Andrich v. Kostas

• Court: District Court, D. Arizona
• Decided: July 22, 2022
• Docket: 2:19-cv-02212
• Status: Unknown

Opinion

Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 1 of 40

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Louise Andrich, No. CV-19-02212-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Gus Kostas, et al., 13 Defendants. 14 15 This lawsuit arises from the fatal shooting of Alexandre Andrich (“Andrich”) by 16 Phoenix Police Department (“PPD”) Officer Gus Kostas. Plaintiff is Louise Andrich, who 17 is suing both in her individual capacity as Andrich’s sister and as the administrator of 18 Andrich’s estate. Now pending before the Court is a motion for summary judgment filed 19 by Officer Kostas and fellow PPD Officer Brian Peters (together, “Defendants”). (Doc. 20 86.) For the following reasons, the motion is granted. 21 BACKGROUND 22 I. Factual Background 23 In their motion papers, the parties present sharply different factual accounts of the 24 underlying incident. Because the summary judgment analysis turns, in significant part, on 25 which version of the facts must be accepted, and because particular care in examining the 26 record is necessary in “cases in which the victim of alleged excessive force has died . . . 27 because the witness most likely to contradict the officers’ story is unable to testify,” 28 Gregory v. Cnty. of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008) (cleaned up), the Court Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 2 of 40

1 begins with a detailed summary of the underlying facts, indicating as appropriate where 2 one side’s version of the facts need not be credited. 3 For purposes of this factual summary, all legitimate disputes of fact have been 4 resolved in Plaintiff’s favor as the non-movant. Fresno Motors, LLC v. Mercedes Benz 5 USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (“The court views the evidence in the light 6 most favorable to the non-moving party to determine if there are any genuine issues of 7 material fact and whether the moving party is entitled to judgment as a matter of law. The 8 court draws all justifiable inferences in favor of the non-moving party.”) (citation omitted). 9 However, because Defendants have submitted video and audio footage of the incident 10 (Docs. 88, 101), the Court need not accept Plaintiff’s version of the facts to the extent it is 11 clearly contradicted by that footage. Scott v. Harris, 550 U.S. 372, 380 (2007) (“When 12 opposing parties tell two different stories, one of which is blatantly contradicted by the 13 record, so that no reasonable jury could believe it, a court should not adopt that version of 14 the facts for purposes of ruling on a motion for summary judgment.”); Hernandez v. City 15 of Gilbert, 989 F.3d 739, 743 (9th Cir. 2021) (“[W]e do not accept a non-movant’s version 16 of events when it is clearly contradicted by a video in the record.”) (cleaned up). 17 A. Evidentiary Objections 18 As an initial matter, Plaintiff objects to one of Defendants’ proffered pieces of audio 19 footage (defense exhibit 12, a recording of a radio transmission during the incident), as 20 well as one of Defendants’ other exhibits (defense exhibit 13, additional pages of a 21 witness’s deposition testimony), on timeliness grounds, arguing that Defendants should 22 have filed these exhibits as attachments to their motion and instead improperly filed them 23 as attachments to their reply. (Doc. 96 at 1-2.) Alternatively, Plaintiff argues that Exhibit 24 12 “is unintelligible and lacks foundation” and Exhibit 13 “is incomplete and violates 25 Federal Rule of Evidence 106.” (Id.) 26 These objections are unavailing. Because Exhibits 12 and 13 address arguments 27 raised in Plaintiff’s response brief, it was permissible for Defendants to attach them as 28 exhibits to their reply. See, e.g., TSI Inc. v. Azbil BioVigilant Inc., 2014 WL 880408, *1

