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Johnson v. City of Vallejo

United States District Court, E.D. California

April 14, 2015

JOSEPH L. JOHNSON; CYNTHIA A. MITCHELL, individually and as successor in interest to Mario Romero; N.R., individually and as successor in interest to Mario Romero; D.M., a minor; D.M., a minor; AHN KHE HARRIS; AHN LOC HARRIS; CYNQUITA MARTIN, Plaintiffs,
v.
CITY OF VALLEJO, a municipal entity; DUSTIN JOSEPH; SEAN KENNEY; JOSEPH KREINS, individually and in his official capacity as Chief of the Vallejo Police Department, Defendants

For Joseph L Johnson, Cynthia A Mitchell, Plaintiffs: William Thomas Nagle, Michael Patrick Verna, Bowles & Verna LLP, Walnut Creek, CA.

For N. R., guardian ad litem Natasha Stephens, Plaintiff: Catherine Haley, LEAD ATTORNEY, Oakland, CA; Fulvio Francisco Cajina, LEAD ATTORNEY, The Law Office Of Fulvio F. Cajina, Oakland, CA; Matthew D. Haley, LEAD ATTORNEY, Haley Law Offices, P.C., Oakland, CA; William Thomas Nagle, Bowles & Verna LLP, Walnut Creek, CA.

For D. M., guardian ad litem Cynquita Martin, Ahn Khe Harris, Ahn Loc Harris, D.M. (2), guardian ad litem Cynquita Martin, Plaintiffs: Catherine Haley, LEAD ATTORNEY, Oakland, CA; Fulvio Francisco Cajina, LEAD ATTORNEY, The Law Office Of Fulvio F. Cajina, Oakland, CA; Matthew D. Haley, LEAD ATTORNEY, Haley Law Offices, P.C., Oakland, CA.

For City of Vallejo, Dustin B Joseph, Sean G Kenney, Joseph M Kreins, Defendants: Kelly J Trujillo, LEAD ATTORNEY, City Of Vallejo, City Attorney's Office, VALLEJO, CA; Kristen K. Preston, Mark A. Jones, Jones & Dyer, Sacramento, ca.

Page 1213

ORDER GRANTING DEFENDANTS' MONELL MOTION FOR SUMMARY JUDGMENT

JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE.

This action arises from a police shooting incident that occurred on September 2,

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2012 in Vallejo, California that resulted in the death of Mario Romero (" Decedent" ) and the injury of Joseph Johnson (" Johnson" ). Two complaints were filed separately but later consolidated by this Court (Doc. #2, 19). Defendants the City of Vallejo (" the City" ); Joseph Kreins (" Kreins" ), Chief of the Vallejo Police Department (" VPD" ) at the time of the incident; and VPD Officers Dustin Joseph (" Joseph" ) and Sean Kenney (" Kenney" ) (collectively " Defendants" ) filed five separate motions for summary judgment (Doc. #63-67). A hearing on these motions was held on April 8, 2015. This Order addresses only the fifth motion for summary judgment (which the Court took under submission) (" the Monell MSJ" ), in which Defendants specifically challenge the Plaintiffs' claims under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (" Monell" ).

At the hearing, Plaintiffs N.R., Ahn Khe Harris, Ahn Loc Harris, and Cynquita Martin (" the Martin and Harris Plaintiffs" ) all conceded that as a result of the Court's ruling on the other motions, they no longer could pursue their Monell claims, as they had no legal basis for doing so. Therefore, this Order discusses the Monell claims as stated in the complaint filed by Plaintiff Cynthia Mitchell, individually and on Decedent's behalf, and Johnson.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following facts are undisputed. Johnson's Response to Defendants' Statement of Undisputed Facts (Doc. #77-1); Mitchell's Response to Defendants' Statement of Undisputed Facts (Doc. #81-1); Defendants' Response to Mitchell's Separate Statement of Facts (Doc. #92-1); Defendants' Response to Johnson's Separate Statement of Facts (Doc. #93-1); Martin & Harris Plaintiffs' Response to Defendants' Statement of Undisputed Facts (Doc. #80).

