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Napier v. San Diego County

United States District Court, S.D. California

July 17, 2017

GABRIEL NAPIER by and through his guardian ad litem, LILLY QUIROZ, Plaintiff,
SAN DIEGO COUNTY, a government entity; SAN DIEGO COUNTY SHERIFF'S DEPARTMENT, a department of San Diego County; WILLIAM GORE, an individual; BRANDON BOISSERANC, an individual; NICHOLAS DANZA, an individual; and DYLAN NAPIER, an individual, Defendant.



         On October 12, 2016, Defendants filed a motion for summary judgment. [Doc. No. 50.] On November 9, 2016, Plaintiff filed an opposition to the motion. [Doc. No. 55.] On November 16, 2016, Defendants filed a reply to the opposition. [Doc. No. 56.] On January 4, 2016, a hearing was held with regard to the motion. Estevan R. Lucero, Esq. appeared on behalf of Plaintiff. David Brodie, Esq. and Christina Vilaseca, Esq. appeared on behalf of Defendants. Initially, this Court denied the motion for summary judgment as to all claims. [Doc. No. 69.] On May 12, 2017, this Court issued an order to show cause regarding whether Defendants should be granted qualified immunity in light of a recent Ninth Circuit decision. [Doc. No. 101.] On June 2, 2017, Plaintiff filed a response to the OSC. [Doc. No. 103.] On June 16, 2017, Defendants filed a reply to Plaintiff's response. [Doc. No. 104.] On July 17, 2017, this Court vacated its previous order regarding Defendants' motion for summary judgment. [Doc. No. 105.] This order now replaces the original summary judgment order. For the reasons set forth below, the motion for summary judgment as to the Fourth Amendment claim is GRANTED on the basis of qualified immunity, and DENIED as to the state law claim for battery.


         On January 31, 2014, five San Diego County Sheriff's deputies in the Gang Enforcement Team went to a Vista apartment complex in order to arrest Michael Napier. (Deposition of Brandon Boisseranc (“Boisseranc Depo.”), Exhibit 2, at page 93, lines 2-4; 99:19-22; 109:17-23; 116-117; 139:16-19, ; Deposition of Michael Astorga (“Astorga Depo.”), Exhibit 4, at 37-38; 40; 113-114; 153; Deposition of Jarett Moyette (“Moyette Depo.”), Exhibit 3, at 14, 23, 38; Deposition of Bogar Ortiz (“Ortiz Depo.”), Exhibit 5, at 51-52; 109:20-24.) Napier had an outstanding felony warrant for his arrest from a drug-related conviction (Health and Safety Code section 11377(a) - possession of methamphetamine). (Deposition of Nicholas Danza (“Danza Depo.”), Exhibit 1, at 156-158; Boisseranc Depo. at 77-78.) He was also on probation, the terms of which subjected Napier to warrantless searches by law enforcement at any time, with or without cause. (Exhibit 12, COSD 1730.)[1]

         On that day, Napier was working on his bike in his father's garage. (Peacock Decl., Exh. 1 [Denfeld Depo.] at pp. 22:06-24:01.) Contemporaneously, four plainclothes San Diego Sheriff's Deputies were conducting a surveillance operation, which they completed when they arrested an individual for purchasing narcotics. (Peacock Decl., Exh. 2 [Danza Depo.] at 136:23-137:9, 141:14-20, 152:10-20, 154:4-8.) The deputies convened in a grocery store parking lot to plot their next operation. (Peacock Decl., Exh. 2 [Danza Depo.] at 154:23-155:13.) One of the deputies raised a Special Bulletin, known as a Be On the Lookout (“BOL”), which suggested that Napier was a suspect in the theft of some personal property from a garage. (Peacock Decl., Exh. 3 [COSD 165]; Exh. 2 [Danza Depo.] at 156:4-6-156:17-19, 158: 1-5) The BOL also indicated that Napier had an outstanding felony warrant for drug possession. (Peacock Decl., Exh. 3 [COSD 165]; Exh. 2 [Danza Depo.] at 157:2-11, 246:21-24.)

         The deputies knew Napier was a documented member of a criminal street gang called the Vista Home Boys, and that his gang nickname was “Bullet.” (Danza Depo. at 168-69; Boisseranc Depo. at 83-84; Astorga Depo. at 135; Exhibit 14, Danza Response to Interrogatory No. 17; Exhibit 13, Boisseranc Response to Interrogatory No. 17.) The deputies also knew Napier had possessed firearms in the past (Moyette Depo. at 72-73), and had seen a photograph on Facebook showing him holding a machine gun. (Boisseranc Depo. at 122; Astorga Depo. at 106-107; 135; Moyette Depo. at 43; 47-48; Danza Response to Interrogatory No. 17; Boisseranc Response to Interrogatory No. 17.) They knew he had been arrested and convicted for drug use and drug possession, as well as several other convictions. (Moyette Depo. at 45:2-13; Danza Response to Interrogatory No. 17; Boisseranc Response to Interrogatory No. 17.) They also knew that Napier had recently posted on his Facebook page that he planned to move out of California soon. (Boisseranc Depo. at 77-78; Astorga Depo. at 106-107; 137.)

