United States District Court, N.D. California
ORDER DENYING SUMMARY JUDGMENT MOTION RE: DKT. NO.
C. SPERO, CHIEF MAGISTRATE JUDGE
November 17, 2015, a City of Pittsburgh police officer, Sgt.
Michael Keefe, shot Plaintiff Worsten Andrews. Based on that
incident, Andrews asserts claims against Sgt. Keefe for
excessive force under 42 U.S.C. § 1983 and battery; he
asserts a claim for negligence per se against the City of
Pittsburgh. Presently before the Court is
Defendants' City of Pittsburgh and Officer Keefe's
Motion for Summary and/or Partial Summary Judgment
(“Motion”). A hearing on the Motion was held on
Friday, June 28, 2019 at 9:30 a.m. For the reasons stated
below, the Motion is DENIED.
Keefe was hired by the City of Pittsburgh Police Department
(“PPD”) as a police officer in 1999 and had
worked for PPD for over sixteen years at the time of the
incident that is the subject of this action
(“Incident”), which occurred on November 17,
2015. Rothman Decl., Ex. E (“Keefe Decl.”) ¶
2. According to Sgt. Keefe, at the time of the Incident he
was working as an Intelligence Officer with the
Investigations Team and worked with the Neighborhood Police
Team (“NPT”) to locate and capture fugitives.
Id. ¶ 6. In that capacity, he worked closely
with Detectives Reddoch and Palma (“the
Detectives”). Id. Typically, the Detectives
conducted surveillance to locate the fugitive while Officer
Keefe carried out the arrest. Id.
p.m. on the day of the Incident, Sgt. Keefe, Officer Buck (a
Canine Handler and Field Training Officer) and the Detectives
attended an operational briefing on the apprehension of
Worsten Andrews, who was wanted on outstanding felony
warrants. Id. ¶ 10; see also Rothman
Decl., Ex. F (“Buck Decl.”) ¶¶ 3, 5.
Sgt. Keefe and Officer Buck were given an “operational
plan packet” (“Plan”) containing materials
about Andrews, which they reviewed and discussed at the
briefing. Keefe Decl. ¶ 10; Buck Decl., ¶ 6;
see also Rothman Decl., Ex. G (Operational Plan
Packet). The Plan describes the “mission” of the
operation as follows: “To safely conduct surveillance
at the listed location [555 N. Parkside Dr., Pittsburgh, CA]
and apprehend (S) Worsten Andrews in the event he is seen at
the residence.” Rothman Decl., Ex. G. Under the heading
“Special Instructions/Contingency Plan, ” it
states that the surveillance that was planned related to an
“ongoing PC 245 case.” Id. The Plan
contained several pictures of Andrews. Id.
the heading “Criminal History, ” the Plan
contained the following list of violations of the California
Penal Code, California Vehicle Code and California Health and
Safety Code: “PC 417(a)(2) [drawing or exhibiting a
firearm in a “rude, angry, or threatening manner”
or using it unlawfully “in any fight or
quarrel”], PC 187 [murder], PC 215 [carjacking], PC
245(a)(2) [assault with a deadly weapon], PC 211 [robbery],
PC 12021 [prohibition on possession of a firearm by convicted
felon], PC 422 [criminal threats], PC29800 [prohibition on
possession of firearm by individual who has an outstanding
felony warrant], CVC 2800.2 [driving in willful or wanton
disregard for safety of persons or property while fleeing
from pursuing police officer], PC 236.1(a) [human
trafficking], H&S 11377 [unauthorized possession of
controlled substance].” Documents attached to the Plan
reflect that there was at least one active warrant for
Andrews' arrest for violation of the terms of his parole,
with a caution that Andrews was “Armed and
operational briefing, Sgt. Keefe learned that Andrews was
“wanted in relation to a firearm assault which had
occurred weeks earlier after [Andrews] had moved into the
house at 555 N. Parkside Dr. in Pittsburgh, but was asked to
move out.” Keefe Decl. ¶ 10(a). Keefe was told
that during that incident Andrews held a loaded firearm to
his roommate's head and threatened to kill him.
