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Young Han, Individually, and As Successor-In-Interest To Decedent Joseph Han; Nam Han v. City of Folsom


November 8, 2011


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Plaintiffs, survivors of Decedent, Joseph Han ("Decedent"), seek redress for several federal and state law claims alleging that the City of Folsom ("City"), the City's Chief of Police, Samuel Spiegel ("Spiegel"), officers Paul Barber ("Officer Barber"), Daren Prociw ("Officer Prociw") and Ron Peterson ("Sergeant Peterson") (collectively, "Defendants"), violated Decedent's civil rights during the course of responding to a domestic disturbance call at the home of the Decedent and Plaintiffs, his immediate family.

Presently before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, Defendants' motion is granted.


In April, 2009, Decedent began acting increasingly abnormal. (UF ¶1.) For example, according to Decedent's father, he began refusing to eat or drink. (Dep. of Young Han ["Young Dep."] at 13.) Moreover, Decedent's brother testified that when his parents or brother attempted to enter Decedent's bedroom, he would uncharacteristically shout at them to get out. (Dep. of David Han ["David Dep."] at 32-35.)

During one particularly disturbing occasion, Decedent approached his mother in the nude and attempted to kiss her in a fashion that "wasn't a mother[] and son type of kiss." (Id. at 27.) According to Plaintiffs, Decedent had been calling himself god.*fn2

(See Pl.'s Opp'n, filed Sept. 16, 2011, [ECF No. 16], at 6:15.)

On the morning of April 12, 2009, Decedent's mother asked a friend, Mrs. Saito, a registered nurse, to come to their home to speak with Decedent. (David Dep. at 33:16-34:3.) As Mrs. Saito attempted to calm Decedent down, Joseph began yelling at her and ordering her to get out of his room. (Id. at 3:1-36:1.) Left with no other options, the Han family asked Mrs. Saito to call 911 to tell them that they had a "5150"*fn3 situation at the Han residence. (UF ¶ 2.) David Han, hoping that the police could take his brother to the hospital, also called 911 and requested the police meet him down the street from the home. (David Dep. 54:10-17.) David testified that he called the police because he did not believe he would be able to convince his brother to get into the car and go to the hospital. (Id. at 64:10-23.)

When the officers arrived, they informed Plaintiffs that, based on the information at hand, and because Decedent was over 18, they could not take Decedent into custody in accordance with Section 5150 of the California Welfare and Institutions Code. (UF ¶ 4.) The officers explained to the Han family that they were not permitted to take any action beyond talking to Joseph. (UF ¶ 5.) Upon hearing this, Plaintiffs asked the officers to enter the residence to talk to Decedent in hopes that the officers could calm Decedent down. (UF ¶ 7.) Specifically, Decedent's brother, David Han, told the officers they could enter the home "and talk to him and help out." (David Dep. at 67:10-25.) Before entering the home, David Han warned the officers: "I don't know how he's going to react. He's kind of like sporadic, and he's completely not himself." (Id. at 66:2-5.) David Han warned the officers that Decedent had a camping knife and that they should "have [their] Tasers ready." (Id. at 66:6-25.)

When Plaintiffs and the officers approached the home, they discovered that the previously unlocked door had been locked from the inside. (UF ¶ 9.) When the officers entered the residence, accompanied by Decedent's family, David Han told the officers that Decedent had last been seen in his upstairs bedroom. (UF ¶ 11.)

Officer Barber took one step past the threshold of Decedent's bedroom when he saw Decedent either sitting on, or standing next to his couch, holding a knife in his hand. (PRUF ¶ 13.) Officer Barber addressed Decedent by name and explained that he was only there to talk to him and to ensure that he did not harm himself. (UF ¶ 14. )

Decedent began cursing and told Officer Barber that he did not want to talk and demanded that Officer Barber get out of his house. (Dep. of Paul Barber [Barber Dep.] at 49:15-50:8.) Officer Barber then said: "[w]ell, I'm here now. Let's talk. Just drop the knife. I want to make sure you don't hurt yourself." (Id. at 50:7-50:11.)

At this point, Officer Barber had his Taser drawn and pointed at Decedent's center mass. (Id. at 50:3-6.) Decedent pointed the tip of the blade at Officer Barber and told him, "Get the fuck out of my room, or I'm going to cut your throat and shove it down your neck." (Id. at 51:4-7.) Officer Barber then told Decedent to drop the knife, or he was going to Taser him. (Id. at 59:24-60:1.) As soon as Officer Barber drew his Taser, Officer Prociw did the same. (Dep. of Daren Prociw ["Prociw Dep."] at 86:16-17.) According to Officer Barber, he deployed his Taser*fn4 center mass as Decedent began bending forward, as if to stand up. (Barber Depo 60:2-6.)

