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I.A. v. City of Emeryville

United States District Court, N.D. California

March 13, 2017

I.A., et al., Plaintiffs,
v.
CITY OF EMERYVILLE, et al., Defendants.

          ORDER RE DEFENDANT CITY OF EMERYVILLE'S MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Re: Dkt. No. 63

          Donna M. Ryu United States Magistrate Judge

         This is 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.

         I. BACKGROUND

         A. Facts

         The facts are undisputed unless otherwise indicated.

         On the 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 freeway overpass.

         Officer 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.

         Williams 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.

         As 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.

         Shortly 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.

         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 bus.

         According 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.

         When 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.

         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.

         When 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 this point.

         Williams 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:

         1. First Volley

         During 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.

         2. Second Volley

         Williams 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.]

         3. Third Volley

         Williams 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.

         B. Procedural History

         Plaintiffs 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].

         II. LEGAL STANDARDS

         A court 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 ...


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