United States District Court, E.D. California
MINDY LOSEE, individually and as successor in interest to Breanne Sharpe, deceased, Plaintiff,
CITY OF CHICO; SCOTT ZUSCHIN; DAMON SELLAND; NICK VEGA; JARED CUMBER; and DAVID QUIGLEY, Defendants.
early morning hours of September 22, 2013, what started as a
routine traffic stop for a broken taillight escalated to a
1.6 mile police chase of Breanne Sharpe by at least five
police officers in a residential neighborhood in Chico,
California. In the end, Ms. Sharpe died, and her mother,
Mindy Losee, filed this suit against the officers and the
City of Chico. Ms. Losee contends the officers’ use of
force was unreasonable and violated federal constitutional
and state law. Following discovery, the officers moved for
summary judgment, contending their force was justified by the
threat Ms. Sharpe posed to them and the public. At hearing on
the motion, Renee Valentine appeared for plaintiff and Sharon
Medellin appeared for defendants. ECF No. 39. For reasons
explained below, the court having carefully considered and
weighed the evidence in this difficult case,
defendants’ motion is GRANTED.
after the police chase, Ms. Losee filed suit against the City
of Chico, officers Zuschin, Selland, Vega, Cumber, and
Quigley, and several Doe defendants. Compl., ECF No. 1. The
court dismisses Doe defendants because Ms. Losee has not
identified or served them, Craig v. United States,
413 F.2d 854, 856 (9th Cir. 1969) (the court may dismiss the
Doe defendants sua sponte).
Losee’s complaint makes eleven claims: (1) unreasonable
search and seizure-detention and arrest in violation of the
Fourth Amendment; (2) unreasonable search and
seizure-excessive force in violation of the Fourth Amendment;
(3) denial of medical care in violation of the Fourth
Amendment; (4) interference with familial relationship in
violation of the substantive due process clause of the
Fourteenth Amendment; (5) municipal liability under §
1983 for approving the acts of the defendant officers; (6)
municipal liability under § 1983 for failure to train;
(7) municipal liability under § 1983 for an
unconstitutional custom or policy; (8) false arrest or false
imprisonment in violation of California Government Code
section 815.2(a); (9) battery in violation of California
Government Code section 815.2(a); (10) negligence in
violation of California Government Code section 815.2(a); and
(11) violation of California Civil Code § 52.1, or the
Bane Act. Compl. Claims one through four are against the
officers, id. ¶¶ 29-54, five through seven
against the City and doe defendants, id.
¶¶ 55-85, eight and nine against the City and the
officers, id. ¶¶ 86-99, and ten and eleven
against all defendants, id. ¶¶ 100-117.
officers move for summary judgment of all claims and in the
alternative for partial summary judgment on some claims.
Mot., ECF No. 17. Ms. Losee has agreed to voluntarily dismiss
six of her claims, numbered according to the number assigned
the claim in the complaint: (1) unreasonable search and
seizure-detention and arrest; (3) denial of medical care; (5)
municipal liability for approving the acts of defendant
officers; (6) municipal liability for failure to train; (7)
municipal liability for an unconstitutional custom or policy;
and (8) false arrest or false imprisonment in violation of
California Government Code section 815.2(a). See
generally ECF No. 21. The officers do not oppose
dismissal. The court dismisses these claims under Federal
Rule of Civil Procedure 41(a)(2), with five claims remaining:
(2) unreasonable search and seizure-excessive force in
violation of the Fourth Amendment; (4) interference with
familial relationship; (9) state law battery (10) state law
negligence; and (11) violation of the Bane Act. Opp’n,
ECF No. 20. Ms. Losee nonetheless opposes summary judgment on
these remaining claims, id., and the officers have
replied, Reply, ECF No. 26.
following facts are undisputed unless otherwise stated. Where
a genuine dispute exists, the court draws reasonable
inferences in favor of Ms. Losee. Tolan v. Cotton,
___U.S.___, 134 S.Ct. 1861, 1868 (2014).
officers have proffered a computer-based video reenactment
prepared by the officer involved shooting incident protocol
team and obtained from the Chico City files. Medellin Decl.
