Galindo v. City of San Francisco ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DORA GALINDO, et al., Case No. 3:21-cv-08133-JSC 8 Plaintiffs, ORDER RE: DEFENDANTS’ MOTION 9 v. FOR SUMMARY 10 CITY OF SAN FRANCISCO, et al., Re: Dkt. No. 54, 55, 66 Defendants. 11 12 13 On October 10, 2020, San Francisco Police Officers shot and killed Cesar Vargas. Dora 14 Galindo, Juan Antonio Vargas, and Rocio Anel Vargas, the mother, father, and sister of 15 Mr. Vargas, sue San Francisco Police Officer Kyle Roach and Sergeant Nicholas Delgado1 and the 16 City and County of San Francisco on behalf of themselves and as successors in interest to Mr. 17 Vargas. Plaintiffs allege the officers violated Mr. Vargas’s constitutional rights, were negligent 18 under state law, committed an assault against him under state law, intentionally inflicted emotional 19 distress on Mr. Vargas, and violated his rights under California Civil Code § 52.1 (the Bane Act) 20 by using unlawful force. Defendants move for summary judgment on all claims. 21 FACTUAL BACKGROUND 22 At approximately 11:29 p.m. on October 10, 2020, Officer Delgado and Officer Roach 23 responded to a call for service in their patrol car. (Dkt. No. 55-11 ¶ 3.)2 The dispatcher informed 24 the officers there was an attempted carjacking with a knife and the victim was located at the 25 1 Sergeant Nicholas Delgado was promoted after the events giving rise to this case. So, when 26 discussing the incident that occurred on October 10, 2020, the Court will refer to Sergeant Delgado as “Officer Delgado,” since that was his title at the time. 27 2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 1 Travelodge near the intersection of Market Street and Valencia Street.3 (Dkt. Nos. 55-8 at 8; 55- 2 11 ¶ 4.) On the way to the scene Officer Delgado told Officer Roach, “[A] knife had been held to 3 the victim’s throat.” (Dkt. No. 55-9 at 11.) Dispatch also provided a physical description of the 4 suspect. (Dkt. No. 55-11 ¶ 4.) 5 The Officers arrived at the Travelodge at approximately 11:32 p.m. (Dkt. No. 55-11 ¶ 5.) 6 The remainder of the incident is captured on the body cameras of Officer Delgado and Officer 7 Roach. (Dkt. Nos. 55-6 (Officer Delgado body camera recording); 55-7 (Officer Roach body 8 camera recording).) 9 A security guard from the Travelodge pointed in the direction of the suspect and told the 10 officers the suspect “has a knife.” (Dkt. Nos. 55-11 ¶ 5; 55-6 at 0:33.) The officers spoke with 11 another witness who said, “the suspect ran” and gave a description of Cesar Vargas. (Dkt. No. 55- 12 6 at 1:10.) The witness also told the officers, “he has a knife also that he held to her throat and our 13 employee is chasing after him.” (Id. at 1:20). The officers asked if the witness knew where the 14 employee was, and the witness said, “he ran that way.” (Id. at 1:30.) 15 The officers then drove a bit further and found the Travelodge employee who was chasing 16 after Cesar Vargas. The officers asked the employee, “where’s he at?” and then an officer said, 17 “oh I see him, he’s running.” (Id. at 1:50.) At that point, the officers turned on their sirens and an 18 officer said, “it’s going to be a full pursuit,” as the officers sped up and followed Cesar Vargas as 19 he ran. (Id. at 1:55.) 20 The officers followed Mr. Vargas from Colton Street to Brady Street and then to Otis 21 Street. (Dkt. No. 55-11 ¶ 9.) After the officers followed Mr. Vargas onto Otis Street, Mr. Vargas 22 stopped running and “slowed to a walk or jog.” (Dkt. Nos. 55-9 at 16; 55-11 ¶ 9.) 23 While following Cesar Vargas, Officer Roach said, “be careful, I think he has that knife in 24 his right hand.” (Dkt. No. 55-6 at 2:30.) Officer Delgado responded, “I think he dropped it.” (Id. 25 at 2:33.) The officers then exited the car. (Id.) As they exited, the officers shouted “get on the 26 3 Defendants provide surveillance videos of the alleged carjacking. (Dkt. No. 55-17-18.) 27 Plaintiffs do not object to these exhibits. However, because there is no evidence the officers saw 1 ground right now.” (Dkt. Nos. 55-6 at 2:40; 60-8 at 3.) The officers then ran towards Cesar 2 Vargas, chasing him, as Mr. Vargas ran away. (Dkt. No. 55-6 at 2:40.) As they chased Mr. 3 Vargas, the officers continued yelling “get on the ground right now” and “let me see your hands,” 4 “give me your hands.” (Id.; Dkt. No. 60-8 at 3.) Mr. Vargas then slowed to a walk and, from the 5 video, it appears one officer pointed his flashlight toward Mr. Vargas, illuminating him. (Dkt. No. 6 55-6 at 2:40.) Cesar Vargas was in view of the body cameras as he continued to walk away from 7 the officers. (Id.) Then, after a moment, Mr. Vargas slowly turned to face the officers, while 8 continuing to walk away from them. (Id.) From the video, it is apparent at this point Cesar 9 Vargas is holding something in his right hand. (Id.) Officer Roach later testified the officers were 10 approximately 40 or 50 feet away from their car when Mr. Vargas turned toward them. (Dkt. No. 11 55-9 at 18.) The officers also testified it was at this point they realized Mr. Vargas still had a 12 knife. (Id. at 20; Dkt. No. 55-11 ¶ 11.) The officers said to Mr. Vargas “what have you got,” 13 “what do you got, man,” “give me your hands,” “give me your hands,” “go ahead, drop it,” “drop 14 it,” “what do have?,” “drop it,” “get down on the ground,” “hey, put the knife down. Put the knife 15 down.” (Dkt. Nos. 55-6 at 2:40; 60-8 at 3.) 16 Cesar Vargas did not drop the knife but continued walking a couple steps away. (Id.) 17 Then, Mr. Vargas turned to face the officers and started running toward Officer Delgado. (Id. at 18 2:50.) Later analysis demonstrated at the time Cesar Vargas started running toward Officer 19 Delgado, Officer Delgado was approximately 24.3 feet away from Cesar Vargas. (Dkt. No. 55-23 20 at 13.) As Cesar Vargas ran toward Officer Delgado, Mr. Vargas yelled something—while it is 21 somewhat inaudible on the video, Officers later described him as saying, ‘I’m going to fucking kill 22 you,’” or “Bitch I’ll kill you n****.” (Dkt. Nos. 55-9 at 18; 55-11 ¶ 12; 55-1 at 2:55; 60-8 at 3 23 (transcript of Officer Delgado’s body worn camera indicating Mr. Vargas stated “Bitch I’ll kill 24 you, n****”).) The officers said, “get back” twice, but Cesar Vargas continued to run toward the 25 officers with the knife in his hand. (Dkt. No. 55-6 at 2:55.) 26 Shortly after Cesar Vargas started running at Officer Delgado, Officer Delgado fired his 27 gun at Cesar Vargas. (Dkt. No. 55-23 at 13.) Later analysis indicates at the time Officer Delgado 1 No. 55-23 at 13.) Officer Roach also fired at Cesar Vargas. In total, Officer Delgado fired his 2 weapon twice and both of his bullets were recovered from Cesar Vargas. (Dkt. No. 55-23 at 6.) 3 Officer Roach fired his weapon three times and one of his bullets was recovered from Mr. Varas. 4 (Id.) After the officers shot Mr. Vargas, Mr. Vargas fell face down on the ground. (Dkt. No. 55-6 5 at 3:00.) Other officers arrive shortly after Mr. Vargas was shot. (Id.) Officers commanded Mr. 6 Vargas to “put your hands out,” and told him, “we want to help you, but we can’t do it until you 7 put your hands out,” and “let us render aid.” (Id.) 8 Cesar Vargas remained on the ground, unmoving. (Id.) Officers then approached Mr. 9 Vargas and attempted to render aid (id. at 5:30), but he died at the scene. Officers found a broken 10 knife under his body. (Dkt. No. 55-20.) 11 OBJECTIONS 12 Plaintiffs object to any evidence of Cesar Vargas’s history of mental health issues (or lack 13 thereof) prior to the shooting as irrelevant because the information “has no bearing on what the 14 officers were thinking at the time and is not something they could have found out at the scene.” 15 (Dkt. No. 57 at 11-12.) The Court grants this objection and will not consider any evidence about 16 Cesar Vargas’s mental health prior to the night he was killed. 17 Defendants object to any testimony from Plaintiffs’ retained police practice expert, Roger 18 Clark, that Mr. Vargas was “off the rails,” or other testimony from Mr. Clark as to Mr. Vargas’s 19 mental state. Roger Clark admitted he “would not be qualified” to make an opinion as to a 20 “diagnosis” for Cesar Vargas. (Dkt. No. 61-1 at 33.) So, the Court will not consider Mr. Clark’s 21 testimony as evidence of any diagnosis Mr. Vargas has and will only consider his opinions as to 22 how Mr. Vargas’s actions and behavior would have impacted proper police response. 