Opinion
2:23-cv-00001-HL
04-24-2024
GRANT YOAKUM, a personal representative of the Estate of Nicholas Rodin, Plaintiff, v. CROOK COUNTY, and STEVEN HATCHER, Defendants.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN, United States Magistrate Judge
This action involves the tragic death of Nicholas Rodin (“Rodin”), who was shot and killed by Crook County Sheriff's Deputy Steven Hatcher (“Hatcher”). Plaintiff Grant Yoakum, the personal representative of Rodin's estate, brings this excessive force and wrongful death action against Hatcher and Crook County. Plaintiff alleges a Fourth Amendment violation under 42 U.S.C. § 1983 and a negligence claim under Oregon state law. This matter now comes before this Court on Defendants' Motion for Summary Judgment. Mot., ECF 23. This Court heard oral argument on March 21, 2024. For the reasons discussed below, Defendants' Motion for Summary Judgment should be GRANTED as to Plaintiff's Fourth Amendment excessive force claim against Hatcher, and DENIED as to Plaintiff's wrongful death claim against Hatcher and Crook County.
BACKGROUND
The following facts are based on evidence submitted by both parties and are recited in the light most favorable to Plaintiff as the nonmoving party.
The parties submitted extensive evidence of the incident including a video from Hatcher's body-worn-camera, Haberman Decl. Ex. 11, ECF 37-11; a transcript of the interview of Hatcher that the Oregon State Police conducted during its investigation of the incident, id. Ex. 6, ECF 376; and a police report, deposition, and declaration from each of the six officers who responded to the incident, including Hatcher. See Hatcher Decl., ECF 26; Silence Decl., ECF 28; Weber Decl., ECF 29; Zarbano Decl., ECF 30; Durheim Decl., ECF 31; Merkwan Decl., ECF 32.
See Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108, 1112 (9th Cir. 2011) (on motion for summary judgment, courts must “constru[e] the facts in the light most favorable to the nonmoving party and draw[] all reasonable inferences in that party's favor”).
On February 4, 2022, at approximately 4:44 a.m., Rodin called 911 for emergency services and had the following exchange with the dispatcher:
Dispatcher: 911, what's the address of your emergency?
Rodin: I don't know the address but I have a warrant for my arrest, I'd like a pickup please.
Dispatcher: You, you what?
Rodin: I have a warrant for my arrest. I'd like to get picked up, please.
Dispatcher: Okay, I need you to call the non-emergency number for that.Hisel Decl. Ex. 2 at 2, ECF 24-2. Rodin ended the phone call and immediately called 911 again. Id. at 4. Rodin had the following exchange with the dispatcher in his second call:
Dispatcher: 911, what's the address of your emergency?
Rodin: I don't know the address, but I have a warrant for my arrest. You need to come pick me up before I flip out and hurt somebody.
Dispatcher: What is your name?
Rodin: Nicholas Rodin.
Dispatcher: Nicholas what?
Rodin: Rodin, R-O-D-I-N.
Dispatcher: What's your date of birth?
Rodin: 3/6/86.
Dispatcher: Okay. I need to know where you are.
Rodin: I'm on Juniper Canyon.
Dispatcher: Where on Juniper Canyon? I need some sort of a mile marker or a cross street.
Rodin: I'll, I'll be, I'll be walking down the road. Don't worry about it. You
***
Dispatcher: What are you wearing?
Rodin: I'm wearing blue jeans and a jacket, tan jacket.
Dispatcher: Do you have any weapons?
Rodin: Absolutely.
Dispatcher: You do?
Rodin: Yup.
Dispatcher: Like what?
Rodin: Uh, I got a pistol, a 22 pistol, then, uh, a knife.
Dispatcher: Okay. What's going on tonight that you're gonna hurt somebody?Id. Dispatch determined that “[Rodin]'s phone pinged in the area of Southeast Maphet Road[.]” Silence Decl. Ex. 1 at 2. Dispatch confirmed that Rodin had a felony warrant and was on probation for assault. Weber Decl. Ex. 1 at 1.
In the early morning of February 4, 2022, CCSO Deputy Justin Silence (“Silence”) was on duty in his patrol car. Silence Decl. Ex. 1 at 2. At approximately 4:44 a.m., CCSO dispatch advised Silence of Rodin's calls, and Silence reviewed the call for service with CCSO deputies Keaton Zarbano (“Zarbano”) and Jason Weber (“Weber”). Id. The deputies found the call unusual and had concerns that it was a suicide-by-cop situation. Haberman Decl. Ex. 14 at 17, ECF 37-14 (Silence Depo.); Id. Ex. 15 at 12, ECF 37-15 (Zarbano Depo.); Id. Ex. 16 at 19, ECF 37-16 (Weber Depo.). The deputies drove in two patrol cars to the area where they believed Rodin was located. Silence Decl. Ex. 1 at 2-3. Because the call was unusual, deputies were “[m]ore cautious,” drove more slowly, and used more lights. Haberman Decl. Ex. 14 at 11-12; Id. Ex. 16 at 12-13. During their search efforts, the deputies called Rodin multiple times on the number he had used to reach 911 but Rodin did not answer the phone. Silence Decl. Ex. 1 at 2. The deputies failed to locate Rodin. Id. at 3. At approximately 5:49 a.m., “[a]fter not being able to locate [Rodin], [Silence] cleared the call.” Id.
As Silence's night shift was coming to an end, he received a call from Hatcher who was preparing to begin his shift at 6:00 a.m. and had read the call for service regarding Rodin. Id. Silence and Hatcher discussed Rodin's comments to 911 about being armed and wanting to get picked up before he hurt someone. Id. Hatcher told Silence that the situation seemed “sketchy” and that it seemed like “an ambush or a potential suicide by cop.” Haberman Decl. Ex. 13 at 18 (Hatcher Depo.), ECF 37-13. Hatcher later told Oregon State Police (“OSP”) that, “due to [his] concerns with the call, [he] immediately radioed dispatch and asked them to please put the call back on the board . . . for day shift.” Id. Ex. 6 at 10.
Once Hatcher started his regular patrol duties, he decided to “patrol through the area that . . . Rodin had stated that he was in,” which was in the area of Maphet Road. Id. When Hatcher left to patrol the area, he was equipped with a Glock 9-millimeter gun and an AR short-barreled rifle. Id. at 4-5. Hatcher was not carrying pepper spray, a taser, or any other type of less lethal weapon. Id. Ex. 13 at 122-23. Hatcher was not carrying his taser because it was out of service. Id. at 123.
