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Booke v. County of Fresno

United States District Court, E.D. California

April 2, 2015

ESPERANZA BOOKE, individually and as personal representative of the Estate of Charles Salinas, Plaintiff
v.
COUNTY OF FRESNO, et al., Defendants

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For Esperanza Booke, Individually and as personal representative of the Estate of Charles Salinas, Plaintiff: Robert Steven May, LEAD ATTORNEY, The May Firm, San Luis Obispo, CA; Garrett David May, The May Firm Inc, San Luis Obispo, CA; Laura M. Sasaki, Law Office of Robert Hamparyan, San Diego, CA.

For City of Sanger, Sanger Police Department, Silver Rodriguez, Sanger Chief of Police, Officer Robert Pulkownik, Angela Yambupah, Jason Boust, Preston Little, Defendants: Dale Long Allen, Jr, LEAD ATTORNEY, Kevin P. Allen, Allen Glaessner & Werth LLP, San Francisco, CA.

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ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 52)

Anthony W. Ishii, SENIOR UNITED STATES DISTRICT JUDGE.

This case stems from a fatal confrontation between decedent Charles Salinas (" Salinas" ) and members of the City of Sanger Police Department (" SPD" ) -- Defendants Jason Boust (" Boust" ), Preston Little (" Little" ), Robert Pulkownik (" Pulkownik" ), and Angela Yambupah (" Yambupah" ). Plaintiff alleges claims under 42 U.S.C. § 1983 and California state law against these officers, as well as against SPD Chief Rodriguez (" Chief Rodriguez" ) and the City of Sanger (" the City" ). Defendants now move for summary judgment on all claims alleged against them. For the reasons that follow, Defendants' motion will be granted in part and denied in part.

SUMMARY JUDGMENT FRAMEWORK

Summary judgment is proper 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; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is " material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is " genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Herbert Schenk, P.C., 523 F.3d 915, 923 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then " the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot " 'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).

The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010). While a " justifiable inference" need not be the most likely or the most persuasive inference, a " justifiable inference" must still be rational or reasonable. See Narayan, 616 F.3d at 899. " If conflicting inferences may be drawn from the facts, the case must go to the jury." Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1175 (9th Cir. 2003). 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. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). " A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). The parties have the obligation to particularly identify material facts, and the court is not required to scour the record in search of a genuine disputed material fact. Simmons v. Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir. 2010). Further, a " motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the

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moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.

FACTUAL BACKGROUND[1]

At about 3:00 p.m. on June 15, 2012, Salinas called 911 because he was emotionally distraught and suicidal. PUMF 1. The 911 operator relayed information to City police units via radio throughout the conversation with Salinas. See Clark Report at p.5; Allen Dec. Ex. A; PUMF 2. The following information was relayed from the 911 call to the City police: (1) there was a suicidal male named Charles Salinas at 1120 N St. with a 9mm handgun and two knives; (2) Salinas had been drinking and refused to put away his weapons; (3) Salinas " will not hurt anyone he just wants the units to shoot him" ; (4) Salinas " will jump [towards] the officer just to provoke them to shoot him," but again " he will not hurt anyone he just wants the units to shoot him." See DUMF 1, 2, 3, 4; PUMF 2, 3.

SPD officers Boust, Little, and Yambupah initially responded to the call. See DUMF 6. Pulkownik also responded, but arrived later. See DUMFs 30-32. Boust (as the ranking officer) gave orders to Little and Yambupah to block off nearby traffic, form a perimeter, deploy their AR-15 patrol rifles, and radio in if anyone saw Salinas. See DUMFs 9, 10, 11; PUMFs 5, 6. A perimeter was established in part because the dispatch call concerned a suspect with a gun and knives, Salinas's exact location was unknown, and it was daylight near a major street. See PUMF 12. When Pulkownik arrived, he retrieved his less lethal shotgun. See DUMF 33, PUMF 7.

Yambupah was the first officer to see Salinas. See PUMF 8. Salinas was walking fast and leaning towards Yambupah. See DUMF 16. Eventually, Yambupah lifted her rifle towards Salinas, and Salinas ran away. See DUMF's 19, 20. Yambupah lost sight of Salinas as he was entering a parking lot from an alley. PUMF 9. Yambupah followed after Salinas. See DUMF 23. Thinking that Salinas might be hiding in an auto shop in the area, she approached the shop and spoke to two people inside. See DUMF's 24, 25; PUMF 10. Yambupah then heard Pulkownik's voice shouting from the other end of the parking lot. See DUMF 26; PUMF 10. Yambupah saw Pulkownik standing at the front entrance of the parking lot. See DUMF 27. Yambupah took cover behind a building and requested backup. See DUMF 29.

Pulkownik had located Salinas lying in bushes in an elevated planter in the parking lot. See DUMF 42; PUMF 12; Plaintiff's Ex. LL. Pulkownik yelled at Salinas, " Show me your hands!" See PUMF 27; DUMF 13. Pulkownik had his handgun drawn, but then holstered the handgun and engaged the bean-bag shotgun. See PUMF's 13, 14. Pulkownik placed himself about 5 to 10 feet directly in front of the planter. See PUMF 15. Salinas was unresponsive initially, but he eventually sat up in a sitting position. See DUMF's 45, 47. Pulkownik could see Salinas's head, a little bit above the shoulder line, Salinas's blue jeans including the shins and groin area, and could see shadows and movement from Salinas's arms. See Pulkownik Depo. 28:21-29:13. Pulkownik continued

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to order Salinas to show his hands. See id at 29:24-30:1. Salinas " flipped off Pulkownik with both hands. See McCahill Depo. 48:16-25, 50:1-7. Salinas's right hand then reached to a nearby bush. See id at 50:1-7; Pulkownik Depo. 29:24-30:6. Salinas was saying things to Pulkownik, and Pulkownik eventually realized that Salinas was saying that he was a veteran and was giving his name, rank, and serial number. See id at 30:12-22. Pulkownik began to talk to Salinas about the military/the Marines, and addressed Salinas as a Marine. See id. at 31:16-32:4.

At some point while Pulkownik was interacting with Salinas, backup arrived. DUMF 51. Fresno County Sheriff's Deputy McCahill (who had heard the dispatch broadcast) arrived at the planter, followed by Boust and Yambupah. See DUMF 52; PUMF 16. McCahill stood to the right of Pulkownik, Boust stood to the right of McCahill, and Yambupah stood next Boust. DUMF 53. Little then joined the firing line and stood to the left of Pulkownik. PUMF 25. Other officers besides Pulkownik ordered Salinas to show them his hands. See PUMF 23. With the inclusion of Little, there was one beanbag shotgun (Pulkownik), 1 handgun (McCahill), and 3 AR-15 patrol rifles (Boust, Little, and Yambupah) pointing at Salinas. See PUMF 26. However, Boust, Little, and Yambupah also had less lethal weapons available, including batons and tasers. PUMF 59. None of the officers assumed a position of cover, although McCahill's patrol car and other vehicles were in close proximity to the planter. See PUMF's 61, 62, 63.

After speaking with Pulkownik for what may have been around 30 seconds, Salinas stood up, see Pulkownik Depo. 34:12-35:7, and took a couple of steps towards the officers, but remained in the planter near the edge. See McCahill Depo. 52:16-19 & Ex. 6. Salinas remained in a dirt portion of the planter and was no longer in the bushes, and McCahill had an unobstructed view of Salinas's hands and waist area. See id at 73:25-74:14. Before he stood up, Salinas showed the palms of both his hands. See id at 50:16-21. McCahill and other officers had ordered Salinas several times to come out of the planter and lay on the ground. See id at 49:15-22; DUMF 44.

Pulkownik continued to converse with Salinas after Salinas stood up. See DUMF 63. Salinas said that nobody cared about him, he was 40 years old, and he was just worthless, to which Pulkownik said he was a veteran and that a lot of people cared about him. See DUMF 64; PUMF's 32, 33. A K-9 unit was en route to the scene, and the goal was to draw the situation out until the K-9 unit arrived; Pulkownik commented to the other officers under his breath to " wait for the dog." DUMF 70. Salinas pointed to each officer and said, " I don't want you to shoot me," but then pointed to McCahill and said, " I want you to shoot me." See DUMF's 71, 72. McCahill responded by saying, " No, we don't want this to happen like this," " I don't want to shoot you," and " Just give up, do what we say, get through this." DUMF 73. The City officers told Salinas to give up and get on the ground or lay on the ground. See McCahill Stmt. 20:17-22.

