Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Donaldson v. United States

United States District Court, S.D. California

February 26, 2018

MAYUMI DONALDSON, individually and as Successor in Interest to NICHOLAS DONALDSON, deceased, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          STATEMENT OF DECISION

          HON. JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE.

         The 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.

         This 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.

         FINDINGS OF FACT

         I. Overview of Evidence

         A. The Undisputed Facts

         The 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.)

         On 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 SUV.

         Mr. 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.

         Once 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.)

         While 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.)

         Mr. 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.

         Mr. 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.

         B. The Disputed Facts

         Three 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.)

         Second, 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.)

         Third, 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.

         C. Summary of Claims

         Plaintiff 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. Br. 25-35.)

         The 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.)

         II. The Witnesses

         A. Thomas Grattan

         Deputy 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.

         Deputy 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.)

         Immediately 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 44:8-45:5.)

         Deputy 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.

         B. Michael Hall

         Deputy 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.

         Deputy 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. at 87:10-25.)

         Deputy 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.

         Deputy 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.)

         Deputy 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.)

         Deputy 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.[1] (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.)

         Deputy 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.)

         Deputy 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- 142:4.)

         C. Steven C. Campman, M.D.

         Dr. 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.

         Dr. 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.)

         D. Mayumi Donaldson

         Ms. 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 credible.

         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.)

         E. Benjerwin Manansala

         Lieutenant 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[2] 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.

         F. Roger A. Clark

         Mr. 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.

         Mr. 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.)

         Mr. 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.)

         On 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 229:5- 10.)

         G. Robert Fonzi

         Mr. 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 incident here.

         Mr. 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.)

         Mr. 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 270:14-16.)

         Mr. 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 299:2-6.)

         Mr. 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.