United States District Court, E.D. California
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
DOC. NO. 103
case stems from a fatal confrontation between decedent Cecil
Elkins, Jr. ("Elkins") and the last remaining
defendant, California Highway Patrol ("CHP")
Officer Hipolito Pelayo ("Pelayo"). Plaintiffs are
the estate and family members of Elkins, and they allege
various claims under 42 U.S.C. § 1983 and California
state law. Pelayo now moves for summary judgment on the
claims against him. For the reasons that follow, Pelayo's
motion will be granted.
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 (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.,
477 U.S. 242, 248-49 (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).
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
(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
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. Summary judgment may not be
granted "where divergent ultimate inferences may
reasonably be drawn from the undisputed facts."
Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771
F.3d 1119, 1125 (9th Cir. 2015); see also 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
Fitzgerald v. El Dorado Cnty., 94 F.Supp.3d 1155, 1163
(E.D. Cal. 2015); Sanders v. City of Fresno, 551
F.Supp.2d 1149, 1163 (E.D. Cal. 2008). ""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
moving party is entitled to summary judgment. Nissan
Fire, 210 F.3d at 1103.
evening of November 11, 2012, Elkins led City of Tulare
police officers on a high speed vehicle chase after an
officer saw Elkins burglarizing a car in the Tulare County
Fairgrounds parking lot. DUMF 1. The vehicle pursuit ended
after Elkins crashed his truck into a walnut orchard, but
Elkins successfully fled from the officers on foot. See
November 12, 2012, at 6:55 a.m., Elkins had an encounter with
members of the City of Tulare Police Department. See
Marvin Dec. ¶¶ 1, 7-17. Elkins ran from Officer
Chris Marvin into a stolen car that was parked in a driveway.
See id. at ¶¶ 7-11, 15. A Tulare Police
patrol vehicle arrived and parked behind Elkins's stolen
car. See id. at ¶ 11. Elkins then drove in
reverse at a high speed into the occupied patrol vehicle.
See id. at ¶ 12. Officer Marvin drew his firearm
and ordered Elkins to stop. See id. at ¶¶
13-14. Elkins quickly accelerated his vehicle towards Officer
Marvin. See id. at ¶ 14. Officer Marvin had to
jump "a couple of feet" to avoid being hit by
Elkins's car. See id. Elkins's car came
within a foot of hitting Officer Marvin. See id.
Officer Marvin discharged his firearm nine times at Elkins,
as Elkins fled in the stolen car. See id. at ¶
15. Two of Officer Marvin's shots appear to have hit
Elkins in the arm. See Romero Dec. ¶ 28; Short
Depo 55:10-56:3; see also PUMF 1. Elkins drove the
car through two yards (including fences) before crashing the
car into a tree in a residential yard. See Marvin
Dec. ¶ 16 & Ex. A. Elkins exited the car, ran to another
car that was nearby and had been left running, and fled the
scene in that car. See id. at ¶ 17. This stolen
vehicle was later found totally burned-out. See id.
Tulare police officers eventually identified Elkins as the
person involved in the assaults against them, and Officer
Marvin was 100% certain of Elkins's identity after he
identified Elkins in a photo-lineup. See DUMF 5;
Marvin Dec. ¶ 20. Due to Elkins's violent behavior
towards the two officers and the lateness of the day by the
time Elkins had been identified, it was decided to wait until
daylight the next day (November 13, 2012) to pursue and
apprehend him. See DUMF 6; Kelly Depo. 23:21-24:11.
November 13, 2012, Elkins was wanted by the Tulare Police
Department for attempted homicide on a Tulare police officer.
