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Elkins v. California Highway Patrol

United States District Court, E.D. California

July 6, 2016

ESTATE OF CECIL ELKINS, JR., et al., Plaintiffs


         This case stems from a fatal confrontation between decedent Cecil Elkins, Jr. ("Elkins") and the last remaining defendant, California Highway Patrol ("CHP") Officer Hipolito Pelayo ("Pelayo"). Plaintiffs are the estate and family members of Elkins, and they allege various claims under 42 U.S.C. § 1983 and California state law. Pelayo now moves for summary judgment on the claims against him. For the reasons that follow, Pelayo's motion will be granted.


         Summary judgment is proper when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

         Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Herbert Schenk, P.C., 523 F.3d 915, 923 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "‘rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).

         The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010). While a "justifiable inference" need not be the most likely or the most persuasive inference, a "justifiable inference" must still be rational or reasonable. See Narayan, 616 F.3d at 899. Summary judgment may not be granted "where divergent ultimate inferences may reasonably be drawn from the undisputed facts." Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2015); see also Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1175 (9th Cir. 2003). Inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Fitzgerald v. El Dorado Cnty., 94 F.Supp.3d 1155, 1163 (E.D. Cal. 2015); Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008). ""A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). The parties have the obligation to particularly identify material facts, and the court is not required to scour the record in search of a genuine disputed material fact. Simmons v. Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir. 2010). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.


         On the evening of November 11, 2012, Elkins led City of Tulare police officers on a high speed vehicle chase after an officer saw Elkins burglarizing a car in the Tulare County Fairgrounds parking lot. DUMF 1. The vehicle pursuit ended after Elkins crashed his truck into a walnut orchard, but Elkins successfully fled from the officers on foot. See id.

         On November 12, 2012, at 6:55 a.m., Elkins had an encounter with members of the City of Tulare Police Department. See Marvin Dec. ¶¶ 1, 7-17. Elkins ran from Officer Chris Marvin into a stolen car that was parked in a driveway. See id. at ¶¶ 7-11, 15. A Tulare Police patrol vehicle arrived and parked behind Elkins's stolen car. See id. at ¶ 11. Elkins then drove in reverse at a high speed into the occupied patrol vehicle. See id. at ¶ 12.[2] Officer Marvin drew his firearm and ordered Elkins to stop. See id. at ¶¶ 13-14. Elkins quickly accelerated his vehicle towards Officer Marvin. See id. at ¶ 14. Officer Marvin had to jump "a couple of feet" to avoid being hit by Elkins's car. See id. Elkins's car came within a foot of hitting Officer Marvin. See id. Officer Marvin discharged his firearm nine times at Elkins, as Elkins fled in the stolen car. See id. at ¶ 15. Two of Officer Marvin's shots appear to have hit Elkins in the arm. See Romero Dec. ¶ 28; Short Depo 55:10-56:3;[3] see also PUMF 1. Elkins drove the car through two yards (including fences) before crashing the car into a tree in a residential yard. See Marvin Dec. ¶ 16 & Ex. A. Elkins exited the car, ran to another car that was nearby and had been left running, and fled the scene in that car. See id. at ¶ 17. This stolen vehicle was later found totally burned-out. See id.

         The two Tulare police officers eventually identified Elkins as the person involved in the assaults against them, and Officer Marvin was 100% certain of Elkins's identity after he identified Elkins in a photo-lineup. See DUMF 5; Marvin Dec. ¶ 20. Due to Elkins's violent behavior towards the two officers and the lateness of the day by the time Elkins had been identified, it was decided to wait until daylight the next day (November 13, 2012) to pursue and apprehend him. See DUMF 6; Kelly Depo. 23:21-24:11.

         On November 13, 2012, Elkins was wanted by the Tulare Police Department for attempted homicide on a Tulare police officer. JUMF 7. Tulare Police Sergeant Fred Ynclan ("Ynclan") requested the assistance of the Tulare County Agencies Regional Gang Enforcement Team ("TARGET") in conducting surveillance on Elkins at a location in the town of Pixley, California. See DUMF 9; PUMF 4. Pelayo was assigned to TARGET, which is a multi-agency law enforcement task force. See DUMF 8; PUMF 5.