Pulkownik and Little noticed that Salinas took a " bladed" position, meaning one foot was forward and another foot was back. See DUMF 74. Pulkownik testified that Salinas assumed this position in " may be 30 seconds or less" from the time Salinas stood up. See DUMF 74; Pulkownik Depo. 54:12-20. All officers noticed a bulge on one side underneath Salinas's shirt, and McCahill thought that the bulge might be a gun holster. See DUMF's 75,76. McCahill did not believe that Salinas was an immediate threat because there

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was no gun in Salinas's hands. See McCahill Stmt. 10:15-20.

Salinas then " moved" towards the officers.[2] See Plaintiff's Ex. LL; see also DUMF 78; PUMF 45. Salinas was no more than 3 to 7 yards from the officers. DUMF 83. Pulkownik yelled " less lethal" as he fired the beanbag shotgun. See Pulkownik Depo. 57:24-58:9. Around the same time, Boust, Little, and Yambupah fired their AR-15 rifles. See DUMF 85; PUMF 47. It appears that Pulkownik fired first, and then the three City officers fired together in extremely close succession, nearly simultaneously. See Plaintiff's Ex. LL; PUMF 47. Boust and Yambupah testified that they fired after believing that the beanbag round was ineffective. See DUMF 86; Boust Depo. 48:15-50:12, Yambupah Depo. 40:24-41:24. Boust, Little, and Yambupah fired 22 rounds from their AR-15 patrol rifles (12 shots from Yambupah, 9 shots from Little, and 3 shots from Boust), and continued to fire after Salinas collapsed on the ground. See PUMF's 47, 48, 50, 51, 52. Salinas was shot in the head while he was lying on the ground. See McCahill Depo. 75:14-76:2. Pulkownik fired 2 beanbag rounds. See PUMF 53. McCahill did not discharge his firearm, because he heard " beanbag" yelled three times and he wanted to see if the beanbag round would take down Salinas. See McCahill Depo. 62:18-25.

Salinas was pronounced dead at the scene, with cause of death later determined to be perforation from gunshots to the heart, brain, left lung, and aorta. See DUMF 55. Pulkownik guessed that from the time he first yelled at Salinas to " show me your hands" to the time the officers opened fire, no more than 5 minutes had elapsed. See Pulkownik Depo. 60:18-61:13. No weapons were found in the planter, and Salinas was unarmed at the time of the shooting. See PUMF's 64, 65. The officers never asked Salinas if he had any knives or a gun. See PUMF's 66, 68. Salinas was not asked if he was going to shoot or hurt the officers. See DUMF 67. Salinas had not been suspected of committing any crime, but a detention was being attempted pursuant to California Welfare & Institutions Code § 5150. See PUMF's 103, 104.

The Fresno County Sheriff's Department (" FCSD" ) conducted administrative and criminal investigations of the shooting. See DUMF 96; PUMF 69. The FCSD investigations ultimately concluded that the shooting of Salinas was justified. See Ramirez Depo. 44:5-21. The FCSD investigators reported to the scene about 4:18 p.m. See Buenrostro Depo. 29:5-8.

Boust, Little, Pulkownik, and Yambupah stood together in an area near the auto shop. PUMF 77. Chief Rodriguez later arrived on the scene. See Rodriguez 71:9-16. Boust briefed Chief Rodriguez on what had happened, see PUMF 75, including a statement that Salinas had sprung out at the officers very rapidly. See Rodriguez Depo. 72:8-73:19. Chief Rodriguez also spoke briefly to Little and McCahill. See id. 73:16-25.

Boust, Little, Pulkownik, and Yambupah remained at the scene for about a half-hour. PUMF 78. These officers then reported to the SPD station where they were placed in a briefing room together. See PUMF 79. SPD Policy 310.5.5 provides: " Any request for department or legal representation will be accommodated, however, no involved officer shall be permitted to meet collectively or in a group with an attorney or any representative prior to providing a formal interview or report."

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See PUMF 88. SPD Policy 310 indicates that the prohibition about meeting with an attorney collectively or in groups is to " maintain the integrity of each individual officer's statement." Plaintiff's Ex. EE.[3] Despite this policy, before any interviews occurred, these officers met collectively with their attorney. See PUMF 80. Also, at some point, Chief Rodriguez stepped into the briefing room, when at least 3 of the 4 officers were present. See Rodriguez Depo. 82:14-83:18.

Investigators interviewed McCahill at the SPD station. PUMF 82. After McCahill was interviewed, the investigators were told by an attorney for Boust, Little, Pulkownik, and Yambupah that the attorney needed more time to talk to the officers in order to decide whether the officers would be giving a statement. See Buenrostro Depo. 40:4-41:23. After additional requests by the investigators, Boust and Pulkownik were interviewed that night, Little was interviewed the next day, and Yambupah was interviewed 10 days later. See PUMFs 84, 85, 86, 87.

During the interviews, Boust stated that Salinas " broke into a sprint" and " came at us full speed" ; Little described Salinas as having " charged" ; Pulkownik stated that Salinas " tilted forward in a full sprint" ; and Yambupah stated that Salinas " sprinted" towards them. See PUMF's 91, 92, 93, 94. In his deposition, Boust testified that Salinas " was coming hard, he stepped out and then, boom, it was a -- he made a charge towards us," and Salinas stepped out of the planter and " makes a charge straight towards me." Boust Depo. 47:6-15, 48:10-14. In his deposition, Little testified that Salinas " just started running at us, like straight ahead." Little Depo. 37:20-24. In his deposition, Pulkownik testified that to him, Salinas went into a " full-speed run." Pulkownik Depo. 55:7-10, 57:24-58:2. In her deposition, Yambupah testified that Salinas " lunged" from the planter, was not stopped by two beanbag rounds from Pulkownik, and that Salinas's left hand was going towards a black shiny object on the left side of his hip. See Yambupah Depo. 38:5-41-20.

The SPD Shooting Review Board (" the Board" ) absolved the City officers of any wrongdoing in the shooting of Salinas. See Plaintiff's Ex. X; see also PUMF 134. Pursuant to department policy 302.2, the Board was tasked to " objectively evaluating the use of force" by the City officers. See PUMF 142. The Board appears to have considered SPD policies regarding lethal and less lethal force, the FCSD internal affairs investigation, and the FCSD homicide bureau's investigation. See Plaintiffs' Ex. X. The Board adopted the City officers' contention that " Mr. Salinas stood to his feet and ran towards officers while reaching for his left side." See PUMF 137. The Board also adopted the contention that the beanbag " had no apparent effect" on Salinas. See PUMF 138. After considering the Board's findings, as well as the findings of the two investigations by the FCSD, Chief Rodriguez adopted the Board's conclusion that the City officers' use of force was justified.[4] See PUMF 145; Rodriguez Depo 119:14-123:23.

A video of the shooting was taken on a cellphone by a bystander. See PUMF 95. The submitted video lasts approximately

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15 seconds. See Plaintiff's Ex. LL.[5] The bystander is facing the planter, and four officers' backs are clearly seen (it does not appear that Yambupah is seen on the video). See id The video depicts Salinas emerging from the planter towards the officers and the bystander. See id The video does not depict Salinas running, sprinting, or lunging, rather it depicts Salinas taking a step down from the elevated planter.[6] See id Salinas's left hand is not at his side, but is away from his body, at the time the first beanbag round is fired. See id Further, based on audio from the video, the time between the first beanbag round and the AR-15 shots is practically simultaneous, although the beanbag shotgun appears to have been fired first. See id

POST is a state-wide quasi-governmental organization composed of law enforcement executives and advisors. DUMF 103. POST sets standards for the basic and continued training of peace officers, and certifies local law-enforcement agencies and their officers as being in compliance with those standards. See id. In addition, POST reviews and certifies training courses developed by local law-enforcement agencies as in compliance with POST standards and expectations. See id. POST conducts regular audits of local agencies and officers to determine compliance, and certifies those agencies and offices that are in compliance. See id. The SPD received POST-certification in 1963. See DUMF 109. Among the requirements for an agency to obtain POST-certification, the agency must agree to abide by POST standards and only employ POST-certified officers. See id.

