United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT RE: DKT. NO. 44
H. KOH United States District Judge.
Deviny Buchanan, on behalf of herself and her minor daughter
Laniyah Watkins; Sharon Watkins; and Sylvia Buchanan
(collectively, “Plaintiffs”) bring the instant
suit against Defendants City of San Jose, Police Officer Ryan
Dote, and Police Officer James Soh (collectively,
“Defendants”) for the shooting of Phillip
Watkins. Before the Court is Defendants' Motion for
Summary Judgment. ECF No. 44 (“Mot.”). Having
considered the parties' briefing, the relevant law, and
the record in this case, the Court GRANTS Defendants'
Motion for Summary Judgment.
instant suit arises from the fatal shooting of Phillip
Watkins (“Decedent”) by Officers Dote and Soh on
February 11, 2015.
Watkins is Decedent's mother, and was not at the scene
where Decedent was shot. Deviny Buchanan was Decedent's
fiancee at the time of Decedent's death. Laniyah Watkins
is Decedent's and Deviny Buchanan's daughter. Deviny
Buchanan was present when Decedent was shot and is a witness
to the shooting. Sylvia Buchanan is Deviny's mother, was
present when Decedent was shot, and is a witness to the
Dote and Soh (the “officers”) are the San Jose
Police Officers who shot Decedent. The City of San Jose (the
“City”) is the officers' employer.
The 911 Call, Dispatch of the Officers, and the Shooting of
February 11, 2015, at 5:00 p.m., an unidentified male called
911 and reported that a man with a knife was in the
caller's house at 1377 Sherman Street in San Jose,
California and was threatening to kill the caller's
family. ECF No. 44-2, Declaration of Raul Corral
(“Corral Decl.”) ¶ 5 & Ex. 1. The caller
stated that he was locked up in a room with his kids and
asked for help to “please come fast.”
Id. Deviny Buchanan identified the caller as
Decedent by his voice. ECF No. 44-1 at 26-27, D. Buchanan
Decl. at 137-38.
5:01:27 p.m., San Jose Police Dispatch broadcasted the
incident. ECF No. 44-1 at 144 (“Dispatch Log”).
Several officers in the area responded. Id. Officers
Dote and Soh arrived on the scene first, and notified
dispatch of their arrival at 5:03:14 p.m. Id. at
145. Officers Dote and Soh parked several houses away from
1377 Sherman Street and exited their vehicle. ECF No. 44-3,
Declaration of Ryan Dote (“Dote Decl.”) ¶ 6;
ECF No. 44-1 at 69-71, Deposition of Ryan Dote (“Dote
Depo”) at 76-78. Officers Dote and Soh were wearing
police uniforms. ECF No. 49-4 at 18.
was speaking with Deviny and Sylvia Buchanan in front of the
house located at 1377 Sherman Street when the officers
arrived. ECF No. 44-1 at 67, Dote Depo. at 65. Decedent saw
the officers and began walking towards them with a knife in
his hand. ECF No. 44-1 at 75, Dote Depo. at 86-87.
Decedent's eyes were “locked” on the
officers. ECF No. 44-1 at 94, Dote Depo. at 122. According to
the officers, the knife was in Decedent's right hand. ECF
No. 44-1 at 78, Dote Depo. at 90-92. The officers were able
to identify that Decedent was holding a knife because
Decedent's “right hand was outstretched to the side
of his body” with the knife “pointed up.”
Id. At 5:04:38 p.m., the officers informed dispatch
that “[w]e have a male with a knife; he's walking
towards us.” Dispatch Log at 145. The knife was a
CRKT-brand partially-serrated 8 to 9 inch folding pocket
knife with a 3 to 4 inch blade that Deviny Buchanan states
was her brother's “Marine knife.” ECF No.
49-11 at 2 (picture of bloodstained knife); ECF No. 44-1 at
38, Deposition of Deviny Buchanan (“D. Buchanan
Depo.”) at 161 (“It was my brother's Marine
5:04:45 p.m., Officers Dote and Soh drew their guns in a
“low-ready” position. Dispatch Log at 145. Either
immediately before or after drawing their guns, the officers
commanded Decedent to “stop and get on the ground and
drop the knife.” ECF No. 44-1 at 89, Dote Depo. at 115;
D. Buchanan Tr. at 119, 122 (“I remember the police
saying, “Stop, stop” or “Stop where
you're at.” I don't know the exact wording that
they used, but it was like, “Stop where you're
at” or something.”). According to the officers,
Decedent did not respond to the commands and continued
advancing toward the officers. ECF No. 44-1 at 89-90, Dote
Depo. at 115-16 (“I raised my firearm towards Mr.
