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Romero v. Yates

United States District Court, E.D. California

July 14, 2017

DAVID ROMERO, Plaintiff,
v.
JAMES YATES and EFRAIN JIMENEZ, Defendants.

          ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION (Doc. 47)

          UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This case concerns the circumstances surrounding the December 23, 2012 shooting and arrest of Plaintiff David Romero by Defendant California Highway Patrol (“CHP”) Officer James Yates (who was off-duty at the time of the arrest) (“Yates”) and Defendant CHP Officer Efrain Jimenez (“Jimenez”) (collectively “Defendants”), respectively. On April 17, 2017, Defendants filed a “Motion for Summary Judgment/Summary Adjudication” (the “Motion”). (Doc. 47.) On May 18, 2017, Plaintiff filed his opposition to the Motion, and on May 31, 2017, Defendants filed their reply. (Docs. 54 & 56.) After having reviewed the parties' papers and all supporting material, the matter was deemed suitable for decision without oral argument pursuant to Local Rule 230(g), and the hearing was vacated on June 12, 2017. (Doc. 58.)

         For the reasons set forth below, the Court DENIES IN PART and GRANTS IN PART Defendants' Motion.

         II. FACTUAL BACKGROUND[1]

         On the night of December 23, 2012, Plaintiff was driving a silver Dodge truck to his home in Madera, California, after watching a football game and having cocktails at a friend's house in Fresno. (JSUF 1, 7.) Plaintiff took Highway 99 north and exited Cleveland Avenue. (JUSF 2.) As Plaintiff approached the first main cross street, Schnoor Avenue, he went into the left hand lane to turn south. (JSUF 3.) A black SUV driven by Defendant Yates, a CHP officer who was off-duty at the time, and his wife Jenny Yates, pulled up behind Plaintiff. (JUSF 4.) Plaintiff and Defendant Yates then both turned left onto Schnoor Avenue heading south and over the Fresno River toward a residential area in Madera. (JUSF 5.) Plaintiff “quickly changed lanes” in order to go around a vehicle that was turning left off of Schnoor Avenue. (MPD Report at 8.)

         A. Plaintiff in his truck, and Defendant Yates and Mrs. Yates in their SUV, Arrive at the Stop Sign at Schnoor and Dutra Avenues, Where Plaintiff Allegedly Runs the Stop Sign.[2]

         After the turn onto Schnoor Avenue, Plaintiff was in the number 1 (left) lane, and Defendant Yates and his wife were in an SUV in lane number 2 (right). (PSSUF 2; Romero Decl. at ¶ 6.) Plaintiff observed Defendant Yates' SUV close to the rear bumper of his truck. (Romero Decl. at ¶ 6.) Plaintiff contends that whenever Plaintiff would slow down, Defendant Yates would slow down, and whenever Plaintiff would speed up, Defendant Yates would speed up. (MPD Report at 8.)

         Proceeding south on Schnoor Avenue from Cleveland Avenue to Riverside Avenue there are two stop signs, one located at Dutra Avenue and one located at Riverview/Jefferson Avenue. (PSSUF 1; Prelim. Hr'g Tr. at 184:5-187:13.) Plaintiff (still in the number 1 lane) and Defendant Yates and Mrs. Yates (still in the number 2 lane) arrived at the stop sign at Dutra and Schnoor Avenues at the same time as each other. (PSSUF 2; Romero Decl. at ¶ 6.) Plaintiff contends that at the stop sign at Dutra Avenue, Defendant Yates began to yell in his direction. (Romero Decl. at ¶6.)

