ORDER DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR SUMMARY
This is an action for wrongful death and infringement of rights under the Fourth and Fourteenth Amendments to the United States Constitution. The action arises out of the shooting death of decedent Steven Anthony Vargas ("Decedent") by Fresno City Police Officer Mike Palomino ("Palomino") during the course and scope of Palomino's employment. The action is brought by Julia Diane Enriquez as successor in interest to Decedent and as guardian ad litem for Decedent's minor children. Plaintiffs' currently-operative Second Amended Complaint ("SAC") alleges claims pursuant to 42 U.S.C. § 1983 against Palomino in his individual and official capacity, against Fresno Police Chief Jerry Dyer ("Dyer") in his individual and official capacities and against the City of Fresno. Currently before the court is a motion for summary judgment or summary adjudication by all Defendants. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
DEFENDANTS' UNDISPUTED MATERIAL FACTS
Defendants' proffer of undisputed material facts ("UMF's") can be divided into two general categories; in the first category are proffered facts relating to events directly leading to, during, and directly following, Palomino's shooting of Decedent; second are facts relating to the culture of the Fresno Police Department and, in particular, to its culture and practices relating to the use of deadly force. The court will consider the two sets of facts separately.
I. Facts Pertaining to the Shooting of Decedent by Palomino
Defendants' proffered UMF's regarding the shooting of Decedent by Palomino are relatively fewer in number and although they are mostly disputed in some particular, it is possible to derive from the facts a picture of what took place that is sufficiently established for the purpose of analysis of Defendants' motion for summary judgment with regard to Palomino.
It is not disputed that at 2:50 p.m. on October 27, 2009, a bystander named Aurelio Santiago ("Santiago") flagged down Palomino, who was driving in his police car westbound on McKinley Avenue just west of Cedar Avenue. Santiago summoned Palomino to the property located at 4021 E. McKinley. Santiago had been driving a blue van on McKinley and had witnessed a red Suburban swerve left across traffic and onto the sidewalk on the left side of the street where it swerved on and off the sidewalk until it rolled across the lawn at 2021 E. McKinley and came to a stop against a car in the driveway. When Palomino arrived in his police car, there is no dispute that Santiago told Palomino that he (Santiago) had been informed that Decedent was high on the drug phencyclidine, here referred to as "PCP" or "JK". It is also not disputed that Santiago informed Palomino that Decedent might have a gun and/or weapon. See Deposition of Aurelio Santiago, exhibit 15 to Doc. # 98 (Santiago informs Palomino Decedent "might have a gun" and later said Decedent "might have a weapon").
Although there is some dispute as to the proximity of other persons to the events alleged, there is no dispute that Santiago was standing approximately five feet from Palomino and had an unobstructed view of the interaction between Palomino and Decedent. There is also no dispute that there were other persons in the vicinity. Some were apparently behind Santiago's van which an aerial photograph shows is parked on the street and slightly past the fence line that divides the subject property from the house next door. A woman who resides at 2021 E. McKinley was apparently in the house along with some other persons. Although Plaintiffs dispute Defendants' use of the term "commotion" to describe the scene at the time Palomino arrived, and although there is some dispute as to whether the term "hysterical" properly describes the mental state of the woman resident at the address, the court finds the application of both terms is not substantially inaccurate in view of all the evidence submitted.
Plaintiffs deny Defendants' allegation that Decedent was under the influence of phencyclidine (hereinafter "PCP") at the time of the encounter with Palomino. There appears to be no substantial basis for the denial. An analysis of Decedent's blood following the shooting showed 221 ng/ml of PCP and indicated that blood levels in excess of 90 ng/ml are toxic. The court also finds that the accounts of both Palomino and Santiago that stated that Decedent appeared to be "out of it" or disconnected and unaware of his surroundings is consistent with the toxicological analysis. The court concludes that there is undisputed evidence that Decedent was substantially mentally impaired owing to the presence of a toxic amount of PCP in his blood.
There is no dispute that Palomino ordered Decedent to "show his hands" on at least three occasions and that Decedent did not comply. While Defendants do not allege whether the window to Decedent's car was up or down at the time of the shooting, it does appear to be Plaintiffs' contention that Defendants have not shown that Decedent would have been able to hear Palomino's commands to "show his hands." To the extent that the issue is material to Plaintiffs' claims, the court finds that the opinion testimony by Plaintiff's forensic acoustic expert is sufficient to raise an issue of material fact as to whether or not Decedent could effectively hear the command to show his hands notwithstanding his chemically impaired state. In this regard the court notes that the photograph submitted as Exhibit A to the Declaration of Michael Palomino appears to indicate that Palomino was standing on the passenger side of Decedent's vehicle looking through the front-seat passenger side window at Decedent at the time of the shooting. Doc. # 88-1. It is also evident that Palomino fired the first volley of shots through the front passenger side window which appears shattered in the photograph.
