District Attorney did not file any charges based on this report.
In her declaration, O'Dell attacks Deputy Lopez's handling of this
incident on several grounds. Specifically, she criticizes Deputy Lopez
for spending only twenty-one minutes handling the call, for not
conducting a thorough investigation of the incident, as required by SCSD
policy, for not filing a more complete report with the District Attorney's
Office, and for not informing Maria Teresa of her right to make a
citizen's arrest in the case of future TRO violations by Avelino. O'Dell
Decl. ¶ 3(e). O'Dell also insists that, based on the information
contained in the TRO, of which she asserts Deputy Lopez must have been
aware, Deputy Lopez was required to seek out and arrest Avelino Macias
for felony stalking. Id.
Deputy Lopez's other two documented contacts with Maria Teresa Macias
took place on February 23, 1999. First, around 7:00 PM on February 23,
Maria Teresa visited the Sheriffs Sonoma Valley substation for the second
time in three days to report incidents of harassment and stalking by
Avelino. Deputy Lopez prepared a report regarding her complaints. Id.
¶ 3(g); Lopez Decl. ¶¶ 7-11. Later that same evening, around 11:00
PM, Maria Teresa called the SCSD to report that Avelino had called her
again. Deputy Lopez was contacted by the SCSD dispatcher regarding Maria
Teresa's call. Deputy Lopez, who, according to defendants, was in the
process of responding to a burglary call, expressed frustration over that
fact that Maria Teresa was calling again and told the dispatcher that he
had just spoken to Maria Teresa and that he would respond to her call
later. O'Dell Decl. ¶ 3(h). Deputy Lopez visited Maria Teresa's
apartment later that night and then called Avelino and told him that
witness were corroborating Maria Teresa's story and that it would be in
his interest to stay away from Maria Teresa. Id. ¶ 3(g); Lopez
Decl. ¶ 8-9. The next day, Deputy Lopez submitted a supplemental
report, cross-referenced to his January 31, 1996 report, to the District
Attorney's Office. This report was not reviewed by a district attorney
before Maria Teresa was killed on April 15, 1996. McMahon Decl. ¶ 6;
Rolen Decl. ¶ 8.
O'Dell contends that Deputy Lopez also handled both of these contacts
improperly. O'Dell asserts that it was unprofessional of Deputy Lopez to
call Avelino and to provide him with any kind of warning. O'Dell Decl.
¶ 3(g). According to O'Dell, Deputy Lopez's conduct amounts to
"aiding and abetting" Avelino's stalking and harassment. Id. In
addition, while acknowledging that Deputy Lopez filed a report with the
District Attorney's Office recommending that Avelino be prosecuted,
O'Dell states that Deputy Lopez was required to take additional steps to
"institute action to arrest Avelino for felony stalking." Id.
Beyond their evidence that defendants mishandled the complaints they
received regarding Avelino Macias, plaintiff provides the Court with
evidence that defendants discouraged Maria Teresa and her friends and
supporters from making additional reports of stalking and harassment by
Avelino to the SCSD. There is deposition testimony from Marty Cabello
that the unnamed Sheriffs deputies told her not to call every time
Avelino makes an appearance, but rather just to write down the incidents
and drop off a report at the substation. Seltzer Decl., Ex. D (Cabello
Depo. 614:16-616:11-15; 337:12-23). Plaintiff argues that Cabello's
testimony is corroborated by the fact that tape recordings of some of
Avelino's threatening phone calls and other documentary evidence of his
harassment were found among Maria Teresa's possessions after the murder.
Finally, plaintiff provides deposition testimony suggesting that
defendants' acts and omissions served to encourage Avelino Macias's
stalking and harassment. Soledad Macias states that Avelino told her he
believed the sheriffs were "on his side," Seltzer Decl., Ex. N (Soledad
Macias Depo. at 20:27-21:2), and Marty Cabello
declares that Avelino boasted that every time the sheriffs were called,
they "didn't do anything to him." Id., Ex. D (Cabello Depo. at
162:22-163:8). Similarly, Ana Palacios Flaherty states in her deposition
that Avelino said that if he were doing anything wrong he would be in
jail. PI.'s Evid. Supp., Ex. A.
Defendants dispute the admissibility of much of this evidence.
Defendants argue that the declarations and deposition testimony relied
upon by plaintiff are replete with inadmissible hearsay statements. See
generally Def. Objections to Pl's Evid. 1-6. Plaintiff responds by
arguing that many of the statements objected to by defendants are not
hearsay at all, but rather are offered to show notice to the defendants.