         According to Defendant Yates, Plaintiff ran the stop sign at Dutra Avenue, which Plaintiff denies. (DSSUF 1; Prelim. Hr'g Tr. at 181:1-4; PSSUF 5; Romero Decl. at ¶ 3.) Mrs. Yates testified that that she saw Plaintiff “pull up” to the stop sign in the number 1 lane, that Plaintiff said something to Defendant Yates, but that she could not hear what was said because the windows of the SUV were rolled up. (Prelim. Hr'g Tr. at 79:2-80:15.) Mrs. Yates testified that both vehicles were at the stop sign at Dutra Avenue, and that their SUV left the stop sign before Plaintiff's vehicle. (Id. at 81:13-24.)

         B.The Parties Travel South on Schnoor Avenue Toward the Intersection at Riverview Drive/Jefferson Avenue, When Plaintiff Allegedly Points a Gun at Defendant Yates and Mrs. Yates.

         Defendant Yates testified that as the two vehicles traveled southbound on Schnoor Avenue, they entered a bridge, at which point Plaintiff moved his truck into the number one lane and decelerated, positioning himself next to Defendant Yates' SUV. (Prelim. Hr'g Tr. at 181:10- 182:14.) Defendant Yates testified that Plaintiff was looking at him and pointing with his right hand, and appeared to be yelling something or motioning in some way. (Id. at 182:17-23.) Defendant Yates testified that Plaintiff's truck then “violently jumped” in the direction of Defendant Yates' SUV, causing Defendant Yates to swerve to the right. (DSSUF 1; Prelim. Hr'g Tr. at 182:25-183:14; MPD Report at 10.) According to Defendant Yates, Plaintiff's truck then moved back behind Defendant Yates' SUV and the two vehicles continued southbound on Schnoor Avenue. (Prelim. Hr'g Tr. at 183:19-184:4.)

         The two southbound lanes of Schnoor Avenue merge into a single southbound lane in the area of the bridge north of the intersection of Schnoor and Riverview Drive (eastbound)/Jefferson Avenue (westbound). (PSSUF 6; Prelim. Hr'g Tr. at 183:22-184:1.) Defendants Yates testified that as he and Plaintiff were traveling on the bridge and slowing toward another stop sign at Schnoor and Riverview/Jefferson, Plaintiff got into the northbound lane (going in the opposite direction) and pulled his truck up alongside Defendant Yates' SUV. (DSSUF 2; Prelim. Hr'g Tr. at 186:2-187:13)

         According to Defendant Yates, as Plaintiff pulled his truck alongside the SUV heading toward the stop sign at Schnoor and Jefferson/Riverview Avenues, Defendant Yates put his window down to tell Plaintiff “to knock it off.” (Prelim. Hr'g Tr. at 188:26-189:3, 189:17-26.) Defendant Yates testified that he saw Plaintiff point a gun toward Defendant Yates and Mrs. Yates, and that he heard Plaintiff yell out the window, “What's up, what's up now, bro?” (DSSUF 3; Prelim. Hr'g Tr. 188:5-189:11.) Mrs. Yates testified that she did not see a gun at that time, only that Defendant Yates had told her that he saw a gun. (Id. at 90:10-24.)

         In his declaration, Plaintiff denies pointing a firearm of any kind at Defendant Yates or Mrs. Yates. (Romero Decl. at ¶ 5.) According to Plaintiff, he stopped at the stop sign at Schnoor and Riverview/Jefferson, with his driver's side window down, at which point Defendant Yates' SUV pulled alongside Plaintiff to the right (in the right-turn lane) and began yelling at him again and pointing. (Id. at ¶ 6; Romero Dep. at 45:5-46:14.) Plaintiff testified in his deposition that that was the first time he saw Defendant Yates. (Romero Dep. at 39:25-40:11.) According to Plaintiff, he then “flipped off” (displayed his middle finger at) Defendant Yates and continued proceeding southbound on Schnoor Avenue, toward his home approximately five blocks away. (Romero Decl. at ¶ 6; Romero Dep. at 47:25-48:12; MPD Report at 8.)

         C.Mrs. Yates Calls 911.