23 DISCUSSION 24 “Summary judgment is proper where the movant shows, by citation to the record, that 25 there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 26 matter of law.” Rice v. Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021). The Court “view[s] the 27 facts in the light most favorable to the nonmoving party.” Id. (quoting Tuuamalemalo v. Greene, I. DEFENDANTS’ ADMINISTRATIVE MOTION TO STRIKE 1 Defendants move to strike Plaintiffs’ supplemental material. (Dkt. No. 66.) The Court 2 DENIES this motion. Although the filing was untimely, the Court considers Plaintiffs’ arguments. 3 II. DEFENDANTS’ ADMINISTRATIVE MOTION TO FILE UNDER SEAL 4 Defendants move to seal two exhibits. (Dkt. No. 54.) 5 First, Defendants move to seal San Francisco Department of Emergency Management 6 Computer-Aided-Dispatch (“CAD”) printout (Dkt. No. 54-4), because it “contains private 7 information of witnesses and disclosure of that information would cause an unwarranted invasion 8 of personal privacy” and “is protected by the official information privilege” as its publication 9 could reveal the identities of witnesses. (Dkt. No. 54-1 ¶ 3.) Plaintiffs filed a redacted version of 10 the CAD printouts in support of their opposition, which is now sealed as Defendants assert the 11 redactions were incomplete. (Dkt. No. 60-5.) The motion to seal the redacted portions is 12 GRANTED. Defendants are ORDERED to file a properly redacted CAD printout in 7 days. 13 Defendants also seek to file under seal a San Francisco Police Department, Report 14 of Laboratory Examination, (Dkt. No. 54-3), because “report contains private medical information 15 of decedent Cesar Vargas, and making it public would constitute an unwarranted invasion of his 16 rights to personal privacy.” (Dkt. No. 54-1 ¶ 4.) However, Defendants confusingly state they “are 17 not filing this report with this Court,” and no party relied on this document. (Dkt. No. 54 at 2.) 18 Therefore, the motion to seal Docket Number 54-3 is DENIED AS MOOT. 19 III. VIOLATION OF CONSTITUTIONAL RIGHT TO BE FREE FROM 20 UNREASONABLE FORCE, 42 U.S.C. § 1983 21 Plaintiffs’ first cause of action, brought under 42 U.S.C. §§ 1983, 1985, and 1988, asserts 22 Officers Roach and Delgado violated Cesar Vargas’s First, Fourth, and Fourteenth Amendment 23 Rights. 24 A. Fourth Amendment 25 1. Standing 26 “[T]he general rule is that only the person whose Fourth Amendment rights were violated 27 can sue to vindicate those rights.” Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 1 however, the survivors of an individual killed as a result of an officer’s excessive use of force may 2 assert a Fourth Amendment claim on that individual’s behalf if the relevant state’s law authorizes 3 a survival action.” Id. “The party seeking to bring a survival action bears the burden of 4 demonstrating that a particular state’s law authorizes a survival action and that the plaintiff meets 5 that state’s requirements for bringing a survival action.” Id. 6 In California, “a cause of action for or against a person is not lost by reason of the person’s 7 death, but survives subject to the applicable limitations period.” Cal. Civ. Proc. Code § 377.20(a). 8 “A cause of action that survives the death of the person entitled to commence an action or 9 proceeding passes to the decedent’s successor in interest . . . and an action may be commenced by 10 the decedent’s personal representative or, if none, by the decedent’s successor in interest.” Cal. 11 Civ. Proc. Code § 377.30. See also Hayes v. Cnty. of San Diego, 736 F.3d 1223, 1229 (9th Cir. 12 2013) (“California’s statutory requirements for standing to bring a survival action are stated under 13 California Code of Civil Procedure § 377.30.”) The Law Revision Commission comment to 14 section 377.30 explains “[t]he distributee of the cause of action in probate is the successor in 15 interest or, if there is no distribution, the heir, devisee, trustee, or other successor has the right to 16 proceed under this article.” Cal. Civ. Proc. Code § 377.30 (citing Cal. Civ. Proc. Code § 377.11 17 (defining “successor in interest” as “the beneficiary of the decedent’s estate or other successor in 18 interest who succeeds to a cause of action”)). 19 a. Dora Galindo and Juan Antonio Vargas 20 According to California law, to proceed as a decedent’s “successor in interest” individuals 21 must “execute and file an affidavit or a declaration under penalty of perjury under the laws of this 22 state.” Cal. Civ. Proc. Code § 377.32. The affidavit or declaration must include, among other 23 things, the decedent’s name, a statement “[n]o proceeding is now pending in California for 24 administration of the decedent’s estate,” a statement indicating the affiant is the decedent’s 25 successor in interest or authorized to act on behalf of the decedent’s successor in interest and “[n]o 26 other person has a superior right to commence the action or proceeding or to be substituted for the 27 decedent in the pending action or proceeding,” and a certified copy of the decedent’s death 1 In response to a Court order (Dkt. No. 67), Dora Galindo and Juan Antonio Vargas filed a 2 declaration and Cesar Vargas’s death certificate with this Court. (Dkt. No. 70.) The declaration 3 indicates Mr. Vargas died intestate. (Dkt. No. 70 ¶ 7.) Dora Galindo and Juan Antonio Vargas are 4 Cesar Vargas’s parents. (Dkt. No. 34 ¶ 3.) California’s interstate succession statute indicates if 5 there is not a surviving spouse or children of the decedent, then a decedent’s estate passes “to the 6 decedent’s parent or parents equally.” Cal. Prob. Code § 6402(b). So, Dora Galindo and Juan 7 Antonio Vargas are the proper successors in interest for Cesar Vargas. Moreover, their declaration 8 satisfies the other requirements of California Civil Procedure Code § 377.32. Therefore, Dora 9 Galindo and Juan Antonio Vargas have standing to pursue their son’s Fourth Amendment claim. 10 Granted, Dora Galindo and Juan Antonio Vargas’s declaration was filed after the statute of 11 limitations expired. Their Fourth Amendment claim accrued on the death of Cesar Vargas on 12 October 10, 2020, (Dkt, No. 70 at 3), and is subject to a two-year statute of limitations. See 13 Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th Cir. 2018) (“Because § 1983 has no 14 specific statute of limitations, federal courts borrow state statute of limitations for personal injury 15 actions.”); Cal. Civ. Proc. Code § 335.1 (California’s personal injury statute of limitations is two 16 years); Quiroz v. Seventh Avenue Center, 140 Cal. App. 4th 1256, 1277 (2006) (applying 17 predecessor to § 335.1 to survivor claim). Dora Galindo and Juan Antonio Vargas filed their 18 required declaration on February 16, 2024, more than two years after Cesar Vargas’s death. (Dkt. 19 No. 70.) So, their declaration is untimely. 20 However, their claims are timely pursuant to the relation back doctrine. Federal Rule of 21 Civil Procedure 15 states an amendment to a pleading “relates back to the date of the original 22 pleading when: . . . the amendment asserts a claim or defense that arose out of the conduct, 23 transaction, or occurrence set out—or attempted to be set out—in the original pleading.” Fed. R. 24 Civ. Pro. 15 (c)(1)(B). Plaintiffs’ Fourth Amendment claims remain the same as the claim in their 25 original pleadings. Defendants are not prejudiced by Plaintiffs’ belated filing of the required 26 declaration. Therefore, the declaration relates back to Plaintiffs’ original complaint, and Dora 27 Galindo and Juan Antonio Vargas’s claims on behalf of Cesar Vargas are not barred by the statute 1 11878351, at *3 (S.D. Cal. Apr. 3, 2014) (holding the relation back doctrine saved a plaintiff’s 2 claims because “[t]he only difference between the claims” in the plaintiff’s original complaint and 3 after plaintiff filed the required declaration is that the plaintiff “has now submitted the requisite 4 declaration under California Code of Civil Procedure § 337.32,” and therefore the defendants 5 “cannot, and indeed they do not, claim they have been prejudiced by Plaintiff’s belated filing of 6 the Declarations”). 7 b. Rocio Anel Vargas 8 Rocio Anel Vargas is Cesar Vargas’s sister. (Dkt. No. 34 ¶ 3.) California’s intestate 9 succession statute indicates if there is not surviving spouse or children of the decedent, then a 10 decedent’s estate passes “to the decedent’s parent or parents equally.” Cal. Prob. Code § 6402(b). 