The Taser, however, failed to subdue Decedent.*fn5 (Id. at 60:12-15.) After Barber tased him, Decedent, holding the knife at chest level, responded: "You can't stop me, you can't Taser me," or "something to that effect."*fn6 (Id. at 61:1-5; UF ¶ 18) Officer Barber asked Decedent two more times to put the knife down. (Dep. of Ronald Peterson, ["Peterson Dep."] at 37:25-38:1.) Officer Barber drew his firearm, stepped into the bedroom, and took another step in so that he "could get a better shot on him." (See Nisenbaum Decl., Ex. B at 221:17-22.) Decedent then advanced to within six feet of Officer Barber.*fn7 (UF ¶ 20.)

According to Officer Prociw, he then heard Officer Barber ask for another Taser and deployed his Taser at Decedent. (Prociw Dep. at 94:23-95:16.) Officer Prociw did not see the reaction that he would expect from a person receiving an electric shock from a Taser. (Id. at 96:6-10.) After Officer Prociw tased him, Decedent maintained his ground, holding the knife "just below the belly button on the waist, kind of still[,] the blade pointing forward." (Id. at 99:11-15.) Officer Barber then fired a single shot from his firearm.*fn8 (UF ¶ 20.) Prociw, however, did not see Decedent react in any way that would be attributed to a gunshot. (Prociw Depo at 100:18-20.)

Officer Barber then exited the room and entered the bathroom with Decedent's brother. (Barber Dep. at 61:25-62:11.) Decedent then shut the door. (Nisenbaum Decl., Ex. B at 223:25-224:18.) Sergeant Peterson, however, did not see Officer Barber exit the room. (UF ¶ 22.) Believing that Officer Barber was trapped in the room with Decedent, Sergeant Peterson kicked open the bedroom door and entered with his gun drawn. (Peterson Dep. at 41:20-24;UF ¶ 23.) As Sergeant Peterson entered, Decedent was in front of the couch, still standing. (Id. at 42:7-12.)

Sergeant Peterson does not recall whether Decedent was still holding the knife at this juncture. (Id. at 43:5-6.)

Officer Prociw, at the request of Sergeant Peterson, deployed another Taser. (UF ¶ 25.) At first, Sergeant Peterson believed that the third Taser was effective because he "went down on the couch"; however, when officer Peterson approached Decedent to take him back into custody, Decedent "just stood back up." (Peterson Depo at 43:14-25.) When he stood up, Sergeant Peterson saw that Decedent still had the knife in his hand. (Id. at 44:7-10.) After ordering Decedent to drop the knife twice to no avail, Sergeant Peterson began backing up toward the door. (Id. at 44:11-45:4.) Decedent then slowly, but deliberately, advanced toward Sergeant Peterson, refusing to drop the knife. (Id. at 45:45:4-7.) At this point, Sergeant Peterson, aiming for Decedent's hip, discharged his revolver at Decedent. (Id. at 48:13-18.) According to Sergeant Peterson, although contrary to standard operating procedure, he aimed for his hip "[b]ecause [he] just wanted him to go down. [He] wanted to take control of the situation. [He] wasn't looking to kill." (Id. at 48:18:22.)

After this second shot, Decedent began falling slowly toward the ground, still grasping the knife in his hand. (Id. at 49:12-22.) Decedent stumbled towards the doorway, eventually falling into Sergeant Peterson, causing the two of them to fall to the ground. (Id. at 50:3-12.) Sergeant Peterson ordered the other officer to procure possession of the knife. (Id. at 51:4-8.) The officers stepped on Decedent's wrist and pinned the knife down on the ground, thereby obtaining custody of the knife. (Id. at 52:7-12.)

Decedent then freed his right hand and punched Sergeant Peterson in the mouth. (Id. at 52:13-18.) The officers finally handcuffed Decedent. (Id. at 26:24-57:2.)

Within approximately one minute of the officers handcuffing Decedent, Folsom medics and fire department arrived to administer medical care. (Id. at 607:12.) Decedent later died at the hospital. (David Dep. at 106:13-14.)