         Deputy Danza had previously arrested Napier for possession of a BB gun. (Peacock Decl., Exh. 2 [Danza Depo.] at 161:2-161:18, 162:16-25.) Danza did not consider that specific incident to make Napier violent. (Id.) Deputy Boisseranc had previously interacted with Napier to discuss Napier's activities while Napier was working as a sign twirler. (Peacock Decl., Exh. 6 [Boisseranc Depo.] at 78:22-80:22, 85:4-88:10.) Boisseranc acknowledged that when he approached Napier on that day he did not feel there was any reason to draw his weapon for safety. (Id.) Deputy Astorga claims that during the parking lot briefing the deputies discussed Napier's past history with guns and prior offenses. (Peacock Decl., Exh. 4 [Astorga Depo.] at 105:11 - 107:18.) When Deputy Ortiz gave a statement to a homicide detective, however, he stated that during this parking lot briefing no concerns were raised about taking extra caution with Napier. (Peacock Decl., Exh. 5 [01/31/2014 Deputy Ortiz Interview page 17-19].)

         The BOL made known to the deputies was posted on January 29, 2014, and stated there was an active warrant for Napier's arrest (the methamphetamine possession charge), and that he was wanted for questioning for a burglary incident. (Danza Depo. at 156-158; 173-174; Moyette Depo. at 39; Ortiz Depo. at 108.) The BOL also indicated Napier may be staying at his parents' apartment complex at 2000 S. Melrose Place in Vista, and that he may be spending time at a garage in the complex (garage #31, which belonged to his father). (Danza Depo. at 180-181; Astorga Depo. at 115:8-11.)

         The deputies drove to the apartment complex, and two deputies parked near the garage. One of them, Michael Astorga, saw a woman drive up to the garage, and then saw Napier come out of the garage and put a box in the woman's trunk. (Danza Depo. at 194; Boisseranc Depo. at 119; Astorga Depo. at 116:2-25; 117:1-22;119:11-23; 161-162; Moyette Depo. at 50:13-16; Ortiz Depo. at 112-114.) From his vantage point, Astorga positively identified Napier to the other deputies who were listening on their radios. (Danza Depo. at 194-195; Boisseranc Depo. at 92; Astorga Depo. at 143.)

         Four of the deputies approached the garage on foot, while Astorga stayed in his vehicle, coordinating the approach via his radio and watching the scene. (Boisseranc Depo. at 116-117; Astorga Depo. at 122.) It was early evening, and it was dark outside. (Astorga Depo. at 120:14-24; 138:14-23.) The deputies who approached the garage were Brandon Boisseranc, Nicholas Danza, Jarrett Moyette, and Bogar Ortiz. Moyette and Ortiz were in uniform; Boisseranc and Danza were in plainclothes. (Moyette Depo. at 52:1-10; Danza Depo. at 135-137; 183; Boisseranc Depo. at 93-94; Astorga Depo. at 118, 142; Ortiz Depo. at 90:12-18.) All four deputies had their green Sheriff's Department tactical vests on over their clothes. The vest has a cloth Sheriff's badge on the front, and “Sheriff's Department” is printed in large block letters on the back. (Danza Depo. at 207:18-22; Boisseranc Depo. at 117-118; Astorga Depo. at 142:13-22; Ortiz Depo. at 115:5-7.) Meanwhile, Napier was working on his bicycle in the garage. (Peacock Decl. Exh. 2 [Danza Depo.] at 231:16-20; Peacock Decl., Exh. 5 [01/31/2014 Deputy Ortiz Interview page 25-26]; and Peacock Decl., Exh. 7 [02/13/2014 Adela Myers Interview page 2].)

         All four deputies approached the garage with their guns drawn. (Astorga Depo. at 126-127; Danza Depo. at 245:13-16; Boisseranc Depo. at 117-118; Moyette Depo. at 83:14-20; Ortiz Depo. at 138:8-12.) The garage was partially opened, and the deputies could see that there was a light on inside. Their plan was to push the garage fully open while announcing themselves as Sheriff's deputies, and then place Napier under arrest. (Danza Depo. at 181:15-24; 202-204; 207:23-25; 215:21-25; Boisseranc Depo. at 99-102; 117-118; Astorga Depo. at 143:2-9; 156:10-19; Moyette Depo. at 68-69.)