11 Only “[i]f there is no surviving issue or parent” does the estate pass to the siblings of the decedent. 12 Cal. Prob. Code § 6402(c). 13 Because Cesar Vargas’s parents, Dora Galindo and Juan Antonio Vargas, survived Cesar 14 Vargas, Rocio Anel Vargas is not an intestate successor of Cesar Vargas’s complaint. Moreover, 15 Rocio Anel Vargas has not filed the required affidavit or declaration under California Civil 16 Procedure Code § 377.32. So, Rocio Anel Vargas is DISMISSED as Plaintiff for the Fourth 17 Amendment claim. 18 2. Merits 19 Defendants move for summary judgment, asserting the officers “are shielded from liability 20 for civil damages unless Plaintiff’s can overcome the Supreme Court’s two-step qualified 21 immunity inquiry.” (Dkt. No. 55 at 20.) First, the Court “ask[s] whether the facts, viewed in the 22 light most favorable to the plaintiff, demonstrate that the [officers] violated a constitutional right.” 23 Peck v. Montoya, 51 F.4th 877, 887 (9th Cir. 2022). Then, the Court asks “whether that right was 24 ‘clearly established’ at the time of the alleged constitutional violation.” Id. (quoting Tolan v. 25 Cotton, 572 U.S. 650, 656 (2014) (per curiam)). 26 a. Whether the officers violated a constitutional right 27 “In evaluating a Fourth Amendment claim of excessive force, [courts] ask whether the 1 them.” Rice v. Morehouse, 989 F.3d 1112, 1121 (9th Cir. 2021) (quoting Graham v. Connor, 490 2 U.S. 386, 397 (1989)). The “analysis must balance the nature of the intrusion upon an individual’s 3 rights against the countervailing government interests at stake, without regard for the officers’ 4 underlying intent or motivations.” S.R. Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir. 2019). 5 Courts consider the totality of the circumstances, including “(1) the ‘severity of the crime at issue,’ 6 (2) whether the suspect ‘poses an immediate threat to the safety of the officers or others,’ and (3) 7 whether the suspect ‘is actively resisting arrest or attempting to evade arrest by flight.’” Peck, 51 8 F.4th at 887 (quoting Graham, 490 U.S. at 396). Courts also consider “the availability of less 9 intrusive alternatives to the force employed and whether warnings were given.” Hopson v. 10 Alexander, 71 F.4th 692, 698 (9th Cir. 2023). Of the factors, “the ‘immediate threat to safety’ 11 factor is the most important.” Peck, 51 F.4th at 877. However, the Court “must ultimately 12 consider the totality of the circumstances ‘from the perspective of a reasonable officer on the 13 scene, rather than with the 20/20 vision of hindsight.’” Id. (quoting Graham, 490 U.S. at 396)). 14 Therefore, “[o]nly information known to the officer at the time the conduct occurred is relevant.” 15 S.R. Nehad, 929 F.3d at 1132. 16 i. Severity of the Crime at Issue 17 “The ‘character of the offense’ committed by the suspect is also ‘often an important 18 consideration in determining whether the use of force was justified.’” Glenn v. Washington Cnty., 19 673 F.3d 864, 874 (9th Cir. 2011) (quoting Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 20 2001)). In this case, dispatch informed the officers there was an attempted carjacking with a knife. 21 (Dkt. Nos. 55-8 at 8; 55-11 ¶ 4.) This report was confirmed by witnesses on the scene, who told 22 the officers “a woman had been pulled out of her vehicle” and “a knife had been held to her 23 throat,” and who identified Cesar Vargas as the perpetrator. (Dkt. Nos. 55-9 at 7-8; 55-11 ¶ 8.) 24 Carjacking is a felony under California law. Cal. Penal Code § 215. When, as here, the individual 25 is “suspected of a felony, which is by definition a crime deemed serious by the state,” the severity 26 of the crime “strongly favors” the officers. Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 27 2003). 1 lessens the severity of the crime. Specifically, Plaintiffs assert the crime’s severity was lessened 2 because “[t]he car was not gone; it was damaged and stranded on a sidewalk,” the victim “did not 3 request medical help” nor did the officers call for medical help, and the officers did not ask the 4 victim or any witnesses for a description of the knife used. (Dkt. No. 57 at 18.) Drawing all 5 inferences from the evidence in Plaintiffs’ favor, the Court will consider the knife could have been 6 very small and that the victim reported no injuries to the officers. However, even under Plaintiffs’ 7 version of events, Plaintiffs concede the “crime was reported as a carjacking with the use of a 8 knife,” and that crime “is not to be taken lightly.” (Id.) The Court agrees: even if no one was 9 injured such that medical attention was required and even if Cesar Vargas did not maintain 10 possession of the car, Mr. Vargas’s actions still constitute a felony and were a serious crime.4 11 So, this factor weighs in Defendants’ favor, as the crime at issue was a violent felony. 12 ii. Whether Cesar Vargas Posed an Immediate Threat to the Safety of the Officers or Others 13 “The use of deadly force is only reasonable if a suspect ‘poses a significant threat of death 14 or serious physical injury to the officer or others.’” S.R. Nehad, 929 F.3d at 1132-33 (quoting 15 Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014)). 16 Every reasonable trier of fact would have to find that at the time of the shooting, Cesar 17 Vargas posed an immediate threat to the safety of the officers. The officers told Mr. Vargas to 18 drop his weapon multiple times as they were chasing him. (Dkt. No. 55-6 at 2:40.) Instead of 19 20 21 4 The government urges consideration of not only the carjacking but also Mr. Vargas’s conduct towards the officers, asserting such conduct is “more important[]” because it represents “a crime 22 involving the infliction or threatened infliction of serious harm.” (Dkt. No. 55 at 22 (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). In S.R. Nehad v. Browder, the Ninth Circuit 23 explained it has “applied” the severity of the crime “factor in two slightly different ways.” 929 F.3d at 1136. The first approach focuses on “the government’s interest in apprehending criminals, 24 and particularly felons, as a factor ‘strongly’ favoring the use of force.” Id. (quoting Miller, 340 25 F.3d at 964.) This approach is consistent with considering the carjacking—a serious, violent felony—as a factor favoring Defendants. The second approach “use[s] the severity of the crime at 26 issue as a proxy for the danger a suspect poses at the time force is applied” even though “the danger a suspect posed is a separate Graham consideration.” Id. The Court will consider Mr. 27 Vargas’s conduct towards the officers under the next Graham factor—whether the suspect poses 1 following those commands, Mr. Vargas turned toward the officers and started running toward 2 Officer Delgado while armed with a knife. (Id.) Moreover, as Cesar Vargas ran toward Officer 3 Delgado, he yelled at the officers. (Dkt. Nos. 55-9 at 18; 55-11 ¶ 12; 55-1 at 2:55.) The officers 4 said, “get back” twice, but Cesar Vargas continued to run toward the officers with the knife in his 5 hand. (Dkt. No. 55-6 at 2:55.) As a result, it was reasonable for the officers to conclude Mr. 6 Vargas posed an immediate threat to their safety. See Tennessee v. Garner, 471 U.S. 1, 11–12 7 (1985) (“[I]f the suspect threatens the officer with a weapon or there is probable cause to believe 8 that he has committed a crime involving the infliction or threatened infliction of serious physical 9 harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some 10 warning has been given.”); Sabbe v. Washington Cnty. Bd. of Commissioners, 84 F.4th 807, 828 11 (9th Cir. 2023) (“Our case law is clear that when a suspect reaches for a gun or aims a weapon at 12 officers, responding with deadly force does not violate the Constitution.”). 13 Plaintiffs concede once Mr. Vargas ran toward Officer Delgado, “the factor weighs pretty 14 highly for Defendants.” However, citing to Hayes v. County of San Diego, 736 F.3d 1223, 1233 15 (9th Cir. 2013), Plaintiffs argue that Mr. Vargas was armed and moving toward the officers does 16 not necessarily entitle the officers to summary judgment. 17 In Hayes, an officer arrived at Hayes’s home “in response to a domestic disturbance call 18 from a neighbor who had heard screaming coming from the house.” 