Barbosa v. Shasta County ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS BARBOSA, DECEASED, by and No. 2:20-cv-02298-JAM-DMC through his Co-Successors in 12 Interest, LUPITA BARBOSA, Individually, and as Mother and 13 Next Friend for K.B. and T.B., ORDER GRANTING PLAINTIFFS’ minors, et al., MOTION TO CERTIFY 14 DEFENDANTS’ APPEAL AS Plaintiffs, FRIVOLOUS 15 v. 16 SHASTA COUNTY, a public entity, 17 et al., 18 Defendants. 19 20 Plaintiffs move to certify Defendants’ qualified immunity 21 appeal as frivolous. See Mot. to Certify as Frivolous (“Mot.”), 22 ECF No. 63. Defendants oppose the motion. See Opp’n, ECF 23 No. 68. Plaintiffs replied. See Reply, ECF No. 70. For the 24 reasons set forth below, the Court GRANTS Plaintiffs’ motion to 25 certify Defendants’ appeal as frivolous.1 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for December 6, 2022. 1 I. BACKGROUND 2 As the parties are familiar with the facts of this case, the 3 Court shall recount only those facts most relevant to the present 4 motion. Decedent Thomas Barbosa was shot and killed by Shasta 5 County Sergeant Gonzalez. At the time he was shot, Decedent 6 Barbosa was struggling to exit the rear window of his truck, 7 which had overturned against a tree and thereafter rested upon 8 its side with the passenger door facing skyward. Decedent 9 Barbosa was forty-one years old, five foot five, and two hundred 10 pounds. Exh. 18 to Plaintiffs’ Opp’n, Report of Autopsy, ECF 11 No. 48-5. The window was 35-inches tall and 13-inches wide at 12 its widest part. Exh. 19 to Plaintiffs’ Opp’n, Pictures of 13 Decedent’s Truck Taken by Redding Police, ECF No. 48-5. 14 The aerial video surveillance shows that Decedent Barbosa 15 was still in the overturned car when he was shot. Exh. 1 to 16 Plaintiffs’ Opp’n, Aerial Surveillance Footage, ECF No. 72. The 17 only parts of his body visible in the video before and after the 18 gunshot are his hands, which appear in the frame of the rear 19 window. Id. Defendants contend that Decedent Barbosa had a 20 knife in his hand. 21 One shot was fired resulting in a mortal wound. Id. The 22 bullet struck Decedent Barbosa in the upper chest, tore through 23 his left lung, and lodged in his back just beneath the skin. 24 Exh. 18 to Plaintiffs’ Opp’n, Report of Autopsy. 25 Two minutes after Decedent Barbosa was shot, Officer Fleming 26 moved forward and released his canine unit. Exh. 1 to 27 Plaintiffs’ Opp’n, Aerial Surveillance Footage. The dog bit 28 Decedent’s forearm and shook it violently back and forth in its 1 jaws for twenty-five seconds before being detached. Id. Two 2 other officers then moved in and, working together, pulled 3 Decedent’s body through the narrow rear window onto the ground 4 beside the overturned truck. Id. They turned Decedent on his 5 front and cuffed his hands before rolling him onto his back and 6 pulling him downhill away from the truck. Id. Medics arrived on 7 the scene about four minutes later and pronounced Barbosa dead. 8 Id. 9 On these facts, the Court denied qualified immunity to 10 Defendants Sergeant Gonzalez and Officer Fleming. See Minutes 11 for Proceedings Held on September 13, 2022, ECF No. 52. The 12 Court held that disputes of material fact precluded summary 13 judgment on the issue of qualified immunity and the question of 14 whether each officer’s conduct violated a clear constitutional 15 right. Id. 16 Defendants appealed the Court’s qualified immunity ruling, 17 prompting this motion by Plaintiff to certify the appeal as 18 frivolous. 19 20 II. OPINION 21 A. Legal Standard 22 While an appeal of an order denying qualified immunity 23 “normally divests the district court of jurisdiction to proceed 24 with trial[,]” under the Ninth Circuit’s decision in Chuman v. 25 Wright, 960 F.2d 104, 105 (9th Cir. 1992), a district court “may 26 certify the appeal as frivolous and may proceed then with trial.” 27 Padget v. Wright, 587 F.3d 983, 985 (9th Cir. 2009) (citing 28 Michell v. Forsyth, 472 U.S. 511, 530 (1985)). Under Chuman, a 1 district court that finds an appeal frivolous “may certify, in 2 writing, that defendants have forfeited their right to pretrial 3 appeal, and may proceed with trial.” 