United States District Court, S.D. California
THE ESTATE OF ANGEL LOPEZ by and through its successor in interest, LYDIA LOPEZ; LYDIA LOPEZ; ANGEL LOPEZ, JR. and HECTOR LOPEZ, by and through their guardian ad litem, LYDIA LOPEZ, Plaintiffs,
CITY OF SAN DIEGO; KRISTOPHER MICHAEL WALB AND DOES 2-30, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Dkt. No. 48.]
GONZALO P. CURIEL, District Judge.
Presently before the Court is a Motion for Summary Judgment filed by Defendants City of San Diego and Kristopher Walb ("Defendants"). (Dkt. No. 48.) The Parties have fully briefed the motion. (Dkt. Nos. 50, 52.) Pursuant to Civil Local Rule 7.1(d)(1), the Court finds the matter suitable for adjudication without oral argument. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion for Summary Judgment.
II. FACTUAL BACKGROUND
This case arises from the shooting death of Angel Lopez ("Lopez") by San Diego Police Officer Kristopher Walb on January 17, 2013. Except where noted, the following factual background is undisputed.
At the time of the subject incident, Lopez was on parole after serving a sentence for felon in possession of a firearm. (Dkt. No. 48-3, Torres-Skerett Decl. ¶¶ 5-6.) Following violations of his parole, a warrant was issued for Lopez's arrest and listed Lopez as armed and dangerous. ( Id. ¶¶ 7-8, 15.)
On the morning of January 17, 2013, Parole Agent Lou Torres ("Agent Torres"), who was Lopez's case agent, received a call from a person named Alec who inquired if Agent Torres was the parole agent for Angel Lopez aka Necio. ( Id. ¶¶ 10, 16.) The caller stated that Lopez and his father, Alex Lopez, were at 5444 Reservoir Drive, Apartment #58. ( Id. ¶ 17.) The caller was aware that the father was also a parolee at large, was a member of the "Sherman" gang, and went by the name Conejo (Rabbit). ( Id. ) Agent Torres was able to confirm the information with respect to the father. ( Id. ¶ 18.) In addition, the caller stated that Angel Lopez was left handed and would be carrying a.25 caliber pistol in his left pocket. ( Id. ¶ 19.) The caller indicated that the father had a sawed-off shotgun and an AK-47 at Apartment #58. ( Id. ¶ 20.) The caller identified two vehicles to look for, one a rented Ford Focus and the other a 1999 Ford Explorer, license number 4HCL80, a known vehicle driven by Angel Lopez's wife, Lydia Lopez. ( Id. ¶ 21.) Agent Torres and the caller Alec then exchanged phone numbers. ( Id. ¶ 22.)
Agent Torres met with Captain Andrew Mills ("Captain Mills") of the Eastern Division San Diego Police Department ("SDPD") and passed on the information given to him by the caller Alec. ( Id. ¶ 23.) Based on that information, Captain Mills directed various SDPD personnel to confirm the caller's information and collect background on Angel Lopez.
One of the assigned officers was Sgt. Steve Riddle ("Sgt. Riddle"), who was a gang detective who specialized in Hispanic gangs. (Dkt. No. 48-4, Riddle Decl. ¶ 3.) Angel Lopez was a member of one of the targeted gangs, Sidro, and therefore Sgt. Riddle was familiar with Lopez and his past gang activities. ( Id. ¶¶ 4-9.) Sgt. Riddle met with Captain Mills, Agent Torres, and others, and provided information about Lopez, his father, and the Sidro gang. ( Id. ¶¶ 10-30.) For example, Sgt. Riddle informed them that Lopez had a history of gun violence, must be considered to be armed, was unpredictable, and had a number of gang tattoos, including on his neck. ( Id. ¶¶ 14, 20, 22, 24.)
Two undercover officers, acting Detective Paul Tom and Detective Brad Elow ("Detective Elow"), were sent to 5444 Reservoir Drive and located in the parking lot a burgundy four-door hatchback Ford Focus, license number 5UNK285 CA. (Dkt. No. 48-5, Elow Decl. ¶ 7.) A patrol officer, at Detective Elow's direction, ran the plate and determined that it was registered to a rental car company. ( Id. ¶ 9.)