Watkins. As soon as he didn't comply with our lawful
order to stop and get on the ground and drop the knife . . .
because it was evident at that point he was not going to do
any of those.”).
officers assert that Decedent then began “running and
sprinting” towards the officers. Dote Decl. ¶ 12;
ECF No. 44-4, Declaration of James Soh (“Soh
Decl.”) ¶ 10; see also ECF No. 44-1 at
79, Dote Depo. at 95 (“I would estimate he took two or
three steps as a walk, and then immediately he started
sprinting towards us.”). Sylvia Buchanan states that
Decedent started “trotting” or running towards
the officers. ECF No. 44-1 at 56, Deposition of Sylvia
Buchanan (“S. Buchanan Depo.”) at 79; ECF No.
50-1 at 10, S. Buchanan Depo. at 108 (“I just know that
he was running. Okay? He was running.”).
witnesses agree that Decedent started to run towards the
officers. Osvaldo Gonzalez, a passerby, stated in a
deposition that Decedent was walking towards the officers and
then began to “accelerate his pace” and was
“starting to run.” ECF No. 44-1 at 118-20,
Deposition of Osvaldo Gonzalez (“Gonzalez Depo.”)
at 15-17 (“I actually did see him picking up the
run.”). Gonzalez states that he “knew something
was going to happen” because of “the pace
[Decedent] was going towards the officers.”
Id. Gonzalez did not see the shooting itself because
he was trying to take out his phone to take a video of what
was going to happen. Id. Gonzalez started recording
seconds after the shots were fired. ECF No. 44-1 at 123,
Gonzalez Depo. at 25.
Menchaca, another witness at the scene of the shooting,
stated in a deposition that she could only see the top half
of Decedent's body, but that it looked like Decedent
“accelerate[d]” and “lunge[d] toward the
officers.” ECF No. 44-1 at 129-31, Menchaca Depo. at
25-27. She stated it was almost like he was “initiating
some sort of fight or a run forward.” Id.
Alternatively, she described the lunge forward as a
“taunt, ” which she further described as a
“lunge” and an action that “someone would
do if they were trying to engage someone” to “try
to chase him” or “to try to break through [the
Dote and Soh each fired at Decedent. Officer Dote fired six
shots, and Officer Soh fired four shots. Dote Decl. ¶
26; Soh Decl. ¶ 24. These shots took approximately two
to three seconds to fire, stopped Decedent's advance, and
caused Decedent to fall to the ground. At 5:04:55 p.m.,
seventeen seconds after Decedent had started walking towards
the officers with a knife and ten seconds after the officers
had drawn their guns on Decedent, the officers reported the
shots to dispatch. Dispatch Log at 145. Decedent was still
holding the knife in his right hand after he fell to the
ground. Dote Decl. ¶ 27; Soh Decl ¶ 25.
officers both testified that they heard yelling when they
began shooting. Sylvia Buchanan asserts that she was behind
Decedent and yelling at the officers: “He needs your
help. Help him. Help him and Tase him.” ECF No. 44-1 at
57, S. Buchanan Depo. at 80. Officer Soh stated that he heard
someone yelling “No” multiple times, and Officer
Dote stated that he heard someone yelling, “Stop. You
don't have to do this, ” but that he could not
distinguish what exactly was said after that. Soh Decl.
¶ 13; ECF No. 44-1 at 80, Dote Depo. at 96 (“I
know she was screaming and yelling, but I don't remember
exactly what she was saying.”).
Dote states that although he had seen Sylvia Buchanan with
Decedent before Decedent started walking towards the officer,
at the time the shots were fired “she wasn't
directly behind [the Decedent]” and “was not in
the backstop” i.e., “the line of fire” when
he fired. ECF No. 49-5 at 54, Dote Depo. at 131. Sylvia
Buchanan states that she “dropp[ed] to the
ground.” ECF No. 44-1 at 56, S. Buchanan Depo. at
79-80. Deviny Buchanan states that she had ran back up
towards the house before the shooting began. ECF No. 44-1 at
17, D. Buchanan Depo. at 120 (“And then the police drew
their guns. And right at that point, I turned around and
started walking back towards the house, and I covered my
Dote estimated that he started shooting when Decedent was
“maybe 40ish feet” away. ECF No. 44-1 at 84, Dote
Decl. at 103. Officer Soh stated in a deposition that
“I knew that if I had delayed another second longer, he
would been [sic] right on top of me.” ECF No. 44-1 at
105, Soh Depo. at 113. The officers' estimates of
distances were different immediately after the shooting.