Based upon these facts, Plaintiffs have brought claims against the City of Folsom, the Folsom Chief of Police and the individual officers under 42 U.S.C. § 1983 for failure to train and/or supervise, illegal search and seizure*fn9 and use of excessive force in violation of the Fourth Amendment. Plaintiffs also allege corollary state law claims for negligent infliction of emotional distress, violation of California Civil Code § 52.1, wrongful death and negligent hiring.


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).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of 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). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. Indeed, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

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, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-289 (1968).

In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the 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. Fed. R. Civ. P. 56(c). 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), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Id. at 251-52.

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 289. 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 Rule 56(e) advisory committee's note on 1963 amendments).

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); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982).

The evidence of the opposing party 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. Anderson, 477 U.S. at 255. 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 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts....Where 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.'" Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356.


A. Excessive Force

Defendants contend that their use of force was objectively reasonable because they were faced, in close-quarters, with an aggressive, mentally unstable individual that was overtly and aggressively threatening the officers while brandishing a knife. This factor is compounded, Defendants maintain, by the fact that the only reason they were in the room in the first place was to help calm Decedent down at the request of the Plaintiffs bringing this claim.

Moreover, Defendants assert that their actions were objectively reasonable because they only resorted to deadly force after being threatened with a brandished weapon and attempting to subdue Decedent with non-lethal force. In sum, Defendants argue that no reasonable juror would find that officers responding to a request by Decedent's family, who in the face of an overt threat, attempt to subdue an aggressive, mentally unbalanced individual with nonlehtal force, and only resorted to lethal force when faced with a direct threat, acted unreasonably.

Plaintiffs counter that the intrusion on Decedent's Fourth Amendment interests -- specifically, Defendants' use of force to subdue Decedent -- outweighs the government's interest in this case. Moreover, Plaintiffs contend that determining the amount of threat posed by Decedent "requires a careful sorting of material questions of fact and credibility determinations," and thus, summary judgment is not appropriate in this instance.*fn10

(Pl.'s Opp'n at 25:8-10.) Specifically, Plaintiffs maintain that Decedent made no threat to any person until after the officer confronted him in his own bedroom, and thus, it was unreasonable for the officers to use force upon him after he did threaten them. Moreover, Plaintiffs assert that, after Decedent threatened the officers, they should have redeployed to outside of the bedroom. This is especially true, Plaintiffs argue, because the officers knew that they were dealing with a mentally disturbed individual.

Any claim that law enforcement used excessive force, either deadly or non-deadly, in the course of any confrontation with a citizen, must be analyzed under the Fourth Amendment and its standard of objective reasonableness. See Graham v. Connor, 490 U.S. 386, 395 (1989); Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003). The crucial inquiry in excessive force cases is whether the use of force was "objectively reasonable in light of the facts and circumstances confronting [the officers], without regard to their underlying intent or motivation." Graham, 490 U.S. at 397; Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007).

Calculating whether a particular use of force was reasonable "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake." Graham, 490 U.S. at 396; Blankenhorn, 485 F.3d at 477; Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007). The court must "first assess the quantum of force used to arrest [the Plaintiff]," then "measure the governmental interests at stake by evaluating a range of factors." Davis, 478 F.3d at 1054. Factors evaluated in determining the government interests at stake include, but are not limited to, "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396; Blankenhorn, 485 F.3d at 477; Davis, 478 F.3d at 1054.

Moreover, where it is or should be apparent that an individual is emotionally or mentally unstable, that is a factor that must be considered in determining the reasonableness of the force employed. See Drummond, 343 F.3d at 1058; see also Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) ("In some cases ..., the availability of alternative methods of capturing or subduing a suspect may be a factor to consider."). However, the Ninth Circuit has not "adopt[ed] a per se rule establishing two different classifications of suspects: mentally disabled persons and serous criminals." Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001). Importantly, reasonableness "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396; Drummond, 343 F.3d at 1058. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396--97; Drummond, 343 F.3d at 1058. Thus, "[a] reasonable use of deadly force encompasses a range of conduct, and the availability of less intrusive alternatives will not render conduct unreasonable." Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010).

The overall reasonableness calculus, however, is not limited to these factors. "Rather, we examine the totality of the circumstances and consider 'whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.'"

Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 19974)). Therefore, the court, in analyzing the aforementioned factors, will consider other, more specific factual nuances involved in the particular situation that unfolded on April 12, 2009. Ultimately, however, the most salient factor is "whether the suspect poses an immediate threat to the safety of the officers or others." Smith, 394 F.3d at 702.