Hatcher described his encounter with Rodin during his interview with OSP as follows: At approximately 1:30 p.m., Hatcher was approaching Maphet Road when he observed a male subject sitting on a tree stump who matched the description of Rodin. Haberman Decl. Ex. 6 at 10. Hatcher drove around the corner and radioed dispatch to notify them that he would be contacting the subject. Id. Hatcher's partner, Deputy Elijah Merkwan (“Merkwan”), heard Hatcher's communication with dispatch. Merkwan Decl. 3, ECF 32-1. Merkwan made radio contact with Hatcher and Hatcher told Merkwan, “Code 1, but step it up.” Id. Hatcher drove back to the area where he had just seen the male subject, but the subject was no longer at the stump where Hatcher had last seen him. Haberman Decl. Ex. 6 at 10. Hatcher observed the subject walking down Maphet Road and noted that he was about six-feet-seven-inches tall and weighed about two hundred and fifty pounds. Id. at 10-11. Hatcher was “90 percent sure” that the subject was Rodin. Id. at 11. At 1:38 p.m., Hatcher radioed dispatch that he would be making contact with the subject. Id. Hatcher's intent was to “slow play and down play it, knowing that [his] partner was [e]n route.” Id.
Hatcher exited his patrol vehicle and casually addressed the subject as “Nick” and “Nicholas,” but the subject turned around and said, “no.” Id. When Hatcher asked the subject for his name, the subject told him, “Michael Reece.” Id. Hatcher returned to his patrol vehicle to have dispatch run a check on “Michael Reece,” but that name indicated birthdate of 1953, which did not match the age of the subject. Id. Hatcher stayed in his car and observed the subject “quickly walking down Maphet [Road] and kind of erratically checking over his shoulder”; Hatcher remained in his vehicle and continued to “slow play the situation for [his] . . . backup to arrive . . . to handle to situation safely.” Id.
Hatcher next ran Rodin's driver's license. Id. After Hatcher saw Rodin's photograph, he was “a hundred percent sure [the subject] was [] Rodin.” Id. As Hatcher was waiting for his backup, he saw that Rodin was getting closer to a residential driveway and “determined . . . that [he] needed to detain Rodin.” Id. Rodin's location on Maphet Road was approximately 400 feet from the closest residence. Haberman Decl. Ex. 10 (aerial map), ECF 37-10. As Hatcher approached Rodin in his vehicle, Rodin turned toward Hatcher, reached behind his back, and pulled out his phone. Id. Ex. 13 at 12 (Hatcher Depo.). Hatcher quickly put his vehicle in park, jumped out of his car, drew his weapon, and ordered Rodin to get on the ground because Rodin “appeared to be drawing a weapon.” Id.; Id. Ex. 6 at 11. Hatcher immediately realized that Rodin had pulled out his phone but kept Rodin at gunpoint. Id. Ex. 13 at 94 (Hatcher confirming that he kept Rodin at gunpoint “after realizing that he was holding a soda bottle and cell phone”). Rodin complied with Hatcher's order and dropped down to his knees. Id. Ex. 6 at 11-12.
Once Rodin was on his knees, Hatcher turned on his body-worn-camera and radioed dispatch that he had a subject at gunpoint. Id. at 12. The ensuing encounter, including Hatcher's use of lethal force, lasted one minute and seventeen seconds and was captured on video from Hatcher's body-worn-camera. Id. Ex. 11 00:01-01:17.
Hatcher's video footage begins with Hatcher holding Rodin at gunpoint with Rodin on the ground in a kneeling position about twenty feet away from Hatcher; Rodin is holding a cell phone to his ear with his right hand and his left hand is empty with a Pepsi bottle on the ground next to him. Id. at 00:01. While Rodin is kneeling with both hands visible to Hatcher, Hatcher walks toward Rodin yelling, “put your hands where I can see them . . . get on the ground!” Id. at 00:05. Rodin says, “you going to kill me motherfucker what's up? I didn't do nothing wrong.” Id. at 00:08-10. Hatcher is about eight to ten feet from Rodin and yells, “you're goddamn right I'll kill you! Keep your hands where I can see them.” Id. at 00:11-19. Rodin opens his arms widely while saying to Hatcher, “seriously dude . . . fuck . . . I didn't do nothing wrong.” Id. Hatcher yells at Rodin to “lay on the ground!” and Rodin says again, “I didn't do nothing wrong, are you serious right now?” Id. at 00:20-25. Hatcher tells him, “I am dead serious, keep your hands where I can see them,” while Rodin's hands are in fact visible to Hatcher. Id. at 00:24-25. Rodin says, “alright cool, let me call my girlfriend real quick okay,” and picks up his cell phone. Id. at 00:26-28. Hatcher tells Rodin, “no you're not, lay on the ground!” Id. at 00:28-30. Rodin says emphatically, “I have to! I have a kid coming in March! I have to call her!” Id. at 00:29-31. Hatcher again orders Rodin to “lay on the ground,” and Rodin repeats, “I have to!” and says something that sounds like, “not if I shoot you first.” Id. at 00:32-36; Hisel Decl. Ex. 3 (Hatcher interview with OSP in which he reports that Rodin said “something along the lines of, not if I shoot you first”). Hatcher responds, “do it, I will blow your fucking head off!” Id. at 00:36-38. Rodin gestures loosely with his left arm in an impatient manner while asking Hatcher, “are you serious? Come on now. You pull a gun on me, I didn't do nothing to you. What the fuck is your issue? Please tell me what's going on.” Id. at 00:38-42. Hatcher tells Rodin, “you stuffed your hands in your pockets, and I believe you are a subject with a felony warrant.” Id. at 00:42-45. Rodin asks Hatcher, “So you're going to pull out a gun and hold me at gunpoint, huh?” Id. at 00:48-50. Hatcher responds, “You reached in your pockets, get on the ground!” Id. at 00:50-53. Rodin holds up his cell phone to show Hatcher and says, “to get my phone which was ringing, and you're stalking me just walking down the fucking road.” Id. at 54-57. Rodin remains on his knees and tells Hatcher, “Shoot me! Do it! I ain't scared, I ain't scared of you dude, what's up?” Id. at 00:56-58.
Next, Rodin stands up with his cell phone in his left hand and the Pepsi bottle in his right hand and says, “I want to die . . . yeah I want to die dude.” Id. at 00:59-01:01. As Rodin takes a few slow steps toward Hatcher, Hatcher tells Rodin “don't come towards me,” and Rodin repeats, “I want to die dude,” and Hatcher says, “don't do it.” Id. at 01:01-09. Rodin then steps backward and away from Hatcher with both hands full and visible while Hatcher continues to yell loudly, “get on the ground and keep your hands where I can see them.” Id. at 01:09-11. Rodin continues to walk backward, stepping away from Hatcher while telling him, “you're shaking . . . you're scared.” Id. at 01:11-14. Hatcher responds, “I'm pretty dang close though, aren't I?” Id. While continuing to step backward and away from Hatcher, Rodin then shifts the Pepsi bottle from his right hand to his left hand and reaches into his back pocket with his right hand while saying, “yeah you are, so am I.” Id. at 01:14-16. At that moment, Hatcher shot Rodin twice in the chest. Id. While lying on the ground Rodin says, “I don't have nothing, dude. Geez, I swear to god. I have nothing. Oh my god.” Hisel Decl. Ex. 4 at 3 (transcript of video), ECF 24-4. Hatcher notified dispatch that shots had been fired and the subject was down, and he requested medics. Merkwan Decl. 3. Two minutes later, at 1:42 p.m. Hatcher's partner, Merkwan, and another CCSO officer arrived at the scene. Id. Rodin died from his injuries. Hisel Decl. Ex. 6 at 2, ECF 25. No weapons were found on Rodin during the investigation. Id.
