The opinion of the court was delivered by: Christina A. Snyder United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This action seeking relief under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., arises out of the September 22, 2004 shooting of Vincent Catanho ("Catanho") and Saul Cerros ("Cerros") by Naval Security Officer John Tate ("Tate") at the Naval Air Station, North Island, Coronado ("the Base"). Catanho was wounded, and Cerros was killed.
On April 24, 2006, Catanho filed suit against the United States and Does 1 through 10. On April 28, 2006, the Estate of Saul Cerros and Cerros' surviving spouse, Dinah Cerros, minor children, S.C. and A.C., and dependent parents, Lucilia Cerros and Baudelio Cerros (collectively, the "Cerros plaintiffs"), filed suit against the United States ("the Government") and Does 1 through 50. On March 12, 2007, the Court consolidated these cases. On June 1, 2007, plaintiffs filed their operative second amended complaints. Catanho and the Cerros plaintiffs assert claims for assault, battery, and negligence. The Cerros plaintiffs also assert a claim for wrongful death.
This action was tried to the Court. Trial commenced January 21, 2009, and concluded on January 23, 2009. John Y. Lee and James S. Muller appeared for Catanho. Muller also appeared on behalf of the Cerros plaintiffs. United States Attorney Thomas P. O'Brien and Assistant United States Attorney Jason Axe appeared for the United States. The Court, having considered the testimony and other evidence admitted at trial, the briefs of the parties, and the arguments of counsel, makes the following Findings of Fact and Conclusions of Law.
1. On September 22, 2004, Catanho and Cerros, as well as their companion Patrick Roybal ("Roybal"), left Los Angeles in a sports utility vehicle ("the SUV"), heading toward Tijuana, Mexico. Catanho Dep. 25:25-26:5. While en route, the men smoked marijuana in the SUV. Catanho Dep. 26:18-21.
2. At approximately 10:00 p.m., the men drove into the "No-Decal" parking lot outside the Base with the intention of stealing a motorcycle.*fn1
3. The "No-Decal" parking lot is a lot where military personnel who do not have official decals on their vehicles can park their vehicles immediately outside the Base. The lot is surrounded by a concrete "blast wall," with steel-enforced fencing on top. Tr. Trans. 1:31:15-22, 33:2-4. There is only one entrance or exit into the lot. Tr. Trans. 1:32:24-33:1.
4. Prior to September 22, 2004, motorcycles had been stolen from the "No-Decal" lot. Trial Tr. 1:28:6-9, 1:31:23-25; Sadler Dep. 23:17-24:4.
5. The SUV drove to the far corner of the parking lot where motorcycles were parked. Cerros exited the SUV, mounted a motorcycle, and started it. Catanho Dep. 27:15-18. Cerros then got back into the SUV, and instructed Roybal to mount the motorcycle and follow the SUV out of the parking lot. Catanho Dep. 28:10-14. Cerros drove the SUV toward the exit and Roybal followed on the motorcycle. Catanho Dep. 28:23-29:16.
6. Patrolman Erik Sadler ("Sadler") was working as a sentry, watching the Base and its surroundings from a tower next to the "No-Decal" lot. Sadler received a call from Officer Resendez, notifying Sadler that an individual had been observed looking into cars in the parking lot. Sadler left his post and went to the fence separating the tower from the parking lot. Sadler Dep. 24:12-18. He then saw the SUV pull into the lot, and pull next to the motorcycles. Sadler Dep. 25:5-19. As he saw Cerros attempt to start a motorcycle, he placed a radio call to dispatch informing them of a possible theft in progress at approximately 10:00 p.m. Sadler Dep. 26:16-25.
A. Naval Officers Respond to the Scene
7. In response to that call, Tate responded to the scene along with his partner, Naval Security Officer Joseph Ferrer ("Ferrer"), in a white, clearly marked police vehicle (referred to as a "GOV"). Trial Tr. 1:32:1-8, 1:33:8-15; 3:65:18-66:7.
8. At all relevant times, Tate was an employee of the Government acting within the scope of his employment.
9. When Tate and Ferrer arrived, they observed the SUV driving in the northwest corner of the lot. Tate also heard a motorcycle engine start. At that point, Tate backed the GOV in front of the exit, almost completely blocking it. Trial Tr. 1:33:19-34:9, 1:35:12-15, 1:37:1-4; 3:66:8-19.
10. One end of the GOV was roughly aligned with the post at the eastern end of the exit, and the other end was approximately four to six feet from the post at the western end of the exit. The GOV was slightly north of the posts. Trial Tr. 1:34:2-9. The position of the GOV and the post created a "channel" through which anything exiting or entering the lot had to pass through ("the channel"). Trial Tr. 2:7:3-7.
