United States District Court, S.D. California
MAYUMI DONALDSON, individually and as Successor in Interest to NICHOLAS DONALDSON, deceased, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
STATEMENT OF DECISION
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE.
above-captioned case came before the Court for trial without
a jury on October 16 and 17, 2017. Attorneys Brian T. Dunn
and Megan R. Gyongyos appeared on behalf of Mayumi Donaldson,
as Successor in Interest to Nicholas Donaldson, deceased,
(“Plaintiff”). Attorneys Paul L. Starita and
Rebecca G. Church appeared on behalf of the United States of
America, (“Defendant”). The Court heard testimony
from witnesses Thomas Grattan, Michael Hall, Steven C.
Campman, M.D., Mayumi Donaldson, Benjerwin Manansala, Roger
Clark, and Robert Fonzi. The Court heard opening statements
from counsel and admitted exhibits into evidence. At the
close of Plaintiff's case-in-chief, Defendant United
States moved for a Rule 52(c) Judgment on Partial Findings.
See Fed. R. Civ. P. 52(c) (allowing Court to enter
judgment on partial findings if a party has been fully heard
on an issue). In an oral ruling, the Court reserved on
Defendant's motion. At the close of trial, the parties
agreed to file written “final briefs” with the
Court. (ECF. Nos. 61, 62.) In its final brief, Defendant
renews its request that the Court grant Defendant's Rule
52(c) Motion, (“Def. Br., ” ECF No. 61, at 9-10),
which the Court addresses below.
statement of decision constitutes the Court's findings of
fact and conclusions of law. See Fed. R. Civ. P.
52(a)(1). The findings and conclusions are based on the
testimony and evidence admitted at trial and the principles
of law that apply to those facts.
Overview of Evidence
The Undisputed Facts
parties agree on the following undisputed facts. In April
2013, decedent Nicholas Donaldson, also known as Nicholas
Pratl, lived with his wife, Mayumi Donaldson, on the 4800
block of Coconino Way, San Diego, California. On April 18,
2013, a felony bench warrant was issued for Nicholas Pratl
and on April 23, 2013, the San Diego Police Department
assigned the warrant to the United States Marshal Service.
Deputy United States Marshal Michael Hall of the Pacific
Southwest Regional Fugitive Task Force received the warrant.
The arrest warrant was for a drug trafficking offense. Deputy
Hall was aware that Mr. Donaldson had a prior criminal
history, but did not have any information that Mr. Donaldson
had any history of violent conduct or owned a firearm.
(“Trial Transcript, ” ECF No. 59, at 83:3-11.)
April 23, 2013, Deputy Hall conducted surveillance over the
course of several hours on Mr. Donaldson's house and
followed Mr. Donaldson when Mr. Donaldson drove around San
Diego County until he lost contact with Mr. Donaldson.
(Id. at 84:22-86:4.) On April 24, 2013, Deputy Hall
returned, found Mr. Donaldson's vehicle in front of his
house and placed a GPS tracker on Mr. Donaldson's
vehicle, a silver Mercedes Benz Sport Utility Vehicle
(“SUV”). (Id. at 87:2-4; 155:7.) Deputy
Hall described the SUV as “a medium to large SUV, all
blacked-out, tinted windows.” (Id. at
155:11-12.) After Deputy Hall placed the tracker on Mr.
Donaldson's vehicle, Mr. Donaldson and his wife left
together in Mr. Donaldson's vehicle. Mr. Donaldson
returned approximately an hour later, by himself.
