United States District Court, N.D. California, San Jose Division
N. E. M., et al., Plaintiffs,
CITY OF SALINAS, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE: DKT. NO.
J. DAVILA, United States District Judge
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,  subsequently filed this civil action
against the City and the two officers involved in the
incident, Danny Warner and Josh Lynd,  for federal and
state causes of action, derivatively and on their own behalf.
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.
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.
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.
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.
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.
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.
The Instant Action
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
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).
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.
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).
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.
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.”
Fourth Amendment Cause of Action
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
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.
§ 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”).
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).
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).
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).