The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This civil rights action pursuant to 42 U.S.C. § 1983 arises out of an incident between two San Diego Police officers and Michael E. Kreca, which culminated in Officer Elmer Edwards shooting Mr. Kreca in the chest at close range, killing him almost instantly. Mr. Kreca's parents brought the instant action for violation of constitutional rights and wrongful death against San Diego Police Officers Elmer Edwards and Samantha Fleming, San Diego Police Chief William Lansdowne and the City of San Diego.
Defendants moved for summary judgment, which Plaintiffs opposed. Defendants argue that (1) they are shielded by qualified immunity because they did not violate Mr. Kreca's civil rights; (2) to the extent Plaintiffs alleged claims for Fifth and Fourteenth Amendment violations, the claims are legally insufficient and unsupported by evidence; (3) Plaintiffs do not have any evidence to support their section 1983 claim against the City; and (4) Plaintiffs can not sue the City for tort liability under state law.
Although Plaintiffs opposed the motion, they stipulated to dismissal without prejudice of the claims against Chief Lansdowne, and section 1983 claim against the City. (Joint Statement of Undisputed Facts and Resolved Legal Issues, field Aug. 28, 2007 ("Joint Statement"), at 1-2.) In their opposition, Plaintiffs did not address Defendants' arguments regarding the legal insufficiency of the Fifth and Fourteenth Amendment claims. Accordingly, to the extent Plaintiffs intended to assert these claims, Defendants' motion is granted as unopposed as to these claims. See Civ. Loc. R. 7.1(f)(3). Based on the foregoing, the issues remaining for decision on Defendants' summary judgment motion are the alleged violation of Mr. Kreca's Fourth Amendment rights and the viability of state law tort claims.
Rule 56 of Federal Rules of Civil Procedure governs the parties' burdens on summary judgment. Rule 56(c) empowers the court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). When a defendant moves for summary adjudication of plaintiff's claims, as is the case here, the moving party can meet its burden by pointing out the absence of evidence from the nonmoving party. See Celotex, 477 U.S. at 325; see also Garneau v. City of Seattle, 147 F.3d 802, 807 (9th Cir. 1998). If the movant meets his burden, the burden shifts to the non-movant to show summary adjudication is not appropriate. Celotex, 477 U.S. at 317, 324. The non-movant must go beyond the pleadings to designate specific facts showing there are genuine factual issues which "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In considering the motion, the non-movant's evidence is to be believed and all justifiable inferences are to be drawn in his favor. Id. at 255.
This is not the usual case where each side describes the incident differently, because Mr. Kreca is deceased and because the parties do not dispute much of what occurred. (See Joint Statement at 2-6.) It is undisputed that the officers were patrolling a commercial area near the intersection of Mesa Ridge Court and Camino Santa Fe in San Diego on a Saturday morning, and that the area was generally unpopulated. The officers heard shots in the nearby canyon, but could not tell where in the canyon the shots came from. Officer Edwards saw what he believed to be a person standing in the shadow under the bridge where Camino Santa Fe crosses the canyon. He could not discern the clothing, race, height, weight or gender of the person. When Officer Fleming looked, she did not see the person. The officers then drove toward the bridge. On Camino Santa Fe they saw a pedestrian walking away from the bridge. Officer Edwards did not recognize the pedestrian as the person he thought he had seen under the bridge. Officer Edwards also saw a car driving away from the bridge. When they were looking down into the street earlier from the commercial area, the officers did not see any pedestrians or cars. The officers made no attempt to stop the car, but decided to stop the pedestrian, Mr. Kreca.
Officer Fleming approached Mr. Kreca and asked him about the shots in the area. Mr. Kreca responded he heard the shots but he was not the shooter. Although Officer Fleming did not observe any indication that Mr. Kreca was armed, she told him she would pat him down for weapons and tried to position his hands behind his back. Mr. Kreca resisted the attempt to control his hands. While trying to get a hold of both of Mr. Kreca's hands behind his back, Officer Fleming patted down the waistband of his pants and felt what she believed was the butt of a pistol. Officer Fleming then told Mr. Kreca she would handcuff him. He told her he wanted to go home and tried to break from Officer Fleming's grasp. Officer Fleming alerted Officer Edwards that she believed Mr. Kreca was armed. A physical altercation involving both officers ensued. While Officer Fleming continued to attempt to control Mr. Kreca's right arm, Officer Edwards, with his gun pulled, attempted to control Mr. Kreca's left arm and simultaneously pull Mr. Kreca's gun from his waistband. Mr. Kreca resisted, and Officer Edwards shot him.
Plaintiffs claim the officers violated Mr. Kreca's Fourth Amendment rights. Defendants maintain they did not and that they are protected by qualified immunity. In resolving questions of qualified immunity, courts are required to resolve a threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry. If, and only if, the court finds a violation of a constitutional right, the next, sequential step is to ask whether the right was clearly established in light of the specific context of the case.
Scott v. Harris, 127 S.Ct. 1769, 1774 (2007) (internal quotation marks, ellipsis and citations omitted).
The court first turns to the inquiry whether the officers' conduct violated Mr. Kreca's Fourth Amendment rights.
Stops under the Fourth Amendment fall into three categories. First, police may stop a citizen for questioning at any time, so long as that citizen recognizes that he or she is free to leave. Such brief, "consensual" exchanges need not be supported by any suspicion that the citizen is engaged in wrongdoing, and such stops are not considered seizures. Second, the police may 'seize' citizens for brief, investigatory stops. This class of stops is not consensual, and such stops must be supported by "reasonable suspicion." Finally, police stops may be full-scale arrests. These stops, of course, are seizures, and must be supported by probable cause.
Morgan v. Woessner, 997 F.2d 1244, 1252 (9th Cir. 1993) (internal citations omitted). Although "the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it," the force must be "objectively reasonable in light of the facts and circumstances." Graham v. Connor, 490 U.S. 386, 396, 397 (1989). Plaintiffs argue Defendants violated Mr. Kreca's Fourth Amendment rights because they did not have reasonable suspicion for an investigatory stop and because they used unreasonable force to subdue him.
Officer Fleming initially involved Mr. Kreca in a consensual exchange in which Mr. Kreca voluntarily cooperated. She asked Mr. Kreca if he had heard the shots and if he had been shooting. (Fleming Dep. at 25, Fleming Decl. ¶ 14.) He said he had heard the shots and that he had not been shooting. (Id.)
Officer Fleming then decided to pat down Mr. Kreca for weapons. "A person is 'seized' only when by means of physical force or a show of authority, his freedom of movement is restrained." Morgan, 997 F.2d at 1253, quoting United States v. Mendenhall, 446 U.S. 544, 553-54 (1980). Officer Fleming did not obtain Mr. Kreca's consent for the pat down and attempted to restrain his hands behind his back to conduct the pat down (Joint Statement at 4). She testified Mr. Kreca was not free to leave when she started patting him down. (Fleming Dep. at 29.) Therefore, this was a seizure ...