1 2 3 4 5 6 7 10 11 A.G.1, et al., Case No. 1:16-CV-1914-JLT-SAB 12 Plaintiffs, ORDER SETTING SCOPE OF TRIAL 13 v. 14 CITY OF FRESNO, et al., 15 Defendants. 16 17 This case is set for jury trial scheduled to begin on June 21, 2023. The parties agree that 18 the sole issue for trial is Plaintiffs’ state law negligence claim, but there is disagreement as to the 19 scope of that claim. The Court ordered supplemental briefing at the pretrial conference on 20 February 13, 2023. For the reasons explained below, the scope of trial will include all 21 circumstances surrounding and materially applicable to the shooting in the case, including 22 preshooting conduct and the shooting itself. 24 The facts of this case are laid out in the Court’s prior orders. (Docs. 29, 42, 55.) In brief, 25 Fresno Police Department Officer Zebulon Price shot and killed decedent Raymond Angel 26 Gonzalez after a foot chase in March 2016. Gonzalez’s family members brought the instant suit 27 and alleged excessive force, violation of substantive due process, municipal liability under 42 28 U.S.C. § 1983, and state law causes of action for assault, battery, negligence, and wrongful death. 1 Relying in large part on the body camera video of the incident, this Court granted 2 Defendants summary judgment as to all claims in August 2018. (Doc. 29.) On appeal, the Ninth 3 Circuit agreed that defendant Price did not violate the decedent’s Fourth Amendment rights, 4 because Price’s deadly use of force was “objectively reasonable” under the balancing test set 5 forth in Graham v. Connor, 490 U.S. 386, 396 (1989). However, the Ninth Circuit reversed and 6 remanded the grant of summary judgment as to plaintiff’s state law negligence claim on the 7 grounds that the district court improperly applied the Fourth Amendment standard to the 8 negligence claim. (Doc. 42 at 4.) The panel noted that the Fourth Amendment analysis is 9 “narrower” and “plac[es] less emphasis on preshooting conduct” than the proper analysis 10 applicable to the negligence claim. (Doc. 42 at 4, citing Vos v. City of Newport Beach, 892 F.3d 11 1024, 1037 (9th Cir. 2018) and Hayes v. City of San Diego, 57 Cal.4th 622, 639 (2013)) (internal 12 quotations omitted). On remand, this Court denied Defendants’ motion for summary judgment as 13 to the remaining negligence claim. (Doc. 55.) The negligence claim is the sole remaining claim 14 currently scheduled for resolution via jury trial beginning June 21, 2023. 15 The parties disagree as to the ultimate scope of the trial as to the negligence claim, and 16 each has submitted targeted briefing on that issue. (Docs. 77–80.) Defendants argue that because 17 the Ninth Circuit has already held that the shooting itself was “objectively reasonable” as a matter 18 of law, the jury should be permitted to consider only evidence concerning whether Officer Price’s 19 preshooting conduct was negligent. Plaintiffs argue that the jury should be shown “all the 20 evidence,” including footage of the shooting itself, to determine whether Price’s overall conduct 21 was negligent in the totality of the circumstances. (Doc. 78 at 2.) In other words, Plaintiffs see 22 the preshooting conduct as one factor impacting the reasonableness of the entire interaction, and 23 Defendants argue that the reasonableness of the preshooting conduct is the only factor remaining 24 for jury decision. Accordingly, Defendants request that the Court “narrowly limit evidence, jury 25 instructions and any special verdict solely to the issue of determining whether Plaintiffs have met 26 their burden of establishing that any pre-shooting tactics of Officer Price were negligent” such 27 that the jury “not be permitted to address whether the use of deadly force at the moment it was 28 applied was objectively reasonable.” (Doc. 77 at 5.) 