(Id. at 87:15-17.) While Mr. Donaldson was away,
Deputy United States Marshal Thomas Grattan arrived on the
4800 block of Coconino Way to assist Deputy Hall in affecting
the arrest. (Id. at 87:18-22.) At the time of the
incident, Deputy Grattan drove a silver Chevrolet Trailblazer
LS SUV and Deputy Marshal Hall drove a Chevrolet Equinox LT
Donaldson returned in his vehicle. The deputies positively
identified Mr. Donaldson and confirmed that he was alone. At
this time, Mr. Donaldson parked his vehicle on the east curb
of 4800 of Coconino Way. Deputies Hall and Grattan attempted
to arrest Mr. Donaldson. The deputies were driving separate
vehicles and decided to attempt to pin Mr. Donaldson's
SUV between their two vehicles. The cars did not have police
markings, but both deputies activated their emergency lights,
red and blue flashing lights and strobe lights. (Id.
at 156:23-157:6.) The deputies placed their vehicles'
respective front bumpers against the front and rear bumper of
the Mr. Donaldson's SUV, executing a tactic known as
“vehicle pin.” The object of the vehicle pin was
to prevent Mr. Donaldson's vehicle from escaping so that
the deputies could arrest Mr. Donaldson.
the deputies initiated the vehicle pin, Mr. Donaldson placed
his vehicle into drive and drove his vehicle forward, hitting
Deputy Hall's unmarked police vehicle. (Id. at
157:20-23.) He then put his vehicle in reverse and drove into
Deputy Grattan's unmarked police vehicle. Mr. Donaldson
continued to ram both the forward and rear police vehicles;
Mr. Donaldson rammed each vehicle three times each for a
total of six contacts. Deputy Hall exited his vehicle after
Mr. Donaldson first rammed Deputy Hall's vehicle and
repeated three times the verbal commands: “Police.
Don't move. Let me see your hands.” (Id.
at 158:4-159:2.) Mr. Donaldson did not comply and continued
to ram his vehicle into the deputies' vehicles. Deputy
Hall fired two shots at Mr. Donaldson through the front
windshield. (Id. at 88:18-21.) These rounds did not
strike Mr. Donaldson. Deputy Hall then moved to the passenger
side of Mr. Donaldson's vehicle and fired at least three
rounds at Mr. Donaldson through the passenger side window.
(Id. at 92:22-24; 162:5-6.)
the ramming was taking place, Deputy Grattan was not idle.
When the deputies first executed the vehicle pin, but before
the first contact by Mr. Donaldson, Deputy Grattan placed his
vehicle in park and exited the vehicle. (Id. at
40:11-13.) After Mr. Donaldson began to drive back and forth
into the deputies' vehicles, Deputy Grattan re-entered
his vehicle within a few seconds of his initial exit.
(Id. at 40:23-41:1; 55:17- 18.) Deputy Grattan
hunched down in the driver's seat so that he could see
over the dashboard, held onto the steering wheel, and applied
his body weight to the vehicle's brake pedal.
(Id. at 43:1-15.) When Deputy Hall began firing his
service weapon, Deputy Grattan ducked below the dashboard.
(Id. at 44:8-12.)
Donaldson was hit by two (2) rounds fired by Deputy Hall from
the passenger side, but his vehicle continued to move. Mr.
Donaldson's car drove across the street, hit a parked
car, and continued into the yard across the street from where
the vehicle pin took place. By this time, Deputy Grattan had
exited his vehicle and saw Mr. Donaldson's vehicle
driving on the yard across the street from where the deputies
and their vehicles were located. (Id. at
47:17-48:8.) Deputy Grattan fired his service weapon twice at
Mr. Donaldson, but neither bullet struck Mr. Donaldson.
(Id. at 47:4-6.) Mr. Donaldson's vehicle crashed
into a house across the street from the vehicle pin, i.e.,
Mr. Donaldson's vehicle started on the west side of
Coconino Way and came to rest after crashing into a house
that was on the east side of Coconino Way.
Donaldson suffered two wounds: one bullet hit his bicep and a
second bullet struck the right side of his head-the right
parietal lobe. Mr. Donaldson was taken to Scripps Memorial
Hospital, where he passed away from his head wound on April
25, 2013 at 6:25 a.m.
