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Bryan v. McPherson

April 3, 2008


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


[Docket nos. 77, 81]

On February 7, 2008, the Court granted in part and denied in part Defendants' motion for summary judgment, dismissing Plaintiff's Monell claims and denying Defendants' motion to dismiss claims against Defendant McPherson on qualified immunity grounds.

At the pretrial conference on February 11, the parties requested leave to seek reconsideration of portions of this order. The Court now considers the parties' motions for reconsideration.

As explained in the Court's Standing Order, ¶ 4(j), motions for reconsideration are not favored unless the Court is presented with newly discovered evidence, committed clear error, or there is an intervening change in controlling law. See School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262--63 (9th Cir. 1993).

I. Plaintiff's Motion

At the pretrial conference, Plaintiff suggested he had been improperly denied the opportunity to learn the identity of a man whom Defendant McPherson had allegedly shot with a Taser, and therefore had been denied an opportunity to depose this man. The Court therefore issued an order directing the disclosure of this information and providing for discovery. Plaintiff's motion for reconsideration does not mention this man or any new evidence obtained in discovery.

Plaintiff also argued he could cite evidence and authority to support his Monell claim. In his motion for reconsideration, however, Plaintiff merely reargues his claim that the City of Coronado ("City") failed to set policies regarding use of Tasers and failed to train its officers specifically in when to use or not use the Taser. Plaintiff's position is that the City's general "use of force" policy and training were inadequate, Taser-specific training should have been provided, and that a Taser-specific use of force policy should have been adopted. Plaintiff again argues, citing no authority other than training materials provided by the Taser manufacturer, that the City was required to train officers specifically in the factors set forth in Deorle v. Rutherford, 272 F.3d 1272, 1280--83 (9th Cir. 2001),*fn1 and that the City's general "use of force" training was therefore clearly insufficient. See id. at 1280 ("These factors . . . are simply a means by which to determine objectively "the amount of force that is necessary in a particular situation.'") (citing Graham, 490 U.S. at 396--97).

Plaintiff also again raises his argument the City should have trained its officers to take into account whether a suspect was mentally ill or disturbed when deciding whether to deploy the Taser. Why this is relevant here, where neither party contends Plaintiff was mentally ill, is not explained.

Plaintiff identifies no new evidence or change in controlling law, and fails to explain in any respect why the Court's previous ruling manifested clear error. No other unusual circumstances warrant reconsideration. Had the Court been apprised that Plaintiff's motion for reconsideration would merely reargue his Monell claim more succinctly, Plaintiff would not have been granted leave to seek reconsideration. See Multnomah County, 5 F.3d at 1263. The Court need not and does not reach the merits of Plaintiff's motion, which in any event its previous order granting Defendants' motion for summary judgment has already addressed. Defendant McPherson has filed objections to the evidence Plaintiff proffers, but the Court need not reach these. Plaintiff's motion is therefore DENIED.

II. Defendant McPherson's Motion

Defendant McPherson focuses his efforts on showing that the Constitutional right in question was not clearly established for purposes of the qualified immunity analysis. Specifically, the Court must inquire whether Plaintiff's right was clearly established "such that it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001). This inquiry is "undertaken in light of the specific context of the case . . . ." Id. at 201.

Officer McPherson asks the Court to take judicial notice of two opinions for the proposition that the right was not clearly established. The Court GRANTS the request for judicial notice. See Fed. R. Civ. P. 201(b). The first, McDonald v. Pon, 2007 WL 4420936 (W.D.Wash., Dec. 14, 2007), decided after briefing on the motion for summary judgment was complete, is clearly distinguishable. The plaintiff in that case, a suspect being arrested on suspicion of felony robbery, had been restrained by agents employed by the store whose merchandise he was allegedly stealing. He was physically combative with the agents, even punching one of them in the face. When the police arrived on the scene, the agents were instructed to release the plaintiff, which they did. The police then ordered the plaintiff to the ground, but plaintiff failed to comply. At that point, the police Tasered him. The plaintiff then attempted to escape and was Tasered a second time.

Unlike this case, the plaintiff in McDonald was being arrested for a class A felony and had resorted to violence shortly before police arrived. As the court there found, from the police officer's perspective, the plaintiff was an uncooperative, combative felon who might have posted an immediate threat to the threat of police and the store's agents. The court also found the officer had no other clear options for dealing with the situation. Applying the factors set forth ...

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