736 F.3d at 1227. Hayes’s 19 girlfriend told the officer, “[S]he and Hayes had been arguing about his attempt that night to 20 commit suicide by inhaling exhaust fumes from his car,” but there had been no physical altercation 21 between her and Hayes. Id. Instead, she was “concerned about Hayes harming himself.” Id. The 22 officers “decided to enter the house to check on Hayes’s welfare.” Id. Once inside, the officers 23 saw Hayes in the “kitchen area” with his right hand behind his back. Id. An officer ordered 24 Hayes to “show [him] his hands.” Id. Hayes took “one or two steps” towards the officer, then 25 “raised both hands . . . , revealing a large knife pointed tip down in his right hand.” Id. at 1227- 26 1228. The officer believed “Hayes represented a threat to [the officer’s] safety” and shot Hayes. 27 Id. at 1228. At the time he was shot, Hayes was “roughly six to eight feet away” from the officer 1 me to jail or you want to take me to prison, go ahead.” Id. 2 The Ninth Circuit overturned the district court’s grant of summary judgment for the 3 defendants as to the plaintiff’s negligent wrongful death claim. The Ninth Circuit explained it was 4 “undisputed that Hayes had committed no crime, and there is no evidence suggesting that Hayes 5 was ‘actively resisting arrest or attempting to evade arrest.’” Id. at 1233. Viewing the evidence in 6 the light most favorable to Hayes, “Hayes appears to have been complying with Deputy King’s 7 order to show his hands when Hayes raised his hands and revealed the knife.” Id. Moreover, 8 “[a]lthough Hayes was walking towards the deputies, he was not charging them, and had not been 9 ordered to stop.” Id. So, the court explained, Hayes “had committed no crime and had followed 10 all orders from the deputies at the time he was shot,” and therefore “Hayes’s unexpected 11 possession of the knife alone—particularly when he had committed no crime and was confronted 12 inside his own home—was not sufficient reason for the officers to employ deadly force.” Id. at 13 1233-34. 14 Hayes does not support a finding of a Fourth Amendment violation based on the 15 undisputed facts here. First, Hayes dealt only with the state law claim and did not address the 16 Fourth Amendment claim, finding the plaintiff lacked standing to bring that claim. Hayes, 736 17 F.3d at 1229 (“Because it is unclear on the present record whether Appellant has standing to assert 18 survival claims based on her father’s constitutional rights, we do not address the district court’s 19 further finding of qualified immunity in relation to the alleged Fourth Amendment violations.”). 20 Second, many relevant underlying circumstances in the two cases are different. In Hayes a trier of 21 fact could find the decedent did not charge toward the officers, was willing to be taken into 22 custody, and was not resisting arrest. No such finding is supported by the record here; instead, it 23 is undisputed Cesar Vargas yelled something at the officers and ran toward Officer Delgado while 24 armed with a knife.5 Indeed, in Hayes, the Ninth Circuit explained “threatening an officer with a 25 5 Plaintiffs assert the content of what Mr. Vargas yelled at the officer is a disputed fact because 26 “[i]t is unclear on the body cam what Mr. Vargas says” and the “somewhat inaudible words” make it a disputed fact as to what Mr. Vargas said. Even though Plaintiffs submitted a transcript 27 reflecting Mr. Vargas yelled “Bitch I’ll kill you, n****,” (Dkt. No. 60-8 at 3), the Court will 1 weapon does justify the use of deadly force.” Id. at 1234. Hayes was not a suspect in any crime; 2 Cesar Vargas was suspected of committing a violent felony. And Mr. Vargas was out on the 3 streets of a city and not inside his own kitchen. Hayes therefore does not change the Court’s 4 conclusion that it is undisputed Cesar Vargas posed an immediate risk of safety to the officers. 5 Plaintiffs argue the officers should have accessed the scene differently, and therefore could 6 have obviated the need for deadly force. They assert “it was reckless for Delgado to disregard that 7 Vargas had a knife” because Officer Delgado “didn’t know for SURE that he had dropped it, but 8 decided to do a foot pursuit and tackle anyway.” (Dkt. No. 57 at 24.) They appear to argue that if 9 Defendants had not mistakenly believed Mr. Vargas no longer had the knife, they would not have 10 left their vehicle and Mr. Vargas would not have posed an immediate danger to them. 11 But, when considering whether a particular incident violated the Fourth Amendment, 12 courts “generally focus[] on the tactical conduct at the time of shooting. . . though a prior 13 constitutional violation may proximately cause a later excessive use of force.” Tabares v. City of 14 Huntington Beach, 988 F.3d 1119, 1125 (9th Cir. 2021) (citations omitted); see also Cnty. of Los 15 Angeles, Calif. v. Mendez, 581 U.S. 420, 426 (2017) (rejecting the “provocation rule,” which 16 permitted an excessive force claim under the Fourth Amendment “where an officer intentionally 17 or recklessly provokes a violent confrontation, if the provocation is an independent Fourth 18 Amendment violation”) (cleaned up). It is undisputed the officers knew Cesar Vargas was armed 19 with a knife at the time they shot Mr. Vargas. So, at the time of the shooting, Cesar Vargas posed 20 an immediate risk to the officers. Plaintiffs identify no earlier constitutional violation that 21 proximately caused the officers’ use of force. 22 This factor weighs in Defendants’ favor. 23 iii. Whether the Cesar Vargas Was Actively Resisting Arrest or Attempting to Evade Arrest by Flight 24 Plaintiffs concede “[n]othing shows that Vargas wanted to surrender given the situation he 25 was in, i.e. being chased by a car with two police officers.” (Dkt. No. 57 at 21.) Indeed, once the 26 officers turned on the patrol car’s lights, Cesar Vargas ran away from the car. (Dkt. Nos. 55-8 at 27 1 9; 55-9 at 13; 55-11 ¶ 8.) Once the officers got out of the car to chase Mr. Vargas he continued to 2 run away, before running toward officer Delgado with a knife. (Dkt. No. 55-6 at 2:40.) A 3 reasonable trier of fact could not find Mr. Vargas obeyed the officers’ commands or surrendered to 4 the officers. So, this factor weighs in Defendants’ favor. 5 iv. The Availability of Less Intrusive Alternatives 6 Plaintiffs argue less intrusive alternatives were available, but the officers did not use such 7 alternatives because they did not appropriately assess the situation. They assert “[a]t the time they 8 arrived at the scene, Mr. Vargas wasn’t harming anyone and hadn’t even left the scene.” (Dkt. No. 9 57 at 19.) So, the officers “had more than enough time and distance to do something other than 10 shoot.” (Id. at 21.) Specifically, Plaintiffs contend “Vargas had run himself into an area that was 11 easy to box off,” as it has only two exits and “was not as crowded with people.” (Id.) Plaintiffs’ 12 expert asserts the officers should have “deploy[ed] a perimeter” meaning have a “car from the 13 opposite direction” drive up to box in Cesar Vargas in a contained area. (Dkt. No. 61-1 at 90.) 14 But Plaintiffs do not identify anything in the record that supports the expert’s opinion. How wide 15 was the street? Were there other cars or pedestrians around? How would the vehicles have 16 effectively blocked a violent suspect running on foot? 17 Further, the expert also testified he was not quibbling with the officers’ decision to leave 18 their vehicle, but only their decision not to use their vehicle doors as a shield. (Dkt. No. 61-1 at 93 19 (“I’m not critical of them getting out, but they should have used the – the doors for the – the 20 ballistic materials of the doors as a barricade.”), 99 (“I’m not critical of them getting out of the car. 21 I’m critical of them approaching him under these circumstances, whether or not they believed he 22 dropped the knife.”).) Plaintiffs do not reconcile this testimony. And, it is undisputed the officers 23 did not carry Tasers, (Dkt. Nos. 55-11 ¶ 17; 55-19 ¶ 18), the officers were not trained to use their 24 extended range impact weapon (a bean bag gun) in a foot pursuit, (Dkt. No. 61-1 at 103), at the 25 time the officers left the vehicle no other officers had arrived at the scene, (Id. at 90 (explaining 26 another police car arrived at the scene “very close after the shooting” but not before the shooting), 27 92 (Plaintiffs’ expert explaining “containment of Mr. Vargas would have been impossible absent 1 or hallucinating. (Id. at 44-45, 47.) It is also undisputed neither dispatch nor any person at the 2 scene told the officers Mr. Vargas was suffering from any kind of mental health crisis. (Dkt. Nos. 3 55-11 ¶ 13-14; 55-19 ¶ 14-15.) 