-2- Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 3 of 40

1 (D. Ariz. 2014) (“While a party may not file ‘new’ evidence with a reply, it may file 2 ‘rebuttal’ evidence to contravene arguments first raised by the non-moving party in its 3 opposition. . . . District of Arizona precedent is clear . . . that it is immaterial that [the 4 movant] already had this evidence in its possession at the time it filed its motion for 5 summary judgment, so long as it is rebuttal evidence.”); E.E.O.C. v. Creative Networks, 6 LLC & Res-Care, Inc., 2008 WL 5225807, *2 (D. Ariz. 2008) (acknowledging that “a party 7 may not file ‘new’ evidence with a reply and then deprive the opposing party of an 8 opportunity to respond to the new evidence” but holding that evidence attached to reply 9 was “proper” because it merely “rebut[ted] arguments first raised by Plaintiff”). 10 Turning specifically to Exhibit 12, Defendants have laid an adequate foundation for 11 it in light of (1) their earlier submission of the CAD Report (Doc. 86-2 at 39-74); (2) 12 Plaintiff’s lack of objection to the CAD Report; and (3) Exhibit 12’s distinctive 13 characteristics and consistency with the CAD Report and other evidence in the record. 14 Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (“At summary 15 judgment, ‘a party does not necessarily have to produce evidence in a form that would be 16 admissible at trial.’”) (citation omitted); Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 17 532-34 (9th Cir. 2011) (summary judgment exhibits may “be authenticated by their 18 distinctive characteristics under Federal Rule of Evidence 901(b)(4)”). The Court also 19 notes that Plaintiff does not develop any reasoned argument why Exhibit 12 should be 20 considered inauthentic (Doc. 96 at 2 [entirety of argument is “Exhibit 12 is unintelligible 21 and lacks foundation”]) and did not deny the authenticity of Exhibit 12 in response to one 22 of Defendants’ requests for admission (Doc. 97 at 2 n.1). These circumstances amplify 23 why it would be improper to sustain the authenticity objection here. Cf. Sandoval v. Cnty. 24 of San Diego, 985 F.3d 657, 666 (9th Cir. 2021) (district court erred by sustaining 25 “unexplained generalized objections” to summary judgment evidence). Finally, Plaintiff’s 26 contention that Exhibit 12 is “unintelligible” is not only inaccurate (as discussed in more 27 detail below) but is not a valid evidentiary objection at summary judgment. 28 As for Exhibit 13, although the Court does not necessarily agree with Plaintiff’s

-3- Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 4 of 40

1 contention that it violates the rule of completeness, Plaintiff acknowledges that any 2 violation could be cured by considering the additional pages of the witness’s deposition 3 transcript that Plaintiff filed as an exhibit to her objections. (Doc. 96 at 2.) The Court will 4 consider those additional pages (Doc. 96-1) for purposes of its analysis. 5 B. The Night Before The Incident 6 On the evening of June 11, 2018, non-party PPD officers were called to the 7 Extended Stay America hotel in central Phoenix by manager Ryan Dickerman. (Doc. 86- 8 2 at 7-8.) Dickerman informed the officers that Andrich had violated the hotel’s no- 9 smoking policy and, when staff “attempted to inform [Andrich] of this policy infraction,” 10 Andrich responded by engaging in “irate actions,” including slamming the door shut in 11 staff members’ faces and causing the door latch to be ripped off the door. (Id.) Dickerman 12 also told police that Andrich was involved in an incident two days earlier in which he 13 threatened another guest, stating “I’ll kill you.” (Id. at 8.) 14 Upon making contact with Andrich, the officers noted he was “very irate” and 15 appeared to be “under the influence of drugs or alcohol, or suffered from an unknown 16 mental illness.” (Id.) After the officers failed to lure Andrich out of his room, they called 17 a Crisis Intervention Team (“CIT”). (Id.) Members of the CIT negotiated with Andrich 18 for over 90 minutes, but Andrich refused to leave his room and eventually barricaded the 19 door with furniture. (Id.) “At no time did [Andrich] make statements about self-harm or 20 harming others.” (Id.) The CIT left without making face-to-face contact with Andrich. 21 (Id.) Dickerman was “led to believe that [he] could just pick up the phone at any time once 22 [he] saw [Andrich] leave the room, and the Phoenix police force in th[e] area would be 23 able to respond immediately and know what[] [was] going on.” (Doc. 89-2 at 35.) 24 C. The Incident 25 On the morning of June 12, 2018, Defendants responded to a trespassing call at the 26 Extended Stay America. (Doc. 86-2 at 13-15.) At some point that morning, Dickerman 27 had locked himself, his staff, and guests in a laundry room because he believed Andrich 28 was “upset about something and coming back to the hotel” and was “unpredictable.” (Id.

