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Julia Diane Enriquez, et al v. City of Fresno

May 6, 2011

JULIA DIANE ENRIQUEZ, ET AL.,
PLAINTIFFS,
v.
CITY OF FRESNO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL

(Document 57)

Plaintiffs, the spouse, children and parents of Decedent Stephen Anthony Vargas, filed the instant motion to compel production of documents on April 26, 2011. The motion was heard on May 3, 2011, before the Honorable Dennis L. Beck, United States Magistrate Judge. Wesley Overson and Theodore Hasse appeared on behalf of Plaintiffs. James Weakley and Valerie Velasco appeared on behalf of Defendants City of Fresno ("City"), Fresno Chief of Police Jerry Dyer and Fresno Police Officer Mike Palomino.

BACKGROUND

Plaintiffs filed this civil rights complaint on April 5, 2010, against the City, Chief Dyer and Officer Palomino (collectively "Defendants"). Plaintiffs filed a First Amended Complaint on July 6, 2010, alleging causes of action for: (1) violation of Decedent's Fourth Amendment right to be free from the use of excessive force; (2) violation of Plaintiffs' Fourteenth Amendment liberty interest in the companionship and support of Decedent; (3) wrongful death; and (4) negligence. On February 14, 2011, this Court granted Plaintiffs' motion to compel production of Incident Reports and Internal Affairs ("IA") Investigations related to officer-involved shootings for five years prior to October 17, 2009, to the present. The Court found that the documents were relevant to Plaintiffs' allegations that the City has a policy of not properly disciplining officers involved in the use of excessive force and/or failing to properly train officers in the use of excessive force. The Court ordered Defendants to "produce the full Incident Reports and Internal Affairs investigations, with non-involved officer names replaced" within 20 days.

Defendants moved for reconsideration of the Magistrate Judge's order. On March 23, 2011, the Court denied the request, holding that the documents before the Court at the time of the motion to compel were not sufficient to carry Defendants' preliminary burden to invoke the Official Information Privilege. Because the threshold showing was inadequate, the Magistrate Judge had no reason to engage in an individualized weighing of the competing interests at play.*fn1

On April 6, 2011, at the parties' request, the Court held a telephonic discovery conference. It became apparent that a motion was necessary and on April 26, 2011, the parties filed their Joint Statement in support of the instant discovery dispute.

FACTUAL ALLEGATIONS

According to the First Amended Complaint, on October 27, 2009, at approximately 3:00 p.m., Decedent drove at a slow speed onto property on McKinley Avenue in Fresno County. He came to a stop when the front of his vehicle made contact with the side of an unoccupied van. Decedent stayed inside his vehicle.

Several minutes later, Officer Palomino, driving a Fresno Police vehicle, entered onto Fresno County land on or near the McKinley property. Officer Palomino got out of his vehicle, and without cause or justification, pulled out a gun and approached Decedent's vehicle. Officer Palomino pointed his gun at Decedent and without cause or justification, shot and fired several bullets into Decedent's body. Officer Palomino ceased firing momentarily and then without cause or justification, fired a second volley of bullets at Decedent. Decedent was shot approximately nine times and was pronounced dead at Community Regional Medical Center at 3:18 p.m.

Plaintiffs allege that this was the latest in a string of shootings of unarmed persons by the Fresno Police Department. Plaintiffs allege that four other unarmed people were shot by Fresno Police in 2009 and that the officers involved were not properly disciplined. This has led to a culture and belief within the FPD that it is permissible to use deadly force against unarmed persons and that no disciplinary action will be taken for doing so.

Plaintiffs allege that this was Officer Palomino's second shooting in 2009 and that he has shot at least four people in his capacity as a Fresno Police Officer. Despite Chief Dyer's knowledge of Officer Palomino's propensity for the use of excessive force, Chief Dyer failed to appropriately investigate shootings involving Officer Palomino and ratified his unlawful acts by promoting him to higher positions in the Fresno Police Department.

Plaintiffs further allege that Officer Palomino's actions were taken pursuant to the policies and practices of the Fresno Police Department, including the use of excessive force and the use of deadly force in encounters with civilians when it is a grossly disproportionate response to the situation. Despite their knowledge of these illegal policies and practices, Defendants have taken no effective steps to terminate these policies and practices, have not disciplined or otherwise properly supervised the officers who engage in such policies and practices, have not effectively trained Fresno police officers with regard to the proper constitutional and statutory limits of the exercise of their authority and have sanctioned the policies and practices through their deliberate indifference.

Plaintiffs also allege that Chief Dyer, knowing of civil rights abuses by Fresno police officers and at least one prior civil rights violation by Defendant Palomino, sought to cover up and ratify the acts publicly, and engaged in at least one act of retaliation against a police officer for reporting systemic civil rights violations by Fresno police. Plaintiffs further allege that Chief Dyer failed to remedy those systemic violations knowingly and with deliberate indifference and promulgated policies on the use of deadly force by officers that deliberately repudiated the ...


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