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Ortega v. San Diego Police Department

United States District Court, S.D. California

November 14, 2014

SHAKINA ORTEGA, et al., Plaintiffs,


LARRY ALAN BURNS, District Judge.

Victor Ortega, husband to Plaintiff Shakina Ortega and father to Plaintiffs Tamia and Jacob Ortega, was shot and killed by Defendant Officer Jonathan McCarthy of the San Diego Police Department (also a Defendant) on June 4, 2012 while Ortega was fleeing arrest. Defendants move for summary judgment, arguing that the evidence does not support any of Plaintiffs' six causes of action. (Docket no. 49, Motion.) Defendants rely primarily on Officer McCarthy's story about what happened that day. Plaintiffs oppose summary judgment and offer evidence to challenge some of the underlying material facts. (Docket no. 66, Opposition Brief.) The Court grants in part and denies in part Defendants' motion.

I. Factual Background

Except where noted, the following factual background is undisputed. On the morning of June 4, 2012, Shakina and Victor Ortega argued about whether he would take their six-year-old daughter, Tamia, to school. Because Victor was unemployed and Shakina worked, their argument escalated into whether Victor did enough to support the family. Though they had been married for eight years, she told him that his refusal was why their relationship was not likely to work out. ( See Docket no. 49-5, Cline Decl. Ex. C, Tr. of Interview with Shakina Ortega at 3.) Victor kicked toward Shakina's face, his bare feet connected with her mouth, and she began bleeding. ( Id. ) After a scuffle, Victor began to hug Shakina and apologize to her, crying and declaring that what he did was an accident. ( Id. at 4.) Shakina called 9-1-1 and requested emergency assistance. (Docket no. 49-7, Cline Decl. Ex. E, Emergency Tr.)

Although the parties dispute whether Victor's actions were accidental or purposeful, they agree that he fled the family's apartment when police responded to the call. ( Compare Mot. at 3 with Opp'n Br. at 6-7.) Officers Jonathan McCarthy and Godfrey Maynard arrived at the scene in separate vehicles in time to see Victor fleeing; Officer Maynard reported Victor's direction while Officer McCarthy began immediate pursuit. (Docket no. 49-10, McCarthy Decl. ¶¶ 7-13; Docket no. 66-6, Denning Decl. Ex. D.) A chase ensued through the housing complex, and Officer McCarthy caught up to Victor in a narrow, deserted corridor or breezeway. (Docket no. 49-10, McCarthy Decl. ¶¶ 14-16; Docket no. 66-6, Denning Decl. Ex. B., Investigator's Rep. at 8-10.) According to Officer McCarthy, he attempted to detain Victor, but a fight began in which Officer McCarthy used a "leg sweep" maneuver to bring Victor to the ground. (Docket no. 49-10, McCarthy Decl. ¶¶ 19-20.) Officer McCarthy's leg sweep was complicated by the fact that his secondary weapon was affixed to the leg he used by an elastic band known as an ankle holster; after Victor fell, Officer McCarthy fell on top of him, and his secondary weapon came loose to the ground. ( Id. ¶ 20-21; accord Docket no. 66-6, Denning Decl. Ex. D., McCarthy Deposition at 66.)

Accounts of the next few seconds, up to Officer McCarthy's decision to shoot Victor, diverge. Originally, SDPD's investigation concluded that Victor took control of Officer McCarthy's secondary weapon and threatened him with it. (Docket no. 49-6, Cline Decl. Ex. D, SDPD Investigator's Rep. at 2; see also id. Ex. K, Homicide Team 5 Scene Briefing Tr. ("Officer McCarthy's spare weapon that's on his ankle holster... fell to the ground. The suspect saw this, picked up the gun and raised it towards Officer McCarthy. Officer McCarthy drew his own weapon and fired two rounds.").) Later, SDPD Sergeant Joe Howie issued a report concluding that Victor tried but failed to take Officer McCarthy's gun, noting scrape marks on the side of the weapon which indicated that it slid on the cement walkway where the altercation occurred without being picked up. (Docket no. 49-6, Cline Decl. Ex. D, at 7.) Forensic analysis of the secondary weapon did not show any of Victor's DNA on the gun. (Docket no. 66-10, Ex. WW at 61-62.)[1] Officer McCarthy's declaration in support of Defendants' motion for summary judgment states that Victor reached for the gun with his right hand, briefly touched it, but never grasped it. (Docket no. 49-10 at 4.) Whereas some evidence indicates that Officer McCarthy was able to handcuff Victor's left hand while on top of him after they fell, (Docket no. 66-6, Denning Decl. Ex. C, Howie Investigation, at 44), [2] other evidence indicates that he did not do so until Victor had been shot and paramedics arrived, (Docket no. 49-6, Cline Decl. Ex. D, McCarthy Depo. at 6). Still other evidence indicates that it may have been Victor's right hand - the hand he is supposed to have used to reach for the gun - that was cuffed. (Docket no. 66-8, Denning Decl. Ex. U, Decl. of Jason Crisostomo ¶ 4 ("Once the paramedics arrived, they pulled the body out of the alley corridor.... I saw blood on the man's face and a handcuff on his right wrist.").)