In the early morning of September 2, 2012, Kenney and Joseph (collectively " the officers" ) were responding to a pending call related to a reported burglary. The officers spotted a white Thunderbird occupied by Decedent and Johnson. Kenney had received a briefing sometime prior to this event of a vehicle similar in description to the Thunderbird as being involved in a drive-by shooting. The officers pulled up to the Thunderbird, stopping in the middle of the street facing the front of the Thunderbird and within 5-15 feet of it. The Martin and Harris Plaintiffs resided in the house directly facing the scene of this incident and were inside at the time of the shooting.

It is at this point, chronologically, that the versions of events, and evidence in support thereof, are disputed. What is not disputed is that during the encounter between Decedent, Johnson and the officers that followed at least 3 rounds were fired into the Thunderbird's driver-side door and window and 23 rounds were fired into the Thunderbird's windshield by the officers. Johnson was injured as a result of the shooting. Decedent died as a result, receiving bullet wounds in his arms, wrist area and hands region among other areas.

Two very distinct and competing versions of events are evident in the record starting from the time the officers pulled up to the Thunderbird until the end of the incident. One version is that primarily put forth by the Defendants and the other a version put forth by Plaintiffs.

A. Defendants' Version

Kenney stopped his vehicle approximately 10-15 feet away from the Thunderbird, not obstructing its path. Kenney Depo. 169:18-22. Upon the officers stopping their car, Decedent opened the Thunderbird's

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driver-side door and started to run away. Kenney Depo. 79:10-23. Joseph testified that he noticed Decedent was holding his waistband and observed the butt of a gun tucked into the waistband. Joseph Depo. 104:17-25. Decedent then " spun around and went back towards his vehicle" with a handgun in his right hand. Joseph Depo. 107:23-112:1.

At some point, the officers began shouting " show me your hands" to Decedent and Johnson. Kenney Depo. 101:21-102:3; Joseph Depo. 118:2-119:25. Johnson complied but Decedent did not. Id. Fearing for the safety of Kenney, Joseph then began firing at Decedent. Joseph Depo. 107:23-112:1. Fearing for his and Joseph's safety, Kenney also began firing at Decedent. Kenney Depo. 98:15-99:7. Eventually Decedent complied and puts his hands up, while Johnson still had his hands up and nearly sticking out his window. Kenney Depo. 107:17-108:14.

After radioing for backup, Kenney and Joseph observed Decedent drop his hands down and start to bring them up in a shooting position. Kenney Depo. 113:25-119:12; Joseph Depo. 124:15-125:7, 135:21-137:19. Kenney responded by firing 7 or 8 rounds at Decedent, and Joseph fired 4-6 shots at Decedent. Id.

Decedent then complied again with the commands to raise his hands. Kenney 123:2-124:6. However, shortly thereafter Decedent dove down to the center console, to get what Kenney figured was a gun. Id. Kenney responded to the " furtive reaction" by firing his entire magazine, about 12-13 rounds. Id.

B. Plaintiffs' Version

Upon pulling up to within 5 feet of the Thunderbird and facing it at an angle, the police car shined its spotlight into the Thunderbird. Martin Depo. 135:17-136:8; Nagle Decl. Exhibit S (filed under seal, Doc. #84-6). The police car's doors " flew open," the officers shouted " just put your, you know, hands," then the two officers began to open fire on the Thunderbird. Johnson Depo. 140:10-24; Doc. #93-1, Facts 19-21. In response to the officers' demands, both Decedent and Johnson raised their hands. Johnson Depo. 140:25-141:16; Doc. #93-1, Facts 4-5. After shots began, Decedent called out to the officers, " we got our hands up, like, so stop shooting." Johnson Depo. 140:10-141:16. Johnson did not hear any further commands from the officers. Id. Decedent never exited the vehicle during the incident. Doc. #93-1 #33; Johnson Depo. 144:6-13.

Decedent never had a gun during the incident. Johnson Depo. 152:11-13; Doc. #93-1 #36. Plaintiffs assert the only weapon found in the car was a pellet gun with no fingerprints from either Decedent or Johnson; Defendants do not contend they found a weapon with either Decedent or Johnson's fingerprints. Kenney testified that he never saw a weapon during or before the shooting, only after the conclusion. Kenney Depo. 215:4-10. Joseph testified that he and Kenney did not have ...


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