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Rico v. County of San Diego

United States District Court, Ninth Circuit

June 18, 2013

DONALD RICO and ANTHONY BOJORQUEZ, Plaintiff,
v.
COUNTY OF SAN DIEGO, et al., Defendants.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BARRY TED MOSKOWTZ, Chief District Judge.

Defendant Anthony Tripoli ("Tripoli" or "Defendant") has filed a motion for summary judgment. For the reasons discussed below, Defendant's motion is DENIED.

I. BACKGROUND

This case arises out of the shooting of Plaintiffs Donald Rico ("Rico") and Anthony Bojorquez ("Bojorquez") by Deputy Tripoli ("Tripoli") after a brief car chase near the Pauma Indian Reservation in the early morning hours of December 5, 2008. Plaintiffs, both of whom survived the December 5, 2008 incident, bring claims for excessive force and false arrest under the Fourth Amendment, as well as state law negligence and battery claims.

A. Events Leading Up to Car Chase

At approximately 3:00 a.m. on the morning of December 5, 2008, Deputy Tripoli and two other Sheriff's Deputies - Wizniewski and Power - set out to arrest non-party Ryan Rico (the brother of Plaintiff Donald Rico) on an outstanding felony warrant for evading a peace officer. (Tripoli Trial Testimony[1] (Def. Ex. E) 236:10-18; Wizniewski Trial Testimony (Def. Ex. F) 30:2-25.) The deputies proceeded in two marked Sheriff's patrol Ford Expeditions. Wizniewski drove one Expedition by himself, while Power drove the other Expedition with Tripoli riding in the front passenger seat. (Def. Undisputed Fact ("DUF") ¶ 2.) Before setting out, Wizniewski told Tripoli, "[I]f we find him, he may run from us, " and "the last time he was arrested there was a shotgun nearby him." (Wizniewski Trial Testimony 30:5-7.)

Shortly after setting out, the three deputies drove west on SR-76, with Deputies Power and Tripoli in the lead vehicle. (Tripoli Trial Testimony 239:14-16.) The deputies approached the intersection of SR-76 and Magee Road and slowed down, intending to make a right turn on Magee, at which point Tripoli spotted a car matching the description of Ryan Rico's black El Camino stopped on Magee Road and apparently waiting to make a turn onto SR-76. (Tripoli Trial Testimony 239:16-25.) Directly behind the El Camino was a "dark colored SUV." Id . The SUV turned out to be a 1997 Jeep Grand Cherokee Laredo (the "Jeep"), driven by Ryan Rico's brother, Plaintiff Donald Rico, with Plaintiff Anthony Bojorquez in the front passenger seat. (DUF ¶ 6.)

Power activated the Expedition's overhead lights, and Tripoli started to get out of the vehicle to contact and arrest Ryan Rico. (Tripoli Trial Testimony 239:24-240:4.) At this point, the El Camino made a right hand turn onto SR-76 in front of Power and Tripoli and fled west. (Id. at 240:8-10.)

B. The Car Chase

After the El Camino turned onto SR-76, Wizniewski maneuvered around Power and Tripoli's Expedition, followed the El Camino on SR-76, and passed in front of the El Camino. (Tripoli Trial Testimony 240:19-22.) Tripoli and Power followed behind the El Camino. (Id. at 240:22-28.) Plaintiffs' Jeep fell in behind Tripoli and Power. (Id. at 240:27-28.)

All four cars headed west on SR-76, with the El Camino eventually passing Wizniewski, to become the lead vehicle. (Power Trial Testimony 169:7-11.) The deputies reached speeds between 60 and 70 miles per hour. (DUF ¶ 11.) At 3:16:38 a.m., Tripoli radioed that he had a "failure to yield." (DUF ¶ 14.) Plaintiffs' Jeep followed Power and Tripoli's Expedition at a distance of "about two car lengths." (Rico Dep. 30:21-31:12; Bojorquez Dep. (Doc. 29-2, Ex. L) 28:25-29:2.) Power could see the headlights of the Jeep in the Expedition's rearview mirror, and he stated to Tripoli: "Somebody is on our ass." (Power Trial Testimony 170:24-171:21.)

The chase proceeded on SR-76 for only about half a mile before the El Camino turned right onto an unlit, bumpy, dirt road and began heading north to Rico's aunt's house. (DUF ¶¶ 11, 16, 18.) The three other cars also turned onto the dirt road and the pursuit continued at speeds reaching 40 to 50 miles per hour. (DUF ¶ 17.) The progress of the vehicles down the bumpy dirt road stirred up dust, and visibility was poor. (DUF ¶ 19-20.)

