qualified immunity grounds. See LaLonde, 204 F.3d at 953.13 22 ///// 23 ///// 24 13 The undersigned has previously endorsed the now widely-held view that the judicially created 25 qualified immunity doctrine should be completely re-examined, particularly in cases involving the use of deadly force by law enforcement officers. Ventura v. Rutledge, 398 F. Supp. 3d 682, 26 697 n.6 (E.D. Cal. 2019) (granting defendant’s motion for summary judgment on qualified immunity grounds), aff’d 978 F.3d 1088 (9th Cir. 2020). In any event, given the evidence on 27 summary judgment in this case and for the reasons explained above, binding precedent dictates that the motion brought on qualified immunity grounds with respect to defendant Ramar be 28 denied. 26 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 27 of 42 1 B. Olson’s Use of Force 2 Defendants also move for summary judgement as to any excessive use of force claim 3 brought against officer Olson based upon plaintiff’s allegation that Olson failed to intercede as 4 Ramar shot plaintiff several times. (Doc. No. 85 at 23–24.) Defendants have not moved for 5 summary-judgment as to plaintiff’s claims based upon Olson’s alleged post-shooting conduct (see 6 Doc. No. 93 at 23–24), and the court will therefore not grant summary judgment as to those 7 claims, to the extent they have been asserted (see Doc. No. 22, Compl., at ¶ 42 (in Fourth 8 Amendment claim against Olson, only discussing his alleged failure to intercede and integral 9 participation)). 10 However, with respect to the failure-to-intercede claim, the Ninth Circuit has suggested 11 that because there is no clear caselaw regarding when an officer is required to intervene, such 12 claims would always be barred by qualified immunity. Penaloza v. City of Rialto, 836 F. App’x 13 547, 549-50 (9th Cir. 2020) (“Our precedent does not clearly establish when an officer has a 14 ‘realistic opportunity to intercede.’”) Because defendants have raised the affirmative defense of 15 qualified immunity in their answer (Doc. No. 24 at 23), the court will sua sponte direct the parties 16 to brief the issue. See Easley v. City of Riverside, 890 F.3d 851, 955 (9th Cir. 2018), rev’d on 17 other grounds on hearing en banc, 765 F. App’x 282 (9th Cir. 2019). Ruling on defendant’s 18 motion for summary judgment will be deferred as to this issue only until supplemental briefing is 19 submitted by the parties pursuant to the instructions provided by the court below. 20 C. Excessive Use of Force Under the Fourteenth Amendment 21 A plaintiff can prevail on a Fourteenth Amendment due process claim if a government 22 official’s conduct “shocks the conscience.” See Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 23 2010). The “critical consideration [is] whether the circumstances are such that actual deliberation 24 is practical.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (citation omitted). If so, “an 25 officer’s ‘deliberate indifference’ may suffice to shock the conscience,” Wilkinson, 610 F.3d at 26 554, and the plaintiff may prevail by showing that the officer “disregarded a known or obvious 27 consequence of his action,” Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011).14 The 28 14 The standard differs if deliberation is impossible. Wilkinson, 610 F.3d at 554. 27 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 28 of 42 1 “deliberate-indifference inquiry should go to the jury if any rational factfinder could find this 2 requisite mental state.” Id. 3 Here, the court concludes that triable issues of fact exist as to whether defendant Ramar 4 violated plaintiff’s Fourteenth Amendment rights. More specifically, a reasonable jury could 5 conclude from the evidence before the court on summary judgment that Ramar had sufficient 6 time to deliberate before approaching plaintiff. If so, a jury could also reasonably conclude that 7 Ramar’s conduct—shooting plaintiff six times in a slightly moving and/or parked vehicle while 8 he was unarmed and attempting to surrender (for four of those shots)—shocks the conscious. See 9 Nicholson, 935 F.3d at 694 (holding that the deliberate indifference standard was satisfied under 10 the Fourteenth Amendment for purposes of summary judgment: “As the district court explained, 11 in ‘minimal information’ situations, an officer must take some time to assess what is happening 12 before employing deadly force. Holding otherwise would result in an ‘intolerably high risk of a 13 tragic shooting that may otherwise have been avoided by proper deliberation whenever 14 practical.’”). Because plaintiff has not opposed summary judgment as to any other defendant (see 15 Doc. No. 93 passim) in this regard, summary judgment will be granted in favor of all defendants 16 other than Ramar as to this claim. 