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Andrews v. City of Pittsburg

United States District Court, N.D. California

July 3, 2019

WORSTEN MACK ANDREWS, Plaintiff,
v.
CITY OF PITTSBURG, et al., Defendants.

          ORDER DENYING SUMMARY JUDGMENT MOTION RE: DKT. NO. 62

          JOSEPH C. SPERO, CHIEF MAGISTRATE JUDGE

         I. INTRODUCTION

         On 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.[1] 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.[2]

         II. BACKGROUND

         A. Factual Background

         Sgt. 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.

         At 1:00 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.”[3] Id. The Plan contained several pictures of Andrews. Id.

         Under 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].”[4] 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 Dangerous.” Id.

         At the 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 operational briefing).

         Sgt. 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 identity).

         After 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.

         According 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.

         At this 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.

         Sgt. Keefe describes the seconds before he shot Andrews as follows:

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).

         According 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. ¶ 25.

         The 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 his waistband.”

         Similarly, 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.

         In his 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.

         Andrews 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 ...


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