The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY ADJUDICATION ORDER REQUIRING STATUS REPORTS WITHIN FIFTEEN DAYS (Document #196)
This action arises from the shooting death of Everardo Torres ("Torres") by Officer Marcy Noriega ("Defendant Noriega") while she was working for the Madera Police Department. Torres's estate and family ("Plaintiffs") have sued Defendant Noriega and the City of Madera ("Defendants") under 42 U.S.C. § 1983 and state law.
On April 8, 2005, the court granted Defendants' motion for summary judgment on Plaintiffs' Fourth Amendment claim. The court ruled that Defendant Noriega's accidental shooting of Torres with her Glock handgun rather than the intended M26 Taser ("Taser") did not constitute a "seizure" under the Fourth Amendment. Plaintiffs did not oppose summary judgment on the remaining federal claims based on alleged Fourteenth Amendment violations and the City of Madera's liability under Monell. The court denied summary judgment on the state law claims.
Pursuant to Plaintiffs' request, the court directed entry of final judgment on the Fourth Amendment claim pursuant to Rule 54 of the Federal Rules of Civil Procedure, and Plaintiffs appealed. On appeal, the Ninth Circuit reversed this court's grant of summary judgment applying the"continuing seizure" doctrine, which had never been raised by any of the parties in either this court or on appeal. See Torres v. Madera, 524 F3d 1053 (9th Cir. 2008) (hereinafter "Torres I"). The Ninth Circuit found Torres had been technically seized from the moment he was handcuffed, prior to the shooting. As such, the Ninth Circuit found the issue in this action is the reasonableness of Defendant Noriega's mistake, not whether Defendant Noriega seized Torres. The Ninth Circuit then remanded the action to this court.
On January 8, 2009, Defendants filed a motion for summary adjudication of issues, statement of undisputed facts in support thereof, and exhibits. Defendants contend that they are entitled to summary judgment on the Fourth Amendment claim because Defendant Noriega's mistake was objectively reasonable. In the alternative, Defendants contend that Defendant Noriega is entitled to qualified immunity.
On March 20, 2009, Plaintiffs filed an opposition to the motion for summary adjudication. Plaintiffs also submitted their response to Defendants' statement of undisputed facts, Plaintiffs' additional facts, and supporting exhibits. Plaintiffs contends that neither Defendant Noriega's use of her Taser nor her Glock were reasonable.
On April 3, 2009, Defendants filed their reply to Plaintiffs' opposition to the motion for summary adjudication.
Summary judgment is appropriate when it is demonstrated that there exists 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); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467 (1962); Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir 2003).
Under summary judgment practice, the moving party
[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir. 2006). A fact is material if it could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Miller, 454 F.3d at 987. "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id.; Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). Indeed, summary judgment should be entered after adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. 477 U.S. at 322; Miller, 454 F.3d at 987. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. 477 U.S. at 322. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to a material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc.,210 F.3d 1099, 1103 (9th Cir. 2000). The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.2008) (quoting Fed. R. Civ. Pro. 56(e)); Miller, 454 F.3d at 987. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson, 477 U.S. at 248; Cline v. Industrial Maintenance Engineering & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; In re Caneva, 550 F.3d 755, 761 (9th Cir. 2008); Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1144 (9th Cir. 2006). A "mere scintilla of evidence" supporting the non-moving party's position is insufficient to defeat a motion for summary judgment. Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290; Giles v. General Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007). Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468; Price v. Sery, 513 F.3d 962, 965 n.1 (9th Cir 2008); Lockett v. Catalina Channel Exp., Inc., 496 F.3d 1061, 1064 (9th Cir. 2007). "[I]n ruling on a motion for summary judgment, the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); Miller, 454 F.3d at 987; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Finally, to demonstrate a genuine issue the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).
Officer Noriega's use of her Glock handgun instead of the intended Taser to shoot Torres on October 27, 2002, was accidental (hereinafter "the October 27, 2002 shooting").
Defendant Noriega was certified in the use of the Taser during a single class less than a year prior to the October 27, 2002 shooting.
During her initial training, Defendant Noriega was handed a Taser and fired it. See Noriega Depo. II at 40-41.*fn2 Defendant Noriega never pointed her Taser at someone and fired it from a distance prior to the October 27, 2002 shooting. Id.
