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Smith v. County of Butte

United States District Court, E.D. California

April 28, 2017

CATHERINE SMITH, individually and as joint successor-in-interest to decedent Cory Bush; and M.B., a minor, individually and as joint successor-in-interest to decedent Cory Bush, through his guardian-ad-litem, Victoria Moseley, Plaintiffs,
COUNTY OF BUTTE, a municipal corporation; MATT KEELING, individually and in his capacity as a Sergeant for the County of Butte; BRIAN EVANS, individually and in his capacity as a deputy sheriff for the County of Butte; ROBERT ALLEN, individually and in his capacity as a deputy sheriff for the County of Butte; and BENJAMIN CORNELIUS, individually and in his capacity as a deputy sheriff for the County of Butte, Defendants.


         On May 18, 2014, Deputy Benjamin Cornelius shot and killed Cory Bush, a young man armed with a pellet rifle. The decedent's mother and minor child now sue the County of Butte and four individual officers for use of excessive force in violation of the U.S. Constitution. Defendants jointly move for summary judgment. ECF No. 23. Plaintiffs oppose, ECF No. 27, and defendants have replied, ECF No. 29. The court heard the motion at hearing on December 16, 2016, at which Benjamin Nisenbaum appeared for plaintiffs, and Stephen Horan and William Camy appeared for defendants. Hr'g Mins., ECF No. 30. For the reasons stated below, after careful consideration in this inherently difficult case, the court GRANTS defendants' motion for summary judgment.

         I. BACKGROUND

         A. Factual Background

         The following facts are undisputed unless otherwise stated. Where a genuine dispute exists, the court draws reasonable inferences in plaintiffs' favor. Tolan v. Cotton, 134 S.Ct. 1861, 1868 (2014).

         On May 18, 2014, Mr. Shannon Moseley of 275 Refuge Avenue, Butte County, called 911 to report that his daughter's boyfriend, Cory Bush, had “gone off the deep end, ” was tearing apart the Moseleys' house, and was ranting, raving, and yelling. Undisputed Material Facts (“UMF”) 1, 3, 26, ECF No. 23-2. At about 6:55 p.m., Moseley stepped outside to make the call while his daughter stayed in the house “[to try] to control [Bush].” Ex. B, 911 Call Transcript (“911 Tr.”) at 2:12-14, ECF No. 24-1; UMF 1. Moseley explained that Bush instructed him to call the police because he wanted to commit “suicide by cop.” UMF 14; 911 Tr. at 3:26-4:2. Moseley believed Bush was on methamphetamine, UMF 3, 11, 26, was having “a really bad” mental breakdown, 911 Tr. at 14:07-08, and had “just snapped, ” 911 Tr. at 6:20-21. Although Moseley believed “[Bush had] got the kids scared pretty bad, ” 911 Tr. at 15:16, he also said he did not believe Bush was a threat to them, 911 Tr. at 7:26. Moseley did not want to call 911, but Bush had said, “[I]t's only gonna get worse . . . . This won't end. I'll tear this house to smithereens.” 911 Tr. at 9:02, 13:24-25. Moseley also told the dispatcher more than twenty times that Bush had armed himself with a rifle-style pellet rifle that could “pass for a .22.” See generally 911 Tr. At one point, Mr. Moseley told dispatch there was a dog on the property, but he said it was “chained up, so the officers don't gotta worry about him.” 911 Tr. at 12:22-23.

         The Butte County Sheriff's Office dispatched four officers to respond and they are the four individual defendants here: Sergeant Keeling; Deputy Evans, with his K-9 “Duke;” Deputy Allen; and Deputy Cornelius. UMF 6, 10. All officers had received training in crisis intervention and communication with the mentally ill and suicidal. Deputies Evans and Cornelius had received Crisis Intervention Team certified training, which trains on best practices and meets the first responder “National Gold Standard” for police-based interaction with persons affected by mental illness, including those threatening suicide. UMF 86. Before this incident, Sergeant Keeling had received Critical Incident Training for supervisors and training in Tactical Communication and Mental Health; Deputy Cornelius had training in Crisis Intervention Tactics, Suicide Risk Detection and Prevention, Tactical Concepts for Rural Operations, and Tactical Communications; Deputy Evans had training in Crisis Intervention Tactics, Suicide Risk Detection and Prevention, Tactical Communications, and Dealing with Developmentally Disabled Persons; and Deputy Allen had training in Tactical Communications, and Suicide Risk Detection and Prevention. UMF 87. Deputy Evans and his K-9 had together received continuous training, graduated from a five week course, and been certified by an independent evaluator as satisfying police standards for K-9 units. Ex. W, Evans Decl. ¶ 4, ECF No. 24-6.