17 D. Monell Liability: The City and MPD 18 As a rule, “a municipality cannot be held liable under § 1983 solely because it employs a 19 tortfeasor . . . in other words, a municipality cannot be held liable under § 1983 on a respondeat 20 superior theory.” Monell, 436 U.S. at 691. Under Monell, however, a municipality may be held 21 liable for injuries caused by the execution of its policy or custom or by those whose edicts or acts 22 represent official policy. Id. at 694. “To impose Monell liability on a municipality under Section 23 1983, plaintiff must prove: (1) [he or she] had a constitutional right of which he was deprived; (2) 24 the municipality had a policy; (3) the policy amounts to deliberate indifference to his 25 constitutional right; and (4) the policy is the moving force behind the constitutional violation.” 26 Gordon v. Cnty. of Orange, 6 F.4th 961, 973 (9th Cir. 2021) (cleaned up); see also Dougherty v. 27 City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). Defendants have moved for summary 28 judgment in favor of defendants City of Modesto and MPD as to plaintiff’s Monell claim. 28 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 29 of 42 1 1. Deprivation of a Constitutional Right 2 For the reasons set forth above, plaintiff’s Fourth Amendment excessive use of force and 3 Fourteenth Amendment due process claims against defendant Ramar will survive summary 4 judgment. In addition, defendants have not moved for summary judgment as to plaintiff’s claim 5 based on officer Olson’s alleged use of force in removing plaintiff from his vehicle after he was 6 shot by Ramar. Therefore, for purposes of summary judgment, plaintiff has satisfied the first 7 element of a Monell claim. 8 2. Policy or Custom 9 A policy or custom may be shown under Monell by establishing the existence of: 10 (1) conduct pursuant to a formal or expressly adopted official policy; (2) a longstanding practice 11 or custom which constitutes the “standard operating procedure” of the local government entity; 12 (3) the decision of a decision-making official who was, as a matter of state law, a final 13 policymaking authority and whose edicts or acts may fairly be said to represent official policy in 14 the area of decision; or (4) that an official with final policymaking authority either delegated that 15 authority to, or ratified the decision of, a subordinate. See Thomas v. Cnty. of Riverside, 763 F.3d 16 1167, 1170 (9th Cir. 2014); Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). 17 In opposing summary judgment, plaintiff argues that Chief Carroll and the MPD ratified 18 defendant Ramar’s conduct. (See Doc. No. 93 at 25–26.) Specifically, plaintiff points to their 19 post-shooting statements and conduct, namely the lack of discipline imposed on Ramar following 20 an allegedly deficient internal affairs investigation. To establish Monell liability on a ratification 21 theory, a plaintiff must show that “a policymaker approve[d] a subordinate’s decision and the 22 basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992).15 Ratification must 23 involve “affirmative or deliberate conduct.” Id. “A mere failure to overrule a subordinate’s 24 actions, without more, is insufficient to support a § 1983 claim.” Lytle v. Carl, 382 F.3d 978, 987 25 (9th Cir. 2004); see also Dasovich v. Contra Costa Cnty. Sheriff Dep’t, No. 14-CV-00258-MEJ, 26 2014 WL 4652118, at *6 (N.D. Cal. Sept. 17, 2014) (granting a motion to dismiss Monell claims 27 15 Ratification requires that an “official policymaker” approve a subordinate’s decision or action. 28 Id. The parties agree that Chief Carroll is an official policymaker. (PSF at ¶ 53.) 29 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 30 of 42 1 where the plaintiff did not plead facts demonstrating that the “policymaker [had] knowledge of 2 the constitutional violation and actually approve[d] of it,” rather than merely failing to impose 3 discipline). 4 Following this general rule, courts have found that a supervisor concluding “that an 5 officer acted within policy does not alone amount to Monell ratification.” Weishaar v. Cnty. of 6 Napa, No. 14-cv-01352-LB, 2016 WL 7242122, at *14 (N.D. Cal. Dec. 15, 2016) (citing cases); 7 accord Wolniak v. Cnty. of Sacramento, No. 2:17-CV-01286 KJM AC, 2017 WL 6558095, at *4 8 (E.D. Cal. Dec. 22, 2017). As the district court in Weishaar explained: “[G]enerally, to hold a 9 government entity ‘liable under section 1983 whenever policymakers fail to overrule the 10 unconstitutional discretionary acts of subordinates would simply smuggle respondeat superior 11 liability into section 1983,’ thereby creating an ‘end run around Monell.’” Weishaar, 2016 WL 12 7242122, at *14 (quoting Gillette, 979 F.2d 1348). “In other words, in order for there to be 13 [Monell] ratification, there must be ‘something more’ than a single failure to discipline or the fact 14 that the policymaker concluded that the defendant officer’s actions were in keeping with the 15 applicable policies and procedures.” Id. (quoting Garcia v. City of Imperial, No. 08cv2357 16 BTM(PCL), 2010 WL 3911457, at *2 (S.D. Cal. Oct. 4, 2010)); see also Dorger v. City of Napa, 17 No. 12-CV-440 YGR, 2012 WL 3791447, at *5 (N.D. Cal. Aug. 31, 2012) (“[W]hile failure to 18 reprimand, standing on its own, may not be sufficient to establish ratification, additional evidence 19 of agreement or acquiescence to the conduct will support a finding of ratification.”). “This 20 ‘something more’ may be an ‘obviously flawed investigation.’” Id. (citing Garcia, 2010 WL 21 3911457, at *2). “‘Extreme factual situations’ can also support ratification liability.” Id. (citing 22 Garcia, 2010 WL 3911457, at *2). 