The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
Plaintiffs, the spouse, children and parents of Decedent Stephen Anthony Vargas, filed the instant motion for leave to file an amended complaint on June 3, 2011. The motion was heard on July 1, 2011, before the Honorable Dennis L. Beck, United States Magistrate Judge. Theodore Hasse appeared on behalf of Plaintiffs. Valerie Velasco appeared on behalf of Defendants City of Fresno ("City"), Fresno Chief of Police Jerry Dyer and Fresno Police Officer Mike Palomino.
Plaintiffs filed this civil rights complaint on April 5, 2010, against
the City of Fresno ("City"), Chief of Police Jerry Dyer and Fresno
Police Officer Mike Palomino (collectively "Defendants"). Plaintiffs
filed a First Amended Complaint ("FAC") 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 (all Defendants); (2)
violation of Plaintiffs' Fourteenth Amendment liberty
interest in the companionship and support of Decedent (all
Defendants); (3) wrongful death (City and Palomino) and (4) negligence
(City and Palomino).
On June 3, 2011, Plaintiffs filed this motion for leave to file a Second Amended Complaint.*fn1 Defendants filed their opposition on June 17, 2011, and Plaintiffs filed a reply on June 22, 2011.
According to the FAC, 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 of justification, fired a second volley of bullets at Decedent. Decedent was shot approximately 9 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 4 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 4 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 FPD.
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.