4 Moreover, even accepting Plaintiffs’ theory the less intrusive alternative of “containment” 5 was available, the officers’ failure to use containment does not mean a reasonable trier of fact 6 could find the use of force unreasonable. “The calculus of reasonableness must embody 7 allowance for the fact that police officers are often forced to make split-second judgments—in 8 circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is 9 necessary in a particular situation.” Graham, 490 U.S. at 396–97. So, “[o]fficers need not avail 10 themselves of the least intrusive means of responding to an exigent situation; they need only act 11 within that range of conduct we identify as reasonable.” Glenn v. Washington Cnty., 673 F.3d 12 864, 876 (9th Cir. 2011). 13 The officers understood Mr. Vargas had recently committed a carjacking while holding a 14 knife to the victim’s throat and was walking around the streets of San Francisco armed with a 15 knife. Plaintiffs’ expert acknowledged the area where Cesar Vargas was walking around was 16 generally “highly trafficked.” (Id. at 91-92.) So, every reasonable trier of fact would have to find 17 it was reasonable for the officers to seek to apprehend Mr. Vargas as quickly as possible. (Dkt. 18 No. 61-1 at 89 (Plaintiffs’ expert explaining “[t]he necessity for containment” after a crime like a 19 carjacking because “nothing really productive can occur until [the suspect] is stopped”).) 20 Moreover, in the Ninth Circuit, while it is an unsettled question as to how much weight to 21 give to officers’ failure to employ de-escalation factors, an immediate threat to officers’ safety can 22 outweigh any consideration of whether officers employed de-escalation techniques. See Est. of 23 Strickland v. Nevada Cnty., 69 F.4th 614, 619–20 (9th Cir. 2023), cert. denied, No. 23-410, 2024 24 WL 71967 (U.S. Jan. 8, 2024) (assuming, without deciding, the fact “the officers failed to employ 25 de-escalation techniques” is relevant under the Graham factors). So, even if the officers failed to 26 employ de-escalation techniques when they should have, that fact alone cannot permit a finding of 27 unreasonable force in this instance. In Estate of Strickland, the Ninth Circuit affirmed the 12(b)(6) 1 of-force factor “is whether the suspect posed an immediate threat.” 69 F.4th at 620. The decedent 2 in Estate of Strickland was “known to officers as homeless and mentally ill” and “[a]t the time of 3 the incident, it was obvious that he was suffering from a mental health crisis.” Id. at 619. 4 Moreover, the decedent “was not under suspicion for committing a serious or dangerous crime” 5 and the officers failed to employ de-escalation techniques. Id. at 620. The Strickland decedent 6 was carrying “a plastic, airsoft replica gun,” and he ignored officers’ directions to put down the 7 gun and eventually pointed that gun in the direction of officers. Id. at 621. The Ninth Circuit 8 concluded in these circumstances, “the bulk of the Graham factors favor Strickland,” but even so, 9 “the immediacy of the threat” the decedent posed to officers “outweigh[ed] those considerations” 10 because “under the totality of the circumstances, it was objectively reasonable for the officers to 11 believe [the decedent] posed an immediate threat.” Id. at 620-23. 12 So, even if this factor favors Plaintiffs, it does not necessarily create a jury question on the 13 reasonableness of the force. 14 v. Whether Warnings Were Given 15 The officers gave Cesar Vargas multiple warnings before shooting him: as the officers 16 exited the car, they shouted “get on the ground right now,” as they chased Mr. Vargas they 17 continued to yell for him to get on the ground and show his hands, as Mr. Vargas faced the 18 officers and they saw his knife they commanded him to drop the knife and get on the ground 19 multiple times, and right before shooting the officers told Mr. Vargas to “get back” twice. (Dkt. 20 No. 55-6 at 2:40.) 21 Plaintiffs concede the officers warned Mr. Vargas before shooting him, however, Plaintiffs 22 take issue with the tone of the warnings. Plaintiffs assert the warnings were not given “in a calm 23 voice,” and “each word was loud, shouted.” (Dkt. No. 57 at 12.) They argue “tone makes a 24 difference in de-escalation,” (id.), and cite to the San Francisco Police Department’s own policies, 25 which indicate officers should, “when feasible, employ de-escalation techniques to decrease the 26 likelihood of the need to use force during an incident and to increase the likelihood of voluntary 27 compliance.” (Dkt. No. 60-4 at 5.) However, cases finding warnings insufficient generally focus 1 (“The absence of a warning or an order to halt is also a factor that influcences [sic] our decision . . 2 . [W]e simply determine that such warnings should be given, when feasible, if the use of force 3 may result in serious injury, and that the giving of a warning or the failure to do so is a factor to be 4 considered in applying the Graham balancing test.”), or find warnings to be inadequate because 5 the warning was inaudible or police deployed force before a suspect could have complied with the 6 warning. See Nelson v. City of Davis, 685 F.3d 867, 883 (9th Cir. 2012) (holding officers failed to 7 “give sufficient warnings” when the officers’ instructions to disperse could not “be heard over the 8 din of the crowd,” and there was “nothing in the record that indicates that the group was told prior 9 to the shooting how they should comply with the dispersal orders (particularly when the officers 10 were blocking their primary means of egress) or that force would be used against them if they did 11 not behave in a particular manner”). Moreover, the officers were many feet away from Mr. 12 Vargas when giving these warnings, so the volume of the warnings was likely necessary to ensure 13 Mr. Vargas could hear the warnings. Further, Plaintiffs’ expert in police procedure, Roger Clark, 14 indicated he had no opinion on the warnings the officers gave Mr. Vargas. (Dkt. No. 61-1 at 97.) 15 Given the rapidly evolving situation, a reasonable trier of fact could not find the officers warnings 16 were insufficient. 17 So, this factor weighs in favor of Defendants. 18 *** 19 In sum, drawing all reasonable inferences from the record in Plaintiffs’ favor, it is 20 undisputed nearly all the factors weigh toward finding the officers acted reasonably. The most 21 important factor, whether Cesar Vargas posed an immediate risk of threat to the officers, weighs in 22 the officers’ favor. So, a reasonable trier of fact could not find Defendants used constitutionally 23 excessive force. However, even if a reasonable trier of fact could find excessive force was used, 24 qualified immunity bars Plaintiffs’ claims against the officers for the reasons described below. 25 b. Whether the right violated was clearly established 26 “The plaintiff bears the burden of proof that the right allegedly violated was clearly 27 established at the time of the alleged misconduct.” Romero v. Kitsap Cnty., 931 F.2d 624, 627 1 asserting excessive force claims must thus point to an existing rule that ‘squarely governs’ the 2 facts at issue.”) (quoting Brosseau v. Haugen, 543 U.S. 194, 201 (2004)). “The ‘rule’s contours 3 must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the 4 situation he confronted.’” Peck, 51 F.4th at 887 (quoting City of Tahlequah, Oklahoma v. Bond, 5 595 U.S. 9, 12 (2021) (per curiam)). Moreover, “[i]n the Fourth Amendment excessive force 6 context, specificity is especially important, and thus police officers are entitled to qualified 7 immunity unless existing precedent squarely governs the specific facts at issue.” Ventura v. 8 Rutledge, 978 F.3d 1088, 1091 (9th Cir. 2020) (cleaned up). 