         According to Defendant Yates, after Plaintiff pointed the gun towards him, Defendant Yates slammed on the brakes and came to a complete stop and instructed his wife to call 911 because he “feared for [their] safety, ” at which point Plaintiff's truck moved in front of Defendant Yates' SUV. (Prelim. Hr'g Tr. 91:18-23, 189:9-11; Yates Decl. at ¶ 2.) Mrs. Yates then called 911 from her cell phone, and the call was routed to CHP's central division dispatch. (JSUF 6.)

         Mrs. Yates reported to the 911 dispatcher that a Hispanic male with a goatee (later identified to be Plaintiff) is driving a silver Dodge truck and that he is pointing a silver gun at them. (JSUF 7.) During the 911 call Mrs. Yates also identified her husband, Defendant Yates, as an off duty CHP officer and advised that he also has a gun. (JSUF 8.) When asked why Defendant Yates and Mrs. Yates are following Plaintiff, Mrs. Yates responded “because he pointed a gun at us.” (JSUF 9.) Defendant Yates denies “stalk[ing]” Plaintiff, and states that he continued to follow Plaintiff is accordance with his training to keep an armed suspect in front of you within sight to avoid getting shot from behind. (JSUF 10; Yates Decl. at ¶ 3.)

         Mrs. Yates then told CHP dispatch, who conferenced Madera Police Department's (“MPD”) dispatch into the call, that they are continuing to follow Plaintiff, and she provided the various directions and locations in which they were headed. (JSUF 11.) When MPD dispatch asked what Mrs. Yates needed, Mrs. Yates responded “we just need somebody to get here quick.” (JSUF 12.) During the call, Defendant Yates was heard telling Mrs. Yates that Plaintiff has a “black semi-automatic” handgun, which Mrs. Yates relayed to dispatch. (JSUF 13; PSSUF 7; Prelim. Hr'g Tr. at 188:14-19.) When asked if there had been an accident, Mrs. Yates responded “No, ” but stated that Plaintiff was acting with road rage, that he has a gun, and that Defendant Yates does not want to lose him. (JSUF 14.)

         D.Defendant Yates Continues to Follow Plaintiff on Schnoor Avenue to Fillmore Avenue.

         Plaintiff states that, to his surprise, instead of turning right on Riverview Avenue, Defendant Yates' SUV went south on Schnoor Avenue and appeared to be following Plaintiff, following close to his bumper. (Romero Decl. at ¶ 6; Romero Dep. at 58:3-6) Upon seeing the SUV following him, Plaintiff turned left (east) on Fillmore Avenue and, shortly after making the turn, stopped his truck next to the south curb to allow the SUV to pass. (Romero Decl. ¶ 6; Prelim. Hr'g Tr. at 193:4-21; MPD Report at 6, 8.) Instead of passing Plaintiff, Defendant Yates' positioned his SUV behind Plaintiffs truck and, according to Plaintiff, turned its “high beam” headlights on Plaintiffs truck. (Romero Decl. at ¶ 6; Prelim. Hr'g Tr. at 122:15-26) When interviewed by Officer Daniel Foss of MPD, Defendant Yates said that he never identified himself as law enforcement during the time he was following Plaintiff. (Prelim. Hr'g Tr. at 122:9-14.) Defendant Yates testified that even though he was not intending to drive down Fillmore Avenue, he followed Plaintiff because he “wasn't going to let him get in a position where he could shoot us.” (Prelim. Hr'g Tr. at 193:15-25.)