JUMF 7. Tulare Police Sergeant Fred Ynclan
("Ynclan") requested the assistance of the Tulare
County Agencies Regional Gang Enforcement Team
("TARGET") in conducting surveillance on Elkins at
a location in the town of Pixley, California. See
DUMF 9; PUMF 4. Pelayo was assigned to TARGET, which is a
multi-agency law enforcement task force. See DUMF 8;
briefing took place on November 13, 2012 at 2:00 p.m. at the
Tulare County Sheriff's Department substation in Pixley
concerning the need for surveillance and apprehension of
Elkins that day. DUMF 10; see also PUMF 6. The
briefing was led by Ynclan, and was attended by inter
alia Pelayo, Tulare Police Detective Jesse Guzman
("Guzman"), Special Agent Frank Navarro, and
Commander Michael Haroldsen. See DUMF 11. All
attendees of the briefing were informed: (1) Elkins was
wanted for serious crimes, including ramming a police car two
times and attempting to run over another police officer,
which caused the officer to fire shots; (2) Elkins might be
using methamphetamine; and (3) Elkins would likely do
"whatever it takes to get away from law
enforcement." See DUMF's 22, 23. The
attendees were requested to set up surveillance at the home
of Elkins's father in Pixley to see if Elkins could be
located there. DUMF 24. The plan was to use TARGET to conduct
surveillance on Elkins and then have SWAT apprehend Elkins if
he was confirmed to be at the location. DUMF 25. All
attendees were given a booking photo of Elkins and a "Be
On the Lookout - Officer Safety" bulletin
("BOLO") concerning Elkins. See DUMF's
12, 13. The BOLO stated that on November 12, 2012: (1) Elkins
had been identified driving a stolen vehicle, had fled on
foot, and then fled away from Officer Marvin in a stolen car;
(2) Elkins had attempted to ram an occupied marked police car
by driving it in reverse into the police car; (3) Elkins then
drove his vehicle forward towards Officer Marvin; (4) Officer
Marvin fired several shots at Elkins; and (5) Elkins fled in
an additional stolen vehicle that was later found burned-out
near Pixley. See Pelayo Dec. Ex. F; DUMF's
14-17. The BOLO also stated that Elkins had been involved in
a police pursuit on November 11, 2012, when he drove his
truck into an orchard and collided with a tree. DUMF 18. The
BOLO stated that if Elkins is located, officers should
"use caution." See DUMF 19. The officers
at the briefing concluded that Elkins was potentially
violent, especially to law enforcement. See DUMF 21.
Pelayo was not told that Elkins was possibly armed with a
gun. See PUMF 10.
after the briefing, the TARGET members began their
surveillance of the Elkins home in Pixley. Haroldsen and
Navarro were in one car and were set up "on point"
near the Elkins home (they could see the front of the house).
See DUMF 28. Ynclan conducted surveillance from a
nearby motel parking lot. DUMF 29. Pelayo had the BOLO and
mug shot of Elkins, and was set up about one and a half
blocks away from the Elkins residence. See
DUMF's 26, 27. Pelayo remained at this location for about
30 minutes. See DUMD 26.
Haroldsen and Ynclan saw Elkins's father arrive home.
See DUMF 30. Haroldsen saw a second vehicle drive up
to the Elkins home. See DUMF 31. Ynclan also saw the
second car drive up, and saw a male exit the home and then
enter the car. DUMF 32. Haroldsen ordered someone from TARGET
to drive by the home and see who had driven up and who had
entered the car. DUMF 33.
drove by the home in his unmarked vehicle. DUMF 34. Pelayo
identified the male who had exited the house and gotten into
the car as Elkins, and noted that the driver of the car was a
female (who was later identified as Christie Short).
See DUMF 35. As Pelayo drove by, Elkins slid down in
the passenger seat so only the top of his head was visible.
DUMF 36. Pelayo radioed that he believed that he had been
"made" or identified as an officer. See
DUMF 37. Short's car then drove off, and was followed by
three TARGET vehicles containing five law enforcement agents,
including Pelayo. See DUMF 38. Short's car
eventually stopped at a gas station about two blocks away
from the Elkins home. See DUMF 39. As soon as
Short's car pulled into the gas station, Elkins jumped
out of the car and began to run. See DUMF 40.