23 Caselaw, however, does not universally rule out ratification-based Monell claims 24 premised solely on an official policymaker’s finding that a subordinate’s conduct fell within 25 policy. For example, in Rosales v. City of Chico, Civ. No. 2:14-02152 WBS, 2015 WL 6167740, 26 at *7 (E.D. Cal. Oct. 20, 2015), the district court denied the city’s motion for summary judgment 27 on a Monell claim where the chief of police proclaimed that the officer’s conduct at issue was “in 28 compliance with Department policy.” In so ruling, the district court stated: 30 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 31 of 42 1 In this case, it is not a mere ratification, but rather the Chief of Police’s pronouncement that [the defendant officer’s] alleged use of 2 force was “in compliance with Department policy” that gives rise to a Monell claim. This is “tantamount to the announcement or 3 confirmation of a policy for purposes of Monell.” . . . The Chief of Police’s finding that [the] use of force was “in compliance” with the 4 City of Chico’s policies is more than sufficient to raise a genuine issue of material fact with respect to whether the City of Chico had a 5 policy of using the force [applied] in this case. Although the finding was made after the incident, it constitutes clear evidence from which 6 a rational jury could infer that the policy existed before the incident and therefore was the moving force that caused the injury. If the jury 7 ultimately concludes that [the defendant officer] used excessive force and that the use of force comported with the City of Chico’s policies, 8 it would be entirely consistent with Monell to hold the City of Chico liable based on its policy promoting that use force. 9 10 Id. (citation and footnote omitted). Other district courts within the Ninth Circuit have similarly so 11 held. See Thomas v. Cannon, No. 3:15-05346 BJR, 2017 WL 2289081, at *13 (W.D. Wash. May 12 25, 2017) (“Municipalities are required to review police shootings and carefully determine 13 whether the shooting complied with local policy, and then determine whether or not discipline is 14 appropriate. . . . A rational jury could find that [the officer’s] decision to shoot was not 15 constitutionally justified, and that [the official policymaker] ratified that unconstitutional decision 16 by determining it was lawful and within policy.”). 17 The court need not definitively resolve this arguable split in district court authority here 18 because, even assuming the more stringent “something more” standard applies, the record viewed 19 in a light most favorable to plaintiff indeed suggests the existence of that “something more” in 20 this case. Specifically, plaintiff has also presented evidence on summary judgment calling into 21 question the integrity of the department’s internal affairs investigation into defendant Ramar’s 22 conduct, including the spoliation of Ramar’s department-issued cell phone. Viewing this 23 evidence in the light most favorable to plaintiff suggests that MPD was merely offering an excuse 24 to avoid addressing plaintiff’s citizen’s complaint. 25 As noted above, defendant Ramar returned his department-issued cell phone to MPD on 26 the last day of his employment. (Id. at ¶ 66.) That same day, an employee of MPD reset Ramar’s 27 department-issued cell phone to “factory settings, permanently erasing the phone’s contents.” (Id. 28 at ¶ 67.) This action was consistent with MPD’s custom “[w]hen the peace officer returns a cell 31 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 32 of 42 1 phone to the department.” (Id. at ¶ 68.) On March 24, 2020, plaintiff submitted another citizen- 2 complaint, complaining this time that MPD had failed to take appropriate and legal steps to 3 preserve the evidence on Ramar’s department-issued cell phone. (Id. at ¶ 69.) MPD disposed of 4 the complaint as “Other,” which disposition according to policy called for the preparation of a 5 “written explanation” in response, as opposed to Sustained, Not Sustained, Exonerated, or 6 Unfounded. (PX 37.) The parties dispute whether “Other” is a permissible disposition of a 7 citizen’s complaint, and plaintiff contends that “Closed,” but not “Other,” is the fifth permissible 8 option under state law. (PSF at ¶¶ 70–71.) 