         E. Plaintiff Allegedly Points a Gun at Defendant Yates, and Defendant Yates Fires Six Shots at Plaintiff.

         After waiting a period of time pulled over on Fillmore Avenue, Plaintiff decided to continue home. (Romero Decl. at ¶ 6.) According to Plaintiff, he pulled his truck from the curb and proceeded to the end of the block, where Fillmore Avenue ends into Orchard Avenue, forcing a left or right turn. (Id.) Because Plaintiffs home is south of Fillmore Avenue, he made a right turn at the intersection of Fillmore and Orchard Avenues. (Id.) After Plaintiff turned onto southbound Orchard Avenue, he pulled his truck to the west side curb on Orchard Avenue, approximately one-half block north of the intersection of Orchard and University Avenues. (Romero Decl. at ¶ 6; MPD Report at 9-10.) To Plaintiffs surprise, Defendant Yates followed Plaintiff and stopped his vehicle on Orchard Avenue a distance behind Plaintiff's vehicle, which had stopped in the parking strip on southbound Orchard Avenue, only blocks away from Plaintiffs home on University Avenue. (JSUF 16; Romero Decl. at ¶ 6; MPD Report at 9-10.)

         Plaintiff contends that once again Defendant Yates shined his high beams on Plaintiffs truck. (Romero Decl. at ¶ 6.) Concerned that the SUV may follow him to his home, Plaintiff decided to make a U-turn at the intersection of University and Orchard Avenues, traveling away from Plaintiffs home. (Romero Decl. at ¶ 6; Romero Dep. at 58:21-59:8.) According to Plaintiff, because this was the second time that the SUV followed his truck and parked behind him with its high beams on his vehicle, he became concerned for his safety. (Romero Decl. at ¶ 6; Romero Dep. at 58:21-59:8.) Plaintiff contends that before he pulled away from the curb on Orchard Avenue, he “removed [his] .40 caliber Smith & Wesson firearm from the glove compartment of [his] truck and [he] placed it on the passenger seat.” (Romero Decl. at ¶ 6; Romero Dep. at 59:9-60:12, 63:18-64:24.) According to Plaintiff, as he pulled away from the curb, he “held [his] hand, opened palm, over the firearm while it laid [sic] on the passenger seat.” (Romero Decl. at ¶ 6; Romero Dep. at 59:9-25.) Plaintiff testified that he placed the gun there “just in case [Defendant Yates] did get out with some kind of weapon - or you know, I'm thinking, this guy's crazy . . . I pulled it out just for my safety.” (Romero Dep. at 65:12-66:1.)

         Plaintiff proceeded to the intersection of Orchard and University Avenues and began to make the U-turn to go from southbound Orchard Avenue to northbound Orchard Avenue in order to get away from Defendant Yates. (Romero Decl. at ¶ 6; Romero Dep. at 59:9-25.) Defendant Yates testified that at this point he observed Plaintiff waving a gun, in his right hand across his body, out his driver's side window. (Prelim. Hr'g Tr. at 239:13-240:11, 243:9-244:7.) As Plaintiff accelerated, Defendant Yates believed that Plaintiff was not “trying to get away, ” and instead was “coming back to kill us.” (Id. at 239:18-240:1.) Mrs. Yates is then heard on the 911 call yelling out “No! No! He's got a gun! He's got a gun!” (JSUF 17.) Officer Yates is heard telling Mrs. Yates to “Get on the floor, now!” (JSUF 18.)

         According to Plaintiff, before he could complete the U-turn, Defendant Yates' SUV darted from the southbound lane, crossed over into the northbound lane facing what would be oncoming traffic, cutting off his ability to complete the U-turn and his attempt to get away from the SUV. (Romero Decl. at ¶6; Foss Interrogation Tr. at 26:1-6.) Defendant Yates testified that he moved his SUV to “stop[] [Plaintiff] from being able to get side by side with us by turning in towards his vehicle.” (Prelim. Hr'g Tr. at 242:8-16.) Plaintiff stated that when the SUV blocked his truck, Defendant Yates “jumped out to [sic] the SUV and began shooting at me while I sat in my truck having had my route blocked.” (Romero Decl. at ¶ 6.) Defendant Yates fired six shots from his gun, and took the shots either through the wedge of the SUV's door and SUV itself or the driver's side window, which was down. (JSUF 19; Prelim. Hr'g Tr. at 244:8-25.) Plaintiff testified that the majority of the rounds came in from the driver's side, close to where the side and front windows meet. (Romero Dep. at 71:12-25.) Officer Foss, who interviewed both Plaintiff and Defendant at the scene, testified that some of the shots went through the driver's side headrest, where Plaintiffs head would have been had he not ducked down. (Prelim. Hr'g Tr. 121:3-12.) One of the bullets grazed Plaintiffs left index finger, but he had no other injuries from the shooting. (JSUF 20.) Plaintiff testified that Defendant Yates did not say anything or make any gestures as he got out of the SUV to fire his weapon. (Romero Dep. at 70:2-10.)