-4- Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 5 of 40

1 at 79-80.) The dispatcher informed Defendants that Andrich was “a suspect who returned 2 to the hotel who was . . . trespassing the night before,” that the “incident the night before” 3 involved “some type of criminal damage,” and that Andrich was acting “kind of agitated.” 4 (Id. at 14.) 5 Officer Peters made first contact with Andrich as Andrich was walking along 6 Osborn Road toward Central Avenue. (Id. at 15.) In response, an “agitated” Andrich 7 “basically said, don’t talk to me . . . [and] then he said, fuck you.” (Id. at 16.) Officer 8 Peters told Andrich not to go back to the hotel, at which point Andrich began to walk 9 toward the light rail. (Id. at 16-17.) Believing Andrich had “gotten the message” not to 10 return to the hotel, Officer Peters joined Officer Kostas in the parking lot of the hotel to 11 discuss the situation. (Id. at 17-18.) 12 While Defendants were discussing what to do, they received a dispatch that Andrich 13 had returned to the hotel. (Doc. 89-2 at 228.) In response, Officer Peters entered the hotel 14 lobby while Officer Kostas remained in his vehicle to research what had happened the night 15 before. (Id. at 229.) At this time, Defendants did not discuss a plan to detain or arrest 16 Andrich. (Id. at 82, 86.) 17 When Officer Peters asked Andrich what he was doing at the hotel, Andrich 18 “basically told [Officer Peters] to fuck off, and he yelled at [Officer Peters] to stop talking 19 to him, that [Officer Peters] can’t tell him what to do. And [Officer Peters] said, well, 20 we’re going to have to go out away from here because you’re in the lobby of this place and 21 they don’t want you here.” (Id. at 230.) Andrich complied, walking to the parking lot with 22 two cups of coffee in his hands. (Id.) However, after exiting, Andrich continued 23 “screaming and yelling and being really agitated.” (Id. at 230-31.) 24 In the parking lot, Officer Kostas spoke with Andrich, saying “[w]ords to the effect 25 of, you can’t trespass, we need to talk about this, you need to stop.” (Id. at 163.) In 26 response, Andrich refused to stop moving. (Id.) Officer Kostas then repeated the 27 instruction to stop, but Andrich again refused to stop and kept moving. (Id.) At some point 28 in this sequence, Officer Peters advised Andrich that “due to the circumstances that you

-5- Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 6 of 40

1 came back after being ordered to leave, we’re going to detain you and figure this out.” 2 (Id.at 231.) 3 At this point in the encounter, Officers Peters and Kostas “almost simultaneously” 4 initiated physical contact with Andrich. (Id. at 163-64.) They began by slapping the cups 5 of coffee out of Andrich’s hands. (Id.)1 Next, each officer took hold of one of Andrich’s 6 arms. (Id. at 162-63 [Officer Kostas’s account]; id. at 231 [Officer Peters’s account].) As 7 Defendants were attempting to place Andrich’s wrists behind his back so he could be 8 handcuffed, Andrich physically resisted. (Id. at 166, 231.) According to Officer Peters, 9 Andrich “was so strong that it just almost turned into him shaking us off like rag dolls. . . . 10 [H]e was uncontrollable at that point.” (Id. at 232.) Similarly, Dickerman, who was 11 watching the encounter through a window in his office within the hotel, testified that as the 12 officers were trying to get “Andrich to put his arms behind him,” Andrich “had, like, 13 superhuman strength” and “was able to fight them off quite well. . . . It was just . . . a brawl 14 on the ground where these two officers could not get a hold of one person.” (Id. at 39-40.) 15 At the moment Andrich began resisting, Officer Peters told him he was under arrest. 16 (Doc. 86-2 at 93.)2 After Officer Peters used leg sweeps to get Andrich onto the ground 17 (Doc. 89-2 at 170, 235), Officer Kostas was able to place a handcuff on Andrich’s right 18 wrist but not on the left (id. at 39, 166). During this portion of the encounter, Officer 19 Kostas repeatedly hit Andrich with closed-fist hand strikes and knee strikes. (Id. at 167- 20 69 [Officer Kostas, admitting that he punched Andrich six to eight times before they went 21 to the ground, that he threw the first punch, and that he also used knee strikes].) See also 22 1 Although Officer Peters testified that Andrich “started making movements like he 23 was going to throw the coffee on me or Officer Kostas” (Doc. 89-2 at 231), Officer Kostas testified that Andrich “never made any threatening motions with those cups of coffee” (id. 24 at 189). Thus, for summary judgment purposes, the Court accepts that Andrich never threatened to throw the coffee and disregards the assertions in Defendants’ motion (Doc. 25 86 at 8) to the contrary. 2 Plaintiff notes in her response brief that Officer Kostas did not tell Andrich he was 26 under arrest. (Doc. 89 at 4.) This is correct (Doc. 89-2 at 192) but irrelevant—Officer 27 Peters testified that he told Andrich he was under arrest at the moment Andrich began resisting (Doc. 86-2 at 93), Plaintiff does not identify any evidence in the record to 28 contradict this testimony, and Exhibit 12—the audio recording that Defendants submitted with their reply—clearly reflects a speaker saying “You’re under arrest” at the 15:57 mark.

