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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


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