Starks v. County of Los Angeles CA2/2 ( 2023 )

Filed 1/23/23 Starks v. County of Los Angeles CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MARY STARKS, B312878
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV38462)
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kristin S. Escalante and Maurice A. Leiter,
Judges. Affirmed.
Law Offices of Dale K. Galipo, Dale K. Galipo and Marcel
F. Sincich for Plaintiff and Appellant.
Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall
for Defendants and Respondents.
____________________________________
An innocent bystander, 65-year-old Rickie Starks, died in
crossfire between fleeing suspects and sheriff’s deputies during a
car pursuit. Appellant Mary Starks sued respondents County of
Los Angeles and its deputies for causing her son’s death. She
alleges that the deputies caused the tragedy by unreasonably
using deadly force.
The trial court entered summary judgment for respondents.
(Code Civ. Proc., § 437c.) We conclude that respondents are
entitled to summary judgment as a matter of law. It is
undisputed that the suspects repeatedly fired an assault weapon
at the deputies, striking their patrol car. In fear for their lives,
the deputies fired back. It is unclear if the bullet that struck Mr.
Starks was fired by the suspects or by the deputies. Assuming,
arguendo, that the deputies struck Mr. Starks, no evidence shows
they targeted him: They fired at the suspects, who they
objectively, reasonably believed were trying to kill them. The
deputies were not required to stand down or issue warnings. We
affirm the judgment for respondents.
FACTS
At 11:20 p.m. on July 3, 2019, Los Angeles County Sheriff’s
deputies Edwin Barajas and Taylor Ingersoll (the deputies) were
driving an arrestee to a detention facility in their patrol car. The
deputies saw a black Cadillac Escalade run red lights and stop
signs. They activated their emergency lights and attempted a
traffic stop. The driver did not yield. Ingersoll radioed that they
were pursuing a reckless drunk driver. Barajas recalled that the
same type of car was involved in a shooting in that neighborhood,
one day earlier.
The deputies pursued the Escalade through a residential
neighborhood. They heard popping, firework-like sounds. Then
2
they heard gunshots from a high-power weapon and saw muzzle
flashes in their direction. They radioed that they were “taking
rounds,” as bullets struck their car. Barajas slowed down, but
muzzle fire kept coming from the Escalade as it turned north on
Aranbe Avenue in Compton. Ingersoll saw a passenger hanging
out of the window, shooting what appeared to be a rifle at the
patrol car; he heard rapid-fire rounds “whizzing past us and
striking our vehicle.” The deputies ducked down, making
themselves small to avoid being hit. They feared for their lives,
for the arrestee in their car, and the public. Appellant does not
dispute that someone in the Escalade shot at the deputies.
It is undisputed that the deputies fired nine-millimeter
rounds at the Escalade through the windshield of their patrol car.
They were unaware that the Escalade was retrofitted with
ballistic armor and was bulletproof. The patrol car carried an
AR-style rifle between the front seats, but the deputies did not
use it.
Anthony Hennessy was in the backseat of the patrol car.
Hennessy declared that people in the Escalade fired guns at the
deputies first; the deputies returned fire but did not initiate it.
Deputy Ingersoll said they were three or four car lengths
behind the Escalade. He described having “tunnel vision” and
was struggling with the radio. The deputies declared that they
did not see or aim at Mr. Starks, who was riding his bicycle on
Aranbe Avenue. Barajas testified that he fired solely at their
target, the Escalade. His lights and siren were on the entire
time.
It is undisputed that Mr. Starks was “in the direct line of
fire of the gun-battle.” The deputies’ car was mechanically
disabled and came to a stop after being hit 30 times by bullets.
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Ingersoll’s hand was injured by shrapnel and he sustained a burn
abrasion on his shoulder during the shootout. He did not learn
that Mr. Starks was shot until later.
A second patrol car, carrying Deputies Cuevas and Benzor,
joined the chase. They saw the Escalade turn onto Aranbe
Avenue while firing repeatedly at Barajas and Ingersoll. Cuevas
stated that people in the Escalade fired at him; muzzle flashes
came from the SUV and rounds struck the pavement in front of
him. The Escalade abruptly turned and drove directly at Cuevas,
who could see a “barrel hanging out, like a muzzle from a rifle.”