POST Learning Domain 37 addresses appropriate tactics and methods of interaction with a person suffering from a mental illness. See DUMF 105; PUMF 105. According to POST Learning Domain 37, an officer should attempt to " calm the situation" when encountering an emotionally distraught and suicidal individual by, among other steps, moving slowly, assuming a quiet nonthreatening manner when approaching and conversing with the individual, explaining intended actions before taking action, taking time to assess the situation, providing assurance that the officers are there to help, and giving the person time to calm down. See PUMF 105. Learning Domain 37 also teaches officers to avoid threatening the individual with arrest or in any other manner since " threats may create additional flight, stress, or potential aggression." PUMF 106.

SPD has a written policy for handling mental illness commitments. See PUMF 107. Pursuant to Policy 418.1, commitment of a person under Welfare & Institutions Code § 5150 does not constitute an arrest. See PUMF 107. As with POST Learning Domain 37, Policy 418.3 addresses the necessity for " conflict resolution and de-escalation techniques," and requires officers to consider alternatives to " deadly force" (if circumstances permit) when interacting with a person with mental illness. See PUMF 108; Plaintiff's Ex. FF. Policy 418.6 provides that, as a " part of advanced officer training programs, this agency will

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endeavor to include POST approved training on interaction with mentally disabled persons as provided by Penal Code § 13515.25." Plaintiff's Ex. FF. The POST training courses have been available to law enforcement agencies since 2006, and the courses utilize interactive training methods to ensure that the training is as realistic as possible. See PUMF's 111, 112.

On January 30, 2012, Cpl. Callahan sent to Deputy Chief Johnson a memorandum on the subject of " Policy and Training Information." See Plaintiff's Ex. Z. The memo explained that Cpl. Callahan was to conduct a policy review on portions of SPD policies that " might create a liability issue . . . ." Id. Cpl. Callahan identified Policy 418.6 and explained: " This policy section mandates POST approved training on the interaction with mentally disabled persons as part of advanced officer training. The department has not offered this type of training during my seven year tenure." Id. Cpl. Callahan concluded the memo by noting that various policies, including Policy 418, " should be satisfied with POST DVD's, which have been ordered, received, and delivered to Sgt. Velasquez. He will make the DVD and POST roster available to patrol staff." Id.

SPD also has a policy regarding patrol rifles. See Plaintiff's Ex. GG. Due to the high-powered nature of patrol rifles, Policy 432.5 requires City officers to successfully complete an initial 24-hour patrol rifle's user's course with a certified patrol rifle instructor before they are issued a patrol rifle. See PUMF 120. Following a City officer's certification from the initial training, Policy 432.5 states that the officers are " required to successfully complete quarterly training and qualifications conducted by a certified patrol rifle instructor." PUMF 121. The operation of a patrol rifle is considered a perishable skill, and recertification is important because SPD wants the officers to be able to use the weapon accurately and safely. See PUMF 118; Rodriguez Depo. 32:15-25. Recertification is primarily to ensure that the officers are proficient in the use of the patrol rifle. See id. If an officer fails to complete two or more training/qualification sessions within a calendar year, SPD 432.5 states that the officer is " no longer authorized to carry the patrol rifle without successfully retaking the initial patrol officer user's course and qualification." PUMF 122. SPD Policy 432.5 limits the use of patrol rifles to " circumstances where the officer can articulate a reasonable expectation that the rifle may be needed." Plaintiff's Ex. GG. Policy 432.6 lists non-exclusive situations in which the deployment of a patrol rifle may be appropriate, including situations in which a suspect is wearing body armor, where the officer anticipates an armed encounter, or where the suspect is barricaded. See id.

In a letter dated January 24, 2012, from Cpl. Callahan to Deputy Chief Johnson, Callahan wrote that the " vast majority of officers . . . have not completed the initial [24 hr.] training course as required by policy section 432." Plaintiff's Ex. Y. Understanding the foreseeable risk and serious consequences of untrained armed officers, Cpl. Callahan recommended that the high-power firearms be confiscated from the officers that had not successfully completed the required training. PUMF 126. At the time of the encounter with Salinas, Boust had last qualified on a patrol rifle in March 2010, Little had requalified on his patrol rifle in September 2010, and Yambupah completed one patrol rifle training in 2011 and 2012. See PUMF's 127, 128, 129.

DEFENDANTS' MOTION

I. Excessive Force

Defendants' Argument

Defendants argue that their use of force was reasonable. Salinas's conduct implicated

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Penal Code § 148(a)(1), which is a dangerous offense. Salinas admitted during the 911 call that he was armed with a gun and two knives, and Salinas's conduct bolstered the belief that he was armed, i.e. he repeatedly reached down into the bushes, refused to show his hands, had a bulge on his side that resembled a holster, and refused to obey commands. Despite talking with the officers, Salinas took a bladed stance and came at the officers while moving his hand towards his hip. The officers believed that Salinas was reaching for a gun, and thus, the officers faced a life-threatening danger to their safety, and to the safety of others (the civilians at the auto shop). No alternative means of subduing Salinas were available. Retreat was not viable because no cover was readily present, and retreating to find cover could have exposed the officers to gun fire from Salinas, or permitted Salinas to escape or take hostages from the auto shop. Although a K-9 unit was in route, Salinas's conduct forced the officers' to act. While Salinas was suicidal and wanted to commit suicide by cop, this desire does not mean that officers had to endanger their own lives by allowing Salinas to act dangerously. Finally, in terms of a warning, Salinas was facing multiple officers with drawn guns, was being ordered to show his hands, and had made a 911 call in which he said he was armed. Salinas knew what would happen when he threatened the officers.

Alternatively, Defendants argue that they are entitled to qualified immunity. The Ninth Circuit has unambiguously stated that where a suspect threatens an officer with a weapon such as a gun or a knife, the officer is justified in using deadly force. The officers argue that they were confronted with a former Marine who reportedly was carrying a gun, ignoring commands, and coming at the officers while reaching for a something that was believed to be a gun. This was a clear situation of an officer being threatened by a suspect. Any mistake in the use of force was reasonable under the circumstances.

Plaintiff's Opposition

Plaintiff argues that summary judgment is improper. The evidence shows that Salinas was not under arrest or suspected of committing a serious crime. He did not hurt anyone and had emphatically denied that he would hurt anyone. Salinas was emotionally distraught and in need of help. He complied with commands. Salinas showed his hands on several occasions and nothing was in them, he stepped out from the bushes and it was apparent that nothing was in his hands, and he was stepping out of the planter. Salinas was a danger to himself, but not to others. Contrary to the officers' contentions, the video shows that Salinas was stepping out from the planter and that his left arm was away from his body at the time the shots were fired. The officers never warned Salinas that he would be shot. The officers also did not consider less lethal options, including tasers or taking cover until the K-9 unit arrived. The officers failed to use de-escalation tactics and failed to follow the methods of interacting with mentally ill individuals under POST Learning Domain 37. Finally, the officers' credibility is at issue because of the group meetings immediately after the shooting and with the attorney at the SPD station. The video is inconsistent with the officers' account of Salinas's actions at the time shots were fired.

With respect to qualified immunity, the law was sufficiently established that a reasonable officer would have known that the City officers' actions were improper. Where, as here, there is no threat posed to officers or to bystanders, use of deadly force is unlawful.

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Legal Standard

1. Excessive Force

All claims that law enforcement officers used excessive force, either deadly or non-deadly, in the course of an arrest, investigatory stop, or other seizure of a citizen are to be analyzed under the Fourth Amendment and its standard of objective reasonableness. See Scott v. Harris, 550 U.S. 372, 381-83, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Cases that involve deadly force do not fit into their own separate category with their own set of " rigid pre-conditions" that must be met, rather the key is whether the officer's actions were reasonable. See Scott, 550 U.S. at 382-83; Hooper v. County of San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011). The pertinent question 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; Hooper, 629 F.3d at 1133. The objective inquiry into reasonableness is highly fact specific. See Scott, 550 U.S. at 383; Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010). " We first assess the quantum of force used to arrest [the plaintiff]" and then " measure the governmental interests at stake by evaluating a range of factors." Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007). Factors that are considered in assessing 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; Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010); Davis, 478 F.3d at 1054. 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 Luchtel, 623 F.3d at 980; Drummond v. City of Anaheim, 343 F.3d 1052, 1058 (9th Cir. 2003). Courts also are to consider whether it was feasible to give a warning before using force, and whether a warning was actually given. See Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010). " In some cases . . . the availability of alternative methods of capturing or subduing a suspect may be a factor to consider." Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005); see Luchtel, 623 F.3d at 980. However, police officers " are not required to use the least intrusive degree of force possible" as long as the force actually used was reasonable. Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994); see Gregory v. County of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008). That is, a reasonable use of force " encompasses a range of conduct, and the availability of a less-intrusive alternative will not render conduct unreasonable." Wilkinson, 610 F.3d at 551. It may also be appropriate to consider the parties " 'relative culpability,' i.e. which party created the dangerous situation and which party is more innocent, may also be considered.@ Espinosa v. City & County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010); see Scott, 550 U.S. at 384. 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; Wilkinson, 610 F.3d at 550. " The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments B in circumstances that are tense, uncertain, and rapidly evolving B about the amount of force that is necessary in a particular situation."