9 Finally, “[o]rdinarily, ratification is a question for the jury. Christie v. Iopa, 176 F.3d 10 1231, 1238–39 (9th Cir. 1999). “Although [a policymaker’s] actions may have an innocent 11 explanation, on summary judgment the only question is whether a rational juror could infer a 12 noninnocent explanation.” Id. at 1240. With this in mind, the court concludes that the evidence 13 presented on summary judgment reveals genuine disputes of material fact as to whether 14 “something more” than a single failure to discipline or a policymaker’s conclusion that the 15 officer’s actions were in keeping with department policy exist in this case and thus whether Chief 16 Carroll ratified Ramar’s use of force. Among other things, the evidence that plaintiff’s citizen 17 complaint against Ramar’s use of force was closed because Ramar resigned could be taken by the 18 finder of fact as evidence that Carroll (and MPD more generally) was offering an excuse to avoid 19 inquiring into the citizen complaint or believed there was nothing to be learned as an institution 20 from investigating a citizen complaint against an officer who was no longer employed by MPD. 21 For these reasons, the court concludes that disputed issues of material fact have been 22 established as to the existence of a relevant municipal policy.16 23 3. Deliberate Indifference 24 Additionally, a municipal defendant may be liable under Monell only where the 25 municipality’s policies or customs “evince a ‘deliberate indifference’ to the constitutional right 26 and are the ‘moving force’ behind the constitutional violation.” Edgerly v. City & Cnty. of San 27 16 To the extent plaintiff intends to rely on any additional theories of Monell liability at the trial 28 of this action, the parties may address such theories by way of motions in limine. 32 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 33 of 42 1 Francisco, 599 F.3d 946, 960 (9th Cir. 2010). Thus, “[a] plaintiff must also demonstrate that the 2 custom or policy was adhered to with ‘deliberate indifference to the constitutional rights of [the 3 city’s] inhabitants.’ ” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (en 4 banc) (quoting City of Canton v. Harris, 489 U.S. 378, 392 (1989)). Deliberate indifference 5 exists when a municipality “fail[s] to investigate and discipline employees in the face of 6 widespread constitutional violations.” Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1234 n.8 7 (9th Cir. 2011). Municipal deliberate indifference in the context of a Monell claim is based on an 8 objective standard. Castro, 833 F.3d at 1076. A plaintiff need only “establish that the facts 9 available to [MPD] policymakers put them on actual or constructive notice that the particular 10 omission [or action] is substantially certain to result in” constitutional violations. Id. (quoting 11 City of Canton v. Harris, 489 U.S. 378, 396 (1989) (O’Connor, J., concurring in part and 12 dissenting in part)). 13 In Castro, the plaintiff had been arrested for public drunkenness and placed in a sobering 14 cell. 833 F.3d at 1064–65. Deputies at the police station then placed another arrestee, who 15 exhibited “bizarre” behavior after being arrested for feloniously shattering a glass door with his 16 fist, in the same cell. Id. at 1065. The station’s sobering cells were used routinely, even though 17 they did not comply with county regulations and the police station’s manual. Id. The other 18 arrestee attacked the plaintiff, who suffered severe injuries as a result. Id. The plaintiff’s § 1983 19 lawsuit included a Monell claim, and the Ninth Circuit construed the county’s policy as “to use a 20 sobering cell [that violated regulations and was insufficiently supervised.]” Id. at 1075. The 21 appellate court then went on to find that the policy was deliberately indifferent to plaintiff’s 22 constitutional rights: 23 The West Hollywood sobering cell was non-compliant in at least two respects, in that it lacked all the required padding and, more 24 importantly for our purposes, did not allow for maximum visual supervision of prisoners by staff. 25 The County Board of Supervisors’ affirmative adoption of 26 regulations aimed at mitigating the risk of serious injury to individuals housed in sobering cells, and a statement to the same 27 effect in the station’s manual, conclusively prove that the County knew of the risk of the very type of harm that befell Castro. The 28 adoption of a regulation by the County’s legislative body suffices as 33 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 34 of 42 1 proof of notice because the County necessarily has knowledge of its own ordinances. We have said that “a municipality’s policies that 2 explicitly acknowledge that substantial risks of serious harm exist” may demonstrate municipal knowledge of that risk for the purposes 3 of a Fourteenth Amendment failure-to-protect claim. Here, the ordinance adopted by the County is a policy that explicitly 4 acknowledges the relevant substantial risks of serious harm. 5 Accordingly, the entity defendants had notice that their customs or policies posed a substantial risk of serious harm to persons detained 6 in the West Hollywood sobering cell and were deliberately indifferent to that risk. 7 8 Id. at 1077–78 (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1188 n.10 (9th Cir. 2002), 9 overruled on other grounds by Castro, 833 F.3d at 1076). 