         Before responding to Mr. Moseley's location, the four officers met at the Palermo sub-station to make a plan. UMF 15, 16. They had received highlights from Mr. Moseley's call to dispatch but not all of the details. The officers had been told Bush was armed with a pellet rifle that could shoot one bullet at a time; it was black and looked like a .22 caliber rifle. UMF 26. During the officers' planning discussion, Deputy Cornelius told them he knew Bush; he also said the pellet rifle was “high powered” and that a shot from it “would definitely penetrate a skull.” UMF 18. Cornelius's prior contact with Bush was during an incident in which Bush had been stabbed. Cornelius Depo. at 43-45. The officers decided Cornelius would be the primary communicator with Bush; Deputy Evans was to deploy his K-9 as a less lethal force option, if necessary; and Sergeant Keeling and Deputy Allen were to provide back up. UMF 17, 19-20, 23. All officers were armed with guns, and Deputies Allen and Evans and Sergeant Keeling also each had a Taser, a less lethal electroshock weapon that may be effective up to 14 feet. UMF 21-22, 24-25. Cornelius testified at deposition that Tasers were referenced for the first time only when shots were being fired, when Keeling simultaneously shouted for the officers to use their Tasers. (See Cornelius Depo. at 79.) The other officers do not recall discussing other less lethal options, and Tasers in particular, at the substation where they formulated their plan. (See Keeling Depo. at 59:8-15; Allen Depo. at 39:13-23; Evans Depo. at 31:17-20.)[1] In sum, the undisputed facts are that while some of the officers carried Tasers, their use was not discussed as a less lethal force option before the encounter with Bush. Instead, the officers planned on relying exclusively on the K-9 as the less lethal force option.

         Twenty-five minutes into the 911 call, Moseley reported that “[Bush] want[ed] to see it to fruition, ” 911 Tr. at 18:04, presumably referring to Bush's intention to commit suicide by cop. Within a minute and a half of that statement, at about 7:25 p.m., the officers arrived on scene and met Moseley in front of the house. See 911 Tr. at 19:12-13; UMF 30, 32-33. Moseley told the officers Bush had a pellet gun and is “really mentally screwed up.” 911 Tr. at 19:12-18. Moseley was still on the phone with the 911 operator when the officers arrived, and the 911 call partially recorded his statement, time stamped at 26 minutes 43 seconds. Id. Moseley then ended the call.

         At this point, given the time of year it was still light outside. UMF 31. The officers positioned themselves at the edge of the property behind a tree and fence post. UMF 35. From that position, at approximately 7:27 p.m., Deputy Cornelius used a public address system to call toward the house several times that the Sheriff's Office was outside, saying the officers wanted Bush to come out, and they were there to help him. UMF 38, 41. Bush yelled, “I'm coming out, ” and emerged from the house holding a pellet rifle. UMF 42. Bush yelled and screamed at the officers as he emerged, and though his yelling was largely unintelligible, he screamed, “Shoot me, shoot me.” UMF 47-48. At the same time he walked quickly towards Deputies Evans and Cornelius, who were about 75 feet away, despite the officers' repeated orders to stop, get on the ground, and drop the pellet rifle. UMF 49-51. As he walked, Bush waved the pellet rifle in the air and pointed it in the deputies' direction, all while continuing to yell and scream at them. Id.; Ex. QQ, Evans Depo. at 40:25-41:4, ECF 24-8. In response, Deputy Evans deployed his K-9 and ordered it to bite Bush. UMF 52. As the K-9 approached, Bush threw his pellet rifle to the ground and raised his hands. Ex. QQ, Cornelius Depo. at 109:18-21, ECF No. 24-8; Ex. QQ, Moseley Depo. at 83:10-11, ECF No. 24-8.