9 As discussed above, a reasonable jury could not find Officers Roach and Delgado violated 10 Cesar Vargas’s Fourth Amendment rights. But even assuming a Fourth Amendment violation did 11 occur, Cesar Vargas has not demonstrated any such right was clearly established at the time of the 12 constitutional violation—October of 2020. In Ventura v. Rutledge, the Ninth Circuit held, as of 13 2015 (the time of the alleged constitutional violation in that case), “no controlling precedent had 14 clearly establish[ed] that [an individual’s] right under the Fourth Amendment to be free from the 15 excessive use of deadly force by police would be violated when he was shot and killed as he 16 advanced toward an individual he had earlier that day assaulted, while carrying a drawn knife and 17 while defying specific police orders to stop.” 978 F.3d at 1090. While Cesar Vargas was not 18 advancing “toward an individual he had earlier that day assaulted,” and instead was advancing 19 toward police officers, the case is otherwise factually similar to this case. In Ventura, an officer 20 responded to a report of a “violence domestic disturbance.” Id. at 1091. When the officer arrived 21 at the scene, the suspect was not present. Id. at 1090. The officer started interviewing witnesses, 22 when the suspect “started walking up the street toward the home,” ignoring the officer’s orders to 23 “stop.” Id. The suspect then “took out a knife from his pocket” and continued to approach the 24 witness the officer had been interviewing. Id. The officer “shouted a warning . . . to ‘stop or I’ll 25 shoot,” but the suspect did not stop and was within 10-15 feet of the witness. Id. The officer then 26 shot the suspect, killing him. Id. 27 Much like Ventura, the officers suspected Cesar Vargas committed a violent crime, Mr. 1 times but Mr. Vargas ignored those warnings, Mr. Vargas was approaching the officers, and, at the 2 time of the shooting, Mr. Vargas was a similar distance away from the officers as the Ventura 3 decedent was from the witness. (Dkt. No. 55-23 at 13 (Cesar Vargas was approximately 16.4 feet 4 away from Officer Delgado at the time he was shot).) Moreover, Cesar Vargas was running 5 toward the officers while the suspect in Ventura was walking toward the witness. See also Kisela 6 v. Hughes, 138 S. Ct. 1148, 1154 (2018) (holding, as of 2010 in the Ninth Circuit, it was not 7 clearly established the use of deadly force was unconstitutional when the decedent “was armed 8 with a large knife” and was “within striking distance” of another person, and “ignored the officers’ 9 orders to drop the weapon,” and “the situation unfolded in less than a minute”). 10 Plaintiffs have not provided any cases from 2015 to 2020 that change this analysis. The 11 Court has likewise been unable to find any such case. So, qualified immunity immunizes the 12 officers’ conduct. 13 Plaintiffs cite to Allen v. Muskogee, Okl., 119 F.3d 837, 839 (10th Cir. 1997), asserting 14 officers’ “use of force is unreasonable if the officer[s] recklessly got [themselves] into the 15 situation.” (Dkt. No. 57 at 16.) Allen does not defeat qualified immunity. First, this case is 16 merely persuasive, not controlling on this Court, and therefore this case alone cannot establish 17 “clearly established law.” See D.C. v. Wesby, 583 U.S. 48, 63 (2018) (“To be clearly established” 18 the “rule must be settled law, . . . which means it is dictated by controlling authority or a robust 19 consensus of cases of persuasive authority.”) (cleaned up). Second, the facts of Allen differ 20 significantly from this case. In Allen, officers received a report “Mr. Allen was armed and had 21 threated family members,” and there was a warrant for his arrest for impersonating an officer. 22 Allen, 119 F.3d at 839. Officers later learned “Mr. Allen was threatening suicide.” Id. Mr. Allen 23 was sitting in his car, with a gun in his right hand, as officers approached. Id. Officers told Mr. 24 Allen to drop his gun, then an officer “reached into the vehicle and attempted to seize Mr. Allen’s 25 gun.” Id. Mr. Allen then “swung the gun” toward the officers, and the officers shot and killed Mr. 26 Allen. Id. The Tenth Circuit explained a trier of fact could fine the officers “ran ‘screaming’ up 27 to” the decedent’s car and “immediately began shouting.” Id. at 841. Because the “entire incident 1 so ‘immediately connected’ to Mr. Allen’s threat of force that they should be included in the 2 reasonableness inquiry,” and therefore “a reasonable jury could conclude on the basis of some of 3 the testimony presented that the officers’ actions were reckless and precipitated the need to use 4 deadly force.” Id. (cleaned up). 5 Allen does not put the officers on notice their conduct in this case was reckless, as there are 6 significant factual differences between this case and Allen. See Waid v. Cnty. of Lyon, 87 F.4th 7 383, 392 (9th Cir. 2023) (“Because none of the cases on which plaintiffs rely are sufficiently 8 analogous, we conclude that they cannot put a reasonable officer on notice that the use of deadly 9 force here would be unconstitutional.”). In Allen, the officers were aware Allen was threatening 10 suicide, Allen did not threaten or spring towards officers, Allen was not a suspect in a recent 11 violent crime, and Allen was closed off in his car and not walking in a public area towards other 12 people. See also Est. of Ceballos v. Husk, 919 F.3d 1204, 1209 (10th Cir. 2019) (finding no 13 qualified immunity, citing Allen, because an officer “shot and killed an emotionally distraught 14 [man] within a minute of arriving on scene,” and under the plaintiff’s version of facts, the officer 15 “approached” the decedent “quickly” while screaming and “refusing to give ground” as the 16 decedent approached the officers with a baseball bat); City of Tahlequah, Oklahoma v. Bond, 595 17 U.S. 9, 10-13 (2021) (finding officers conduct was not unlawful when officers shot a man armed 18 with a hammer after decedent ignored their commands to drop the hammer and decedent “raised 19 the hammer . . . and took a stance as if he was about to throw the hammer or charge at the 20 officers” because Allen was distinguishable since “the officers in Allen responded to a potential 21 suicide call by sprinting toward a parked car, screaming at the suspect, and attempting to 22 physically wrest a gun from his hand”). 23 Plaintiffs again cite to Hayes v. City of San Diego, but this time to the California Supreme 24 Court opinion on the case, 57 Cal. 4th 622 (2013), for the proposition “liability can arise from the 25 tactical conduct and decisions made by law enforcement preceding the use of deadly force.” (Dkt. 26 No. 57 at 17.) In Hayes, the Ninth Circuit certified a question about California state negligence 27 law to the California Supreme Court, and the California Supreme Court analyzed “[w]hether under 1 enforcement preceding the use of deadly force.” 57 Cal. 4th at 626. The Court answered the 2 question in the affirmative, determining, as a matter of California negligence law, negligence 3 “liability can arise if the tactical conduct and decisions leading up to the use of deadly force show, 4 as part of the totality of circumstances, that the use of deadly force was unreasonable.” Id. 5 However, the California Supreme Court carefully cabined its ruling to state negligence law, 6 explaining “state negligence law . . . considers the totality of the circumstances surrounding any 7 use of deadly force,” and therefore “is broader than federal Fourth Amendment law, which tends 8 to focus more narrowly on the moment when deadly force is used.” Hayes, 57 Cal. 4th at 639; 9 see also Tabares, 988 F.3d at 1125 (explaining “California negligence law regarding the use of 10 deadly force” is broader than the Fourth Amendment because California negligence law considers 11 “the officer’s pre-shooting decisions” while “[f]ederal law . . . generally focuses on the tactical 12 conduct at the time of shooting, though a prior constitutional violation may proximately cause a 13 later excessive use of force”) (cleaned up). 14 Plaintiffs assert, citing Tabares, “the issue of reasonableness should go to the jury” and 15 requires consideration of whether “the officers should have known the suspect had mental health 16 issues or at least considered it,” based on the officers’ training. (Dkt. No. 57 (citing Tabares, 988 17 F.3d 1119.) But the plaintiff in Tabares “appeal[ed] only the state negligence claim,” so the Ninth 18 Circuit did not consider whether these same factors are relevant to a Fourth Amendment, as 19 opposed to a California state negligence law claim. Tabares, 988 F.3d at 1122. 