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J.P., A Minor By Her Guardian Ad Litem v. City of Porterville

July 5, 2011



This civil rights lawsuit arises from a fatal shooting involving members of the City of Porterville Police Department and decedent Eusebio Prieto ("Prieto"). Natalie Prieto and minors J.P., R.B, and S.B., who are all relatives of Prieto, filed suit in this Court against the City of Porterville ("the City"), Sergeant John Hall ("Hall"), Sergeant Jeff Dowling ("Dowling"), Sergeant Larry Rodriguez, and Chief Chuck McMillan. The active complaint is the Second Amended Complaint ("SAC"). Plaintiffs allege state law claims for negligence and battery, and claims under 42 U.S.C. § 1983 for violation of the Fourth Amendment (excessive force) and Fourteenth Amendment (familial relationship) and Monell liability. Defendants now move for summary judgment. For the reasons that follow, Defendants' motion will be granted, and the Clerk will be directed to close this case.


On July 24, 2008, sometime in the late morning, Prieto drove his vehicle at an estimated 80 m.p.h. directly towards on-coming traffic. *fn2 DUMF 1; SAC ¶ 17. Prieto was driving towards City police officer Kris Contreras ("Contreras"). See Contreras Depo. 18:7-8. Contreras was in an unmarked police vehicle that had lights and a siren. See Contreras Depo. 16:7-16. Prieto swerved his car, causing it to hit the curb where it sustained damage, including two popped tires. See id. at 19:20-25. Contreras turned his lights and siren on, turned his car around, and followed Prieto's vehicle. See id. at 21:5-15. Contreras got on the radio and broadcasted that a vehicle had almost hit him head-on and was traveling eastbound in a westbound lane at a high rate of speed. See id. at 20:5-18. Hall heard Contreras on the radio, and recalled that Contreras said that he was in pursuit and attempting to stop a car that had "tried to take him head-on." See Hall Depo. 15:6-10. Prieto's vehicle came to a stop about a half mile after passing Contreras due to what Contreras perceived to be mechanical failure. See Contreras Depo. 19:19-25. Prieto's vehicle was near a Foster Farm's plant.

Contreras drew his gun and ordered Prieto to exit the vehicle. See id. at 25:24-26:14. Prieto armed himself with a screwdriver and exited his vehicle. See DUMF 2. Ignoring commands to "stop" and to "drop your weapon," Prieto lunged or "jabbed forward" at Contreras with the screwdriver. See DUMF 3; Padilla Depo. 24:6-14. Contreras backed away from Prieto. See DUMF 4. Ignoring commands, Prieto yelled "shoot me, kill me." See DUMF 5. Eventually Prieto ran from Contreras towards civilians and the Foster Farms parking lot, and other police officers began to arrive with their sirens on. See Padilla Depo. 28:14-29:11. Contreras opined that Prieto could not move very fast, in part because Prieto was heavy set, and characterized Prieto's top speed as "barely moving" because of Prieto's size. See PAMF's 49-50.

Contreras informed Hall and Dowling (who had arrived) that Prieto had charged or "come at" him with a screwdriver. See DUMF 7; Contreras Depo. 42:25-43:4. Hall, Dowling, and Contreras pursued Prieto on foot. PAMF 24. The officers followed Prieto into the Foster Farms parking lot, and Contreras radioed dispatch to contact Foster Farms and tell them to "lock down." See Contreras Depo. 44:17-25. All three officers had their guns drawn. PAMF 31. In the parking lot, Prieto repeated to the officers, "you're going to have to kill me or just shoot me," and then Prieto stabbed himself in the neck with the screwdriver. See Hall Depo. 32:7-33:3; DUMF's 8, 9. After seeing this behavior, Hall radioed dispatch to send an officer with a Taser weapon. See PAMF 29; Hall Depo. 33:4-8.

Prieto and the officers continued walking through the parking lot and the officers were telling him that they were the police, to stop, to drop the weapon, and not to move, but Prieto kept going through the parking lot, stabbed himself in the neck "a couple more" times, and said that the officers would have to shoot or kill him. See Hall Depo. 33:17-34:3. Prieto's neck was bleeding heavily. See PAMF 32. Hall believed that Prieto was acting like he was "crazy" or under the influence of drugs, see Hall Depo. 49:7-11, and Dowling believed that Prieto's behavior may be due to the use of a stimulant like methamphetamine or cocaine. *fn3 See Dowling Depo. 10:13-19.