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Graham, 490 U.S. at 396-97; Wilkinson, 610 F.3d at 550. " Force is excessive when it is greater than is reasonable under the circumstances." Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002).

2. Qualified Immunity

A court employs a tiered analysis for determining qualified immunity. See Saucier v. Katz, 533 U.S. 194, 200-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); CarePartners LLC v. Lashway, 545 F.3d 867, 876 n.6 (9th Cir. 2008). However, lower courts need not strictly follow the tiered sequence in analyzing qualified immunity, but instead have the discretion to dispose of the issue at step two without addressing step one. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Glenn v. Washington County, 673 F.3d 864, 870 (9th Cir. 2011). Under the first step, the court determines 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; Bingue v. Prunchak, 512 F.3d 1169, 1173 (9th Cir. 2008). All factual disputes are resolved in favor of the party asserting the injury. See Saucier, 533 U.S. at 201; Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th Cir. 2013). If the answer to the question is " no," then the inquiry ends and the plaintiff cannot prevail; if the answer is " yes," the court continues the analysis. See Saucier, 533 U.S. at 201; Bingue, 512 F.3d at 1173. Under the second step, the court determines " whether the right was clearly established," and applies an " objective but fact-specific inquiry." Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007); see Saucier, 533 U.S. at 202. 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; Inouye, 504 F.3d at 712. Whether a right is clearly established must be " undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201; Bingue, 512 F.3d at 1173. If the officer could have reasonably, but mistakenly, believed that his conduct did not violate a clearly established constitutional right, then the officer will receive qualified immunity. See Saucier, 533 U.S. at 205-06; Johnson v. County of L.A., 340 F.3d 787, 794 (9th Cir. 2003).

Discussion

1. Constitutional Violation

As indicated above, the Court must examine not only certain enumerated considerations, but any other pertinent consideration that is part of the totality of the circumstances.

There are two quantums of force at issue -- rifle fire and beanbag rounds from a less lethal shotgun. Beanbag rounds are less than deadly, but they can cause serious injury, especially at close ranges; they are a significant quantum of force. See Glenn v. Washington Cnty, 673 F.3d 864, 871-72 (9th Cir. 2011); Deorle v. Rutherford, 272 F.3d 1272, 1279-80 (9th Cir. 2001). Beanbag rounds are " permissible only when a strong governmental interest compels the employment of such force." Glenn, 673 F.3d at 872; Deorle, 272 F.3d at 1280. An AR-15 rifle represents an extremely high quantum of force, it is deadly force. See Thompson v. Mercer, 762 F.3d 433, 436-38 (5th Cir. 2014); George v. Morris, 736 F.3d 829, 832, 837-38 (9th Cir. 2013). " 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

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officer or others." Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014).

In terms of the crime at issue, the officer's memorandum cites to Penal Code § 148(a)(1), which prohibits willfully obstructing or delaying a peace officer in the discharge of his duties, this is a misdemeanor. See Cal. Pen. Code § § 17(b), 148(a)(1); Young v. County of L.A., 655 F.3d 1156, 1164 (9th Cir. 2012). Violations of § 148 " will tend to justify force in far fewer circumstances than more serious offenses, such as violent felonies." Young, 655 F.3d at 1165. The non-violent violation of § 148(a)(1) " will not, without more, give rise to a significant governmental interest in the use of significant force." Id. Additionally, Salinas's conduct reasonably implicated Welfare & Institutions Code § 5150, which permits a peace officer to detain and admit an individual to a mental health facility for 72 hours if the individual is a threat to himself. See Cal. Wel. & Inst. Code § 5150(a). Although not a crime, § 5150 may support a lawful detention. See Bias v. Moynihan, 508 F.3d 1212, 1220 (9th Cir. 2007). There is an important governmental interest in getting an individual medical attention who appears to be a risk to himself due to a mental disorder. But, " the use of force that may be justified by that interest [i.e. the interest to provide psychiatric help] necessarily differs both in degree and in kind from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community." Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir. 2010).

Whether a suspect poses an immediate threat to the safety of the officers or others, i.e. the immediacy of the threat posed by a suspect, is the most important factor in evaluating excessive force. See Gonzalez, 747 F.3d at 793. In excessive force cases in which a death results, the Ninth Circuit has cautioned that summary judgment is to be granted sparingly and that the entirety of the evidence is to be carefully examined because often times the only surviving witnesses to the use of force are the defendants. See id at 794-95. Here, the City officers contend that Salinas's left arm was reaching for a bulge near his hip/waist, see DUMF 81, and that he " came" at the officers (the individual officers indicated Salinas charged, lunged, ran, jumped, or sprinted).[7] See DUMF 78, 80, 81. Defendants' also contend that they believed Salinas may have had a weapon on him, either a firearm or a knife. Plaintiff contends that Salinas showed the officers his empty hands on several occasions and that when Salinas stood, the officers could see that he had nothing in his hands. See PUMF 38, 39, 40, 43. Plaintiff also contends that Salinas was not reaching for his hip/waist with his left hand, and that he was stepping out of the planter per the officers' instructions. See PUMF's 44, 45, 96, 97, 98, 99.

The Court finds the statements of Deputy McCahill and the cellphone video to be the key considerations in terms of the threat posed by the Salinas. It is true that Salinas himself reported that he was armed. However, McCahill's statements and testimony indicate that the officers saw empty hands while Salinas was seated, and they would have been able to see that Salinas did not have a gun or weapon in his hands while he was standing. See McCahill Statement at 10:15-20; McCahill Depo. 72:24-74:14. Thus, for purposes of this motion, the officers could see that Salinas had no weapons in his hands near

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the time when the shots were fired. See Narayan, 616 F.3d at 899. In terms of Salinas's own actions, the video's importance cannot be overstated. Viewing the video in the light most favorable to Plaintiff, the video shows that Salinas's left arm was away from his body when the first shots were fired. The evidence does not indicate that Salinas's left arm was reaching for the bulge at his waist/side. The video also shows Salinas was merely stepping down from the planter. The video does not show Salinas running, sprinting, charging, lunging, or jumping. Defendants do not dispute that Salinas had been ordered to come out of the elevated planter several times. Given McCahill's testimony and the video, Salinas did not pose an immediate threat to the offices or to others at the time the beanbag rounds and the AR-15 rounds were fired. Cf Blankenhorn v. City of Orange, 485 F.3d 463, 468 n.1, 478-80 (9th Cir. 2007) (relying in part on video to deny summary judgment on excessive force claims).

In terms of active resistance or evasion, at the time force was utilized, Salinas was not in flight and he was not physically resisting the officers. It is true that Salinas had earlier fled and had been hiding in the planter, but at the time force was used, he was no longer in flight and was clearly not hiding.

As to alternate methods of detaining/subduing Salinas, at least two alternative measures appear possible to the beanbag and AR-15 rounds.[8] First, the officers were armed with tasers. Tasers are considered a less lethal force option, and they are intended to cause temporary paralysis/incapacitation. See Bryan, 630 F.3d at 825-26. It is unknown why the officers did not draw or deploy a taser in this situation. Second, the officers never backed up or gave Salinas additional orders, such as " freeze" or " stop." Salinas was not charging, he merely stepped down. It is unknown why the officers could not have taken a step back and/or issued additional orders.[9] Additionally, with respect to the AR-15 shots, the beanbag rounds were a less lethal option. The video shows nearly simultaneous firing of the beanbag shotgun and the AR-15's, with the beanbag shotgun apparently having been shot first by a split second. McCahill did not shoot his firearm because he wanted to see the effects of the beanbag rounds, see PUMF's 56, 57, but per the video, Boust, Little, and Yambupah did not wait to observe the effects of the shotgun.

