Opinion
Case No. SACV 20-1387 JVS (ADSx)
09-29-2021
Xavier HERMOSILLO, et al. v. COUNTY OF ORANGE, et al.
Angel Carrazco, Carrazco Law APC, Humberto M. Guizar, Guizar Henderson and Carrazco LLP, Tustin, CA, Christian M. Contreras, Kent Matthew Henderson, Guizar Henderson and Carrazco LLP, Montebello, CA, for Xavier Hermosillo, Olga Hermosillo. Jesse Keenon Cox, Lukas Ralph Kramer, Marlena R. Mlynarska, S. Frank Harrell, Norman J. Watkins, Lynberg and Watkins APC, Orange, CA, for County of Orange, Deputy Renzi, Deputy Faour, Deputy Kocher.
Angel Carrazco, Carrazco Law APC, Humberto M. Guizar, Guizar Henderson and Carrazco LLP, Tustin, CA, Christian M. Contreras, Kent Matthew Henderson, Guizar Henderson and Carrazco LLP, Montebello, CA, for Xavier Hermosillo, Olga Hermosillo.
Jesse Keenon Cox, Lukas Ralph Kramer, Marlena R. Mlynarska, S. Frank Harrell, Norman J. Watkins, Lynberg and Watkins APC, Orange, CA, for County of Orange, Deputy Renzi, Deputy Faour, Deputy Kocher.
Proceedings: [IN CHAMBERS] Order Regarding Motion for Default Judgment
James V. Selna, United States District Court Judge
Defendants County of Orange, Deputy Vincent Renzi ("Renzi"), Deputy Moni Faour ("Faour"), and Deputy Kenneth Kocher ("Kocher") (collectively, "Defendants") filed a motion for summary judgment. Mot., Dkt. No. 45. Plaintiffs Xavier Hermosillo ("Xavier") and Olga Hermosillo ("Olga") (collectively, "Plaintiffs") opposed the motion. Opp'n. Dkt. No. 50. Defendants replied. Reply, Dkt. No. 54.
For the foregoing reasons, the Court GRANTS in part and DENIES in part the motion for summary judgment. The Court GRANTS summary judgment with respect to all claims against Deputy Kocher. The Court GRANTS summary judgment for all defendants on the Fourteenth Amendment Claim, Xavier's NIED claim, and the Bane Act Claim. The Court DENIES summary judgment with respect to all other claims.
I. BACKGROUND
This case concerns the tragic death of Luis Hermosillo ("Luis"). Luis struggled with mental health issues, including bipolar and schizophrenia. His family members called for police assistance in response to his erratic behavior that they feared could become dangerous. Within ten seconds of encountering Luis, one Deputy tased him, and another Deputy shot him four times, leaving him dead in the backyard of his own home. The parties agree about significant portions of the sequence of events leading up to that point, but there are key disputes over material facts. The Court begins by reviewing the undisputed facts before turning to the conflicting narratives.
A. Undisputed Facts
On the evening of August 21, 2019, Olga Hermosillo called 9-1-1 and asked for police assistance at her residence in Stanton, California. Statement of Uncontroverted Facts ("SUF"), Dkt. No. 47, ¶ 1. Olga told the dispatcher that her son, Luis, was "bipolar," "drunk," "throwing everything," had a "big knife" and that she was afraid for her other son, Xavier. SUF ¶¶ 3-5. Deputy Renzi and Deputy Jaime Castaneda were initially assigned the call for service, and Deputies Faour and Kocher elected to respond given the nature of the call. SUF ¶¶ 11-12. Deputies Faour, Renzi, and Kocher all arrived at the residence wearing their Sheriff's Department uniforms. SUF ¶¶ 17-18.
When the Deputies arrived at the residence, Christina Hermosillo ("Christina"), Xavier's wife, told Deputy Faour to "hurry" and that her "husband was in the backyard" and that she did not "want him hurt." SUF ¶ 19. Within earshot of Deputy Renzi, Christina also told Deputy Faour that Luis was "bipolar," "schizophrenic," "drunk," and had just poured gasoline in the yard. SUF ¶ 20. As the Deputies proceeded through the residence towards the backyard, Deputy Faour heard loud voices in the backyard and smelled gasoline, so he requested the fire department to stage nearby in case a fire was started. SUF ¶¶ 21, 23.
Xavier was in the backyard at the time the Deputies arrived. SUF ¶ 28. After walking through the house, Deputy Faour entered the backyard with his taser drawn and stepped to his left into a grassy area. SUF ¶ 24. Deputy Renzi immediately followed, and stood just outside of the doorway with his firearm drawn. SUF ¶ 25. Deputy Kocher then entered the residence and proceeded to the backyard where he also drew his firearm and stood behind Deputy Renzi. SUF ¶ 27.
