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FERNANDEZ BONILLA v. CITY OF SAN DIEGO

January 1, 1991

LUIS FERNANDEZ BONILLA, Plaintiff,
v.
CITY OF SAN DIEGO, et al., Defendants



The opinion of the court was delivered by: BREWSTER

 RUDI M. BREWSTER, UNITED STATES DISTRICT JUDGE

 The above captioned matter came on regularly for hearing on November 26, 1990. Marco E. Lopez, Esq., and Donald L. Levine, Esq., appeared for plaintiff; Donald F. Shanahan, Esq., appeared for the federal defendants; and Michael R. McGuinness, Esq., and Kenneth K. So, Esq., appeared for the city defendants. Upon consideration of the motion for summary judgment brought by the federal and city defendants, the court hereby enters the following order and memorandum opinion.

 I. STATEMENT OF THE CASE

 Based on his version of events, plaintiff filed the instant suit, alleging the following six causes of action: (1) violation of civil rights under § 1983 against city officers; (2) violation of civil rights under § 1983 against City of San Diego; (3) battery against city officers and City of San Diego; (4) negligence against city officers and City of San Diego; (5) negligent hiring, training, retention, and supervision against City of San Diego; (6) violation of plaintiff's constitutional rights pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), against the federal agents.

 The central issue before the court on this Motion for Summary Judgment is whether, under the undisputed facts of this case, the defendants are immune from suit for inflicting the injuries suffered by plaintiff. The court concludes that the officers are immune, and that summary judgment should be granted in their favor.

 II. REVIEW OF THE EVIDENCE

 The BCPU was formed in 1984 to combat the violence perpetrated against Mexican citizens attempting to enter the United States illegally. Declaration of Dana Cunningham ("Cunningham Declaration"), p. 2, para. 4. The specific purpose of the BCPU, as opposed to the United States Border Patrol generally, is to combat violence committed against undocumented immigrants rather than to seek the arrest and deportation of such immigrants. Declaration of Stephen M. Stone ("Stone Declaration"), p. 1-2, para. 2; Declaration of Celso G. Cueva ("Cueva Declaration"), p. 3-4, para. 2; Declaration of John B. Bailey ("Bailey Declaration"), p. 1-2, para. 2.

 The BCPU is comprised of Border Patrol agents and San Diego City police officers, working in teams that patrol the border region in the United States. Cunningham Declaration, p. 1, para. 3. On the night in question, three city officers and three federal agents were patrolling the border area as members of the BCPU. Id. at p. 2, para. 6. The BCPU members were not dressed to appear as undocumented aliens, nor were they instructed to act as "decoys" to lure border bandits into criminal activity. See Declaration of Michael McGuiness, Exhibit C, pp. 223, 227. *fn1"

 During the BCPU's patrol on the night in question, Plaintiff and his two companions were observed walking on a dirt trail that was parallel to the sign-cut road on which the BCPU was traveling. Cunningham Declaration, p. 3, para. 9; Declaration of Raymond Montoya ("Montoya Declaration"), p. 2, para. 5-6; Declaration of James Eliason ("Eliason Declaration"), p. 1, para. 3; Stone Declaration, p. 2, para. 3; Cueva Declaration, p. 4, para. 3; Bailey Declaration, p. 2, para. 4. A sign-cut road is a generally north-south unmarked trail which passes through the hills near the border area.

 While moving in this parallel direction, plaintiff and his two companions quickened their pace in an apparent effort to reach the intersection of the dirt trail upon which they were traveling and the sign-cut road upon which the BCPU was traveling. Cunningham Declaration, p. 3, para. 12; Montoya Declaration, p. 2, para. 7-8; Eliason Declaration, pp. 1-2, para. 3-4. As the BCPU approached the intersection, plaintiff and his companions were standing in plain view in the center of the sign-cut road. Declaration of Donald Levine ("Levine Declaration"), Exhibit A, pp. 448-49; *fn2" Cunningham Declaration, p. 3, para. 13; Cunningham Declaration, p. 3, para. 13; Montoya Declaration, p. 2, para. 7.

 Defendants claim that as the BCPU approached, one of plaintiff's companions turned and said, "No te muevas, cabron" ("Don't move, fucker"), indicating to the agents that plaintiff and his two companions intended to rob them, apparently believing the Unit was comprised of undocumented immigrants. Montoya Declaration, p. 2, para. 11; Eliason Declaration, p. 2, para. 5; Stone Declaration, p. 2, para. 4; Cueva Declaration, p. 4, para. 4; Bailey Declaration, p. 2, para. 5.

 According to defendants, as the individual made the threat, he simultaneously reached into his waistband and pulled out an object which appeared to be a handgun. Montoya Declaration, p. 2, para. 14; Stone Declaration, p. 2, para. 4; Cueva Declaration, p. 4, para. 4; Bailey Declaration, p. 2, para. 5. At the same time, plaintiff and his other companion began to encircle the BCPU, and plaintiff also pulled out what appeared to be a handgun. Montoya Declaration, p. 2, para. 15. Allegedly fearing for their lives, the BCPU officers then drew their own weapons and fired at the three individuals. Id. at ...


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