10 Likewise, here, the parties agree that MPD has a written policy governing the use of force. 11 (PSF ¶ 29.) MPD’s written policy provides limits on the use of force during arrests and on the 12 use of deadly force generally. (PX 13 §§ 300.3.1, 300.3, 300.4.) As in Castro, that written policy 13 was “aimed at mitigating the risk of serious injury to individuals” who were subjected to the 14 policy. 833 F.3d at 1077. MPD and Chief Carroll therefore “knew of the risk of the very type of 15 harm that befell [plaintiff].” Id. As discussed above, Carroll’s alleged ratification of Ramar’s 16 conduct could be taken as evidence of the existence of a policy of using deadly force even in 17 circumstances where the use of such force was inappropriate. As in Castro, MPD and Carroll had 18 notice that any such custom or policy regarding the use of force posed a substantial risk of serious 19 harm and a reasonable finder of fact could conclude they were deliberately indifferent to that risk. 20 See id. at 1078. 21 4. Causation or Moving Force 22 To show that a policy or custom is the “moving force” behind a violation, a plaintiff must 23 allege facts and ultimately prove that the policy or custom was “closely related to the ultimate 24 injury,” City of Canton, 489 U.S. at 391, i.e., that the constitutional violation was caused by the 25 municipal policy or custom. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985); see also 26 Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir.2001). 27 Defendants argue that there is no causation here between any purportedly improper policy, 28 custom, or practice at MPD and the shooting of plaintiff. (Doc. No. 85 at 31.) According to 34 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 35 of 42 1 defendants, because the alleged ratification occurred post-shooting, a ratification theory of 2 imposing Monell liability fails due to lack of causation because MPD’s post-shooting ratification 3 did not cause defendant Ramar to shoot plaintiff. (See id.). Plaintiff, citing the decision in 4 Rosales, argues that the ratification of the shooting is evidence of a pre-existing policy which a 5 jury may rely upon to infer causation. (Doc. No. 93 at 28.) 6 The court is persuaded by and adopts the reasoning of the decision in Rosales as quoted 7 above. There, the district court noted that at summary judgment, an official’s ratification of a 8 police officer’s actions is evidence of a preexisting policy, which in turn a jury can rely upon to 9 infer causation. Rosales, 2015 WL 6167740, at *7 (“Although the finding was made after the 10 incident, it constitutes clear evidence from which a rational jury could infer that the policy existed 11 before the incident and therefore was the moving force that caused the injury.”); see also Ninth 12 Circuit Manual of Model Civil Jury Instruction § 9.7 (rev. June 2021) (citing George M. 13 Weaver, Ratification as an Exception to the § 1983 Causation Requirement: Plaintiff’s 14 Opportunity or Illusion?, 89 Neb. L. Rev. 358, 387–93 (2010) (discussing the distinction between 15 “true ratification” and the “substantial equivalent” of ratification as evidence of custom or 16 practice)). 17 Here, as in Rosales, plaintiff has established a genuine disputed issue of material fact as to 18 whether MPD had a policy of permitting the excessive use of force at issue based on Chief 19 Carroll’s approval of the Shooting Review Board’s finding that defendant Ramar’s actions were 20 within MPD policy. Hence, “[a]lthough the finding was made after the incident, it constitutes 21 clear evidence from which a rational jury could infer that the policy existed before the incident 22 and therefore was the moving force that caused the injury.” Rosales, 2015 WL 6167740, at *7. 23 For these reasons, the court will therefore deny defendants’ motion for summary judgment 24 as to plaintiff’s Monell claim.17 25 ///// 26 ///// 27 17 Again, to the extent that plaintiff believes he has brought Monell claims based upon multiple 28 legal theories, the parties may address such theories by way of motion in limine prior to trial. 35 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 36 of 42 1 E. Supervisory Liability Against Chief Carroll 2 Plaintiff opposes summary judgment as to any supervisory claim brought against Chief 3 Carroll because that claim overlaps with plaintiff’s Monell claim. (Doc. No. 93 at 28–29.) This 4 issue, however, is not before the court since defendants do not appear to have moved for 5 summary judgment as to any supervisory liability claim brought against defendant Carroll in his 6 individual capacity. (See Doc. No. 85 passim.) Accordingly, the court will not address any 7 supervisory-liability claim. 