The Disputed Facts
matters are in dispute. First, whether Deputy Hall could see
Deputy Grattan through Mr. Donaldson's vehicle. Deputy
Hall testified that after Mr. Donaldson began ramming his
vehicle into the deputies' vehicles, Deputy Hall exited
his vehicle and could not see Deputy Grattan while looking
directly through Mr. Donaldson's windshield.
(Id. at 94:15-21.) Deputy Hall also testified that
he did not see Deputy Grattan get out of his vehicle or see
Deputy Grattan near the front quarter panel of Mr.
Donaldson's vehicle. (Id. at 94:22-95:2.)
Plaintiff contends that, because Deputy Hall stood on a curb
several inches above street level and because Deputy Grattan
testified that he was looking over the dashboard of his
vehicle, Deputy Hall should have been able to see Deputy
Grattan through Mr. Donaldson's vehicle. At the very
least, Plaintiff urges the Court to find that Deputy
Hall's testimony is not credible as to this fact.
(“Pl. Br., ” ECF No. 62, at 27.)
Plaintiff disputes whether Deputy Hall fired from a different
location than what he testified at trial. (Id. at
37.) At trial, Deputy Hall testified that he exited his
vehicle and stepped onto the curb next to his vehicle, (Trial
Transcript 92:22-24), and fired two rounds through the
windshield at Mr. Donaldson, (Id. at 88:18-21).
Deputy Hall then repositioned himself so that he was facing
the passenger side window. (Id. at 88:22-24.) At
this point during the incident, Deputy Hall was standing on
the west curb and fired in a generally eastern direction.
(See Ex. 2-019 (Crime Scene Reconstruction Report).)
Plaintiff's factual dispute rests entirely on the
position of shell casings found on the scene after the
shooting. At trial, Deputy Grattan testified that, generally,
shell casings eject to the right and back of the shooter.
(Trial Transcript 52:11-53:17.) Deputy Hall testified that he
was familiar with those same ejection patterns of shell
casings from his service weapon. (Id. at
139:20-140:5.) Photographs from the crime scene depict that
Deputy Hall's shell casings came to rest in the middle of
Coconino Way, as well as the east side of the street. (Ex.
16-198 (Crime Scene Photograph).) Deputy Hall did not have an
explanation at trial why the casings would be found at those
specific locations. (Trial Transcript 140:18-141:24.)
Plaintiff contends, based on the location of the shell
casings, that Deputy Hall was not standing on the curb, but
instead standing somewhere in the street. (Pl. Br. 38.)
Plaintiff disputes whether Mr. Donaldson was driving with as
violent force and velocity as described by the deputies.
Plaintiff contends that that pictures taken after the
incident depict no damage to the front bumper of Deputy
Grattan's vehicle. (Id. at 41 (citing Ex.
16-104).) Plaintiff contends that this physical evidence
contradicts the Deputies' accounts about the
“violence of the ramming motions of [Mr.
Donaldson's vehicle] during the incident.”
(Id.) The Court resolves the disputed facts below.
Summary of Claims
offered evidence to support a negligence claim under the
theory that Deputy Hall did not act with reasonable care with
respect to firing his service weapon in defense of Deputy
Grattan or himself. Plaintiff also offered evidence to
support the claim that Deputy Hall committed a battery on Mr.
Donaldson with respect to the same discharge of his service
weapon at issue in the negligence claim. (See Pl.
evidence presented by Defendant was offered to support the
following negligence-related claims: the United States is not
liable for any discretionary action taken by the Deputy
United States Marshals; it was reasonable for Deputy Hall to
use deadly force in self-defense; it was reasonable for
Deputy Hall to use deadly force in defense of Deputy Grattan;
and it was reasonable for Deputy Grattan to fire his weapon
at Mr. Donaldson in self-defense. Defendant presented the
same evidence to support the claim that Deputy Hall was
objectively reasonable in his use of force and, thus, not
liable for battery. (See Def. Br. 12-14.)