         The four deputies approached the garage, and Deputy Danza reached down and pulled up hard on the garage door. But it only moved up several inches and then stopped, making a loud grinding noise. The garage was now open 3-4 feet, and the four deputies quickly crouched down under the garage door with their weapons drawn, and they could see Napier inside, standing five to six feet away from them. (Danza Depo. at 205-206; 215:7-13; 226:11-12; Astorga Depo. at 130-131; Moyette Depo. at 53:15-18; 59-60; Ortiz Depo. at 140:9-15.) The deputies did not anticipate that the garage would not open. (Peacock Decl. Exh. 6 [Boisseranc Depo.] at 121:3-21.)

         The deputies had begun yelling loudly, “Sheriff's Department!”, “Show me your hands!”, and “Put your hands up!” (Danza Depo. at 204:21-25; 215:21-25; Boisseranc Depo. at 122-123; Astorga Depo. at 132:3-24; Moyette Depo. at 53:13-21; 61:15-19; Ortiz Depo. at 116:19-22; 129-130.) Danza claims he announced that he was with the Sheriff's Department and yelled at Napier to raise his hands. (Id.) Boisseranc then began yelling at the same time, demanding that Napier show him his hands. (Peacock Decl., Exh. 6 [Boisseranc Depo.] at 122:25 - 123:13.) Boisseranc acknowledged that everyone was yelling and there was a lot of noise, and he himself could only make out what he was saying. (Id.)Facing the garage, Deputy Danza was on the left, Deputy Boisseranc was to his right, and Deputy Moyette was to the far right. Deputy Ortiz crouched behind deputies Boisseranc and Danza. (Danza Depo. at 206:9-15; Boisseranc Depo. at 107:11-19; Astorga Depo. at 127-130; Ortiz Depo. at 115-116.)

         Napier appeared to be holding a bicycle tire; he dropped the tire, looked surprised, and made several noises (deputies remember him saying “Oh fuck” or “Oh shit” several times). Although at first he started to raise his hands, he then dropped them and appeared to be patting his stomach and waist area as if he was looking for something. The deputies continued yelling at him to show them his hands, their voices getting louder as Napier continued patting his waist area instead of lifting his hands. The deputies saw he was wearing a dark jacket or sweatshirt. (Danza Depo. at 216-217; 220-221; Boisseranc Depo. at 123-126; Moyette Depo. at 57:16-19; 64:19-24; Ortiz Depo. at 117:1-5; 130:10-15.)

         Moyette acknowledges that Napier had no “escape route” from the garage. (Moyette Depo. at 69: 21-22.) Moyette also testified that, when Napier was patting his pockets or was putting his hands in his pockets, Moyette did not shoot him at that point because he could see Napier's hands and did not feel threatened by him. (Moyette Depo. at 91: 2-10.) Moyette just thought Napier was “acting strange.” (Moyette Depo. at 91: 10-11.)

         Boisseranc claims that Napier never put up his hands. (Peacock Decl., Exh. 6 [Boisseranc Depo.] at 124:5-7.) Danza, however, admitted that initially Napier put up his hands. (Peacock Decl., Exh. 2 [Danza Depo.] at 216:1-10.) Danza explained that, as the cross-yelling continued, Napier would lift his arms up, then drop them; then when Danza would yell again, Napier would then lift them up. (Peacock Decl., Exh. 2 [Danza Depo.] at 219:2-13, 221:4-6.) Danza claims that Napier put his hand in a pocket, but he acknowledges he is not sure if it was a pocket or a waistband. (Peacock Decl., Exh. 2 [Danza Depo.] at 222:18-25, 223:1-5.) Danza did not say anything to Napier in response to this action; instead, he opened fire and began shooting Napier. (Id.) At the same time, Boisseranc opened fire on Napier. (Peacock Decl., Exh. 6 [Boisseranc Depo.] at 124:23 - 125:17. 127:20 - 128:5.) Boisseranc acknowledged that he was scared of the situation when he opened fire. (Peacock Decl., Exh. 6 [Boisseranc Depo.] at 126:12-128:10, 128:11-130:16, 130:17-131:24.) He emptied his clip at Napier and began screaming to his other deputies for another clip of ammunition, even though in retrospect he actually had more clips on him. (Id.)

         Napier fell, and the deputies pulled him out of the garage, patted him down to make sure he was not armed (he was not), and began giving CPR. They immediately called an ambulance, but Napier died at the scene. (Danza Depo. at 234:18-19; 230:8-18; 239:1-10; 241-242; Boisseranc Depo. at 137:3-10; Astorga Depo. at 161-162; Moyette Depo. at 65-66; 110-111; Ortiz Depo. at 141:1-17.)

         Danza admitted that he never saw Napier with a weapon in the garage. (Peacock Decl., Exh. 2 [Danza Depo.] at 224:9-10.) Danza never warned Napier that Danza would shoot Napier if Napier did not obey his commands. (Peacock Decl., Exh. 2 [Danza Decl.] at 245:17-24.) Boisseranc also did not warn Napier that he would shoot Napier if he failed to ...

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