8 F. California State-Law Claims 9 Defendants next move for summary judgment on the following state-law claims brought 10 by plaintiff: (1) excessive use of force in violation of California Constitution Article I, § 13; (2) 11 the Bane Act, California Civil Code § 52.1(b); (3) assault and battery; (4) intentional infliction of 12 emotional distress; and (5) negligence. (Doc. No. 85 at 2.) The court will address defendants’ 13 motion for summary judgment with respect to each of plaintiff’s the state-law claims below. 14 1. California Constitution Article I, § 13 15 Defendants argue that plaintiff’s claim brought under the California Constitution is 16 redundant of his claim of excessive use of force under the Fourth Amendment to the U.S. 17 Constitution and, because the latter fails, the former must as well. (Doc. No. 85 at 32.) Plaintiff 18 opposes summary judgment as to this claim brought under the state constitution. (Doc. No. 93 at 19 29.) 20 The California constitution provides “greater protection” against excessive force than the 21 federal constitution does. People v. Brisendine, 13 Cal. 3d 528, 550–51 (1975). Accordingly, 22 because the court concludes that triable issues of fact exist as to whether defendant Ramar’s and 23 officer Olson’s conduct violates the Fourth Amendment to the U.S. Constitution, defendants’ 24 motion for summary judgment as to plaintiff’s claim brought pursuant to the California 25 Constitution against Ramar will be similarly denied. However, defendants’ motion for summary 26 judgment as to plaintiff’s claim under the California Constitution against any other defendant will 27 be granted due to plaintiff’s non-opposition. (See Doc. No. 95 at 29 (failing to oppose as to any 28 other defendant).) 36 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 37 of 42 1 2. Bane Act: California Civil Code § 52.1(b) 2 Defendants argue that plaintiff has failed to present evidence demonstrating that any 3 defendant acted with the specific intent to violate his constitutional rights as required to support 4 his claim under California’s Bane Act. (Doc. No. 85 at 32–33.) Plaintiff counters that satisfying 5 the “specific intent” requirement under the Bane Act “is not a particularly onerous task, where 6 ‘mere reckless disregard’ of or ‘deliberate indifference’ to the underlying right is sufficient.” 7 (Doc. No. 93 at 29–30) (quoting Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1040 (9th Cir. 8 2018) and Cornell v. City & Cnty. of San Francisco, 17 Cal. App. 5th 766, 802 n.31 (2017)). 9 Plaintiff’s argument on this issue is persuasive. 10 An excessive use of force claim brought under the Bane Act “requires ‘a specific intent to 11 violate the arrestee’s right to freedom from unreasonable seizure.’” Reese, 888 F.3d at 1043 12 (quoting Cornell, 17 Cal. App. 5th at 802). A showing of a “reckless disregard for a person’s 13 constitutional rights is evidence of a specific intent to deprive that person of those rights.” Reese, 14 888 F.3d at 1046 (citation omitted). 15 For instance, in Reese, the defendant police officers responded to an anonymous 911 call 16 regarding an armed and “possibly crazy” man under the influence of drugs who had a knife and 17 fired an automatic gun at a certain apartment. 888 F.3d at 1035. The police knocked on the 18 man’s (Reese’s) door and he opened it. The police claimed he was holding a knife. One officer 19 shot him with a rifle, and another, Deputy Rose, entered the apartment and shot him again, 20 despite being unable to see Reese’s hands. Id. At trial, the jury concluded that Reese did not 21 have a knife by the time Deputy Rose shot him and that it did not appear he was an immediate 22 threat to the safety of Deputy Rose or others. Id. Nevertheless, the district court sua sponte 23 granted summary judgment in favor of Deputy Rose as to the plaintiff’s Bane Act claim. Id. at 24 1041–42. The Ninth Circuit reversed the grant of summary judgment finding that a reasonable 25 jury could conclude that Deputy Rose acted with reckless disregard of Reese’s constitutional 26 rights. Id. at 1045. 27 Likewise, here, a reasonable jury could conclude that defendant Ramar and officer Olson 28 acted with reckless disregard based on the body camera evidence alone. Ramar shot plaintiff very 37 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 38 of 42 1 shortly after he first encountered him and continued shooting him, even though he was unarmed. 