B. Disputed Facts
Beyond this point, the parties disagree about key events. The Court recounts the narrative here, highlighting those points of contention. Because this is a motion for summary judgment, at this stage the Court must make all inferences in favor of the Plaintiffs because they are the non-moving party. Within seconds of entering the backyard, Deputies Faour and Renzi saw Luis, who matched the physical description of the subject described by dispatch, exit a shed in the backyard. SUF ¶¶ 29-30.
The Plaintiffs introduce facts showing that Luis was walking with his hands up saying "what, what." Xavier Hermosillo Deposition ("Hermosillo Depo."), Dkt. No. 50-3, at 111-12. Luis then stopped and remained stationary with his hands in the air. Id. at 116. The Defendants description of events is that Luis was moving quickly towards them across the backyard while saying "what do you want, what do you want." SUF ¶¶ 30, 31, 33. The parties agree that Deputy Faour issued multiple commands to Luis to "stop" while pointing his taser at him, and that Deputy Renzi did not issue any verbal commands. SUF ¶¶ 34-35.
According to the Plaintiffs, Luis remained stationary with his hands in the air after the commands to stop were given. Hermosillo Depo. at 124. According to the Deputies, Luis continued walking towards them. SUF ¶ 36. Deputy Faour then deployed his taser, with at least one of the darts striking Luis in the chest. SUF ¶¶ 36-37; Response to Defendant's SUF, Dkt. No. 50-1, ¶¶ 28-30.
The critical sequence of events that follows is described differently by the two parties. The Plaintiffs introduce testimony that after Luis was hit with the taser, he reached into his back pocket and pulled out a knife. Hermosillo Depo. at 126. Luis pulled the knife out and moved it in a clockwise motion in front of him, wrapping the taser wires around the knife. Id. at 129. From the time that the taser darts landed on Luis, he took a single step backward, then remained stationary as he pulled out the knife and wrapped it around the wires. Id. at 133. The Defendants characterize Luis’ reaction to being struck with the taser as "waving a knife in front of himself." SUF ¶ 40. They do not dispute that taser wires wrapped around the knife. Response to Plaintiff's, Dkt. No. 53, SUF ¶ 32. They also assert that Luis was advancing closer towards the deputies with the knife after being struck with the taser darts. SUF ¶ 42.
Seconds after Deputy Faour fired his taser, Deputy Renzi shot Luis four times. Response to Plaintiffs’ SUF ¶ 36. Plaintiffs’ highlight the fact that the autopsy showed that two of the shots entered through Luis’ back. Id. ¶ 60. In response, Defendants note that Xavier testified that Luis "rotated and turned" when he was shot. Id.
After being shot, Luis passed away on the scene. SUF ¶ 46. While the exact distance between Luis and the officers is not established, Luis was within 21 feet of Deputy Faour at the time that Faour used his taser, and when Deputy Renzi subsequently shot Luis. SUF ¶ 48. Xavier, who was standing near the Deputies, testified that he was twelve to thirteen feet away from Luis. Hermosillo Depo. at 112. A total of ten seconds passed between the first command from Deputy Faour telling Luis to "stop" and Deputy Renzi firing his weapon. SUF ¶ 50. Deputy Kocher did not use force against anyone in connection with the incident. SUF ¶ 53.
II. LEGAL STANDARD
Summary judgment is appropriate where the record, read in the light most favorable to the nonmovant, indicates "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) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary adjudication, or partial summary judgment "upon all or any part of [a] claim," is appropriate where there is no genuine dispute as to any material fact regarding that portion of the claim. Fed. R. Civ. P. 56(a) ; see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (" Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a single claim ....") (internal quotation marks omitted).
Material facts are those necessary to the proof or defense of a claim, and are determined by referring to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
"In determining any motion for summary judgment or partial summary judgment, the Court may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are (a) included in the ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written evidence filed in opposition to the motion." L.R. 56-3.
The moving party has the initial burden of establishing the absence of a material fact for trial. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ..., the court may ... consider the fact undisputed." Fed. R. Civ. P. 56(e)(2). Furthermore, " Rule 56 [(a)] mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Therefore, if the nonmovant does not make a sufficient showing to establish the elements of its claims, the Court must grant the motion.
III. DISCUSSION
A. Evidentiary Objections
As a preliminary matter, both the Defendants and the Plaintiffs submit numerous objections to the admission of certain pieces of evidence. Evidence presented at summary judgment must be admissible and have a proper foundation to be considered. Fed. R. Civ. P. 56 ; Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987). On a motion for summary judgment, a party may object that the material used to "dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). A court must rule on material evidentiary objections. Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010).