2 The facts of this case are remarkably similar to those in Hayes v. County of San Diego, 57 3 Cal. 4th 622 (2013), a case in which the California Supreme Court discussed state law negligence 4 liability for police conduct in detail. The plaintiff in Hayes, via guardian ad litem, sued the 5 County of San Diego and two officers for the shooting death of her father. The plaintiff alleged 6 Fourth and Fourteenth Amendment claims, and one state claim alleged negligence as to the 7 confrontation with the decedent. The interaction between the officers and the decedent was 8 preceded by a call from neighbors who heard screaming in the decedent’s home. Upon arrival, 9 the decedent’s girlfriend informed the officers that the decedent had been suicidal earlier in the 10 day, and the girlfriend was concerned for the decedent’s safety. The two officers entered the 11 home to determine whether the decedent was a danger to himself. Hayes, 57 Cal.4th at 626. The 12 officers found the decedent in the kitchen with a large knife. The officers ordered the decedent to 13 show his hands, then opened fire when the decedent walked toward them with the knife raised in 14 his right hand. 15 The federal district court granted summary judgment in favor of defendants on all claims. 16 The court found that it was objectively reasonable for the officers to conclude that the decedent 17 posed a “significant threat of death or serious physical injury to themselves or others,” which 18 justified their use of deadly force under the Fourth Amendment. Hayes, 57 Cal.4th at 627. 19 Analyzing the state negligence claims separately, the district court rejected the plaintiff’s 20 argument that the officers negligently provoked the dangerous situation and held that the officers 21 owed no duty of care with respect to preshooting conduct and decisions. Essentially, because the 22 shooting was reasonable in light of the decedent approaching with a knife, the district court held 23 that the officer’s preshooting conduct could not give rise to negligence liability. 24 On appeal, the Ninth Circuit asked the California Supreme Court to weigh in as to 25 “[w]hether under California negligence law, sheriff's deputies owe a duty of care to a suicidal 26 person when preparing, approaching, and performing a welfare check on him.” Hayes v. County 27 of San Diego, 658 F.3d 867, 868 (9th Cir. 2011). The California Supreme Court explicitly 28 declined to answer that question. Instead, it rephrased the inquiry as “[w]hether under California 1 negligence law, liability can arise from tactical conduct and decisions employed by law 2 enforcement preceding the use of deadly force.” Hayes, 57 Cal.4th at 630. It did so because the 3 Ninth Circuit’s phrasing of the issue: 4 “focuse[d] in isolation on events that preceded the shooting . . . not on the shooting itself. Thus, it implicitly divides[d]the encounter 5 . . . into two parts, suggesting that defendants here might have breached two separate duties. The first duty would be to prepare, 6 approach, and perform a welfare check on a suicidal person in a reasonable manner, a duty that may or may not exist. The second 7 duty would be to use deadly force in a reasonable manner”. 8 Hayes, 57 Cal.4th at 630. 9 The California Supreme Court emphasized that this division of the encounter was 10 improper because the case only involved a single, indivisible cause of action that sought recovery 11 for a single wrong: the shooting itself. It further explained: 12 Because plaintiff did not allege a separate injury from the preshooting conduct of law enforcement personnel, the preshooting 13 conduct is only relevant here to the extent it shows, as part of the totality of circumstances, that the shooting itself was negligent.
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1 2 3 4 5 6 7 10 11 A.G.1, et al., Case No. 1:16-CV-1914-JLT-SAB 12 Plaintiffs, ORDER SETTING SCOPE OF TRIAL 13 v. 14 CITY OF FRESNO, et al., 15 Defendants. 16 17 This case is set for jury trial scheduled to begin on June 21, 2023. The parties agree that 18 the sole issue for trial is Plaintiffs’ state law negligence claim, but there is disagreement as to the 19 scope of that claim. The Court ordered supplemental briefing at the pretrial conference on 20 February 13, 2023. For the reasons explained below, the scope of trial will include all 21 circumstances surrounding and materially applicable to the shooting in the case, including 22 preshooting conduct and the shooting itself. 24 The facts of this case are laid out in the Court’s prior orders. (Docs. 29, 42, 55.) In brief, 25 Fresno Police Department Officer Zebulon Price shot and killed decedent Raymond Angel 26 Gonzalez after a foot chase in March 2016. Gonzalez’s family members brought the instant suit 27 and alleged excessive force, violation of substantive due process, municipal liability under 42 28 U.S.C. § 1983, and state law causes of action for assault, battery, negligence, and wrongful death. 