During Defendant Noriega's formal training there was no discussion about which side the Taser should be worn on. See Noriega Depo. II at 18-20. Defendant Noriega was given a right side holster for the Taser, which is her dominant side. Defendant Noriega testified that because she was given a dominant side holster, she would "say that's where they told us to put it." See id. at 19. Defendant Noriega was not given any choice as to where to wear her Taser (i.e. on the dominant side below her duty weapon) as the Department provided only one holstering option.
During Defendant Noriega's training, there was no discussion about a Sacramento incident in which an officer had mistaken a handgun for a Taser. See Noriega Depo. II at 22. Prior to the October 27, 2002 shooting, Defendant Noriega had never heard anyone talk about an incident where another officer confused a duty weapon for a Teaser. See id. at 23.
Prior to the October 27, 2002 shooting, Defendant Noriega had two incidents where there was confusion involving her Taser, her Glock, and their holsters. They both occurred in late 2001, shortly after the initial Taser training.
In the first incident, or "the holster incident", Defendant Noriega mistakenly put her Glock into her Taser's holster after leaving the jail. Defendant Noriega was concerned about this mistake and notified her Sergeant, who suggested that she practice putting the Taser in its proper holder.
A week later, Defendant Noriega experienced a second incident, or "the weapon incident". See Noriega Depo. II at 27. In this incident, Defendant Noriega pulled at her Taser and realized it was her Glock that she "was trying to get the tip off." See id. At the time, the Glock was pointed at another officer. See id. Defendant Noriega put the Glock back into its holster, pulled out her Taser, took the cartridge off, and touch-tased the man. Defendant Noriega testified that during the weapon incident she had said "I hate the Taser being on that side." See id. at 29. When Defendant Noriega informed her Sergeant about what had happened, she told him she did not want to carry the Taser anymore. See id. at 33.
Defendant Noriega was advised by Sergeant Lawson to practice continuously by drawing her Taser and then her Glock during the months between the weapon incident and the October 27, 2002 shooting, which she did. Defendant Noriega received no additional training from the Department. See Noriega Depo. II at 40. Defendant Noriega continued to practice drawing her Taser and Glock "all of the time" up until the October 27, 2002 shooting. See Noriega Depo I at 175. Defendant Noriega would draw her Taser and Glock before every shift and during down times on each shift. Id.
Defendants' Expert, Charles Heal, testified that Officer Noriega's weapon confusion during the weapon incident would probably be considered an "anomaly" and not enough to go back and revamp the training program. See Heal Depo. at 191-92. Officer Noriega's training after the weapon incident was consistent with industry standards at the time because the incident was not enough to revamp the training program and a Sergeant followed up to make sure she was doing what he had instructed her to do, i.e. practicing drawing her Taser. See id.
Prior to the October 27, 2002 shooting, Defendant Noriega used her Taser five or less times during actual police work. In each of these times Defendant Noriega placed the Taser directly against the person she wanted to control and did a "touch tase". She had never fired her Taser in the field.
Defendant Noriega felt everyone needed additional training in the use of the Taser. See Noriega Depo. II at 35-37.
Defendant Noriega testified that the Taser would shift continuously on her thigh and the Taser would "push up" or "ride up" against the Glock's handle, shifting the Glock. See Noriega Depo. I at 22-23 & 134-35.
Earlier during the evening of October 27, 2002, Defendant Noriega turned off the safety to her Taser while escorting another individual to a patrol car so that she could use the Taser more quickly in case the individual "went haywire". See Noriega Depo. I at 98-102. At the time, the individual was being confrontational. Id. at 101. Defendant Noriega had already observed Torres struggling with an officer. See id. at 95-96, 99-100.
When Defendant Noriega chose to tase Torres, he was in the back of a patrol car kicking the window. Defendant Noriega testified that she was not concerned for her safety. Rather, she decided to tase Torres because he was going to hurt himself. See Noriega Depo. I at 124. Defendant Noriega opened the car door while her Taser was still in the holster. Defendant Noriega never looked at the weapon she had pulled when she shot Torres. Defendant Noriega describes the October 27, 2002 shooting as follows:*fn3
Q: After Ms. Meija's cuffs were being rearranged, what was the next thing that you recall occurring?
A: Mr. Torres going ballistic in the back seat, yelling and kicking at the window.
Q: Let's stop there. What was Mr. Torres yelling?
A: "Get me out of this car." I know he said the "F" word. I don't know if he said "F" you or "F" this car. "Get me out of this car." He just kept yelling and kicking the window.
Q: Did he say anything about his cuffs being too tight?
Q: And what was the next thing that you recall ...