20 Plaintiffs’ other case citations are also inapposite, as the factual scenarios in those cases 21 differ significantly from the factual scenario in this case, and many of the cases find no 22 constitutional violation at all. See Green v. City & Cnty. of San Francisco, 751 F.3d 1039, 1046- 23 47 (9th Cir. 2014) (reversing summary judgment decision because “it [could not] be established as 24 a matter of law whether or not reasonable suspicion existed to justify the investigatory detention” 25 during a traffic stop where suspect was held “at multiple gunpoints, handcuffed, and directed to 26 her knees”); Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1170 (9th Cir. 2013) 27 (denying qualified immunity to a group of officers after decedent was shot while “adequately 1 501, 207 P.3d 506 (2009) (holding a “federal judgment” for the defendants on a civil rights claim 2 brought under § 1983 “collaterally estops plaintiffs from pursuing their wrongful death claim, 3 even on the theory that the officers’ preshooting conduct was negligent”); Young v. City of Killeen, 4 Tex., 775 F.2d 1349, 1352 (5th Cir. 1985) (holding there was “no constitutional deprivation” 5 because the district court only found “force would have been avoided if” the officer had 6 approached the decedent “as required by proper police procedures,” however, “If [the decedent’s] 7 movements gave [the officer] cause to believe that there was a threat of serious physical harm, [the 8 officer’s] use of deadly force was not a constitutional violation. . . The only fault found against 9 [the officer] was his negligence in creating a situation where the danger of such a mistake would 10 exist. We hold that no right is guaranteed by federal law that one will be free from circumstances 11 where he will be endangered by the misinterpretation of his acts.”). 12 Finally, at oral argument, Plaintiffs argued “qualified immunity does not protect 13 recklessness,” and because a reasonable trier of fact could find the officers acted recklessly, it was 14 not necessary for Plaintiffs to provide a case demonstrating the constitutional violation was 15 “clearly established.” But, neither of the two cases Plaintiffs cited for this proposition—Tennessee 16 v. Garner, 471 U.S. 1, (1985) and Graham v. Connor, 490 U.S. 386 (1989)—carve out such a 17 “reckless” exception to qualified immunity. Tennessee v. Garner did not consider the issue of 18 qualified immunity, as the individual officers had already been dismissed from the case and the 19 Supreme Court considered only the issue of the city’s liability under Monnell. Garner, 471 U.S. 20 at 5-7 (citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, (1978)). Graham 21 also did not consider qualified immunity. Graham, 490 U.S. at 399 n.12 (“Since no claim of 22 qualified immunity has been raised in this case, however, we express no view on its proper 23 application in excessive force cases that arise under the Fourth Amendment.”). 24 So, Plaintiffs have failed to demonstrate the officers violated a “clearly established right,” 25 and therefore the officers’ conduct is immunized by qualified immunity. As a result, Defendants’ 26 motion for summary judgment is GRANTED as to Plaintiffs’ Fourth Amendment claim. 27 B. Fourteenth Amendment 1 1. Standing 2 In Moreland, the Ninth Circuit held “[r]egardless of whether [plaintiffs] have standing to 3 assert a Fourth Amendment claim based on [their child’s] death, they each may assert a Fourteenth 4 Amendment claim based on the related deprivation of their liberty interest arising out of their 5 relationship with” their child because “[t]his substantive due process claim may be asserted by 6 both the parents and children of a person killed by law enforcement officers.” Moreland, 159 F.3d 7 at 369. So, Dora Galindo and Juan Antonio Vargas have standing to assert a § 1983 claim based 8 on the Fourteenth Amendment because of their “constitutionally liberty protected liberty interest 9 in the companionship and society of [their] child.” Ward v. City of San Jose, 967 F.2d 280, 283 10 (9th Cir. 1991), as amended on denial of reh’g (June 16, 1992). 11 However, Rocio Anel Vargas is Cesar Vargas’s sibling, not Cesar Vargas’s parent or child. 12 Siblings do not “possess a cognizable liberty interest in their [sibling’s] companionship,” and 13 therefore siblings are not proper plaintiffs in § 1983 claims asserting a violation of the Fourteenth 14 Amendment based on the liberty interest of familial association. Ward, 967 F.2d at 284 (“Neither 15 the legislative history nor Supreme Court precedent supports an interest for siblings consonant 16 with that recognized for parents and children.”). So, Rocio Anel Vargas is DISMISSED as 17 Plaintiff as to this claim. 18 2. Merits 19 The Due Process Clause of the Fourteenth Amendment provides that a State may not 20 “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. 21 XIV, § 1. The Supreme Court has held Fourteenth Amendment guarantees “certain substantive 22 rights.” Peck v. Montoya, 51 F.4th 877, 892 (9th Cir. 2022) (citing Washington v. Glucksberg, 23 521 U.S. 702, 719 (1997)). The Ninth Circuit has interpreted these substantive rights to include 24 parents’ right “to the companionship of a child, which a police officer violates by ‘act[ing] with a 25 purpose to harm’ the child ‘that [is] unrelated to legitimate law enforcement objectives.’” Johnson 26 v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1168–69 (9th Cir. 2013) (quoting Porter v. 27 Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). 1 Plaintiffs assert Defendants violated Mr. Vargas’s right of “[f]reedom from a deprivation 2 of liberty without due process of law.” (Dkt. No. 34 ¶ 39.) Defendants, citing Peck v. Montoya, 3 F.4th 877 (9th Cir. 2022), and Graham v. Connor, 490 U.S. 386, 388 (1989), assert “the Supreme 4 Court has unequivocally proclaimed that ‘all claims that law enforcement officers have used 5 excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of 6 a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, 7 rather than under a ‘substantive due process’ approach.” Peck, 51 F.4th at 892 (citing Graham, 8 490 U.S. at 395). To the extent Plaintiffs are asserting a Fourteenth Amendment survival claim 9 based on the force directed at Cesar Vargas, that claim is foreclosed. Id. 10 However, the Ninth Circuit has interpreted “Graham to limit only claims brought by ‘the 11 person who claims excessive force was directed at him,’ leaving open the possibility of 12 substantive due process claims by a parent or child who claims ‘loss of the companionship and 13 society’ of the decedent.” Id. (quoting Curnow By & Through Curnow v. Ridgecrest Police, 952 14 F.2d 321, 325 (9th Cir. 1991)). 15 But Plaintiffs do not plead such a loss of companionship claim. (See Dkt. No. 34.) Nor do 16 Plaintiffs defend their Fourteenth Amendment claim in their opposition to Defendants’ motion for 17 summary judgment. (See Dkt. Nos. 57, 63.) Moreover, the evidence does not support such a 18 claim. “To determine whether a violation of substantive due process occurred, we look to whether 19 the officers’ conduct deprived [Plaintiffs] of [their] familial interest in a manner that ‘shocks the 20 conscience.’” Peck, 51 F.4th at 893 (quoting Hayes v. Cnty. of San Diego, 736 F.3d 1223, 1230 21 (9th Cir. 2013)). “In cases like this, where officers must react quickly to a rapidly changing 22 situation, the test is whether the officers acted with a purpose of causing harm unconnected to any 23 legitimate law enforcement objective.” Jones v. Las Vegas Metro. Police Dep’t, 873 F.3d 1123, 24 1133 (9th Cir. 2017); see also Peck, 51 F.4th at 893 (explaining the “purpose-to-harm standard” 25 applies when police officers are “confronting a threatening, armed suspect”). Moreover, “the 26 purpose-to-harm standard can apply even where ‘the officer may have helped to create an 27 emergency situation by his own excessive actions.’” Peck, 51 F.4th at 894 (quoting Porter v. 1 officers acted with a purpose of harming” Cesar Vargas “that was unconnected to a legitimate law 2 enforcement objective.” Jones, 873 F.3d at 1133. Moreover, as this Court found the officers’ 3 actions did not constitute excessive force under the Fourth Amendment, then necessarily the 4 officers’ conduct did not “shock the conscience.” See Schwarz v. Lassen Cnty. ex rel. Lassen 5 Cnty. Jail, 628 F. App’x 527, 528 (9th Cir. 2016)(“Recovery for a violation of the right to familial 6 association is generally contingent on the existence of an underlying constitutional violation.”). 