On January 1, 2023, Plaintiff filed the complaint in this action. ECF 1. In the First Amended Complaint (“FAC”), ECF 21, Plaintiff asserts a Fourth Amendment claim against Hatcher under 42 U.S.C. § 1983 alleging excessive force, and Plaintiff asserts a wrongful death claim against Hatcher and Crook County alleging that their negligent acts caused Rodin's death. FAC ¶¶36-49. Defendants move for summary judgment on all claims. ECF 23.
LEGAL STANDARD
Summary judgment is appropriate where the moving party “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). The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet this burden, the party asserting that a fact cannot be genuinely disputed must support that assertion with admissible evidence. FED. R. CIV. P. 56(c).
If the moving party establishes the absence of a genuine issue of material fact, the nonmoving party must go beyond the allegations in the complaint to demonstrate a genuine issue for trial. Celotex, 477 U.S. at 324. A party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, unsupported conjecture, or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Summary judgment thus should be entered 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, 477 U.S. at 322.
The court views the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976).
DISCUSSION
I. Excessive Force Claim
Defendants argue that Hatcher is entitled to summary judgment on Plaintiff's excessive force claim because Hatcher used a reasonable amount of force against Rodin under the circumstances and is protected by qualified immunity. Mot. 16-24. This Court finds that a reasonable jury could find that Hatcher violated Rodin's Fourth Amendment rights, but finds that Hatcher is entitled to summary judgment on Plaintiff's excessive force claim based on qualified immunity.
A. Excessive Force Standards
“When a plaintiff alleges excessive force during an investigation or arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures.” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (citing Graham v. Connor, 490 U.S. 386, 392 (1989)). Under the Fourth Amendment, police officers are not required to use the least amount of force necessary to arrest a suspect. Luchtel v. Hagemann, 623 F.3d 975, 982 (9th Cir. 2010). Rather, officers are required to use an amount of force that is “objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397 (internal quotation marks omitted); Byrd v. Phoenix Police Dep't, 885 F.3d 639, 642 (9th Cir. 2018) (same) (citing Graham, 490 U.S. at 397). The objective reasonableness inquiry requires “balancing the nature and quality of the intrusion on a person's liberty with the countervailing governmental interests at stake.” Davis v. City of Las Vegas, 478 F.3d 1048, 1053-54 (9thCir. 2007) (simplified). “The ‘reasonableness' of a particular use of force 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.
In assessing the reasonableness of a particular use of force, the Supreme Court has identified three non-exhaustive factors for courts to consider: (1) “the severity of the crime at issue”; (2) “whether the suspect poses an immediate threat to the safety of the officer or others”; and (3) “whether [t]he [suspect] is actively resisting arrest or attempting to evade by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). In the Ninth Circuit, “‘[o]other factors relevant to the reasonableness of force include the availability of less intrusive alternatives to the force employed, whether proper warnings were given, and whether it should have been apparent to the officers that the person they used force against was emotionally disturbed.'” Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938, 947 (9th Cir. 2017) (citing Glenn v. Washington Cnty., 673 F.3d 864, 872 (9th Cir. 2012)). The “most important” factor is “whether the suspect posed an immediate threat to the safety of the officer or others.” Id. (citation omitted).
B. Excessive Force Analysis
1. The Type and Amount of Force Used
Hatcher shot Rodin twice in the chest with his police-issued Glock and killed him. Haberman Decl. Ex. 11 at 01:14. The nature of the intrusion here “is a serious one.” Hart v. City of Redwood City, No. 22-17008, 2024 WL 1689092, at *5 (9th Cir. Apr. 19, 2024) (citing Tennessee v. Garner, 471 U.S. 1, 9 (1985) (noting that “[t]he intrusiveness of a seizure by means of deadly force is unmatched”)). Under Ninth Circuit precedent, an officer's use of lethal or deadly force is reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014).
2. The Government Interests at Stake
To determine whether the government had a sufficiently strong interest at stake to justify Hatcher's use of lethal force, this Court must analyze: “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1163 (9th Cir. 2011) (citing Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003)).
a. Severity of the crime
On the day of the incident, Rodin had an active felony warrant from the Oregon State Parole Board for Assault II. Silence Decl. Ex. 1 at 2. The Ninth Circuit has acknowledged “the government's interest in apprehending criminals, and particularly felons, as a factor ‘strongly' favoring the use of force.” S.R. Nehadv. Browder, 929 F.3d 1125, 1136 (9th Cir. 2019) (citing Miller, 340 F.3d at 964). Courts also use the severity of the crime as a proxy for the danger a suspect poses; if a suspect is no longer engaged in a serious crime or threatening behavior when police arrive, the government's interest in the use of force is more limited. See id. (holding that “severity-of-force as proxy-for-danger approach” did not support officer's use of force because, “[e]ven if [the suspect] had made felonious threats or committed a serious crime prior to [the officer]'s arrival, he was indisputably not engaged in any such conduct. . . when [the officer] arrived') (emphasis added); see also Smith, 394 F.3d at 693 (noting that officers responded to a domestic violence call that a husband was hitting his wife and getting “physical with her” and finding severity-of-crime factor provided “little, if any, basis for the officers' use of physical force” where officers encountered the suspect on his “porch alone and separated from his wife . . . [with] no weapons . . . clad in his pajamas” and no crime in progress). Here, although Rodin had a felony warrant, he was not engaged in any criminal activity or doing anything dangerous or threatening when Hatcher encountered him on Maphet Road. See Haberman Decl. Ex. 6 at 1011. Thus, the severity-of-crime factor provides limited support for Hatcher's use of force.
b. Whether Rodin posed a threat to Hatcher or others
Whether the suspect “pose[d] an immediate threat to the safety of the officers or others” is “the most important single element of the three specified [Graham] factors.” Chew v. Gate, 27 F.3d 1432, 1441 (9th Cir. 1994).