In terms of Salinas's mental state, Salinas was clearly emotionally disturbed. See Drummond, 343 F.3d at 1058. Salinas self-reported as being suicidal, indicated to the 911 operator that he wanted the officers to kill him, told Pulkownik that he was worthless and that no one cared, and explained that he did not want the City officers to shoot him but rather wanted McCahill to shoot him. However, he also informed the 911 operator, and the officers were given this information, that he would not hurt the officers. Although Salinas's mental/emotional condition or expressed desire to commit " suicide by cop" did not require that the officers endanger themselves, see Lal v. California, 746 F.3d 1112, 1117 (9th Cir. 2014), Salinas's actions did not pose an immediate threat to the officers.

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Finally, with respect to a warning, the video suggests that a warning could have been given. Given Salinas's mental state, and his failure to comply with some (but not all) of the orders that had been given to him by various officers, he might not have heeded a warning. Nevertheless, Salinas did not appear to have been moving quickly, and it is unknown why the officers could not have at least given Salinas a warning that they would fire if he did not stop.

Under these circumstances, a reasonable jury could find that excessive force was used. Salinas was a mentally disturbed individual threatening suicide. When he was shot, no warnings were given and alternative methods were not used. Of paramount importance, Salinas was not reaching for anything and was not lunging, running, or sprinting towards the officers, he was simply stepping down. Salinas was not an immediate threat. Therefore, summary judgment on this issue is improper. Gonzalez, 747 F.3d at 793-95; Blankenhorn, 485 F.3d at 468 n.1, 478-80.

2. Qualified Immunity

Viewing the evidence in the light most favorable to Plaintiff, Salinas did not appear to be moving quickly, had nothing in his hands, and was not reaching for his hip/waist when shots were fired, rather he was merely stepping down from the planter. Therefore, Salinas did not pose an immediate threat to the officers.

With respect to the use of the AR-15, prior to June 2012, " [c]ase law clearly established that an officer may not use deadly force to apprehend a suspect where the suspect poses no immediate threat to the officer or others." Wilkinson, 610 F.3d at 550; Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994). Because Salinas posed no immediate threat, qualified immunity will be denied as to Boust, Little, and Yambupah. See Wilkinson, 610 F.3d at 550; Scott, 39 F.3d at 914

With respect to the beanbag round, prior to 2012, the Ninth Circuit had recognized that beanbag rounds can cause serious injury and that their use is " permissible only when a strong governmental interest compels the employment of such force." Glenn, 673 F.3d at 872; Deorle, 272 F.3d at 1280. Because Salinas was not an immediate threat, was not actively resisting or evading arrest, and was not suspected of committing a serious offense, qualified immunity will be denied as to Pulkownik. See Glenn, 673 F.3d at 872; Deorle, 272 F.3d at 1280.

II. Monell Liability

Defendant's Argument

The City argues that it adheres to the law and that no policies, customs, or practices caused a constitutional violation. Plaintiff has not identified other incidents of constitutional violations, and merely relying on the circumstances of this incident is not sufficient. Further, there was no inadequate training. SPD's training programs met or exceeded the standards set by POST, and all SPD officers (including the defendant officers) had successfully completed Academy and Field Training, and had biannual update training. Nothing about SPD's training indicates a deliberate indifference for the rights of others. Plaintiff cannot establish a causal relationship between any SPD custom, policy or practice, and any excessive force that may have occurred. SPD policies and Academy training apprised the officers of the lawful use of force, and SPD ensured that its officers received the most up to date constitutional information possible.

In reply, the City argues that neither Policy 418 nor Penal Code § 13515.25 actually require advance training to deal with the mentally ill. Policy 418 says that

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SPD " will endeavor to include POST approved training," and § 13515.25 states that the " Legislature encourages law enforcement agencies" to include additional POST training. Moreover, although Plaintiff cites to a memo from Cpl. Callahan, Plaintiff omits a portion that reads: " Sections . . . 418: should be satisfied with POST DVD's, which have been ordered, received, and delivered to Sergeant Velasquez. He will make the DVD and POST roster available to patrol staff." There is no evidence that actually indicates deliberate indifference by SPD, and there is no evidence of prior incidents in which SPD officers shot and killed a mentally ill individual.

Also in reply, the City argues that Plaintiff does not dispute that all City officers were required to complete 24 hours of updated firearms training every 2 years, that three of the four officers had completed this training, and that three of the four officers had completed SPD's initial training course on patrol rifles. This concession alone show that there was no inadequate firearms training. There is no POST perishable skills requirement for patrol rifles, just firearms generally. Questions of firearms proficiency involve general understanding, use, and handling of firearms and not every particular weapon. A focus on elective training that is outside of POST requirements is inappropriate. Plaintiff has not shown deliberate indifference, or that SPD disregarded prior instances of improper patrol rifle use in the absence of quarterly training. Furthermore, there is no causal link. The officers hit their targets, and even had the offices used their handguns a bullet from a handgun would have resulted in death. It was Salinas's conduct that caused his death. Had Salinas initially surrendered he would still be alive.

Plaintiff's Opposition

Plaintiff argues that Policy 418 required SPD to provide POST approved training on the interaction with mentally disabled persons as part of the advanced officer training. By a January 2012 memo, SPD had not provided such training for at least 7 years. A written policy serves no purpose if it is not followed. The officers in this case failed to use the de-escalation efforts of POST Learning Domain 37 and Policy 418, which resulted in Salinas's death. The absence of a training program was the moving force behind Salinas unnecessary death. That constitutional deprivations would be suffered by persons with mental illness due to the complete failure to properly train its officers should have been obvious to SPD. Further, SPD condoned and ratified the egregious mishandling of a person with a mental illness when the board concluded that the officers' handling of the situation and use of force was justified.

Plaintiff also argues that SPD acknowledged that its officers were being assigned patrol rifles without completing the mandated training. SPD's training supervisor strongly recommended that these officers return their patrol rifles until they received the required training. Boust, Little, and Yambupah spontaneously fired 22 shots from the rifles, and none of these offices had completed the required training mandated by Policy 432. The Board ignored this barrage of shots at an emotionally distraught and suicidal man, and instead ratified the decision to use deadly force.

Legal Standard

Municipalities are considered " persons" under 42 U.S.C. § 1983 and therefore may be liable for causing a constitutional deprivation. Monell v. Department of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978);

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Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). A municipality, however, " cannot be held liable solely because it employs a tortfeasor - or, in other words, a municipality cannot be held liable under [42 U.S.C. § 1983] under a respondeat superior theory." Monell 436 U.S. at 691; see Long, 442 F.3d at 1185. Liability only attaches where the municipality itself causes the constitutional violation through " execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Monell 436 U.S. at 694; Ulrich v. City & County of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002).

In limited circumstances, a government's failure to train may rise to the level of an official policy, but municipal " culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011). A municipality's failure to train its employees may create ' 1983 liability where the " failure to train amounts to deliberate indifference to the rights of persons with whom the [employees] come into contact." Connick, 131 S.Ct. at 1359; City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). To recover for a failure to train, a plaintiff must show: (1) he was deprived of a constitutional right, (2) the municipality had a training policy that " amounts to deliberate indifference to the [constitutional] rights of the persons with whom [its police officers] are likely to come into contact; " and (3) his constitutional injury would have been avoided had the municipality properly trained those officers. Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007); Lee, 250 F.3d at 681. The inadequate training must have " actually caused" the deprivation of rights. Marsh v. County of San Diego, 680 F.3d 1148, 1159-60 (9th Cir. 2012); Merritt v. County of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989). " Deliberate indifference is a stringent standard of fault requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Connick, 131 S.Ct. at 1360; Flores v. County of L.A., 758 F.3d 1154, 1158 n.10 (9th Cir. 2014). " Mere negligence in training or supervision . . . does not give rise to a Monell claim." Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). " A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference' for purposes of failure to train." Connick, 131 S.Ct. at 1360; Flores v. County of L.A., 758 F.3d 1154, 1159 (9th Cir. 2014); see also Mueller v. Auker, 700 F.3d 1180, 1194 (9th Cir. 2012). However, " in a narrow range of circumstances," a pattern of similar violations may not be necessary where violations of constitutional rights are the " highly predictable consequence" of a failure to train. Connick, 131 S.Ct. at 1361; Flores, 758 F.3d at 1159. Finally, " 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 Canton, 489 U.S. at 391. " Mere proof of a single incident of errant behavior is a clearly insufficient basis for imposing liability on the County." Merritt, 875 F.2d at 770; see also Case v. Kitsap County Sheriff's Dep't, 249 F.3d 921, 931-32 (9th Cir. 2001).

