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N. E. M. v. City of Salinas

United States District Court, N.D. California, San Jose Division

November 6, 2017

N. E. M., et al., Plaintiffs,
v.
CITY OF SALINAS, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE: DKT. NO. 41

          EDWARD J. DAVILA, United States District Judge

         Carlos Mejia-Gomez was shot and killed by City of Salinas police officers in 2014. His survivors, N.E.M., Roberto Mejia-Gomez and Elias Mejia-Baires, [1] subsequently filed this civil action against the City and the two officers involved in the incident, Danny Warner and Josh Lynd, [2] for federal and state causes of action, derivatively and on their own behalf.

         Federal jurisdiction arises under 28 U.S.C. § 1331, and presently before the court is Defendants' Motion for Summary Judgment. Dkt. No. 41. Plaintiffs oppose the motion. Having carefully considered the parties' arguments in conjunction with the record which includes two videos of the incident, the court concludes that disputed factual issues preclude entry of summary judgment on all causes of action. Accordingly, Plaintiffs' motion will be granted in part and denied in part for the reasons explained below.

         I. BACKGROUND

         A. Facts

         On May 20, 2014, at approximately 12:13 p.m., Juana Lopez called 911 from her home in Salinas and reported a drunk male with scissors was trying to enter her home. Decl. of Bruce D. Praet, Dkt. No. 41, at Ex. 1. Lopez told the operator the man tried to kill her dog and exposed himself, and had told Lopez to call the police “to come get him.” Id. The subject of Lopez's report, later identified as Carlos Mejia-Gomez, eventually put the scissors into a backpack he was carrying and began to walk away from Lopez's residence. Id.

         Officers Warner and Lynd responded to the scene at the corner of Elkington and Del Monte, and found Mejia-Gomez “faced away” and looking at Lopez. Warner Depo., at 62:3-4. Lopez made eye contact with the officers and began pointing at Mejia-Gomez, causing Mejia-Gomez to turn in the direction of the officers. Id. at 7-11. Warner reported seeing “huge shears” sticking out of Mejia-Gomez's backpack. Id. at 62:24-63:4.

         The officers drew their firearms and, in Spanish and English, commanded Mejia-Gomez to stop and put his hands up. Warner Depo., at 63:5-8; Lynd Depo., at 11-22. Mejia-Gomez did not comply and began walking down Elkington toward Sanborn, “crossing the street from side of Del Monte to the other side, ” while the officers followed at a distance between four and eight feet, and continued to command him to stop. Warner Depo., at 69:13-22; Lynd Depo., at 38:21-44:17; Praet Decl., at Ex. 6 (“Prieto video”). Officer Lynd told Officer Warner to deploy his taser while Officer Lynd “stayed lethal.” Lynd Depo., at 44:18-22. In response, Officer Warner activated his taser and pulled the trigger but it did not deploy. Id. at 69:24-70:18. After Officer Warner told Officer Lynd his taser was not functioning, Officer Lynd told Officer Warner to “switch, ” meaning that Officer Lynd transitioned to his taser while Officer Warner transitioned to his firearm. Id. at 11-13.

         Mejia-Gomez turned to face officers and began walking backwards. Prieto video. By then, Mejia-Gomez had removed the shears from his backpack and was holding them near his head. Id. Officer Lynd discharged his taser toward Mejia-Gomez, but it had no effect. Lynd Depo., at 48:4-11. Mejia-Gomez tripped over a partition and fell onto his back but was still holding the shears. Prieto video; Warner Depo., at 10-13; Lynd Depo., at 57:12-20. Officers Warner and Lynd “closed the distance” to four to eight feet while Mejia-Gomez was on the ground, but did not apprehend him. Prieto video; Lynd Depo., at 53:10-12.