Defendants argue that “Rodin posed an immediate threat to [] Hatcher's safety,” Mot. 18, for the following reasons: Hatcher reasonably suspected that Rodin was armed because Rodin reported to dispatch that he had a knife and a gun, Hisel Decl. Ex. 2 at 4; Rodin threatened Hatcher when he told him, “not if I shoot you first,” Id. Ex. 3 at 11; and during their encounter, Rodin “fake [drew] a weapon” multiple times, Mot. 18-including the motion of reaching toward his back pocket with his right hand seconds before Hatcher shot him. See Haberman Decl. Ex. 11 at 01:14-01:17. Under similar situations, the Ninth Circuit has found it objectively reasonable to view an individual as an immediate threat. See Sabbe v. Washington Cnty. Bd. of Commissioners, 84 F.4th 807, 828 (9th Cir. 2023) (noting that, “[w]hen a suspect is armed-or reasonably suspected of being armed, even a furtive movement can create an immediate threat sufficient to justify the use of deadly force”) (citing George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013)) (emphasis added) (simplified); see also Cruz v. City of Anaheim, 765 F.3d 1076, 1078 (9th Cir. 2014) (noting that, where a suspect is engaged in “dangerous and erratic behavior” and police reasonably believe he is carrying a gun “[i]t would be unquestionably reasonable for police to shoot a suspect in [the decedent]'s position if he reaches for a gun in his waistband, or even if he reaches there for some other reason”).
Plaintiff asserts that there is “a disputed question as to whether Hatcher had a reasonable belief that Rodin was armed,” Resp. 33 (emphasis added), but this Court disagrees with that framing of the issue. Hatcher only needed a reasonable suspicion that Plaintiff was armed. There is no dispute that Rodin told dispatch that he had a .22 pistol, and there is no dispute that Rodin feigned having a weapon during his encounter with Hatcher. In fact, Plaintiff describes Rodin as “behaving as though the two were in a spaghetti western shootout repeatedly pretending to draw a gun,” Resp. 18-even as he held his cellphone in his right hand. And the last time Rodin made that “furtive movement”-the moment before he was shot-he reached back with an empty hand. Haberman Decl. Ex. 11 at 01:15. Those facts support Hatcher's contention that he had a reasonable (but mistaken) suspicion that Plaintiff was armed and posed an immediate and serious threat to Hatcher. Cf. Est. of Strickland v. Nevada Cnty., 69 F.4th 614, 618 (9th Cir. 2023) (noting that “the Constitution even allows for officer's action that resulted from a reasonable ‘mistake of fact'” and finding that the “officers' mistaken belief that [the suspect] possessed a dangerous weapon was reasonable and they were justified in the use of deadly force when he pointed it at them”); Dague v. Dumesic, 286 Fed.Appx. 395, 396 (9th Cir. 2008) (officer's belief that individual posed an immediate threat was reasonable based on the fact that the individual kept his left hand concealed and that it would be “easy enough” to provoke the officer's to shoot him).
The Ninth Circuit has not defined “reasonable suspicion” in this context. In the criminal context, reasonable suspicion means “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Raygoza-Garcia, 902 F.3d 994, 999-1000 (9th Cir. 2018). Reasonable suspicion “is not a particularly high threshold.” United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013). “‘[A] mere hunch is insufficient,” but “the likelihood of criminal activity need not rise to the level required for probable cause.'” Id. (quoting United States v. Arvizu, 534 U.S. 266, 272 (2002)).
These facts are not dispositive of this Court's inquiry on summary judgment, however. There are other factors this Court must consider. To begin with, Rodin was not armed and Hatcher never saw a weapon, which creates a genuine issue as to whether Rodin posed an immediate threat to Hatcher's safety. See Browder, 929 F.3d at 1133 (finding a “genuine dispute” as to whether suspect posed immediate threat to officer's safety where suspect was unarmed and officer “did not see any weapons”). A reasonable jury could also find that when Rodin told Hatcher, “not if I shoot you first,” it was a conditional statement made in response to Hatcher threatening to kill him-making it less likely that the statement was a serious or credible threat.
In addition, Plaintiff argues that “Hatcher unreasonably created an artificial sense of urgency,” Resp. 34, by failing to wait for backup officers to arrive, jumping out of his patrol car with gun drawn, aggressively and repeatedly ordering Rodin to get on the ground, and threatening to kill Rodin. See Browder, 929 F.3d at 1134-35 (noting that “[w]hen an officer creates the very emergency he then resorts to deadly force to resolve, he is not simply responding to a preexisting situation”) (simplified). In Browder, the Ninth Circuit considered the officer's “role in creating the danger” as part of analyzing whether the suspect posed an immediate threat to the officer's safety. Id. The court noted that the officer drove toward a suspect who had reportedly been brandishing a knife at a bookstore clerk; although the officer encountered the suspect walking slowly down an alley “without saying anything or threatening anyone” and the officer initially stated that he did not see a weapon, the officer exited his vehicle and shot the suspect within moments and without warning. Id. Under those facts, “a reasonable factfinder could conclude that any sense of urgency was of [the officer]'s own making.” Id.
Here, viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that Hatcher, like the officer in Browder, “had a lot of time to determine what to do before shooting [Rodin].” See id. Rodin was sitting on a stump in a rural area when Hatcher first spotted him, and he proceeded to walk up Maphet Road with Hatcher following in his patrol car. Hisel Decl. Ex. 3 at 10-11. Like the suspect in Browder, Rodin was not “saying anything or threatening anyone,” and Defendants concede that “Rodin was not actively engaged in a serious crime when initially encountered by Deputy Hatcher.” Reply 8, ECF 45. Hatcher knew that Merkwan was en route to provide backup and had asked him to “step it up,” Merkwan Decl. 3; Hatcher also told OSP that his “intent was to . . . slow play it and downplay it, knowing that [his] partner was [e]n route.” Hisel Decl. Ex. 3 at 11. Despite the backup officers' imminent arrival, Hatcher says that he “needed to detain [] Rodin” because Rodin was “quickly . . . getting near the first residence's driveway” and could “hurt or kill somebody.” Id. However, the evidence does not show that Rodin was in close proximity to any residence, and an aerial video of Maphet Road indicates that the surrounding area was flat, wide-open ground with some structures in the distance but not nearby. Haberman Decl. Ex. 9 at 00:01-04:35, ECF 37-09. A reasonable jury could also find that Hatcher “unnecessarily created [his] own sense of urgency” by keeping Rodin at gunpoint despite knowing that Rodin had not been reaching for a weapon and despite seeing Rodin holding a cell phone in one hand and a Pepsi bottle in the other. See Browder, 929 F.3d at 1135 (noting that “any sense of urgency was of [the officer]'s own making” where officer shot suspect carrying a “metallic blue pen” within five second of exiting his vehicle); cf. Hart, 2024 WL 1689092, at *7 (finding that “[n]othing about the speed of events . . . eliminated [the suspect]'s immediate threat” where “officers responded to an emergency situation involving an armed individual” who held a “knife toward the officers as he approached them”).
