MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION
In this action, plaintiff Gabrielle Rodriguez ("Plaintiff") alleges civil rights violations under federal and state law against defendants City of Fresno, Jerry Dyer and Robert Chavez ("Chavez") (collectively, "Defendants") based on injuries she sustained as a bystander during a police response to an incident at her home in the City of Fresno. Plaintiff's complaint alleges federal and state civil rights claims against both the individual and municipal Defendants and alleges a variety of state common law claims against both as well. In the instant motion, Defendants move for summary judgment on all claims against them. Federal question jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL OVERVIEW AND PROCEDURAL HISTORY
Plaintiff's complaint was filed on July 2, 2009. The complaint alleges eight claims for relief. The first alleges violation of Plaintiff rights under the Fourth and Fourteenth Amendments in violation of 28 U.S.C. § 1983 against Defendant Chavez. Plaintiff's second claim for relief alleges Monell claims against Defendants Dyer and City of Fresno. Plaintiff's third and fourth claims for relief allege negligence and battery claims respectively against Defendants Chavez and City of Fresno. Plaintiff's fifth claim for relief alleges unlawful use of violence based on race or gender in violation of California Civil Code section 51.7 against Defendants Chavez and City of Fresno. Plaintiff's sixth claim for relief alleges violation of California Civil Code, section 52.1 against all Defendants. Plaintiff's seventh claim for relief alleges negligent hiring, training and supervision against Defendants Dyer and City of Fresno and Plaintiff's eighth claim alleges vicarious liability under state law against City of Fresno.
The only motions to come before the court from the time the complaint was filed to the time the instant motion for summary judgment was filed involved Plaintiff's motion to compel disclosure of certain information pertaining to internal affairs proceedings involving instances of police use of lethal force. The Magistrate Judge granted Plaintiff's motion to compel on September 1, 2010. Defendants moved for reconsideration of the Magistrate Judge's order on September 15, 2010, and this court filed an order on December 6, 2010, denying reconsideration of the order to compel.
As the court noted in its order denying reconsideration, the two sides in this case allege very sharply divergent factual backgrounds. Defendants allege the police dispatched Officers Chavez and Derek Avila ("Avila") to an apartment in Fresno where Plaintiff resided with her boyfriend, Danny Hernandez ("Hernandez"). The parties agree that a domestic disturbance was reported at a New Year's Eve party and that there was loud shouting and arguing. The parties agree that Marcelino Rodriguez ("Marcelino"), (who is not related to Plaintiff) gave a description of Hernandez to police. Defendants allege Hernandez was described by Marcelino as a Bulldog gang member who was armed with a handgun. Defendants allege Marcelino indicated that Hernandez had threatened to kill Marcelino's brother, Michael Rodriguez, and had brandished a handgun in Marcelino's presence and that Hernandez kept the handgun tucked into his front waistband . Defendants allege the police Officers approached the apartment, observed Hernandez walking away from the apartment and identified themselves to him as police officers. Defendants allege Hernandez turned and ran into the apartment, but that as he was running, his hands shifted to the area around his front waistband where the handgun was reportedly located. Hernandez fled into the apartment and was pursued by the police officers. When Chavez reached the inside of the apartment he saw Hernandez moving toward an open doorway in the kitchen/livingroom area of the apartment. Defendants allege Plaintiff was standing to the side of where Hernandez was and was not in Officer Chavez's "sight picture." Chavez, fearing that Hernandez posed a deadly threat, fired two shots in rapid succession. At about the same time he fired Plaintiff reached out and grabbed Hernandez's shoulder. Danny Hernandez was struck by one shot in the back and Plaintiff was struck by one shot in the vaginal area. Defendants contend the shooting of Plaintiff was accidental.
