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Rivera v. Cater

United States District Court, E.D. California

October 11, 2019

SIERRA RIVERA, individually and as successor in interest to JESSE ATTAWAY, Deceased; BOBBI ATTAWAY, individually and as successor in interest to JESSE ATTAWAY, Deceased; JIM ATTAWAY, individually, Plaintiffs,



         Plaintiffs Sierra Rivera and Bobbi Attaway, the daughters of the late Jesse Attaway (“Attaway” or “decedent”), along with decedent's father, Jim Attaway, bring this action individually and on behalf of the decedent alleging that Sheriff's Deputies Andrew Cater (“Cater”) and Bao Mai (“Mai”), Sheriff of Sacramento County Scott Jones (“Jones”), and the County of Sacramento (“the County”) violated Attaway's civil rights under state and federal law following his death on September 23, 2016.

         Plaintiffs Sierra Rivera and Bobbi Attaway, as Attaway's successors in interest, allege violation of Attaway's Fourth Amendment right to be free from unreasonable seizure and excessive force pursuant to 42 U.S.C. § 1983; violation of Attaway's rights under Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1; claims for negligence, wrongful death, assault, and battery under California common law; and municipal liability. (First Am. Compl. (“FAC”) (Docket No. 22).) Then, in their individual capacities, plaintiffs Sierra Rivera, Bobbi Attaway, and Jim Attaway allege violation of their Fourteenth Amendment right of substantive due process pursuant to 42 U.S.C. § 1983 for denial of familial associations with Attaway. (Id.) Defendants successfully obtained dismissal on plaintiffs' claims for negligence against the County and for municipal liability against Jones and the County. (Docket No. 30.)

         Defendants now move for summary judgment or, in the alternative, partial summary judgment on plaintiffs' remaining claims. (Docket 44-1.) Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In deciding the motion, the court must view the evidence in the light most favorable to the non-moving party “so long as their version of the facts is not blatantly contradicted by the video evidence.” Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) (citing Scott v. Harris, 550 U.S. 372, 378-79 (2007)).

         I. Facts

         Viewed in the light most favorable to the plaintiffs, the evidence shows the pertinent facts as follows:

         Cater and Mai fatally shot Attaway following reports of a suspected burglary shortly after 5:00 a.m. on September 23, 2016. According to initial reports, Attaway entered a home in Fair Oaks, Sacramento unannounced and uninvited. (FAC ¶ 17.) The homeowner discovered Attaway standing in the front room, holding a carton of milk apparently taken from the refrigerator. (Id.) Attaway allegedly appeared startled when confronted by the homeowner and expressed concerns that the police were after him. (Id.) After begging the homeowner not to hurt him, Attaway left the home without further incident or harm to the home's occupants. (Id.) Attaway then attempted to enter another home through a partially open sliding glass door. (FAC ¶ 18.) When confronted by the home's residents, Attaway backed away from the door, again begging not to be hurt. (Id.) Attaway left without causing any harm to the people or property. (Id.)

         Attaway's behavior prompted multiple 911 calls, and Deputies Cater and Mai responded to 911 dispatch's request for assistance. (Id. ¶ 19.)

         A video from an in car camera mounted on the dashboard of Deputy Cater's vehicle (“ICC Video”, Docket No. 48, Ex. 3) vividly captures what transpired once the deputies encountered Attaway. If it fairly can be said that a picture is worth a thousand words, this video speaks volumes. It was mounted at the front of the deputies' patrol car in such a position that it shows what happened from their perspective from beginning to end. While the parties disagree in their characterization of the movements Attaway made and what intention can be inferred from them in the seconds that followed, the videotape indisputably shows what the deputies saw, heard and did at the crucial time relative to this motion. The court relies heavily upon it in deciding the motion.

         As the deputies' patrol vehicle approached Attaway, Deputy Mai yelled to Attaway, “Hey, come here. Come here.” (ICC Video 5:14:32.) Attaway ignored these commands and walked away from the deputies. (ICC Video 5:14:32-5:14:38.) Attaway appeared to touch his face (ICC Video 5:14:39) and Cater warned Mai that he's “got something in his hands.” (ICC Video 5:14:40.) The deputies exited their vehicle (ICC Video 5:14:41), while Attaway continued to walk away, turning his body sideways with his left shoulder pointing toward them. (ICC Video 5:14:43-5:14:45.) His right hand was out of the deputies' (and the camera's) view. (Id.)

         The deputies again commanded Attaway to put his hands up (ICC Video 5:14:43-5:14:45), and Attaway failed to comply. Instead, Attaway raised his arms, clasped his hands together in front of him, cocked his head between his arms, and screamed “Ahhh!”. (ICC Video 5:14:46-5:14:49.) Cater yelled “Coming at me!” (ICC Video 5:14:46-5:14:47) and again commanded Attaway to get his hands up. (ICC Video 5:14:47.) Attaway did not raise his hands, and the deputies fired at least fourteen shots at him. (ICC Video, 5:14:46-5:14:50.) Attaway fell to the ground, rolled, and then raised up onto his knees. (ICC Video 5:14:59.) Attaway began to raise his arms again (ICC Video 5:15:02) and Cater fired the last shots. (ICC Video 5:15:02.)

         Attaway was struck four times: fatally in the head, and in the abdomen, left flank, and left foot. (Pls.' Separate Statement of Disputed Facts (“Pls.' Disputed Facts”) ¶ 4, 10, 59-61 (Docket No. 47).) The deputies claim to have found Attaway's wallet approximately four feet away from his right foot after the shooting. (FAC ¶ 26.)

         II. Federal Claims

         Title 42 U.S.C. § 1983 provides that “[e]very person who, under color of [state law] subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” However, public officials sued under § 1983 may be immune from suit under the doctrine of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

         Faced with a claim of qualified immunity, the court may first address the question of whether a constitutional violation has been shown and then determine whether defendants are entitled to immunity, or it may address the question of qualified immunity without first deciding whether a constitutional violation has been proven. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Given the facts and circumstances of this case, this court elects to “resolv[e] immunity questions at the earliest possible stage in litigation” and determine whether qualified immunity applies first. See Id. at 232 (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).

         A. Qualified Immunity

         In a suit for damages under § 1983, public officers charged with violation of a federal statutory or constitutional right are entitled to qualified immunity unless the unlawfulness of their conduct was clearly established at the time of the alleged conduct. District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (citing Reichle v. Howards,566 U.S. 658, 664 (2012)). Qualified immunity acts as “an immunity from suit rather than a mere defense to liability.” Mitchell, supra. It “provides ample ...

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