United States Marshal Thomas P. Grattan was employed by the
United States Marshal Service at the time of the shooting.
Deputy Grattan drove the rear vehicle that pinned Mr.
Donaldson's vehicle during the arrest. The Court finds
Deputy Grattan to be a credible witness. His recollections
were clear and consistent.
Grattan testified to the following facts at trial. At the
time he arrived at the location of the shooting, Deputy
Grattan was not aware of any violent criminal history
attributable to Mr. Donaldson; that Mr. Donaldson was in
possession of any firearm; or that Mr. Donaldson had ever
been accused of injuring any person. (Trial Transcript 33:16-
25.) Deputy Grattan was aware of relevant United States
Marshal Service policies, (see, e.g., id.
at 34:3), and was trained in some advanced techniques
including bringing a moving vehicle to a stop without deadly
force and containment techniques of a person in a moving
vehicle without deadly force, (see Id. at 36:1-10).
Deputy Grattan also testified that he was trained that it is
a preferred police tactic to get out of the way when
confronted with an individual who resists arrest by trying to
escape in a vehicle. (Id. at 37:20-38:1.) At the
time of the incident, Deputy Grattan testified that his
vehicle had red and blue lights that identified his Chevrolet
Trailblazer as a police vehicle and that he was wearing his
police badge around his neck. (Id. at 63:12-24.)
after the initial vehicle pin, Deputy Grattan exited his
vehicle to approach the driver's side and arrest Mr.
Donaldson. (Id. at 63:5-7.) Deputy Grattan saw Mr.
Donaldson's wheels begin to spin and his reverse
taillights come on, which caused Deputy Grattan to fear that
the car was going to move. Deputy Grattan re-entered his
vehicle. (Id. at 64:8-15.) His initial exit and
re-entry into his vehicle lasted approximately one to two
seconds. (Id. at 76:9-18.) When Mr. Donaldson began
ramming his vehicle into Deputy Hall's vehicle, Deputy
Grattan testified that he re-entered his Trailblazer for two
purposes: first, to maintain the vehicle pin and second, to
avoid being run over by Mr. Donaldson. (Id. at
41:22-42:3.) After he re-entered the vehicle, Deputy Grattan
hunched his body down behind the steering wheel and dashboard
of his vehicle, but could still see over the dashboard.
(Id. at 43:5-15.) Once Deputy Hall fired his first
round, Deputy Grattan testified that he ducked down
completely behind the dashboard in order to use the engine
block as a barrier, which he knew was the best option to
provide cover from stray bullets. (Id. at
Grattan testified that after the shooting stopped, he exited
his vehicle, saw Mr. Donaldson's vehicle in the yard
across the street, believed that Mr. Donaldson was going to
exit the yard, and “attempt to go through my position
to make an escape.” (Id. at 47:17-48:8.)
Deputy Grattan testified that he believed his life was in
danger, that he did not believe he had time to move to a
different position that would take him out of the path of
danger, and he fired two rounds at the driver's side of
Mr. Donaldson's vehicle. (Id. at 49:7-21.) He
did not strike Mr. Donaldson with either round.
United States Marshal Michael Hall was employed by the United
States Marshal Service at the time of the shooting. Deputy
Hall, like Deputy Grattan, was aware of relevant United
States Marshal Service policies, (see, e.g.,
id. at 89:11), and training directives, (see
Id. at 90:20-25), relating to the arrest of suspects,
use of deadly force, and containment of vehicles, amongst
other policies. The Court finds Deputy Hall to be a credible
witness. His recollections were clear and consistent. At
trial, Deputy Hall testified to the following facts.
Hall received an arrest warrant for Mr. Donaldson two days
prior to the shooting. (Id. at 82:17.) When Deputy
Hall received the arrest warrant for Mr. Donaldson Deputy
Hall was not aware of any violent criminal history
attributable to Mr. Donaldson; that Mr. Donaldson was in
possession of any firearm; or that he had ever been accused
of injuring any person. (Id. at 83:3-11.) The day
before the shooting Deputy Hall conducted several hours of
visual surveillance on Mr. Donaldson's home.