The Defendants assert that statements from Xavier Hermosillo's deposition testimony should not be admissible because of alleged contradictions with earlier statements made by Xavier in a police interview. Reply at 5-7. They cite to numerous cases for the proposition that "if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). While true as a matter of law, the facts here are the reverse of Kennedy. Plaintiffs rely on sworn testimony given by Xavier in a deposition in response to questioning by the opposing lawyer. The defendants seek to exclude that testimony based on allegedly contradictory statements made in an interview that was not conducted under oath, occurred less than three hours after Xavier watched the fatal shooting of his brother, and was conducted by representatives of the same police department who shot his brother. This is inapposite, and contrary to the purpose of the sham affidavit rule. The defendants may seek to introduce Xavier's earlier statements to call into question the credibility of his deposition testimony. But, that is an issue for a fact-finder, not for this Court ruling on a summary judgment motion.
The mere fact that Xavier is the plaintiff and the brother of the decedent does not require excluding the testimony either. "Although the source of the evidence may have some bearing on its credibility and on the weight it may be given by a trier of fact, the district court may not disregard a piece of evidence at the summary judgment stage solely based on its self-serving nature." Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015). The Court finds Xavier's deposition testimony to be a factually-based description of events that he witnessed firsthand. The Court cannot disregard his testimony at the summary judgment stage merely because it may help his case. S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir. 2007). Accordingly, the Court denies the objections to the deposition testimony that it references in this ruling.
The Court only considered admissible evidence in resolving the Defendants’ motion for summary judgement. When this Order cites evidence to which the Plaintiffs or the Defendants have objected, the objection is impliedly overruled. Additionally, the Court declines to rule on objections to evidence upon which it did not rely.
B. Fourth Amendment Claim
The first claim, asserted by Olga Hermosillo as the successor in interest to Luis Hermosillo, seeks damages under 42 U.S.C. § 1983 against Deputies Faour, Renzi, and Kocher for a violation of Fourth Amendment rights. The Defendants move for summary judgment on the basis that the doctrine of qualified immunity bars the claim. Mot. at 5-18. A government official is entitled to qualified immunity unless "the facts that a plaintiff has alleged or shown make out a violation of a constitutional right" and "the right at issue was ‘clearly established’ at the time of defendant's alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). "[I]n resolving a motion for summary judgment based on qualified immunity, a court must carefully examine the specific factual allegations against each individual defendant (as viewed in a light most favorable to the plaintiff)." Cunningham v. Gates, 229 F.3d 1271, 1287 (9th Cir. 2000). Accordingly, the Court considers the conduct of each officer in turn.
i. Deputy Faour
a. Violation of a Constitutional Right
The first prong of the qualified immunity analysis asks whether the officers violated a federal statutory or constitutional right. District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018). The Fourth Amendment applies an objective reasonableness standard to claims of excessive force. Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The inquiry requires considering "the facts and circumstances of each particular case." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Whether a particular use of force is reasonable is judged "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. Deadly force may be reasonable where there is "probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others." Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).
Within the Ninth Circuit, courts apply a three-step analysis to evaluate excessive force claims. First, the court considers the severity of the intrusion on the plaintiff's Fourth Amendment rights based on the type and amount of force inflicted. Next, the court evaluates the government interest in light of the three Graham factors, which include "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, 109 S.Ct. 1865. Finally, the court balances the intrusion on the plaintiff against the government's need for the use of force. Espinosa v. City and County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010). The "most important [factor] is whether the suspect posed an immediate threat to the safety of the officers or others." S.B. v. County of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017) (internal quotation omitted). "Because the reasonableness standard nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, ... summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly." Torres v. City of Madera, 648 F.3d 1119, 1125 (9th Cir. 2011) (internal quotation omitted).
The Court begins by considering the severity of Deputy Faour's intrusion on Luis’ rights. Tasers, including the model used by Deputy Faour, constitute an "intermediate or medium, though not insignificant, quantum of force." Bryan v. MacPherson, 630 F.3d 805, 825 (9th Cir. 2010). Depending on the facts and circumstances, use of a taser can constitute excessive force. See id. at 826-33 (finding the use of a taser on an unarmed suspect standing fifteen to twenty-five feet away from the officer and not advancing to be a violation of his constitutional right to be free from excessive force); Mattos v. Agarano, 661 F.3d 433, 451-52 (9th Cir. 2011) (finding that a reasonable fact finder could conclude that the use of force was excessive where officers tased suspect without warning).