First, the court must calculate the quantum of force employed by the officers. In this case, it is undisputed that the officers, by the end of the confrontation, resorted to deadly force. However, "the reasonableness of a particular application of force, [can]not to be considered in a vacuum." Id. at 701. In this case, the use of deadly force is mitigated by the fact that the officers, after Decedent threatened cutting their throat and shoving it down their neck, attempted to subdue Decedent by deploying two Tasers,*fn11 "a medium or intermediate level of force." Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1170 (E.D. Cal. 2008) Aff'd 340 Fed. Appx. 377 (9th Cir. 2009). As set forth above, Officer Barber did not resort to using his handgun until it was clear that the use of the Taser had no effect on Decedent, and Decedent continued to threaten Officer Barber. Moreover, Sergeant Peterson did not fire his weapon until after a third Taser failed to subdue Decedent, and Decedent again stood up with the knife and approached the officers.

In a case that is factually similar, this Court held that officers who deployed five Tasers,*fn12 and continuously cycled those Tasers in drive-stun mode -- the Taser setting which "is considered last resort and should rarely be used" -- acted objectively reasonable because the Taser failed to subdue the resisting victim. See generally id. The officers in Sanders, similar to the officers in this case, faced a obviously unstable, violent individual who refused to subdue to the officers' use of non-deadly force. Id. at 1164. In this case, the officers discharged their firearms only after the Tasers failed and Decedent continued to approach them; in Sanders the officers continued to tase Decedent and cycle drive-stun electric shocks because the previous Tasers were uneffective. In both cases, the recipient of the force passed away. Nevertheless, the Court, as did the Sanders court, finds that the quantum of force used was objectively reasonable, in part because the previous use of non-deadly force failed to subdue a mentally unstable, violent assailant.*fn13

Moreover, in this case, Plaintiffs' own expert testified that each Taser deployment, as well as the discharge of Officer Barber and Sergeant Peterson's firearms, were objectively reasonable. Specifically, during his deposition testimony, Plaintiffs' expert testified as follows:

Q: Any problem with Officer Barber deploying the Taser at the point that he did the first time.

A: No.

Q: And it was proper for Officer Prociw to deploy the Taser when he did?

A: Yes, subject to all the other failures on how to deal with emotionally disturbed persons, yes. When you're faced with a knife at that point, it is a reasonable tool to attempt to use.

Q: And that second deployment, the one by Officer Prociw at that point, also fails to gain the desired effect of disabling Joseph, correct?

A: Yes.

Q: In fact, after the two Taser applications, Joseph continues to advance towards Officer Barber with the knife brandished, didn't he?

A: He did.

Q: And at that point was it reasonable for Officer Barber to deploy deadly force?

A: Yes, to stop the immediate threat.

Q: Was it reasonable for Sergeant Peterson to call for a Taser at that point?

A: Yes.

Q: Officer Prociw deploys what is now going to be his second Taser cartridge at this point, right?

A: Correct.

Q: That will be, I guess, the third Taser discharge, correct?

A: Yes.

Q: Was it proper for Sergeant Peterson during the effect of the Taser to attempt to move in and try to secure Joseph?

A: That is what you do, yes.

Q: But at some point during the third Taser application, Joseph stood up with a knife still in his hand in front of Sergeant Peterson, right?

A: It appears that way, yes.

Q: And at that point Sergeant Peterson fired a single shot from his weapon, didn't he?

A: He did.

Q: Was that reasonable for him to do that?

A: He indicated he felt a direct imminent threat, yes. Use of deadly force would have been warranted. (Deposition of Lou Reiter, filed Sept. 23, 2011, [ECF No. 21, Ex. 1] at 72-80) Based on the foregoing, the court finds that, although the officers ultimately resorted to deadly force, the quantum of force employed was reasonable under the specific circumstances at hand.

Next, the court must balance the alleged intrusion upon Decedent's Fourth Amendment rights with the government's interest by balancing the Graham factors. First, the court begins with "the most important single element" in the reasonableness calculus under Graham -- whether Decedent posed an immediate threat to the safety of the officers or the safety of others. Smith, 394 F.3d at 702.

