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Acosta v. California Highway Patrol

United States District Court, N.D. California, San Jose Division

June 24, 2019

CRISTOBAL ACOSTA, Plaintiff,
v.
CALIFORNIA HIGHWAY PATROL, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [RE: ECF 45]

          BETH LAB SON FREEMAN, United States District Judge.

         As Mr. Cristobal Acosta sat in his car stopped at the side of the road with a mechanical breakdown that caused “backfiring, ” two California Highway Patrol (“CHP”) officers responded to an on-duty sergeant's report of an explosion from the car or possible “shots fired, ” and approached Acosta's stopped car from behind in their respective patrol vehicles. After hearing a loud sound coming from Plaintiff's car that was actually a backfire, one officer exclaimed “Shots fired!” and “Back up.” After hearing a second loud sound from Plaintiff's car seconds later, both officers opened fire, believing that the loud sounds coming from Plaintiff's car were gunfire. One of the bullets struck Plaintiff, who was in fact not armed and had committed no crime.

         Arising from this incident, Plaintiff Acosta brings suit against the CHP, Sergeant Daniel Hill (“Sergeant Hill”), Officer David Morasco, Jr. (“Officer Morasco”), and Officer Jonas Bleisch (“Officer Bleisch”) (collectively, “Defendants”). Plaintiff claims that Officers Morasco and Bleisch violated his civil rights secured by the Fourth Amendment and 42 U.S.C. § 1983. Plaintiff also claims that the incident was the result of Defendants' negligence and that the CHP and Officers Morasco and Bleisch are liable under three additional state law claims. Defendants seek summary judgment on all claims, including dismissal of Plaintiff's federal claim under qualified immunity. See Motion, ECF 45. For the reasons discussed below, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART.

         I. STATEMENT OF FACTS[1]

         A. Events Leading up to the Officers' Arrival on the Scene

         On the night of January 8, 2017, Plaintiff was driving a black Volkswagen Jetta in San Jose, CA. See Acosta Depo. at 45:11-14, Ex. 9 to Motion, ECF 45-1; Photographs of Acosta's Vehicle, Ex. 2 to Booth Decl., ECF 51-1. Plaintiff's vehicle was experiencing mechanical issues, described by Plaintiff as “explo[sions]” that caused the engine to “turn[] off by itself.” See Acosta Depo. at 45:1-4. Plaintiff initially pulled over near a Walgreens but was able to successfully restart his vehicle and continue driving. See Id. at 45:5-10. Plaintiff proceeded to drive down McKee Road toward U.S. Highway 101 (“US-101”) and entered US-101 heading north. See Id. at 45:11-16. After a few miles Plaintiff's vehicle made another “explosion” sound and Plaintiff pulled over and stopped on the shoulder of the connector ramp between northbound US-101 and northbound Interstate 880 (“I-880”). See Statement of Cristobal Acosta, pg. 10-11 of District Attorney Report, Ex. 10 to Motion, ECF 45-1.

         Meanwhile, Sergeant Hill was on duty in the San Jose area. See Hill Decl. ¶ 2, Ex. 2 to Motion, ECF 45-1. Officer Morasco was also working that night, January 8, 2017. See Morasco Decl. ¶ 2, ECF 46-5. Sometime after 11:00 p.m., Officer Morasco “was assisting with traffic control around an [unrelated] accident scene near the interchange between [US-]101 and [I-]880 in San Jose.” Id. Officer Bleisch was likewise working that night and assisting with traffic control around the unrelated accident. See Bleisch Decl. ¶ 2, ECF 46-3.

         At approximately 11:30 p.m., Sergeant Hill was standing outside of his patrol vehicle on a connector ramp (between northbound I-880 and northbound US-101) adjacent to the ramp where Plaintiff would ultimately stop, assisting a tow driver with a vehicle involved in the unrelated traffic collision. See Hill Decl. ¶ 2. Sergeant Hill then “heard a loud bang sound” coming from the northbound US-101 to northbound I-880 ramp behind him. See Id. Sergeant Hill walked over to the cement wall separating the two ramps and saw a black sedan, later identified as Plaintiff's Volkswagen, stopped on the right shoulder of the northbound US-101 to northbound I-880 ramp, approximately 100 yards from Hill's location. See Id. ¶¶ 2-3. From this vantage point, Sergeant Hill “saw a flash coming from Mr. Acosta's vehicle, which appeared consistent with a firearm muzzle flash or some type of explosion, and [] heard a loud bang sound that was similar to that of a gun.” Id. ¶ 3.