Plaintiff, on the other hand, alleges Hernandez was not a gang member, did not threaten anyone, did not own a gun, and was unarmed at the time Chavez fired the shots that wounded Hernandez and Plaintiff. Plaintiff alleges the officers did not identify themselves as being police officers and that Hernandez fled from what he believed were gang members. Plaintiff alleges that Hernandez never looked at the officers and never moved as though he was reaching for a gun at his waist before he was shot. Plaintiff alleges that she was in Chavez's "sight picture" when Chavez fired and that Chavez intentionally shot her out of an unreasonable fear that Hernandez posed a lethal threat.
The instant motion for summary judgment was filed on January 14, 2011. Plaintiff's opposition was filed on February 14, 2011, and Defendants' reply was filed on February 18, 2011. The hearing on motion, which was scheduled for February 28, 2011, was vacated and the matter was taken under submission as of that date.
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); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984).
Under summary judgment practice, the moving party always 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). Although the party moving for summary judgment always has the initial responsibility of informing the court, the nature of the responsibility varies "depending on whether the legal issues are ones on which the movant or the non-movant would bear the burden of proof at trial." Cecala v. Newman, 532 F.Supp.2d 1118, 1132-1133 (D. Ariz. 2007). When the moving party has the burden of proof at trial, that party must carry its initial burden at summary judgment by presenting evidence affirmatively showing, for all essential elements of its case, that no reasonable jury could find for the non-moving party. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc); Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also E.E.O.C. v. Union Independiente De La Autoridad De Acueductos Y Alcantarillados De Puerto Rico, 279 F.3d 49, 55 (1st Cir. 2002) (stating that if "party moving for summary judgment bears the burden of proof on an issue, he cannot prevail unless the evidence that he provides on that issue is conclusive.")
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any 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); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11; First Nat'l Bank, 391 U.S. at 289; Strong v. France, 474 F.2d 747, 749 (9th Cir. 1973). 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 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), 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; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
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; T.W. Elec. Serv., 809 F.2d at 631. 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); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
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; SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam); Abramson v. University of Hawaii, 594 F.2d 202, 208 (9th Cir. 1979). 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. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
I. Plaintiff's Fourth Amendment Claim Against Chavez
The complaint alleges Plaintiff suffered a depravation of rights secured by the Fourth Amendment and/or by the Fourteenth Amendment when she was incidentally*fn1 shot by Chavez. Defendants' central contention with regard to the liability of individual Defendant Chavez under section 1983 is that Plaintiff cannot claim a violation of Fourth Amendment because there was no "seizure" for Fourth Amendment purposes. As an initial matter, the court notes the facts of this case are sharply and nearly universally disputed. That said, the court finds that it may be useful to explore cases that help define the boundaries between what is and is not a seizure for Fourth Amendment purposes to determine whether and under what factual circumstances Plaintiff could claim a violation of her Fourth Amendment rights.
"A Fourth Amendment seizure occurs whenever 'there is a governmental termination of freedom of movement through means intentionally applied.' [Citation.]" Vathekan v. Prince George's County, 154 F.3d 173, 178 (4th Cir. 1998) (quoting Brower v. County of Inyo, 489 U.S. 593, 597 (1989) (emphasis in original)). Whether a Fourth Amendment seizure has occurred is central to the determination of liability arising from police-applied force. "All claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original). However, where no seizure has occurred in an excessive force claim, the claim falls outside the Fourth Amendment and its "reasonableness standard" but comes instead within the ambit of the substantive due process component of the Fourteenth Amendment. See U.S. v. Lanier, 520 U.S. 259, 272 n.7 (1997) (due process component of Fourteenth Amendment is implicated where the right infringed is not covered by another amendment). The "substantive component of the due process clause insulates citizens against the arbitrary exercise of government power." Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000). Under the due process clause of the Fourteenth Amendment, liability is found only if the plaintiff can show that police conduct "shocks the conscience." County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998).
"A Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is governmental termination of freedom of movement through means intentionally applied. Brower v. County of Inyo, 489 U.S. 596-597 (1989). The rule that emerges from case authority from other circuits is that a person can only be seized for Fourth Amendment purposes if that person was the "deliberate object" of the exertion of force intended to terminate freedom of movement. Caminillo v. Streicher, 434 F.3d 461, 465 (6th Cir. 2006).