Short's car was being followed, Haroldsen and Ynclan were
engaged in radio communication to have a "stop
car"/marked vehicle in position to stop and arrest
Elkins. DUMF 41. Because Short's car stopped at the gas
station so soon, the plan changed from finding a marked car
to make the arrest of Elkins, to having the surveillance team
make the arrest. DUMF 42. Haroldsen and Navarro's vehicle
pulled in behind Short's car, and Pelayo pulled next to
Haroldsen/Navarro. See DUMF 43. Pelayo and Navarro
exited their vehicles and ran after Elkins. See
DUMF's 44, 45; PUMF 17.
followed Elkins into a tire shop. See DUMF 46; PUMF
18. When Elkins entered the tire shop, Guzman and his partner
drove their car around the corner. See DUMF 52. In
the tire shop, Elkins pushed tires, rims, and tools at
Navarro and into Navarro's path. See Navarro
Depo. 26:4-27:15; Pelayo Depo. 66:22-67:6. That is, Elkins
used tires and tools as obstacles to keep Navarro from
apprehending him. PUMF 19. While running after Elkins,
Navarro was yelling at Elkins, "Stop. Police." DUMF
47. Pelayo also was yelling commands at Elkins to stop
running. DUMF 48. Elkins did not obey the commands and
continued to run. DUMF 49. Based on Elkins throwing or
pushing tires and tools, Pelayo believed that Navarro was in
danger while Elkins and Navarro were in the tire shop.
See Pelayo Depo. 108:4-21, 112:12-113:4. Pelayo ran
around the tire shop in an attempt to cut-off Elkins. DUMF
ran out of the north side of the tire shop. See DUMF
54. As Elkins exited the tire shop, Pelayo yelled,
"Police. Stop." DUMF 55. Elkins did not obey the
commands and continued to run in a full sprint, jumping over
tires and an eight foot high fence. See DUMF 56;
PUMF 26. Pelayo observed Elkins use both of his hands to
climb the fence. See PUMF 26. Pelayo saw Elkins land
on the other side of the fence. DUMF 57.
Elkins landed on the other side of the fence, Pelayo
immediately identified himself as "police" and gave
Elkins commands to stop and for Elkins to show his hands.
See DUMF 58. Guzman had arrived at the fence on
foot. See DUMF 61. Guzman was 10 to 12 feet away
from Pelayo. See Guzman Depo. 41:9-13. Guzman had
his gun drawn, and also gave Elkins commands to show his
hands. See id. at 41:17-20; DUMF 61.
landed in a crouched position facing north towards an open
field, and then turned west. See DUMF 59. Guzman had
a view of Elkins's back, and Pelayo had more of a side
angle and a better view of Elkins's front. See
Guzman Depo. 41:14-17, 42:11-12. Pelayo could not see
Elkins's right hand when Elkins landed. DUMF 60. Upon
landing and turning west, Elkins started running, and turned
his torso counterclockwise to look back at Pelayo (who was
northeast of Elkins). See DUMF 63; Pelayo Depo.
87:3-16. When Elkins turned his torso counterclockwise,
Pelayo could see the left side of Elkins's face and
Elkins's right hand. See DUMF 64. Elkins then
reached with his right hand down into his left side
waistband, under his shirttail. See DUMF 65; Guzman
Depo. 62:7-21, 68:7-24; Pelayo Depo. 82:2-6; Ynclan Depo.
54:12-55:12. Pelayo testified that it looked like Elkins was
reaching for a gun, and not trying to just pull up his pants
(Elkins had been wearing loose fitting jeans). See
Pelayo Depo. 82:5-16; PUMF 46. Guzman believed that Elkins
was carrying a firearm because, as soon as Elkins landed over
the fence, Elkins moved his hands to his midsection.
See Guzman Depo. 62:7-13. Pelayo testified that,
upon seeing Elkins reach for his waistband, Pelayo
immediately fired his gun because he feared for his life.
See Pelayo Depo. 82:22-83:1. Pelayo was facing
Elkins's back at an angle when he fired his gun. See
id. at 92:17-24. Pelayo did not give a warning before he
fired, did not consider lesser means of force before firing,
and was not concerned about the safety of others when he
fired. See id. at 96:16-19; PUMF's 29, 41.
Pelayo fired multiple shots in rapid succession. See
Guzman Depo. 43:3-4, 45:4-7, 64:6-15; Pelayo Depo. 83:17-25.
Pelayo continued to move as he fired so as to avoid being a
target to Elkins. See DUMF 68. After Pelayo fired,
Elkins took a couple of steps in a southwest direction, fell
and attempted to crawl away. See Guzman Depo.