2 (Body Camera at 17:45:21–17:45:32.) Ramar’s actions are arguably comparable to Deputy 3 Rose’s because both shot an unarmed man very quickly upon encountering him. See also C.M. by 4 & through McLain v. Cnty. of Los Angeles, No. 17-cv-05135-VAP-AGRX, 2018 WL 5839644, at 5 *2–3, 14 (C.D. Cal. Aug. 2, 2018) (finding a genuine dispute of material fact as to reckless 6 disregard in connection with a Bane Act claim where the police ordered the plaintiff to raise his 7 hands and then shot him when he raised them to mid-chest, all within seconds after getting out of 8 their patrol car). Additionally, a jury could reasonably conclude from the evidence before the 9 court on summary judgment that Olson demonstrated a reckless disregard for plaintiff’s right not 10 to be subjected to the use of excessive force. After plaintiff had been shot, Olson dragged 11 plaintiff from his car and let his injured and bleeding body be placed onto the pavement 12 facedown. 13 Accordingly, defendants’ motion for summary judgment will be denied with respect to 14 plaintiff’s Bane Act claims brought against defendant Ramar and officer Olson. Because plaintiff 15 does not oppose the granting of summary judgment as to any other defendant with respect to this 16 claim(see Doc. No. 95 at 29–30), this aspect of the motion will be granted as to the other 17 defendants as unopposed. 18 3. Assault and Battery 19 Defendants move for summary judgment in their favor as to plaintiff’s assault and battery 20 claims. (Doc. No. 85 at 32.) Under California law, battery is the willful (or unlawful) use of 21 force or violence upon another that causes injury, and assault is an (unlawful) attempt, coupled 22 with a present ability, to commit a violent injury on another. California Penal Code §§ 240, 243. 23 Battery requires physical injury, but assault does not. Kiseskey v. Carpenters’ Tr. for S. Cal., 144 24 Cal. App. 3d 222, 232 (1983). In the police shooting context, a plaintiff must demonstrate that 25 the officers’ use of force was unreasonable to prevail on an assault or battery claim under 26 California law. See Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272 (1998); see also 27 Davis v. City of San Jose, 69 F. Supp. 3d 1001, 1008–09 (N.D. Cal. 2014). Because the court 28 has concluded above that triable issues have been shown to exist as to whether defendant Ramar’s 38 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 39 of 42 1 conduct was reasonable, defendants’ motion for summary judgment as to plaintiff’s state law 2 claims for assault and battery will also be denied. 3 4. Intentional Infliction of Emotional Distress 4 To prevail on a state law claim for intentional infliction of emotional distress (“IIED”), a 5 plaintiff must demonstrate: “(1) outrageous conduct by the defendant; (2) the defendant’s 6 intention of causing or reckless disregard of the probability of causing emotional distress; (3) the 7 plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation 8 of the emotional distress by the defendant's outrageous conduct.” Trerice v. Blue Cross of Cal., 9 209 Cal. App. 3d 878, 883 (1989). Outrageous conduct must “be so extreme as to exceed all 10 bounds of that usually tolerated in a civilized society.” Id. Conduct which exhibits mere 11 rudeness and insensitivity does not rise to the level required for a showing of intentional infliction 12 of emotional distress. Schneider v. TRW, Inc., 938 F.2d 986, 992 (9th Cir. 1991). 13 Defendants argue that summary judgment in their favor as to this claim is warranted 14 because the officers asked plaintiff to show his hands, “acted in self-defense, and to safeguard 15 innocent civilians in the immediate area” but provide no citations to California law in support of 16 these arguments. (Doc. No. 85 at 33.) The court concludes that there is sufficient evidence from 17 which a reasonable jury could find defendant Ramar liable as to plaintiff’s IIED claim. First, 18 Ramar’s conduct could be found to be “outrageous” under the circumstances. See, e.g., 19 Blankenhorn, 485 F.3d at 487 n. 17 (finding that a police shooting could constitute an 20 “outrageous” act); see also Spinks v. Equity Residential Briarwood Apartments, 171 Cal. App. 4th 21 1004, 1045 (2009) (“In the usual case, outrageousness is a question of fact.”). Moreover, a jury 22 could reasonably conclude from the evidence that plaintiff suffered from emotional harm as a 23 result of being shot six times. The same logic applies to officer Olson’s acts in connection with 24 removing plaintiff from his car after the shooting. If the finder of fact were to conclude that 25 Olson unreasonably dragged plaintiff out of the car and allowed him to land down on the 26 pavement after he had suffered significant gunshot wounds to the neck, shoulder, and upper torso 27 area of his body, that same jury could find that conduct to be outrageous. 