-6- Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 7 of 40

1 id. at 39-41 [Dickerman, testifying that one of the officers punched Andrich]; id. at 234 2 [Officer Peters, testifying that Officer Kostas punched Andrich].) In contrast, Andrich did 3 not throw any punches.3 4 The initial scuffle on the ground was “very short-lived” because Andrich was able 5 to get back on his feet “pretty quickly.” (Id. at 172.) Officer Kostas also stood up and 6 threw a “flurry” of additional punches at Andrich. (Id. at 173-74.) At least three of Officer 7 Kostas’s punches connected, causing blood to come out of Andrich’s nose and mouth. (Id.) 8 Andrich did not throw any punches at Officer Kostas during this portion of the encounter.4 9 At this point in the encounter, Officer Peters told Officer Kostas to stop punching 10 Andrich. (Id. at 174-75.) Officer Kostas complied and stepped away so that Officer Peters 11 could deploy a Taser. (Id. at 175-76.) The Taser hit Andrich in the back. (Id. at 311-12.)5 12 After being hit, Andrich fell to the ground, let out an “angry” scream that was “a yelling 13 scream [more] than an ow-y scream,” and quickly “pulled the prongs out and was back on 14 3 Although Defendants both testified that Andrich attempted to punch or strike them 15 during this portion of the encounter (Doc. 89-2 at 166, 234), Dickerman testified that he 16 did not observe Andrich striking or punching either Defendant (id. at 40, 47, 49). Via Exhibit 13, Defendants attempt to show that Dickerman’s testimony on this point was 17 equivocal (Doc. 93-2), but a reasonable juror could conclude, based on the surrounding pages of Dickerman’s deposition testimony that Plaintiffs filed in response to Exhibit 13, 18 that Dickerman ultimately did not withdraw his contention that Andrich threw no punches (Doc. 96-1 at 3). Additionally, although Defendants identify portions of Dickerman’s 19 testimony that suggest he may not have seen the entirety of the encounter (Doc. 89-2 at 37 [“I saw a struggle . . . and I don’t know what led up to it to get to that point.”]), Dickerman 20 testified elsewhere that he saw the encounter from the moment Defendants began attempting to place Andrich’s arms behind his back so he could be handcuffed (Doc. 89-2 21 at 39, 47). Construed in the light most favorable to Plaintiff, a reasonable juror could thus conclude that Dickerman saw the entire portion of the encounter during which Defendants 22 contend that Andrich was throwing punches (and contradicted Defendants’ account on that point). Thus, for summary judgment purposes, the Court accepts that Andrich did not 23 throw any punches and disregards the assertions in Defendants’ motion (Doc. 86 at 3, 9) to the contrary. 24 4 As discussed in the previous footnote, although Defendants have presented evidence that Andrich was throwing punches, this evidence must be disregarded for summary 25 judgment purposes in light of Plaintiff’s submission of conflicting evidence that Andrich never threw any punches. 26 5 Although Defendants both testified that Officer Peters’s Taser hit Andrich in the 27 chest (Doc. 189-2 at 176, 241), the report from the medical examiner states that Andrich’s Taser wounds and barbs were “in a triangular pattern that is centered on the midline of the 28 back” (id. at 310-11). Thus, for summary judgment purposes, the Court accepts that Officer Peters’s Taser hit Andrich in the back.