(Id. at 84:22-85:9.) When Mr. Donaldson departed for
an excursion, Deputy Hall trailed Mr. Donaldson's vehicle
in his unmarked police vehicle, but lost contact with Mr.
Donaldson at some point in the evening. The next morning,
Deputy Hall returned to Mr. Donaldson's home and placed a
GPS tracker on Mr. Donaldson's vehicle, which Deputy Hall
described as a medium to large, silver Mercedes SUV with
“all blacked-out, tinted [rear] windows.”
(Id. at 86:5-18, 155:6-14.) Mr. Donaldson then left
his home with his wife; during that time Deputy Hall made
contact with Deputy Grattan to plan the arrest. (Id.
Hall believed that if Mr. Donaldson returned alone it made
sense to effect a vehicle pin and that due to Mr.
Donaldson's apparent lack of violent history, Deputy Hall
thought that two deputy marshals would be enough to affect an
arrest. (Id. at 151:21- 152:7.) Mr. Donaldson
returned, alone, in his vehicle. Deputy Hall communicated
over his radio with Deputy Grattan and they initiated the
vehicle pin by driving their respective vehicles up to Mr.
Donaldson's vehicle. (Id. at 156:4-13.) Deputy
Hall initiated the vehicle pin by driving his vehicle all the
way to Mr. Donaldson's vehicle and made contact with his
front bumper to Mr. Donaldson's front bumper; during this
time, Deputy Hall's emergency lights were activated.
(Id. at 156:16-157:6.) Additionally, Deputy Hall was
wearing civilian clothes and wore his U.S. Marshal badge
around his neck. (Id. at 169:9- 12.) Deputy Hall
observed Mr. Donaldson's reaction to the vehicle pin; he
saw a look of confusion on Mr. Donaldson's face and then
saw Mr. Donaldson's hands drop out of view. (Id.
at 157:9-18.) At first, Deputy Hall believed that Mr.
Donaldson might have been reaching for a firearm, but then
realized that Mr. Donaldson put his vehicle into drive.
(Id. at 157:19-24.) Mr. Donaldson drove his vehicle
into Deputy Hall's vehicle.
Hall estimated that only a few seconds elapsed from when he
was first struck by Mr. Donaldson's vehicle to when he
exited his vehicle. (Id. at 91:19-92:6.) Once Mr.
Donaldson's vehicle began to ram the deputies'
vehicles, Deputy Hall believed that Mr. Donaldson was not
going to be compliant. (Id. at 158:1.) Deputy Hall
exited onto the curb, which was several inches above street
level, and stood next to the front quarter panel of his
vehicle. (Id. at 93:2-8.) Deputy Hall testified that
he looked at Deputy Grattan's Trailblazer through Mr.
Donaldson's vehicle but did not see Deputy Grattan.
Specifically Deputy Hall said that Deputy Grattan did not
“appear where I thought he should appear.”
(Id. at 94:15-95:2; 159:7-8.) Deputy Hall estimated
that approximately five to ten seconds elapsed from the time
when Deputy Hall looked at Deputy Grattan's vehicle until
the time Deputy Hall decided to open fire on Mr. Donaldson.
(Id. at 95:3-9.) Deputy Hall testified that he was
concerned for the life of Deputy Grattan. (Id. at
120:1-4; 121:13 (“I fired in defense of my
partner.”).) Deputy Hall believed that the “only
possible place for him to be would be in that small window
behind the Mercedes that I couldn't see.”
(Id. at 159:15- 16.) That is, Deputy Hall believed
Deputy Grattan's body was pinned in between Mr.
Donaldson's rear bumper and Deputy Grattan's own
front bumper. Deputy Hall also testified that he could not
see through Mr. Donaldson's vehicle “mostly”
because of the tinted windows. (Id. at 159:18-19.)