28 ///// 39 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 40 of 42 1 Accordingly, defendant’s motion for summary judgment as to plaintiff’s IIED claim 2 brought against defendant Ramar and officer Olson will be denied. However, defendant’s motion 3 for summary judgment as to the IIED claim brought against any other defendant will be granted 4 as unopposed. (See Doc. No. 95 at 31–32 (failing to oppose as to any other defendant).) 5 5. Negligence 6 In order to prevail on his claim for common law negligence, plaintiff must show that (1) 7 defendants owed plaintiff a duty of care, (2) defendants breached that duty, (3) the breach caused 8 plaintiff’s injury, and (4) plaintiff suffered damages. Spates v. Dameron Hosp. Ass’n., 114 Cal. 9 App. 4th 208, 213 (2003). The analysis for state-law negligence claims in the police shooting 10 context is essentially the same as the analysis under the Fourth Amendment, except that 11 California negligence law allows courts to consider additional pre-shooting tactics, including 12 whether the officers “provoke[ed] a dangerous situation” that ultimately led to the use of deadly 13 force. See Hayes v. Cnty. of San Diego, 57 Cal. 4th 622, 639, 630 (2013). Here, because the 14 court has concluded above that a reasonable jury could find that defendant Ramar used 15 unreasonable and excessive deadly force, defendants’ motion for summary judgment as to 16 plaintiff’s negligence claim against Ramar must be denied as well. Defendants’ motion for 17 summary judgment as to plaintiff’s negligence claim brought against any other defendant will be 18 granted as unopposed. (See Doc. No. 95 at 32–33 (failing to oppose as to any other defendant).) 19 G. Punitive Damages 20 Defendants argue that dismissal of plaintiff’s prayer for punitive damages is warranted 21 under both federal and state law because, according to defendants, “[t]here is no evidence 22 [d]efendants used force against [p]laintiff] or acted against him with evil intent or motive” or with 23 a “reckless or callous indifference to his civil rights.” (Doc. No. 85 at 35.) Plaintiff counters by 24 arguing that there is more than enough evidence before the court on summary judgment, when 25 viewed in a light most favorable to him, from which a jury could reasonably conclude that 26 defendants acted with the requisite mental state in violating plaintiff’s constitutional rights. (Doc. 27 No. 93 at 33.) 28 ///// 40 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 41 of 42 1 With respect to defendant Ramar, as noted above, triable issues of material fact exist as to 2 whether he acted in reckless disregard of plaintiff’s constitutional rights. With respect to officer 3 Olson, defendants did not move for summary judgment as to plaintiff’s claim that Olson used 4 excessive force against plaintiff while arresting him. Plaintiff argues that Olson pulled him out of 5 his vehicle after he was shot six times, dropped him face-first onto the pavement, and handcuffed 6 him. (Doc. No. 93 at 24.) The parties have not adequately briefed whether such conduct 7 constitutes the excessive use of force, much less whether Olson acted in reckless disregard of 8 plaintiff’s rights in effecting his arrest. Given that this issue has not been adequately briefed, the 9 court will deny this aspect of defendants’ motion for summary judgment with respect to Olson as 10 well. 11 Accordingly, defendants’ motion for summary judgment as to plaintiff’s prayer for 12 punitive damages will denied in all respects. 13 H. DOE Defendants 14 Finally, defendants move for summary judgment as to any claims brought by plaintiff 15 against unknown “DOE Defendants” because no individuals have been substituted-in or served 16 since the operative complaint in this case was filed two years ago. (Doc. No. 85 at 34.) Plaintiff 17 does not oppose dismissing the “DOE Defendants.” (Doc. No. 93 at 33.) Therefore, defendants’ 18 motion for summary judgment as to the Doe defendants on this basis will be granted and the Doe 19 defendants will be dismissed from this action. 20 CONCLUSION 21 For the reasons explained above: 22 1. Defendants’ motion for summary judgment (Doc. No. 85) is denied in part and granted in 23 part as set forth above; 24 2. The court will defer ruling on defendants’ motion for summary judgment only with 25 respect to plaintiff’s claim brought against officer Olson based upon his alleged failure to 26 intercede; 27 ///// 28 ///// 41 Case 1:19-cv-00126-JLT-EPG Document 98 Filed 02/01/22 Page 42 of 42 1 3. Twenty-one days from the service of this order, the parties are directed to submit 2 simultaneous briefs, no longer than 7 pages in length, addressing the application of 3 qualified immunity to plaintiff’s claim brought against officer Olson based upon his 4 alleged failure to intercede; 5 4. Plaintiff’s request to consider new authority (Doc. No. 96) is granted; and 6 5. The Clerk of the Court is directed to now reassign this case to U.S. District Judge Jennifer 7 L. Thurston and to remove the “NONE” designation. 8 IT IS SO ORDERED. 9 Dated: January 31, 2022 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42