In sum, a reasonable jury could find that Rodin posed an immediate threat to Hatcher's safety, and if they did, that would support the use of deadly force. However, the same jury could find that “[Hatcher]'s poor judgment or lack of preparedness caused him . . . to act unreasonably, ‘with undue haste,'” Browder, 929 F.3d at 1135, and that it was unreasonable for Hatcher to think that Rodin posed an immediate threat to Hatcher's safety. Considering the facts in the light most favorable to Plaintiff, the level of danger that Hatcher faced would not support his use of deadly force.
c. Resisting arrest or attempting escape
The third factor in the Graham analysis, whether Rodin was actively resisting or attempting to evade arrest, supports some use force. Rodin offered both passive and active resistance to Hatcher's efforts to detain and arrest him. See Bryan v. MacPherson, 630 F.3d 805, 830 (9th Cir. 2010) (noting that resisting arrest “runs the gamut from the purely passive protestor who simply refuses to stand, to the individual who is physically assaulting the officer”). Although Rodin was initially compliant with Hatcher's orders to get on the ground and keep his hands in view and only passively resisted Hatcher's initial orders to lay on the ground, his resistance became increasingly active. See id. Rodin was verbally combative, he stood up, he was agitated, and he continued to refuse Hatcher's commands to lay on the ground. Such conduct constitutes active resistance. See Mascarena v. Kramer, No. CV18121BLGDLCJCL, 2019 WL 7562409, at *3 (D. Mont. July 17, 2019), report and recommendation adopted, 2019 WL 4786034 (D. Mont. Oct. 1, 2019) (noting that the plaintiff was “flailing, being aggressive, being highly agitated, and cussing” and finding that he “was actively resisting arrest”).
Because Rodin actively resisted arrest, Hatcher was justified in using some force against Rodin to effectuate the arrest. See Luchtel v. Hagemann, 623 F.3d 975, 982 (9th Cir. 2010) (noting that multiple officers pinned a female suspect to the ground causing multiple injuries and finding the force justified as it was “undisputed that [she] was actively resisting arrest”).
d. The availability of less intrusive alternatives
This Court next considers whether it should have been apparent to Hatcher that Rodin was emotionally disturbed, whether there were “less intrusive alternatives to the force [Hatcher] employed,” and whether proper warnings were given. See Isayeva, 872 F.3d at 947 (citation omitted).
The evidence that Rodin was emotionally disturbed starts with Rodin's phone call to 911 at 4:44 a.m. when he told the dispatcher that he had a warrant for his arrest and requested to be picked up before he “flip[ped] out and hurt somebody.” Hisel Decl. Ex. 2 at 4. Officers found the call “unusual” and were concerned that it might be a “suicide by cop situation.” Haberman Decl. Ex. 14 (Silence Depo.) at 16-17, ECF 37-14; Id. Ex. 13 (Hatcher Depo.) (Hatcher stating that he told Silence the situation sounded “sketchy” and “seemed like an ambush or potential suicide by cop”). During Hatcher and Rodin's encounter, Rodin told Hatcher, “Shoot me! Do it! I ain't scared,” and said repeatedly, “I want to die.” See id. Ex. 11 at 00:56-01:10. Rodin also “fake drew” a gun several times despite being held at gunpoint and despite Hatcher's threats to kill him. See id. Those facts indicate mental instability. See Vos v. City of Newport Beach, 892 F.3d 1024, 1034 (9th Cir. 2018). In Vos, the suspect “ran around the store shouting things like, ‘kill me already, dog,'” and was “simulating having a gun behind his back” and told officers, “shoot me.” Id. at 1029. The suspect also ran toward officers who had rifles and handguns pointed at him. Id. The Ninth Circuit found that “[t]hese indications of mental illness create a genuine issue of material fact about whether the government's interest in using deadly force was diminished.” Id. at 1034. Thus, the indications of mental illness in this case create a genuine issue as to Hatcher's diminished interest in using lethal force. See id.
The FAC alleges that Rodin suffered from “schizophrenia and bipolar disorder[,]” ¶9, and a medical record dated March 2021 states that Rodin had “schizoaffective disorder” and “bipolar disorder.” Haberman Decl. Ex. 4 at 1, ECF 37-4. However, there is no evidence that Hatcher or any responding officer knew that Rodin was schizophrenic or bipolar.
In Vos, the court noted that it did not intend to create a “per se rule that in all circumstances the governmental interest in deadly force is diminished where the suspect is mentally ill,” and further noted that the Ninth Circuit has “refused to create two tracks of excessive force analysis, one for the mentally ill and one for serious criminals.” 892 F.3d at 1034 n.9 (emphasis in original).
Where a suspect shows signs of mental instability, the Ninth Circuit has found that officers “should . . . ma[k]e [a] greater effort to take control of the situation through less intrusive means.” Bryan, 630 F.3d at 829; cf. Hart, 2024 WL 1689092, at *10 (“that an individual who poses an immediate threat may be mentally ill does not remove the case from the Graham analysis . . ., and any mental health crisis [the individual] experienced is considered in view of the surrounding circumstances”). Thus, a reasonable jury could find Hatcher's failure to carry a taser or other less lethal weapon unreasonable. See Longoria, 873 F.3d at 708 (noting that officers were “prepared to respond accordingly [to a person showing signs of mental distress] by employing only non-lethal weapons”); see also Glenn, 673 F.3d at 877 (noting that the Ninth Circuit has “recognized . . . that when dealing with an emotionally disturbed individual who is creating a disturbance or resisting arrest, as opposed to a dangerous criminal, officers typically use less forceful tactics”). As in Glenn, a reasonable jury could also find that “rather than immediately drawing [his] weapon and shouting commands and expletives at [Rodin], which predictably escalated the situation instead of bringing it closer to peaceful resolution,” Hatcher “could have attempted the tactics of ‘persuasion' or ‘questioning.'” Id. at 876. This is because, “when dealing with a disturbed individual, increasing the use of force may exacerbate the situation[.]” Id. at 877 (simplified). Hatcher also failed to remain in his patrol vehicle and did not wait for backup officers before attempting to detain Rodin-despite their imminent arrival and despite the fact that Rodin was in a wide-open area with no exigent circumstance. See Bryan, 630 F.3d at 831 (the “[o]fficer . . . knew additional officers were en route to the scene [and] . . . was, or should have been, aware that the arrival of those officers would change the tactical calculus confronting him, likely opening up additional ways to resolve the situation without the need for [a lethal] level of force”). Because a reasonable jury could find that Hatcher failed in multiple ways to use less intrusive means, this factor weighs against Hatcher's use of lethal force.
