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Smith-Downs v. City of Stockton

United States District Court, E.D. California

July 26, 2017

DIONNE SMITH-DOWNS, et al., Plaintiffs,
CITY OF STOCKTON, et al., Defendants.



         Following an automobile chase, defendant police officers Eric Azarvand, Gregory Dunn, and John Nesbitt shot and killed James E. Rivera, Jr. (“Rivera”). Plaintiffs Dionne Smith-Downs and James E. Rivera, Sr. (“Plaintiffs”)-Rivera's parents-bring suit against the defendant police officers, alleging that they used excessive force against their son in violation of the Fourth Amendment. Defendants have now moved for summary judgment on all claims against them on the basis that the force used against Rivera was reasonable. ECF Nos. 99-100. For the reasons that follow, those motions are DENIED.[1]


         Rivera had been a suspect in an armed carjacking of a blue Chevrolet Astro van. See Azarvand & Dunn SUF ¶ 1; Nesbitt SUF ¶ 1-2. On July 22, 2010, Nesbitt spotted the van on a residential street, identified Rivera as the driver, and notified dispatch. Nesbitt SUF ¶ 6. As a result, Azarvand and non-party police officer Michael Hughes arrived on the scene in separate marked police cars and attempted to pull over the van. Azarvand & Dunn SUF ¶¶ 4, 5-7; Nesbitt SUF ¶¶ 7-8. Rivera did not pull over, and instead a high-speed chase ensued wherein Hughes, Azarvand, and Nesbitt all pursued the van in separate vehicles. Azarvand & Dunn SUF ¶ 8; Nesbitt SUF ¶¶ 9-11. Dunn eventually joined the pursuit, and ended up being the vehicle directly behind the van. Azarvand & Dunn SUF ¶ 18-19. The pursuit ended when police vehicles rammed the van and the van hit a parked car, drove over the sidewalk, and ran into a house's garage. Azarvand & Dunn SUF ¶¶19-20; Nesbitt SUF ¶¶ 18.[3]

         After striking the garage, the van penetrated the wall and became lodged almost wholly within the garage. Nesbitt SUF ¶ 19. Dunn stopped his vehicle directly behind the van, while Azarvand parked his car to the left of the van. Azarvand & Dunn SUF ¶ 25; Nesbitt SUF ¶¶ 22, 25. The parties have not provided any indication of exactly where Nesbitt parked, but it seems clear that he did stop his car at the scene. Azarvand, Dunn, and Nesbitt all exited their vehicles and drew their weapons. Azarvand & Dunn SUF ¶¶ 22, 26; Nesbitt SUF ¶¶ 24-26. Azarvand positioned himself to the left of Dunn, and Nesbitt positioned himself behind metal mailboxes to the right of Dunn. Azarvand & Dunn SUF ¶¶ 25-26; Nesbitt SUF ¶¶ 25-26. Dunn positioned himself behind the open driver-side door of his vehicle. Azarvand & Dunn SUF ¶ 23; Nesbitt SUF ¶ 23. Dunn was within a triangle formed by the open door, the side of Dunn's vehicle, and the side of the vehicle Rivera hit before striking the garage. Azarvand & Dunn SUF ¶¶ 23; Nesbitt SUF ¶ 23.

         Exactly what happened next forms the basis of the main dispute between Plaintiffs and Defendants.[4] It is undisputed, however, that the van's tires began spinning, spraying mud and debris. Azarvand & Dunn SUF ¶¶ 40-41; Nesbitt SUF ¶¶ 29-30. Without providing exactly how much time passed, Defendants state that less than 30 seconds[5] after they drew their weapons, the three officers fired a total of 29 rounds at Rivera, killing him. Azarvand & Dunn SUF ¶¶ 36-37, Nesbitt SUF ¶¶ 34-36, 38, 40. The officers all claim that they fired because they feared that Dunn was in danger of being hit by the van and fired to stop Rivera from reversing into him. Dep. of Gregory Dunn, ECF No. 99-5, Ex. A, at 47:24-48:9; Dep. of Eric Azarvand, ECF No. 99-5, Ex. B, at 116:6-10; Decl. of John Nesbitt, ECF No. 100-3, ¶ 31. However, they do not agree on the specific facts that led them to form that concern.


         The Federal Rules of Civil Procedure provide for summary judgment when “the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325.

         Rule 56 also allows a court to grant summary judgment on part of a claim or defense, known as partial summary judgment. See Fed.R.Civ.P. 56(a) (“A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought.”); see also Allstate Ins. Co. v. Madan, 889 F.Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a motion for partial summary judgment is the same as that which applies to a motion for summary judgment. See Fed.R.Civ.P. 56(a); State of Cal. ex rel. Cal. Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying the summary judgment standard to motion for summary adjudication).

         In a summary judgment motion, the moving party always bears the initial responsibility of informing the court of the basis for the motion and identifying the portions in the record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. “However, if the nonmoving party bears the burden of proof on an issue at trial, the moving party need not produce affirmative evidence of an absence of fact to satisfy its burden.” In re Brazier Forest Prods. Inc., 921 F.2d 221, 223 (9th Cir. 1990). If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).

         In attempting to establish the existence or non-existence of a genuine factual dispute, the party must support its assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits[, ] or declarations . . . or other materials; or showing 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). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Ass'n of W. Pulp & Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also demonstrate that the dispute about a material fact “is ‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In other words, the judge needs to answer the preliminary question before the evidence is left to the jury of “not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)). As the Supreme Court explained, “[w]hen the moving party has carried its burden under Rule [56(a)], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Id. at 587.

         In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).


         A. Fourth ...

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