Only Officer McCarthy survived to bear eyewitness to the last, crucial moments. He testifies that he broke apart from Victor to move the secondary weapon a safe distance away, that he drew his primary weapon while turning to face Victor, and that he saw Victor rising off the ground to lunge toward him. (Docket no. 49-10 at 4-5.) Believing that Victor was now attempting to grab his primary weapon, Officer McCarthy fired two rounds. ( Id. at 5.) Victor's autopsy shows that the first bullet hit Victor in the abdomen and the second one hit him in the back of the neck. (Docket no. 66-8, Denning Decl. Ex. X, at 24.) Officer McCarthy stated that Victor was either one foot away from the primary weapon in his hand, ( see Docket no. 66-6, Ex. C, at 50.), or one to two feet away, ( see Docket no. 49-10, McCarthy Decl., ¶ 28.) In contrast, Plaintiffs' forensic expert examined Victor's autopsy report, noted that there was no evidence of gunpowder residue or stippling on Victor's clothing or body (including Victor's entry wounds), and concluded that Victor could not have been grabbing at the gun if he were so close. (Docket no. 66-7, Ex. H to Denning Decl., Turvey Expert Rep. and Supplement, Exs. 1 and 2.)[3] In other words, Plaintiffs offer evidence that Victor was either not reaching for Officer McCarthy's gun, or that he must have been over three feet away, or both. ( See id. )

Although Officer McCarthy and Victor were alone in the walkway, bystanders were close enough to hear some of the exchange. The bystanders reported sounds of a struggle, a loud thump like people falling to the ground, metal clinking, one voice (McCarthy's) saying "Get down on the ground" and another voice responding, "Are you kidding me?" and "Get the f**k off of me, I'm gonna sue you!" - followed finally by the two gunshots. ( Accord Docket no. 66-7, Ex. P at 103-04 with id. Ex. Q at 111; id. Ex. R at 115 with id. Ex. S at 123; see also Docket no. 66-8, Ex. T at 2-3; id. Ex. U at 6-7.)[4] One ear-witness specifically reported hearing the sound of one or two footsteps followed by two gunshots. (Docket no. 66-6, Ex. P, at 104.) Another noted that he believed Victor's "tone of voice was one of compliance and disbelief, not confrontational or violent." (Docket no. 66-8, Ex. U ¶ 6.)[5]

II. Legal Standards

Summary judgment is appropriate where "there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). It is the moving party's burden to show there is no factual issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, the burden shifts to the non-moving party to show there is a genuine issue for trial. Id. at 331. The Court may grant summary judgment as to some material facts. Fed.R.Civ.P. 56(g).

The Court considers the record as a whole and draws all reasonable inferences in the light most favorable to the non-moving party. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). The Court does not make credibility determinations or weigh conflicting evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rather, the Court determines whether the record "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.

III. Discussion

Plaintiff's First Amended Complaint asserts six causes of action against each of the three named defendants: 1) violation of civil rights under 42 U.S.C. § 1983; 2) discrimination and other violation of civil rights under Cal. Civ. Code § 51.7; 3) violation of civil rights under Cal. Civ. Code § 52.1; 4) assault and battery under Cal. Gov. Code § 815.2; 5) wrongful death; and 6) negligence. (Docket no. 17-1, First Amended Complaint ("FAC").) Defendants move for summary judgment on all six claims. Plaintiffs voluntarily dismiss their Section 1983 claim against SDPD but otherwise oppose summary judgment.

A. Plaintiffs' Claims under 42 U.S.C. § 1983

Section 1983 provides plaintiffs with a cause of action when a person acting under the color of state law deprives them of any federal constitutional right. 42 U.S.C. § 1983. Here, Plaintiffs assert that Officer McCarthy's use of deadly force was excessive under the Fourth and Fourteenth Amendments, and that the City of San Diego implemented unconstitutional policies or customs in violation of Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).[6] The Court addresses Defendants' grounds for summary judgment as to each claim in turn.[7]

1. Excessive Force under the Fourth Amendment and Qualified Immunity

Defendants move for summary judgment on the grounds that Officer McCarthy did not use excessive force in attempting to stop Victor and defend himself, and further that he has qualified immunity from liability. (Mot. at 10-18.) Under the Fourth Amendment, law enforcement may use "objectively reasonable" force to carry out seizures, and objective reasonableness is determined by an assessment of the totality of the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). An officer's use of deadly force is reasonable only if "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Tennessee v. Garner, 471 U.S. 1, 3 (1985). Because this inquiry is inherently fact specific, the "determination whether the force used to effect an arrest was reasonable under the Fourth Amendment should only be taken from the jury in rare cases." Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185, 1205-06 (9th Cir. 2000), judgment vacated on other grounds, 534 U.S. 801, (2001); see also Torres v. City of Madera, 648 F.3d 1119, 1125 (9th Cir. 2011) (summary judgment "in excessive force cases should be granted sparingly"); Liston v. County of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997) (finding that excessive force is "ordinarily a question of fact for the jury"); Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) ("[W]hether a particular use of force was reasonable is rarely determinable as a matter of law.").

In the deadly force context, courts are not permitted to "simply accept what may be a self-serving account by the police officer." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). "Because the person most likely to rebut the officers' version of events-the one killed-can't testify, [t]he judge must carefully examine all the evidence in the record... to determine whether the officer's story is internally consistent and consistent with other known facts.'" Cruz v. City of Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014) (quoting Scott, 39 F.3d at 915). Where the officer's story would justify his use of deadly force, the proper inquiry is whether any reasonable jury could find it more likely than not that the officer's story is false. See id.

"An officer using deadly force is entitled to qualified immunity, unless the law was clearly established that the use of force violated the Fourth Amendment." Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010) (citing Brosseau v. Haugen, 543 U.S. 194, 198 (2004). Qualified immunity involves a two-part inquiry: first, "whether the facts that a plaintiff has alleged... or shown... make out a violation of a constitutional right, " and second, "whether the right at issue was clearly established' at the time ...

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