1 Relying in large part on the body camera video of the incident, this Court granted 2 Defendants summary judgment as to all claims in August 2018. (Doc. 29.) On appeal, the Ninth 3 Circuit agreed that defendant Price did not violate the decedent’s Fourth Amendment rights, 4 because Price’s deadly use of force was “objectively reasonable” under the balancing test set 5 forth in Graham v. Connor, 490 U.S. 386, 396 (1989). However, the Ninth Circuit reversed and 6 remanded the grant of summary judgment as to plaintiff’s state law negligence claim on the 7 grounds that the district court improperly applied the Fourth Amendment standard to the 8 negligence claim. (Doc. 42 at 4.) The panel noted that the Fourth Amendment analysis is 9 “narrower” and “plac[es] less emphasis on preshooting conduct” than the proper analysis 10 applicable to the negligence claim. (Doc. 42 at 4, citing Vos v. City of Newport Beach, 892 F.3d 11 1024, 1037 (9th Cir. 2018) and Hayes v. City of San Diego, 57 Cal.4th 622, 639 (2013)) (internal 12 quotations omitted). On remand, this Court denied Defendants’ motion for summary judgment as 13 to the remaining negligence claim. (Doc. 55.) The negligence claim is the sole remaining claim 14 currently scheduled for resolution via jury trial beginning June 21, 2023. 15 The parties disagree as to the ultimate scope of the trial as to the negligence claim, and 16 each has submitted targeted briefing on that issue. (Docs. 77–80.) Defendants argue that because 17 the Ninth Circuit has already held that the shooting itself was “objectively reasonable” as a matter 18 of law, the jury should be permitted to consider only evidence concerning whether Officer Price’s 19 preshooting conduct was negligent. Plaintiffs argue that the jury should be shown “all the 20 evidence,” including footage of the shooting itself, to determine whether Price’s overall conduct 21 was negligent in the totality of the circumstances. (Doc. 78 at 2.) In other words, Plaintiffs see 22 the preshooting conduct as one factor impacting the reasonableness of the entire interaction, and 23 Defendants argue that the reasonableness of the preshooting conduct is the only factor remaining 24 for jury decision. Accordingly, Defendants request that the Court “narrowly limit evidence, jury 25 instructions and any special verdict solely to the issue of determining whether Plaintiffs have met 26 their burden of establishing that any pre-shooting tactics of Officer Price were negligent” such 27 that the jury “not be permitted to address whether the use of deadly force at the moment it was 28 applied was objectively reasonable.” (Doc. 77 at 5.) 2 The facts of this case are remarkably similar to those in Hayes v. County of San Diego, 57 3 Cal. 4th 622 (2013), a case in which the California Supreme Court discussed state law negligence 4 liability for police conduct in detail. The plaintiff in Hayes, via guardian ad litem, sued the 5 County of San Diego and two officers for the shooting death of her father. The plaintiff alleged 6 Fourth and Fourteenth Amendment claims, and one state claim alleged negligence as to the 7 confrontation with the decedent. The interaction between the officers and the decedent was 8 preceded by a call from neighbors who heard screaming in the decedent’s home. Upon arrival, 9 the decedent’s girlfriend informed the officers that the decedent had been suicidal earlier in the 10 day, and the girlfriend was concerned for the decedent’s safety. The two officers entered the 11 home to determine whether the decedent was a danger to himself. Hayes, 57 Cal.4th at 626. The 12 officers found the decedent in the kitchen with a large knife. The officers ordered the decedent to 13 show his hands, then opened fire when the decedent walked toward them with the knife raised in 14 his right hand. 15 The federal district court granted summary judgment in favor of defendants on all claims. 16 The court found that it was objectively reasonable for the officers to conclude that the decedent 17 posed a “significant threat of death or serious physical injury to themselves or others,” which 18 justified their use of deadly force under the Fourth Amendment. Hayes, 57 Cal.4th at 627. 