In this case, the Court finds that the evidence conclusively demonstrates that Decedent posed an immediate threat to the officers, Decedent's family and himself. Indeed, as set forth above, Plaintiffs' expert expressly stated that Decedent posed an "immediate threat." (See Dep. of Lou Reiter at 74:14-16.) These officers were faced with a violent, mentally unstable individual who was brandishing a weapon and overtly threatening the officers that he would cut their throats and shove it down their neck. Moreover, Decedent refused to permit the officers to speak with them and told them that a Taser would not stop him.

Finally, the fact that Decedent managed to strike Sergeant Peterson's face with his fist after being shot twice and tased three times is demonstrative of Decedent's determined intent to harm the officers. Were the officers to, as Plaintiffs suggest, simply leave Decedent alone in his bedroom in his mentally unstable state, in possession of a knife, Decedent could have easily harmed either himself or a member of his family. Based on the facts set forth above, the Court finds the Decedent posed a significant, immediate threat to the officers, himself and his family.

Moreover, the Court finds that the second Graham factor weights in Defendants' favor: the underlying offenses committed by Decedent -- assault on an officer and assault with a deadly weapon*fn14 -- are, at the very least, borderline serious offenses. This factor, however, is mitigated by the third Graham factor: there is no evidence that Decedent attempted to evade arrest by fleeing. While Defendants could argue that Decedent attempted to avoid arrest, there is no evidence that the officers actually were attempting to arrest Decedent. Indeed, the officers initially stated that they could not detain Decedent as a 5150 and only entered the room to speak with Decedent at the request of his family. The officers only attempted to subdue Decedent after he brandished the weapon.

Nevertheless, the Court finds that, based on the immediacy of the threat imposed by Decedent, and the serious nature of the crimes committed by Decedent, the Graham factors, as a whole, militate in favor of a finding that the officers' use of force was objectively reasonable.

Finally, the Court considers other factors unique to the specific events that unfolded on April 12, 2011. See Bryan, 630 F.3d at 826. Here, the circumstances that led the officers to enter Decedent's room in the first place militate in favor of a finding that the officers acted reasonably. Specifically, the officers only entered the home and Decedent's bedroom at the express request of Decedent's family to speak with him in an attempt to calm him down. It was not until Decedent assaulted the officers with a brandished weapon that the situation escalated from an attempt to help the young man to a volatile confrontation requiring the use of force.

In conclusion, based on the aforementioned factors, the Court finds that, as a matter of law, the officers' use of force was objectively reasonable under the circumstances. Thus, Plaintiffs' claim that Defendants' use of force was unreasonable rests on their argument that the use of force was excessive because the officers failed to take into account Decedent's mental condition. However, Plaintiffs' contention that Decedent's mental instability, in-and-of-itself, is sufficient to nudge the officers' use of force from reasonable to unreasonable, is unavailing.

While the mental state of the victim is a factor to be considered in determining the reasonableness of the use of police force, it is far from dispositive. The Ninth Circuit, in delineating that principle, took care to note that there are no separate categories for mentally ill victims and those of sane mind. Instead, the mental stability of a recipient of police force must be accounted for in the reasonableness calculus, considering the totality of the circumstances. Indeed, while the court is required to account for a suspect's mental impairment, there is analogous precedent holding that a suspect's unstable and/or violent mental state actually militates in favor a finding that the use of force is reasonable.

For example, in Sanders, as was the case here, "the officers were in the process of investigating a 5150 call." Sanders, 551 F. Supp. 2d at 1168. The officers were responding to a "call in which it was reported that a female was crying and a man was 'tearing up' the home." Id. When the officers arrived, the suspect was in an "agitated and paranoid state of mind." Id. at 1170. After the suspect grabbed the woman and fell back into the home, the officers tased him five times and continuously cycled the Taser until he ultimately stopped; the suspect later died at the hospital. Id. at 1157-1163. The court held that, because of the suspect's agitated state, and the "rapidly devolving situation," the multiple drive-stun Taser applications were not unreasonable, even though they contributed to his death. Id. at 1170-1176.

Similarly, in Blanford v. Sacramento Cnty., 406 F.3d 1110 (9th Cir. 2005), a man wearing a ski mask and carrying a sword was walking through a residential neighborhood. Id. at 1112. The officers ordered the suspect to drop the sword as he attempted to open the door of a residence.*fn15 Id. at 1113. When the suspect did not drop the sword, the officers fired numerous gun shots at the suspect, one shot hit his spine, rendering him a paraplegic. Id. at 113-114. The court, in holding that the officers' conduct was objectively reasonable, took into account the fact that the officers "considered the possibility that Blanford might be mentally disturbed or under the influence of a controlled substance." Id. at 1116.