Prieto began walking down a sidewalk as the officers moved to a grassy area near Prieto. See PAMF 35. The officers told Prieto to stop, that they were police officers, to don't go any further, and to drop the screwdriver. See Hall Depo. 36:8-11. However, Prieto did not comply and continued to head towards the front of the Foster Farms building while stabbing himself and saying that the officers were going to have to shoot him or kill him. See id. at 36:13-18. Hall positioned himself between Prieto and the door of the Foster Farms building. See id. at 36:19-37:7. Hall wanted to prevent Prieto from getting inside where employees would be, and he wanted to try to change Prieto's direction back to the parking lot. See id. & 56:12-22. At some point, City police officers John Benas ("Benas"), Rick Carrillo ("Carrillo"), and Mark Lightfoot ("Lightfoot") arrived on the scene.

The officers continued to give commands to Prieto. See Hall Depo. 52:4-9 ("We were giving him commands the entire time. . . . Commands were continuous pretty much from the moment we got out of the car all the way up to the very end."). It appeared to Carrillo that Prieto was not "paying attention" to the officers and was in "sort of a daze." See Carrillo Depo. 9:10-14. Prieto advanced on Hall with the screwdriver raised. See Hall Depo. 49:4-14, 55:10-17; Benas Depo. 33:4-34:12. Hall explained:

He starts to come towards me, and I don't know if he's coming towards me to attack me with the screwdriver, or if he's trying to go over the top of me to get . . . inside and attack someone inside. He had already been plunging that screwdriver in his neck. His mannerisms, he was acting like he was either under the influence of drugs, he was acting crazy, and he's obviously extremely dangerous, and he starts to come forward to me, and at that point I felt like he was either going to kill me, or get inside and kill somebody in there. So, I fired.

Hall Depo. 49:4-14. At the time that Prieto turned towards Hall, Lightfoot perceived that Prieto posed a threat to Hall. See Lightfoot Depo. 15:7-11, 16:3-10. Hall was approximately 8 to 10 feet away from Prieto at the time Hall fired this shot. *fn4 See DUMF 13. Although Prieto was not running at Hall at the time of the shot, Prieto was advancing on Hall. See PAMF 47; Hall Depo. 54:16-55:17. *fn5 The single shot caused Prieto to momentarily pause, hunch/slump over, and then continue walking in another direction. See PAMF 61; Hall Depo. 53:3-8. Hall did not fire a second shot because Prieto's forward movement stopped, and Hall believed that Prieto was no longer trying to get into the business and was no longer an immediate threat to Hall. See id. at 54:5-12. Both before and after Hall's shot, Prieto was injuring himself with the screwdriver. See PAMF 41.

Prieto continued walking and went through an opening in a gate that was next to a guard shack. See PAMF's 64, 65; Hall Depo. 75:6-15, 77:2-4; Linley Depo. 17:8-16. William Linley, a Foster Farms employee, was inside the guard shack. See Linley Dep. 16:14-17. As Prieto walked passed the guard shack, Prieto and Linley were face to face through the guard shack window. See id. at 17:11-16. When Linley saw Prieto "face to face," Linley felt "real fear." See id. Linley explained that he was afraid for Prieto and for anyone who came into contact with Prieto because Prieto looked like someone who was not himself and "had a look of extreme anger" or who was "out of his mind." Id. at 18:6-14. Linley stated that the expression on Prieto's face indicated an intention of expressing anger in some fashion, and even if the intention was not to hurt someone, Prieto looked like he could do so. See id. at 18:17-22. Nevertheless, Prieto passed by the guard shack without attempting to open the door or window, and entered a courtyard area. See PAMF's 65-66. *fn6

In the courtyard, Prieto passed several doors without trying to enter, including some that had people standing behind them. See PAMF 71. Prieto stopped at a set of double doors, which led to an employee break room. *fn7 See Linley Depo. 24:4-8. At that time of day, there could have been as many as 50 employees in the break room, and the doors were unlocked. See id. at 15:19-16:8, 23:14-16; Ramos Depo. 36:10-12. Contreras testified that, by the time Prieto reached the double door area, Prieto looked tired, "[a]mong a lot of other things." See Contreras Depo. 67:1-3. Also, around the time that Prieto entered the courtyard, officer Robert Craig arrived on the scene and joined the other officers. See PAMF 70. Craig arrived with a bean bag shotgun because he knew that a request for less lethal options had been made when he heard the request for a Taser over the radio. See PAMF 68.