Last, this Court considers whether “proper warnings” were given before Hatcher shot Rodin. See Glenn, 673 F.3d at 876. In Glenn, the court noted that officers drew their guns on arrival and immediately “scream[ed] commands . . . including expletives and orders like, ‘drop the knife or you're going to die' and ‘drop the fucking knife.'” Id. at 868. The court found that the decedent may not have understood the officers' commands as warnings because he was intoxicated and other people were yelling. Id. Here, the video shows Hatcher immediately holding Rodin at gunpoint and yelling at him to “get on the ground”; Rodin responds from a kneeling position, “you going to kill me motherfucker what's up? I didn't do nothing wrong,” and Hatcher says, “you're goddamn right I'll kill you! Keep your hands where I can see them.” Rodin opens his arms widely with both hands visible saying, “seriously dude . . . fuck . . . I didn't do nothing wrong,” and when Hatcher yells again for Rodin to get on ground, Rodin repeats, with a confused look, “are you serious right now?” A moment later, Rodin says something like, “not if I shoot you first,” and Hatcher responds, “do it and I will blow your fucking head off!” Rodin looks confused and says once again, “are you serious? Come on now, you pull a gun on me, I didn't do nothing to you. What the fuck is your issue? Please tell me what's going on.” Haberman Decl. Ex. 11 at 00:01-00:50.
Based on that evidence, a reasonable jury could find that Hatcher provided “proper warnings” before using lethal force against Rodin, and if so, that would support the use of some force. See Glenn, 673 F.3d at 876 (noting that “warnings should be given, when feasible, if the use of force may result in serious injury”) (citation omitted). Viewing the same evidence in the light most favorable to Plaintiff, however, a reasonable jury could find that Rodin was confused by Hatcher's threatening statements and did not understand them as serious warnings that lethal force was imminent-which would not support the use of lethal force. See id.
3. The Necessity for the Force Used
Last, this Court must “balance the force that was used by the officers against the need for such force to determine whether the force used was greater than reasonable under the circumstances.” Espinosa v. City and Cnty. of S.F., 598 F.3d 528, 537 (9th Cir 2010) (simplified).
Defendants argue that Hatcher's use of deadly force was reasonable because Rodin had a felony warrant, he told dispatch that he had a knife and gun, he threatened Hatcher, and he pretended to reach for a weapon during his encounter with Hatcher. Mot. 18-21. Although these facts support Hatcher's contention concerning the immediacy of the threat, this Court disagrees with his contention that they are dispositive. See Garcia v. Cnty. of Napa, No. 21-CV-03519-HSG, 2023 WL 355148, at *7 (N.D. Cal. Jan. 17, 2023) (noting that “[t]he Court does not, by any means, interpret [Cruz and Sabbe] as holding that any suspect who reaches toward their waistband or has a concealed hand, no matter the circumstances, has justified the use of deadly force”).
Indeed, viewing the evidence in the light most favorable to Plaintiff, the record shows that Rodin was not engaged in any criminal, dangerous, or threatening activity while walking down Maphet Road, and that Hatcher may have created a false sense of urgency by exiting his patrol car, holding Rodin at gunpoint, and yelling commands at him instead of waiting for backup officers to arrive. There is also evidence that Hatcher failed to recognize or respond appropriately to signs of Rodin's mental distress and failed to give proper warnings before shooting Rodin. Based on that evidence, a reasonable jury could find that Hatcher's use of deadly force against Rodin was both unnecessary and unreasonable. See Glenn, 673 F.3d at 879; see also Vos, 892 F.3d at 1034. Thus, there is a genuine issue of material fact as to whether Hatcher violated Rodin's Fourth Amendment right to be free from excessive force.
C. Qualified Immunity Standards
To determine whether a government official is entitled to qualified immunity, courts “courts engage in a two-pronged inquiry.” Tolan v. Cotton, 572 U.S. 650, 655 (2014). “The first asks whether the facts, taken in the light most favorable to the party asserting the injury, . . . show the officer's conduct violated a federal right.” Id. at 655-56 (internal brackets and citations omitted). “The second prong . . . asks whether the right in question was clearly established at the time of the violation.” Id. at 656. A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (simplified). In other words, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. “This demanding standard,” the Supreme Court has noted, “protects ‘all but the plainly incompetent or those who knowingly violate the law.'” D.C. v. Wesby, 583 U.S. 48, 63 (2018) (quotingMalley v. Briggs, 475 U.S. 335, 341 (1986)). The “plaintiff . . . bears the burden of showing that the rights allegedly violated were clearly established.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (simplified).
“In determining whether the applicable law is ‘clearly established,' so as to defeat qualified immunity, the Supreme Court ‘has repeatedly told courts-and the Ninth Circuit in particular-not to define clearly established law at a high level of generality.'” Est. of Hernandez by & through Hernandez v. City of Los Angeles, 96 F.4th 1209, 1218-19 (9th Cir. 2024) (quoting Kisela v. Hughes, 584 U.S. 100, 104 (9th Cir. 2018)). “While a case addressing general principles may clearly establish a right in an obvious case, such obvious cases are rare.” Waid v. Cnty. of Lyon, 87 F.4th 383, 388 (9th Cir. 2023). Thus, “it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for a trial on the question of reasonableness.” Kisela, 584 U.S. at 104. Rather, the “law at the time of the conduct” must have defined the relevant constitutional “right's contours” in a manner that is “sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it.” Id. at 104-05 (citations omitted).
“This need for ‘ [s]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that it 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.'” Est. of Hernandez, 96 F.4th at 1218-19 (quoting Kisela, 584 U.S. at 104). Because “[u]se of excessive force is an area of the law ‘in which the result depends very much on the facts of each case,' . . . police officers are entitled to qualified immunity unless existing precedent ‘squarely governs' the specific facts at issue.” Id. (emphasis added) (citation omitted). Put differently, “plaintiffs must show controlling authorities (or a consensus of persuasive ones) that would have put every reasonable officer on notice that [the officer's conduct] violated the Fourth Amendment.” Waid, 87 F.4th at 389.
D. Analysis
As discussed above, there is a genuine issue of material fact as to whether Hatcher violated Rodin's Fourth Amendment right to be free from excessive force. Thus, the qualified immunity inquiry focuses on whether the right at issue was clearly established, which requires Plaintiff to point to existing precedent that squarely governs the use of force in this case.
In the briefing, Plaintiff initially argued that this was an “obvious” use of excessive force. Resp. 47 (alleging that shooting an individual who was clearly trying to provoke an officer into assisting him in suicide-by-cop while unarmed and displaying apparent symptoms of a mental health crisis would be an “obvious case involving the unreasonable use of lethal force against a non-threatening suspect.”). At oral argument, however, Plaintiff conceded that this was not the “rare case” where general principals demonstrate that the use of force was obviously unreasonable.
Plaintiff argues that it was clearly established that Hatcher's use of lethal force was unconstitutional and relies on Vos, 892 F.3d at 1032-34, and Browder, 929 F.3d 1125. Resp. 4750. For reasons set forth above, both cases support Plaintiff's position that the force in this case was unreasonable. “But there is a difference between concluding that [these cases] support[] Plaintiffs' position on the merits and concluding that [they] place the outcome of this case ‘beyond debate.'” Est. of Hernandez, 96 F.4th at 1219. Because there are “material factual differences in that precedent that would preclude [this Court] from saying that [those cases] ‘squarely govern' the specific facts at issue,” id., this Court cannot say that Hatcher is not entitled to qualified immunity.
