was unarmed. However, the Court found that the officer's belief that the suspect posed a threat of injury was not unreasonable. Id. at 500
These cases all support the general principle that an officer may reasonably use deadly force when he or she confronts an armed suspect in close proximity whose actions indicate an intent to attack. In these circumstances, the Courts cannot ask an officer to hold fire in order to ascertain whether the suspect will, in fact, injure or murder the officer. The high numbers of officer mortalities in recent years illustrate the unreasonableness of such a notion.
Where the suspect was confronted by an armed police officer, and failed to heed the officer's request to drop a weapon, Jackson reasonably believed that "the suspect pose[d] a threat of serious physical harm either to the officer or to others." Garner, 471 U.S. at 11.
Denise and Jeanette Reynolds cite Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992) in support of their opposition to the summary judgment motion. In Hopkins, the Ninth Circuit reversed the district court's grant of summary judgment. However, Hopkins can be distinguished from the case at bar.
In Hopkins, the officer alleged that the suspect grabbed his baton and struck him 10 or 20 times, including on the head. The officer then pulled his gun and shot the suspect six times. The officer then retreated across the street, called for backup, and reloaded his gun. The suspect pursued the officer across the street. The officer got behind a car and shot the suspect four more times, killing him.
In Hopkins the suspect had already been shot six times, was unarmed, and was some distance from the officer when the officer fired the fatal shots. In Hopkins, it was not reasonable for the officer to believe that a seriously injured, unarmed suspect "posed a threat of serious physical harm." In the case at bar, there is uncontroverted evidence that Reynolds was armed and in a position to inflict grave bodily harm on Jackson at the time Jackson fired his gun.
C. There are No Material Facts in Controversy
Plaintiffs contend that summary judgment is inappropriate because there are controverted facts. This contention is not, however, supported by the record.
1. Expert Opinion as to Whether Actions Were Reasonable Does Not Present A Triable Issue of Fact
Plaintiffs have retained experts who contend that Jackson could have taken other actions in his confrontation with Reynolds. They allege that by talking softly to the suspect or waiting for a backup, Jackson might have avoided putting himself in a situation where Reynolds posed a serious threat of physical injury. (Reiter Depo. at 116 and 165). However, this position ignores the Supreme Court's holding in Hunter v. Bryant, 112 S. Ct. at 536-37. There, the Court held that the fact that experts disagreed with the officer's actions did not render the officer's actions 'unreasonable.' Rather, the Court held the question is not "whether another reasonable, or more reasonable, interpretation of events can be constructed . . . after the fact." Id. Plaintiffs' experts do not contend that Jackson acted unreasonably by firing at the suspect when Reynolds picked up his knife and lunged toward the officer. At that point, Reynolds had no way of knowing that Reynolds was psychologically impaired, nor does that fact in any way affect the threat that Reynolds posed to the officer.
Furthermore, under Act Up!/ Portland v. Bagley, 988 F.2d 868, 872 (9th Cir. 1993) "if a reasonable officer could have believed that [an officer's actions] were justified" the officer is entitled to qualified immunity. "This is so notwithstanding that reasonable officers could disagree on this issue . . . " Id. at 872 (citing Malley v Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). Thus, the fact that an expert disagrees with the officer's actions does not preclude a finding that the officer is entitled to immunity.
2. Inconsistencies Regarding Jackson's Attempts to Kick Reynolds
Second, Plaintiffs contend that there is a factual controversy. Jackson claims he attempted to kick the weapon away from Reynolds. One eye-witness says he did not see the officer attempt to kick the gun away. In addition, Jackson's original statement to the homicide detectives did not mention a kick. This fact, however, does not materially impact a determination of whether Jackson's actions were objectively reasonable. In evaluating the motion the Court can simply assume the facts in accordance with Plaintiffs' allegation, i.e. that Jackson did not attempt to kick Reynolds. This assumption does not render Jackson's actions unreasonable.
Furthermore, the inconsistency in Jackson's testimony does not undermine the credibility of the remaining facts. At least two neutral witnesses observed the incident, and confirm the fact that Reynolds picked up his knife and turned toward Jackson after Jackson instructed him to drop the weapon. (Wapnowski Depo. at 26; Tucker Depo. at 19).
C. Officer Jackson is Entitled to Immunity
The Court finds that Jackson acted reasonably when confronted with the threat of serious bodily injury and therefore is entitled to immunity. Defendant Jackson's motion for summary judgment is therefore granted as to the 42 U.S.C. § 1983 action. The civil rights action against the County of San Diego was not raised in this motion and therefore those claims are not affected by this ruling.
IV. State Law Causes of Action
Both Jeanette and Denise Reynolds have alleged state law violations. As discussed above, Denise Reynolds does not have standing to bring a state law wrongful death action. Jeanette Reynolds has alleged civil rights violations under California Civil Code Section 52.1, wrongful death, assault and battery, negligent hiring, loss of consortium and violation of the California Public Records Act.
A. Section 52 Does Not Support Reynolds's Cause of Action
Jeanette Reynolds has filed a cause of action against Jackson and the County of San Diego under California Civil Code Section 52.1. Officer Jackson moves for summary judgment on the grounds that Jackson cannot be held liable for damages under section 52 of the California Civil Code. He argues that he is entitled to immunity from suit based on violations of federal constitutional rights, and that Jeanette Reynolds has failed to allege violations of substantive state constitutional rights. The first issue facing the Court is whether section 52.1 supports a claim for damages in this instance. Section 52.1 provides that:
(b) Any individual whose exercise or enjoyment of rights secured by the Constitution--or laws of this state, has been interfered with or attempted to be interfered with, as described in subdivision (a), may institute and prosecute--on his --own behalf a civil action for damages.