Plaintiff also asserts that those statements which are hearsay are
admissible under exceptions the hearsay rule. The Court agrees with
defendants that the admissibility at trial of many of the statements
plaintiff relies upon is questionable. However, the Court's disposition of
defendants' motion does not hinge on whether or not plaintiffs evidence
is excluded by the hearsay rule or falls within one of its exceptions.
Even if the Court assumes that all of plaintiffs evidence is admissible
and true, the Court still finds that plaintiff has failed to make the
showing necessary to survive summary judgment.
First, the Court notes that much of the evidence introduced by
plaintiff is plainly inapplicable to individual defendant Mark Lopez.
Unlike the County of Sonoma, which is liable for any acts taken by its
agents pursuant to an unconstitutional municipal policy or custom, Deputy
Lopez can only be held liable for harm caused by his own acts and
omissions. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) While
Deputy Lopez may have had a greater involvement than anyone else at the
SCSD with Maria Teresa and Avelino Macias, he clearly was not involved in
most of the incidents upon which plaintiff relies.
Deputy Lopez was not involved in the initial January 21, 1996 contact
between the SCSD and Maria Teresa. Rather it was Deputy O'Bryan who
responded to Maria Teresa's request for assistance. Deputy Lopez also was
not involved in the SCSD's failure to find the Glen Ellen residence where
Maria Teresa worked and where Avelino had appeared and made a threat on
January 22, 1996. It was Deputy Hansen who was dispatched to answer this
call. Nor was Deputy Lopez involved in responding to Marty Cabello's call
to report that Avelino was at Maria Teresa's apartment and had blocked
her car into the driveway. Deputies Mulinix and O'Bryan responded on this
occasion. Indeed, there are only three documented contacts between Deputy
Lopez and Maria Teresa Macias over a nearly four week period.
More importantly, with regard to both Deputy Lopez and the SCSD,
plaintiffs evidence of notice to defendants of Avelino's conduct, and
defendants' failure to intervene, only goes toward establishing that
defendants breached their duty, assuming they had such a duty, to Maria
Teresa Macias. However, the issue currently before the Court is
causation, not duty or breach. Plaintiffs evidence does not establish any
"direct causal link" between defendants' alleged breach of duty and
Avelino Macias' murder of Maria Teresa on April 15, 1998. The evidence
does not show that "but for" defendants' failure to take actions they
could have and legally should have taken, serious injury to Maria Teresa
would have been averted. Furthermore, even if defendants' acts and
omissions were a "but for" cause, plaintiffs evidence does not establish
that defendants' conduct was a "substantial factor" in causing Maria
Because of these shortcomings, plaintiff necessarily relies upon the
opinion testimony of expert witnesses to bridge the causal gap between
defendants' conduct and Maria Teresa's death. Plaintiffs experts, former
San Diego police detective Anne O'Dell and Dr. Daniel J. Sonkin, a family
counselor who specializes in domestic violence and child abuse, both
their declarations that defendants acted wrongfully in handling the
Macias case, and that their conduct was a "substantial factor" in causing
in Maria Teresa's death.
As discussed above, O'Dell examines in her declaration all of the
documented contacts between the defendants and Maria Teresa and Avelino
Macias and concludes that the defendants breached their duty of care in
each instance. O'Dell Decl. ¶ 3. O'Dell also summarizes in her
declaration four different studies showing that aggressive law
enforcement and judicial intervention in domestic violence cases
significantly reduces numbers of domestic homicides. Id. She recites,
although without citation or information regarding methodology, the
results of a studies in Quincy, Massachusetts, Nashville, Tennessee, San
Diego, California and Washington State, "all of which documented
significant reductions in domestic homicides (reductions of between 40%
and 80%) following the institution of aggressive intervention policies.
Based on these studies and on her review of the defendants' conduct in
dealing with Maria Teresa and Avelino Macias, O'Dell concludes that the
defendants acts and omissions were:
a substantial factor in causing Avelino to
continue and escalate his illegal behavior
to the point where it was entirely foreseeable
that Maria Teresa was in significant
danger and that she was absolutely
at risk of suffering physical violence at
the hands of Avelino Macias.
O'Dell Decl. ¶ 6. Specifically, O'Dell states that by mishandling
Maria Teresa's complaints, and by discouraging her from reporting
Avelino's conduct, defendants sent a powerful message to both her and
Avelino that she was not protected and that Avelino could do what he
wanted. Id. O'Dell also states that had defendants followed state law and
SCSD department policy, they `would have arrested Avelino Macias on
numerous occasions. As a result, more likely than not, he would have been
in jail, or on probation and in some form of intensive treatment program
long before Maria Teresa was murdered on April 15, 1996." Id. ¶ 6.