19 Analyzing the state negligence claims separately, the district court rejected the plaintiff’s 20 argument that the officers negligently provoked the dangerous situation and held that the officers 21 owed no duty of care with respect to preshooting conduct and decisions. Essentially, because the 22 shooting was reasonable in light of the decedent approaching with a knife, the district court held 23 that the officer’s preshooting conduct could not give rise to negligence liability. 24 On appeal, the Ninth Circuit asked the California Supreme Court to weigh in as to 25 “[w]hether under California negligence law, sheriff's deputies owe a duty of care to a suicidal 26 person when preparing, approaching, and performing a welfare check on him.” Hayes v. County 27 of San Diego, 658 F.3d 867, 868 (9th Cir. 2011). The California Supreme Court explicitly 28 declined to answer that question. Instead, it rephrased the inquiry as “[w]hether under California 1 negligence law, liability can arise from tactical conduct and decisions employed by law 2 enforcement preceding the use of deadly force.” Hayes, 57 Cal.4th at 630. It did so because the 3 Ninth Circuit’s phrasing of the issue: 4 “focuse[d] in isolation on events that preceded the shooting . . . not on the shooting itself. Thus, it implicitly divides[d]the encounter 5 . . . into two parts, suggesting that defendants here might have breached two separate duties. The first duty would be to prepare, 6 approach, and perform a welfare check on a suicidal person in a reasonable manner, a duty that may or may not exist. The second 7 duty would be to use deadly force in a reasonable manner”. 8 Hayes, 57 Cal.4th at 630. 9 The California Supreme Court emphasized that this division of the encounter was 10 improper because the case only involved a single, indivisible cause of action that sought recovery 11 for a single wrong: the shooting itself. It further explained: 12 Because plaintiff did not allege a separate injury from the preshooting conduct of law enforcement personnel, the preshooting 13 conduct is only relevant here to the extent it shows, as part of the totality of circumstances, that the shooting itself was negligent. 14 Thus, a final determination that the shooting was not negligent would preclude plaintiff from pursuing a separate theory of liability based 15 on the preshooting conduct alone . . . 16 Through [restating the question, the Court] “sought to avoid any misleading reference to a separate preshooting duty (not at issue 17 here), and we put the focus on whether liability for the unreasonable use of deadly force by a peace officer can be based on preshooting 18 conduct. 19 Hayes, 57 Cal. 4th at 631. Thus, Defendants’ assertion that a state negligence analysis permits 20 “consideration of an officer’s duty to act reasonably with respect to preshooting tactics and 21 conduct” misstates Hayes’s conclusions. (Doc. 77 at 4.) Hayes made clear that where 22 preshooting conduct did not cause plaintiff any injury independent of the injury resulting from the 23 shooting, “the reasonableness of the officers’ preshooting conduct should not be considered in 24 isolation. Rather, it should be considered in relation to the question whether the officers’ ultimate 25 use of deadly force was reasonable.” Hayes, 57 Cal.4th at 632. In other words, the preshooting 26 contact should be considered as “part of the totality of the circumstances surrounding the fatal 27 shooting” in a negligence claim. Hayes, 57 Cal.4th at 637. 28 In this way, a negligence analysis is broader than the Fourth Amendment. The Fourth 1 Amendment “tends to focus more narrowly than state tort law on the moment when deadly force 2 is used, placing less emphasis on preshooting conduct.” Hayes, 57 Cal. 4th at 638 (“The Fourth 3 Amendment's ‘reasonableness' standard is not the same as the standard of ‘reasonable care’ under 4 tort law, and negligent acts do not incur constitutional liability”) (internal quotations and citations 5 omitted). 