         A briefing took place on November 13, 2012 at 2:00 p.m. at the Tulare County Sheriff's Department substation in Pixley concerning the need for surveillance and apprehension of Elkins that day. DUMF 10; see also PUMF 6. The briefing was led by Ynclan, and was attended by inter alia Pelayo, Tulare Police Detective Jesse Guzman ("Guzman"), Special Agent Frank Navarro, and Commander Michael Haroldsen. See DUMF 11. All attendees of the briefing were informed: (1) Elkins was wanted for serious crimes, including ramming a police car two times and attempting to run over another police officer, which caused the officer to fire shots; (2) Elkins might be using methamphetamine; and (3) Elkins would likely do "whatever it takes to get away from law enforcement." See DUMF's 22, 23. The attendees were requested to set up surveillance at the home of Elkins's father in Pixley to see if Elkins could be located there. DUMF 24. The plan was to use TARGET to conduct surveillance on Elkins and then have SWAT apprehend Elkins if he was confirmed to be at the location. DUMF 25. All attendees were given a booking photo of Elkins and a "Be On the Lookout - Officer Safety" bulletin ("BOLO") concerning Elkins. See DUMF's 12, 13. The BOLO stated that on November 12, 2012: (1) Elkins had been identified driving a stolen vehicle, had fled on foot, and then fled away from Officer Marvin in a stolen car; (2) Elkins had attempted to ram an occupied marked police car by driving it in reverse into the police car; (3) Elkins then drove his vehicle forward towards Officer Marvin; (4) Officer Marvin fired several shots at Elkins; and (5) Elkins fled in an additional stolen vehicle that was later found burned-out near Pixley. See Pelayo Dec. Ex. F; DUMF's 14-17. The BOLO also stated that Elkins had been involved in a police pursuit on November 11, 2012, when he drove his truck into an orchard and collided with a tree. DUMF 18. The BOLO stated that if Elkins is located, officers should "use caution." See DUMF 19. The officers at the briefing concluded that Elkins was potentially violent, especially to law enforcement. See DUMF 21. Pelayo was not told that Elkins was possibly armed with a gun. See PUMF 10.

         Sometime after the briefing, the TARGET members began their surveillance of the Elkins home in Pixley. Haroldsen and Navarro were in one car and were set up "on point" near the Elkins home (they could see the front of the house). See DUMF 28. Ynclan conducted surveillance from a nearby motel parking lot. DUMF 29. Pelayo had the BOLO and mug shot of Elkins, and was set up about one and a half blocks away from the Elkins residence. See DUMF's 26, 27. Pelayo remained at this location for about 30 minutes. See DUMD 26.

         Eventually, Haroldsen and Ynclan saw Elkins's father arrive home. See DUMF 30. Haroldsen saw a second vehicle drive up to the Elkins home. See DUMF 31. Ynclan also saw the second car drive up, and saw a male exit the home and then enter the car. DUMF 32. Haroldsen ordered someone from TARGET to drive by the home and see who had driven up and who had entered the car. DUMF 33.

         Pelayo drove by the home in his unmarked vehicle. DUMF 34. Pelayo identified the male who had exited the house and gotten into the car as Elkins, and noted that the driver of the car was a female (who was later identified as Christie Short). See DUMF 35. As Pelayo drove by, Elkins slid down in the passenger seat so only the top of his head was visible. DUMF 36. Pelayo radioed that he believed that he had been "made" or identified as an officer. See DUMF 37. Short's car then drove off, and was followed by three TARGET vehicles containing five law enforcement agents, including Pelayo. See DUMF 38. Short's car eventually stopped at a gas station about two blocks away from the Elkins home. See DUMF 39. As soon as Short's car pulled into the gas station, Elkins jumped out of the car and began to run. See DUMF 40.

         While Short's car was being followed, Haroldsen and Ynclan were engaged in radio communication to have a "stop car"/marked vehicle in position to stop and arrest Elkins. DUMF 41. Because Short's car stopped at the gas station so soon, the plan changed from finding a marked car to make the arrest of Elkins, to having the surveillance team make the arrest. DUMF 42. Haroldsen and Navarro's vehicle pulled in behind Short's car, and Pelayo pulled next to Haroldsen/Navarro. See DUMF 43. Pelayo and Navarro exited their vehicles and ran after Elkins. See DUMF's 44, 45; PUMF 17.