Hall issued verbal commands to Mr. Donaldson-“Police.
Don't move. Let me see your hands”-repeating those
commands three times. (Id. at 159:1-2.) He did not
draw his weapon until he completed issuing those commands to
Mr. Donaldson to stop what he was doing. (Id. at
159:24-160:4.) Deputy Hall observed that the vehicle was
still moving “violently back and forth” and he
believed that Mr. Donaldson “was using his [vehicle as
a] weapon to allow him to smash out of the pin.”
(Id. at 161:7-9.) At this time, Deputy Hall made the
decision to fire at Mr. Donaldson. (Id. at 161:14.)
Deputy Hall analogized that if he were to quantify his
decision to fire he estimated eighty percent (80%) of his
motivation was to protect the life of Deputy Grattan and
twenty percent (20%) was to protect his own life.
(Id. at 121:21.)
Hall fired two rounds through the windshield at Mr.
Donaldson. (Id. at 125:25-126:5.) He observed that
these two rounds did not affect Mr. Donaldson's behavior
and decided to move and shoot from different location.
(Id. at 161:22-162:1.) Deputy Hall then repositioned
himself forward of his original firing position, while still
on the curb, so that he was looking into the passenger side
window of Mr. Donaldson's vehicle. (Id. at
127:2-5.) Deputy Hall testified that he fired three rounds
through the passenger side window and he believed he struck
Mr. Donaldson with his fourth and fifth rounds. (Id. at
126:6-15.) Deputy Hall asserted that he did not fire at Mr.
Donaldson to prevent him to escape, but because he was using
his vehicle as a weapon and could have killed either deputy.
(Id. at 164:17-25.) When Deputy Hall engaged Mr.
Donaldson, he did not look to see where Deputy Grattan was
located. (Id. at 127:2-9.) Deputy Hall stated that
he did not believe he had time to check if Deputy Grattan was
trapped between Mr. Donaldson's vehicle and Deputy
Grattan's own vehicle. (Id. at 128:3-8.)
Hall testified that when he ceased firing Mr. Donaldson's
vehicle was driving away from Deputy Hall. (Id. at
134:7.) Deputy Hall generally agreed with the statement that
at the time Mr. Donaldson's vehicle was driving away from
his position, Deputy Hall no longer perceived a danger to
himself or Deputy Grattan. (Id. at 134: 7- 12.)
Then, Deputy Hall noticed that his own vehicle was moving
backwards, and he ran after it so that the vehicle would not
hit anything. Around that time, he heard Deputy Grattan fire
his weapon. (Id. at 163:25-164:7.)
Hall was asked about the positioning of his shell casings,
found after the shooting incident. The shell casings were
found generally in the middle and east side of Coconino Way,
(see Ex. 16-198). When asked whether he had an
explanation as to why the shell casings were found in the
middle of the street, Deputy Hall did not have an
explanation. (Trial Transcript 141:10-24.) However, when
asked whether it was possible that he was standing in the
middle of the street-rather than on the curb-Deputy Hall
testified that it was “not possible” he was
anywhere other than the curb. (Id. at 141:25-
Steven C. Campman, M.D.
Steven Campman is a Deputy Medical Examiner in the San Diego
County Medical Examiner's Office. Dr. Campman performed
the autopsy on Mr. Donaldson and authored the autopsy report.
(Exs. 30, 31.) The Court finds Dr. Campman credible.
Campman testified that Mr. Donaldson received two gunshot
wounds on April 24, 2013: one bullet entered the right
triceps area and exited the right biceps area; the other
bullet entered the right parietal scalp (right side of head)
and did not exit. (Trial Transcript 104:2-9.) Dr. Campman
determined that the path of the bullet that struck Mr.
Donaldson's right parietal lobe traveled from the right
side of his body to the left. (Id. at 106:21-22.)