960 F.2d at 105. 4 An appeal is frivolous when it is “so baseless that it does 5 not invoke appellate jurisdiction, such as when the disposition 6 is so plainly correct that nothing can be said on the other 7 side.” Schering Corp. v. First DataBank Inc., No. C 07-01142- 8 WHA, 2007 WL 1747115, at *3 (N.D. Cal. June 18, 2007) (internal 9 citations omitted). That is to say, “if the results are obvious, 10 or the arguments of error are wholly without merit,” then the 11 district court should certify the appeal as frivolous. In re 12 George, 322 F.3d 586, 591 (9th Cir. 2003) (internal citations 13 omitted). When a district court certifies an appeal as 14 frivolous, the defendant may apply to the Ninth Circuit for a 15 discretionary stay. Chuman, 960 F.2d at 105 n.1. 16 B. Discussion 17 Defendants oppose Plaintiffs’ motion to certify Defendants’ 18 qualified immunity appeal as frivolous on two grounds. First, 19 Defendants argue an interlocutory appeal is appropriate because 20 there is no genuine issue of material fact. Opp’n at 6. Second, 21 Defendants argue that an appeal is appropriate because the Court 22 applied the wrong standard of analysis when it denied qualified 23 immunity. Id. at 5. The Court finds both arguments are 24 unavailing, and the appeal is frivolous. 25 Contrary to Defendants’ first contention, the Court found on 26 summary judgment that there are genuine disputes of material fact 27 that precluded a finding of qualified immunity. In particular, 28 the reasonableness of the officers’ actions hinged on the 1 material question of whether Decedent could have exited the 2 vehicle, risen to his feet, and charged the officers so 3 expeditiously that a reasonable officer was put in fear of 4 imminent danger. Defendants do not challenge the materiality of 5 the disputed facts, but rather, they contend that there are no 6 disputed facts at all because the aerial video “renders the facts 7 of this case undisputed and amenable to summary judgment.” Opp’n 8 at 6. 9 The Court disagrees. “The mere existence of video footage 10 of the incident does not foreclose a genuine factual dispute as 11 to the reasonable inferences that can be drawn from the footage.” 12 Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir. 13 2018). A video is only dispositive when it presents a record of 14 events so clearly as to utterly discredit the narrative put 15 forward by one of the parties. See Scott v. Harris, 550 U.S. 16 372, 380-81 (2007); Vos, 892 F.3d at 1028. Because more than one 17 reasonable inference may be drawn from the video, the video does 18 not ameliorate the genuine disputes of material fact at play in 19 this case. 20 As the Court noted at hearing, the aerial video recording 21 raised numerous issues of material fact such that a jury could 22 find Plaintiffs’ version of facts to be credible. Further, 23 because these questions of fact turn on one’s interpretation of 24 the aerial video and the credibility of the officers, they are 25 properly left to the jury. See Fresno Motors, LLC v. Mercedes 26 Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2015) (observing 27 that the trier of fact is the ultimate decider of how to view 28 evidence that lends itself to more than one reasonable 1 inference). 2 It is thus apparent that questions of fact precluded the 3 Court from either granting qualified immunity or holding that no 4 Fourth Amendment violation occurred. Moreover, a defendant may 5 not base an interlocutory appeal solely on whether there exists a 6 genuine dispute of fact. The Ninth Circuit has stated that it 7 “do[es] not have jurisdiction over an interlocutor appeal that 8 focuses on whether there is a genuine dispute about the 9 underlying facts.” Knox v. Southwest Airlines, 124 F.3d 1103, 10 1107 (9th Cir. 1997) (citing Armendariz v. Penman, 75 F.3d 1311, 11 1317 (9th Cir. 1996) (en banc) (“We have jurisdiction to review 12 the district court's decision that the defendants' alleged 13 conduct violated clearly established law, but the collateral 14 order doctrine does not provide appellate jurisdiction to review 15 the district court's decision that genuine issues of material 16 fact exist for trial”). As such, Defendants’ argument that there 17 are no factual disputes is without merit upon appeal. 