         Navarro followed Elkins into a tire shop. See DUMF 46; PUMF 18. When Elkins entered the tire shop, Guzman and his partner drove their car around the corner. See DUMF 52. In the tire shop, Elkins pushed tires, rims, and tools at Navarro and into Navarro's path. See Navarro Depo. 26:4-27:15; Pelayo Depo. 66:22-67:6. That is, Elkins used tires and tools as obstacles to keep Navarro from apprehending him. PUMF 19. While running after Elkins, Navarro was yelling at Elkins, "Stop. Police." DUMF 47. Pelayo also was yelling commands at Elkins to stop running. DUMF 48. Elkins did not obey the commands and continued to run. DUMF 49. Based on Elkins throwing or pushing tires and tools, Pelayo believed that Navarro was in danger while Elkins and Navarro were in the tire shop. See Pelayo Depo. 108:4-21, 112:12-113:4. Pelayo ran around the tire shop in an attempt to cut-off Elkins. DUMF 51.

         Elkins ran out of the north side of the tire shop. See DUMF 54. As Elkins exited the tire shop, Pelayo yelled, "Police. Stop." DUMF 55. Elkins did not obey the commands and continued to run in a full sprint, jumping over tires and an eight foot high fence. See DUMF 56; PUMF 26. Pelayo observed Elkins use both of his hands to climb the fence. See PUMF 26. Pelayo saw Elkins land on the other side of the fence. DUMF 57.

         When Elkins landed on the other side of the fence, Pelayo immediately identified himself as "police" and gave Elkins commands to stop and for Elkins to show his hands. See DUMF 58. Guzman had arrived at the fence on foot. See DUMF 61. Guzman was 10 to 12 feet away from Pelayo. See Guzman Depo. 41:9-13. Guzman had his gun drawn, and also gave Elkins commands to show his hands. See id. at 41:17-20; DUMF 61.

         Elkins landed in a crouched position facing north towards an open field, and then turned west. See DUMF 59. Guzman had a view of Elkins's back, and Pelayo had more of a side angle and a better view of Elkins's front. See Guzman Depo. 41:14-17, 42:11-12. Pelayo could not see Elkins's right hand when Elkins landed. DUMF 60. Upon landing and turning west, Elkins started running, and turned his torso counterclockwise to look back at Pelayo (who was northeast of Elkins). See DUMF 63[4]; Pelayo Depo. 87:3-16. When Elkins turned his torso counterclockwise, Pelayo could see the left side of Elkins's face and Elkins's right hand. See DUMF 64. Elkins then reached with his right hand down into his left side waistband, under his shirttail. See DUMF 65; Guzman Depo. 62:7-21, 68:7-24; Pelayo Depo. 82:2-6; Ynclan Depo. 54:12-55:12. Pelayo testified that it looked like Elkins was reaching for a gun, and not trying to just pull up his pants (Elkins had been wearing loose fitting jeans). See Pelayo Depo. 82:5-16; PUMF 46. Guzman believed that Elkins was carrying a firearm because, as soon as Elkins landed over the fence, Elkins moved his hands to his midsection. See Guzman Depo. 62:7-13. Pelayo testified that, upon seeing Elkins reach for his waistband, Pelayo immediately fired his gun because he feared for his life. See Pelayo Depo. 82:22-83:1. Pelayo was facing Elkins's back at an angle when he fired his gun. See id. at 92:17-24. Pelayo did not give a warning before he fired, did not consider lesser means of force before firing, and was not concerned about the safety of others when he fired. See id. at 96:16-19; PUMF's 29, 41. Pelayo fired multiple shots in rapid succession. See Guzman Depo. 43:3-4, 45:4-7, 64:6-15; Pelayo Depo. 83:17-25. Pelayo continued to move as he fired so as to avoid being a target to Elkins. See DUMF 68. After Pelayo fired, Elkins took a couple of steps in a southwest direction, fell and attempted to crawl away. See Guzman Depo. 43:5-15, 44:18-45:3. Pelayo testified that he stopped shooting when he perceived that Elkins was no longer a threat. See Pelayo Depo. 125:13-15. Guzman did not fire because he did not see a weapon, but he did feel threatened by Elkins based on Elkins's running, ignoring commands, and tucking his hands to his midsection. See Guzman Depo. 62:22-63:1, 68:7-24. Pelayo testified that Elkins kept his hand at his waist throughout the shooting. See Pelayo Depo. 122:23-123:4; see also Guzman Depo. 68:7-24. From the time that Elkins landed on the ground from jumping the fence, to the time when Pelayo fired the first shot, "it was just fast . . . maybe two seconds."[5] Id. at 42:15-19.