Discussion

Plaintiff raises three bases for Monell liability: (1) ratification of the shooting of Salinas by the Board; (2) failure to properly train on handling people with mental illnesses; and (3) violation of policy 432. The Court will address each theory separately.

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1. Ratification

A municipality may be liable if a policymaker, i.e. an official with final policy making authority, ratified the unconstitutional conduct of a subordinate and the basis for it. See Sheehan v. City & County of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014); Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010).

Here, there are two problems with Plaintiff's theory. First, the report indicates that in making its decision the Board considered SPD policies regarding lethal and less lethal force, the FCSD's internal affairs investigation, and the FCSD's homicide bureau's investigation. See Plaintiffs' Ex. X. There is no evidence that the Board ever had access to or saw or considered the videotape, and it is the videotape that creates significant questions regarding the use of force against Salinas. Second, there is no evidence that the Board had final policy-making authority. In fact, the Board's report was sent to Chief Rodriguez for review. As such, the City cannot be liable based on any ratification that may have occurred by the Board in its report.

2. Training On Mental Illness

Plaintiff does not identify a problem with Policy 418 itself. Rather, Plaintiff's position appears to boil down to a contention that Policy 418 and Penal Code § 13515.25 required continuing training, yet SPD failed to train for at least 7 years prior to the incident. The Court is not persuaded.

Penal Code § 13515.25 required POST to create continuing education classes by July 2006 that deal with peace officer interactions with mentally disabled individuals. See Cal. Pen. Code § 13515.25(a).[10] Penal Code § 13515.25 also " encouraged" law enforcement agencies to provide the additional training as part of the " advanced officer training program." Cal. Pen. Code § 13515.25(d).[11] Two aspects of § 13515.25(d) are noteworthy. First, the Legislature " encouraged" agencies to include the new course in their training. The language of § 13515.25 does not say " shall include" or otherwise expressly require agencies to utilize the new POST continuing education course. The word " encourage" does not establish a requirement or create a mandatory duty. Cf. Porch v. Masterfoods USA, Inc., 364 Fed.Appx. 365, 366 (9th Cir. 2010) (" Being encouraged but not required to eat lunch in the company cafeteria does not amount to being 'required . . . to work during any meal or rest period' . . . ." ); Davis v. Richmond, F. & P. R. Co., 803 F.2d 1322, 1330 (4th Cir. 1985) (noting that an employment practice was " encouraged by federal officials, though not mandated." ); Global Crossing Evelyn v. Kings Cnty Hosp. Ctr., 819 F.Supp. 183, 195 (E.D. N.Y. 1993) (noting that Congress

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wishing to encourage compliance " is not the same as legislating such compliance." ); Concerned Dublin Citizens v. City of Dublin, 214 Cal.App.4th 1301, 1315, 154 Cal.Rptr.3d 682 (2013) (finding significant that a plan " states only that retail uses are 'encouraged' -- not required." ); County of L.A. v. Commission on State Mandates, 110 Cal.App.4th 1176, 1184, 2 Cal.Rptr.3d 419 (2003) (noting that " local law enforcement agencies encouraged, but not required, to provide updates." ). Therefore, § 13515.25 did not require SPD to provide the new continuing education/training course to its officers.[12]

As for Policy 418, that policy inter alia established guidelines for interacting with mentally disabled individuals and addressed additional mental health training for patrol officers. As noted above, Policy 418.6 provided that as " part of advanced officer training programs, this agency will endeavor to include POST approved training on interaction with mentally disabled persons as provided by Penal Code § 13515.25." Plaintiff's Ex. FF (emphasis added). The term " endeavor" means to make an earnest attempt or to try, see Webster's New World College Dictionary 469 (4th ed. 2008), it does not mean that something definitely will occur. By Policy 418.6's express language, there is no requirement that the § 13515.25 course will actually be used.[13] It is true that Cpl. Callahan indicated in a memo that training was mandated by Policy 418, but that is contrary to the plain language of Policy 418. There is no evidence that Cpl. Callahan's characterization of Policy 418 is the accepted interpretation by SPD.[14]

Even assuming that Policy 418 required that the § 13515.25 continuing education class be included in SPD training, there is a problem. As noted above, Cpl. Callahan's January 30, 2012 memo stated that the concerns surrounding several policies, including Policy 418, " should be satisfied with POST DVD's, which have been ordered, received, and delivered to Sgt. Velasquez. He will make the DVD and POST roster available to patrol staff." Plaintiff's Ex. Z. Therefore, there is an indication that any requirements imposed by Policy 418 would now be adequately addressed because POST DVD's had been received and would be made available to SPD personnel. This memo was issued about four months prior to the incident with Salinas. The memo was ordered by a Deputy Chief, and reflects that SPD was concerned about its policies and avoiding liability. There is no evidence that the DVD's were not made available as part of the advanced training programs.[15] The

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memo, which identified possible policy problems and stated that a solution was being implemented, does not reflect deliberate indifference by the City regarding Policy 418.

In the typical failure to train case, a plaintiff must show other instances in which officers have violated the constitutional rights of others. See Connick, 131 S.Ct. at 1360; Flores, 758 F.3d at 1159. Plaintiff in this case has made no such showing. SPD has a policy regarding interactions with mentally disabled individuals, and there has been no indication that Policy 418 is deficient or inconsistent with Post Learning Domain 37. Although the four City officers in this case arguably did not follow the commands of Policy 418, there is no evidence that Policy 418's dictates are regularly violated by interactions between SPD officers and mentally disabled individuals. See City of Canton, 489 U.S. at 391; Case v. Kitsap County Sheriff's Dep't, 249 F.3d at 931-32 (" . . . nor can liability be predicated on the isolated sporadic events in this case." ). Without notice that the rights of mentally disabled individuals were more than sporadically being violated despite Policy 418, the City had no notice that its training and policy was deficient and causing constitutional violations. See Mueller, 700 F.3d at 1194. That is, there is insufficient evidence of deliberate indifference.

Police interactions with mentally disabled individuals are not uncommon, and courts in this circuit have permitted Monell claims to proceed when the policy/training at issue involves interactions with the mentally disabled. See Kirby v. City of E. Wenatchee, *35-*37 (E.D. Wash. Apr. 10, 2013); Newman v. San Joaquin Delta Cmty. College Dist., 814 F.Supp.2d 967, 977-78 (E.D. Cal. 2011). In those cases, however, the key was an absence of both a policy and training regarding interactions with mentally disabled individuals. See id. Here, SPD has Policy 418, which appears to appropriately address interactions with the mentally disabled. Further, although Cpl. Callahan's January 30, 2012 memo indicates that training had not been occurring, training through the received POST DVD's was being made available to SPD officers and the DVD's were intended to address inter alia Policy 418. These facts make this case materially different from Newman and Kirby.

In sum, Policy 418 addresses interactions with the mentally disabled, and Plaintiff has identified neither deficiencies within Policy 418 nor other incidents involving SPD personnel and mentally disturbed individuals. Plaintiff has not shown an actual violation of state law, POST training mandates, or Policy 418.6. Summary judgment in favor of the City on this failure to train claim is appropriate. See Flores, 758 F.3d at 1159-60; Mueller, 700 F.3d at 1194.

3. Policy 432.5

Plaintiff focuses on SPD's alleged failure to enforce Policy 432.5. Policy 432.5 required officers to complete an initial 24-hour training course on patrol rifles before they could carry or utilize a patrol rifle. See Plaintiff's Ex. GG. After completion of the 24-hour training course, Policy 432.5 required the officers to have quarterly training and qualifications. See id The failure to complete two or more quarterly training qualifications per year disqualifies the officers from using a patrol rifle, and the officer must retake the initial 24-hour training course. See id

As described above, the January 24, 2012 memo from Cpl. Callahan to Deputy Chief Johnson identified a significant compliance problem with Policy 432.5. According to the memo, " the vast majority" of SPD personnel had not completed the

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initial 24-hour training course, but the " vast majority" of SPD personnel had been issued patrol rifles. See Plaintiff's Ex. Y. Cpl. Callahan recommended in part taking away patrol rifles " as a precaution" until the officers had completed the initial 24-hour training course. See id.