Before addressing the specific cases identified by Plaintiff, it is important to identify that material facts that are both undisputed and central to this Court's qualified immunity analysis: (1) Hatcher had a reasonable (but mistaken) suspicion that Rodin was armed; (2) Rodin was noncompliant with Hatcher's orders and actively resisted arrest; and (3) Rodin feigned reaching back for a weapon multiple times prior to being shot and immediately before he was shot. Because the cases cited by Plaintiff include materially different facts, this Court must conclude that Hatcher is entitled to qualified immunity.
In Vos, at least eight officers responded to a 7-Eleven store where the decedent, Vos, was running around with a pair of scissors, cursing at people, and shouting things like, “kill me already.” 892 F.3d at 1028-29. Although Vos had pretended to have a gun when he was inside the store, he never told any officer that he would shoot them, and the officers had no reason to think he had a gun; in fact, the officers knew that Vos was only “simulating having a handgun behind his back.” Id. When the officers arrived, they positioned two police vehicles in a “v” formation outside the store's front entrance and used the vehicles' doors for cover. Id. at 1029. When Vos ran out of the store holding an object above his head, someone shouted that he had scissors and another officer told Vos twice to “drop the weapon.” Id. When Vos “kept charging toward the officers[,]” they shot him four times and killed him. Id.
Here, in contrast, Rodin told Hatcher “not if I shoot you first,” and pretended to reach for a gun multiple times during their encounter. Unlike the officers in Vos, Hatcher had some basis for suspecting that Rodin may have been armed and did not know that Rodin was merely “simulating having a handgun behind his back.” See Vos, 892 F.3d at 1029. Based on those significant factual differences, Vos did not provide Hatcher with notice that his use of lethal was unconstitutional in the circumstances that he encountered with Rodin.
Plaintiff argues that Hatcher's use of deadly force is similar to Browder, 929 F.3d at 1125; Resp. 29. Again, however, this Court disagrees. In Browder, the officer shot a killed a suspect from seventeen feet away who had been brandishing a knife at a bookstore clerk- despite failing to warn the suspect and despite the fact that the suspect was unarmed. Id. at 1134. Unlike Hatcher, the officer in Browder did not believe that the suspect may have armed with a gun, and unlike Rodin, the suspect never threatened to shoot or harm the officer. Id. Moreover, it is undisputed Rodin was combative with Hatcher, swore at him, actively resisted Hatcher's commands, and made several quick movements with his right hand. In Browder, the suspect was not “aggressive in nature,” and the officer testified that the suspect never said anything and never made any sudden moves. Id. Accordingly, Browder contains multiple, distinguishable material facts.
The material factual distinctions between the cases Plaintiff identified - Vos and Browder - are, standing alone, sufficient to conclude that Hatcher is entitled to qualified immunity. See Hart, 2024 WL 1689092, at *11 (noting that “[the p]laintiffs have the burden of showing that the law was clearly established” and finding that “[n]one of the cases [the p]laintiffs have identified . . . put the constitutional question beyond debate”).
Defendant also relies heavily on Cruz, 765 F.3d at 1078, to demonstrate that it would not have been clear to Hatcher that his conduct was unlawful. In Cruz, a confidential informant told the police that Cruz was a gang member who sold methamphetamine, carried a gun, had a past felony conviction, and had said that “he was not going back to prison.” 765 F.3d 1076, 1077-78 (9th Cir. 2014). Multiple police officers pulled Cruz over for a broken taillight. Id. at 1078. The officers surrounded him, and Cruz tried to escape by backing his SUV into a marked patrol car. Id. The officers exited their vehicles with their guns lowered and ordered Cruz to get on the ground. Id. According to the officers, Cruz exited his car, ignored their commands, and reached for the waistband of his pants, prompting all five officers to open fire. Id. Cruz was unarmed when he died but police recovered a loaded gun in the passenger seat. Id.
The Ninth Circuit ultimately denied summary judgment to the officer and denied qualified immunity because there were multiple disputed facts pertaining to whether Cruz was reaching for his waistband when he was shot. Id. In addressing those facts, the Ninth Circuit stated:
It would be unquestionably reasonable for police to shoot a suspect in Cruz's position if he reaches for a gun in his waistband, or even if he reaches there for some other reason. Given Cruz's dangerous and erratic behavior up to that point, the police would doubtless be justified in responding to such a threatening gesture by opening fire. Conversely, if the suspect doesn't reach for his waistband or make some similar threatening gesture, it would clearly be unreasonable for the officers to shoot him after he stopped his vehicle and opened the door. At that point, the suspect no longer poses an immediate threat to the police or the public, so deadly force is not justified.Id. at 1078-79.
The reasonableness of the officer's use of force in Cruz, like most Fourth Amendment cases, is dependent on the specific facts of that case. Yet Cruz draws a line between a suspect who may be armed and is actively reaching for what could be a weapon and a suspect who is armed but not reaching for a weapon. See Peck v. Montoya, 51 F.4th 877, 888 (9th Cir. 2022) (noting that the Ninth Circuit has “repeatedly distinguished between a suspect who is actively reaching for a weapon and a suspect who is armed but not reaching for the weapon . . . Cruz establishes that officers may not fire at a suspect-even an armed suspect-absent some reason to believe that the suspect will soon access or use the weapon.”). To be sure, the facts in the present case are distinguishable from Cruz, and this Court does not think it was “unquestionably reasonable” for Hatcher to use deadly force on Rodin simply because he may have been armed, was ignoring commands, and was reaching backward. Nevertheless, Cruz cuts sharply against Plaintiff's position that the use of force in this case was unreasonable, further adding to the debate on that issue.
In sum, Plaintiff fails to satisfy his burden to identify a sufficiently analogous case to show that it was clearly established that Hatcher's use of lethal force was unconstitutional. Vos and Browder support Plaintiff's position but contain material factual differences, and Cruz only adds to the debate surrounding the reasonableness of Hatcher's use of force. Hatcher is therefore entitled to qualified immunity on Plaintiff's excessive force claim, and summary judgment should be granted to Hatcher on that claim.