2, ECF No. 17-1; Defs.’ Ex. 2, ECF No. 17-2. Ms. Losee
objects to the computer reenactment, contending it lacks
foundation and is contrary to the officers’ testimony
at deposition. ECF No. 21. The court sustains Ms.
Losee’s objections and does not consider the video,
with one exception. The map displayed at the beginning of the
reenactment shows the undisputed relationship of the primary
streets in the neighborhood where the chase occurred. The
court references the map, reproduced below, for the limited
purpose of contextualizing the locational and geographical
facts surrounding the chase.
Officer Marshall First to Respond
approximately 1:56 a.m. on September 22, 2013, the Chico
Police Department received a call from a citizen at 842 Coit
Tower Way, northeast of Vista Verde Avenue and off the map
reproduced above, reporting a suspicious person checking car
door handles. Undisputed Material Fact (UMF) No. 1, ECF No.
Officer Ed Marshall was the first to respond, arriving in
full uniform and a marked police car to perform an area
check. UMF No. 2. When he arrived, Officer Marshall observed
a black Honda Del Sol with a broken taillight traveling north
on Coit Tower Way. UMF No. 3. Officer Marshall blinked his
emergency lights in the Honda’s direction as his
attempt to initiate a traffic stop because of the broken
taillight. UMF Nos. 3, 9, Marshall Decl. ¶ 7, ECF No.
17-17. The Honda did not stop, and instead turned onto and
drove west on East Eighth Street, a narrow residential street
with speedbumps, at fifty miles per hour. Marshall Decl.
Honda then turned south onto Vista Verde Avenue, the location
of a large apartment complex with a parking lot containing
speedbumps. UMF Nos. 10, 11. While the officers contend the
Honda, whose driver was later identified as Ms. Sharpe, drove
east on Vista Verde Avenue at forty miles per hour, Marshall
Decl. ¶ 9, Ms. Losee cites evidence suggesting Ms.
Sharpe was driving fifteen miles per hour, Cumber Dep.
18:14-17. As Officer Marshall followed Ms. Sharpe down Vista
Verde, Ms. Sharpe did not slow down for speedbumps and stop
signs, and drove on the wrong side of the road. UMF Nos. 9,
11. The chase halted momentarily when Ms. Sharpe ran into a
six-inch red curb, and Officer Marshall pulled up behind her
in an attempt to make contact. UMF Nos. 14, 15. As he pulled
up, Ms. Sharpe backed up, turned around and started driving
west on Vista Verde Avenue; Officer Marshall followed. UMF
No. 15. Ms. Sharpe then returned to East Eighth Street,
turning right, and started driving east.
Sergeant Zuschin Responds to Dispatch Reports
Sergeant Scott Zuschin was inside his office at the Chico
Police Department when he heard the dispatch call from a
loudspeaker referring to a “suspicious
circumstance.” Zuschin Dep. 20:15-17. Within ten
minutes of the initial call, Sergeant Zuschin heard dispatch
say Ms. Sharpe was fleeing from Officer Marshall. At this
point, Sergeant Zuschin testified he engaged in a thought
process, considering issues such as “who was involved
in the pursuit, where the pursuit was located and heading to,
and any dangers or risks that might be involved in letting
the pursuit continue.” Zuschin Dep. 23:11-14.
Considering these issues, along with Officer Marshall’s
reputation as an “experienced officer, ” Sergeant
Zuschin allowed Officer Marshall time to obtain control of
the situation. Zuschin Dep. 24:18-20. At “some
point” later, Sergeant Zuschin drove to the area of the
chase. Id. 20:7-8, 25:6-7.