Here, the City acknowledges that three of the four City officers had completed the initial 24-hour training course. See Doc. No. 65 at 12:6-7. Based on training records submitted by the City, it appears that Yambupah did not complete the initial 24-hour training course. See Callahan Dec. Exs. B, C, D. Per Policy 432.5, Yambupah was ineligible to use or carry a patrol rifle. See Plaintiff's Ex. GG. That Yambupah still had her patrol rifle nearly five months after Callahan's memo is extremely troubling. Nevertheless, there is a causation problem. The video indicates that Boust, Little, and Yambupah fired simultaneously, and each officer fired multiple shots. See Plaintiff's Ex. LL: PUMFs 50, 51, 52. Plaintiff agrees that the three officers fired their AR-15 shots essentially simultaneously with the discharge of Pulkownik's beanbag gun. See PUMF 47. If Yambupah had been the only officer to fire her AR-15, causation would be clearer. However, the two officers who had received the initial 24-hour training also fired their patrol rifles. That is, the one officer who did not have the 24-hour training and the two officers who did have the 24-hour training all essentially reacted at the same time and in the same way. Under these circumstances, the failure of SPD to ensure that Yambupah had completed her 24-hour initial training course did not " actually cause" the shooting of Salinas. See Marsh, 680 F.3d at 1159-60.

With respect to Boust and Little, these officers do not appear to have been in full compliance with Policy 432.5. Boust and Little completed their initial 24-hour training, see Callahan Dec. Exs. B, D, but they do not appear to have completed the quarterly training required by Policy 432.5. See PUMF 127, 128. As a result, Policy 432.5 prohibited Boust and Little from carrying or using a patrol rifle. See Plaintiff's Ex. GG. Their carrying and use of a patrol rifle was therefore a violation of Policy 432.5. See id Despite this violation of Policy 432.5, there is insufficient evidence of deliberate indifference by the City.

No evidence has been submitted that would have put the City on notice that there was a problem with enforcing the quarterly training requirement. First, as discussed above, Policy 432.5 has two separate training requirements: (1) an initial 24-hour training course, and (2) quarterly training and certification. See id Cpl. Callahan's January 24 memo put the City on notice of a compliance problem with the first training requirement of Policy 432.5. See Plaintiff's Ex. Y. Critically, Cpl. Callahan's memo was concerned only with the initial 24-hour training. See id[16] There is absolutely no discussion in the memo about Policy 432.5's quarterly training and recertification requirement. See id Thus, unlike the initial 24-hour training requirement that affected Yambupah, the

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City was not expressly warned about compliance problems with the quarterly training and recertification requirement. It is the latter training requirement, and only the latter training requirement, that impacts Boust and Little. Second, a plaintiff generally must show other instances of peace officers violating constitutional rights in order to show deliberately indifferent training. See Connick, 131 S.Ct. at 1360; Flores, 758 F.3d at 1159. Plaintiff does not criticize the substance of Policy 432, and she has not presented any evidence of other instances in which SPD personnel misused a patrol rifle or engaged in any kind of excessive force. Without notice that the rights of citizens were more than sporadically being violated despite Policy 432.5, the City had no notice that its training was deficient and causing constitutional violations. See Mueller, 700 F.3d at 1194. At most, Plaintiff has shown an isolated incident of one aspect of Policy 432.5 not being enforced. This is insufficient to show inadequate training.[17] See Clouthier, 591 F.3d at 1251 (finding that implementation of an internal policy had been faulty but that there was insufficient evidence of a longstanding policy improper implementation or of notice that that the deficiency in implementation would likely result in a constitutional violation); Case, 249 F.3d at 931-32.

In sum, Plaintiff has shown violations of two parts of Policy 432.5. However, Plaintiff has not shown deliberate indifference with respect to quarterly training and has not shown that the City's failure to ensure that Yambupah had completed the 24-hour initial training actually caused the shooting. Summary judgment in favor of the City on this failure to train claim is appropriate. See Flores, 758 F.3d at 1159-60; Mueller, 700 F.3d at 1194; Marsh, 680 F.3d at 1159-60; Clouthier, 591 F.3d at 1251; Case, 249 F.3d at 931-32.

III. Supervisory Liability

Defendant's Argument

Defendants argue that there is no evidence of ratification by Chief Rodriguez. Chief Rodriguez never expressed his personal belief that the shooting was justified, just that the investigating agency found that it was justified.

Plaintiff's Opposition

Plaintiff argues that Chief Rodriguez is personally liable. Rodriguez allowed the officers to collaborate with their attorney before giving their statements to investigators, which is a gross violation of Policy 310. His personal participation in the joint meeting amounted to deliberate indifference to constitutional rights and an obstruction of justice. Moreover, Rodriguez signed off on the officers' use of force against Salinas. The officers were not disciplined or reprimanded, and they were not required to undergo additional training on either the use of patrol rifles or in dealing with people with mental illness.

Legal Standard

For purposes of 42 U.S.C. § 1983, " supervisory officials are not liable for actions of subordinates on any theory of vicarious liability." Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). " A supervisor may be liable

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only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Crowley, 734 F.3d at 977; Hansen, 885 F.2d at 646. A sufficient causal connection between a supervisor's conduct and a constitutional violation can be shown by: (1) the supervisor sets in motion a series of acts by others, or knowingly refuses to terminate a series of acts by others, that the supervisor knew or reasonably should know will cause others to inflict a constitutional injury; (2) the supervisor's own culpable action or inaction in the training, supervision, or control of his subordinates; (3) the supervisor's acquiescence in or ratification/condoning of the constitutional deprivation; or (4) conduct by the supervisor that showed a reckless or callous indifference to the rights of others. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); Dubner v. City & County of San Francisco, 266 F.3d 959, 968-969 (9th Cir. 2001); Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998); Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).

Discussion

Plaintiff relies on basically two actions by Chief Rodriguez to impose liability.

First, Plaintiff points to Chief Rodriguez allowing all officers to meet together with their attorney before speaking to the FCSD internal affairs investigator, which violated Salinas's rights and obstructed justice. However, by the time this meeting occurred, Salinas had already been shot and was dead. This conduct had nothing to do with the use of force against Salinas, and it could not have violated any of Salinas's rights. Cf Guyton v. Phillips, 606 F.2d 248, 250 (9th Cir. 1979) (" [§ 1983] does not provide a cause of action on behalf of a deceased based upon alleged violation of the deceased's civil rights which occurred after his death. A 'deceased' is not a 'person' for the purposes of [§ 1983] . . . ." ).

Second, Plaintiff contends that Chief Rodriguez " signed off on the use of force against Salinas and did not require the officers to undergo further training or discipline. The mere failure to discipline does not show condoning or ratification. See Clouthier, 591 F.3d at 1253-54. The uncontroverted evidence is that Rodriguez relied on the conclusions of the Board and the conclusions of the FCSD, which was responsible for two reports. See Rodriguez Depo. 119:14-123:23. The three total reports from these entities found that the City officers' use of force against Salinas was justified. Plaintiff criticizes the substance of the Board's report by pointing to contradictions between the report and the cellphone video. However, as noted above, there is no indication that the Board reviewed or had access to the cellphone video. Plaintiff does not identify other aspects of the Board's report or of the FCSD's reports that should have put Chief Rodriguez on notice of constitutional violations and the need for policy changes. Cf Henry A. v. Willden, 678 F.3d 991, 1004 (9th Cir. 2012) (explaining that per Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) allegations that a sheriff had been given clear notice of unconstitutional jail conditions and unconstitutional behavior by deputies was sufficient to show acquiescence in the constitutional violations). The evidence does not show that Chief Rodriguez condoned or ratified or acquiesced in any unconstitutional acts by the four City officers against Salinas. See Sheehan, 743 F.3d at 1231 (" To show ratification, a plaintiff must prove that the authorized policymakers approved a subordinate's decision and the basis for it." ); Henry A., 678 F.3d at 1004.

Neither of the acts relied upon by Plaintiff show a sufficient causal relationship between the shooting of Salinas and Chief

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Rodriguez's acts. Crowley, 734 F.3d at 977. Therefore, summary judgment in favor of Chief Rodriguez on Plaintiff's § 1983 excessive force claim is appropriate.