According to Palomino's Deposition, Palomino was able to look through the clear glass of the passenger side window and see Decedent seated and belted behind the steering wheel of the Suburban. In his deposition, Palomino states that as he observed Decedent, Decedent appeared to be "writhing around" and incoherent. Palomino testified that after he had repeatedly commanded Decedent to "show his hands," Decedent placed both his hands on the steering wheel and deliberately turned his head and looked at Palomino. Palomino Dec. at 85-87. After Palomino commanded "let me see your hands" for the final time, Decedent took his hands off the steering wheel and bent down toward the floor of the car as if reaching for something. It is not disputed that at this point Palomino fired the first volley of shots through the passenger-side front window of the car at Decedent. Whatever the condition of Decedent was after the first volley of shots, it is not disputed that Decedent never came back to a sitting position and that his hands never came into Palomino's view.
Palomino's testimony is somewhat vague as to the number of shots that were fired, however it is not disputed that Palomino fired at least two volleys of three or more shots each then reloaded his handgun and proceeded to fire additional shots. The SAC alleges Decedent was struck by bullets nine times. Decedent was pronounced dead after transportation to a local hospital.
The court notes that the deposition testimony of both Palomino and Santiago supports the facts recited above. The court finds these facts are not disputed.
II. Facts Pertaining to Motions for Summary Judgment as to Dyer and City of Fresno
Defendants proffer a total of 28 UMF's to support their motion for summary judgment as to Defendants Dyer and the City of Fresno. The first six of the proffered UMF's (UMF #'s 22 through 28) concern the standards established by Peace Officer Standards and Training ("POST"), which the parties agree are an authoritative set of standards for police training and conduct. Defendants assert that Fresno Police Department (hereinafter, "Department") operates in compliance with those standards. UMF #'s 22 through 28 are taken from the declaration of Robert Nevarez, Deputy Chief of Police.
UMF's numbered 29 through 34 are concerned primarily with the involvement of Defendant Dyer in the investigation of, and policies surrounding, officer involved shootings. Defendant Dyer denies that Department has had at any time relevant to this action any policy, custom or practice of permitting unlawful searches or seizures, permitting shootings by officers of innocent persons or the application of excessive force or permitting any deficiency in required training or supervision. Of some significance to the instant motion for summary judgment, Defendants allege that "it is the practice of the [Department] to wait for the Fresno County District Attorney's office to conclude their criminal investigation into all officer involved shootings prior to concluding their own internal affairs investigation." Doc. # 103-1 at ¶ 32. It appears to be conceded by Defendants that, as a result of the policy of waiting for the completion of the DA's investigation, the mean time for resolution of the internal affairs investigation is typically on the order of years, rather than months. Neither party appears to offer any measure of the mean or median time to closure for an internal affairs investigation of an officer involved shooting.
Defendants' UMF's numbered 35 through 44 pertain to the accreditation of Department through the Commission on Accreditation for Law Enforcement Agencies ("CALEA"), "an international accreditation agency that delineates best practice for law enforcement agencies and ensures that agencies seeking accreditation have adopted written directives and that their members conduct is consistent with their written directives." Doc # 103-1 at ¶ 36. As with Defendants' proffer of facts regarding POST certification, Defendants' proffered UMF's show CALEA accreditation requires that certain policies be in place and that the agency be able to demonstrate procedures that assure compliance with those policies. Department was CALEA certified at the times pertinent to this action.
Of some significance to Plaintiffs' SAC, Defendants proffer the following UMF's at paragraphs 45 and 46 of Document 103-1 to address the issue of Departmental review of internal affairs investigations:
CLEA standards require the Fresno Police Department to have a written directive regarding the time period to complete an internal affairs investigation that allows for extensions and to prove compliance with that directive. At all relevant times the Fresno Police Department was CALEA accredited with regard to the time period for completing internal affairs investigations.
During the April 2011 assessment, the public expressed concerns that the Fresno Police Department had a high rate of officer involved shootings and that investigations into those incidents remained open for extensive time periods and the department addressed those concerns.
The remainder of Defendants' UMF's assert that Department's policy with regard to self-defense and use of force is "consistent with state and federal law as well as modern law enforcement standards and POST guidelines. Doc. 130-1 at ¶ 47. The remainder of Defendants' UMF's (UMF's numbered 48 through 51) state that Department officers report instances of use of force in the conduct of their official duties and that the Department timely reviews, and conducts thorough investigations into, officer involved shooting incidents. Id. at ¶¶ 48-49. Defendants further assert that all officers operate under a functioning chain of command and that procedures are in place to identify officers who "may have issues that could potentially interfere with their duties." Id. at ¶¶ 48, 51.
Plaintiff dispute essentially all of Defendants' proffered UMF's, particularly those that suggest that Departmental policies and procedures are in accord with nationally recognized standards for conduct. In essence, Plaintiff's assert that the fact that Department has experienced a higher-than-expected rate of officer involved shootings, particularly shootings of unarmed suspects, effectively contradicts Defendants' assertion that Fresno Police conduct conforms with legal and agency standards. In other words, Plaintiffs assert that there is a disconnect between what Department purports to establish as practice based on official policies and procedures and what actually happens as evidenced by the high rate of officer-involved shootings. Plaintiffs offer evidence to show that the period between the time of an officer involved shooting and the time the internal investigation of that shooting is concluded is unduly and atypically prolonged so that effective corrective measures, if warranted would not be possible. Plaintiffs also allege that, according to review by their own police practices expert, a total of 19 of the 51 officer involved shootings that occurred during the ...