Fearful of getting shot, Cuevas bailed out of his patrol car and
fired his weapon at the Escalade as it passed. Appellant does not
dispute that the suspects shot at Cuevas.
A sheriff’s helicopter pursued the Escalade. A deputy on
board saw the SUV travelling at 100 to 120 miles per hour on
surface streets, running red lights. Someone in the Escalade
fired four or five gunshots at the helicopter. It is undisputed that
the Escalade eventually stopped and the driver, gang member
James Harris, was arrested. The fingerprints of Hayden Taylor,
another gang member, were found on the rear passenger window.
An investigation showed that Taylor was firing at the deputies.
Paramedics were dispatched at 11:28 p.m. and arrived in
four minutes. They found Mr. Starks facedown by his bicycle on
Aranbe, just west of Spruce, with his upper body under a parked
Scion. They pulled him from under the car and turned him over
to render aid, but he showed no signs of life. He was pronounced
dead at the scene. The cause was a gunshot wound to his chest.
Cartridge cases for 7.62 x 39-millimeter bullets were found:
One was under the tire of Mr. Starks’ bicycle; 12 more were on
Aranbe Avenue; more were on Spruce, where the Escalade
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traveled before turning onto Aranbe; and one was on Oleander
Avenue, where the Escalade traveled before turning onto Spruce.
The same size cartridge was found in the Escalade, along with a
hidden compartment containing guns and ammunition.
Officers recovered a 21.5-inch-long Draco AK-47 type rifle
or pistol along the route taken by the Escalade.1 The chamber
and 30-round magazine were empty. The weapon uses 7.62 x 39-
millimeter bullets. Appellant’s expert agreed that the deputies
“were within the range of the suspect in the Escalade [who] was
firing the AK-47 pistol.” He testified that seven or eight bullets
were fired from the Escalade when the deputies were at the
intersection of Spruce and Aranbe. Eleven bullets from the
deputies’ nine-millimeter guns struck the Escalade. No nine-
millimeter bullets or fragments were found beyond Mr. Starks’s
body on Aranbe.
The coroner’s office performed an autopsy. The examiner
found a through-and-through gunshot wound that lacerated Mr.
Starks’s organs. The wounds to his lungs, heart and liver were
“rapidly fatal.” The examiner concluded, to a reasonable medical
probability, that “[t]he injuries are consistent with a high-
powered rifle.” The wound is “atypical,” suggesting that the
bullet hit an intermediate target or ricocheted. In his deposition,
the examiner could not rule out that the bullet was from a nine-
millimeter gun, not from an assault weapon.
Respondents’ law enforcement expert opined that the
deputies had probable cause to conduct a traffic stop of the
1 Suspect Hayden Taylor described the Draco as “[a] mini
AK-47.” In a recorded conversation, he said he fired it 40 times
at the deputies because he did not want to go back to jail. The
Draco is classified as an assault weapon.
5
Escalade after seeing it run red lights, posing a risk to public
safety. The deputies properly pursued the Escalade when the
driver failed to yield. When the deputies saw muzzle flashes in
their direction, they radioed that they were taking rounds.
Surveillance video showed that shots were fired from the
Escalade. The expert opined that the deputies fired back because
they reasonably believed they faced imminent death or serious
bodily injury. They had no other alternative.
Appellant’s forensic pathologist reviewed the autopsy
report and photographs. He opined in a declaration that Mr.
Starks’s fatal wound was “consistent with a high velocity rifle
bullet; or a handgun bullet, including a 9 mm caliber bullet, that
suffered an external ricochet, [and] developed a high yaw before
striking the Decedent’s body.” In his deposition, appellant’s
medical expert opined that the victim was struck by a 9-
millimeter bullet fired by the deputies through glass or
ricocheting off the ground, in a northerly direction. He deemed it
unlikely that the fatal bullet was fired from the Escalade, which
was shooting southward at the deputies, given the trajectory of
the bullet through Mr. Starks.
Appellant’s law enforcement expert was not trained in
California, nor did he serve here. He opined that the deputies
were at fault. They did not report the license plate of the
Escalade after seeing it run two red lights; this suggests that
there was no reason to initiate a traffic stop. There was no
reason for the deputies to fire their weapons when they only
thought they heard fireworks. Bullets fired by the deputies killed
Mr. Starks, given the position of his body and the trajectory of his
bullet wound. It was inappropriate to shoot indiscriminately
through a windshield at a moving vehicle or use deadly force on
6
an innocent bystander. They should have ended the pursuit, not
escalated it.