Officer Dote estimated that Decedent was 20 feet away when he
began shooting, but acknowledged the distance was further at
his deposition. ECF No. 49-5 at 51-52, Dote Depo. at 122-23
(“That was based on approximations, but that's what
I told Detective Corral.”). After the shooting, Officer
Soh told another officer that Decedent was 10 to 15 feet away
when Officer Soh opened fire, but he states that he had
“misinterpreted the question” and that he knew
that Decedent was “21 feet or more” from the
officers when Officer Soh began shooting. ECF No. 49-4 at 40,
Soh Depo. at 109. There is no evidence in the record of which
officer shot first and whether there was a delay between the
two officers' shooting.
on photos of the crime scene and measurements taken at the
scene of the shooting, Plaintiffs estimate the distance
between the Decedent and the officers when the officers began
shooting to be between 52 feet, 9 inches and 54 feet, 9.5
inches (the Court rounds up to 55 feet for the purposes of
this order), ECF No. 49-1, Declaration of Gregg Dietz
(“Dietz Decl.”) ¶ 8, and Defendants estimate
this distance to be 46 feet. ECF No. 44-5, Declaration of
Barry Witt (“Witt Decl.”) ¶ 7; Opp'n at
2. Plaintiffs' and Defendants' estimates were
obtained by measuring the distance between marks made by
Officer Dote on a photo of the scene after the shooting.
Dote estimates that Decedent was “approximately 10 to
15 feet” away when Decedent fell to the ground. ECF No.
44-1 at 85, Dote Depo. at 104. Measurements based on a video
taken by witness Gonzalez immediately after the shooting show
that Decedent fell to the ground approximately 17 feet 10
inches from the officers. Witt Decl. ¶ 4.
officers were shooting, the officers were moving backwards.
ECF No. 44-1 at 85, Dote Depo. at 104 (“We were doing a
tactical withdraw, going backwards. . . Q. Okay. So you
started firing. And then you were going backwards, right? A.
Correct.”); Dote Decl. ¶ 20 (“While the man
was running at us, I was doing a tactical retreat, taking
small steps backward to attempt to create additional time and
distance between the man and me.”); Soh Decl. ¶ 19
(same). From Decedent's starting point in front of 1377
Sherman Street, to the spot where Decedent fell to the ground
after being shot, Decedent covered a total distance of
approximately 130 feet. Witt Decl. ¶ 5.
Deviny Buchanan's and Plaintiff Sylvia Buchanan's
testimony largely corresponds to the account of the officers.
Deviny Buchanan told Decedent's mother on the phone
immediately after the accident that “when [Decedent]
saw the cops walking up, he took out a knife and ran at
them.” Corral Decl. Ex. 3 at 8-9; ECF No. 44-1 at 28,
D. Buchanan Depo. at 148; see also ECF No. 44-1 at
31, D. Buchanan Depo. at 151 (Deviny Buchanan telling her
friend on the phone that Decedent “ran at the fucking
cops with a knife”). In an interview with the officers
on the day of the shooting, Deviny Buchanan provided a more
[He] walked outside, and I was looking at him from the porch.
And, like, I saw that he had a knife. Like my back was
towards the police at this point; so I didn't even know
they were, like, actually walking up the street. And he,
like, looked down the street, and he looked at me, and, like,
I saw the knife. I thought he was going to come towards me
with the knife, and then I stepped to the side, and he walked
right past me, and I thought he was walking towards the kids
in the car. So that's when I turned around, and I see the
police walking up the street.
And Phill, like, took out the knife and started, like,
walking towards the police. I'm like, ‘Phill, what
are you doing? Just stop.' And he just kept walking. And
the police are like, uhm, ‘Stop right there. Stop right
there.' And then me and my mom were just like,
‘Please don't shoot, because he wants you to shoot.