At approximately 10:33 a.m., January 17, 2013, Detective Tim Williams contacted the rental car company. (Dkt. No. 48-6, Williams Decl. ¶ 6.) The rental agreement indicated that the burgundy Ford Focus was rented on January 10, 2013, to Xavier Lenyoun. ( Id. ¶ 7.) Xavier Lenyoun also rented Apartment #58 at 5444 Reservoir Drive. ( Id. ¶ 8.)
Detective Dean Way obtained a photo of Angel Lopez, and confirmed its authenticity with Agent Torres. (Dkt. No. 48-7, Way Decl. ¶ 5.) The photo was then distributed to members of the SDPD involved in the operation. ( Id. ¶ 6.)
A Special Response Team ("SRT") unit, and two Primary Response Team ("PRT") units, undercover officers and uniformed officers were deployed to the Reservoir Drive area. (Dkt. No. 48-9, Ramsay Decl. ¶¶ 3-4.) SRT Sgt. Mike Ramsay informed the SRT Unit, which included Officers Kristopher Walb ("Officer Walb"), Brad Pickett ("Officer Pickett"), and Jason Scott ("Officer Scott"), "all the information he had been provided, which included background from Eastern Division, as well as radio transmissions." ( Id. ¶ 5.)
SRT was deployed in an unmarked van on the eastside parking lot of the target apartment on Reservoir Drive. ( Id. ¶ 6.) The PRT officers were in marked SDPD vehicles deployed in the immediate area. ( Id. ¶ 7.) The initial plan called for PRT officers to conduct a vehicle hot stop of Angel Lopez and his father if they were in a vehicle. ( Id. ¶ 8.) SRT was to deploy to the target apartment, 5444 Reservoir Drive, #D58, lock the exterior of the apartment down and conduct containment and call out if there were subjects in the apartment. ( Id. ¶ 9.) Undercover officers were acting as the "eyes, " attempting to spot the suspect. ( Id. ¶ 10.)
Uniformed Officers Nicholas Ketchum ("Officer Ketchum") and Christopher Luth ("Officer Luth") received information via radio that two Hispanic males walked out of the apartment complex towards the burgundy Ford Focus. (Dkt. No. 48-10, Luth Decl. ¶¶ 3, 8.) The officers drove over to the Ford in a marked vehicle. ( Id. ¶ 8.) Officers Ketchum and Luth exited the vehicle with their weapons aimed at the suspects and ordered them to the ground. ( Id. ¶ 9.) Officer Luth shouted "Stop! Get on the ground!" several times. ( Id. ) Both suspects turned around and ran back toward the apartment complex. ( Id. )
The SRT officers responded to a radio report that the suspects had fled on foot. (Dkt. No. 48-11, Walb Decl. ¶ 14.) Officers Walb, Pickett, and Scott entered the apartment complex through the west entrance with the thought of reaching Apartment #58 on the third floor. ( Id. ¶ 15.) As Officer Walb approached the third floor landing, he could hear someone running in the third floor hallway. ( Id. ¶ 16.) Officer Walb waited a few seconds anticipating the person to come through the door at the stairwell. ( Id. ¶ 17.) Within seconds, the door flew open as a Hispanic male matching Lopez's description opened the door. ( Id. ¶ 18.) The individual appeared to match the weight, height, and age of Lopez, and the tattoos on his neck were consistent with what Officer Walb had seen on the photo of Lopez. ( Id. ¶ 19; Dkt. 50-11, Walb Dep. 128:8-22.) Officer Walb issued commands in a loud, clear voice: "Police, " "Don't move." (Walb Decl. ¶ 21.)
Lopez spun around and ran back down the hallway. ( Id. ¶ 22.) Officer Walb opened the door, turned to the right, and continued forward in the hallway. (Walb Dep. 129:7-9.) There was no ambient light or windows, so Officer Walb turned on the flashlight on his MP-5 weapon, which clearly illuminated the scene. (Walb Dep. 27:22-28:8; Walb Decl. ¶ 25.) All three officers moved down the hallway in a diagonal echelon formation with their MP-5 machine guns pointed at Lopez. (Walb Decl. ¶ 26.)