At his deposition, appellant’s expert did not believe the
deputies intentionally shot Mr. Starks, saying, “I’ve seen nothing
to indicate that they shot him on purpose.”2 Though he was not
at the scene of the shooting, he opined that the deputies fired
first, yet agreed that percipient witnesses, including the deputies’
prisoner, said the first shots were fired from the Escalade. He
agreed that the deputies radioed that they were pursuing a
reckless drunk driver and that the deputies had a reasonable
suspicion to stop the Escalade if they saw it run red lights and a
stop sign; it is not prohibited (but is unwise) to do so while
transporting a prisoner. The expert lacks certification in gunshot
wounds and agreed that he is not qualified to give a medical
opinion. He opined that the deputies should not have attempted
to conduct the traffic stop, even if the Escalade ran red lights.
In listening to and watching a recording of the shooting,
appellant’s expert heard one shot from the Escalade while it was
traveling on Spruce, then eight more shots as it turned right on
Aranbe. He saw six or seven muzzle flashes from the Escalade.
He did not see muzzle flashes from the patrol car. Mr. Starks
was found near the intersection of Spruce and Aranbe. The
expert agreed that issuing a warning to the shooter firing an AK-
47 would not have had any effect.
Appellant was born in 1927. Her son, Mr. Starks, lived
with her full time. He used a bicycle for transportation. The last
2Both appellant’s expert and respondents’ investigator
found no evidence suggesting that the deputies purposely shot
Mr. Starks.
7
time she saw him was the night of July 3, 2019, when he said he
was going to the store and asked if she needed anything. The
next day, police told her he had been killed. She almost fainted.
She did not personally witness the shooting or know if the
deputies are responsible.
Hayden Taylor and others were charged with the murder of
Mr. Starks; attempted murder of Deputies Barajas, Ingersoll,
Cuevas, and Benzor; attempted murder of Anthony Hennessy;
assault with a deadly weapon; shooting from a motor vehicle;
fleeing a peace officer while driving recklessly; possession of a
firearm by a felon; and possession of an assault weapon. We have
taken judicial notice that Deven Littlejohn pleaded no contest to
assault with a machine gun or assault weapon on Deputy
Barajas.
PROCEDURAL HISTORY
Appellant filed suit against respondents for battery,
negligence, and violation of the Tom Bane Civil Rights Act (Civ.
Code, § 52.1). Respondents cross-complained against the
suspects and the owner of the Escalade: Hayden Taylor, Deven
Littlejohn, James Earl Harris III, Traveon McCowen, and
Keenon Jackson.
The court denied respondents’ motion for judgment on the
pleadings. Respondents moved for summary judgment. They
argued that they are entitled to judgment as a matter of law
because the deputies’ use of force in self-defense was objectively
reasonable and the evidence does not show that they
intentionally or accidently used deadly force against Mr. Starks.
Appellant opposed the motion.
8
THE TRIAL COURT’S RULING
The court granted summary judgment, concluding that the
deputies’ use of force was reasonable. They attempted to stop a
reckless, inebriated driver from committing traffic offenses. The
suspects evaded arrest and shot at the deputies with an assault
weapon, striking the patrol car and Ingersoll. There is no dispute
that the deputies heard gunshots or that the suspects in fact shot
at the patrol car. The suspects’ use of deadly force gave the
deputies a reasonable belief that they should respond with deadly
force to avert an immediate threat to the safety of themselves
and others. They did not have to give warnings or wait for air
support to take over the pursuit. The deputies’ use of force was
objectively reasonable as a matter of law. The court did not
decide who shot Mr. Starks. It entered judgment for respondents
and denied appellant’s motion for reconsideration.
DISCUSSION
1. Appeal and Review
Summary judgment allows courts “to cut through the
parties’ pleadings . . . to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843
(Aguilar); Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542.) It is appropriate when no triable issue of material fact
exists and the moving party is entitled to judgment as a matter of
law. (Code Civ. Proc., § 437c, subd. (c).) The judgment is
appealable. (Id., subd. (m)(1).)