The bullet that struck Mr. Donaldson's arm also traveled
slightly forward, slightly upward, and leftward.
(Id. at 109:13-14.) Dr. Campman determined the
gunshot wound to the head was the cause of death.
(Id. at 113:25-114:16.) Dr. Campman was unable to
determine which of the two gunshot wounds Mr. Donaldson
sustained first. (Id. at 112:11-14.)
Donaldson was married to the decedent Mr. Nicholas Donaldson.
Ms. Donaldson met Mr. Donaldson in October or November of
2005, (id. at 173:8), and they were married in
November 2009, (id. at 174:12). The Court finds Ms.
Donaldson testified that she lived with Mr. Donaldson and Mr.
Donaldson's parents at the time of the shooting. Ms.
Donaldson testified as to the activities she shared with the
decedent when they were married. (See, e.g.,
id. at 176.)
Manansala was, at the time of the shooting, a Patrol Sergeant
in the San Diego Police Department. Lieutenant Manansala
testified that he took a Public Safety
Statement from Deputies Hall and Grattan and that
the Public Safety Statement, (Ex. 29), was an accurate-though
not verbatim-summary of what he heard from the deputies,
(Trial Transcript 187:1-20; 188:12-15). The Court finds
Lieutenant Manansala credible.
Roger A. Clark
Roger Clark is a retired Lieutenant and held several
positions in the Los Angeles County Sheriff's Department
during his career from 1965 until 1993. Mr. Clark currently
works as a police procedures consultant and testified on
behalf of Plaintiff as a use of police force expert. The
Court finds Mr. Clark to be credible though that finding is
qualified by the following: Mr. Clark retired from the Los
Angeles County Sheriff's Department in 1993,
(id. at 216:5-8), and has not attended any
continuing education or training on the legal standards,
techniques, or methods with regard to the reasonable use of
force since his retirement, (id. at 216:24-217:3.)
Thus, Mr. Clark's opinions reflect police use of force
standards and tactics as they were several decades ago and
were not as persuasive as opinions formed based on more
modern standards and techniques.
Clark testified that generally law enforcement officers are
trained to “step out of the way” when confronted
with a threat from a moving motor vehicle because a bullet is
“never going to stop the momentum” of that
vehicle. (Id. at 195:9-16.) Mr. Clark addressed the
situation of “crossfire, ” generally defined as
firing a weapon when the bullet would travel towards a fellow
law enforcement officer or a bystander-that is, anyone other
than the intended target. He testified that officers
“will never shoot in the direction of [a] partner or an
innocent civilian.” (Id. at 197:2-3.) Mr.
Clark drew this opinion from historical examples when fellow
law enforcement personnel or civilians were hit by bullets
intended for the target. (Id. at 197:5-9.)
Clark reviewed the deputies' testimony regarding their
justifications for the use of deadly force. He opined that
Deputy Hall's use of force was not objectively
reasonable. Specifically, Mr. Clark testified that Deputy
Hall did not see his partner and that Deputy Hall should have
looked and seen his partner before using deadly force.
(Id. at 206:22- 207:14.) Mr. Clark stated that
Deputy Hall could have looked because the two vehicles were
only a few inches apart. (Id. at 209:2-14.) He also
opined that even if, hypothetically, the vehicle had tinted
windows preventing someone from seeing through the vehicle,
then Deputy Hall should have repositioned himself to see that
no one was between the two vehicles. (Id. at
209:15-22.) Mr. Clark also testified that, based on the
record, Deputy Hall's actions were unreasonable because
Deputy Hall fired in the direction of his partner and missed
him by a few feet. (Id. at 210:9-11.) He stated that
officers are not trained to fire in the direction of their
partners. (Id. at 210:13-17.)
cross examination, Mr. Clark testified that Mr.
Donaldson's actions did not constitute a crime such as
assault with a deadly weapon, but rather characterized Mr.