         After Pelayo stopped firing, Elkins continued to try and pull himself forward/crawl. See Guzman Depo. 44:24-45:3; Pelayo Depo. 95:24-96:5. Pelayo and Guzman approached Elkins and ordered Elkins to show his hands. See Pelayo Depo. 87:25-88:13. Haroldsen then appeared and handcuffed Elkins for officer safety. See Haroldsen Depo. 28:8-11. Elkins was checked for weapons, however no weapons were found. See JUMF 74. Only a methamphetamine pipe and a prescription pill were found in the area in which Elkins had reached. See id. Pelayo and other officers administered first response to Elkins until medical personnel arrived at the scene. DUMF 75. However, Elkins died as a result of the gunshots wounds from Pelayo. See JUMF 76.

         Prior to the incident with Elkins, on the night of November 23, 2010, Pelayo was involved in an arrest of an individual who was wanted for inter alia automobile theft and assault with a deadly weapon (a vehicle). See Pelayo Depo. 26:5-25; Jones Dec. Ex. A.[6] Pelayo understood that the suspect had a violent history. See Pelayo Depo. 37:9-13. Pelayo was ordered to assist in arresting the suspect. See Pelayo Depo. 27:9-28:6. Pelayo arrived at a muddy, plowed, agricultural field. See id. at 32:8-11. The suspect was on his knees in the field, his back was arched as he was trying to get up, and Pelayo could not see the suspect's hands. See id. at 31:15-25. A single Tulare police officer was standing in front of the suspect. See id. at 32:24-33:1. The last transmission from the Tulare police officer was screaming to "get down, get down, " which Pelayo took to mean that the officer needed assistance. See id. at 35:3-11. Pelayo testified that he did not know that the suspect was handcuffed and had been "tased." See id. at 40:17-21. Pelayo testified that he ran towards the suspect to tackle him, but changed his mind because he did not want to be in a situation in which two officers were down in a muddy field with a dangerous suspect; instead, Pelayo moved to the side and hit the suspect on the cheek area. See id. at 34:3-8, 39:2-18. Pelayo testified that he recalled then saying, "What the fuck did you make me run for?", but that the statement was spontaneous and not directed at anyone. Id. at 39:19-24, 41:4-10. The suspect appears to have then been taken into custody without further incident.

         Pelayo reported his actions to his supervisors, and the Tulare police officer also reported the incident. See id. at 41:24-42:7; Jones Dec. Ex. A at Memo of 2-15-11. The Tulare police officer told investigators that Pelayo ran up to the suspect, said "This is what you get for making me run bitch!, " and then punched the suspect in the face. See Jones Dec. Ex. A at Memo of 12-7-10. As the suspect, the Tulare police officer, and Pelayo were all walking out of the field, the Tulare officer reported that Pelayo told the suspect, "You're lucky I didn't shoot your ass." Id. Investigators deemed the suspect's account of the event to be different from the Tulare police officer's account and "not as egregious." Id. at Memo of 2-15-11. It is unclear whether Pelayo was disciplined for the November 2010 incident. See Pelayo Depo. 42:11-25.