         Next, Sergeant Hill contacted the Golden Gate Communications Center dispatch (“Dispatch”) to report his observations. Defendants have submitted an audio recording of the dispatch clip, see Ex. 3 (lodged manually) to Motion, ECF 45-1, as well as a transcript of the first two minutes (the relevant portion) of the clip, see Dispatch Transcript, Ex. 3-A to Fong Decl., ECF 55. Sergeant Hill reported to Dispatch that “[i]t looks like somebody TC'd [traffic collision/crashed] northbound 101 to northbound 880. Uh, there's something on the right shoulder.” See Dispatch Transcript at 2:6-8. Officer Morasco, who was listening to the dispatch call, responded, “I'm in the area. I can turn around.” See Id. at 2:15-16. Sergeant Hill immediately added that “I'm not sure what happened, but something just exploded from that car or it could've been shots fired. I'm not sure.” See Id. at 2:18-20 (emphasis added).

         Dispatch then repeated back, “[p]ossibly shots fired.” See Dispatch Transcript at 2:21. Dispatch also activated a “clearance tone, ” see Id. at 2:21-25, which advises other CHP officers to stay off the radio unless it is an emergency, see Morasco Decl. ¶ 2. A few moments later, Officer Morasco confirmed that he was “[o]n [his] way” to investigate Sergeant Hill's report of an explosion or possible shots fired from the yet-to-be-identified vehicle (Plaintiff's vehicle). See Dispatch Transcript at 3:5-9.

         As these events unfolded, Officer Bleisch was listening to the dispatch broadcast and “heard Officer Morasco respond to Sergeant Hill over the radio.” See Bleisch Decl. ¶ 3. Officer Bleisch testifies that “Officer Morasco then passed my patrol vehicle in his patrol vehicle, headed toward the stopped car.” Id. After a few moments, Officer Bleisch “followed Officer Morasco to assist.” Id. Both officers had activated the overhead blue and red flashing lights on their vehicles as they approached the stopped car, automatically triggering the dash camera system (Mobile Video Audio Recording System or “MVARS”) installed on each patrol vehicle. See Bleisch Decl. ¶ 3; Morasco Decl. ¶ 3.

         B. The Officers' Arrival on the Scene and Subsequent Events

         As Officer Morasco and Officer Bleisch approached in their patrol vehicles, Plaintiff's vehicle was stopped on the right hand shoulder of the connector ramp between northbound US-101 and northbound I-880. See Bleisch Decl. ¶ 3. The officers' arrival on the scene and subsequent events were captured by the MVARS on each of the officers' two patrol vehicles.

         Defendants submitted the MVARS video recording from Officer Morasco's patrol vehicle, see Ex. 7 (lodged manually) to Motion, ECF 45-1, as well as a transcript, see Morasco MVARS Transcript, Ex. 7-A to Fong Decl., ECF 55. The Morasco MVARS video is approximately fourteen minutes in length. The first 90 seconds are of primary importance to the instant motion. In parallel, Plaintiff submitted the MVARS video recording from Officer Bleisch's patrol vehicle, see Ex. 1 (lodged manually) to Booth Decl., ECF 51-1, and an accompanying transcript, see Bleisch MVARS Transcript, Ex. 1-A to Booth Decl., ECF 56. The Bleisch MVARS video is approximately eleven and a half minutes in length. The first 125 seconds overlaps the 90-second time period from the Morasco MVARS video that is of primary importance to the instant motion.