Dr. Sonkin reaches similar conclusions. Sonkin declares that, based on
"my expertise and experience with men like Avelino Macias," it was
reasonably foreseeable from January 21, 1996 onward that if Avelino was
permitted to continue his pattern of harassment, it would escalate to
violence. Sonkin Decl. ¶ 3. Like O'Dell, Dr. Sonkin also alludes to
the studies demonstrating that aggressive law enforcement intervention
reduces domestic homicide rates. Sonkin Decl. ¶ 8. In an effort to
connect the results of these studies to the specific case of Avelino
Macias, Sonkin states:
Based on my review of psychological
reports on Avelino Macias, evidence of
his conduct and statements reflecting his
state of mind, and also my experience in
working with domestic violence perpetrators,
it is my opinion that Mr. Maclas
fits the profile of obsessive domestic violence
perpetrators who stalk their partners.
These individuals usually respond
positively to effective law enforcement
Id. ¶ 12. Sonkin further states that by not intervening, and by
discouraging Maria Teresa from reporting instances of stalking and
harassment, defendants emboldened Avelino and convinced him that he would
not receive any punishment for his conduct or any counseling. Id. ¶¶
14-19. Defendants, according to Sonkin, therefore were a substantial
factor in causing Maria Teresa's death. Id. ¶ 20.
Defendants contest the admissibility of these expert opinions. See
Def. Objections to Pl.'s Evid. at 6-15. A court must consider admissible
expert testimony in determining whether to grant summary judgment. See
Maffei v. Northern Ins. Co. of New York, 12 F.3d 892, 897 (9th Cir.
1993). Several evidentiary requirements must be met in order for an
expert's testimony to be admissible. First, the testimony must be such
that it "will assist the trier of fact to understand the evidence or
to determine a fact in issue." Fed.R.Evid. 702. In determining whether
expert testimony is admissible under Rule 702, the court must keep in
mind the Rule's "broad parameters of reliability, relevancy, and
assistance to the trier of fact." Desrosiers v. Flight Int'l of Fla.,
156 F.3d 952, 960-61 (9th Cir. 1998). For instance, an expert may offer
an opinion as to an ultimate issue to be decided by the trier of fact.
Fed.R.Evid. 704(a); Maffei, 12 F.3d at 897.
Next, the expert's testimony must have a proper foundation. However,
Federal Rule of Evidence 703 allows an expert to base his or her opinions
and inferences on facts or data "perceived by or made known to the expert
at or before the hearing." FedR.Evid. 703. Under this rule of evidence,
experts are also permitted to rely on evidence that would not otherwise
be admissible in forming their opinions, provided that the evidence is of
the type normally relied upon by experts in the field. Id. The Supreme
Court has recognized that, unlike ordinary witnesses, "an expert is
permitted wide latitude to offer opinions, including those that are not
based on firsthand knowledge or observation." Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
If an expert's testimony relates to "scientific knowledge," additional
requirements apply. The court is required to make "a preliminary
assessment of whether the reasoning an methodology underlying the
testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue." Daubert, 509
U.S. at 592-93, 113 S.Ct. 2786. Not all testimony from experts
constitutes "scientific" testimony. When an expert's testimony is based
on the expert's training and experience the requirements of Daubert do
not apply. See United States v. Plunk, 153 F.3d 1011, 1017 (9th Cir.
1998); McKendall v. Crown Control Corp., 122 F.3d 803, 807-808 (9th Cir.
Given the permissive nature of the rules regarding the admissibility of
expert testimony based on experience and training, the Court finds that
those parts of O'Dell's and Sonkin's declarations dealing with police
practice and procedure and the effectiveness generally of domestic
violence intervention and counseling are admissible. There does not
appear to be any question that both O'Dell and Sonkin qualify as experts
in their fields by virtue of their "knowledge, skill, experience,
training, or education." Nor does there appear to be any question that
O'Dell and Sonkin's testimony, if otherwise admissible, is on a topic
"beyond the ken of the average juror" and therefore a proper subject of
expert opinion. Plunk, 153 F.3d at 1017. See also United States v.
Espinosa, 827 F.2d 604 (9th Cir, 1987) ("Law enforcement officers with
sufficient qualifications may testify concerning the methods and
techniques employed in an area of criminal activity").
The admissibility of O'Dell and Sonkin's conclusions regarding the
effect of law enforcement intervention in the specific case of Avelino
Macias is a different matter. "Rule 702 demands that expert testimony
relate to scientific, technical or other specialized knowledge, which
does not include unsubstantiated speculation and subjective beliefs."
