United States District Court, E.D. California
STACEY BERBEREIA, individually and on behalf of the ESTATE OFALBERT HANSON, JR., DANIEL HANSON, and KIMBERLY NIZ, Plaintiffs,
COUNTY OF KINGS; DEPUTY TAYLOR LOPES; DETECTIVE MARIUS BARSTECEANU; DEPUTY THOMAS OLSON; UNKNOWN LAW ENFORCEMENT OFFICERS, Defendants.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(ECF NO. 26)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
case arises from the shooting death of Albert Hanson, Jr.
(“Hanson” or “the Decedent”) in an
unincorporated area of Kings County. The Decedent's
surviving children - Stacey Berbereia, Daniel Hanson, and
Kimberly Niz (collectively, “Plaintiffs”) - bring
claims individually and on behalf of their late father's
estate. Plaintiffs bring the instant civil rights action
against the County of Kings (“County”), Kings
County Deputy Taylor Lopes (“Lopes”), Kings
County Sergeant Marius Barsteceanu, Kings County Deputy
Thomas Olson (collectively, “Deputy Defendants”),
and unknown law enforcement officers (collectively,
“Defendants”), alleging excessive force under 42
U.S.C. § 1983, as well as state law causes of action for
civil rights violations, battery, negligence, and wrongful
death. Before the Court is Defendants' motion for summary
judgment. The Court deems the matter appropriate for
resolution without oral argument. See E.D. Cal. Civ.
L.R. 230(g). Having carefully considered the record in this
case, the partie s' briefing, and the relevant law, the
Court grants in part and denies in part Defendants'
FACTUAL BACKGROUND 
April 26, 2015, Albert Hanson, a 76-year old man from
Visalia, California drove to the area of 7th Avenue and
Kansas Avenue in unincorporated Kings County. Hanson had been
to known to visit the area to shoot squirrels and had the
permission of the previous owner of the property to hunt
there. Ex. 3, Deposition of Daniel Hanson (“Daniel
Dep.”) 37:24-41:7. Hanson was driving a Ford Bronco and
had two rifles with him in the vehicle.
was an insulin-dependent diabetic, who normally carried
insulin with him. Daniel Dep. 23:20-24:16. According to later
autopsy reports, Hanson's blood sugar dropped dangerously
low, and he was likely suffering from a diabetic episode at
the time of the incident. Ex. 2, Autopsy Report of Albert
Hanson, Jr. (“Autopsy Report”), at 2.
KCSO Arrives At The Scene
afternoon, the Kings County Sheriff's Office
(“KCSO”) was informed that there was a person in
a Ford Bronco parked near the intersection of Kansas Avenue
and 7th Avenue who appeared to be intoxicated and was in
possession of two guns. KCSO was further informed that the
farmworker who approached the vehicle observed the subject
reaching for one of his rifles as he approached. KCSO Deputy
Leonel Alvarez responded to the scene at approximately 3:52
p.m. California Highway Patrol helicopter “H-40”
was already at the scene. The area is primarily agricultural,
with a few residences. The Bronco was parked facing the
southwest. There was a house positioned to the southwest of
the Bronco (in front and to the right) and one to the north
(rear) of the Bronco. Deputy Alvarez parked 15 to 20 yards
behind the Bronco.
Alvarez and H-40 used their public address systems to command
Hanson to exit the vehicle. Hanson did not comply with the
instructions. Several other deputies arrived at the scene.
The deputies continued to sound their sirens and give
commands for Hanson to exit the vehicle over the public
address system. Hanson appeared to turn to his right from
time to time and look in the direction of the deputies, but
he did not comply with their instructions. At some point,
Deputy Alvarez saw the subject reach toward the passenger
side of the vehicle and lift a rifle scope. Noting that there
were individuals in the surrounding homes who could not be
safely evacuated, and that the subject in the vehicle
appeared to be in possession of high-powered hunting rifles,
the KCSO SWAT team was called to the scene.
KCSO SWAT Team Arrives At The Scene
Barsteceanu, the SWAT team leader, responded in the SWAT
team's armored personnel carrier
(“APC”). He arrived at approximately 5:02 p.m. and
parked the APC approximately 20 to 40 yards behind the
Bronco. Non-SWAT deputies were instructed to retreat to
safety due to the fact that they were less well-equipped than
the APC and the SWAT team to withstand high velocity rifle
fire. Sergeant Barsteceanu made commands over the APC's
public address system ordering the subject to exit the
Bronco, and sounded the APC's siren to get his attention.