         Plaintiff in his declaration states that “[a]t no time did I ever point, show, direct my firearm at the SUV or any other person. My firearm remained on the passenger seat with my open hand covering the firearm until the firearm fell onto the passenger side floor board.” (Romero Decl. at ¶ 6.) In Plaintiffs deposition, he testified that he did not pick up his weapon or point the gun at Defendant Yates. (Romero Dep. at 71:5-11; 73:8-10.)

         Kevin Dunivan, who was visiting his mother on Orchard Avenue the night of the incident, stated that he was sitting outside his mother's house in the driver's seat of his truck parked “next to the eastside curb facing north with a direct and unobstructed view through the front windshield of the intersection” of Orchard and University Avenues. (Dunivan Decl. at ¶ 3.) Mr. Dunivan observed a silver pickup begin a U-turn movement at the intersection, and, as the truck was completing its turn to begin to proceed north on Orchard, observed a dark colored SUV approach the intersection driving southbound on Orchard. (Id. at ¶¶ 4-5.) Mr. Dunivan stated that the SUV “suddenly...crossed into the northbound lane” of Orchard just north of the intersection, and the driver of the SUV “positioned the SUV at an angle” across the northbound lane of Orchard Avenue, blocking the travel of the pickup. (Id. at ¶ 5.) According to Mr. Dunivan, he:

never saw any person in the silver pickup point, hold, or display any firearm of any type. I did not see the pickup take any aggressive action toward the dark colored SUV or any person in the area of this incident and the only action I observed by the silver pickup to attempt to make a U-tum in the intersection of Orchard Street [sic] and University Avenue.

(Id. at ¶ 7.) Mr. Dunivan submitted a supplemental declaration, in which he “clarif[ied]” that while he did not see Plaintiff point his gun outside the window of his truck, he was not able to see inside the silver truck driven by Mr. Romero either. It was dark and I was seated in my vehicle almost 50 feet away from where the truck and the black SUV were stopped. From my vantage point that evening, I could not see, nor could I have seen, whether Mr. Romero in the truck had pointed his weapon inside his truck at the driver of the black SUV, and I do not know if he did or did not.

         (Supp. Dunivan Decl. at ¶ 3.)

         F.Plaintiff is Punched by Defendant Jimenez, Handcuffed by CHP officers, and Taken Into Custody.

         The entire incident (from the start of the 911 call to sounds of gun shots) lasted approximately 6 minutes. (JSUF 22.) Less than two minutes later, the sirens from CHP Officers Javier Ruvalcaba's and Chris Lancaster's patrol vehicles could be heard over Mrs. Yates' 911 call with dispatch. (JSUF 23.) A male's voice shouting undecipherable instructions can also be heard on the 911 call shortly after the sirens stop. (JSUF 24.)

         When Mrs. Yates initially made the 911 call, CHP dispatch announced over air that there was a brandishing. (JSUF 25.) Officers Lancaster and Ruvalcaba and Defendant Jimenez were all working when they heard a broadcast over the CHP dispatch that a CHP Officer's wife had reported a brandishing. (JSUF 26.) They drove to the identified location of the brandishing in their patrol cars-Officer Ruvalcaba driving Defendant Jimenez in one, and Officer Lancaster driving separately in another. (JSUF 27.) While en route to the location of the brandishing, dispatch informed the officers that there was a shooting and that an off-duty CHP officer was involved. (JSUF 28.)