         Mejia-Gomez got up and began walking away from the officers in the same direction as before. Id. Officers Warner and Lynd became concerned Mejia-Gomez would endanger the patrons of a busy bakery he was approaching, and decided he could not be permitted to make it to the next corner. Warner Depo., at 77:7-25; Lynd Depo., at 55:5-25. Mejia-Gomez, still holding the shears, stopped before he reached the corner and turned around toward Officer Lynd, who was attempting a leg sweep. Warner Depo., at 87:4-9; Lynd Depo., at 61:22-62:6. Both officers then discharged their firearms. Warner Depo., at 87:10-11; Lynd Depo., at 62:6. Mejia-Gomez died at the scene. Prieto video. Toxicology tests taken after Mejia-Gomez's death were positive for alcohol and methamphetamine. Praet Decl., at Ex. 8.

         B. The Instant Action

         Plaintiffs initiated this case on December 23, 2014. Nine causes of action are asserted in the Complaint, eight of which are brought solely by N.E.M.: (1) violation of § 1983 for wrongful death, (2) violation of § 1983 for survival, (3) violation of § 1983 for Monell liability, (4) wrongful death in violation of California Civil Procedure Code §§ 377.60 and 377.61, (5) violation of California Civil Code § 52.1, (6) violation of California Civil Code § 51.7, (7) intentional infliction of emotional distress, and (8) gross negligence. One cause of action asserting violation of § 1983 for disruption of the right to familial relationship is brought jointly by Plaintiffs.

         II. LEGAL STANDARD

         A motion for summary judgment or partial summary judgment should be granted 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); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

         The moving party bears the initial burden of informing the court of the basis for the motion and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the issue is one on which the nonmoving party must bear the burden of proof at trial, the moving party need only point out an absence of evidence supporting the claim; it does not need to disprove its opponent's claim. Id. at 325.

         If the moving party meets the initial burden, the burden then shifts to the non-moving party to go beyond the pleadings and designate specific materials in the record to show that there is a genuinely disputed fact. Fed.R.Civ.P. 56(c); Celotex Corp., 477 U.S. at 324. A “genuine issue” for trial exists if the non-moving party presents evidence from which a reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the material issue in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

         The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the mere suggestion that facts are in controversy, as well as conclusory or speculative testimony in affidavits and moving papers, is not sufficient to defeat summary judgment. Id. (“When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.”); Thornhill Publ'g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Instead, the non-moving party must come forward with admissible evidence to satisfy the burden. Fed.R.Civ.P. 56(c).

         “If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). “But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion.” Id.

         III. DISCUSSION

         A. Fourth Amendment Cause of Action

         i. Objective Reasonableness

         Defendants contend they are entitled to summary judgment on the § 1983 causes of action under the Fourth Amendment because the undisputed facts show that the force used by Officers Warner and Lynd was objectively reasonable when tested under Fourth Amendment. The court disagrees, however, because there exists on this record triable fact issues on the question of objective reasonableness.

         a. Governing Authority

         “Section 1983 imposes liability upon any person who, acting under color of state law, deprives another of a federally protected right.” Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988). A § 1983 plaintiff must prove two elements: (1) the defendants acted under color of state law, and (2) the defendants deprived plaintiff of a right secured by the Constitution or federal statutes. Id.

         For § 1983's second element, N.E.M's causes of action arise under the Fourth Amendment and its prohibition on unreasonable seizures. See Graham v. Connor, 490 U.S. 386, 394 (1989) (“In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.”) (“Graham”); see also Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“[T]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.”) (“Garner”).

         “The fourth amendment, applicable to the states through the fourteenth amendment, protects individuals against . . . the use of excessive force.” Id. To determine whether the force used by officers was excessive, the court must “assess whether it was objectively reasonable ‘in light of the facts and circumstances confronting [the officers], without regard to their underlying intent or motivation.'” Gregory v. Cty. of Maui, 523 F.3d 1103, 1106 (9th Cir. 2008) (quoting Graham, 490 U.S. at 397). This inquiry “requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396. “[C]areful attention” must be paid to the “facts and circumstances of each particular case, ” including the following factors: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id. The most important of these factors is the second one. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc).

         The reasonableness of force “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, and its assessment “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. However, because this record includes video recordings of the incident, the court must “view[] the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 380-81 (2007).

         Since the balancing by which a Fourth Amendment excessive force claim is examined “nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom . . . summary judgment or judgment as a matter of law . . . should be granted sparingly.” Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003).

         b. ...


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