Diviero v. Uniroyal Goodrich Tire Co., 114 F.3d 851, 853 (9th Cir.
1997). As the Supreme Court has recently made clear, nothing in the
Federal Rules of Evidence "requires a district court to admit opinion
evidence which is connected to existing data only by the ipse dixit of
the expert. A court may conclude that there is simply too great an
analytical gap between the data and the opinion proffered." General
Electric, Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 519, 139 L.Ed.2d
It is the opinion of the Court that, to the extent plaintiffs experts
testify to the existence of a direct link between defendants' acts and
omissions and the death of Maria Teresa Macias on April 15, 1996, their
testimony is pure speculation. As discussed above, the experts rely to a
great extent on studies allegedly indicating that aggressive enforcement
of TROs and other types of intervention in domestic violence cases
reduces the number of domestic homicides. At most, these studies show
that intervention works in many, but not all cases, The studies do not
demonstrate that intervention in the particular case of Avelino and Maria
Teresa Macias would have deterred Avelino from violence. Indeed, there is
evidence in the record that Avelino had previously responded negatively
to threats of intervention by the authorities. Avelino threatened to kill
Maria Teresa because she had made accusations against him to the
authorities, Bluestone Decl., Ex. K (S. Macias Depo. at 17:1-20:25;
35:10-17), and he threatened to kill Deputy Lopez. Ex. H (Carmona Depo.,
265: 20-266: 7).
Plaintiffs experts also claim to rely on their experience gained from
working on numerous domestic violence cases. For example, O'Dell claims
to have worked on seventy thousand domestic violence cases. O'Dell Decl.
¶ 1. Based on their experience, both experts conclude that
intervention would have been effective in the case of Avelino Maclas.
O'Dell states that, under the facts of this case, Avelino likely would
have been in prison, on probation, or in counseling in April, and
therefore unable or unwilling to harm Maria Teresa, if the defendants had
arrested him January, February or March. Although he has had no personal
contact with Macias, Sonkin concludes from his experience, and apparently
from his "profile" assessment, that Avelino was someone who likely would
have been responsive to counseling and treatment. No matter how much
general knowledge and experience plaintiffs experts possess as to the
practices of police and psychologists in this area, these conclusions
regarding the specific state of mind of Avelino Macias simply are too
speculative to establish actual causation.
Even assuming plaintiffs experts are correct that steps could have been
taken that would have significantly reduced the likelihood of violence in
this particular case, not all of these steps were within defendants'
power. To the contrary, multiple intervening actors and circumstances
stood between defendants' acts and omissions and all of the various types
of intervention plaintiff alleges would have prevented the April 15, 1996
murder-suicide. Whether Avelino in fact would have been prosecuted for
stalking and harassment, convicted of the charges brought, sentenced to
jail, incarcerated, or enrolled in a counseling program if he had been
arrested by defendants is entirely dependent upon discretionary decisions
by other government agencies, including the District Attorney's Office,
the Courts, and the Probation Department. Because the actions of these
other agencies can only be guessed at, it cannot be said that "but for"
defendants' failure to act, Avelino Macias would have been in custody or
in treatment on April 15, 1996, or that any intervention would have
specifically deterred Avelino from his decision to murder Maria Teresa.
The only action that can be argued was wholly within the power of
defendants was arresting Avelino. Plaintiff argues that arresting
Avelino, by itself, "would have been sufficient interventions to break
Mr. Macias' pattern of conduct." Pl.Opp. at 36 (quoting Sonkin Decl.
¶ 6). Other than the opinion of Dr. Sonkin, however, plaintiff offers
no evidence in support of this conclusion. The studies cited by Anne
O'Dell all appear to involve comprehensive intervention programs that
necessarily involve other agencies. O'Dell Decl. ¶ 8 (stating that
the studies demonstrate that the key to deterring and reducing domestic
violence homicides "is aggressive investigations and arrests by
responding law enforcement as well as coordination with other parts of
the judicial system"). Sonkin's speculation alone does not create a
triable issue of fact. At its farthest reach, Sonkin's declaration
establishes that arresting Avelino possibly could have altered his
pattern of behavior. However, a mere possibility cannot establish the
link that is required in a section 1983 action. See City of Canton, Ohio
v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
In concluding that plaintiffs evidence of actual causation is
insufficient to survive summary judgment, the Court finds two Court of
Appeals decisions to be particularly instructive: the Eighth Circuit's
decision in Ricketts v. City of Columbia Missouri, 36 F.3d 775 (8th Cir.