Next, the Court turns to the Graham factors. Because "the most important factor" is whether the suspect poses an immediate threat to officers or bystanders, the Court begins its analysis there. County of San Diego, 864 F.3d at 1013. In this case there is a dispute of material fact that effects the threat assessment. The plaintiffs present evidence that Luis was walking towards the officers, with his hands in the air, and not holding any weapon. He obeyed the officers commands to stop and came to a halt at a distance of approximately twelve to fifteen feet from the officers and bystanders with his hands in the air. The officers gave no warning that they intended to use force. While the officers dispute that description of events, the question of whether the Deputies testimony or Xavier's testimony is more credible is appropriate for a jury. Based on these facts, the Court is unable to determine at this stage whether Luis did or did not pose an immediate threat at the time that Deputy Faour fired the taser.
Next, the Court considers the severity of the crime. The initial dispatch call and statements from Luis’ family members at the residence may have led the officers to believe that Luis had committed a crime. But the severity is less important when the subject is not engaged in any such conduct when the police arrived on the scene. S.R. Nehad v. Browder, 929 F.3d 1125, 1136 (9th Cir. 2019).
Turning to the third Graham factor, there is no dispute that Luis was not fleeing, especially given his location within a fenced in backyard. While ignoring officer commands may be a basis for resisting arrest if supported by facts, Browder, 929 F.3d at 1127, there is a dispute of material fact on that point. The evidence presented by the plaintiffs would allow a reasonable jury to conclude that Luis had followed every instruction from the officers prior to the taser being deployed. Xavier's deposition testimony states that Luis was walking towards the officers with his hands up. The officers yelled stop, at which point he stopped walking forward. There were no other warnings or instructions given. Accordingly, the Court cannot determine at this stage that Luis was or was not resisting arrest.
Other factors may also be considered outside of the Graham factors. A failure to warn prior to use of force may be evidence of objective unreasonableness. Browder, 929 F.3d at 1137-38 ("The seemingly obvious principle that police should, if possible, give warnings prior to using force is not novel, and is well known to law enforcement officers"). While the officers were not silent, at no point did they warn Luis that the use of force was imminent. Additionally, the officers were indisputably aware that Luis suffered from mental illness. While not dispositive, that may be considered in determining whether the use of force was reasonable. See Vos v. City of Newport Beach, 892 F.3d 1024, 1034 (9th Cir. 2018).
Under these circumstances, a reasonable jury could find that Deputy Faour's use of the taser was unreasonable and a violation of Luis Hermosillo's Fourth Amendment rights.
ii. Clearly Established Right
The second prong of the qualified immunity analysis requires the Court to determine "whether the law governing the conduct at issue was clearly established" and "whether the facts as alleged could support a reasonable belief that the conduct in question conformed to the established law." Easley v. City of Riverside, 890 F.3d 851, 856 (9th Cir. 2018) (internal quotation omitted). Demonstrating that the unlawfulness of an officer's actions was "clearly established" requires a showing that "at the time of the officer's conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful." Wesby, 138 S. Ct. at 589 (internal quotation omitted). Plaintiffs need to do more than describe violations of clearly established general or abstract rights outside "an obvious case." White v. Pauly, ––– U.S. ––––, 137 S. Ct. 548, 551-52, 196 L.Ed.2d 463 (2017). The standard, however, does not "require a case directly on point for a right to be clearly established," so long as "existing precedent" places "the statutory or constitutional questions beyond debate." Kisela v. Hughes, ––– U.S. ––––, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (quoting White, 137 S. Ct. at 551 ). "Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that ‘[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.’ " Mullenix v. Luna, 577 U.S. 7, 12, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (quoting Saucier, 533 U.S. at 205, 121 S.Ct. 2151 ).
Here, the Court finds that the right violated by Deputy Faour was clearly established. Both Bryan and Mattos found that tasing a plaintiff who did not pose an immediate safety threat to officers was a constitutional violation. In Bryan, like here, the plaintiff was mentally ill, talking incoherently, and not directly threatening the officers. Bryan, 630 F.3d at 825-833. Like in Mattos, the Deputies were responding to "a potentially dangerous domestic dispute situation," but at the time the officers fired the taser the facts did not indicate that any individual had the intent to harm the officers. Mattos, 661 F.3d at 451-52. This is sufficient to support the premise that tasing an individual who is stationary, has complied with all officer commands, and is not posing an immediate threat is a violation of a clearly established right.
The qualified immunity standard requires the Court to consider the facts from the perspective of a reasonable officer at the scene. In light of the scenario that the Deputies encountered, the Court understands the "desire to quickly and decisively end an unusual and tense situation." Bryan, 630 F.3d at 832. However, the factual record here would permit a jury to find that Deputy Faour's "chosen method for doing so violated [Luis Hermosillo]’s constitutional right to be free from excessive force." Id.
