V. CONCLUSIONS OF LAW
1. Because the alleged constitutional deprivation in this case centers on the BCPU officers' use of excessive force, the first frame of reference for the court is the "reasonableness" test of the fourth amendment. Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443 (1989); Reed v. Hoy, 891 F.2d 1421, 1423 (9th Cir. 1989). Based upon the four findings of fact listed above, the BCPU officers acted reasonably in responding with deadly force to the apparent threat posed by plaintiff and his two companions.
2. However, even assuming arguendo that the officers' behavior constituted excessive force under the fourth amendment, the court concludes that the conduct would still be shielded by qualified immunity.
Conduct which is unreasonable under the fourth amendment may still be reasonable under the qualified immunity test. See Anderson v. Creighton, 483 U.S. 635, 643, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1986).
As the Supreme Court has stated, "Government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); see also Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986) (qualified immunity shields "all but the plainly incompetent or those who knowingly violate the law").
Applying the "objective reasonableness" test of Harlow, it is clear that the conduct of the BCPU officers in this case was objectively reasonable under pre-existing law. The evidence described above indicates that the officers were confronted by a situation in which a reasonable person could perceive that a dangerous threat existed. Accordingly, "in the light of the pre-existing law the unlawfulness [of the officers' response]" was not "apparent." Anderson, 483 U.S. at 640.
3. Based upon these conclusions of law, summary judgment should be granted to all defendants named in the first (§ 1983) and sixth causes of action (Bivens), since the defendants' conduct did not constitute excessive force, and was also shielded by qualified immunity.
4. The City of San Diego is also entitled to summary judgment as to the second cause of action, which alleges municipal liability under § 1983, because plaintiff has presented no competent evidence demonstrating that the BCPU officers deprived him of his constitutional rights pursuant to the city's policy or custom. Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 692, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Plaintiff may not rest his claim on general, unsupported or frivolous allegations of unconstitutional practice or pattern. Oklahoma City v. Tuttle, 471 U.S. 808, 823, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985).
Based on the undisputed evidence presented in this case, the City's hiring and training procedures with respect to the BCPU do not recommend, endorse, or encourage the unwarranted use of deadly force. See Declaration of Raul D. Bejarano, pp. 3-4, para. 7-8.
5. For identical reasons, the City is also entitled to summary judgment on the fifth cause of action, alleging negligence in the hiring, training, and supervision of its officers. Again, plaintiff has presented no competent evidence rebutting the Bejarano Declaration.
6. Based on the undisputed facts of this case, plaintiff's third cause of action, alleging battery, must fail. A battery is any intentional, unlawful, and harmful contact by one person with the person of another. 5 Witkin, Summary of California Law, (9th ed. 1988) § 347, p. 437. However, self-defense is appropriate in order to protect oneself from wrongful injury. Cal. Civil Code § 50. The force that one may use in self-defense is that which "reasonably appears necessary, in view of all of the circumstances of the case." Vaughn v. Jonas, 31 Cal. 2d 586, 600, 191 P.2d 432 (1948). The court concludes from all of the declarations filed herein that defendants' use of force in this case was reasonably necessary as a matter of law under all of the circumstances, and that the plaintiff has failed to establish a colorable issue of fact on these issues.
7. For similar reasons, the court concludes that all defendants are entitled to summary judgment on the fourth cause of action, which alleges negligence. In responding to the threat posed by plaintiff and his companions on the night in question, defendants used reasonable care for all of the reasons stated above.
8. The Motion to Dismiss brought by defendant Dana Cunningham is unopposed and is granted. Defendant Cunningham never fired her weapon. The liability of federal officials for governmental acts can be predicated only on the personal involvement of the defendant in the alleged wrong. Sportique Fashions, Inc. v. Sullivan, 597 F.2d 664, 666 (9th Cir. 1979).
9. The court has taken into consideration all declarations and evidence filed by the parties, with the exception of the newspaper article discussed in note 5, supra. Without ruling on the merits of defendants' Motion to Strike certain items of evidence, the court denies the motion as moot. The court concludes that even if the disputed matters are considered in plaintiff's favor, they do not alter the court's findings of fact and conclusions of law.
Based upon all of the above, defendants' motion for summary judgment is granted.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE - January 4, 1991, Filed
Decision by Court. This action came to hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that defendants' motion for summary judgment is granted.