ORDER ON DEFENDANTS'
SECOND MOTION FOR SUMMARY JUDGMENT
This case arises from the detention and arrest of Plaintiff
Lawrence Azevedo by Fresno police officer Defendant Nathan Carr
("Carr") while Azevedo was staying at a residence on Weldon Avenue.
Azevedo has brought suit under 42 U.S.C. § 1983 against Carr and the
City of Fresno ("the City"). Carr and the City moved for summary
judgment on all claims alleged against them, save for Azevedo's
excessive force claim. The Court granted Carr's motion with respect to
Azevedo's Fourth Amendment search and detention claims. The Court also
granted summary judgment for the City on various Monell
claims, with two exceptions. The Court assumed that Carr used
excessive force and found genuine material disputes regarding
inadequate training and the investigation of uses of force.
At the pre-trial conference, the recent Ninth Circuit opinion of
Bryan v. McPherson , 608
F.3d 614 (9th Cir. 2010), opinion withdrawn and
replaced by , - - - F.3d - - -, 2010 WL 4925422
(9th Cir. Nov. 30, 2010), *fn1 was
discussed. The Court vacated the trial date and instructed the parties
to brief the impact of Bryan on Azevedo's
excessive force and Monell claims. The Court
instructed that this briefing would be treated like a second summary
judgment motion to be brought by Defendants. The Court now has
received and considered the additional briefing. For the reasons that
follow, the Court will grant Carr qualified immunity, but deny summary
judgment on the Monell issue. .
At 2:00 a.m. on November 7, 2007, Carr and his partner Juan Avila ("Avila") were on patrol in a marked police car. Carr observed an illegally parked motorcycle on the sidewalk in front of a house on Weldon Avenue. Carr recognized the motorcycle and helmet from a previous encounter in which the rider of the motorcycle successfully evaded Carr's attempt to effectuate a traffic stop. The registration on the motorcycle was expired, the license plate matched the plate of the motorcycle from the previous encounter, and Carr could find no VIN number.
Carr looked up the Weldon house on the patrol vehicle's computer and read that the house may be vacant, with the residents possibly out of town. There was overgrown vegetation, and the house appeared to be vacant. The house's front metal security screen door was wide open, the wooden front door appeared significantly damaged with a hole where the doorknob and lock set should have been, newspaper and cloth/curtains covered some of the front windows, other windows had no coverings, and a low light could be seen through the paper over the windows. The officers were concerned that there was a possible burglary or unlawful trespass, and that the motorcycle may have been stolen. The officers decided to make contact at the location in order to find the owner of the motorcycle and to investigate the house's security.
While approaching the front door, the officers noticed locking mechanism pieces, which appeared consistent with both the wood front door and metal screen door, laying on the porch and in the flower bed. Carr also noticed a glove next to the broken lock which is consistent with someone unlawfully entering a house.
Carr knocked on the wood front door, and it immediately swung open since it was not secured. Carr announced, "Fresno Police." A large dog then immediately began to growl and bark, and aggressively advanced on Avila. While Carr was yelling at the dog, Azevedo came outside the threshold of the front door, and Carr told him to get his dog. Azevedo called his dog, and it stopped in its tracks and turned, then Azevedo heard a gunshot. Avila fired a shot at the dog in response to the dog's aggression, but missed the dog. Azevedo then walked down and grabbed his dog. Carr told Azevedo to put the dog in the house and to close the door. Azevedo picked up the dog and took it inside the house.
The officers asked Azevedo to step outside the gate and ordered him to sit on the curb. Azevedo was being detained while the officers investigated a possible burglary, trespass, squatting, and stolen motorcycle.
When Carr and Avila were questioning Azevedo, Azevedo seemed extremely nervous. DUMF 1. Neither officer told Azevedo to keep his hands visible while he was sitting on the curb. Azevedo Dec. ¶ 5. *fn3 Azevedo was reaching his hand into his waistband where Carr could see a bulge. DUMF 1. Avila asked Azevedo if Azevedo had any weapons. Id. *fn4 When asked by Avila if he had any weapons on him, Azevedo suddenly jumped up and ran. See DUMF 2. Azevedo ran almost immediately after he sat down on the curb. PUMF 28.
As Azevedo was running from the officers, Carr told Azevedo to stop. See Schaaf Depo. at 9:23-25; Molina Depo. 26:14-16; Carr Dec. ¶ 11. *fn5 Azevedo was focused on trying to run, and he continued to run after being told to stop. See Carr Dec. ¶ 11; Avila Dec. ¶ 8; PRDUMF 3. Azevedo has no recollection of Carr yelling "stop" since he was focused on running. See DUMF 4; Azevedo Depo. 91:11-25.