         The parties dispute what happened next. Plaintiffs contend Bush threw his pellet rifle so hard it broke open and a spring fell out, rendering the rifle inoperable, and that the officers were close enough to see the spring fall out. See Ex. QQ, Menzes[2] Depo. at 24:10-12, 28:19-20, 50:22-51:05, ECF No. 24-8. Defendants contend no officer saw the rifle break open in any way, Ex. QQ, Allen Depo. at 86:13-18, ECF No. 24-8, and they provide evidence that the California Department of Justice test-fired the rifle after the incident and determined it was operational, UMF 82; Ex. QQ, Wallace Depo. at 38:21-23, ECF No. 24-8. What is not genuinely in dispute, however, is that when Bush appeared to surrender, Deputies Cornelius and Evans left their positions of cover and moved quickly towards him. See Cornelius Depo. at 116:12-119:4; Evans Depo. at 50:15-51:01, 63:12-64:15. Then, before the officers reached Bush, the K-9 unexpectedly veered away from Bush and the officers and towards the pit-bull chained to a tree in the front yard. UMF 55.

         With the K-9 ignoring the officers' commands, Bush retrieved his pellet rifle from the ground. Cornelius Depo. at 119:01-04; Menzes Depo. at 28:25-29:10. Deputy Allen states Bush was standing upright, then bent over, picked the rifle up, struck it over his knee repeatedly, then pointed it at Cornelius. Allen Depo. at 85:8-17, 86:7-12. Deputy Cornelius and Sergeant Keeling do not specify if Bush was standing, but both say he bent over to pick up the rifle, repeatedly banged it over his knee, and then pointed it at Deputy Cornelius. Cornelius Depo. at 122:3-15; Keeling Depo. at 120:1-7, 122:3-15. Menzes describes Bush as “crouched” after picking the rifle back up, but he also says he could not see Bush for the few critical seconds leading up to the shooting because the officers were in a position that obstructed his view. Menzes Depo. at 28:25-29:10, 32:2-4, 41:1-12. Deputies Cornelius and Evans repeatedly yelled for Bush to drop his weapon and keep his hands up, but Bush ignored their orders. UMF 50, 58; Cornelius Depo. at 119:15-18. Instead, Bush screamed at the officers, “Shoot me, [expletive]. I want to die, shoot me.” Menzes Depo. at 7:5-7, 29:20-24. Deputies Cornelius and Evans had no cover, Cornelius Depo. at 127:12-14, and Sergeant Keeling yelled to Deputy Evans to use his Taser on Bush, UMF 56, 61. The parties agreed at the motion hearing that Deputies Cornelius and Evans were approximately 17 feet from Bush when Sergeant Keeling yelled the Taser command.

         The parties dispute what happened when Sergeant Keeling yelled “Taser.” Defendants say that Bush, after hearing the Taser command, immediately lifted his pellet rifle and pointed it directly at Deputy Cornelius. Cornelius Depo. at 121:22-23. Plaintiffs present testimony that Bush never pointed the pellet rifle at any of the deputies. Menzes Depo. at 41:1- 12; Moseley Depo. at 79:5-80:8. Nevertheless, the parties agree Deputy Cornelius fired three rounds, all of which struck Bush, and Bush died as a result of the gunshot wounds. UMF 63, 65. The shots occurred 28 minutes and 8 seconds after Mr. Moseley called 911. 911 Tr. at 20:19-20. More significantly, Deputy Cornelius fired his shots at Bush less than one minute from the time he had called to Bush to come out of the house. See UMF 41 (call to house at 7:27:31 p.m.), 64 (Keeling radioed “shots fired” at 7:28:06 p.m.). Plaintiffs concede no emergency life-saving services of any kind could have saved Bush. UMF 65.

         Bush's pellet rifle, a Daisy Powerline 1000, is pictured below:

         (Image Omitted)

         Ex. J, Defense Forensic Expert Lance Martini Report at 27 (“Martini Expert Report”), ECF No. 24-4. As defendants' counsel agreed at hearing, Bush's pellet rifle is a single shot weapon that must be pumped at least once before being operable. See 911 Tr. at 5:2-3; Menzes Depo. at 21:8-11. Consistent with Deputy Cornelius's report to his colleagues in their pre-planning meeting, the parties agree that pellet rifles can pose a risk of serious physical injury or death, that air gun deaths are documented in the forensic and medical disciplines, and a warning engraved on the barrel of Bush's pellet rifle reads: “Warning: misuse or careless use may cause serious injury or death.” UMF 80-81.