A number of cases illustrate the circumstances that will not support a Fourth Amendment claim by an incidental victim of police action. A plaintiff that is injured collaterally or incidentally to the application of force by police against a third party cannot maintain a Fourth Amendment claim. See Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (Forth Amendment claims for injuries inadvertently inflicted upon an innocent third party not available where police used force in trying to seize a perpetrator because police could not "'seize' any person other than the one who was a deliberate object of their exertion of force"). In particular, an individual who is accidentally shot by police who are attempting to apprehend someone else cannot maintain a Fourth Amendment claim. Id. Likewise, residents of a house whose movements are restrained while police search for a third party are not "seized" for fourth Amendment purposes. Ewolski v. City of Brunswick, 287 F.3d 492, 507 (6th Cir. 2002). In a similar vein, when police deploy a device to cause automobile tires to deflate in an effort to stop a fleeing suspect, the injuries caused when the same device inadvertently causes loss of control in a car that is not occupied by the subject suspect are not redressable under the Fourth Amendment because cars not occupied by the object of the police actions are not seized. Bublitz v. Cottey, 327 F.3d 485, 489 (7th Cir. 2003).
On the other hand, the following cases illustrate situation where an innocent victim has been held to be the object of police application of force who may assert a Fourth Amendment Claim. In Vathekan, 154 F.3d at 173, and in Garcia v. City of Sacramento, 2010 WL 3521954 (E.D. Cal. 2010), the deployment of a police dog into a building for the purpose of seizing a suspect was held to constitute a seizure under the Fourth Amendment where the dog bit bystanders who were not the object of the police action. In both cases, the courts reasoned that when officers intentionally deploy a dog, which is incapable of discriminating suspects from bystanders and is trained to bite whoever it encounters, the officers effectively intend to seize anyone in the space where the dog was deployed. See Vathekan, 154 F.3d at 178-179; Garcia, 2010 WL 3521954 at *2. In a similar vein, this court held that, where a plaintiff was injured by a pepperspray bullet fired into a general area for the purpose of subduing all the individuals in that area, the injured plaintiff was seized for Fourth Amendment purposes. Nelson v. City of Davis, 709 F.Supp.2d 978, 987 (E.D. Cal. 2010). In Nelson, the court held that where the plaintiff "was in a group intentionally targeted" by police with pepperspray launchers, the court could not conclude for summary judgment purposes that there had not been any seizure. Id.
Defendants note that there is no Ninth Circuit authority that directly addresses whether liability arising from the incidental shooting of a person who is not the object of police action should be analyzed under Fourth or Fourteenth Amendment standards. Plaintiff does not directly confront the issue of whether an incidental shooting of a bystander during the legitimate application of police force should be analyzed under the Fourth Amendment standard. Rather, she contends that Chavez shot her "intentionally" and that the shooting of herself or of Danny Hernandez was unreasonable under the circumstances.
In her Statement of Additional Disputed Facts ("ADF"), Plaintiff repeats responses from Chavez's deposition that reflect Chavez's assessment that Plaintiff was not in his "sight picture" and only was struck by one of the shots because she reached out and pulled herself into the way. ADF ¶¶ 53-55. Plaintiff also cites Chavez's statements that Plaintiff was "an innocent person" and that she "did not pose a threat. ADF ¶¶ 57-58. Plaintiff's assertion that Chavez intentionally shot her is expressed in her response to Defendants' proffered undisputed material fact ("UMF") # 47, which states "Officer Chavez did not intend to shoot the [Plaintiff]." Defendants' UMF # 47 is disputed by Plaintiff who states "Chavez saw [Plaintiff] and intentionally shot her in order to neutralize a perceived and imaginary threat from Danny." Plaintiff offers as proof to substantiate her opposition to Defendants' UMF # 47 the statements from the Chavez deposition that are noted above and the following from her own declaration:
Based on my proximity, position and physical contact with Danny Hernandez, I have a reasonable belief that Defendant Chavez intended to shoot me. Without provocation, Defendant Chavez ...