1994), and the First Circuit's decision in Rodriguez-Cirilo v. Garcia,
115 F.3d 50 (1st Cir. 1997). Both cases involve section 1983 actions
brought against police agencies for failing to intervene under
circumstance roughly analogous to those in the instant case.*fn1 In both
cases the courts found there was no causation as a matter of law.
In Ricketts an estranged husband sexually assaulted and murdered his
wife's mother. The wife and her father brought a section 1983 action
against the police, alleging the city had a discriminatory custom of
treating domestic abuse cases less seriously than others. In the weeks
prior to the murder, the plaintiff had obtained a TRO against the husband
and had reported his harassment on a number of occasions to the police,
but the police never arrested the husband. The Eighth Circuit, however,
rejected the argument that this failure to arrest caused plaintiff
injuries. In so holding, the court reasoned:
[T]o find that the injuries caused by
Sunny's violent acts of sexual assault
and murder would have been avoided
had Sunny been arrested for the prior
harassment would be an excess in pure
speculation. Such speculation cannot
establish causation because it is equally
plausible that an arrest for the prior
harassment might as easily have
spawned retaliatory violence from Sunny.
Id. at 780.
In Rodriguez-Cirilo, the plaintiffs sued police officers for causing
the stabbing of Celso Rodriguez-Cirilo by his mentally ill and reportedly
violent brother Francisco. Plaintiffs alleged that the failure of police
to arrest Francisco pursuant to a mandatory temporary detention order the
family had obtained caused Celso to be stabbed by Francisco two weeks
later. To establish causation, the plaintiffs in Rodriguez-Cirilo relied
upon the declaration of a psychologist stating that had Francisco been
detained when police had a duty to detain him, he would have received
effective treatment which would have prevented the stabbing,
The First Circuit rejected plaintiffs' causation argument, reasoning
that, "even if Francisco had been taken to a hospital on March 14, 1994,
for examination, appellants have not shown that an examination performed
on that day would have prevented a violent attack, spurred by an argument
on April 6, 199." Id. at 53. The court stated that the declaration of
the psychologist did not constitute competent evidence of causation. Id.
"[T]he psychologists broad assertion regarding causation does not create
a triable issue in this case, where the defendant's case as to a lack of
proximate causation is strong." Id. at 53.
The decisions in Ricketts and Rodriguez-Cirilo make clear that a mere
possibility police officers could have prevented a third party's act of
violence does not create the direct causal link that is required to
establish liability under 42 U.S.C. § 1983. And although there is no
equally analogous Ninth Circuit decision,
the reasoning employed in Rickette and Rodriguez-Cirilo is in keeping
with Ninth Circuit case law on the issue of indirect causation. See
Huffman v. County of Los Angeles, 147 F.3d 1054 (9th Cir. 1998); Van Ort
v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996).
2. Legal Causation
Because plaintiff has failed to establish that defendants' were an
actual cause of Maria Teresa Macias' death, it is not necessary for the
Court to address the question of legal cause. However, even if plaintiff
had succeeded in establishing actual causation, the Court concludes as a
matter of law that defendants' were not a legal cause of Maria Teresa's
In making her case for the existence of legal causation, plaintiff
focuses on the foreseeability of Avelino Macias' violent act. Plaintiff
directs the Court to the evidence in the record indicating defendants
knew or should have known that Avelino's harassment and stalking of Maria
Teresa was more frequent and serious than they admit to knowing.
Plaintiff asserts that given this knowledge of Avelino's behavior, it
should have been reasonably foreseeable to defendants that their failure
to take affirmative steps to stop Avelino's conduct eventually would
result in Avelino committing an act of violence against his wife.
Plaintiff also relies on the opinions of her experts. Both of plaintiffs
experts declare that it is entirely foreseeable for individuals with
behavior patterns such as Avelino's to eventually resort to violence.
O'Dell Decl. ¶ 6; Sonkin Decl. ¶ 3-4.
However, foreseeability is not the only aspect of legal causation at
issue in this case. Plaintiffs argument fails to take into account the
existence in this case of actual superseding cause for Maria Teresa
Macias' death. Such cause acts to break the legal chain of causation,
even if Maria Teresa's death was theoretically foreseeable.
The length of time between defendants last contact with Avelino and the
April 15, 1996 murder-suicide by itself constitutes a superseding cause
arguably sufficient to break the chain of causation:
"Experience has shown that when a
great length of time has elapsed between
the actor's negligence and harm
to another, a great number of contributing
factors may have operated, many of
which may be difficult or impossible of
actual proof. . . . [T]he effect of the actor's
conduct may thus be so attenuated
as to be insignificant".
Restatement (Second) of Torts § 433 cmt. f. (cited in
Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997)). See also
Martinez v. California,