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William Cody Carter, An Individual v. City of Carlsbad

June 30, 2011

WILLIAM CODY CARTER, AN INDIVIDUAL,
PLAINTIFF,
v.
CITY OF CARLSBAD, A CALIFORNIA PUBLIC ENTITY, SCOTT MERITT, AN INDIVIDUAL AND IN HIS OFFICIAL CAPACITY, AND DOES 1 THOUGH 10, INCLUSIVE, [DOC. NO. 41] DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Presently before the Court is Defendants' motion for summary judgment. [Doc. No. 41.] For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' motion.

BACKGROUND

On Saturday, October 31, 2009, Plaintiff William Cody Carter ("Carter" or "Plaintiff"); his fianceee, Megan Damico ("Megan"); Megan's sister, Jalyn Damico ("Jalyn"); Virginia Mula, and Judah Stauffer planned to spend the evening at the Coyote Bar & Grill in Carlsbad (the "Coyote"). Before going to the Coyote, the group met at Carter's apartment, where Carter consumed approximately ten ounces of Jack Daniel's whiskey mixed with approximately twenty ounces of cola. [Defs.' MSJ, at 2; Carter Dep., at 10-12.]

Once they arrived at the Coyote, Carter was denied entrance to the bar. Still in the bar's parking lot, Carter complained loudly about not being allowed in and then left for his apartment, accompanied by Megan, Jalyn, and Mula. [Megan Damico Dep., at 63:11-64:23, 66:1-67:24, 69:1-24; Jalyn Damico Dep., at 53:2-9.] The group walked out of the parking lot along the western boundary of Rotary Park, cut through the grass, and headed east on Carlsbad Village Drive, toward the railroad tracks. [Pl.'s Opp'n, at 2; see Defs.' MSJ, at 2.]

As it was Halloween, the members of the group were all dressed in costumes. Carter, a former Marine, was dressed as a Marine and wore camouflage pants, a T-shirt, and a military "cover" on his head. At the time of the incident, Carter was twenty-five years old, six feet four inches tall, and weighed approximately 170 pounds. [Carter Decl., ¶ 1.]

Several independent witnesses observed the incident, though some of their recollections differ slightly. As Carter, Megan, and Jalyn walked, they cried and yelled at each other, and it appeared they were engaged in a verbal altercation. [See Sarah Maruccia Dep., at 15:4-12, 16:19-23, 17:6-14; Mark Maruccia Dep., at 28:16-29:15; 32:15-33-1; Varela Dep., at 41:22-42:10, 82:14-20; Cangiamilla Dep., at 38:11-16, 45:5-22.] Megan and Jalyn repeatedly tried to calm Carter, but he responded each time by yelling, flailing his arms about, and trying to pull away from his friends. [See Varela Dep., at 40:18-24, 46:7-17, 82:14-20; Mark Maruccia Dep., at 28:16-29:15; 32:15-33-1; Cangiamilla Dep., at 11:1-6, 17:1-15, 24:14-24. But see Doyle Dep., at 47:15-18 (rather than trying to leave, Carter was following his companions).] As he walked, Carter may have thrown the head cover he was wearing, a set of keys, or other items to the ground and picked some of the items back up. [See Mark Maruccia Dep., at 39:21-41:14; Sarah Maruccia Dep., at 24:17-26:1, 31:3-23.]

At approximately 10:15 p.m., two officers of the Carlsbad Police Department-Officer Scott Meritt ("Officer Meritt") and Corporal Richard Galanos ("Cpl. R. Galanos")-and one police explorer-Explorer Brendan Galanos ("Explorer B. Galanos"), Cpl. R. Galanos's son-were on foot patrol, walking the 3000 block of Washington Street when "their attention was drawn to an argument between an agitated male (plaintiff) and several others who were trying to calm him." [Defs.' MSJ, at

Meritt Decl., ¶ 6; Cpl. R. Galanos Decl., ¶ 6.] Officer Meritt saw Carter yelling at a female and grabbing her hands; it appeared he was attempting to take an item from her.*fn1 [Meritt Decl., ¶ 6.] Meritt also observed Carter throw something into the grass area of Rotary Park. [Id.; see also Carter Dep., at 48:5-49:15 (Carter discusses throwing his cellular telephone into the grass area of Rotary Park).] Carter then retrieved the item and continued to yell in the direction of the female. [Meritt Decl. ¶ 6.]

The officers did not see Carter strike anyone. They nonetheless grew concerned that he might harm the female or continue to cause a disturbance, and they approached Carter. [Meritt Decl., ¶ 6; Cpl. R. Galanos Decl., ¶ 6.]