“On summary judgment, the moving party’s burden is more
properly labeled as one of persuasion rather than proof. That is
because, in order to carry such burden, he must persuade the
court that there is no material fact for a reasonable trier of fact to
9
find, and not prove any such fact to the satisfaction of the court
itself as though it were sitting as the trier of fact.” (Aguilar,
supra, 25 Cal.4th at p. 845, fn. 4.)
We “independently examine the record to determine
whether triable issues of material fact exist.” (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 767.) “Evidence
presented in opposition to summary judgment is liberally
construed, with any doubts about the evidence resolved in favor
of the party opposing the motion.” (Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 618.)
2. Unpleaded Claims
The trial court wrote, “In opposition to this motion Plaintiff
for the first time offers a theory that [the deputies] engaged in
the shooting so they could be admitted into an alleged Deputies
gang called the Executioners. . . . This is beyond the pleadings
and the Court does not consider it.” We agree. The complaint
alleges that the deputies shot at the suspects and at Mr. Starks
during a vehicle pursuit while attempting to make a traffic stop;
Mr. Starks died because the deputies used deadly force to stop
the suspects. It does not allege that the deputies randomly
targeted an unarmed bicyclist to gain peer approval.
Summary judgment allows a defendant “ ‘to show that
material factual claims arising from the pleadings need not be
tried because they are not in dispute.’ ” (FPI Development, Inc. v.
Nakashima (1991) 231 Cal.App.3d 367, 381 [witness declarations
show if there are any triable issues of fact, as delimited by the
pleadings]; White v. Smule, Inc. (2022) 75 Cal.App.5th 346, 354
[pleading determines scope of summary judgment motion].) The
motion must negate “ ‘ “theories of liability as alleged in the
complaint” ’ ” and need not “ ‘ “ ‘ “refute liability on some
10
theoretical possibility not included in the pleadings,” ’ ” ’ simply
because such a claim was raised in plaintiff’s declaration in
opposition to the motion for summary judgment.” (Conroy v.
Regents of University of California (2009) 45 Cal.4th 1244, 1254.)
The pleading did not put respondents on notice of a claim
that the deputies shot Mr. Starks because they wished to join a
sheriff’s department gang. Similarly, appellant’s claim that the
deputies refused medical care to Mr. Starks is not pleaded. The
record shows that paramedics arrived within minutes, but Mr.
Starks succumbed to “rapidly fatal” wounds to his organs.
It is true that “we generally construe the pleading broadly
[citation]; but the pleading must allege the essential facts
“ ‘ “ ‘with reasonable precision and with particularity sufficient to
acquaint a defendant with the nature, source and extent of [the]
cause of action.’ ” ’ ” (Soria v. Univision Radio Los Angeles, Inc.
(2016) 5 Cal.App.5th 570, 585 [plaintiff cannot raise new issues
while opposing summary judgment].) Appellant is bound by the
rule that “ ‘[a] party may not oppose a summary judgment motion
based on a claim, theory, or defense that is not alleged in the
pleadings,’ ” which makes her belated claims that the deputies
were “chasing ink” or failed to provide aid “ ‘irrelevant.’ ” (Jacobs
v. Coldwell Banker Residential Brokerage Co. (2017) 14
Cal.App.5th 438, 444.)
3. Intentional Shooting Claim
Appellant alleged that the deputies intentionally shot Mr.
Starks. The trial court’s statement of decision did not address
the issue of intent; however, our review is de novo and hence we
may address it for the first time on appeal. Any failure to give all
reasons for granting summary judgment “presents no harm
where, as here, our independent review establishes the validity of
11
the judgment.” (Soto v. State of California (1997) 56 Cal.App.4th
196, 199.)
Appellant’s claim of an intentional shooting is belied by the
record. Appellant’s expert testified, “I don’t believe [the deputies]
intended to shoot Mr. Starks. . . . [It] was an accidental shooting
as they were shooting at the Escalade.” Respondents’ expert
similarly found no clues suggesting that the deputies shot Mr.
Starks on purpose.
Appellant theorizes that while the deputies chased the
Escalade—in the chaos of the shoot-out—they both formed a
belief that (a) the people in the Escalade were Black; (b) Mr.