         The Mobile Video/Audio Recording System (“MVARS”) on Officer Lancaster's patrol car shows him following Officer Ruvalcaba's patrol car, which had its lights activated as he approached the scene of the shooting. (JSUF 29.) Defendant Yates and his wife were standing behind their SUV when Officers Lancaster, Ruvalcaba and Defendant Jimenez arrived. (JSUF 30.) After exiting their patrol cars, Officers Lancaster, Ruvalcaba, and Defendant Jimenez drew their weapons and circled around the SUV, disappearing behind it in the direction of Plaintiff's truck (which was blocked from the MVARS view behind the SUV). (JSUF 31.)

         Plaintiff testified that he heard the officers direct him to put his hands up, at which point he left the gun on the floorboard, where he had thrown it, and sat up. (Romero Dep. at 75:4-9.) An incident report prepared by Officer Ruvalcaba stated that he “began to give verbal commands to the driver and instructed [Plaintiff] to put his hands up, ” but Plaintiff “did not follow orders and only his left hand was visible. (CHP Report at 3.) Officer Ruvalcaba testified at his deposition that he instructed Plaintiff to “show me your hands, ” that he could see one hand but “wasn't sure what was happening with the other hand . . . perhaps it was the angle where I was at, I don't know.” (Ruvalcaba Dep. at 23:13-19.) He testified that when he came upon the driver's side window, he looked in and saw both of Plaintiff s hands “a little bit above his shoulders.” (Id. at 22:7-23:4.) Defendant Jimenez testified that he could see Plaintiff holding both hands “about face high” and that his hands were bleeding, but Defendant Jimenez didn't believe Plaintiffs injury would impair his ability to follow Defendant Jimenez's commands. (Jimenez Dep. at 24:8-27:7.)

         As they approached Plaintiffs truck, Defendant Jimenez saw a gun lying on the floorboard on the passenger side, close to the central console, and yelled out “Gun!”. (JSUF 32.) Officer Lancaster testified that when Defendant Jimenez called out “Gun!”, he could see both of Plaintiffs hands, neither of which held a gun, and that Plaintiff was not moving in any way. (Lancaster Dep. at 23:18-24:17, 25:2-12.) Officer Ruvalcaba also testified that he did not see Plaintiff make any movements at that time. (Ruvalcaba Dep. at 26:20-27:3.)

         Officer Ruvalcaba found Plaintiff in his truck with the driver's side window closed. (JSUF 33.) The CHP officers ordered Plaintiff to unlock the doors, but Plaintiff did not comply. (JSUF 34.) Officer Lancaster broke the passenger window with his ASP baton and unlocked the door as Defendant Jimenez came around to the driver's side and opened the driver side door. (JSUF 35.) As soon as Defendant Jimenez opened the driver side door, Plaintiffs truck, which had an automatic transmission, started rolling forward at least 15 feet. (JSUF 36, 37.) Officer Ruvalcaba testified that he never saw Plaintiff put his hands on the steering wheel or on the gear shifter. (Ruvalcaba Dep. at 26:20-24, 28:19-25.)

         Seeing the truck move as soon as he opened the door, Defendant Jimenez believed Plaintiff was trying to escape or that he would use his truck as a weapon. (JSUF 38.) Defendant Jimenez punched Plaintiffs once in his cheek to distract him so that Defendant Jimenez could reach into the gear shift on the steering wheel and put the transmission into park. (JSUF 39.) Defendant Jimenez testified at his deposition that he did not know whether Plaintiff “hit the accelerator or not.” (Jimenez Dep. at 19:11-14; 31:21-24.) Defendant Jimenez grabbed Plaintiff, pulled him towards him, and locked him in place so that Plaintiff could not reach for his gun. (JSUF 40.) Defendant Jimenez believed he “had to distract Plaintiff long enough that [he] could reach into the truck and put the transmission into park, ” and that in his training “use of distraction punch under these circumstances in reasonable and necessary, and that is why [he] punched Plaintiff once on the cheek.” (Jimenez Decl. at ¶ 3.)