11. As the SUV and motorcycle continued to move toward the exit, Cerros and Catanho noticed the exitway was blocked by the GOV. Catanho Dep. 29:13-16, 30:9-17. The SUV pulled up alongside the passenger's side of the GOV, and the motorcycle was behind it. Trial Tr. 1:37: 5-9
12. Tate and Ferrer then exited the GOV. Trial Tr. 1:37:23-25, 3:66:23-67:2. Ferrer made contact with the motorcycle rider. Tate approached the SUV, and asked the individuals inside the SUV for their identification. Trial Tr. 1:38:1-15, 3:66:25-67:2. Although Catanho noticed the officers, he testified that he did not hear any conversation between them and Cerros. Catanho Dep. 31:3-12.
13. According to Tate, the individuals in the car responded that they had to retrieve their IDs, and instead "took off" in the SUV in a westwardly direction past the GOV. Trial Tr. 1:37:16-19. The motorcycle followed behind it. The SUV and motorcycle moved to the northwest corner of the lot where they parked in a parking stall. Catanho Dep. 31:22-32:8; Trial Tr. 1:38:20-39:4; 3:67:16-68:1.
14. At around this same time, two more officers, Sergeant Richard Crowl and Petty Officer Villanueva arrived on the scene, also responding to the 10:00 p.m. radio call. Trial Tr. 3:44:7-24. Upon arriving, they exited their GOV, which they parked behind Tate's. Crowl instructed Villanueva to wait near Tate. Trial Tr. 3:45:11-13. Crowl and Ferrer went to the northwest corner of the lot to investigate the SUV and motorcycle. Trial Tr. 3:45:18-24.
15. Cerros and Catanho exited the SUV, and approached the motorcycle, which Roybal dismounted. Catanho Dep. 32:16-21; Trial Tr. 3:46:4-6. Crowl testified he saw one of either Cerros or Catanho grab something from the inside of the SUV and put it in his pocket. Trial Tr. 3:46:6-10. Upon seeing this, Crowl and Ferrer drew their weapons. Trial Tr. 3:46:14-20; 3:68:19-69:12. Crowl ordered Cerros and Catanho to stop and show him their hands. Trial Tr. 3:46:21-25, 3:69:13-15. Tate testified he saw this, and presumed a threat existed. Trial Tr. 1:101:1-13.
16. Cerros and Catanho then mounted the motorcycle, with Cerros driving, and Catanho behind Cerros with his arms wrapped around him in a "bear hug." Catanho Dep. 8:6-18; 33:2-4.
17. Tate observed a commotion, including yelling and people moving the various vehicles around in different directions. Trial Tr. 1:101:17-25. Tate then heard the motorcycle moving and saw it as it arrived in the northeast corner of the lot. Crowl ordered Catanho and Cerros to halt; they did not. Trial Tr. 1:39:22-41:2; 3:46:21-25. The motorcycle drove in circles around the lot, at speeds estimated by Crowl to range from 10 to 15 miles per hour on turns and 30 to 40 miles per hour on straightaways. Trial Tr. 3:47:7-22, 69:16-20.
18. The motorcycle proceeded south past Ferrer, who also ordered Catanho and Cerros to halt. Trial Tr. 3:69:20-25. As the motorcycle passed him, Crowl told Ferrer to deploy his oleoresin capsicum, or "OC," spray. Ferrer attempted to do so, but was not successful, as Catanho swung his hand at the container and swatted it out of Ferrer's hand. Trial Tr. 3:48:7-19, 3:70:10-25.
19. Tate testified he saw Ferrer approach the motorcycle, but then back away with his hands raised and appeared to Tate to draw his weapon. Trial Tr. 1:50:14-20, 1:51:2-13, 1:99:24-100:8.
B. The Motorcycle Approaches Tate
20. The motorcycle then turned south toward Tate. Trial Tr. 1:52:7-16, 1: 102:19-103:2, 3:48:20-23, 3:71:1-3.
21. When the motorcycle turned, it was approximately 30 to 40 feet away from Officer Tate. Trial Tr. 1:55:20-23, 1:62:25-63:2.
22. Crowl, Ferrer, Sadler and Tate all testified that, seconds later, the motorcycle increased its speed as it drove toward Tate.*fn2 Trial Tr. 1:104:14-21, 1:121:14-122:10, 3:48:20-49:10, 3:71:4-11; Sadler Dep. 36:4-6, 37:2-7.
23. Tate testified that he was standing alongside the front passenger headlight of the GOV.Trial Tr. 1:58:19-25, 1:102:5-18. Catanho testified that Tate was standing 6 to 10 feet north of the GOV. Catanho Dep. 13:6-8. Ferrer testified Tate was standing in between the ...