In the Foster Farms reception area, receptionist Claudia Ramos heard someone yell "lock the doors," and she looked out the window towards the courtyard and saw a man enter the courtyard through the gate while being pursued by other men with guns. See Ramos Depo. 10:10-16, 12:3-13:25. Ramos later recognized Prieto as a former Foster Farms employee. See id. at 14:12-16. Ramos held the doors closed with the help of other employees, including Marty Weakley. See Ramos Depo. 33:16-24; Weakley Depo. 21:16-25. Weakley heard Prieto ignore multiple commands to stop, and was holding the door shut because, in his words, there were women in the reception area. See Weakley Depo. 21:16-23:12. Ramos testified that she kept holding the doors shut, even when she knew it was Prieto, because of the way Prieto looked and because of the officers' pursuit. See Ramos Depo. 34:1-35:24. Ramos and Weakley saw Prieto make his way to the double doors of the break room. See Ramos Depo. 14:17-15:7; Weakley Depo. 20:23-21:2. Weakley thought that Prieto was staggering and did not look coherent.

See Weakley Depo. 19:25-20:4, 21:10-12. Ramos testified that Prieto did not look angry, but looked unstable and had an expression that she had never seen before. *fn8 See Ramos Depo. 33:3-15. Ramos testified that they held the door shut, even when they recognized Prieto, because it was possible that Prieto would come to them and it looked "like [Prieto] was going to do something." Id. at 34:1-18. Ramos was afraid of Prieto. See id. at 34:19-20.

At the double doors, the officers surrounded Prieto in a semi-circle. See Lightfoot Depo. 19:2-9. Hall, Benas, and Contreras could see people behind the double doors, but Craig, Dowling, and Carrillo did not see anyone through the tint of the double doors. *fn9 See Benas Depo. 42:4-44:8; Carrillo Depo. 18:23-19:1; Contreras Depo. 65:5-66:25; Craig Depo. 46:16-21; Dowling Depo. 29:22-30:3; Hall Depo. 77:1-17. However, Carrillo testified that in the course of the investigation, it was determined that there were employees behind the double doors in the break room. See Carrillo Depo. 18:18-22. Hall testified that he had concerns about Prieto getting inside the double doors. See Hall Depo. 79:21-80:8. Hall explained: "Again, concern being if he gets inside. I know there's got to be people inside, and concern being if he gets inside he's going to hurt somebody or kill somebody, and we can't let him get inside based on everything he's been doing at that point." Id. at 80:4-8. The officers gave Prieto commands, including to stop, to drop the screwdriver, and to not to go inside. See id. at 80:3-4; Contreras 91:10-18; Maniss Depo. 17:12-18. Linley testified that he heard an officer yell, "Stop. Don't go in there. We'll shoot. Don't go in there." DUMF 16. However, neither Hall, Dowling, Contreras, nor Carrillo recall saying or hearing a warning that shots would be fired. *fn10 See Carrillo Depo. 15:5-8; Contreras 92:3-9; Dowling Depo. 31:1-15; Hall Depo. 82:19-25. Prieto ignored the commands. See Hall Depo. 80:10.

Ramos (who was in the reception area) testified that Prieto did not get close enough to open the double doors, but Prieto was reaching for the door. See Ramos Depo. 22:8-15. However, other witnesses, such as Weakley (who was also in the reception area) and Carrillo testified that Prieto reached for the door handle, and the door jiggled or rattled, but did not open. See PAMF 93; see also Benas Depo. 48:8-18 (Prieto touched and moved the door); Contreras Depo. 85:22-86:4 (Prieto touched and moved the door); Craig Depo. 29:9-19 (Prieto touched and moved the door); Hall Depo. 80:9-13 (Prieto started to pull the doors open); Linley Depo. 19:25-20:7 (Prieto grabbed the handle, but cannot recall if the door ever opened).