IV. State Law Claims

Defendants' Arguments

Defendants argue that the state law claims are related to the Fourth Amendment excessive force claim. For the same reasons that the excessive force claim fails, the state law claims should also fail. Additionally, Defendants argue that a tortious battery is a completed tortious assault. Because the evidence in this case indicates a justified battery, there can be no liability for assault.

Plaintiff's Opposition

Plaintiff argues that for the same reason summary judgment was inappropriate for the excessive force claim, it is also inappropriate for state law claims. Further, Plaintiff disagrees that he cannot recover for both assault and battery.

Discussion

There appears to be no dispute that Plaintiff's state law claims mirror her excessive force claim. Because the Court has denied summary judgment on the federal excessive force claim, the Court will also deny summary judgment on the state law claims.

With respect to the assault and battery claims, the Court disagrees with Defendants that Plaintiff cannot recover for assault because the evidence indicates a battery. The torts of assault and battery " are two distinct civil claims with different elements." Warren v. Marcus, 78 F.Supp.3d 1228, *40-*41 (N.D. Cal. Jan. 29, 2015); Davis v. City of San Jose, 69 F.Supp.3d 1001, *18-*19 n.7 (N.D. Cal. Sept. 24, 2014). " A battery is a violation of an individual's interest in freedom from intentional, unlawful, harmful or offensive unconsented contacts with his or her person." Rains v. Superior Ct., 150 Cal.App.3d 933, 938, 198 Cal.Rptr. 249 (1984); see also Judicial Council of Cal., Civil Jury Instructions (" CACI" ) § 1300 (listing elements of the tort of battery); CACI § 1305 (listing elements of the tort of battery by a policy officer). Battery is " committed if there is unwanted intentional touching of any kind." Conte v. Girard Orthopedic Surgeons Med. Grp., Inc., 107 Cal.App.4th 1260, 1266, 132 Cal.Rptr.2d 855 (2003). An assault is a " demonstration of an unlawful intent by on person to inflict immediate injury on the person of another then present." Lowry v. Standard Oil Co., 63 Cal.App.2d 1, 6-7, 146 P.2d 57 (1944); see also CACI § 1301. " The tort of assault is complete when anticipation of harm occurs." Kiseskey v. Carpenters' Trust for S. Cal., 144 Cal.App.3d 222, 232, 192 Cal.Rptr. 492 (1983).

Defendants rely exclusively on Alejandro v. Williamson, (E.D. Cal. Apr. 30, 2008) to make their argument. Alejandro cited to a California criminal law case and noted that a defendant cannot be convicted of both assault and battery because a battery is a consummated assault. See Alejandro, at *32. However, the " intentional torts of assault and battery are defined differently in California civil law cases," than they are defined in California criminal law cases. Krause v. W. Heritage Ins. Co., (2010).[18] The case at bar

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involves civil claims, not criminal violations. Alejandro has never been cited by any court for the proposition relied upon by Defendants. The Court is not bound by Alejandro and will not follow it on this issue. Summary judgment on Plaintiff's assault cause of action is inappropriate.

V. Punitive Damages

Defendants' Arguments

Citing the standards and burden of proof for imposing punitive damages under California and federal law, Defendants argue that there is no evidence that they used force with an evil intent or motive, acted in reckless disregard of Salinas's rights, or acted with malice. Defendants contend that they did everything in their power to prevent the situation from developing into one in which deadly force had to be used.

Plaintiff's Opposition

Plaintiff argues that a reasonable jury could find that the officers' use of force was excessive and was a reckless or callous indifference to Salinas's rights, or that the officers' conduct constituted a cruel and unjust hardship in disregard to Salinas's rights. Plaintiff also argues that Chief Rodriguez's participation in the group meeting showed an evil motive. Further, Chief Rodriguez's ratification of the officers' conduct constitutes a reckless and callous indifference to Salinas's rights.

Discussion

In order to obtain punitive damages under California law, a plaintiff must show by clear and convincing evidence that a defendant acted with malice, fraud, or oppression. See Cal. Civ. Code § 3294; Roby v. McKesson Corp., 47 Cal.4th 686, 712, 101 Cal.Rptr.3d 773, 219 P.3d 749 (2009). Plaintiff's opposition did not address punitive damages under California law. Instead, Plaintiff cited only federal cases and only discussed the federal law standard for punitive damages. The Court takes Plaintiff's failure to address punitive damages under California law as a concession or abandonment of the claim. See Estate of Shapiro v. United States, 634 F.3d 1055, 1060 (9th Cir. 2011); Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005); Morales v. City of Delano, 852 F.Supp.2d 1253, 1271 (E.D. Cal. 2012); see also Gibson v. Mortgage Elec. Registration Sys., 23 F.Supp.3d 895, 903 & n.18 (W.D. Tenn. 2014); Arnold v. Jewell, 6 F.Supp.3d 101, 112 (D.D.C. 2013). Therefore, summary judgment will be granted in favor of Defendants on this claim.

Punitive damages may be awarded in 42 U.S.C. § 1983 cases if a defendant's conduct is driven by an evil motive or intent, or when it involves a reckless or callous indifference to the constitutional rights of others. Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993). A plaintiff must show such conduct by a preponderance of the evidence. See Dang v. Cross, 422 F.3d 800, 807-08 (9th Cir. 2005); see also Smith v. City of Oakland, 538 F.Supp.2d 1217, 1246 (N.D. Cal. 2008). " Conduct is in reckless disregard of the plaintiff's rights if, under the circumstances, it reflects complete indifference to the plaintiff's safety or rights, or if the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law." Model Civ. Jury Inst. 9th Cir. 5.5 (2014); see Dang, 422 F.3d at 807. Here, a reasonable jury could view the cellphone video and conclude that the officers acted in reckless disregard of Salinas's Fourth Amendment right to be free from excessive force. Viewed in the light most favorable to Plaintiff as the non-moving party, the video does not depict Salinas lunging, charging, sprinting, or running at the officers, it depicts him taking a step out of the elevated planter with his left hand away

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from his waist. Summary judgment in favor of Boust, Little, Pulkownik, and Yambupah on this claim is inappropriate.

Finally, as discussed above, there is insufficient evidence to link Chief Rodriguez's conduct with the shooting of Salinas. Because there is not a viable § 1983 claim against Chief Rodriguez, there can be no punitive damages against him under federal law. Therefore, summary judgment in favor of Chief Rodriguez on this claim is appropriate.

CONCLUSION

Defendants move for summary judgment on all claims against them.

With respect to the Fourth Amendment excessive force claim, the cellphone video reasonably can be viewed as demonstrating that Salinas did not pose an immediate threat to the officers. Without this threat a reasonable officer would have known that the use of deadly force or the beanbag gun was unconstitutional. Thus, summary judgment on this claim and on the issue of qualified immunity will be denied.

With respect to the claim for supervisory liability against Chief Rodriguez, Plaintiff's evidence does not indicate ratification or otherwise show a causal connection between the violation of Salinas's right to be free from excessive force and Chief Rodriguez's own actions. Thus, summary judgment in favor of Chief Rodriguez is appropriate.

With respect to Plaintiff s Monell claims against the City, Plaintiff either has not shown a deliberately indifferent policy or that a policy actually caused the violation of Salinas's Fourth Amendment rights. Thus, summary judgment in favor of the City is appropriate.

With respect to Plaintiff's state law claims, these claims are tied to the Fourth Amendment excessive force claim. Because summary judgment on the excessive force claim is denied, it is also denied as to the related state law claims.

Finally, with respect to Plaintiff's request for punitive damages, Plaintiff has not defended her request under California law. Given Plaintiff's failure to defend or address punitive damages under California law, summary judgment will be granted. As for punitive damages under federal law, the cellphone video provides a sufficient basis for a reasonable jury to conclude that the officers acted in reckless disregard to the rights of Salinas. Thus, summary judgment on this claim will be denied.

ORDER

Accordingly, IT IS HEREBY ORDERED that:

1. Defendants' motion for summary judgment is GRANTED as to Plaintiff s Monell claims, Plaintiff's claims against Chief Rodriguez, and Plaintiff's request for punitive damages under California law; and

2. Defendants' motion for summary judgment is otherwise DENIED.

IT IS SO ORDERED.


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