6 Hayes’s discussion of Grudt v. City of Los Angeles, 2 Cal. 3d 575 (1970), provides further 7 instruction. There, an officer in plain clothes was carrying a double-barreled shotgun when he 8 approached a car. The driver, possibly thinking he was being robbed or attacked, accelerated the 9 car towards a second plainclothes officer. The driver was killed when both officers opened fire. 10 As described by Hayes: 11 Significantly, the shooting in Grudt appeared justified if examined in isolation, because the driver was accelerating his car toward one of 12 the officers just before the shooting. Nevertheless, we concluded that the totality of the circumstances, including the preshooting conduct 13 of the officers, might persuade a jury to find the shooting negligent. 14 Hayes, 57 Cal. 4th at 629 (emphasis added). 15 In sum, according to Hayes, the applicable question in a state law negligence claim for an 16 officer-involved shooting is not whether the preshooting conduct is itself negligent; it is whether 17 the preshooting conduct renders the shooting itself negligent. The Court’s prior order denying 18 Defendants’ motion to dismiss reflects this standard. (Doc. 55 at 5, defining the remaining 19 question for trial as whether defendant Price’s preshooting actions “have the potential to render 20 his ultimate conduct negligent under California law”) (emphasis added). 21 Defendants’ arguments to the contrary are unavailing. Aside from misstating Hayes’s 22 conclusions, the defense relies on Los Angeles v. Mendez, in which the Supreme Court ruled that 23 uses of force deemed reasonable under the Fourth Amendment cannot later become unreasonable 24 by way of additional Fourth Amendment violations that preceded the use of force. (Doc. 77 at 4, 25 citing Mendez, 137 S. Ct. 1537, 1547 (2017).) But, as Defendants acknowledge, Mendez only 26 analyzed whether Fourth Amendment claims could be rendered unreasonable by way of preceding 27 conduct. 28 Somewhat alternatively, Defendants appear to argue that the jury should be informed of 1 the prior Fourth Amendment reasonableness finding and instructed that they can only find 2 negligence liability if defendant Price’s preshooting conduct “completely alter[s] or off-set[s] all 3 other reasonable factors” as found by the Ninth Circuit. In support, Defendants briefly claim that 4 the Ninth Circuit’s prior Fourth Amendment reasonableness finding is the “law of the case” 5 which must be followed in this proceeding. (Doc. 77 at 5.) 6 “Under the ‘law of the case’ doctrine, a court is ordinarily precluded from reexamining an 7 issue previously decided by the same court, or a higher court, in the same case.” United States v. 8 Jingles, 702 F.3d 494, 499 (9th Cir. 2012), cert. denied, 133 S. Ct. 1650 (2013) (citing 9 Richardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988)). The Ninth Circuit has held that 10 the law of the case doctrine applies to both legal conclusions and decisions regarding factual 11 issues. See Pit River Home and Agric. Coop. Ass’n v. United States, 30 F.3d 1088, 1096–97 (9th 12 Cir. 1994). “For the doctrine to apply, the issue in question must have been decided explicitly or 13 by necessary implication in [the] previous disposition.” Jingles, 702 F.3d at 499. 14 Here, the Ninth Circuit did not make explicit findings; instead, it held that the district 15 court “did not err” in its overall conclusion that the shooting was reasonable by Fourth 16 Amendment—not state law negligence—standards. Similarly, the district court’s legal 17 conclusions that were affirmed by the Ninth Circuit were Fourth Amendment conclusions not 18 relevant to the remaining negligence claim. However, to the extent that the prior order granting 19 summary judgment (Doc. 29) made specific factual findings necessary to the Court’s judgment, 20 those factual findings are binding and not open to reexamination at trial.1 22 For the reasons discussed above, the scope of trial will include all circumstances 23 surrounding and materially applicable to the shooting in the case—including preshooting conduct 24 and the shooting itself—except those facts material to the Court’s judgment in its prior order, 25 (Doc. 29). The Court encourages the parties to stipulate to as many facts as possible to avoid 26 27 1 The Court notes that many such facts were derived from the parties’ own submissions that described the facts as 28 “undisputed”. (See Doc. 24-1.) 1 | disagreement and delay during trial. This ruling is without prejudice to more specific motions or 2 | evidentiary objections. 3 5 Dated: _ April 28, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28