When Prieto was near the door and began reaching for the handle, Craig and other officers came up behind Prieto, and Craig announced, "bean bag, bean bag, bean bag." See Craig Depo. 28:1-8. Prieto was just over an arm's reach from the door handle. See id. Yelling "bean bag" communicated to other officers that Craig was about to discharge his bean bag shotgun. See PAMF 82. Lightfoot (who was a few feet away from Dowling) and Benas heard Craig yell "bean bag," and Benas also began to yell "bean bag." See PAMF's 85, 86. The officers around Craig made a subtle movement and provided Craig with a clear line of site to Prieto. See Craig Depo. 28:25-29:8. However, Hall and Dowling did not hear anyone yell "bean bag," and Contreras has no recollection of hearing anyone yell "bean bag." See Contreras Depo. 86:25-87:2; Dowling Depo. 27:2-4; Hall Depo. 73:8-12. Also, about at this time, officer Joshua Maniss and his K-9 unit arrived and took a position about 7 to 8 feet from Prieto. See Maniss Depo. 10:19-22.

According to Craig, once Prieto touched the door handle, Craig fired the bean bag shotgun. See Craig 28:5-17. *fn11 Craig fired four bean bag rounds in quick succession from a distance of about 10 feet, and hit Prieto three times. *fn12 See PAMF 98; Craig Depo. 39:10-16. Craig believed that the second shot caused Prieto to turn around, and Craig continued to fire until he believed that Prieto had given up. See Craig Depo. 39:10-40:21. Also at the time that Hall saw Prieto touching the door handle, Hall testified that he fired his gun at Prieto between 4 and 5 times in order to prevent Prieto from entering the break room. See Hall Depo. 79:24-80:18. Hall fired in rapid succession. See Hall Depo. 92:7-9. Dowling was 2 to 3 feet from Hall when Hall fired. See PAMF 121. Dowling got in position and fired one shot after Hall had fired multiple shots. See PAMF 117; Dowling Depo. 23:17-20. Dowling testified that he believed that Prieto would be a danger to anyone in the building. See id. at 23:9-23. Dowling saw Hall firing and did not think that Hall's shots were having an effect on Prieto. See Dowling Depo. 23:9-23, 25:10-16. By the time Dowling fired, Prieto was starting to fall down, so Dowling did not believe that there was a need to fire more than the one shot. See id. at 23:19-23. Contreras testified that there were numerous shots fired and that he could not say when exactly Prieto went down, but Prieto did drop down sometime during the gun shots. See Contreras Depo. 103:13-23; PAMF 116. Craig testified that Prieto slumped down after Craig had fired his last shot, that is the fourth bean bag round. See Craig Depo. 41:12-15. Craig testified that Prieto did not drop quickly, but instead started to slump down. See id. at 42:4-11. Prieto died as a result of multiple gun shot wounds. *fn13 PAMF 136.

The precise sequence of the shots is unknown. The sound of the bean bag shotgun is much louder and much more distinct than a handgun. PAMF 113. While Craig was firing the bean bag shotgun, he did not hear other shots being fired, and did not hear shots in the courtyard prior to his firing the bean bag shotgun. See Craig Depo. 33:12-22, 43:12-15. Contreras has no understanding of whether the handguns or the bean bag shotgun was fired first. See Contreras 85:1-4. In fact, Contreras testified that he did not know that Craig had fired the bean bag shotgun until after the incident. See id. at 80:21-81:4. *fn14 As part of the internal investigation of the incident, Benas indicated that the shotgun was fired "momentarily" before the handguns. See Benas Depo. 51:19-22. Benas testified that the shots from the shotgun and the shots from the handguns were "very close" and "almost simultaneous." Id. at 50:21-51:2. Benas could not distinguish between the shotgun and the handguns because there were multiple shots being fired at the time. See id. at 52:1-7. Lightfoot testified that he could not recall whether Craig fired first, whether Hall and Dowling fired first, or whether the shots were fired simultaneously. See Lightfoot Depo. 22:23-23:2. Dowling believed that he heard another weapon, other than his and Hall's respective handguns, being discharged during the handgun shots. See Dowling Depo. 27:5-11. Hall was unaware of the bean bag gun. See Hall Depo. 73:8-12. Hall did hear two other discharges of weapons, but he could not tell if the discharges came from two other weapons or one other weapon. See id. at 90:22-91:4. Carrillo did not specifically see anyone firing, and he could not tell whether the shots that he had heard were from the handguns or the shotgun. See Carrillo Depo. 16:6-11.

