United States District Court, N.D. California
ORDER RE DEFENDANT CITY OF EMERYVILLE'S MOTION
FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, PARTIAL SUMMARY
JUDGMENT Re: Dkt. No. 63
M. Ryu United States Magistrate Judge
a civil rights case arising out of the death of Yuvette
Henderson, who was shot and killed during an incident on
February 3, 2015. Plaintiffs I.A. and C.S., who are
Henderson's minor children, and Denise Henderson, who is
Henderson's adult daughter, bring this survival and
wrongful death action against the City of Emeryville, and
Emeryville Police Officers Warren Williams and Michelle
Shepherd (collectively “Defendants”). Defendants
now move for summary judgment, or, in the alternative,
partial summary judgment on all of Plaintiffs' claims.
[Docket No. 63]. The court heard oral argument on February
23, 2017. Having considered the parties' oral argument
and written submissions, the court denies Defendants'
motion in part and grants it in part.
facts are undisputed unless otherwise indicated.
afternoon of February 3, 2015, Home Depot employees Jorge
Figueroa and Antonio Gutierrez detained Henderson as she was
leaving the store because they suspected her of shoplifting.
The Home Depot store is located at 3838 Hollis Street in
Emeryville, California. Figueroa called the Emeryville Police
Department to request assistance with an uncooperative female
shoplifter, who was later identified as Henderson. While on
the call with the police dispatcher, Figueroa requested an
ambulance on Henderson's behalf because Henderson had hit
her head when she fell outside of the store. Minutes later,
Figueroa reported to the dispatcher that Henderson had pulled
out a gun, and was running on Hollis Street toward the 580
Shepherd was parked in a patrol car on Christie Street
approximately a half mile away when she heard that a woman
was in custody for a theft at Home Depot. Shepherd responded
to the dispatch and proceeded to Home Depot. As Shepherd was
turning southbound on Hollis, she heard over the dispatch
that the suspect had a gun and was running. Upon learning
this information, Shepherd continued southbound on Hollis.
was at the Emeryville Police Department when he heard over
the dispatch that there was an uncooperative suspect at Home
Depot. Williams responded as the cover unit, and drove toward
Home Depot. While on route, Williams heard over the dispatch
that the suspect was armed with a revolver.
Shepherd approached Home Depot, she saw Figueroa, whom she
recognized from responding to prior calls for thefts at the
store. Figueroa was on the sidewalk on Hollis next to the
store. Shepherd slowed her vehicle. She saw Figueroa pointing
southbound on Hollis, and heard him say that Henderson was
running. Shepherd reported this information to dispatch,
along with a description of Henderson. She continued
southbound on Hollis.
thereafter, Williams drove up to Home Depot. Williams saw two
Home Depot employees standing on the traffic median on Hollis
in front of the store, gesturing southbound on Hollis. He
proceeded southbound on Hollis. Williams heard Shepherd's
update to dispatch, which included a description of what
Henderson looked like, what she was wearing, where she was,
and that she was running southbound on Hollis. Williams drove
southbound on Hollis, following Shepherd.
spotted Henderson running on the sidewalk on the opposite
side of Hollis. Henderson ran toward a bus that was idling
northbound on Hollis. Shepherd stopped her vehicle about 20
feet away from the bus. From this vantage point, Shepherd
could see that Henderson was carrying a gun in one hand and a
purse in the other. Shepherd saw Henderson unsuccessfully try
to board the bus, and then run to a taxi which was behind the
to Shepherd, Henderson was “frantically pounding”
on the driver's side window of the taxi,
“aggressively shaking” the gun in front of the
driver, and pointing the gun in different directions, but
more in the direction of the driver. See Shepherd
Depo. at 36:6-23 [Ex. A to Allen Decl.]. However, video
footage from the bus shows Henderson approach the
driver's side of the green taxi without pounding on the
window, quickly wave around a gun in different directions for
a few seconds at most, and then run past the taxi.
See Bus Video at 12:41:24 - 32 [Ex. E to Allen
Decl.]. Since Shepherd did not relay the bus or taxi incident
to dispatch, Williams was unaware of either incident. Once
Henderson passed the taxi, she continued to run southbound on
Hollis and then underneath the 580 overpass.
Shepherd stopped her vehicle upon seeing Henderson at the
bus, her handgun slipped out of her hand and landed on the
passenger-side floorboard. Shepherd parked just before the
580 overpass and got out to retrieve her gun from the other
side. While Shepherd was re-holstering her gun, she saw
Henderson continue to run southbound on Hollis with a gun in
her hand. Shepherd updated the dispatch with Henderson's
direction. Shepherd was about to get back into her vehicle
when Williams drove up. Shepherd gestured toward Henderson
and told Williams that Henderson was running southbound.