As in Blanford and Sanders, the police in this case were faced with a mentally unstable, potentially violent and threatening individual. In both cases, and in this case, Decedent's violent and impaired state of mind actually weigh in favor of a finding that the officers' conduct was reasonable. Specifically, these officers, in close-quarters, with a clearly enraged individual, took the cautious approach of deploying three non-lethal Tasers. Only when it was evident that non-lethal force would not suffice to disarm Decedent, and Decedent advanced on the officers brandishing a knife, did the officers resort to discharging their firearms. Given the circumstances that took place in Decedent's bedroom, it was impossible for those officers to know what Decedent might do.

To this end, in order to protect themselves, and to obtain custody of the weapon for purposes of ensuring Decedent did not harm himself or others, it was prudent of the officers to deploy the force they did.

It is easy to retrospectively suggest that these officers should have taken a different approach to the situation. However, police officers are not required to "find and choose the least intrusive alternative" as that would "require them to exercise superhuman judgment[,] [i]n the heat of battle with lives potentially on balance." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). Moreover, officers are not required to have the perfect vision of 20/20 hindsight. Graham, 490 U.S. at 396.

In this case, the Court finds the alternative suggested by Plaintiffs would have been wholly untenable. Specifically, had the officers, as Plaintiffs suggest, merely left the room and, presumably, the home, they would have left a deranged, clearly violent individual in possession of a deadly weapon with the opportunity to harm not only himself, but also the family members still in the home. Indeed, when asked why he did not exit from the room when Decedent pointed the knife at him, Officer Barber responded: "Protecting my life is what stopped me, protecting the life of my fellow officers to my right, and the family that's downstairs." (Barber Dep. at 55:5-14.) Moreover, taking Plaintiffs' proffered course of action would have undermined the very purpose for the officers' legal entry into Decedent's room in the first place -- Decedent's family specifically requested the officers to enter the room to attempt to speak with Decedent in order to calm him down.

Under these circumstances, it is prudent to ask: had the officers taken Plaintiffs' suggested course of action, and left Decedent alone in the home, and Decedent then caused serious harm to either himself or another member of the family, would the officers and the City not be subject to a similar suit for, at the very least, negligence? Gross negligence? Negligent or Intentional infliction of emotional distress? Deliberate indifference to a known risk? The law does not require police officers, in the heat of an ever-escalating situation, as was the case here, to make these kinds of split-second decisions.

Based on the foregoing, the Court finds that no reasonable juror could find that, based on the totality of the circumstances, the officers' use of force was objectively unreasonable. Matsushita, 475 U.S. at 586-87 Thus, Defendants' motion for summary judgment as to Plaintiffs' claims for excessive force in violation of the Fourth Amendment is granted.

B. Qualified Immunity -- Individual Officers

If a court finds, as it has here, that there is no constitutional violation, the inquiry ends and the individual Defendants are entitled to qualified immunity. Nevertheless, out of an abundance of caution, the Court will discuss whether, if there indeed was a constitutional violation, the individual Defendants are entitled to qualified immunity.

Defendants contend that the individual officers are entitled to qualified immunity because, based on the clearly established law at the time of the incident, a reasonable officer, faced with those circumstances, could have believed that the amount of force employed was not unlawful. Plaintiffs, conversely, maintain that the individual officers are not entitled to qualified immunity because, at the time of the incident, the law clearly established that the officers were required to take Decedent's mental impairment into account, and failed to do so.

Qualified immunity protects "government officials...from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Phillips v. Hust, 477 F.3d 1070, 1079 (9th Cir. 2007); Brittain v. Hansen, 451 F.3d 982, 987 (9th Cir. 2006). The "concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made," and that it is "often difficult for an officer to determine how the relevant legal doctrine will apply to the factual situation that he faces." Estate of Ford v. Ramirez--Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002).

Courts generally engage in a two-part analysis*fn16 in determining whether qualified immunity should apply. See Saucier v. Katz, 533 U.S. 194, 200--02 (2001); Skoog v. County of Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006); Brittain, 451 F.3d at 987. The initial inquiry requires the court to determine whether, "taken in the light most favorable to the party asserting the injury, do the facts show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201; Phillips, 477 F.3d at 1079; Skoog, 469 F.3d at 1229. If the answer is "no," then the calculus ends and the plaintiff cannot prevail; if the answer is "yes," the court moves to the second inquiry. See Saucier, 533 U.S. at 201, 121 S. Ct. 2151; Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007); Johnson v. County of Los Angeles, 340 F.3d 787, 793--94 (9th Cir. 2003).