43:5-15, 44:18-45:3. Pelayo testified that he stopped
shooting when he perceived that Elkins was no longer a
threat. See Pelayo Depo. 125:13-15. Guzman did not
fire because he did not see a weapon, but he did feel
threatened by Elkins based on Elkins's running, ignoring
commands, and tucking his hands to his midsection.
See Guzman Depo. 62:22-63:1, 68:7-24. Pelayo
testified that Elkins kept his hand at his waist throughout
the shooting. See Pelayo Depo. 122:23-123:4; see
also Guzman Depo. 68:7-24. From the time that Elkins
landed on the ground from jumping the fence, to the time when
Pelayo fired the first shot, "it was just fast . . .
maybe two seconds." Id. at 42:15-19.
Pelayo stopped firing, Elkins continued to try and pull
himself forward/crawl. See Guzman Depo. 44:24-45:3;
Pelayo Depo. 95:24-96:5. Pelayo and Guzman approached Elkins
and ordered Elkins to show his hands. See Pelayo
Depo. 87:25-88:13. Haroldsen then appeared and handcuffed
Elkins for officer safety. See Haroldsen Depo.
28:8-11. Elkins was checked for weapons, however no weapons
were found. See JUMF 74. Only a methamphetamine pipe
and a prescription pill were found in the area in which
Elkins had reached. See id. Pelayo and other
officers administered first response to Elkins until medical
personnel arrived at the scene. DUMF 75. However, Elkins died
as a result of the gunshots wounds from Pelayo. See
to the incident with Elkins, on the night of November 23,
2010, Pelayo was involved in an arrest of an individual who
was wanted for inter alia automobile theft and
assault with a deadly weapon (a vehicle). See Pelayo
Depo. 26:5-25; Jones Dec. Ex. A. Pelayo understood that the
suspect had a violent history. See Pelayo Depo.
37:9-13. Pelayo was ordered to assist in arresting the
suspect. See Pelayo Depo. 27:9-28:6. Pelayo arrived
at a muddy, plowed, agricultural field. See id. at
32:8-11. The suspect was on his knees in the field, his back
was arched as he was trying to get up, and Pelayo could not
see the suspect's hands. See id. at 31:15-25. A
single Tulare police officer was standing in front of the
suspect. See id. at 32:24-33:1. The last
transmission from the Tulare police officer was screaming to
"get down, get down, " which Pelayo took to mean
that the officer needed assistance. See id. at
35:3-11. Pelayo testified that he did not know that the
suspect was handcuffed and had been "tased."
See id. at 40:17-21. Pelayo testified that he ran
towards the suspect to tackle him, but changed his mind
because he did not want to be in a situation in which two
officers were down in a muddy field with a dangerous suspect;
instead, Pelayo moved to the side and hit the suspect on the
cheek area. See id. at 34:3-8, 39:2-18. Pelayo
testified that he recalled then saying, "What the fuck
did you make me run for?", but that the statement was
spontaneous and not directed at anyone. Id. at
39:19-24, 41:4-10. The suspect appears to have then been
taken into custody without further incident.
reported his actions to his supervisors, and the Tulare
police officer also reported the incident. See id.
at 41:24-42:7; Jones Dec. Ex. A at Memo of 2-15-11. The
Tulare police officer told investigators that Pelayo ran up
to the suspect, said "This is what you get for making me
run bitch!, " and then punched the suspect in the face.
See Jones Dec. Ex. A at Memo of 12-7-10. As the
suspect, the Tulare police officer, and Pelayo were all
walking out of the field, the Tulare officer reported that
Pelayo told the suspect, "You're lucky I didn't
shoot your ass." Id. Investigators deemed the
suspect's account of the event to be different from the
Tulare police officer's account and "not as
egregious." Id. at Memo of 2-15-11. It is
unclear whether Pelayo was disciplined for the November 2010
incident. See Pelayo Depo. 42:11-25.
Amendment -- Excessive Force
argues that his use of force was objectively reasonable.