The parties dispute Lopez's next movements before Officer Walb shot him. According to Officer Walb, he shouted several times at Lopez at the top of his lungs "get down" and "take your hands out of your pockets." (Walb Dep. 28:9-29:16, 129:24-130:2, 138:5-22;Walb Decl. ¶ 27.) Officer Walb never saw Lopez's left hand come out of his pocket. (Walb Dep. 29:17-22, 130:8-22, 148:16-25.) Lopez proceeded down the hall until he reached Apartment #58 and turned away from Officer Walb, but Lopez could not get in the door. (Walb Dep. 130:23-131:3; Walb Decl. ¶¶ 28-30.) Officer Scott shouted "left hand, left hand." (Walb Decl. ¶ 32; Walb Dep. 135:11-13.) Officer Walb told Lopez to put his hands up. (Walb Dep. 131:6-7.) Lopez's left hand remained in his pocket, and Lopez raised his right hand up, but not completely and still guarded it towards his body. (Walb Dep. 131:8-12; Walb Decl. ¶¶ 35-37.) Lopez started slowly kneeling down as Officer Walb was coming toward him. (Walb Dep. 131:18-22; Walb Decl. ¶ 37.) However, Lopez was not going to the ground as ordered. (Walb Decl. ¶ 37.) Lopez suddenly turned his body and head slightly to the right. ( Id. ¶ 39.)
According to Officer Pickett, he entered the third floor hallway after Officer Walb, and Officer Scott was behind him. (Dkt. No. 50-12, Pickett Dep. 9:13-10:5.) Officer Picket said "Police. Stop." two or three times in a loud and commanding voice, and also heard Officer Walb tell Lopez "Police. Stop." (Pickett Dep. 14:5-15:21; Dkt. No. 48-12, Pickett Decl. ¶¶ 27-28, 30-31.) Officer Pickett saw Lopez's left hand in his left front shorts pocket as Lopez was just beginning to step away from the door of Apartment #58. (Pickett Dep. 18:2-7.) He also saw Lopez make an exaggerated move with his left hand into his left front shorts pocket. (Pickett Dep. 25:10-16; Pickett Decl. ¶¶ 33-36.) Officer Scott was shouting "Left hand! Left hand!" (Pickett Decl. ¶ 37.) Lopez began turning towards the officers, to the right. (Pickett Dep. 30:12-18; Pickett Decl. ¶ 38.)
According to Officer Scott, in the third floor hallway, he was behind Officer Pickett, who was behind Officer Walb. (Dkt. No. 48-13, Scott Decl. ¶¶ 21-22.) Officer Scott saw Lopez step out of the alcove of Apartment #58, and begin moving away from the officers. (Dkt. No. 50-13, Scott Dep. 36:12-23; Scott Decl. ¶ 24.) Officer Scott shouted, "Don't move! Get down! Get down!" and he also heard Officer Walb say "Get down." (Scott Dep. 37:24-38:7; Scott Decl. ¶ 25.) Officer Scott saw Lopez's hand, which had nothing in it, go into his pocket or the front of his waistband. (Scott Dep. 46:20-25; Scott Decl. ¶ 26.) Officer Scott yelled "Left hand! Left hand! Watch his left hand!" (Scott Decl. ¶ 29.) Lopez had his right side facing Officer Scott, but Officer Scott could not give an exact angle. (Scott Dep. 35:12-24.)