Starks jumped from the Escalade; and (c) they should
intentionally target Mr. Starks, an innocent Black man, as
someone from the Escalade who posed a threat to them.
Appellant’s argument is unsupported by the record. There
is no evidence that the deputies saw who was in the Escalade,
which was in front of them, at night. It is speculation that the
deputies knew the suspects were Black. It defies reality to argue
that in the three to five seconds that the deputies paused at the
intersection of Spruce and Aranbe, they formed a belief that Mr.
Starks jumped from the Escalade with a bicycle, mounted the
bicycle, and began to ride down the street, so they should target
him because he is Black. No reasonable trier of fact could find for
appellant on this issue. (Aguilar, supra, 25 Cal.4th at p. 856
[court must determine what any evidence submitted by the
plaintiff “could show or imply to a reasonable trier of fact”].)
4. Dispute as to Who Shot Mr. Starks
Appellant’s battery claim requires a showing that the
deputies intentionally fired their weapons, hitting Mr. Starks;
her negligence claim requires a showing that they failed to
12
exercise reasonable care. Respondents assert that they are not
liable because the deputies did not shoot Mr. Starks, who was
struck by a bullet fired from the Escalade. Appellant contends
that a triable issue is presented as to who shot Mr. Starks.
The parties offered conflicting evidence on this point. The
coroner’s examiner wrote that “[t]he injuries are consistent with a
high-powered rifle” but could not rule out that a nine-millimeter
bullet hit an intermediate target or ricocheted. Appellant’s
expert declared that the injury is “consistent with a high velocity
rifle bullet; or a handgun bullet, including a 9 mm caliber bullet
that suffered an external ricochet [and] developed a high yaw
before striking the Decedent’s body.” At deposition, appellant’s
expert opined that the victim was struck by a bullet fired by the
deputies through glass or ricocheting off the ground.
A trier of fact could determine that Mr. Starks was struck
by the suspects’ assault weapon, or by one of the deputies’
weapons. As we shall see, this dispute of fact is not material.
The dispositive question is whether the deputies reasonably used
deadly force.
5. Reasonable Use of Deadly Force
The parties focus on whether the deputies reasonably used
deadly force, given the totality of the circumstances. Their intent
to target a fleeing suspect may form the basis of a lawsuit by an
injured bystander who was not the deputies’ intended target.
(Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526–527, fn. 10
(Brown) [officers owe bystanders a duty to use reasonable force].)
To prevail, appellant must show the deputies acted unreasonably.
Appellant’s claims fail if the deputies’ use of force was
reasonable, or if they acted in self-defense, under a “transferred
intent” theory. (Ibid.)
13
“ ‘ “ ‘Unlike private citizens, police officers act under color of
law to protect the public interest.’ ” ’ ” (Lopez v. City of Los
Angeles (2011) 196 Cal.App.4th 675, 685).) While attempting an
arrest, officers “need not retreat or desist from their efforts by
reason of the resistance or threatened resistance of the person
being arrested.” (Pen. Code, § 835a, subd. (d); Lopez, at p. 685.)
They need not “ ‘ “choose the “most reasonable” action or the
conduct that is the least likely to cause harm’ ” when
apprehending a violent suspect. (Hayes v. County of San Diego
(2013) 57 Cal.4th 622, 632 (Hayes).)
“[T]he decision by a peace officer to use force shall be
evaluated from the perspective of a reasonable officer in the same
situation, based on the totality of the circumstances known to or
perceived by the officer at the time, rather than with the benefit
of hindsight, and that the totality of the circumstances shall
account for occasions when officers may be forced to make quick
judgments about using force.” (Pen. Code, § 835a, subd. (a)(4);
Graham v. Connor (1989) 490 U.S. 386, 396–397 (Graham);
Hayes, supra, 57 Cal.4th at p. 632; Brown, supra, 171
Cal.App.4th at p. 526.)
The Legislature has defined when officers may justifiably
use deadly force, including the discharge of a firearm. (Pen.
