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Berbereia v. County of Kings

United States District Court, E.D. California

April 3, 2018

STACEY BERBEREIA, individually and on behalf of the ESTATE OFALBERT HANSON, JR., DANIEL HANSON, and KIMBERLY NIZ, Plaintiffs,
v.
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

         I. INTRODUCTION

         This 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' motion.

         II. BACKGROUND

         A. FACTUAL BACKGROUND [1]

         1. The Decedent

         On 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.

         Hanson 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.

         2. KCSO Arrives At The Scene

         In the 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.[2] Deputy Alvarez parked 15 to 20 yards behind the Bronco.

         Deputy 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.

         3. KCSO SWAT Team Arrives At The Scene

         Sergeant Barsteceanu, the SWAT team leader, responded in the SWAT team's armored personnel carrier (“APC”).[3] 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.

         4. CHP Officer Manning Arrives In Aircraft (Air 43)

         Air 43, 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 aircraft's monitor.[4]

         5. Defendants' Account Of The Shooting

         At 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.

         6. Other Accounts Of The Shooting

         Officer 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.

         7. Undisputed Facts Regarding The Shooting

         At 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.

         B. PROCEDURAL HISTORY

         Defendants 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.

         III. STANDA ...


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