Id. Keefe also learned from the Detectives that
several informants had told them that Andrews always carries
a gun. Id. ¶ 10(d); see also Rothman
Decl., Ex. G (Andrews Dep.) at 46-47 (testifying that he
always carried a loaded gun) & 63 (testifying that
“the majority of the time” he slept with his gun
under his pillow). In addition, Officer Keefe learned of
Andrews' violent criminal history, which included felony
convictions for “homicide, human trafficking, assault
with a firearm, brandishing a firearm, carjacking by force or
fear, robbery, being a felon in possession of a firearm,
criminal threats and reckless evasion of police (in a
vehicle).” Keefe Decl. ¶ 10(e). According to Sgt.
Keefe, he also learned that Andrews had recently been
arrested for human trafficking in another county and was
found to have a handgun on him when he was arrested.
Id. ¶ 10(f). He learned that Andrews was on
parole as well as probation and was categorized as a
“parolee at large.” Id. ¶ 10(g);
see also Buck Decl. ¶ 6 (stating that he had
received the same information about Andrews at the
Keefe also states in his declaration that he
“independently recalled an incident that had occurred
about two weeks prior, when PPD officers had gone to 555 N.
Parkside Dr. to arrest [Andrews]” for the assault on
his roommate and on “other outstanding warrants.”
Keefe Decl. ¶ 10(b). According to Sgt. Keefe, Andrews
escaped arrest by showing the officers a fake Id.
card. Id.; see also Rothman Decl., Ex. G
(Andrews Dep.) at 69-72 (testifying that police came to 555
while on parole after serving this sentence Andrews became a
“parolee at large” as a result of violating the
terms of his parole and was arrested for (and convicted of)
fleeing the police in a vehicle, id. at 36-38; 3)
Andrews was arrested for, and convicted of, being a felon in
possession of a firearm at least once, id. at 38-39;
and 4) he was arrested for threatening or assaulting another
person with a firearm but the charge was pled down to
criminal threats. Id. at 42. N. Parkside about two
weeks before the incident with “guns drawn” and
searched the house and that Andrews showed them a fake
Id. because he was a “parolee at large”
and would have been arrested if he had revealed his real
the operational briefing, at approximately 2:00 p.m., Sgt.
Keefe, Officer Buck and the Detectives commenced the arrest
“sting, ” with the Detectives watching the house
(555 N. Parkside Dr.) in order to alert Sgt. Keefe and
Officer Buck when Andrews left the residence; Sgt. Keefe and
Officer Buck were positioned on nearby streets. Keefe Decl.
¶ 11-12. According to Sgt. Keefe, after he was in
position he heard Detective Reddoch advise that Andrews had
left the residence and was wearing a red long sleeve shirt
and a tan puffy vest. Id. ¶ 12. About five
minutes later, an individual matching this description came
around the corner and approached Sgt. Keefe's vehicle, an
unmarked black SUV. Id. ¶¶ 9, 13. Sgt.
Keefe believed that the individual was Andrews. Id.
¶13. Sgt. Keefe was wearing his PPD uniform and
equipment that clearly identified him as a PPD officer.
Id. ¶ 8.
to Sgt. Keefe, at this point he exited his vehicle, activated
his body camera and prepared to speak to Andrews, but he
stayed on the opposite side of the vehicle because he feared
that Andrews was armed. Id. ¶ 13. Sgt. Keefe
also believed that Andrews already knew there was an
outstanding warrant for his arrest as PPD officers had tried
to arrest him two weeks earlier. Id. Sgt. Keefe
states in his declaration that because he was alone at this
point, he used a “ruse to buy [him]self time for backup
to arrive” in which he attempted to calmly converse
with Andrews. Id. At the same time he was speaking
to Andrews he called for backup. Id. ¶ 14. Sgt.
Keefe states that when he spoke to Andrews, Andrews initially
ignored him; when Andrews did stop he “looked
uncomfortable and would not face [Sgt. Keefe]
squarely.” Id. ¶ 15. According to Sgt.