         I.Fourth Amendment -- Excessive Force

         Defendant's Argument

         Pelayo argues that his use of force was objectively reasonable. Elkins was wanted for attempted homicide and was actively evading arrest. This was a quickly evolving situation, and Elkins's actions caused the surveillance team to change their plans. Elkins ran from the tire store, was ordered to show his hands, and was shot shortly thereafter when he reached his hand to his waistband. Pelayo was aware of the information in the BOLO about Elkins. Elkins ignored commands and instead reached to his waistband, which Pelayo and other officers saw. Pelayo was in fear of his life and fired the shots. Pelayo kept moving and kept shooting. Pelayo had to make a split-second determination, and the fact that no weapon was recovered does not mean that the use of force was unreasonable.

         Alternatively, even if there is a Fourth Amendment violation, qualified immunity should be granted. Case law recognizes that even if a suspect is unarmed, deadly force may be appropriate under the circumstances if the suspect moves as though he is attempting to draw a gun. Given the facts and existing case law, qualified immunity should be granted.

         Plaintiffs' Opposition

         Plaintiffs argue that Pelayo's use of force was unreasonable. First, pursuant to CHP policy, the crime that Elkins allegedly committed did not justify Pelayo's use of force. CHP authorizes deadly force to apprehend a person whom the officer reasonably believed committed a felony involving the use or threatened use of deadly force, except for an assault with a deadly weapon with a vehicle. This policy applies even more to Elkins because Elkins was running away from officers and was not in a vehicle.

         Second, Elkins was not an immediate threat to the safety of anyone. The incident involving Officer Marvin had long since passed, and there was no indication that Elkins was armed with a weapon. Moreover, the circumstantial evidence undercuts Pelayo's version of events. Elkins did not have a gun. This raises the question of why Elkins would reach for his waistband since he knew there were officers around him with their guns drawn? Under Cruz v. City of Anaheim, 765 F.3d 1076 (9th Cir. 2014), one answer is that Pelayo is lying. Further, Elkins was trying to run away from officers, not towards them. This is confirmed because Elkins was shot in the back by Pelayo, not in the front. Additionally, the November 2010 incident discredits Pelayo's version of events. In 2010, Pelayo threatened a suspect that the suspect was lucky Pelayo did not shoot because the suspect made him run. A jury could view this incident as evidence that Pelayo carried out this thought/threat against Elkins, who also made him run. Finally, Guzman did not see Elkins make furtive movements, and Guzman did not fire despite being in the same line of sight as Pelayo. As Elkins was shot and wounded the day before by law enforcement, it is highly likely Elkins was simply trying to run away from the officers.

         Third, although Elkins was fleeing, this consideration is given less weight since flight by a felon alone does not justify deadly force.

         Fourth, Pelayo did not consider any alternative uses of force. Pelayo knew that other officers were in the area, and they could have assisted in taking Elkins into custody. Pelayo's conduct in pursuing Elkins was unreasonable and reckless, and unnecessarily escalated the situation. Similarly, even though it was feasible to give Elkins a warning that shots would be fired, Pelayo failed to do so.

         With respect to qualified immunity, it was established well before November 2012 that police officers cannot use deadly force unless the suspect poses an immediate threat of harm to the officers or others, or the suspect is fleeing and the nature of the attempted escape will result in a serious threat of injury to others. There are genuine issues of disputed material fact with respect to the facts surrounding the shooting. Taking the disputed facts in the light most favorable to Plaintiffs, a reasonable officer in Pelayo's position would have known not to use deadly force.