Officer Walb then shot Lopez, from a distance of 15 to 20 feet, at 12:59 p.m. on the afternoon of January 17, 2013. (Walb Dep. 6:18-7:8, 131:23-132:2.) Officer Walb fired two, three-round bursts from his MP-5 weapon. (Walb Dep. 7:9-8:13; Walb Decl. ¶ 43.) The second burst was directly after the first. (Walb Dep. 8-13.) According to all three officers, Lopez was standing when Officer Walb shot him. (Walb Dep. 11:19-12:21; Pickett Dep. 29:9-31:3; Scott Dep. 38:11-21.) Officer Walb stated that Lopez was turning towards him, so that the right side of Lopez's body was facing him, when he fired his weapon. (Walb Dep. 10:10-11:1.) At the time he shot Lopez, the angle of Officer Walb's weapon was parallel or just slightly lower than parallel to the ground. ( Id. 132:6-14.) Three of the six bullets hit Lopez: one to the back of the head, one to the lower right back, and one to the right side of the upper-mid back. (Dkt. 50-10 at 2-3.) After he was shot, Lopez immediately fell forward and was pronounced dead at the scene. (Walb. Decl. ¶ 44.)
The parties' ballistics experts agree that, based on the gun shot wound paths, Lopez could not have been either standing or fully prone when the shots impacted Lopez. (Dkt. No. 50-14, Martini Dep. 76:1-22; Dkt. No. 50-17, Martini Report at 38; Dkt. No. 52-5, Haag Decl. ¶¶ 8, 19.) Rather, Lopez was in a forward descending motion at the time the bullets struck him. (Dkt. No. 50-15, Martini Dep. 136:22-137:1; Dkt. No. 50-17 at 38; Haag Decl. ¶ 18(f).) Plaintiffs' ballistic expert concluded that when he was shot Lopez was either transitioning from a standing to a kneeling position, in a kneeling position, or transitioning from a kneeling position into a prone position. (Dkt. No. 50-17 at 38-39.)
Plaintiffs' ballistics expert also concluded that the wound paths are inconsistent with Lopez turning to his right when he was shot by Officer Walb. (Dkt. No. 50-17 at 40.) However, Defendants' ballistics expert concluded that the wound paths are not inconsistent with Lopez turning to his right when Officer Walb decided to fire because Lopez could have changed positions immediately before and while being struck. (Dkt. No. 52-8, Kapelsohn Decl. ¶¶ 5-7.)
After the shooting, officers searched Lopez's body. (Luth Decl. ¶¶ 12, 15.) Lopez's left hand was concealed underneath his chest area on the left side. (Dkt. No. 50-19, DeWitt Report at 3). Officers did not find a gun on Lopez. (Luth Decl. ¶¶ 12, 15; Walb Dep. 138:23-25.) However, officers did find on Lopez one syringe loaded with a dark brown liquid, one blue balloon wrapped in a napkin, three "bindles, " and another "bindle" held in a metal container. (Luth Decl. ¶ 15.) The blue balloon and "bindles" all contained apparent narcotics. ( Id. ¶¶ 16-17.) The autopsy toxicology report revealed the testing of peripheral blood detected methamphetamine (1.1 mg/L), amphetamine (0.07 mg/L), trace ephedrine and morphine (0.23 mg/L). (Dkt. No. 48-15.)
The day after Officer Walb shot and killed Lopez, Officers Walb, Pickett, and Scott attended a debriefing with three "peer support officers" and a psychologist. (Dkt. No. 52-1 at 37). At this debrief, "each person tells their side of what happened." ( Id. ) On the advice of counsel, Officers Walb and Scott refused to answer further deposition questions concerning this debriefing. ( Id. at 38-39; Walb Dep. 74:17-76:25, 78:16-79:14; Scott Dep. 22:6-24:10; Dkt. No. 52-4, Scott Dep. 18:9-13.)
III. PROCEDURAL HISTORY
Plaintiffs filed this action on September 18, 2013. (Dkt. No. 1.) On March 11, 2014, Plaintiffs filed the operative First Amended Complaint ("FAC") against Defendants City of San Diego, Kristopher Michael Walb, Mark Hanten, and William Landsdowne. (Dkt. No. 18.) The latter two defendants were later dismissed. (Dkt. Nos. 30, 38.)
In the FAC, Plaintiffs allege nine claims: (1) excessive force under 42 U.S.C. § 1983; (2) wrongful death under § 1983; (3) right of association under § 1983; (4) failure to properly train under § 1983; (5) failure to properly supervise under § 1983; (6) wrongful death under California Code of Civil Procedure § 377.60; (7) ...