         Officer Morasco was the first to approach Plaintiff's vehicle. The Morasco MVARS video shows Officer Morasco traveling northbound on I-880 and taking the US-101 north exit (exit 4C). Morasco MVARS Video at 00:00-00:22. Officer Morasco then went off-road, turning left and driving across a grassy area to reach the connector ramp between northbound US-101 and northbound I-880 where Plaintiff's vehicle was stopped. See Id. at 00:22-00:34. Officer Morasco activated his lights as he entered the grassy area. See Id. Officer Morasco reached the connector ramp (on which Plaintiff's vehicle was stopped farther down) at approximately the 00:34 mark, and Plaintiff's vehicle became visible a few seconds later, as Officer Morasco continued to drive along the ramp. See Id. at 00:34-0:39. The video shows Plaintiff's vehicle stopped on the right shoulder of the ramp and two lights on the rear of Plaintiff's vehicle visibly blinking. See Id. at 0:39-0:44. Officer Morasco came to a stop approximately 30 feet behind Plaintiff's vehicle. See Id. Plaintiff cannot be seen or heard on the video at this point in time. See Id. Plaintiff's vehicle had a tinted rear window. See Morasco Decl. ¶ 3; Photographs of Acosta's Vehicle, Ex. 2 to Booth Decl., ECF 51-1.

         Officer Bleisch was the second to approach Plaintiff's vehicle. The Bleisch MVARS video shows Officer Bleisch initially parked on the shoulder of the exit (exit 4C) from I-880 north to US-101 north. See Bleisch MVARS Video at 00:00-00:51. The video then shows Officer Morasco driving past Officer Bleisch, at which point Officer Bleisch begins following Officer Morasco. See Id. at 00:51-01:04. Officer Bleisch activated his lights at approximately the 01:04 mark, shortly before turning left to enter the grassy area between the two ramps. See Id. at 01:04- 01:13. Officer Bleisch reached the connector ramp (on which Plaintiff's vehicle was stopped farther down) at approximately the 01:27 mark, at which point Officer Morasco's patrol vehicle is visible farther down the ramp. See Id. at 01:13-01:27. As Officer Bleisch approaches (on the left side of Officer Morasco's patrol vehicle), Officer Morasco is visible outside of his vehicle, behind his open driver-side door. See Id. at 01:27-01:34. At the 01:34 mark, Officer Bleisch's vehicle is still moving and Plaintiff's vehicle is only partially visible. See id.

         Turning back to the Morasco MVARS video, Officer Morasco's vehicle is stationary behind Plaintiff's vehicle at this point in time. See Morasco MVARS Video at 00:44-00:53. At approximately the 00:53-00:54 mark, a loud sound emanates from Plaintiff's vehicle, followed immediately by a clearly visible puff of smoke. See Id. at 00:53-00:54. This same sound and puff of smoke is captured on the Bleisch MVARS video at approximately the 01:35-01:36 mark. See Bleisch MVARS video at 01:35-01:36.

         Upon hearing the loud sound at the 00:53-00:54 mark, Officer Morasco exclaimed, “Shit! Shots fired! Shots fired, shots fired, shots fired? 89Boy shots fired!” See Morasco MVARS Transcript at 2:7-9; see also Morasco MVARS Video at 00:54-00:59. Officer Morasco's “shots fired” language is also audible on the Bleisch MVARS video. See Bleisch MVARS Video at 01:37-01:40; Bleisch MVARS Transcript at 3:12-14. Dispatch then repeated back “Shots fired.” See Morasco MVARS Transcript at 2:10; see also Morasco MVARS Video at 00:59- 01:00. A few seconds later, Officer Morasco said, “Back up. Back up. Back up. Back up.” See Morasco MVARS Transcript at 2:11-12; see also Morasco MVARS Video at 01:01-01:04.

         At this instant-the 01:04-01:05 mark of the Morasco MVARS video-a second loud sound and puff of smoke emanated from Plaintiff's vehicle. See Morasco MVARS Video at 01:04-01:05; see also Bleisch MVARS video at 01:45-01:46. Moments later, Officer Morasco opened fire on Plaintiff's vehicle, emptying a full magazine[2] of rounds. See Morasco MVARS Video at 01:06-01:15; Morasco Decl. ¶ 12. Simultaneously, Officer Bleisch backed up his patrol vehicle a few feet and then opened fire on Plaintiff's vehicle, also emptying a full magazine of rounds. See Bleisch MVARS video at 01:47-01:57; Bleisch Decl. ¶ 9.