Williams then continued southbound on Hollis, passing
Shepherd's car. Shepherd got back into her vehicle and
drove behind Williams.
and Shepherd followed Henderson to the Extra Space Storage
facility located on Hollis. The facility has a main building
with a covered parking area that contains parking spaces
separated by concrete pillars. Williams and Shepherd parked
their vehicles on the street in front of the covered parking
area. Williams parked closer to the office building; Shepherd
parked further south of Williams in order to stop Henderson
from continuing to run south.
Shepherd parked her vehicle, she saw Henderson run back into
the parking stalls in the covered parking area. After
Shepherd exited her vehicle, she commanded Henderson to drop
her gun, but Henderson did not comply. Shepherd then saw
Henderson run toward the rear of the covered parking area to
try to get into a door, which was locked. She observed
Henderson look around for another way to exit. At this point,
Henderson was positioned at the front end of a silver or gray
vehicle that was parked front-side-in in the covered parking
area. Henderson was standing by the driver's side wheel
well, and Shepherd was positioned behind a pillar that was
next to the vehicle. Shepherd could see that Henderson still
had the gun and purse. Shepherd then heard Williams yelling.
Williams testified that he exited his vehicle, and yelled at
Henderson: “Get on the ground. Get on the ground,
” as he was prepping his rifle. See Williams
Depo. at 22:8-11; 25:5-9 [Ex. G to Allen Decl.]. Neither
Shepherd nor eye witness Lesea Benitez heard exactly what
Williams said, but both recalled hearing Williams yell. At
the hearing, Defendant confirmed that neither Williams nor
Shepherd gave any further verbal warnings to Henderson after
and Shepherd then fired three volleys of shots at Henderson.
The parties agree that the total elapsed time between the
first shot in the first volley and the last shot in the third
volley was less than seven seconds. See Event Record
[Ex. B to Allen Decl.]. Since each of the three volleys is
discussed at greater length below, the court will summarize
the three volleys here:
the first volley, both Williams and Shepherd fired their
weapons. Shepherd fired a single round because she heard a
shot, and believed that Henderson had shot Williams. After
the first volley but before the second one, Williams and
Shepherd became aware that a person was in the silver or gray
vehicle. Shepherd relocated to the rear of that vehicle to
avoid putting that person in jeopardy.
then fired a second volley. One of them hit Henderson in the
right arm. Henderson fell to the ground and dropped the gun.
Williams and Shepherd testified that Henderson's gun
landed on the ground approximately three to five feet from
her. See Williams Depo. at 34:20-35:1 [Ex. G to
Allen Decl.]; Shepherd Depo. at 67:20-25 [Ex. A to Allen
Decl.]. However, according to the post-incident investigation
performed by the Oakland Police Department, the gun was
approximately 6 feet from Henderson. See Incident
Report at 4 [Ex. B to Johns Decl.]. A picture of
Henderson's body shows Henderson laying on her right
side. She is turned away from the position of the gun.
See Photographs at bates-numbered pages COE
(Henderson) 003621 and 006326 [Ex. C to Johns Decl.]
testified that when Henderson was on the ground after the
second volley, “it looked like she was trying to get up
or look around to find her weapon.” See
Williams Depo. at 34:23-25 (Ex. G to Allen Decl.).
Specifically, according to Williams, it seemed like Henderson
was “trying to pop her head up” to look for her
gun. See Williams Depo. at 43:16-44:7 (Ex. G to
Allen Decl.). He fired the third volley at Henderson from
approximately 20 to 36 feet away. One of these shots struck
Henderson in the head and killed her.
filed the operative complaint on August 8, 2016 alleging the
following claims for relief: 1) 42 U.S.C. § 1983
(“Section 1983”) claim for excessive force, based
on the Fourth Amendment; 2) Section 1983 claim for violation
of a child's right to familial relationship, based on the
Fourteenth Amendment; 3) Section 1983 claim for municipal
liability (the “Monell claim”) for
failure to train; 4) violation of California's Bane Act,
California Civil Code section 52.1; 5) battery; and 6)
wrongful death. See First Amended Complaint
(“FAC”) [Docket No. 55].
shall grant summary judgment “if . . . there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The burden of establishing the absence of a genuine
issue of material fact lies with the moving party, see
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986),
and the court must view the evidence in the light most
favorable to the non-movant. See Scott v. Harris,
550 U.S. 372, 378 (2007) (citation omitted). A genuine
factual issue exists if, taking into account the burdens of
production and proof that would be required at trial,
sufficient evidence favors the non-movant such that a
reasonable jury could return a verdict in that ...