         Defendant Jimenez reached around Plaintiff and put the transmission in park with his right hand, at which point the transmission started to grind. (JSUF 41.) Once the truck was parked, Plaintiff did not exit the vehicle despite being instructed to do so by the officers. (JSUF 42.) According to Plaintiff, the next thing he felt was a CHP Officer grabbing his neck in a headlock position and trying to pull Plaintiff out the driver's side window. (Romero Dep. at 75:10-14.) Plaintiff testified he felt another CHP Officer put him in a “choke hold” and hit him in his cheeks as he tried to unhook his seat belt. (Id. at 75:16-76:4.) According to Plaintiff, the officer hitting him told him to “Quit resisting.” (Id. at 75:17-22, 82:23-83:3.)

         Defendant Jimenez testified that after he put the vehicle in park, he released Plaintiff's seatbelt. (Jimenez Dep. at 37:22-25.) Plaintiff was then pulled from the vehicle and placed on the ground, head first, and his cheeks were scraped on the asphalt as Plaintiff tried to push his head up from the ground, to avoid getting pushed into it. (JSUF 43;CHP Report at 4; Romero Dep. at 87:25-88:6; Lancaster Dep. at 44:21-25; Ruvalcaba Dep. at 33:15-24.) Defendant Jimenez testified that Plaintiffs “road rash” was caused “partially from myself pulling Plaintiff from the truck and “forcing him to the ground, ” and also from Plaintiff “flinging around, moving his face as we were trying to hold him down.” (Jimenez Dep. at 44:1-45:1.) Officers Lancaster, Ruvalcaba, and Defendant Jimenez then tried to hold Plaintiff still to place handcuffs on his wrists, but Plaintiff straightened out his arms making it difficult for the officers to do so. (JSUF 44; Romero Dep. at 88:12-22.) Officer Ruvalcaba believed Plaintiff was “resisting being handcuffed” because the officers were using “extreme force to bring [Plaintiffs] hands to his back and he was told several times, ‘Give me your hands. Give me your hands.”“ (Ruvalcaba Dep. at 33:1-7.) Defendant Jimenez testified that Plaintiff “wasn't physically resisting” being handcuffed but he “tightened up.” (Jimenez Dep. at 42:3-8.) Officer Lancaster testified that Plaintiff was lying on his hands with his hands underneath him when he was being handcuffed. (Lancaster Dep. at 31:5-15.) According to Officers Lancaster and Ruvalcaba, Plaintiff did not punch, kick, or bite the officers. (Lancaster Dep. at 44:10-20; Ruvalcaba Dep. at 26:25-27:3.)

         G. MPD Officer Lori Alva Interviews Plaintiff and Defendant Yates at the Scene.

         One or two minutes after Plaintiff was placed in handcuffs, MPD Officer Lori Alva arrived on scene. (JSUF 45.) Officer Alva then took a recorded interview of Plaintiff and summarized that statement in a “narrative report.” (JSUF 48; MPD Report at 6.) She had been advised by Officer Ruvalcaba that Plaintiff “did not comply with any of his commands and was uncooperative.” (MPD Report at 5.) Officer Alva observed blood and scrapes on both sides of his face and blood on Plaintiffs shirt and hands. (Id.)

         Plaintiff told Officer Alva he “did not know why this ‘Asshole' driver was following him” and that Plaintiff felt threatened. (Id. at 6.) Plaintiff stated that when he made a U-turn to get away Defendant Yates, Defendant Yates “cut him off” by pulling in front of him. (Id.) Plaintiff felt “endangered” and pointed his firearm at Defendant Yates: “I pointed my firearm at him because he cut me off.” (Id.) Plaintiff stated to Officer Alva at least four different times that he pulled out his weapon and pointed it at Defendant Yates when Defendant Yates blocked him with his SUV. (JSUF 49.) A black Smith & Wesson semi-automatic handgun was recovered from Plaintiffs truck following his arrest. (JSUF 21.)