-7- Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 8 of 40

1 his feet like a cat.” (Doc. 86-2 at 35.) As Dickerman testified: “I do remember for sure 2 Mr. Andrich not even, like, being fazed by it, pulling the leads from the Taser, like, out of 3 him and kind of just, like, walking away briskly.” (Doc. 89-2 at 39.) 4 In response, Officer Kostas deployed his Taser. (Id. at 42-43, 242.) It hit Andrich 5 in the back as he was walking away from Defendants. (Id. at 42.) Andrich “grunted and 6 continued to scream and yell and [again tried] to . . . walk away.” (Id. at 243.) 7 Officer Kostas pursued Andrich on foot. (Id. at 43, 179, 243.) Officer Peters, who 8 did not join the pursuit due to a knee injury sustained during the earlier scuffle, got on the 9 radio to report an aggravated assault on police officers and to request an air unit or K-9 10 support. (Id. at 179.) 11 Much of the controversy in this case turns on what happened next. As noted, a 12 handcuff was fastened around Andrich’s right wrist during the initial portion of the 13 encounter, but the other cuff was never fastened around his left wrist—instead, it remained 14 loose and unfastened. Officer Kostas testified that as he encountered Andrich on Osborn 15 Road, Andrich had “manipulated” the dangling portion of the handcuff “into a weapon,” 16 with the “sharp portion of the handcuff . . . threaded between his fingers.” (Doc. 86-2 at 17 105.) Officer Kostas also testified that, during his police training, he had received 18 instruction “about the dangers of a dangling handcuff,” namely that “[i]t could be used as 19 a weapon against the officer if they’re allowed to get in the hands of a suspect without 20 being properly secured. And the ones with strands are sharp and made up of jagged [steel] 21 . . . teeth.” (Id. at 104.) 22 Officer Kostas testified that as he approached Andrich on Osborn Road, Andrich 23 “lunged” at him with the fist holding the dangling handcuff. (Doc. 89-2 at 115-16.) 24 Andrich was about 10-12 feet away from Officer Kostas at the time. (Id. at 269.)6 In 25 response, Officer Kostas raised his service weapon and shot Andrich. (Id.) Officer Kostas 26 6 Although Officer Kostas testified during his deposition that Andrich was about 6-8 27 feet away from him at the time (Doc. 89-2 at 118), Officer Kostas provided an estimate of 10-12 feet during a “walk-through interview” with a police investigator (id. at 269). Thus, 28 for summary judgment purposes, the Court accepts that Andrich was 10-12 feet away from Officer Kostas. This estimate is not clearly contradicted by the video footage.

-8- Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 9 of 40

1 did not provide a verbal warning before shooting. (Id. at 109.) Officer Kostas testified 2 that he discharged his weapon because he feared for his own safety—“[h]ad [Andrich] 3 incapacitated me or injured me with the cuff, I could have fallen, maybe even gone 4 unconscious, and then would have no control over my pistol.” (Doc. 86-2 at 106. See also 5 Doc. 89-2 at 108 [fearing “[t]hreat of serious injury, incapacitation, permanent 6 disfigurement”].) 7 Notably, although the earlier portions of the encounter between Andrich and 8 Defendants were not caught on videotape—and thus the factual summary provided above 9 is derived from the testimony of Defendants and eyewitness Dickerman and the snippets 10 of audio footage that are available—the final sequence was captured on a cell phone video 11 taken by a bystander. That video footage, which was enclosed as Exhibit 9 to Defendants’ 12 motion, corroborates in all material respects Officer Kostas’s testimony regarding this 13 portion of the encounter. 14 For example, a screenshot of the video at the 0:06 mark shows Officer Kostas 15 attempting to speak with Andrich as Andrich walks away: 16 17 18 19 20 21 22 23 24 25 26 27 28

-9- Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 10 of 40

1 However, at the 0:07 mark, Andrich stops walking, turns, raises his right hand (the one 2 with the dangling cuff),7 and moves the hand toward Officer Kostas: 3 4 5 6 7 8 9 10 11 12 13 14 Immediately afterward, at the 0:08 mark, Officer Kostas raises his weapon and shoots: 15 16 17 18 19 20 21 22 23 24 25 26 27 7 Although the screenshot appears to show Andrich raising his left hand, the bystander 28 was taping the reflection of the encounter that appeared on the side-door mirror of his car. Thus, the images are reversed.