         B. Procedural Background

         On May 6, 2015, plaintiffs filed a complaint making nine claims as successors-in-interest to decedent Cory Bush: (1) violations of Bush's Fourth Amendment right to be free from unreasonable seizures under 42 U.S.C. § 1983; (2) violations of plaintiffs' right to familial relationship guaranteed by the Fourteenth Amendment under 42 U.S.C. § 1983; (3) a Monell[3]claim against Butte County; (4) assault and battery; (5) negligence; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) wrongful death; (9) and violations of the Bane Act under California Civil Code section 52.1. ECF No. 1. On November 15, 2016, after the close of discovery, defendants filed the pending motion for summary judgment on all claims. Defs.' Mot. for Summ. J. (“MSJ”), ECF No. 23. As noted, plaintiffs oppose, Pls.' Opp'n, ECF No. 27, and defendants filed a reply, Defs.' Reply, ECF No. 29.


         A court will 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 “threshold inquiry” is whether “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).[4]

         The moving party bears the initial burden of showing the district court “that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish that there is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must “cit[e] to particular parts of materials in the record . . .; or show [ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts”). Moreover, “the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48 (emphasis in original).

         In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

         A court may consider evidence as long as it is “admissible at trial.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). “Admissibility at trial” depends not on the evidence's form, but on its content. Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001) (citing Celotex Corp., 477 U.S. at 324). The party seeking admission of evidence “bears the burden of proof of admissibility.” Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the opposing party objects to the proposed evidence, the party seeking admission must direct the district court to “authenticating documents, deposition testimony bearing on attribution, hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in question could be deemed admissible . . . .” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 (9th Cir. 2010). However, courts are sometimes “much more lenient” with the affidavits and documents of the party opposing summary judgment. Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1243 (9th Cir. 1979).


         A. Violation of 42 U.S.C. § 1983 - Unlawful Seizure

         Plaintiffs direct their first claim of unlawful seizure based on unreasonable and excessive force leading to death in violation of the Fourth Amendment against Sergeant Keeling and Deputies Evans, Allen, and Cornelius. Defendants argue they are entitled to qualified immunity on this claim because the officers' actions were reasonable and they did not violate clearly established law. Defs.' MSJ at 13-25.

         The doctrine of qualified immunity balances “the need to hold [officers] accountable when they exercise power irresponsibly and the need to shield [officers] from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). To achieve this balance, qualified immunity shields officers “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (quoting Pearson, 555 U.S. at 231). Qualified immunity is not “a mere defense to liability, ” but rather “an immunity from suit, ” and “it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 512 (1985) (emphasis in original); accord Plumhoff v. Rickard, 134 S.Ct. 2012, 2019 (2014). Therefore, the court “should make a ruling on immunity ‘early in the proceedings'.” Santos v. Gates, 287 F.3d 846, 856 (9th Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)).

         In evaluating whether to grant qualified immunity, the court considers:

         “(1) whether, taking the facts in the light most favorable to the nonmoving party, the officers' conduct violated a constitutional right, and (2) whether the right was clearly established at the time of the alleged misconduct.” Glenn v. Washington Cty., 673 F.3d 864, 870 (9th Cir. 2011) (citing Saucier, 533 U.S. at 200-01). The court may “exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis [to] address[ ] first.” Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010) (citing Pearson, 555 U.S. at 236). If the court finds either the officers did not violate a constitutional right or the right was not clearly established, “then the officers cannot be held liable for damages.” Glenn, 673 F.3d at 870 (citing Pearson, 555 U.S. at 236). The court elects to begin its qualified immunity analysis in this case by evaluating whether the officers' use of force was excessive.

         1. Unlawful Seizure Based on Deadly Force

         The use of deadly force is understood in constitutional law as a seizure subject to the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7 (1985). In evaluating a Fourth Amendment claim of seizure based on the use of excessive force, the court asks “whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. Reasonableness “must [therefore] be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396 (citation omitted).