Accordingly, the Court finds that Deputy Faour is not entitled to qualified immunity for the alleged violation of Luis Hermosillo's Fourth Amendment rights. Thus, the Court DENIES summary judgment to Deputy Faour with respect to the section 1983 claim alleging a violation of Luis Hermosillo's Fourth Amendment rights.
ii. Deputy Renzi
The Court now turns to the actions of Deputy Renzi to determine whether he can successfully assert a defense of qualified immunity to the section 1983 claim alleging a violation of Luis’ Fourth Amendment rights.
a. Violation of a Constitutional Right
Again, the first prong of the qualified immunity analysis asks whether the officers violated a federal statutory or constitutional right. Wesby, 138 S. Ct. at 589. The same excessive force standard described above applies here. The Court undergoes the same analysis to determine whether Renzi's actions caused a constitutional violation.
Thus, the Court begins by considering the intrusion caused by Deputy Renzi. Here, Deputy Renzi used deadly force, firing four shots at Luis and killing him. Deadly force may be reasonable where there is "probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others." Garner, 471 U.S. at 11, 105 S.Ct. 1694. Resolving factual disputes in favor of the plaintiffs, a reasonable jury could find that Renzi did not have probable cause to believe that Luis posed a threat of serious physical harm to anyone other than himself. The Plaintiffs introduce testimony that after being tased by Deputy Faour, Luis took a step back away from the officer. He removed a knife from his pocket and moved it in a circular motion in front of his chest, wrapping the taser wires around the knife. He was twelve to fifteen feet away from all officers and bystanders. The defendants dispute that account, asserting that Luis approached them and was wildly waving the knife in front of himself. But weighing those two different accounts would require a credibility determination that is not appropriate for the Court to make at this stage.
While the severity of the underlying crime analysis is the same as discussed above, the resisting arrest factor does tilt slightly towards the government at this point. Under the facts as described by the plaintiffs, Luis was actively attempting to resist the initial attempt to subdue him by removing the taser wires.
Other factors may be considered as well. As discussed above, giving warnings prior to using force is a commonly known principle, and "[a] prior warning is all the more important where ... the use of lethal force is contemplated." Nehad, 929 F.3d at 1137-38. Here, there were no commands given other than "stop," let alone a warning of deadly force. Another relevant factor is "whether less intrusive alternatives to deadly force were available." Id. at 1137. While the use of deadly forced did follow the use of a taser, the officers waited less than two seconds after deploying the taser before turning to lethal force. Additionally, the officers were indisputably aware that Luis suffered from mental illness. While not dispositive, it is relevant to determine whether the use of force was reasonable, particularly in assessing Luis’ reactions after being struck by the darts. See Vos, 892 F.3d at 1034.
Under these circumstances, a reasonable jury could find that Deputy Renzi's use of deadly force was unreasonable and a violation of Luis Hermosillo's Fourth Amendment rights.
b. Clearly Established Right
Next, the Court considers whether Deputy Renzi's use of force violated a clearly established right. It is clearly established that "the use of deadly force against a non-threatening suspect is unreasonable." Zion v. County of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 1548, 200 L.Ed.2d 741 (2018). Plaintiffs present several cases to support their argument that the use of deadly force in these specific circumstances is clearly established as unconstitutional. In Hayes v. County of San Diego, the Ninth Circuit overturned a district court holding that the use of force was reasonable as a matter of law where officers shot a suspect holding a kitchen knife at a distance of eight feet and raised the knife after being asked to show his hands by the officers. 736 F.3d 1223, 1227, 1234 (9th Cir. 2013). In Glenn v. Washington County, the Ninth Circuit found that a reasonable jury could conclude that there was little reason to believe that a subject, who was standing still while holding a knife several feet from the officers, could have caused immediate harm. 673 F.3d 864, 874 (9th Cir. 2011). In Estate of Lopez by & through Lopez v. Gelhaus, the Ninth Circuit found that the use of deadly force was unreasonable where the victim had a gun, did not directly threaten the officer with the gun, and turned towards the officers in response to the command to "drop the gun." 871 F.3d 998, 1020 (9th Cir. 2017).
Defendants attempt to distinguish all of these cases on the facts. Reply at 19-23. The Court acknowledges that none of the facts are precisely identical to the case at hand. The standard, however, does not "require a case directly on point for a right to be clearly established," so long as "existing precedent" places "the statutory or constitutional questions beyond debate." Kisela v. Hughes, ––– U.S. ––––, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018). The Court finds that the case law clearly establishes that using deadly force on a subject who is twelve to fifteen away from the officers and not approaching them is a violation of a clearly established right, even where the subject is holding a knife.
