The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER COURT TRIAL [Fed. R. Civ. P. 52]
This case was tried to the Court on December 7 and 8, 2010, and the Court deemed the matter submitted. Having considered all the evidence presented by the parties, as well as the arguments and briefing by counsel, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52.*fn1
1. Plaintiff Z.W. is the minor daughter of decedent Shawn Lamond Watson ("Watson"). She appears in this action by and through her duly-appointed guardian ad litem, Crystal Christman. Plaintiff Sherman Watson is Watson's father, and Plaintiff Catherine Thompson is Watson's mother. (Pretrial Conference Order ("PTCO") ¶ 6 (c) - (e); Doc. No. 71 (Plaintiffs' Memorandum of Contentions of Fact & Law ("Pls.' Mem.")) at 1-2.)
2. Defendant City of San Bernardino, a public entity, employed Defendant Jonathan Plummer ("Plummer") as a police officer on June 10, 2007. (Doc. No. 48 (Defendants' Memorandum of Contentions of Fact & Law ("Defs.' Mem.")) at 1.) Defendant Plummer was acting within the course and scope of his employment and under color of state law at all times relevant to this action. (PTCO ¶ 6 (a), (b).)
B. Events of June 10, 2007
3. At approximately 11:30 p.m. on June 10, 2007, San Bernardino Police Officers Eddie Flores ("Flores") and Jonathan Plummer arrived at the Ascot Apartments complex in the City of San Bernardino. Both Flores and Plummer were familiar with the complex because they had been dispatched to that location on many occasions. They considered it a high-crime area based on their past experience investigating crimes there, including homicides and other serious felonies. Defendant Plummer had been employed as an officer with the San Bernardino Police Department for approximately four years as of that night.
4. The officers went to the Ascot Apartments on routine foot patrol; they were also there to obtain information about a probationer, and as part of an ongoing investigation into the whereabouts of a suspect, for whom there was an outstanding arrest warrant on a homicide charge. (Trial Exs. 168, 169.)
5. After they arrived, parked their separate police cars, and began to walk into the complex grounds, the officers saw a gathering of about ten African-American men. These men dispersed immediately upon seeing the police officers. When Defendant Plummer saw one of the men toss to the ground a metal object he thought sounded like a gun, Defendant Plummer yelled "Police" and began chasing that person. Defendant Plummer called dispatch and reported the pursuit, and as he ran, he heard gunshots.
6. At the same time Defendant Plummer was pursuing the first subject, Officer Flores recognized Watson among the men gathered in the complex, and began chasing him. The two officers passed one another a minute or two later; although Officer Flores did not have a chance to tell Officer Plummer the identity of the person he was pursuing (i.e., Watson), Plummer knew Flores was pursuing a subject as well. Officer Flores did yell to Officer Plummer to "be careful" because "shots were being fired at [the officers]." Both officers described the scene as "very chaotic," because of the number of persons scattering and the gunshots fired.
7. After passing Officer Flores, Defendant Plummer rounded the corner of Building H and suddenly saw a person, later identified as Watson,*fn3 crouched near the shrubbery.
8. Defendant Plummer yelled "Police! Freeze!" to Watson. Watson was at least ten to fifteen feet away from Defendant Plummer, and Defendant Plummer saw Watson "fiddling" with a dark object near his waistband that looked like a firearm. Plummer was startled to see Watson crouched outside the apartment building; the officer explained he was surprised because Watson was the only person in the area when all others outside were running away, and the apartment complex residents would be likely to give haven inside their apartments to one seeking to hide from police officers.
9. Watson said nothing in reply to Defendant Plummer's command to "Freeze!," and did not stop what he was doing with the dark object in or near his waistband; instead, he turned partly around and "engaged" or made eye contact with Defendant Plummer. Plummer fired two shots from his Heckler & Koch service weapon; one struck Watson in the back of his head and the other struck him in his back.
10. At the moment he fired, Defendant Plummer thought Watson was about to shoot at him.
11. Shortly before Defendant Plummer fired shots at Watson, Officer Flores heard Defendant Plummer yelling, and then heard two shots fired. Officer Flores did not know who had fired the shots; he peered around the south east corner of Building H, and heard Defendant Plummer reporting over his radio that he had fired shots. Officer Flores did not see Watson holding a weapon or dropping one.
12. After the shooting, San Bernardino Police Department officers searched the vicinity and found a 9 mm Browning Arms handgun in the shrubbery between Watson's body and the apartment building. A fragment of a black plastic replica handgun was found a few feet away from Watson's body. A Davis Industries .380 caliber handgun was found in the driveway adjacent to Building E, with a live round of ammunition in the breach. A Walther Model PPKS BB pistol was recovered from the parking lot adjacent lot to Building E, as well as additional fragments of the black plastic replica handgun, and a magazine containing .380 caliber ammunition. Officers discovered bullet strikes to the wall on the west driveway and expended .45 ...