Just don't shoot. Please don't shoot' And then
after that, uhm, I kind of ran back on the porch because I
didn't want to see what was going to happen, because I
knew what was going to happen, and I just heard the gunshots
ECF No. 44-1 at 41, D. Buchanan Depo. at 167-68.
police interview with Sylvia Buchanan on the day of the
shooting, Sylvia Buchanan stated that Decedent was
“running toward the officers.” ECF No. 50-1 at
9-10; Corral Decl. Ex. 5 at 30-33. When asked whether
Decedent was “jogging or charging the officers, ”
Sylvia Buchanan stated that she did not know and that it
“just happened so fast.” Id. at 10.
Sylvia Buchanan stated that “[Decedent] was running to
them” and that she was “trying to get behind him
[and] hollering, begging, saying, ‘Phil, please, stop.
Stop.” Id. at 10. Sylvia Buchanan stated that
the police officers drew their guns when Decedent began
running towards them, and that she could not hear whether the
officers commanded Decedent to stop “because [she] was
screaming[, ] . . . hollering.” Id. at 11.
in a deposition taken in the instant suit, Sylvia Buchanan
provides a different account from her police interview. In
the deposition, Sylvia Buchanan states that Decedent first
started walking towards the officers, then started trotting,
and that when the officers commanded Decedent to stop,
Decedent stopped. ECF No. 44-1 at 56-57, S. Buchanan Depo. at
79-80 (“Then he stopped, because they were telling him
to stop, and he stopped.”). Sylvia Buchanan stated that
she does not remember what happened after Decedent stopped.
Id. (“Q. And after he stopped, did he start
moving toward them again? A. The only thing I remember is
gunfire. Q. So you don't remember whether he started
moving toward them again? A. I was screaming, and I was
moving. So whether he was moving, I can't remember. The
only thing I remember is them shooting at him, dropping to
the ground, and they kept shooting.”).
Decedent's Mental State and the Events Before the Arrival
of Officers Dote and Soh
time of the shooting, evidence in the record shows that
Decedent was suicidal. ECF No. 49-3 at 9, S. Buchanan Depo. at 35
(“[Decedent] said he didn't know if he wanted to
live.”). ECF No. 44-1 at 30, D. Buchanan Depo. at 150.
On the day of the shooting, February 11, 2015, Deviny
Buchanan told Watkins that she did not want to marry him
anymore because of his behavior. ECF No. 44-1 at 135 (Deviny
Buchanan text to Decedent: “Phill im sorry but im not
gonna marry things are no where near ok and how u acted
yesterday is fucked up no means no and always has but itjisy
[sic] never meant no to u . . .”). During the text
message exchange, Decedent told Deviny Buchanan that
“honestly I could kill u and kill myself out of the
love or bond I have for you and us together . . . .”
ECF No. 44-1 at 140.
that day, approximately one hour before the shooting, Deviny
Buchanan and Sylvia Buchanan came home to find Decedent
sitting on their front porch. ECF No. 44-1 at 11, D. Buchanan
Depo. at 103. Decedent was distraught because Deviny Buchanan
had told Decedent that she no longer wanted to marry him. ECF
No. 44-1 at 140. Deviny Buchanan asked her mom, Sylvia
Buchanan, to talk to Decedent and calm him down. ECF No. 44-1
at 12-14, D. Buchanan Depo. at 106-08. Sylvia Buchanan asked
Decedent to talk with her upstairs in the house. Id.
upstairs, Decedent told Sylvia Buchanan that he did not want
to live anymore. ECF No. 44-1 at 53, S. Buchanan Depo. at 39.
From downstairs, Deviny Buchanan heard Decedent say that
“he wanted to kill himself and he was going to kill
himself.” ECF No. 44-1 at 34, D. Buchanan Depo. at 156.
Deviny Buchanan also heard Decedent say, “[s]he
doesn't want to be with me, but I want to be with her.
She's trying to leave me, and I'm not going to let
that happen.” Id. Deviny Buchanan also states
that “he said he'd kill me.” Id.
Deviny Buchanan then heard banging from upstairs so she
“grabbed the kids, and  put them in the truck
outside.” Id. Deviny Buchanan also took all of
the kitchen knives in the kitchen and hid them in the car.