Code, § 835a, subd. (e)(1).) An officer “is justified in using deadly
force upon another person only when the officer reasonably
believes, based on the totality of the circumstances, that such
force is necessary for either of the following reasons: [¶] (A) To
defend against an imminent threat of death or serious bodily
injury to the officer or to another person. [¶] (B) To apprehend a
fleeing person for any felony that threatened or resulted in death
or serious bodily injury, if the officer reasonably believes that the
14
person will cause death or serious bodily injury to another unless
immediately apprehended. Where feasible, a peace officer shall,
prior to the use of force, make reasonable efforts to identify
themselves as a peace officer and to warn that deadly force may
be used, unless the officer has objectively reasonable grounds to
believe the person is aware of those facts.” (Id., subd. (c)(1).) The
sheriff’s department manual forbids firing a gun at a vehicle
“ ‘unless a person in the vehicle is imminently threatening a
[deputy] or another person present with deadly force by means
other than the moving vehicle.’ ”
“A threat of death or serious bodily injury is ‘imminent’
when, based on the totality of the circumstances, a reasonable
officer in the same situation would believe that a person has the
present ability, opportunity, and apparent intent to immediately
cause death or serious bodily injury to the peace officer or
another person. An imminent harm is not merely a fear of future
harm, no matter how great the fear and no matter how great the
likelihood of the harm, but is one that, from appearances, must
be instantly confronted and addressed.” (Pen. Code, § 835a, subd.
(e)(2).)
The federal standard states that use of deadly force
depends on (1) the severity of the crime, (2) the immediate threat
to the officers or others, (3) whether a suspect is resisting arrest
or attempting to evade arrest by flight, and (4) the officers’
tactical conduct and decisions before using deadly force.
(Graham, supra, 490 U.S. at p. 396; Hayes, supra, 57 Cal.4th at
pp. 626, 637–638.) It is constitutional to use deadly force if there
is probable cause to believe an armed suspect poses a threat of
serious harm. (Tennessee v. Garner (1985) 471 U.S. 1, 11–12.)
15
Appellant does not disagree with the legal standards for
assessing an officer’s use of deadly force. Her argument is
factual. She contends that there is a dispute as to whether
(1) the deputies created the dangerous situation; (2) the suspects
posed an immediate threat of death or serious bodily injury at the
time the deputies shot Starks; (3) the deputies could have used
“reasonable alternatives”; (4) they put innocent lives at risk; and
(5) they violated department policy and training. None of these
points presents a triable issue, given the undisputed facts.
The totality of the circumstances, from the point of view of
the deputies, shows that their use of deadly force was justified as
a matter of law. Appellant does not dispute that (a) people in the
Escalade shot at the deputies; (b) bullets struck and disabled
their patrol car; (c) bullet casings from an AK-type firearm were
found on Oleander, Spruce, and Aranbe, and one was under the
tire of Mr. Starks’s bicycle; and (d) the suspects fired at deputies
in a second patrol car and at a sheriff’s helicopter.
There is no triable issue on the reasonableness of the
deputies’ belief that there was an imminent threat of death or
serious bodily injury. The deputies testified that they feared for
their lives. Appellant’s own law enforcement expert opined that
the deputies had an objectively reasonable belief that people in
the Escalade “were trying to kill them,” adding, “I don’t believe
any reasonable officer would think otherwise.” There were bullet
holes in their car and Ingersoll was struck by shrapnel.
Appellant’s expert agreed that “officers are entitled to use deadly
force when faced with an objectively reasonable imminent threat
of death or serious bodily harm” and someone firing an assault
weapon “is a lethal threat” to the deputies, their passenger, and
anyone nearby.
16
The law does not require the deputies to stand down when
they see a reckless driver—believed to be under the influence—
endangering the public by running red lights. Nor must they
desist from arresting someone who is shooting at them. The
threat of death or great bodily harm had to be instantly
confronted and addressed. An officer faced with an armed
suspect need not “ ‘hold fire in order to ascertain whether the
suspect will, in fact, injure or murder the officer.’ ” (Martinez v.
County of Los Angeles (1996) 47 Cal.App.4th 334, 345; Villalobos
v. City of Santa Maria (2022) 85 Cal.App.5th 383, 389.)
The suspects’ willingness to fire wildly from a speeding
vehicle in a residential neighborhood posed a severe threat.
Appellant’s expert agreed that the shooter had no regard for the
safety of residents, the deputies, or anyone in the deputies’ car.