- 10 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 11 of 40

1 Given this unambiguous video evidence, the Court need not accept Plaintiff’s 2 contention that, “[o]n Plaintiffs’ facts, Mr. Andrich did not make a swinging or lunging 3 motion toward Officer Kostas before being shot.” (Doc. 89 at 15.) As noted, a court need 4 “not accept a non-movant’s version of events when it is clearly contradicted by a video in 5 the record.” Hernandez, 989 F.3d at 743 (cleaned up).8 Here, although it might be possible 6 to have a semantic debate over whether the movement of Andrich’s hand (with the dangling 7 cuff threaded through his fingers) toward Officer Kostas was emphatic enough to qualify 8 as a “lunge” or a “swing,” it is beyond legitimate dispute that Andrich stopped, raised his 9 hand, and quickly moved his hand toward Officer Kostas immediately before the shooting. 10 D. After The Incident 11 Within a few seconds of when the shot was fired, Defendants placed a “998 call”— 12 that is, a report of an officer-involved shooting—on the police radio. (Doc. 86-2 at 94, 13 107.) Records indicate this call occurred at 7:45:33 AM. (Id. at 109.) At 7:46:15—that 14 is, less than a minute later—emergency medical personnel were dispatched to the scene. 15 (Id.) They arrived at 7:50:13, which was less than five minutes after the initial 998 call. 16 (Id.) 17 As Defendants were waiting for emergency medical personnel to arrive, they 18 “prevented traffic from running [Andrich] over by standing in front of him and directing 19 traffic away.” (Doc. 89-2 at 248; see also Doc. 86-2 at 38.)9 However, neither Defendant 20 performed CPR or any other “hands-on life saving measures.” (Doc. 89-2 at 45-46 21 [Dickerman]; id. at 248-49 [Officer Peters].)10 22 8 For related reasons, it is irrelevant that, during an interview with a police investigator, “Officer Kostas did not tell Det. Winter that Mr. Andrich swung his 23 handcuff[ed] arm at Officer Kostas before he shot.” (Doc. 89 at 7, citing Doc. 89-2 at 277- 78.) As noted, the video footage clearly shows Andrich raising his hand and moving it 24 toward Officer Kostas. 25 9 Exhibit 11 to Defendants’ motion, which is a surveillance video from a nearby business establishment, depicts the conduct of Defendants following the shooting. It is 26 consistent with their testimony that they redirected traffic around Andrich as he lay on the ground. This video does not depict the shooting itself—instead, Andrich is seen walking 27 onto the screen, and then collapsing to the ground, after he had been shot off-screen. Thus, Exhibit 11 sheds no light on the circumstances of the shooting itself. 28 10 Although Officer Kostas testified that he began performing chest compressions on Andrich about five minutes after the shooting, just before emergency medical personnel