Keefe, Andrews was also “blading” his body away
from the Sgt. Keefe, bolstering the officer's belief that
Andrews was trying to hide a weapon. Id. Sgt. Keefe
states that Andrews was edging away from him as they
conversed and seemed to be “readying himself to
flee.” Id. He says that he asked Andrews for
identification in a further effort to stall Andrews and that
Andrews handed him an Id. while still
“blading” his body, acting “antsy”
and edging away from him. Id.; see also
Buck Decl. ¶ 7 (stating that he observed Sgt. Keefe
talking to Andrews and that Andrews looked “extremely
nervous and uncomfortable” and was avoiding eye
contact). Believing that Andrews was preparing to flee, Sgt.
Keefe walked around the vehicle so that it was no longer
between them and he was closer to Andrews, and he instructed
Andrews to “hold on, don't go anywhere.”
Keefe Decl. ¶ 15.
point, Sgt. Keefe heard Officer Buck's canine barking,
alerting him that backup had arrived. Id. ¶ 17.
Sgt. Keefe asked Andrews if he had any weapons on him and
Andrews “instantly took off running.”
Id. Sgt. Keefe states that he ordered Andrews to
“stop” and then “took off running”
after Andrews. Id. ¶ 18; see also Buck
Decl. ¶ 10 (stating that he heard Sgt. Keefe yell
several times for Andrews to stop). According to Sgt. Keefe,
within seconds he attempted to stop Andrews with his Taser,
knowing that Andrews was likely armed and that it would be
extremely dangerous to try and tackle him. Id.
Although a taser dart attached itself to Andrews' puffy
vest, it had no effect on Andrews. Id. Sgt. Keefe
states that he also knew that although Officer Buck had
arrived with a canine, the canine likely would not be used
because Sgt. Keefe was between Andrews and the canine,
raising the possibility that the canine would mistake Sgt.
Keefe for Andrews. Id. ¶ 19.
Keefe describes the seconds before he shot Andrews as
22. When I was approximately fifteen feet away from
[Andrews], I saw him reach his right hand towards the front
right side of his waistband. At that time, [Andrews] turned
to a gallop-type movement, a movement I have seen before when
fleeing suspects have pulled weapons from their waistband
area. I believed [Andrews] was reaching for his gun.
23. As he was reaching for his waistband, [Andrews changed
running direction. I yelled, “He's going for his
waistband!” and transferred from my Taser to my
firearm, believing [Andrews] was reaching for his gun. As I
started to unholster my weapon, I clearly saw a black firearm
in Plaintiffs right hand. With the gun in his right hand,
[Andrews] furtively moved his right shoulder back towards me,
as if he was going to turn. In the moment, I believed he was
attempting to turn to shoot at me or [Officer] Buck . . . .
As I lifted my firearm towards [Andrews], he made another
very quick and abrupt turning motion with the gun in his hand
and I fired one shot at him, believing that if I did not do
so, [Andrews] would have turned all the way around to face me
to shoot and potentially kill or seriously injure myself or
[Officer] Buck. All of this happened in a very quick time
period, mere split seconds.
Id. ¶ 22-23; see also Buck Decl.
¶¶ 12-13 (stating that in the split seconds before
Sgt. Keefe shot Andrews, Officer Buck observed Andrews reach
for his waist band and believed Andrews was reaching for a
gun; and also stating that he saw Andrews pull something from
his waistband and “abruptly swing his body, turning his
body as though trying to face Sgt. Keefe, ” leading
Officer Buck to conclude that Andrews was turning to shoot
Sgt. Keefe and/or Officer Buck).
to Sgt. Keefe, seeing that Andrews had been shot, and no
longer observing a gun in Andrews' hand, Sgt. Keefe saw
no immediate threat and did not fire any further shots.
Id. ¶ 24. Sgt. Keefe states that he
suspected that Andrews had thrown his gun towards the
residence he had been shot in front of. Id. ¶
body camera footage from Sgt. Keefe and Officer Buck is
consistent with the accounts of the officers in some ways but
not in others. In the footage, Andrews is wearing a red shirt
and a tan puffy vest, but the shirt is short-sleeved rather
than long-sleeved, as stated in Sgt. Keefe's declaration.