ECF No. 44-1 at 24, D. Buchanan Depo. at 132 (“I took
out my mom's whole knife drawer, and I took her knife
block and put it in the car.”). However, while
upstairs, Decedent obtained the knife he was carrying when he
was shot. ECF No. 44-1 at 38, D. Buchanan Depo. at 161
(“It's a pocketknife. It was my brother's
Marine knife. . . . I should have known that's why he was
the conversation between Decedent and Sylvia Buchanan
upstairs, Decedent said, among other things, that he
didn't know if he wanted to live and that the devil was
after him. ECF No. 44-1 at 53, S. Buchanan Depo. at 39. When
Decedent would not calm down, Sylvia Buchanan called the
mental health department of Valley Medical Hospital to ask
what she should do. ECF No. 44-1 at 51-53, S. Buchanan Depo.
at 37-39. Sylvia Buchanan was told that a police intervention
unit could be sent to help Decedent, or Sylvia Buchanan could
bring Decedent into the hospital herself. Id.; ECF
No. 49-3 at 16, S. Buchanan Depo. at 66-67.
not exactly clear when, at some point around when Sylvia
Buchanan was calling the Valley Medical Hospital, Decedent
made the 911 call about a man with a knife that led to the
arrival of Officers Dote and Soh at 1377 Sherman Street.
Deviny Buchanan described Decedent's stated purpose for
calling the police in a recorded phone call to Sharon
Watkins, Decedent's mother, as follows:
We tried. He was -- because he was acting crazy, and we tried
to call the psych ward, and [Decedent] was like, ‘Fuck
it. I'm going to end it, ' and he called the police.
And he said, ‘When they get here, I'm going to
fucking go at them, and I'm going to let them take care
of it.' I don't -- I don't know.
ECF No. 44-1 at 30, D. Buchanan Depo. at 150.
point, Sylvia Buchanan decided to bring Decedent to Valley
Medical Hospital herself either because she did not think
police intervention was necessary, ECF No. 49-3 at 16, S.
Buchanan Depo. at 66-67 (Sylvia testifying that she did not
think police intervention was necessary), or because Decedent
had been saying that he wanted to call the cops so that he
could commit suicide by charging at them, ECF No. 44-1 at
34-35, D. Buchanan Depo. at 156-57 (“And my mom's
like, ‘Well, I don't want to call the cops, because
he's saying he wants to call the cops so that he can
charge at them.'”). Decedent agreed to go to the
hospital. ECF No. 49-3 at 16, S. Buchanan Depo. at 66-67.
Buchanan and Decedent walked outside toward Sylvia
Buchanan's car. ECF No. 49-3 at 17, S. Buchanan Depo. at
68. Deviny Buchanan either was already outside or walked
outside with Sylvia Buchana and Decedent. At that point,
Officers Dote and Soh arrived, and the shooting described
Buchanan described Decedent's actions to Sharon Watkins
in a recorded phone conversation after the shooting:
“Phill tried to commit suicide and he ran at the cops
with a knife and they fucking shot him.” Corral Decl.
Ex. 3 at 5:55-6:58 (“Phill came downstairs and said
‘I called the police so they'll shoot
me.'”). In a recorded phone call to Deviny
Buchanan's friend, Tiffany, Deviny Buchanan stated that
“[Decedent] called the cops on himself and ran at the
fucking cops with a knife.” Id. at
12:15-12:54; ECF No. 44-1 at 31, D. Buchanan Depo. at 151.
Deviny Buchanan also sent a text message at 5:40 p.m. on the
day of the shooting that stated “phill tried to commit
suicide and called the cops amd [sic] ran at them wit [sic] a
knife and the cops shot him.” ECF No. 44-2 at 8. In an
interview with the police later on the day of the shooting,
Deviny Buchanan stated that “it kind of looked like
[Decedent] wanted [the police] to shoot him” and
“[h]e called [the police]. So it's like he wanted
them to come just so he could charge at them to get
shot.” Corral Decl. Ex. 4 at 37:30-37:58; ECF No. 44-1
at 42-43, D. Buchanan Depo. at 169- 70.
December 17, 2015, Plaintiffs filed the instant suit.
See Complaint, ECF No. 1 (“Compl.”).
Plaintiffs assert five causes of action: (1) violation of
civil rights for use of excessive force under 42 U.S.C.
§ 1983; (2) violation of civil rights for use of
excessive force under California Civil Code § 52.1
(“Bane Act Claim”); (3) commission of an act of
violence motivated by racial bias in violation of California
Civil Code § 51.7 (“Ralph ...