18 Defendants next contend that qualified immunity should have 19 been granted because a reasonable officer would not have known 20 that his alleged conduct violated clearly established law. Opp’n 21 at 5. While this issue is appropriate for an interlocutory 22 appeal, the Court finds Defendants’ argument in support of this 23 issue to be baseless such that the appeal is frivolous. 24 The main thrust of Defendants’ argument is that the Court 25 failed to apply the appropriate degree of specificity in its 26 qualified immunity analysis. Id. Defendants put forth that 27 “whether the violative nature of particular conduct is clearly 28 established” is a question to be answered “not as a broad general 1 proposition,” but with reference to the facts of specific cases. 2 Opp’n at 5, citing Mullenix v. Luna, 577 U.S. 7, 12 (2015). In 3 the absence of a case directly on point, the Ninth Circuit 4 compares “specific factors” relevant to the excessive force 5 inquiry to determine whether a reasonable officer would have 6 known that the conduct in question was unlawful. Bryan v. 7 MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). Based on these 8 principles of law, Defendants argue that the Court improperly 9 denied qualified immunity on the broad generalization that an 10 officer may not use excessive force, instead of utilizing a “more 11 factually-individualized analysis” as directed by the Ninth 12 Circuit. Opp’n at 5 13 The record proves the opposite to be true. At hearing, the 14 Court considered specific caselaw analogous to the present case. 15 In particular, the Court considered two cases put forth by 16 Plaintiffs: S.B. v. Cnty. of San Diego, 864 F.3d 1010 (9th Cir. 17 2017) (holding that it was a violation of the Fourth Amendment 18 for an officer to shoot a man for grabbing a knife while kneeling 19 six to eight feet from the nearest officer when there were non- 20 lethal options available) and Chew v. Gates, 27 F.3d 1432, 1442- 21 43 (9th Cir. 1994) (surmising that it is not reasonable as matter 22 of law for an officer to release a dog “trained to seize suspects 23 by biting hard and holding” upon a suspect who was merely quietly 24 hiding). 25 Taking Plaintiffs’ version of the facts on summary judgment, 26 the Court found that Defendants were on notice that their conduct 27 violated Decedent’s Fourth Amendment rights. Under S.B. v. Cnty 28 of San Diego, it was a clear violation for Defendant Gonzalez to eee ne II III III IIE III EIN IEEE II IEE IIE EE 1 shoot a man struggling to wiggle out of a narrow window of an 2 overturned car, even if he were wielding a knife. And under 3 Chew, it was a clear violation for Defendant Fleming to use his 4 canine unit against a man who had just been shot and was lying 5 completely still. 6 Because Defendants fail to distinguish either case in their 7 opposition, much less discuss them in the context of Plaintiffs’ 8 facts, their appeal is patently frivolous. The Court engaged in 9 a fact specific inquiry, as directed by the Ninth Circuit, and 10 Defendants have not shown otherwise. 11 In sum, the Court denied qualified immunity because there 12 were genuine issues of material fact despite aerial video footage 13 and because Plaintiffs’ version of the facts supports a finding 14 that Defendants violated clearly established Fourth Amendment 15 law. Accordingly, the Court concludes that Defendants’ appeal is 16 frivolous under Chuman and hereby certifies as much. 17 18 Til. ORDER 19 For the reasons set forth above, the Court GRANTS 20 Plaintiffs’ Motion to Certify Defendants’ Appeal as Frivolous. 21 IT IS SO ORDERED. 22 Dated: February 6, 2023 23 open JOHN A. MENDEZ 25 SENIOR UNITED*STATES DISTRICT JUDGE 26 27 28