“[I]f police officers are justified in firing at a suspect in order to
end a severe threat to public safety, the officers need not stop
shooting until the threat has ended.” (Plumhoff v. Rickard (2014)
572 U.S. 765, 777.) They need not delay the arrest or withdraw
to avoid conflict. (Hernandez v. City of Pomona (2009) 46 Cal.4th
501, 518.)
Contrary to appellant’s claim, officers are not “responsible
to justify every shot” when faced with a hailstorm of bullets from
an assault weapon. They may shoot at a moving vehicle to
neutralize the imminent threat posed by a suspect shooting at
them indiscriminately with an assault weapon while fleeing
arrest. (Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909,
936–938 (Koussaya).)
Appellant cites Zion v. County of Orange (9th Cir. 2017)
874 F.3d 1072 to support her argument that the deputies faced no
immediate threat when they fired their guns. In Zion, a suspect
17
stabbed an officer but fell and curled up on the ground when he
was shot at nine times. An officer approached the prone suspect,
fired nine more bullets at close range and stomped on the
suspect’s head three times. (Id. at p. 1075.) A jury could find that
excessive force was deployed because the suspect posed no risk
after falling to the ground. (Id. at pp. 1076–1077.) Zion is
distinguishable. The suspects in the Escalade were not prone on
the ground: They were firing an assault weapon at the deputies,
posing an immediate and ongoing threat.
The facts of this appeal are akin to those in Brown, supra,
171 Cal.App.4th 516, where an innocent bystander was injured
when police fired 33 or 34 rounds at a suspect who was trying to
run them over. Summary judgment was properly granted in
Brown on the plaintiff’s negligence and battery claims because
the use of deadly force was objectively reasonable when the
suspect was trying to harm or kill the officers. (Id. at pp. 520–
523, 528, 536.) The same reasoning applies here.
No evidence supports appellant’s claim that the deputies
“initiated the gun-battle without provocation” by firing first.
Eyewitnesses (the deputies and their passenger) said a shooter in
the Escalade fired first. The opinion of appellant’s expert (who
was not a percipient witness) that the deputies fired first is
contradicted by eyewitnesses and a surveillance tape. Cartridges
from the assault weapon found on three streets show that
numerous bullets were fired, striking the patrol car, before the
deputies returned fire.
Appellant argues that the deputies should have given
warnings to deescalate the situation or awaited backup instead of
opening fire. The deputies admittedly did not give verbal
warnings. Barajas testified that it was impractical to do so
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during the tense and rapidly evolving pursuit. The record shows
that the deputies had air and ground backup; however, the
suspects fired at the second patrol car and at the helicopter,
underscoring the importance of trying to stop the Escalade as
quickly as possible. (See Koussaya, supra, 54 Cal.App.5th at p.
941 [rejecting a claim that officers should not have followed a
fleeing suspect’s car closely, drawing fire, when they knew an air
unit was tracking the chase].)
The suspects knew the deputies were trying to pull them
over, using a siren and flashing lights. Instead of complying,
they opened fire on the deputies. “Verbal warnings are not
feasible when lives are in immediate danger and every second
matters.” (Estate of Martinez v. City of Federal Way (9th Cir.
2004) 105 F.Appx. 897, 899.) Appellant’s expert agreed it was
useless to issue a warning while someone was shooting at the
deputies from a moving vehicle. He conceded that less lethal
options (taser, pepper spray, baton, bean bags) would be
ineffective against a suspect firing an AK-47. It is unavailing to
argue that the deputies could have responded differently—with
the benefit of hindsight—given the immediacy of the suspects’
deadly assault. (Brown, supra, 171 Cal.App.4th at p. 537.)
Our conclusion that the deputies reasonably used deadly
force bars appellant’s claims.3 The underlying basis for the
3 Appellant cannot maintain a cause of action under the
Tom Bane Civil Rights Act (Civ. Code, § 52.1), which gives “a
personal cause of action for the victim of a hate crime” and does
not apply to wrongful death claims. (Bay Area Rapid Transit
Dist. v. Superior Court (1995) 38 Cal.App.4th 141, 144; City of
Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077,
1085.)
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claims is that the deputies used unreasonable deadly force by
shooting at a car. (Koussaya, supra, 54 Cal.App.5th at p. 932.)
The totality of the circumstances belies appellant’s claims. There
are no triable issues as to any material fact.
DISPOSITION
The judgment is affirmed. Respondents are entitled to
recover their costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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