Sergeant Zuschin arrived at the corner of East Eighth Street
and Vista Verde Avenue, he heard Officer Marshall report over
dispatch that Ms. Sharpe was turning into the apartment
complex parking lot on Vista Verde. UMF No. 19. Suspecting
Ms. Sharpe might have stopped and run away on foot through
the apartment complex, Sergeant Zuschin positioned his car on
East Eighth Street near the entrance of Vista Verde Avenue.
UMF No. 20. Sergeant Zuschin then exited his patrol car and
began to move to its rear when he saw Ms. Sharpe drive from
Vista Verde Avenue onto East Eighth Street so quickly that
the Honda “looked like it was airborne” as it
came around the turn. UMF No. 21. Ms. Sharpe then drove
across both lanes of East Eighth Street and onto the curb on
the north side of the street. UMF No. 22.
hitting the curb, Ms. Sharpe swerved back into the roadway
and drove diagonally across the street towards Sergeant
Zuschin, who at this time was located near the bike path
along the shoulder of the roadway on the south side of East
Eighth Street. UMF No. 23; Zuschin Dep. 34:20-22; 37:23-24.
At this point, it is unclear whether Sergeant Zuschin was
behind the back bumper of his patrol car or by the back
passenger door as Ms. Sharpe drove toward him. See
Zuschin Dep. 34:7-25. In any event, it is undisputed that
Sergeant Zuschin was near the back of his car. UMF No. 21,
23. As Ms. Sharpe’s car approached him, Sergeant
Zuschin un-holstered his gun and hopped from side to side as
he tried to anticipate which way Ms. Sharpe would travel
next. UMF No. 25. Ms. Sharpe adjusted her direction, drove
past Sergeant Zuschin’s car, hit the curb on the south
side of the roadway, drove onto the sidewalk, and hit a
utility pole. UMF No. 26.
that Ms. Sharpe was seriously injured, or that she would
attempt to flee on foot, Sergeant Zuschin approached the
Honda from behind. UMF No. 27. As he came within fifteen to
twenty feet of the Honda, Sergeant Zuschin saw the white
back-up lights come on, and the Honda starting to move
backwards. Plaintiff’s Undisputed Material Facts (PUMF)
No. 110, ECF No. 21; Zuschin Dep. 46:9-10. The parties
dispute whether Ms. Sharpe rapidly accelerated directly
toward Sergeant Zuschin and whether at this point Sergeant
Zuschin thought Ms. Sharpe was going to run him over.
Compare Zuschin Interview 11:19-24 to
Zuschin Dep. 48:14-16. The officers cite evidence suggesting
Sergeant Zuschin thought he was going to be run over. Zuschin
Interview 11:19-24. Ms. Losee points out that Sergeant
Zuschin testified he did not know how fast Ms. Sharpe was
going when the Honda began to back up, or whether Ms. Sharpe
was trying to hit him. Zuschin Dep. 48:14-16.
Zuschin fired two shots at Ms. Sharpe through the rear window
of Ms. Sharpe’s car as she backed up toward him. PUMF
117. He estimates between ten and fifteen seconds elapsed
after the Honda’s reverse lights came on and before he
fired his first shot. PUMF No. 111. After both shots, Ms.
Sharpe placed the Honda in drive, made a U-turn, and headed
west down East Eighth Street. UMF No. 31.
Zuschin testified that as Ms. Sharpe drove away, he scanned
the direction Ms. Sharpe was moving and realized she posed
“a threat to public safety and officers at the
scene.” Zuschin Dep. 54:24-55:1. As a result, he fired
two more shots toward the moving car. UMF No. 33.
Plaintiff’s expert Scott Defoe challenges Sergeant
Zuschin’s reason for shooting, pointing out that
Sergeant Zuschin shot in the very direction he believed
officers and the public might be. DeFoe Dep. 58:25-59:6.