Power again saw headlights in his rearview mirror, and stated: "Oh, shit there they are again." (Power Trial Testimony 173:1-16.) Power believed that the headlights belonged to the same vehicle that had followed him and Tripoli moments earlier on SR-76, and Power thought he was being led into an ambush. (Id. 173:17-24.)

The car chase reached an abrupt halt when the El Camino reached a closed iron gate behind Rico's aunt's house. (Rico Dep. 33:10-18.) The entire chase lasted approximately one minute. (DUF ¶ 26.)

C. The Shooting

The vehicles all "slamm[ed] on their brakes" when the El Camino reached the iron gate. (Bojorquez Dep. 32:15-18.) A diagram prepared by Criminalist Carolyn Gannett shows how the El Camino and deputies' vehicles were positioned with respect to the gate and the dirt road that the cars used to enter the property from the west. (Ex. C to Gannett Decl. - attached to this Order as Ex. 1.)

After his car stopped, Ryan Rico got out of his car and ran off into the darkness. (DUF ¶ 25.) Deputy Wisniewski got out of his Expedition and ran after Ryan. (DUF ¶ 25.) Power and Tripoli came to a stop behind Wizniewski's Expedition, and the Jeep slid next to the driver's side of Power and Tripoli's Expedition, at a distance of approximately one foot. (DUF ¶ 28.) As Power attempted to exit the Expedition and enter the foot pursuit, his door struck the Jeep, forcing him back inside the Expedition. (Power Trial Testimony 174:15-26.)

Within a few seconds of stopping the Jeep beside Power and Tripoli's Expedition, Rico shifted into reverse and quickly backed away from the vehicle. (Rico Dep. 36:7-12.) As he reversed on the dirt road, his tires spun to gain traction, and the front right (passenger) side of the Jeep clipped the rear left (driver) side of the Expedition. (Rico Dep. 36:13-15; Bojorquez Dep. 35:22-36:2.) It is unclear whether Tripoli was aware that the Jeep had made contact with his vehicle. During his interview on the day of the incident, Tripoli claimed that he looked over his left shoulder and saw the Jeep strike the left of the driver's side rear panel of the vehicle as it moved forward. (Tripoli Interview (Ex. H) 16:15-18.) However, during Rico's trial, he stated that he couldn't say that he felt any particular contact between his vehicle and the Jeep and couldn't recall a specific "collision point." (Tripoli Trial Testimony 242:18-26.)

The Jeep backed up to a position approximately one to two car lengths behind the Expedition. (Rico Dep. 38:1-3.) As the Jeep reversed, Power exited his vehicle. (Power Trial Testimony 176:8-10.) He drew his weapon and walked back toward the rear of his vehicle. (Id.) Bojorquez saw Power with his weapon drawn. (Bojorquez Trial Testimony 215:8-14; Bojorquez Dep. 39:6-13.) Rico then shifted back into drive and began moving forward and to the right, turning toward another dirt road (the "orchard road") that led southward and out of the property. (Rico Dep. 38:7-10; Bojorquez Dep. 45:15-21.) Rico's intention was to leave the scene via the orchard road because he was "in the wrong spot. (Rico Dep. 48:7-10.) The Jeep arced behind the Expedition as it turned toward the orchard road. A "close-up" diagram prepared by Ms. Gannett shows the location of the Jeep tracks relative to the Expedition. (Ex. D. to Gannett Decl. - attached to this Order as Ex. 2.) At the closest point, the tracks of the Jeep are just slightly more than 10 feet away from the right edge of the Expedition's rear bumper. Bojorquez recalls that Rico was traveling at a speed of 10 to 15 miles per hour while pulling out and eventually sped up to 30 miles per hour. (Bojorquez Dep. 48:15-25.)

At some point during the movement of the Jeep around the Expedition, Tripoli exited the Expedition on the passenger side and drew his weapon. Tripoli opened fire and discharged 16 shots in quick succession in the direction of the moving Jeep, emptying his weapon's magazine. (Tripoli Interview 55:14-17; DUF ¶ 51.) It took slightly more than 3.5 seconds to fire the 16 shots. (DUF ¶ 52.) The shots fired by Tripoli struck the side and rear of the Jeep. (Tsuida Dep. (Pl. Ex. 4) 51:18-21.) No bullets entered through the front of the Jeep. (Id. at 51:10-17.)

Scott Hoopes, a Criminalist for the San Diego County Sheriff Department who inspected the scene and performed a trajectory determination as well as a "shooting incident reconstruction, " concluded:

The Jeep Grand Cherokee Laredo... was struck by a minimum of twelve (12) projectiles. Of these projectiles, one (1) struck the vehicle while traveling primarily from driver's side to passenger's side, one (1) struck the vehicle while traveling from driver's side to passenger's side at approximately a 45E angle from back to ...

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