The second inquiry requires the court to ascertain "whether the right was clearly established," applying an "objective but fact-specific inquiry." Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007); see Saucier, 533 U.S. at 202, 121 S. Ct. 2151; Brittain, 451 F.3d at 988. The critical question is whether "the contours of the right were sufficiently clear that a reasonable official would understand that what he is doing violates the right." Saucier, 533 U.S. at 202; Phillips, 477 F.3d at 1079.

If the officers had a reasonable, yet mistaken, belief that the use of force was not contrary to clearly established law, the officers are entitled to qualified immunity. See Saucier, 533 U.S. at 205--06; Skoog, 469 F.3d at 1229; Johnson, 340 F.3d at 794. Whether an officer could have a reasonable belief that the conduct at question was lawful in accordance with clearly established precedent is a question of law for the court to determine. See Franklin v. Fox, 312 F.3d 423, 437 (9th Cir. 2002); LaLonde v. County of Riverside, 204 F.3d 947, 953--954 (9th Cir. 2000); Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995); Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993).

In this case, the Court has already determined that the officers' conduct did not violate Decedent's Fourth Amendment rights, and thus, the individual Defendants are entitled to qualified immunity. Saucier, 533 U.S. at 201. Even if, however, there was a constitutional violation, the Court finds that a reasonable officer, under the circumstances, could have believed that their conduct did not violate clearly established law.

Specifically, Plaintiffs' contention that no reasonable officer could have believed their conduct was lawful because the law, at the time of the incident, clearly established that officers must account for a suspect's mental instability, is unavailing. Indeed, as set forth above, there is precedent holding that a suspect's mental instability militates toward a finding that an officer's use of force was reasonable; there is also precedent that a suspect's mental state weighs in favor of finding an officer's use of force unreasonable.

Compare Sanders, 551 F. Supp. 2d at 1170; Blanford, 406 F.3d at 1116 with Deorle, 272 F.3d 1282-1283; Drummond, 343 F.3d at 1059. Thus, at the time of the incident, the law was not so clearly established that a reasonable officer could not have reasonably believed that the use of force employed on this occasion, against an armed, violent and mentally unstable individual, was lawful.

Based on the foregoing, the Court finds that the individual officers are entitled to qualified immunity, and thus, the Court grants summary judgment as to the individual officers.

C. Municipal Liability

Defendants contend that there can be no municipality liability because there was no constitutional violation. Even if, Defendants argue, there was a constitutional violation, Plaintiffs have failed to proffer any evidence supporting their claims under Monell v. Dep't of Social Services, 436 U.S. 658 (1978). Plaintiffs contend that the municipality is liable for the officers' conduct because they "consciously failed to employ reasonable and generally accepted police practices for dealing with Plaintiff, someone they knew to be suffering from a mental impairment, obviously acting irrationally and with diminished capacity." (Pl.'s Opp'n at 31:25-28.) According to Plaintiffs, the City failed to train the police in how to do deal with mentally impaired individuals. (Id. at 32:1-2.) Once again, Plaintiffs rest their claim on the fact that the officers were dealing with a person acting under some sort of diminished capacity.

A municipality may only be liable where it individually causes a constitutional violation via "execution of a government's policy or custom, whether by its lawmakers or by those whose edicts or acts may fairly be said to represent them. Monell, 436 U.S. at 694; Ulrich v. City & County of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002). In order to survive summary judgment, Plaintiffs must present evidence of either: "(1) a longstanding practice or custom which constitutes the "standard operating procedure" of a local government entity; (2) the decision of a policy-making official who was, as a matter of state law, a final policy making authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or (3) when an official with final policy making authority either delegated that authority to, or ratified the decision of, a subordinate. Meotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). Complete inadequacy of training may amount to a policy giving rise to Monell liability; however, "adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the [municipality] liable. City of Canon v. Harris, 489 U.S. 378, 379 (1989).

As a preliminary matter, the City of Folsom cannot be held liable for any Monell claims because the Court has found no constitutional violation occurred. See Heller, 475 U.S. at 799 (holding that there can be no Monell liability in the absence of a constitutional violation). Even assuming that the officers' use of force gave rise to a constitutional violation, Plaintiffs have failed to identify any basis for municipal liability.