Elkins was wanted for attempted homicide and was actively
evading arrest. This was a quickly evolving situation, and
Elkins's actions caused the surveillance team to change
their plans. Elkins ran from the tire store, was ordered to
show his hands, and was shot shortly thereafter when he
reached his hand to his waistband. Pelayo was aware of the
information in the BOLO about Elkins. Elkins ignored commands
and instead reached to his waistband, which Pelayo and other
officers saw. Pelayo was in fear of his life and fired the
shots. Pelayo kept moving and kept shooting. Pelayo had to
make a split-second determination, and the fact that no
weapon was recovered does not mean that the use of force was
even if there is a Fourth Amendment violation, qualified
immunity should be granted. Case law recognizes that even if
a suspect is unarmed, deadly force may be appropriate under
the circumstances if the suspect moves as though he is
attempting to draw a gun. Given the facts and existing case
law, qualified immunity should be granted.
argue that Pelayo's use of force was unreasonable. First,
pursuant to CHP policy, the crime that Elkins allegedly
committed did not justify Pelayo's use of force. CHP
authorizes deadly force to apprehend a person whom the
officer reasonably believed committed a felony involving the
use or threatened use of deadly force, except for an assault
with a deadly weapon with a vehicle. This policy applies even
more to Elkins because Elkins was running away from officers
and was not in a vehicle.
Elkins was not an immediate threat to the safety of anyone.
The incident involving Officer Marvin had long since passed,
and there was no indication that Elkins was armed with a
weapon. Moreover, the circumstantial evidence undercuts
Pelayo's version of events. Elkins did not have a gun.
This raises the question of why Elkins would reach for his
waistband since he knew there were officers around him with
their guns drawn? Under Cruz v. City of Anaheim, 765
F.3d 1076 (9th Cir. 2014), one answer is that Pelayo is
lying. Further, Elkins was trying to run away from officers,
not towards them. This is confirmed because Elkins was shot
in the back by Pelayo, not in the front. Additionally, the
November 2010 incident discredits Pelayo's version of
events. In 2010, Pelayo threatened a suspect that the suspect
was lucky Pelayo did not shoot because the suspect made him
run. A jury could view this incident as evidence that Pelayo
carried out this thought/threat against Elkins, who also made
him run. Finally, Guzman did not see Elkins make furtive
movements, and Guzman did not fire despite being in the same
line of sight as Pelayo. As Elkins was shot and wounded the
day before by law enforcement, it is highly likely Elkins was
simply trying to run away from the officers.
although Elkins was fleeing, this consideration is given less
weight since flight by a felon alone does not justify deadly
Pelayo did not consider any alternative uses of force. Pelayo
knew that other officers were in the area, and they could
have assisted in taking Elkins into custody. Pelayo's
conduct in pursuing Elkins was unreasonable and reckless, and
unnecessarily escalated the situation. Similarly, even though
it was feasible to give Elkins a warning that shots would be
fired, Pelayo failed to do so.
respect to qualified immunity, it was established well before
November 2012 that police officers cannot use deadly force
unless the suspect poses an immediate threat of harm to the
officers or others, or the suspect is fleeing and the nature
of the attempted escape will result in a serious threat of
injury to others. There are genuine issues of disputed
material fact with respect to the facts surrounding the
shooting. Taking the disputed facts in the light most
favorable to Plaintiffs, a reasonable officer in Pelayo's
position would have known not to use deadly force.
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 (2007); Graham v. Connor, 490 U.S.
386, 395 (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; Drummund 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." 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).
employs a tiered analysis for determining qualified immunity.
See Saucier v. Katz, 533 U.S. 194, 200-02 (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 (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; Ellins, 710 F.3d
Court must examine not only certain enumerated factors, but
"must examine the totality of the circumstances and
consider whatever specific factors may be appropriate in a
particular case, whether or not listed in the Graham
decision." Mattos v. Agarano, 661 F.3d 433, 441
(9th Cir. 2011). Further, the Ninth Circuit has cautioned
that summary judgment is to be granted sparingly in excessive
force cases in which a death occurs, and that the evidence is
to be carefully examined because often times the only
surviving witnesses to the use of force are the defendants.
See Gonzalez v. City of Anaheim, 747 F.3d 789,
794-95 (9th Cir. 2014). With this admonition in mind, the
Court will carefully examine each relevant consideration
a.Quantum of ...