Donaldson's actions as property damage. (Id. at
222:8-14.) Mr. Clark agreed that Mr. Donaldson's actions
could constitute assault with a deadly weapon if someone was
in the vehicle's path, but opined that, based on his
review of the facts of this case, the deputies were not in
close enough proximity to constitute assault with a deadly
weapon. (Id. at 222:25-224:2.) Mr. Clark also opined
that Mr. Donaldson's vehicle was not a threat to Deputy
Hall, at the time Deputy Hall fired upon Mr. Donaldson,
because the vehicle was turning away from Deputy Hall in an
attempt to flee, not an attempt to assault. (Id. at
228:21-229:4.) He also testified that Deputy Grattan did not
face an imminent threat of death or serious bodily injury
because Deputy Grattan was in his vehicle. (Id. at
Robert Fonzi retired in January 2014 as the Undersheriff of
San Bernardino County and held several positions in the
Sheriff's Office and other police departments before
reaching the Undersheriff position. Mr. Fonzi began in 1981
and his career spanned thirty-three years. Mr. Fonzi
currently works as a police consultant and testified on
behalf of the Defendant as a police use of force expert. The
Court finds Mr. Fonzi to be very credible and his opinions
include the most recently developed use of force techniques
used by modern law enforcement personnel. Mr. Fonzi's
training and roles within various police departments were
directly relevant to police use of force situations, like the
Fonzi testified to the following at trial. First, he
testified that it was not reasonable for Deputy Hall to
verify Deputy Grattan's location before engaging Mr.
Donaldson with his service weapon. Mr. Fonzi said that the
1999 Columbine, Colorado school shooting changed the way in
which law enforcement personnel respond to threats. Police
officers are now trained not to “run away and hide
behind a car, ” but rather to “get out in
front” of the threat, even if there is only one officer
on the scene. (Id. at 261:22- 262:2.) Further, Mr.
Fonzi stated that there is no training or guideline
requirement that mandates an officer verify the location of
his or her partner before using deadly force. (Id.
at 266:12-18.) If Deputy Hall reasonably feared for his
partner's life, then Mr. Fonzi opined that it would not
be reasonable to verify the location of Deputy Grattan.
(Id. at 266:19-22.)
Fonzi next discussed whether it was permissible to ever shoot
at a moving vehicle. Mr. Fonzi opined that he was not aware
of any training that prohibited all instances of shooting at
a moving vehicle; instead, officers are taught to take into
consideration their training when deciding whether to fire at
a moving vehicle. (Id. at 267:25-268:12.) He also
opined that Mr. Donaldson's use of a vehicle would be
characterized as a deadly weapon. (Id. at
Fonzi then testified how the concept of crossfire would
affect the decision making of the deputies. He opined that
law enforcement officers are trained to consider risks of
crossfire in determining whether to use deadly force, but are
not precluded from firing their weapon simply because the
risk of crossfire exists. (Id. at 271:15-272:7.)
Police officers consider the potential for crossfire, in a
split-second process, along with all other considerations.
(Id.) Mr. Fonzi agreed that Deputy Hall's
bullets were directed generally where, according to Mr.
Fonzi's review of the facts, Deputy Hall believed Deputy
Grattan to be located, i.e., Deputy Hall's bullets could
have passed through Mr. Donaldson's vehicle to the rear
bumper of the vehicle where Deputy Hall thought Deputy
Grattan was pinned. (Id. at 298:20-23.) He qualified
his views by stating that crossfire is a consideration when
training officers, but it does not cause paralysis or
prohibit an officer from engaging a suspect. (Id. at
Fonzi agreed that deadly force was a last resort to be used
only when other means of control are unreasonable or would be
ineffective. (Id. at 278:5-9.) He went on to state
that the use of deadly force as a last resort takes into
account the dynamics of a situation. (Id. at
278:23-279:9.) Mr. Fonzi opined that if he were in Deputy
Hall's position, given the facts of the case, he would
have believed that his partner was in danger of ...