Further, Andrews appears to respond promptly when Sgt. Keefe
addresses him, and in the first few moments of the exchange
between Sgt. Keefe and Andrews, Andrews is looking directly
at the camera, apparently contradicting Sgt. Keefe's
statements that Andrews initially ignored him and then
refused to look at him. Consistent with Sgt. Keefe's
account, Sgt. Keefe can be heard in the body camera footage
asking, “do you have any weapons on you dude” at
2:01 and Andrews can be seen turning away within a split
second, and then starting to run. Sgt. Keefe can then be
heard to say, “hold on bro” but it is not clear
from the body camera footage what further commands (if any)
Sgt. Keefe made while he was pursuing Andrews. Although some
yelling can be heard, it is unintelligible. Thus, the footage
does not clearly confirm or contradict the statements of the
officers that Sgt. Keefe ordered Andrews to
“stop” or yelled that “he's going for
the body camera footage does not clearly support or
contradict Sgt. Keefe's statement that he shot Andrews
just after Andrews pulled out his gun and seemed to be
turning. There is no doubt that Andrews can be seen in the
footage bending his right arm towards his right hip area as
he flees and there is at least one frame of the footage in
which an object that looks like a gun can be seen in
Andrews' right hand, at 2:08. See Rothman Decl.,
Ex. K (screenshot from Sgt. Keefe's body camera footage
at 2:08). It is unclear, however, at what point Andrews
actually threw the gun and how many seconds elapsed before
Sgt. Keefe shot Andrews. The body camera footage is jerky and
the officer was running with the sun in front of him, with
the result that Andrews is sometimes in silhouette and his
image is difficult to make out at some points. His right
hand, in which he had been holding a gun, cannot always be
seen. Nor is the gunshot audible and it is not obvious that
Andrews has been shot until 2:12 on the body camera footage
(though a jury could reasonably conclude that he was shot
before that). Drawing all reasonable inferences in favor of
Andrews, and having viewed the body camera footage many
times, the Court concludes that a reasonable jury could find,
as a matter of fact, that Sgt. Keefe shot Andrews up to four
seconds after Andrews had thrown away the gun. The Court
further concludes that the movements that Sgt. Keefe
described as “furtive” may or may not be found by
a jury viewing the body camera footage to be movements that a
reasonable officer would perceive to be threatening.
deposition, Andrews testified that at the time Sgt. Keefe
stopped him, he was carrying a loaded gun in a holster under
his clothing, on his right hip. Rothman Decl., Ex. H (Andrews
Dep.) at 66-67. He also testified that he fled from Sgt.
Keefe because he was a parolee at large at the time of the
Incident and because he had “contraband” in his
pockets. Id. at 72-75. Andrews confirmed that he was
aware at the time of the Incident that there was a warrant
out for his arrest. Id. at 71. Andrews testified
that while he was running, he threw his gun and other items
that were in his pockets away from him; he said that he threw
his gun over his left shoulder because he wanted to throw it
over a gate and towards a house rather than into the street,
which was to his right. Id. at 68.
reviewed Officer Keefe's body camera footage during his
deposition and identified the object in his hand at 2:08 of
the footage as his pistol. Id. at 90. He testified
that the body camera footage shows that a split second
earlier his right arm was bent and that he could have been
reaching for his gun or for his pockets, though he didn't
specifically remember making these movements and wasn't
sure if he was reaching for his gun. Id. at 88-90.
He also testified that once he had removed the gun from its
holster he can be seen in the footage twisting to the left as
he moved to throw the gun over the fence and into an adjacent
yard. Id. at 90. According to Andrews, when he
turned slightly to throw his gun, he was turning
away from Sgt. Keefe. Id. at 144. He
testified that he thought he was shot at 2:10 on Sgt.
Keefe's body camera footage but then testified that he
was “not sure, ” saying “I don't
believe he even shot me yet.” Id. at 98.
Andrews testified that he ...