When the officers approached, Carter, Megan, and Jalyn were still yelling at one another. [Megan Damico Dep., at 79:19-20, 100:11-17, 128:14-129:5; Varela Dep., at 51:2-18 (noting that Carter was yelling "at the top of his lungs").] Megan heard one of the officers yell, "Stop." [Megan Damico Dep., at 71:13-25, 73:23-74:4, 77:12-25.] When the officers first came into her view, Megan saw they were wearing police uniforms and badges and recognized them as police officers. [See id. at 76:23-77:11.] Megan told the officers that Carter had been drinking and she was taking him home.

95:13-18, 126:8-16.]

There is some dispute as to exactly what occurred next. According to the officers, Cpl. R. Galanos shined his flashlight on Carter and ordered him to sit on the curb. [Cpl. R. Galanos Decl., ¶ 7; Officer Meritt Decl., ¶ 7; Explorer B. Galanos Dep., at 40:5-14.] Carter ignored the officers, and he, Megan, and Jalyn continued yelling at one another. [See Officer Meritt Decl., ¶¶ 6-7; Cpl. R. Galanos Decl., ¶¶ 6-7; Megan Damico Dep., at 98:1-100:25.] Plaintiff yelled, "Why?" several times. [Cpl. R. Galanos Dep., 56:8-57:2.] Based on Plaintiff's inability to follow instructions, his yelling, and his agitated behavior, Officer Meritt and Cpl. R. Galanos concluded that Plaintiff was very drunk. [Meritt Decl., ¶ 7; Cpl. R. Galanos Decl., ¶ 7.]

When Carter began to walk away from the officers, Cpl. R. Galanos yelled, "Hey, stupid!" [Explorer B. Galanos Dep., at 34:11-13, 39:5-25; see Cpl. R. Galanos Dep., at 102:8-18.] At that point, Carter turned to face the officers, cocked his right arm back, and took a "throwing stance." [Meritt Decl., ¶ 7. But see Doyle Dep., 33:22-34:24 (stating she did not see Carter "rear back like he was going to throw something"); Cangiamilla Dep., at 28:21-29:4 (same).] Officer Meritt and Cpl. R. Galanos observed an unidentified object in Carter's right hand (later determined to be a set of keys). [Meritt Decl., ¶ 7; Cpl. R. Galanos Decl., ¶¶ 7-8. But see also Explorer B. Galanos Dep., at 34:9-17 (stating he immediately recognized the object as keys); Meritt Dep., at 258:12-25 (stating he knew the object was not a gun).]

Carter then yelled, "What?" and took an offensive fighting stance, "raising his shoulders and enlarging his upper body while standing square with the officers."*fn2 [Meritt Decl., ¶ 7; see Cpl. R. Galanos Decl., ¶ 7; see also Varela Dep., at 51:19-53:1; Sarah Maruccia Dep., at 24:17-26:1; Mark Maruccia Dep., at 42:1-3. But see Doyle Dep., 33:22-34:24 (stating Carter never took a fighting stance); Cangiamilla Dep., at 28:21-29:4 (same).] Cpl. R. Galanos ordered Carter, at least two more times, to sit on the curb, but Carter, about eight or ten feet away from the officers, did not comply and continued screaming. [Cpl. R. Galanos Decl., ¶¶ 7-8; Meritt Decl., ¶¶ 7-8.] Meritt and Cpl. R. Galanos drew their tasers and pointed them at Carter. Officer Meritt stated loudly, "Sit, or you will be tased," and Carter turned his attention toward Officer Meritt. [Cpl. R. Galanos Decl., ¶ 8; Meritt Decl.,

¶ 8; see also Varela Dep., at 54:19-55:22.] Cpl. R. Galanos saw Carter clench his right fist, which appeared to hold the unidentified object, and move toward Officer Meritt. [Cpl. R. Galanos Decl., ¶ 8; see also Sara Maruccia Dep., 24:17-26:1, 31:3-23 Mark Maruccia Dep., 39:21-41:14. But see Meritt Dep., at 139:10-18 (Meritt did not see Carter take steps toward him, but he was not watching Carter's feet).] Officer Meritt deployed his taser in "dart mode," which shoots darts at a suspect from a distance.

Megan Damico, Carter's fianceee, recalls the incident somewhat differently.*fn3 As their group walked east on Carlsbad Village Drive, Megan heard an unidentified person yell, "Stop." [Megan Damico Dep., at 72:15-18.] Megan saw the officers as they ran toward the group from across the street. The officers never verbally identified themselves as police, but Megan immediately recognized them as officers because they were in uniform. Officer Meritt already had his hand on his taser as the officers approached, and it remained there after the officers reached Carter's group. [See id. at 77:7-11, 95:2-12.]