         Legal Standard

         1. Excessive Force

         All claims that law enforcement officers used excessive force, either deadly or non-deadly, in the course of an arrest, investigatory stop, or other seizure of a citizen are to be analyzed under the Fourth Amendment and its standard of objective reasonableness. See Scott v. Harris, 550 U.S. 372, 381-83 (2007); Graham v. Connor, 490 U.S. 386, 395 (1989). Cases that involve deadly force do not fit into their own separate category with their own set of "rigid pre-conditions" that must be met, rather the key is whether the officer's actions were reasonable. See Scott, 550 U.S. at 382-83; Hooper v. County of San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011). The pertinent question in excessive force cases is whether the use of force was "objectively reasonable in light of the facts and circumstances confronting [the officers], without regard to their underlying intent or motivation." Graham, 490 U.S. at 397; Hooper, 629 F.3d at 1133. The objective inquiry into reasonableness is highly fact specific. See Scott, 550 U.S. at 383; Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010). "We first assess the quantum of force used to arrest [the plaintiff]" and then "measure the governmental interests at stake by evaluating a range of factors." Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007). Factors that are considered in assessing the government interests at stake include, but are not limited to, "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396; Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010); Davis, 478 F.3d at 1054. Where it is or should be apparent that an individual is emotionally or mentally unstable, that is a factor that must be considered in determining the reasonableness of the force employed. See Luchtel, 623 F.3d at 980; Drummund v. City of Anaheim, 343 F.3d 1052, 1058 (9th Cir. 2003). Courts also are to consider whether it was feasible to give a warning before using force, and whether a warning was actually given. See Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010). "In some cases . . . the availability of alternative methods of capturing or subduing a suspect may be a factor to consider." Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005); see Luchtel, 623 F.3d at 980. However, police officers "are not required to use the least intrusive degree of force possible" as long as the force actually used was reasonable. Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994); see Gregory v. County of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008). That is, a reasonable use of force "encompasses a range of conduct, and the availability of a less-intrusive alternative will not render conduct unreasonable." Wilkinson, 610 F.3d at 551. It may also be appropriate to consider the parties' "‘relative culpability, ' i.e. which party created the dangerous situation and which party is more innocent, may also be considered." Espinosa v. City & County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010); see Scott, 550 U.S. at 384. Reasonableness "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396; Wilkinson, 610 F.3d at 550. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments B in circumstances that are tense, uncertain, and rapidly evolving B about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97; Wilkinson, 610 F.3d at 550. "Force is excessive when it is greater than is reasonable under the circumstances." Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002).

         2. Qualified Immunity

         A court employs a tiered analysis for determining qualified immunity. See Saucier v. Katz, 533 U.S. 194, 200-02 (2001); CarePartners LLC v. Lashway, 545 F.3d 867, 876 n.6 (9th Cir. 2008). However, lower courts need not strictly follow the tiered sequence in analyzing qualified immunity, but instead have the discretion to dispose of the issue at step two without addressing step one. Pearson v. Callahan, 555 U.S. 223, 236 (2009); Glenn v. Washington County, 673 F.3d 864, 870 (9th Cir. 2011). Under the first step, the court determines whether, "taken in the light most favorable to the party asserting the injury, do the facts show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201; Bingue v. Prunchak, 512 F.3d 1169, 1173 (9th Cir. 2008). All factual disputes are resolved in favor of the party asserting the injury. See Saucier, 533 U.S. at 201; Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th Cir. 2013). If the answer to the question is "no, " then the inquiry ends and the plaintiff cannot prevail; if the answer is "yes, " the court continues the analysis. See Saucier, 533 U.S. at 201; Bingue, 512 F.3d at 1173. Under the second step, the court determines "whether the right was clearly established, " and applies an "objective but fact-specific inquiry." Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007); see Saucier, 533 U.S. at 202. The critical question is whether "the contours of the right were sufficiently clear that a reasonable official would understand that what he is doing violates the right." Saucier, 533 U.S. at 202; Inouye, 504 F.3d at 712. Whether a right is clearly established must be "undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201; Bingue, 512 F.3d at 1173. If the officer could have reasonably, but mistakenly, believed that his conduct did not violate a clearly established constitutional right, then the officer will receive qualified immunity. See Saucier, 533 U.S. at 205-06; Ellins, 710 F.3d at 1066.


         1. Constitutional Violation

         The Court must examine not only certain enumerated factors, but "must examine the totality of the circumstances and consider whatever specific factors may be appropriate in a particular case, whether or not listed in the Graham decision." Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011). Further, the Ninth Circuit has cautioned that summary judgment is to be granted sparingly in excessive force cases in which a death occurs, and that the evidence is to be carefully examined because often times the only surviving witnesses to the use of force are the defendants. See Gonzalez v. City of Anaheim, 747 F.3d 789, 794-95 (9th Cir. 2014). With this admonition in mind, the Court will carefully examine each relevant consideration separately.

         a.Quantum of ...

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