United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [RE: ECF
LAB SON FREEMAN, United States District Judge.
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.
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.
STATEMENT OF FACTS
Events Leading up to the Officers' Arrival 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.
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.
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.
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).
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.
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.
The Officers' Arrival on the Scene and Subsequent
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.
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.
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.,
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.
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
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
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 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.
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.
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
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.
“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.
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.
Statements regarding whether the Backfires sounded like
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.
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.
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.
Procedural History and Plaintiff's Claims
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.
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
(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.
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
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 ...