Officer Selland Joins the Call
Selland was also in his office at the Chico Police Department
when he heard the dispatch call. UMF No. 34; Selland
Interview 9:13-15. He responded to Coit Tower Way, drove onto
East Eighth Street, and parked behind Sergeant
Zuschin’s car but closer to the north side of the
street and next to a small tree on his left. UMF Nos. 34, 36;
Selland Interview 11:10-12. Officer Selland exited his car
and positioned himself between his car’s open
driver’s door and the front left quarter panel. UMF No.
37. As he exited, Officer Selland heard gunshots but he did
not know who was firing those shots or where the shots were
coming from. Selland Dep. 11:3-6.
Selland’s arrival coincided with Ms. Sharpe’s
crashing into the utility pole. UMF No. 35. After she crashed
and made the U-turn across Eighth Street, Ms. Sharpe drove
west in Officer Selland’s direction. UMF No. 39.
Officer Selland shot twice as Ms. Sharpe drove in his
direction and then fired a third shot as she passed him. UMF
No. 42; Selland Dep. 23-22:12. He estimates about two seconds
passed between the time he saw the car moving in his
direction and the time he fired his first shot. Selland Dep.
20:19-22. As Ms. Sharpe passed Officer Selland on his left
she ran into the small tree with her car, breaking the tree
in half. UMF No. 43. As she passed, the Honda hit Officer
Selland’s open door and came within “inches to a
foot” of Officer Selland himself. Selland Dep. 19:7-18.
The tree landed “right behind  or almost right on
” Officer Selland. Selland Interview at 12:19-25.
parties dispute whether Officer Selland believed he had time
to move out of the way when Ms. Sharpe came toward him.
Compare Selland Dep. 16:16-22 with Selland
Dep. 19:19-22. The officers cite to Officer Selland’s
deposition, at which he testified he did not believe he had
time to move out of the way and believed Ms. Sharpe was
intentionally turning in his direction. Selland Dep.
16:16-22. Ms. Losee cites to other parts of his deposition
testimony, in which Officer Selland explained by the time he
fired his first shot, Ms. Sharpe was approximately thirty
feet away. Selland Dep. 19:19-22.
Officer Vega Arrives
Vega was in his office when he heard the dispatch call, and
he arrived to observe Ms. Sharpe making the U-turn across
East Eighth Street after hitting the utility pole. UMF No.
49. When he arrived, he parked just behind and to the right
of Officer Selland’s car, in the middle of East Eighth
Street. Vega Interview 15:1-2, Defs.’ Ex. B, ECF No.
17-3. As he exited his car to stand near the driver’s
side door, Officer Vega heard gun shots, but did not know who
was shooting. Vega Interview 15:1-5; PUMF No. 151.
the Honda was heading west on East Eighth Street, Officer
Vega also heard its “loud engine.” Vega Dep.
27:9-11. Officer Vega fired one shot through the
Honda’s front windshield as Ms. Sharpe headed west in
his general direction and then fired five or six additional
shots as Ms. Sharpe passed him. UMF No. 53. Officer Vega
estimates he fired all of his shots within approximately
fifteen seconds. Vega Dep. 56:6-8. Officer Vega said he shot
because he thought he was going to get hit by Ms.
Sharpe’s car and was trying to stop Ms. Sharpe. Vega
Interview 17:1-8; 17:22-33. He believes he was ten to fifteen
feet away from her car when he fired his first shot. Vega
Officer Cumber Responds
Cumber and his partner were working on paperwork at the Chico
City Police Department when they heard the reports of Ms.
Sharpe’s car failing to yield to Officer Marshall.
Cumber Interview 7:22-25. Officer Cumber responded and when
he arrived, pulled into the apartment complex on Vista Verde
Avenue and activated his emergency lights. UMF No. 57.
Cumber arrived as Ms. Sharpe drove along Vista Verde Avenue
to return to East Eighth Street, and before she hit the
utility pole. UMF No. 58. Officer Cumber turned his car
around and drove onto East Eighth Street, where he saw Ms.
Sharpe make the U-turn, drive onto the road Cumber testified
was “blocked with patrol cars, ” drive over a
curb and into the tree, hit Officer ...