II. Wrongful Death Claim
Plaintiff's wrongful death claim alleges that Defendants' negligent acts created an unreasonable and foreseeable risk that Rodin would be killed and did in fact cause Rodin's death. FAC ¶46. Plaintiff alleges that Hatcher was negligent by “promptly and repeatedly provoking Rodin with death threats[,]” and “repeatedly shouting commands at Rodin that Rodin was already complying with[,]” Id. ¶47; Plaintiff further alleges that Hatcher was negligent by “failing to wait for the other officers before confronting Rodin on his own without waiting for the other officers to assist him” and by failing to
keep a safe distance from Rodin; . . . maintain a non-threatening stance; . . . refrain from using sudden movements; . . . maintain a steady attitude that is calm; . . . be firm but patient and reassuring; . . . use de-escalation tactics; . . . recognize and treat Rodin as a person suffering from a mental health episode that needed his assistance rather than death threats; . . . consider and use less lethal alternatives; . . . discern whether Rodin was actually armed; . . . implement any plan to apprehend Rodin other than to threaten and use deadly force.Id. Plaintiff alleges that Crook County was negligent by “failing to expressly instruct Hatcher to wait for the other officers to arrive before confronting Rodin on his own[,]” and by “failing to adequately provide Hatcher with working less-lethal weapons and alternatives[.]” Id. ¶48-49.
Defendants argue that Plaintiff's negligence claim cannot survive summary judgment because “Plaintiff must establish the standard of care before he can show Defendants deviated from it.” Mot. 24. That argument misconstrues Oregon law. In Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17 (1987), the Oregon Supreme Court “stepped away from the traditional concepts of ‘duty,' ‘breach of duty,' and ‘proximate cause' as aids to determine whether a plaintiff could maintain a claim for negligence.” Moody v. Oregon Cmty. Credit Union, 371 Or. 772, 783 (2023). Instead, the court “reformulated the relevant question as whether the defendant's ‘conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.'” Id. (citing Fazzolari, 303 Or. at 17); see also Towe v. Sacagawea, Inc., 357 Or. 74, 86 (2015) (noting that “the more traditional duty-breach analysis in an ordinary negligence claim is supplanted by the whether the defendant's conduct resulted in a foreseeable and unreasonable risk of harm of the kind that the plaintiff suffered”). It is “now settled” that a negligence claim must plead and prove the following: “(1) that [the] defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that [the] defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of [the] plaintiff's harm, and (5) that [the] plaintiff was within the class of persons and plaintiff's injury was within the general type of potential incidents and injuries that made defendant's conduct negligent.” Moody, 371 Or. at 784 (citing Solberg v. Johnson, 306 Or. 484, 490-91 (1988)).
Based on these standards, Plaintiff is not required to show “a violation of the standard practices of police work,” Reply 14, for the wrongful death claim to survive summary judgment. Instead, on summary judgment, Plaintiff is required to establish a factual dispute as to whether Defendants' conduct caused a foreseeable risk of harm. Therefore, Defendants are not entitled to summary judgment based Plaintiff's alleged failure to establish the standard of care for police practices.
In addition, Defendants argue broadly that Plaintiff's “negligence claim still fails because the estate cannot demonstrate causation.” Mot. 25. In a wrongful death action brought under OR. REV. STAT. § 30.020, “[t]he plaintiff . . . must prove that a defendant's tortious act or omission was the cause-in-fact of the decedent's death.” Box v. Dep't of Oregon State Police, 311 Or.App. 348, 368, opinion adhered to as modified on reconsideration sub nom. Box v. State, 313 Or.App. 802 (2021). Cause-in-fact “generally requires evidence of a reasonable probability that, but for the defendant's negligence, the plaintiff would not have been harmed.” Id. (simplified). A plaintiff “need not present direct evidence that the defendant's negligent conduct caused the injury, or that the injury would not have otherwise occurred.” Id. at 703 (citation omitted). Rather, “causation may be proved by circumstantial evidence, expert testimony, or common knowledge.” Id. (simplified).
Defendants take specific issue with Plaintiff's failure to introduce expert testimony on causation. Mot. 25. But there is no requirement that Plaintiff introduce expert testimony to demonstrate that the allegedly negligent acts and omissions in this case-from either Hatcher individually or through Crook County-caused Rodin's death. A reasonable juror, relying on circumstantial evidence and common knowledge, could conclude that there is a reasonable probability that the shooting would not have occurred absent Hatcher's and Crook County's negligent conduct because it is Hatcher's and Crook County's pre-shooting negligence that put Hatcher in a position to have to make a split-second decision whether or not to shoot and kill Rodin. See Box, 311 Or.App. at 374. Expert testimony is therefore not required to demonstrate causation.
Defendants also cite Plaintiff's allegation that Rodin was experiencing a “mental health episode triggered by or exacerbated by Hatcher's conduct,” see FAC ¶9, and argue that Plaintiff must cite evidence to show the causal effect between Hatcher's conduct and Rodin's triggered mental health condition. Id. Similarly, Defendants take issue with Plaintiff's allegation that Hatcher failed to “recognize and treat Rodin as a person suffering from a mental health episode[,]” Reply 15, and argue that Plaintiff failed to cite “evidence that there was, in fact, a mental health episode” or that Hatcher's “failure to recognize it caused the shooting to take place.” Id.
Defendants misread Plaintiff's negligence claim. One basis of Hatcher's alleged negligence is that he failed to “recognize and treat Rodin as a person suffering from a mental health episode that needed his assistance. Id. ¶47. This allegation is based on the objective facts known to Hatcher; it is not based on Rodin's actual mental health conditions or diagnoses. Furthermore, the causal link between Hatcher's conduct and Rodin's death is not dependent on whether Rodin's mental health episode was triggered or exacerbated by Hatcher's conduct. Rather, Plaintiff alleges that Hatcher's conduct, including his failure to appropriately recognize and treat Rodin as a person suffering from a mental health episode, caused him to unnecessarily shoot Rodin. See FAC ¶¶26-27. Therefore, Plaintiff is not required to introduce evidence as to Rodin's mental state at the time to proceed with this allegation of negligence.
In Plaintiff's response he points out that “Hatcher received a training titled ‘Responding to People with Mental Illness” and argues that the course “taught Hatcher how to ‘[i]dentify common situations encountered when interacting with people with mental illness[,]” and “taught Hatcher how to identify the symptoms of depression, bipolar disorder, suicide risk, and schizophrenic disorder.” Resp. 11. Whether Hatcher failed to follow this training, and whether that failure was the cause of the harm to Rodin, are questions for the jury.
In reaching this conclusion, this Court expresses no opinion as to the relevance and admissibility of any evidence concerning Rodin's actual mental health condition and diagnoses at the time of the shooting, particularly given Plaintiff's decision to not rely on expert testimony on that issue.
In sum, Defendants argue broadly that “Plaintiff fails to establish causation,” Mot. 25, but they fail to show that no reasonable jury could find that Defendants' alleged acts and omissions were the cause-in-fact of Rodin's death. Defendants are therefore not entitled to summary judgment on Plaintiff's wrongful death claim.
RECOMMENDATION
Defendants' Motion for Summary Judgment, ECF 23, should be GRANTED as to Plaintiff's Fourth Amendment excessive force claim against Hatcher, and DENIED as to Plaintiff's wrongful death claim against Hatcher and Crook County.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.