         No additional shots were fired. A few seconds later, Officer Bleisch yelled in the direction of Plaintiff, “Put your hands up. Let me see your f****** hands.” See Bleisch MVARS Transcript at 3:25-4:1; see also Bleisch MVARS Video at 2:04-2:07. One of the officers also said, “Drop the gun. Put your hands up.” See Morasco MVARS Transcript at 2:19-20. However, there is no evidence that Plaintiff actually possessed a gun during the encounter, nor do Defendants so argue in the instant motion. Instead, the loud sounds and puffs of smoke coming from Plaintiff's vehicle were actually caused by the vehicle “backfiring, ” although the officers state they did not know so at the time. See Morasco Decl. ¶ 11; Bleisch Decl. ¶ 10.

         After a period of time during which the officers continued to give instructions, Plaintiff exited his vehicle and positioned himself face down on the ground. See Morasco MVARS Video at 1:16-6:32. A few minutes later, Plaintiff rose from the ground, walked backwards from his vehicle in the direction of Officer Morasco's patrol vehicle, and was detained by other officers who had subsequently arrived on the scene. See Morasco Decl. ¶ 14; Bleisch Decl. ¶ 11; see also Morasco MVARS Video at 7:09-8:40.

         After the scene was “stabilized, ” Sergeant Hill “requested emergency medical [personnel] to immediately respond to the scene to provide treatment to Mr. Acosta.” See Hill Decl. ¶ 9. Sergeant Hill notes that “[i]t appeared that Mr. Acosta received a grazing gunshot wound to his head as a result of the incident.” Id. Indeed, Plaintiff had been struck by one of the bullets fired by Officer Morasco and Officer Bleisch. See Photo of Acosta Head Wound, Ex. 11 to Motion, ECF 45-1; see also Opp'n at 5, ECF 51 (stating that “only one of the bullets struck Mr. Acosta”). Plaintiff received emergency medical aid at the scene and was then transported to the Santa Clara County Regional Medical Center. See Hill Decl. ¶ 9. Around this time, the San Jose Police Department (“SJPD”) began an investigation into the incident. See Hill Decl. ¶ 10; SJPD Report at 50, Ex. 8 to Motion, ECF 45-1.

         Plaintiff “sustained a 1.5cm laceration to the back of [his] head” which was considered “non life threatening.” See SJPD Report at 50. Plaintiff was released from the medical center at 2:43 a.m. on January 9, 2017, after which the SJPD transported Plaintiff to their office for an interview. See SJPD Report at 50-51. Later that morning, an SJPD officer drove Plaintiff to an address of Plaintiff's request in Union City, CA.

         The District Attorney for the County of Santa Clara provided a Report on the Non-Fatal Shooting of Cristobal Acosta (“District Attorney Report”). See District Attorney Report, Ex. 10 to Motion, ECF 45-1. In evaluating the officers' potential criminal liability, the District Attorney Report considered “various narrative reports, documenting interviews of the involved officers and civilian witnesses, audio recordings of those interviews, and crime scene details.” See District Attorney Report at 3. The report concluded that under the totality of the circumstances “Officers Morasco and Bleisch reasonably and actually believed that the driver of the stopped car, Cristobal Acosta, posed a threat of imminent death or great bodily injury, either to the officers or others, ” and that both officers “were justified in their use of force in response to an immediate threat of great bodily injury or death.” See Id. at 23. Thus, the District Attorney found that the officers' conduct “is legally justifiable and no criminal liability attaches.” See id.

         C. Statements regarding whether the Backfires sounded like Gunshots

         As previously discussed, Sergeant Hill heard some of the “backfires” from Plaintiff's vehicle live and contemporaneously reported that “I'm not sure what happened, but something just exploded from that car or it could've been shots fired. I'm not sure.” See Dispatch Transcript at 2:18-20 (emphasis added). Officer Morasco, who was approximately 30 feet behind Plaintiff's vehicle when another backfire occurred (the first “loud sound” in the Morasco MVARS video) contemporaneously reported, “Shots fired! Shots fired, shots fired . . . 89Boy shots fired!” See Morasco MVARS Transcript at 2:7-9.