Plaintiffs have pointed to no specific policy implemented or approved by the municipality; Plaintiffs have not shown any blameworthy conduct by ultimate decision-makers; Plaintiffs have failed to proffer evidence of any prior incident in which the Folsom police used excessive force; finally, and most importantly, Plaintiffs have failed to show that the training of Folsom police officers was inadequate. Plaintiffs merely point to a singe incident conducted by individual officers with no influence on city-wide policy. This single incident, however, is not sufficient to demonstrate a municipality policy or custom. See Smith, 551 F. Supp. 2d at 1179. Plaintiffs have not met their burden of establishing Monell liability, and thus, summary judgment in favor of the City of Folsom is appropriate.

D. Plaintiffs' State Law Claims

Defendants contend that Plaintiffs' state law claims fail because they are essentially corollary to Plaintiffs' federal claims. Specifically, Defendants contend that each of Plaintiffs' state law claims must be analyzed under the same reasonableness standard used to analyze Plaintiffs' excessive force claim, and thus, in the absence of a finding of excessive force, summary judgment must be granted. Plaintiffs admit that their negligence claims against the individual officers "flow from the same facts as the Fourth Amendment violation for excessive force and are measured by the same reasonableness standard of the Fourth Amendment violation for excessive force, and are measured by the same reasonableness standard of the Fourth Amendment.

(Pl.'s Opp'n at 32:7-10.) Nevertheless, Plaintiffs submit that Defendants are liable for negligent infliction of emotional distress and for wrongful death. Moreover, Plaintiffs contend that the City has respondeat superior liability for the acts of the officers because their use of force was unreasonable. Finally, Plaintiffs claim that the individual Defendants are liable for violation of California Civil Code § 52.1 because Decedent's constitutional claims have passed to Decedent's successor-in-interest.

"Federal civil rights claims of excessive force are the federal counterpart to state battery and wrongful death claims; in both, the Plaintiff must prove the unreasonableness of the officer's conduct." Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1002 N.6 (2004) (citing Edson v. Anaheim, 63 Cal. App. 4th 1269, 1274 (1998).) Where "a federal court factually finds that the police officers' conduct was objectively reasonable and grants summary judgment, [that decision] bars a state negligence action premised upon violation of the same primary right." See City of Simi Valley v. Superior Court, 111 Cal. App. 4th. 1077, 1084 (2003) (discussing res judicata and primary rights). "[W]here an employee is found not to have been negligent there can be no vicarious liability." Campbell v. Security Pac. Nat. Bank, 62 Cal. App. 3d. 379, 386 (1976).

Moreover, in order for Plaintiffs' state law negligent hiring claim to survive summary judgment, they must "identify a statute that impose[s] a duty for a public entity to 'non-negligently' hire, select, and train employees,..." Sanders, 551 F. Supp. 2d at 1181.

Finally, in the absence of a viable federal constitutional claim, plaintiffs cannot state a claim for violation of California Civil Code § 52.1. Simi Valley, 111 Cal. App. 4th at 1085; Reynolds v. City of San Diego, 84 F.3d 1162, 1170-1171 (overturned on other grounds Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997).

In this case, the lack of any constitutional violation is fatal to Plaintiffs' state law claims. The Court has found that Defendants acted reasonably in the use of force deployed upon Decedent, and thus, did not commit a constitutional violation. Thus, Plaintiffs' claim for wrongful death against the individual Defendants and the City fails as a matter of law. Therefore, Plaintiffs' claim that the City is liable on a theory of vicarious liability also fails. Since the Court has found that there was no violation of Decedent's constitutional rights, summary judgment in favor of Defendants is also appropriate as to Plaintiffs' claim for violation of California Civil Code § 52.1. Moreover, Plaintiffs' claim for negligent hiring cannot survive summary judgment because they have "failed to identify a statute that impose[s] a duty for a public entity to 'non-negligently' hire, select, and train employees,..." Sanders, 551 F. Supp. 2d at 1181.

Finally, Plaintiffs' claim for negligent infliction of emotional distress is essentially a negligence action, and thus, fails for the same reasons Plaintiffs' direct negligence/wrongful death claim fails.

See Nancy Hersh & Ward Smith, California Civil Practice Torts § 1:49 (2011) ("A Cause of action for the negligent infliction of emotional distress is not an independent tort but the tort of negligence, and all the traditional elements of duty, breach of duty, causation, and damages apply.")


For the foregoing reasons, Defendants' motion for summary judgment is GRANTED.*fn17


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