         Officer Alva also interviewed Defendant Yates and took his gun at the scene. (JSUF 46.) Officer Alva summarized Defendant Yates' statement in a “narrative report.” (MPD Report at 6-7.) Defendant Yates told Officer Alva that as he was making a left turn onto Schnoor Avenue from Cleveland Avenue he was “cut off” by Plaintiff. (Id.) Defendant Yates “thought [Plaintiff] was drunk because [Plaintiff] was also stopped at a stop sign but was positioned approximately two car lengths from the limit line and did not move.” (Id. at 7.) Defendant Yates continued to follow [Plaintiff] south bound onto Schnoor Ave. “to observe his driving.” (Id.) Defendant Yates told Officer Alva that when they approached Dutra Way, Defendant Yates pulled alongside Plaintiff and yelled something to him. (Id.) Plaintiff “flipped him off and then pointed a gun at [Defendant Yates].” (Id.) Defendant Yates advised Officer Alva that Plaintiff brandished a gun and pointed it at Defendant Yates and his wife just before the shooting, and that Defendant Yates was forced to fire at Plaintiff in self-defense and to protect his wife. (JSUF 47.)

         H. MPD Officer Foss Interviews Plaintiff, Defendant Yates, and Mrs. Yates.

         That night at the MPD station, Plaintiff was questioned by Officer Daniel Foss, which was video recorded. (See Foss Interrogation Video.) Plaintiff told Officer Foss that Defendant Yates yelled something to him at the stop sign at Dutra Avenue, but that Plaintiff could not hear him. (Foss Interrogation Tr. at 19:6-20; Prelim. Hr'g Tr. at 101:2-15.) Plaintiff characterized Defendant Yates' driving as “aggressive” and did not know why the SUV was behaving in that way. (Prelim. Hr'g Tr. at 102:19-25.)

         Plaintiff told Officer Foss that when Defendant Yates cut him off at Orchard and University Avenues, he had “pulled [his gun] out”:

A. Yeah. When I come around the corner -- or excuse me. When I made the U-turn, um, I had it out for protection, of course. But like I said, I didn't know who this was dude.
Q. I understand.
A. So, yeah, I had it out. I mean, I didn't point it until I found out - Q. Did you hold it up so he could see it?
A. I was holding it like this; right? And when he came up, that's when he started firing at me, and I went down.
Q. So you had it out pointing like this (indicating)?
A. ·I don't remember if I had it I don't know if I was going to take a shot, you know. I was hoping -- I don't know what. I just had it ready to do whatever. I didn't know what (INAUDIBLE). Especially when he cut me off, what the hell this person was.
Q. Okay. Were you thinking that you might have to shoot this guy?
A. Yeah. Yeah, especially the second time, he went -- like I said, he wouldn't leave. Whatever -

         (Foss Interrogation Tr. at 26:15-27:17.) As Plaintiff responds “I was holding it like this…, ” the video shows Plaintiff holding his hand up near his face with his index finger extended and thumb pointed upwards. (See Foss Interrogation Video at 22:30:59.375-22:31:51:500 (time stamp).)

         Officer Foss's report of his interview with Plaintiff states that as he made the U-turn at the intersection of Orchard and University Avenues, Plaintiff

         had his handgun at his hand at this time, and he showed me how he was holding it. [Plaintiff] made a gun shape with his hand and held it up by his face as if he was aiming it. I asked [Plaintiff] if he point [sic] the gun at [Defendant] Yates and he advised that he could not remember, but he thinks he may have. I asked him why he would point his gun ...


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