7 So, Defendants’ motion for summary judgment is GRANTED as to Plaintiffs’ 42 U.S.C. § 8 1983 cause of action based on the Fourteenth Amendment. 9 C. First Amendment 10 “There are two distinct forms of freedom of association: (1) freedom of intimate 11 association, protected under the Substantive Due Process Clause of the Fourteenth Amendment; 12 and (2) freedom of expressive association, protected under the Freedom of Speech Clause of the 13 First Amendment.” Erotic Serv. Provider Legal Educ. & Rsch. Project v. Gascon, 880 F.3d 450, 14 458 (9th Cir.), amended, 881 F.3d 792 (9th Cir. 2018); see also Keates v. Koile, 883 F.3d 1228, 15 1236 (9th Cir. 2018) (“[W]e have held that claims under both the First and Fourteenth 16 Amendment for unwarranted interference with the right to familial association could survive a 17 motion to dismiss.”). 18 Plaintiffs do not plead any facts supporting a First Amendment claim in their first amended 19 complaint. (See Dkt. No. 34 ¶¶ 34-43.) Plaintiffs also do not defend their First Amendment claim 20 in their opposition. (See Dkt. Nos. 57, 63.) Moreover, while there is no controlling Ninth Circuit 21 case indicating the standards for assessing First Amendment freedom of association claims in this 22 context, courts in this district have assessed First Amendment “familial association claims using 23 the same substantive legal standards” as Fourteenth Amendment familial association claims. Est. 24 of Sanchez v. Cnty. of Stanislaus, No. 118CV00977ADABAM, 2023 WL 7612399, at *27 (E.D. 25 Cal. Nov. 14, 2023); see also Garcia v. Cnty. of Napa, No. 21-CV-03519-HSG, 2023 WL 355148, 26 at *9, *9 n.14 (N.D. Cal. Jan. 17, 2023) (analyzing the plaintiffs’ “loss of familial association 27 claim,” brought under both the First Amendment and the Due Process Clause of the Fourteenth 1 Plaintiffs’ Fourteenth Amendment claim fails, Plaintiffs’ First Amendment claim fails. 2 *** 3 In sum, the Court GRANTS Defendants’ motion for summary judgment as to Plaintiffs’ 4 first cause of action, brought under 42 U.S.C. §§ 1983, 1985, and 1988, alleging Officers Roach 5 and Delgado violated Cesar Vargas’s First, Fourth, and Fourteenth Amendment Rights. 6 IV. REMAINING CLAIMS 7 A. Bane Act Claim 8 Defendants moved for summary judgment on Plaintiffs’ Bane Act claim, California Civil 9 Code § 52.1. The Bane Act provides “[a]ny individual whose exercise or enjoyment of rights 10 secured by the Constitution or laws of the United States, or of rights secured by the Constitution or 11 laws of this state, has been interfered with” by “threat, intimidation, or coercion,” may “prosecute 12 in their own name and on their own behalf a civil action for damages.” Cal. Civ. Code § 52.1(b)- 13 (c). “The elements of a Bane Act claim are essentially identical to the elements of a § 1983 claim, 14 with the added requirement that the government official had a ‘specific intent to violate’ a 15 constitutional right.” Hughes v. Rodriguez, 31 F.4th 1211, 1224 (9th Cir. 2022) (quoting Reese v. 16 Cnty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018)). 17 Plaintiffs’ complaint alleges the officers violated the Bane Act because they “inflicted 18 violence and conspired, aided, abetted and incited the infliction of violence against the decedent 19 Vargas by reason of his national ancestry, ethnic origin and race and thereby harmed each 20 plaintiff.” (Dkt. No. 34 ¶ 67.) However, Plaintiffs present no evidence the officers were 21 motivated by Cesar Vargas’s national ancestry, ethnic origin, or race. In their opposition, 22 Plaintiffs do not defend their Bane Act claim except to argue the officers’ actions “were contrary 23 to the U.S. Constitution 4th Amendment, California Statutes, Police Training manuals (POST), and 24 the General Orders of the City and County of San Francisco through its police department,” and 25 the “same arguments apply to the plaintiffs’ allegations under the Bane Act.” (Dkt. No. 57 at 6.) 26 Plaintiffs also do not mention or explain their Bane Act claim in their supplemental brief. Since 27 the Court dismisses Plaintiffs’ § 1983 claim, and Plaintiffs have not identified any other 1 Defendants’ motion for summary judgment on Plaintiffs’ Bane Act claim is GRANTED. 2 B. Other State Law Claims 3 Having granted summary judgment as to Plaintiffs’ only federal cause of action, the Court, 4 in its discretion, declines to assert supplemental jurisdiction over the remaining state law claims. 5 “A district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has dismissed all claims 6 over which it has original jurisdiction.’” Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th 7 Cir. 2010) (quoting 28 U.S.C. § 1367(c)(3)). “[I]n the usual case in which all federal-law claims 8 are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction 9 doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to 10 exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 11 U.S. 343, 350 n.7 (1988). 12 The Court declines to assert supplemental jurisdiction, finding, after considering judicial 13 economy, convenience, fairness, and comity, the balance of the factors weighs toward dismissing 14 without prejudice the remaining state law claims. Plaintiffs’ remaining state law claims require 15 analysis into specific state law and are not resolved by the dismissal of Plaintiffs’ federal claims. 16 Both the Ninth Circuit and California Supreme Court have held California’s state negligence law, 17 as applied to excessive force cases, is broader than Fourth Amendment law. See Hayes, 57 Cal. 18 4th at 639 (“[S]tate negligence law, which considers the totality of the circumstances surrounding 19 any use of deadly force . . . , is broader than federal Fourth Amendment law, which tends to focus 20 more narrowly on the moment when deadly force is used.”) (cleaned up); Tabares, 988 F.3d at 21 1128 (“California negligence law overall is ‘broader than federal Fourth Amendment law’ in 22 excessive force cases.”) (citing C.V. by & through Villegas v. City of Anaheim, 823 F.3d 1252, 23 1257 (9th Cir. 2016)). Plaintiffs’ state law claims also implicate state law immunities. See, e.g., 24 Gilmore v. Superior Ct., 230 Cal. App. 3d 416, 420 (Ct. App. 1991) (explaining, in California, 25 “there is no civil liability for a justifiable homicide”). Given that no federal claims remain, the 26 Court declines to decide these issues of purely state law. See also Tabares, 988 F.3d at 1131 n.7 27 (explaining, after reversing a district court’s grant of summary judgment to the defendant on the 1 supplemental jurisdiction over the state-law claim[ | and allow plaintiff[ | to bring [it] in state 2 || court,” because the district court had previously dismissed the only federal claim) (cleaned up). 3 Depot, Inc. v. Caring for Montanans, Inc., 915 F.3d 643, 668-69 (9th Cir. 2019) (“We note, 4 however, that because we affirm the dismissal of plaintiffs’” federal “claims, the district court is 5 also free on remand to decline to exercise supplemental jurisdiction over the state-law claims and 6 || allow plaintiffs to bring them in state court.”); Trustees of Constr. Indus. & Laborers Health & 7 Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 926 (9th Cir. 2003) (“It is 8 thus no surprise that our cases upholding the exercise of discretion under § 1367(c)(3) have all 9 involved dismissals for failure to state a claim or a grant of summary judgment to the defendant on 10 || the federal claim. . . In each case, we held that it was appropriate for the district court to decline 11 || jurisdiction over the supplemental state claims because the federal claim had proven to be 12 || unfounded.”). 5 13 So, the Court DISMISSES Plaintiffs’ remaining state law clams WITHOUT |) PREJUDICE. 3 15 CONCLUSION a 16 For the reasons discussed above, the Court GRANTS Defendants’ motion for summary 3 17 || judgment as to Plaintiffs’ first cause of action, brought under 42 U.S.C. § 1983, and Plaintiffs’ 18 fifth cause of action, brought under California Civil Code § 52.1 (the Bane Act). All remaining 19 || claims are DISMISSED WITHOUT PREJUDICE. 20 This order disposes of Dkt. Nos. 54, 55, 66. 21 IT IS SO ORDERED. 22 || Dated: February 27, 2024 24 ne 25 JAGQQUELINE SCOTT CORL United States District Judge 26 27 28