         Officer Bleisch, for his part, submits testimony that he “heard the sound of a gunshot from the vicinity of Mr. Acosta's vehicle” and that “[a] few seconds later, I heard a second shot from the vehicle.” See Bleisch Decl. ¶¶ 7-9. And Plaintiff acknowledges that he told policeman who were interviewing him on January 9, 2017, “[my] car backfiring sounded like gunshots.” See Acosta Depo. at 47:6-9. When asked why he said that, Plaintiff explained that “[t]he first thing that came to my mind, maybe a gunshot. That's the first thing that came to my mind.” See Id. at 47:10-13.

         In addition, one civilian nearby the scene described hearing a “loud pop” and then “what she thought was a gunshot.” See Statement of Sammanika Martica, pg. 11-12 of District Attorney Report, Ex. 10 to Motion, ECF 45-1. This civilian “ran” after the “second one [that] sounded like a gunshot.” See Id. On the other hand, a separate civilian witness (Alberto Gonzalez-Pinales), who had a clear visual of the highway and the involved vehicles, heard a “loud bang” coming from Plaintiff's vehicle and was “unsure as to what the noise was, but believed it was the vehicle having mechanical issues.” See Statement of Alberto Gonzalez-Pinales, pg. 12-13 of District Attorney Report, Ex. 10 to Motion, ECF 45-1.

         D. Procedural History and Plaintiff's Claims

         Plaintiff filed this action in state court on January 17, 2018. See Compl., Ex. A to Notice of Removal, ECF 1. On February 14, 2018, Defendants removed the action to federal court. See Notice of Removal, ECF 1. On July 30, 2018, the Court granted the parties' stipulation permitting Plaintiff to file a first amended complaint (“FAC”), see ECF 24, which Plaintiff filed on August 2, 2018, see FAC, ECF 27. On October 9, 2018, the Court granted the parties' stipulation permitting Plaintiff to file a second amended complaint (“SAC”), see ECF 38, which Plaintiff filed on October 10, 2018, see SAC, ECF 39. The SAC is the operative complaint and names four defendants: the CHP, Sergeant Hill, Officer Morasco, and Officer Bleisch. See generally SAC. Defendants answered the SAC on October 25, 2018. See Answer, ECF 42.

         Plaintiff's SAC pleads the following five causes of action:

(1) Violation of Civil Rights secured by the Fourth Amendment to the U.S. Constitution and 42 U.S.C. § 1983 (against Officers Morasco and Bleisch);
(2) False Arrest and Imprisonment pursuant to Cal. Gov't Code §§ 815.2(a) & 820.4 (against the CHP and Officers Morasco and Bleisch);
(3) Battery pursuant to California state law and Cal. Gov't Code § 815.2(a) (against the CHP and Officers Morasco and Bleisch);
(4) Violation of the Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1 (against the CHP and Officers Morasco and Bleisch); and
(5) Negligence under California law and Cal. Gov't Code §§ 815.2(a) & 820.4 (against all Defendants).

See generally SAC. The SAC also requests punitive damages. See id.

         Defendants filed their motion for summary judgment on January 24, 2019, seeking judgment in their favor on all claims. See Motion, ECF 45. Plaintiff submitted his opposition brief on March 15, 2019, see Opp'n, ECF 51, and Defendants submitted their reply brief on March 26, 2019, see Reply, ECF 52. The Court held a hearing on Defendants' motion for summary judgment on May 2, 2019 (“the Hearing”).

         II. EVIDENTIARY OBJECTIONS

         Under Federal Rule of Civil Procedure 56(c), a party can object to an opposing party's declarations and evidentiary material if it is not in a form that “would be admissible in evidence.” Defendants object to portions of the Declaration of Roger Clark (ECF 51-2) submitted by Plaintiff in opposition to Defendants' motion for summary ...


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