There was no apparent response to those efforts, although the
subject was observed to be moving around in the vehicle.
Deputy Olson and Deputy Lopes also arrived at the scene.
Deputy Lopes, Deputy Olson, and Sergeant Barsteceanu
positioned themselves around the APC, with Deputy Lopes
standing on the running board in the doorjamb of the
driver's side front door, Sergeant Barsteceanu positioned
in the same way on the passenger side, and Deputy Olson in
the turret of the APC. All three Deputy Defendants were armed
and wearing body armor. From the APC, the interior of the
Bronco was visible through the tailgate window and
illuminated due to the position of the sun, despite the fact
that there was a slight tint to the rear window. The deputies
had a clear view of the subject's head, upper torso,
shoulders, and arms through the tailgate window.
CHP Officer Manning Arrives In Aircraft (Air
a fixed wing aircraft manned by CHP Officer Dusty Manning,
arrived in the area after receiving a call from H-40 that
there was a subject in possession of rifles in the area of
Kansas Avenue and 7th Avenue. Air 43 is equipped with a
camera mounted under the left wing. Air 43 began orbiting the
scene, and Officer Manning focused the camera on the vehicle
and made radio contact with deputies on the ground. Officer
Manning observed the events on the ground through a monitor
in Air 43 that was connected to the camera. The camera
recorded the events, and the recording matches what Officer
Manning saw while observing the events through the
Defendants' Account Of The Shooting
approximately 5:20 p.m., roughly eighteen minutes after
Sergeant Barsteceanu arrived with the APC, each of the three
Deputy Defendants assert that they saw the subject lift the
rifle, put the buttstock toward his upper body, turn to his
right so that he faced the rear of the Bronco, and point the
muzzle in their direction. Barsteceanu Decl. ¶ 13; Olson
Decl. ¶ 6; Lopes Decl. ¶ 7. Each of the three
Deputy Defendants state that they feared for his life, and
all three fired their rifles nearly simultaneously, with
Deputy Lopes firing the first shot. Id. At the same
time that Sergeant Barsteceanu saw the subject point the
rifle at the Deputy Defendants, he heard a shot that he
thought had come from the subject. Barsteceanu Decl. ¶
13. It is undisputed that Mr. Hanson never fired his weapon.
Sergeant Barsteceanu yelled “cease fire” when it
appeared that the subject and the rifle went down in the
driver's seat, thereby minimizing the threat posed.
Sergeant Barsteceanu drove the APC closer to the Bronco to
provide additional cover in case the subject was still
capable of shooting at the Deputy Defendants. Deputy
Defendants exited the vehicle with their weapons drawn and
approached the Bronco on foot.
Other Accounts Of The Shooting
Manning saw the subject handling a rifle in the vehicle,
especially toward the end of the incident. He observed the
barrel of the rifle point towards the right passenger side of
the vehicle, and then towards the front of the vehicle (the
opposite direction of the officers). UF 145. Officer Manning
then saw a single gunshot come through the Bronco's front
windshield, followed after a brief pause by multiple shots.
UF 143-44; Ex. 10, Manning Dep. 18:4-21, 22:3-25. Officer
Manning did not see the weapon pointed back towards the
officers prior to the first shot coming through the front
windshield. Manning Dep. 22:3-25. Defendants' forensic
video analysis expert, Michael G. Schott, also testified that
the video shows the Decedent was turning towards the front of
the vehicle in a counterclockwise direction - away from the
Deputy Defendants - when the first shot is seen coming
through the front windshield. Ex. 15, Schott Dep. 38:3-40:4.
Undisputed Facts Regarding The Shooting
approximately 5:20 p.m., the three Deputy Defendants fired a
total of 46 rounds through the rear of the vehicle. Hanson
was struck 11 times. When the deputies reached the vehicle
and opened the door, Hanson was holding the rifle, but had
suffered significant head trauma and was clearly deceased.
moved for summary judgment on all causes of action on January
5, 2018. ECF No. 26. Plaintiffs filed an opposition on
February 27, 2016, ECF No. 34, to which Defendants filed a
reply on March 7, 2018, ECF No. 36. This Court has
jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343,
and 1367. Venue is proper in this court, and the matter is
ripe for review.