The Defendants present an extensive list of cases that they claim supports the conclusion that the use of force was reasonable here. Mot. at 8-9. By the Defendants own characterization of those cases, the use of deadly force came after the subject was moving towards the officers, not stationary or retreating. At this stage, the Court is required to resolve factual disputes in favor of the nonmoving party. Thus, the facts here do not support analogy to those cases.
Defendants also cite to a long line of cases invoking the "21-foot rule." Mot. at 11-12. While the training received by Deputies Faour and Renzi is relevant to the fact-finder's determination of whether the use of force was reasonable, the mere fact that Luis was within twenty-one feet of the officers does not entitle them to summary judgment based on qualified immunity. See Hayes, 736 F.3d at 1227, 1234 (overturning grant of summary judgment based on qualified immunity when police fatally shot a subject who was holding a kitchen knife and standing eight feet away).
Defendants argue that other courts have found use of deadly force objectively reasonable after the use of an intermediate level of force failed to subdue the subject. Mot. at 14. But if a jury were to accept as credible the Plaintiffs’ version of events, all of these cases are easily distinguishable. Here, Deputy Faour used intermediate force when he fired the taser. Believing the plaintiff's evidence, in response to the taser Luis took a step backward, away from the deputies. Deputy Renzi then used deadly force less than two seconds later. In the cases cited by defendants intermediate force was used, then the suspect actively moved towards the officers while holding a knife. See Estate of Garcia Toribio v. City of Santa Rosa, 381 F. Supp. 3d 1179, 1188 (N.D. Cal. 2019) (granting summary judgment based on qualified immunity where deadly force was used after a suspect actively charged the officers with an eight-inch blade after being tased and pepper sprayed); Han v. City of Folsom, 551 Fed. App'x 923, 925 (9th Cir. 2014) (affirming grant of qualified immunity on summary judgment when the officers deployed two tasers against the subject, the subject moved towards the officers, ignored commands to drop his weapon, and then deadly force was used); J.A.L. v. Santos, 2016 WL 913743, at *5 (N.D. Cal. Mar. 10, 2016) (granting summary judgment when the officers shot the subject after an attempt to subdue him with a taser proved ineffective and the suspect ran towards the officers after ignoring commands to drop the weapon and remain on the ground). The defendants have shown that if a suspect is moving towards officers with a knife, after the use of intermediate force, the use of deadly force would not violate a clearly established right. Considering the facts at this stage, however, that is distinct from the case at hand. The Plaintiffs’ created a genuine dispute of fact as to whether Luis was moving towards officers or threatening them. Mere possession of a knife does not warrant the use of deadly force. Glenn, 673 F.3d at 872. Intermediate force can be an effective tool for law enforcement to de-escalate situations, but it must be given a chance to work. It should not simply be a brief stop on the way to firing four shots and killing someone, especially when the officers know that they are confronting an individual suffering from mental illness.
Accordingly, the Court finds Deputy Renzi is not entitled to qualified immunity. Thus, the Court DENIES summary judgment to Deputy Renzi with respect to the section 1983 claim alleging a violation of Luis Hermosillo's Fourth Amendment rights.
iii. Deputy Kocher
It is undisputed that Deputy Kocher did not use any force during the encounter. He removed his gun from his holster but never fired shots or made contact with Luis in any way. The Plaintiffs argue that he should be held liable for a Fourth Amendment violation under the theories of integral participation and failure to intervene. Opp'n at 16-17.
Defendants argue that integral participation liability requires a plan to use force that is known, agreed to, or not objected to by any officer. Mot. at 18 (citing Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004) ). The facts show that within ten seconds of the Deputies entering the backyard and encountering Luis, the first shots were fired. That is insufficient to show prior planning to deprive Luis Hermosillo of his constitutional rights. See Gonzalez v. County of Los Angeles, 2021 WL 2224262, at *6 (C.D. Cal. 2021) (finding no liability on the theory of integral participation where there was no evidence to suggest that the defendant was involved in a conspiracy or plan).
"[O]fficers can be held liable for failing to intercede only if they had an opportunity to intercede." Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000). The full interaction took place within just ten seconds. There was no realistic opportunity for Kocher to intervene and prevent the use of force. See Cortesluna v. Leon, 979 F.3d 645, 656 (9th Cir. 2020) (affirming summary judgment on "failure to intervene" theory where the "events unfolded very rapidly—in a matter of seconds" leaving the officer without "any realistic opportunity to intercede").