         To determine the reasonableness of the officers' actions here, the court must “assess the severity of the intrusion on the individual's Fourth Amendment rights by evaluating ‘the type and amount of force inflicted.'” Glenn, 673 F.3d at 871 (quoting Espinosa v. City & Cty. of S.F., 598 F.3d 528, 537 (9th Cir. 2010)). Even in cases “where some force is justified, the amount actually used may be excessive.” Santos, 287 F.3d at 853 (citation omitted). The court must also consider the government's interest in the use of force and then balance that interest against “the severity of the intrusion on the individual's Fourth Amendment rights.” Newmaker v. City of Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016) (citing Graham, 490 U.S. at 396), accord Glenn, 673 F.3d at 871. To evaluate the government's interest, the court considers “the totality of the circumstances.” Garner, 471 U.S. at 9. Relevant factors include “(1) the severity of the crime; (2) whether the suspect posed an immediate threat to the officers' or public's safety; and (3) whether the suspect was resisting arrest or attempting to escape.” Espinosa, 598 F.3d at 537 (citing Graham, 490 U.S. at 396). Of these factors, the most important is “whether the suspect posed an immediate threat to the safety of the officers or others.” A. K. H by & through Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016) (quoting Mattos, 661 F.3d at 441). But these factors are not exhaustive, and “[o]ther relevant factors may include the availability of less intrusive force, whether proper warnings were given, and whether it should have been apparent to the officer that the subject of the force used was mentally disturbed.” Hughes v. Kisela, 841 F.3d 1081, 1085 (9th Cir. 2016).

         The Ninth Circuit cautions that summary judgment should be granted “sparingly” in excessive force cases because they “nearly always requires [the fact finder] to sift through disputed factual contentions, and to draw inferences therefrom.” Glenn, 673 F.3d at 871 (brackets and quotation omitted). “[P]olice misconduct cases almost always turn on a jury's credibility determinations.” Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003). At the same time, the Ninth Circuit has on multiple occasions affirmed grants of summary judgment for officers in excessive force death cases, depending on the facts of the case. See, e.g., Lal v. California, 746 F.3d 1112 (9th Cir. 2014) (no excessive force in fatally shooting suspect holding football-sized rock over his head while advancing on officers; officers reasonably feared serious physical harm, repeatedly warned suspect to drop rock, had just chased him at high-speed, and heard him declare suicidal intent); Gregory v. Cty. of Maui, 523 F.3d 1103 (9th Cir. 2008) (no excessive where officers forced trespassing suspect to ground and he suffered heart attack; suspect had just assaulted someone, was acting “bizarre, ” was reportedly on drugs, and had threatened officers with pen); Marquez v. City of Phoenix, 693 F.3d 1167 (9th Cir. 2012) (no excessive force where officers stun-gunned a suspect to death after he kicked one officer in the groin, refused to heed commands, and barricaded himself in room with an injured adult and distressed child nearby), as amended on denial of reh'g (Oct. 4, 2012); Reynolds v. Cty. of San Diego, 84 F.3d 1162, 1170 (9th Cir. 1996) (finding use of deadly force reasonable where suspect was armed, erratic, had just swung knife at officer, with other people nearby), overruled on other grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th Cir. 1997); Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994) (officers "clearly" reasonable, even though not using least intrusive response, when after hearing suspect was acting “crazy” and firing shots, they took up arms, knocked on his door, identified themselves as police, and fatally shot him when he appeared with gun).

         According to plaintiffs, the officers unreasonably: (1) developed and executed a plan to approach Bush; (2) used deadly force in shooting Bush; and (3) failed to provide Bush with medical aid in the course of seizing him. The court analyzes these allegations separately.

         a) The Plan

         Plaintiffs allege the plan the officers developed at the sub-station “was counter-intuitive[, ] ill-fated[, ] and the source of all subsequent follies and unreasonable acts.” Pls.' Opp'n at 11. According to plaintiffs, flaws in the plan included the identification of improper tactics for dealing with a mentally ill individual, a failure to gather additional information from family members in advance, and the choice of a K-9 as the first-used less-lethal ...

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