Megan attempted to explain that she was taking Carter home. Oblivious to the officers' presence, Carter continued arguing with Jalyn. [Id. at 95:19-22.] Cpl. R. Galanos yelled, "Hey Stupid." The officers continued speaking in the group's direction, but what they said was unclear because several people spoke at once. [See id. at 98:1-25.] Carter turned around, raised his hands, and yelled, "What?" or "Why?" twice, and Officer Meritt tased Carter from a distance of ten or fifteen feet. [Cangiamilla Dep., at 30:14-16; Doyle Dep., at 21:11-14.] The entire incident, from the officers' first interaction with the group to the tasing of Carter, took approximately fifty seconds. [See Explorer B. Galanos Dep., at 58:5-11 (the time from the officer's initial radio call to dispatch to the call for paramedics was approximately fifty seconds). But see Sergeant Koran Dep., at 100:7-25 (the initial call-in time is not necessarily the time the officers first approached Carter).]

The remaining facts are undisputed. The taser darts contacted Carter's chest and abdomen. He stood straight and fell backward, striking his head on the sidewalk and fracturing his skull. When the taser's five-second cycle completed, Officer Meritt immediately requested paramedics. Carter spent three nights in intensive care and four more under a neurosurgeon's care. Carter claims to suffer from permanent hearing loss and balance problems as a result of the incident.

Carter's blood alcohol level was measured at the hospital. Approximately one hour after the incident, at 11:15 p.m., his BAC measured .15. [Megan Damico Dep., at 42:20.] Carter was later charged with violations of California Penal Code Sections 148(a)(1) (resisting, delaying, or obstructing a police officer) and 647(f) (public intoxication). The charge under section 148(a) was later dropped, but Carter pleaded guilty to public intoxication under section 647(f).

Carter's First Amended Complaint alleges six causes of action against Defendants Meritt and the City of Carlsbad (the "City"): (1) excessive force under 42 U.S.C. § 1983, against Officer Meritt; (2) failure to train under 42 U.S.C. § 1983, against the City; (3) failure to supervise under 42 U.S.C. § 1983, against the City; (4) battery under California State law, against Meritt and the City; (5) negligence under California State law, against Meritt and the City; and (6) a violation of California Civil Code section 52.1 against Meritt and the City. Defendants seek summary judgment on each of Carter's claims.

LEGAL STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party's claim, or to a defense on which the nonmoving party will bear the burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos. Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). When the nonmoving party would bear the burden of proof at trial, the moving party may satisfy its burden on summary judgment by simply pointing out to the Court an absence of evidence from the nonmoving party. Miller, 454 F.3d at 987. "The moving party need not disprove the other party's case." Id.

Once the movant has made that showing, the burden shifts to the opposing party to produce "evidence that is significantly probative or more than 'merely colorable' that a genuine issue of material fact exists for trial." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citing FTC v. Gill, 265 F.3d 944, 954 (9th Cir. 2001)); see also Miller, 454 F.3d at 988 ("[T]he non-moving party must come forward with more than 'the mere existence of a scintilla of evidence.'") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The Court must review the record as a whole and draw all reasonable inferences in favor of the nonmoving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 736, 738 (9th Cir. 2000). However, unsupported conjecture or conclusory statements are insufficient to defeat summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). "Thus, '[w]here 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.'" Miller, 454 F.3d at 988 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio , 475 U.S. 574, 587 (1986)).

DISCUSSION

42 U.S.C. § 1983 Against Officer Meritt-Excessive Force Defendants move for summary judgment on Carter's § 1983 claim against Meritt for excessive force, arguing that Carter's constitutional rights were not violated because Officer Meritt's use of the taser was reasonable under the circumstances. Defendants further argue that, even if Carter did suffer a constitutional deprivation, Officer Meritt is entitled to qualified immunity because the state of the law surrounding the appropriate use of tasers was sufficiently unclear that a reasonable officer would not have known his use of the taser violated Carter's constitutional rights.

In evaluating a police officer's assertion of qualified immunity, the Court makes two determinations. The Court decides, first, whether, "taking the facts in the light most favorable to the non-moving party, the officer's conduct violated a constitutional right; and second, if a violation occurred, whether the right was clearly established in light of the specific context of the case." Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010) (internal quotation marks omitted). The Court has discretion to address either prong of the qualified immunity analysis first. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009).

A.Whether Carter Suffered a Constitutional Deprivation

The Court examines allegations of excessive force under the Fourth Amendment's prohibition

on unreasonable seizures. Bryan, 630 F.3d at 823. The Court inquires "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them." Id. (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). The Court "must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. (internal quotation marks omitted); see also Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001). "Stated another way, [the Court] must 'balance the amount of force applied against the need for that force.'" Bryan, 630 F.3d at 823-24 (quoting Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003)). "This balance must be 'judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Boyd v. Benton Cnty, 374 F.3d 773, 779 (9th Cir. 2004) (quoting Graham, 490 U.S. at 396). "The need for such balancing means that 'summary judgment . . . in excessive force cases should be granted sparingly.'" Id. ...


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