Thus, the Court GRANTS summary judgment to Deputy Kocher with respect to the section 1983 claim alleging a violation of Luis Hermosillo's Fourth Amendment rights.
C. Fourteenth Amendment Claims
Defendants also seek summary judgment on the section 1983 claim based on Fourteenth Amendment violations. A Fourteenth Amendment excessive force claim requires a showing of conduct that "shocks the conscience." Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). "In determining whether excessive force shocks the conscience, the court must first ask whether the circumstances are such that actual deliberation [by the officer] is practical." Hayes, 736 F.3d at 1230 (internal quotation omitted). "[W]here a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may be found to shock the conscience only if he acts with a purpose to harm unrelated to legitimate law enforcement objectives." Id.
None of the Defendants’ conduct meets the Fourteenth Amendment standard of "shocking the conscience." The undisputed facts show a fast-moving sequence of events, where just ten seconds passed between first encountering Luis and Deputy Renzi firing shots. That is a paradigmatic situation where law enforcement officers are required to make a snap judgment. Plaintiffs present no evidence to suggest that the Deputies intentionally had a purpose to harm Luis. They were responding to a call regarding a domestic disturbance that had the potential to escalate into violence, a clearly legitimate law enforcement objective.
The Court finds that the facts do not a support a finding of liability on the Fourteenth Amendment claim. Thus, the Court GRANTS summary judgment to all defendants on the section 1983 claim alleging a violation of Luis Hermosillo's Fourteenth Amendment rights.
D. Assault and Battery
Defendants also seek summary judgment on the Plaintiffs state law claim for assault and battery. Mot. at 23-25. The defendants’ main argument is that the claim fails because there was no unreasonable use of force. The defendants acknowledge that California has adopted the federal standard for resolving excessive force claims against police officers. Mot. at 23 (citing Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1274, 74 Cal.Rptr.2d 614 (1998) ). The Plaintiffs concede that the assault and battery claims are predicated on whether the use of force is reasonable. Opp'n at 22. As there is a dispute of material fact that prevents the Court from determining that the use of force by all Deputies was reasonable, the Court considers the defendants individually.
i. Deputy Kocher
As discussed above, Deputy Kocher did not use any force. Thus, the Court has already held that he did not use excessive force. As plaintiffs concede that the assault and battery claim is contingent on a finding of excessive force, the Court GRANTS summary judgment to Deputy Kocher on the assault and battery claim.
ii. Deputies Faour and Renzi
As discussed above, there is a dispute of material fact that prevents the Court from determining that the use of force by Deputy Faour and Deputy Renzi was reasonable. Accordingly, Deputies Faour and Renzi can not successfully defend against the assault and battery claim by arguing that they did not use excessive force.
Alternatively, the defendants assert that California law provides them with statutory immunity. "Homicide is justifiable when committed by peace officers ... [w]hen the homicide results from a peace officer's use of force that is in compliance with Section 835a." Cal. Penal Code § 196. However, the findings above directly contradict the standard. Section 835a gives police officers the authority to use force to "overcome resistance" when effecting an arrest. Cal. Penal Code § 835a. At this stage, making all inferences in favor of the nonmoving party, the facts show that prior to Deputy Faour firing the taser, Luis had complied with the commands to stop and had his hands in the air. This does not support the conclusion that Luis was resisting arrest at the time that Deputy Faour used force against him. Accordingly, Deputy Faour is not entitled to statutory immunity under section 196.
Section 835a also gives police officers the authority to use deadly force to defend against "an imminent threat of death or serious bodily injury to the officer to another person." Cal. Penal Code § 835a. Again, the Court is required at this stage to make inferences in favor of the nonmoving party. The Plaintiffs present facts showing that after the taser was deployed Luis took one step backward and wrapped the knife around the taser wires directly in front of him. He did not move towards the officers, nor did he threaten anyone. As discussed above, these facts do not support a finding that there was an imminent threat of death or serious bodily injury. Accordingly, Deputy Renzi is not entitled to statutory immunity under section 196.
The Defendants also argue for statutory immunity under California Government Code § 845.8. The provision states that "[n]either a public entity nor a public employee is liable for ... [a]ny injury caused by ... [a] person resisting arrest." Cal. Gov't Code. § 845.8(b)(3). But Plaintiffs are not seeking to hold Defendants liable for injuries caused by a "person resisting arrest." In this case, the injuries were caused to Luis, the person allegedly resisting arrest. The straightforward statutory interpretation suggests that it does not provide immunity in this situation, and Defendants present no argument or authority to suggest otherwise. Accordingly, the Court finds that Deputies Faour and Renzi are not entitled to statutory immunity under section 845.8.