Foster Farms employee Marty Weakley testified that he heard two sequences of shots -- one volley was fired, which caused Prieto to turn, and a second volley was fired after Prieto tried to get through the door a second time. See Weakley Depo. 27:4-31:4, 35:15-36:1. Weakley saw the bean bags land on the ground during the first volley, and assumed that no handguns were fired because Prieto seemed unaffected by that volley. *fn15 See id. at 34:8-21. Weakley testified that he did not see bean bags after the second volley, and after the second volley, Prieto slumped over. See id. at 35:15-36:1. Weakley did not recall the lapse in time between the first and second volley. See id. at 30:20-25. Similarly, Linley testified that he perceived two volleys, with a "brief pause" of no more than ten seconds between the volleys. See Linley Depo. 20:14-21:18. Linley could not tell which officers were firing, and that it seemed like they all fired. See id. Linley explained that the officers fired both volleys at times when Prieto had either touched or was reaching for the door. See id. at 20:3-7, 22:8-18. Linley did not know whether the shotgun was fired, but did see handguns fired during the first and second volleys. See id. at 25:15-26:24. Linley testified that it was not until the second volley that Prieto went down. See id. at 21:1-7.

At the time the shots were fired, Maniss had been in position with his K-9 unit for about 3 to 5 seconds. See Maniss Depo. 18:17-21, 20:4-10. Maniss's dog was barking and focused on Prieto. See PAMF 88. However, Maniss did not believe that deployment of the dog was appropriate due to the close proximity of the other officers. See Maniss Depo. 15:17-16:1.

Additionally, at the time of the shots, Prieto was never able to open the double doors and never had any part of his body inside the double doors. See PAMF's 96-97. Prieto never acknowledged or responded to the officers' commands. PAMF 128. Prieto never verbally threatened anyone at the scene, and there was no information that Prieto had injured anyone other than himself. See PAMF's 130-131. Prieto did not make an aggressive move towards the officers at the time of these shots. See PAMF 38; Footnote 5 supra . At the time shots were fired, Prieto was holding the screwdriver in his hand, but was not doing anything with it. See PAMF 94. Also at the time these shots were fired, Contreras believed that Prieto was a threat to the people in the break room because Prieto "was already homicide [sic], suicidal, and he had already been shot once, and he made no attempt to comply with our demands or surrender." Contreras Depo. 83:25-84:5. Similarly, Linley testified that he was thankful that the officers fired because he "was very, very fearful that [Prieto] was going to make it inside the break room," and Linley was concerned for the employees who were inside. Linley Depo. 31:23-32:8.


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); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire, 210 F.3d at 1102-03. If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).

The opposing party's evidence is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). 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. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010); Gordon v. Virtumundo, Inc., 573 F.3d 1040, 1058 (9th Cir. 2009); Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.


I. Fourth Amendment -- Excessive Force

Defendants' Argument

Hall and Dowling argue that they used objectively reasonable force. Prieto had endangered Contreras and other motorists and had lunged at Contreras with a screwdriver. Prieto defied commands, and instead told officers to shoot him. Prieto stabbed himself multiple times in the neck, and was under the influence of methamphetamine. Prieto advanced on Hall and the entry to Foster Farms with a weapon in hand. Despite being shot one time, Prieto continued going and advanced to a set of doors that lead to a break room and Foster Farms employees. Prieto continued to disobey commands, and attempted to open the doors before being shot. It was Prieto's decisions, and no one else's, that caused the use of force. Prieto had every opportunity to stop and avoid the shooting, but he did not stop. Further, Foster Farms employees were afraid, even when they realized Prieto was a former employee. While other force options may have been available, the exigency of Prieto attempting to enter the break room where employees were located outweighed trying to use other force options.

Plaintiffs' Opposition

Plaintiffs argue that the facts are profoundly disputed. The evidence indicates that Prieto did not pose an immediate threat of death or serious injury to Hall during the first shot or to any third parties during the other shots. A jury could conclude Prieto was simply walking away from the officers injuring himself with the screwdriver, and he never threatened or charged anyone at the time of Hall's first shot. Likewise, a jury could conclude that the fatal gun shots by Dowling and Hall were fired after Prieto had been incapacitated by several bean bag ...

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