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Losee v. City of Chico

United States District Court, E.D. California

July 29, 2016

MINDY LOSEE, individually and as successor in interest to Breanne Sharpe, deceased, Plaintiff,


         In the 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.


         A year 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).

         Ms. 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.

         The 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.


         The 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).

         The 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.

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         A. Officer Marshall First to Respond

         At 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. 21.[1] 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. ¶ 7.

         The 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.

         B. Sergeant Zuschin Responds to Dispatch Reports

         Meanwhile, 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.

         When 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.

         After 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.

         Concerned 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.

         Sergeant 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.

         Sergeant 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.

         C. Officer Selland Joins the Call

         Officer 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.

         Officer 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.

         The 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.

         D. Officer Vega Arrives

         Officer 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.

         While 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 Interview 13:1-5.

         E. Officer Cumber Responds

         Officer 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.

         Officer 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 ...

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