Thus, the Court DENIES summary judgment on the assault and battery claim with respect to Deputy Faour and Deputy Renzi.
iii. County of Orange
The sole basis presented for summary judgment on the claims against the County of Orange is that "[u]nder the Government Code, a finding that the Deputies are immune provides derivative immunity to their employer, the County of Orange." Mot. at 25 (citing to Cal. Gov't Code § 815.2 (b) ). Because the Court does not find that Deputies Faour and Kenzi are immune, this argument must fail. Thus, the Court DENIES the County of Orange request for summary judgment on the claim for assault and battery.
E. Wrongful Death/Survival Based on Negligence
The fourth claim is brought by Olga Hermosillo, as successor in interest to Luis, against all defendants, alleging wrongful death based on negligent tactics. Defendants rely on the same arguments presented under the assault and battery claim to argue for summary judgment on this claim. Mot. at 23-25.
"California negligence law overall is broader than federal Fourth Amendment law in excessive force cases." Tabares v. City of Huntington Beach, 988 F.3d 1119, 1128 (9th Cir. 2021) (internal quotations omitted). California negligence law not only encompasses the immediate events around the use of force, but also "an officer's pre-shooting decisions can make his later use of force unreasonable under the totality of the circumstances." Id.
The Court has already found the use of force by Deputies Faour and Renzi could be found excessive under the narrower federal standard. For the same reasons, the Court finds that they could be found liable on the California negligence law claim as well. The statutory immunity defenses presented by Deputies Faour and Renzi and the County of Orange fail for the same reasons as discussed under Part III-D.
While California negligence law makes it easier to hold an officer who did not personally use force liable than Fourth Amendment law, the facts here do not support a claim against Deputy Kocher. The same concerns regarding the type of call the officers were responding to, the speed with which the events developed, and the snap judgments that were required do not support a finding that Deputy Kocher made unreasonable decisions prior to the use of force. Accordingly, the Court GRANTS summary judgment for Deputy Kocher with respect to the wrongful death based on negligence claim. The Court DENIES summary judgment with respect to all other defendants.
F. Negligent Infliction of Emotional Distress
The fifth cause of action, brought by all Plaintiffs against all Defendants, alleges negligent infliction of emotional distress ("NIED"). Defendants move for summary judgment on the same grounds as the other state law claims. Because the Court did not find that Deputies Faour and Renzi used reasonable force, that defense fails with respect to them. Because Deputy Kocher did not use excessive force, he is entitled to summary judgment on the NIED claim. See Gonzalez v. County of Los Angeles, 2021 WL 2224262, at *12 (C.D. Cal. June 2, 2021) (noting that NIED claims are measured by the same reasonableness standard as the Fourth Amendment).
In a footnote, the Defendants also argue that Xavier's NIED claim must fail because it lacks a negligence cause of action as an anchor. See R.N. by and through Neff v. Travis Unified School District, 2020 WL 7227561, at *14 (E.D. Cal. Dec. 8, 2020) (noting that NIED is not an independent tort and instead requires a plaintiff to also plead negligence). Defendants do not respond to this argument. Accordingly, the Court GRANTS summary judgment in favor of all defendants with respect to Xavier's NIED claim.
G. Bane Act
The sixth cause of action, brought by Olga Hermosillo as successor in interest to Luis against all defendants, alleges a violation of the Bane Act. See Cal. Civil Code § 52.1. In a footnote, the Defendants argue that the Bane Act claim fails because the Plaintiffs fail to prove that any defendant acted with "a specific intent to violate [Luis’] right to freedom from unreasonable seizure." Mot at 24 n.3 (quoting Reese v. Cty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) ). It appears that the Plaintiffs did not see that footnote, as they state that "Defendants also did not even brief the Bane Act Claim." Opp'n at 25.
Regardless of briefing, the claim fails as a matter of law. The Ninth Circuit has clearly stated that an excessive force claim under the Bane Act requires a showing of specific intent to violate the plaintiff's constitutional rights in addition to the alleged constitutional violation. Reese, 888 F.3d at 1043. Plaintiffs have not introduced any evidence that would support a finding that any deputy had a specific intent to violate Luis’ constitutional rights. Accordingly, the Court GRANTS all defendants summary judgment with respect to the Bane Act claim.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part the motion for summary judgment. The Court GRANTS summary judgment with respect to all claims against Deputy Kocher. The Court GRANTS summary judgment for all defendants on the Fourteenth Amendment Claim, Xavier's NIED claim, and the Bane Act Claim. The Court DENIES summary judgment with respect to all other claims.
The Court finds that oral argument would not be helpful in this matter and VACATES the hearing. Fed. R. Civ. P. 78 ; L.R. 7-15.