Carr was concerned because it was clear to him that, even after being given repeated commands to stop, Azevedo was not going to stop. DUMF 7. Carr had on his full gear and was tired from trying to keep up with Azevedo. Id. *fn6 Also, Carr believed that Azevedo had fled from him on a prior occasion. Id. Carr was concerned for his safety and believed that he would be at a disadvantage if he had to fight with Azevedo and thus, Carr opted to use the Taser. See id. Azevedo was struck with the Taser darts in the upper and middle back, and he immediately fell forward. DUMF 8. *fn7
Carr deployed the taser while running after Azevedo at full speed and over concrete. See PUMF 32. Carr had been gaining on Azevedo and got within 3 to 4 feet of him. See PUMF 36. *fn8
Azevedo was neither assaultive nor combative before Carr used the
taser. PUMF 33. Carr never saw anything that looked like a weapon in
Azevedo's possession prior to using the taser. See PUMF 34. Azevedo
was not reaching into his waistband. PUMF 35. *fn9
The officers did not tell Azevedo that he was under
arrest before Carr deployed the taser. See PUMF 39. Carr had no
information that Azevedo had committed any felonies that night. See
PUMF 17. Azevedo does not deny that he was tased, but claims that he
put his arms out and broke his fall, i.e. "from hitting directly full
face," Azevedo Depo. 92:17-21, after which he was lifted up by his
belt and dropped and then everything went black. DUMF 9.
After taking Azevedo into custody, the officers found a small black zipper bag protruding from Azevedo's right front pants pocket. See DUMF 10. The black zipper bag contained hypodermic syringes, a metal spoon, and a medicine vial with methamphetamine. See id. Prior to taking Azevedo into custody, Carr had no information that Azevedo had committed any felonies. See PUMF 17. Azevedo suffered multiple facial fractures/injuries that required hospitalization and surgery. See PUMF's 42-45. No criminal charges were ever filed against Azevedo arising out of the incident. PUMF 46.
SUMMARY JUDGMENT STANDARD
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); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire, 210 F.3d at 1102-03. If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. 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)).
The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). 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). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire, 210 F.3d at 1103.
Carr argues that use of the taser was reasonable under the circumstances. First, Azevedo was violating Penal Code § 148, and the officers were investigating several crimes (stolen motorcycle, residential burglary, and trespass). Although these crimes may not be considered individually serious, together they were significant. Second, there were a number of factors that potentially threatened the officers' safety. Specifically: (1) the driver of the motorcycle previously fled from Carr, and Carr believed that the driver was Azevedo; (2) the officers had just been threatened by Azevedo's dog; (3) Azevedo had not been checked for weapons (4) Azevedo fled when he was asked about weapons; (5) Azevedo had reached towards his waistband prior to running; (6) Azevedo refused to stop despite commands; and (7) Carr had on his full gear and was tiring from the chase. Finally, Azevedo was attempting to evade arrest by flight. These considerations show reasonableness. Azevedo was subject to arrest, but he fled which indicated that he was not going to be taken into custody without a fight. If Carr had not used the taser, he would have been forced to physically engage a subject who was going to resist and who had not been searched for weapons. Tasers are used to defuse dangerous situations from a distance without the need for more severe force. That is what happened in the situation that Azevedo himself created.
Alternatively, Carr argues that he is entitled to qualified immunity. As of November 2007, case law indicated that tasers were generally considered non-lethal and were commonly used to subdue resisting individuals. Carr used the taser while Azevedo was fleeing. There are no cases prior to November 2007 that held that use of a taser on a fleeing suspect would violate a suspects rights. Further, the Ninth Circuit has held that the law regarding tasers in the summer of 2005 was not clearly established. In Bryan v. McPherson , in the course of a traffic stop, Bryan exited his vehicle yelling gibberish and hitting his thighs. Bryan was standing 20 to 25 feet away from officers, did not verbally threaten the officers, and was not attempting to flee. Without warning, McPherson deployed his taser, and Bryan fell face first on the concrete surface. Bryan suffered four fractured teeth and facial contusions. In that case, although the Ninth Circuit found a Fourth Amendment violation, they gave McPherson qualified immunity because the law on tasers was not clearly established. Here, unlike Bryan , the officers were dealing with more than a traffic infraction, the officers had concern for their safety, Bryan was fleeing, and Carr was tiring from the chase. Given the facts of Bryan in which immunity was granted, and the facts of this case, the law was not clearly established.
Azevedo argues that the taser is a significant amount of force that represents a greater intrusion than other non-lethal alternatives. The use of the taser was not justified in this case.
Azevedo argues that he posed no immediate threat to the safety of others in that he was unarmed, was not aggressive, was not combative, and had been compliant prior to running away. Further, Carr had no information that Azevedo had committed a felony or a violent infraction. At most, Carr only had probable cause for the misdemeanor offense of resisting or obstructing an officer. Although Azevedo was attempting to evade detention, he argues that there was no need to use the taser to prevent flight. Roger Clark has declared that other reasonable alternatives were available to Carr. Azevedo was outnumbered by the officers. Because Carr was gaining on Azevedo, Carr could have reached out and used a "firm grip" on Azevedo to stop his flight. The officers also should have attempted to use verbal skills to coerce compliance, yet Carr did not warn Azevedo that the taser would be used. Further, it should have been clear that use of the taser would cause an uncontrollable fall on a hard surface.
Azevedo also argues that qualified immunity is not appropriate because, prior to November 7, 2007, "it was clear to a reasonable officer that deploying a Taser in dart mode on a non-combative, unarmed person who was running full-speed over concrete and with whom the officer had caught up to within range of a "firm grip" -- all while without having probable cause that the person had committed a felony -- was excessive force." Analogous cases from the Western District of Washington (in June 2007), the Eastern District of California (in November 2006), and the Central District of California (in August 2006) were sufficient to put Carr on notice that his conduct was unconstitutional. With respect to Bryan , the facts of this case are different because deploying a taser on a non-moving ...