- 11 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 12 of 40

1 Andrich was transported to a local hospital at approximately 8:00 AM. (Doc. 86-2 2 at 113-14.) The medical notes indicate that he had “no pulse on arrival” and had “been 3 coded for 10 minutes prior to his arrival.” (Id.) After various life-saving measures proved 4 ineffective, Andrich was declared dead at approximately 8:16 AM. (Id.) 5 II. Procedural History 6 On April 4, 2019, Plaintiff initiated this action by filing a complaint. (Doc. 1.) 7 On June 24, 2019, Plaintiff filed a First Amended Complaint (“FAC”). (Doc. 18.) 8 On July 8, 2019, Defendants filed a motion to dismiss the FAC. (Doc. 26.) 9 On January 23, 2020, the Court granted in part and denied in part Defendants’ 10 motion to dismiss the FAC. (Doc. 29.) 11 On January 31, 2020, Plaintiff filed the operative Second Amended Complaint 12 (“SAC”). (Doc. 31.) 13 On February 14, 2020, Defendants filed a motion to dismiss the SAC. (Doc. 33.) 14 On July 1, 2020, the Court granted in part and denied in part Defendants’ motion to 15 dismiss the SAC. (Doc. 36.) Former Defendant City of Phoenix was terminated in 16 accordance with this order. 17 On November 22, 2021, Defendants filed the pending motion for summary 18 judgment. (Doc. 86.) The motion is now fully briefed (Docs. 89, 93, 94, 95, 97) and 19 neither side requested oral argument. 20 DISCUSSION 21 I. Legal Standard 22 “The Court shall grant summary judgment if [a] movant shows that there is no 23 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 24 of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 25 arrived (Doc. 189-2 at 93), Dickerman testified that he never saw “either one of the two 26 original officers . . . provide any CPR” (id. at 46). Thus, for summary judgment purposes, the Court accepts that Defendants did not perform CPR or any other hands-on life-saving 27 measures on Andrich and disregards the assertions in Defendants’ briefs (Doc. 86 at 19; Doc. 93 at 12 [“Notably, Plaintiff cites no evidence to contradict the testimony of Officer 28 Kostas that he began performing life-saving measures prior to the arrival of medical personnel.”]) to the contrary.

- 12 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 13 of 40

1 the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 2 in the non-movant’s favor.” Fresno Motors, 771 F.3d at 1125. The Court “must view the 3 evidence in the light most favorable to the nonmoving party and draw all reasonable 4 inference in the nonmoving party’s favor.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 5 (9th Cir. 2018). “Summary judgment is improper where divergent ultimate inferences may 6 reasonably be drawn from the undisputed facts.” Fresno Motors, 771 F.3d at 1125. 7 A party moving for summary judgment “bears the initial responsibility of informing 8 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 9 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 10 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 11 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 12 production, the moving party must either produce evidence negating an essential element 13 of the nonmoving party’s claim or defense or show that the nonmoving party does not have 14 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 15 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 16 [the] moving party carries its burden of production, the nonmoving party must produce 17 evidence to support its claim or defense.” Id. at 1103. “If the nonmoving party fails to 18 produce enough evidence to create a genuine issue of material fact, the moving party wins 19 the motion for summary judgment.” Id. There is no issue for trial unless enough evidence 20 favors the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 21 “If the evidence is merely colorable or is not significantly probative, summary judgment 22 may be granted.” Id. at 249-50. At the same time, the evidence of the non-movant is “to 23 be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. “[I]n 24 ruling on a motion for summary judgment, the judge must view the evidence presented 25 through the prism of the substantive evidentiary burden.” Id. at 254. Thus, “the trial 26 judge’s summary judgment inquiry as to whether a genuine issue exists will be whether the 27 evidence presented is such that a jury applying that evidentiary standard could reasonably 28 find for either the plaintiff or the defendant.” Id. at 255.

- 13 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 14 of 40

1 II. Count One: Excessive Force 2 A. The Parties’ Arguments 3 In Count One of the SAC, Plaintiff asserts a § 1983 claim premised on the theory 4 that Defendants violated Andrich’s Fourth and Fourteenth Amendment right to be free 5 from the excessive use of force. (Doc. 31 ¶¶ 31-40.)11 6 Defendants contend they are entitled to summary judgment on Count One. (Doc. 7 86 at 5-18.) Their argument has three interrelated parts. First, Defendants contend their 8 use of non-lethal force against Andrich during the initial portion of the encounter was 9 constitutional because (1) they had probable cause to arrest Andrich for trespass, (2) they 10 were entitled to use at least some force to effect an arrest, (3) Andrich began resisting arrest, 11 placing their safety at risk, and (4) “[m]ultiple alternative uses of force—command 12 presence, verbal commands, soft-empty hand techniques, hard empty hands, physical 13 grappling, and Taser—were unsuccessful to take [Andrich] into custody,” requiring 14 increased uses of force. (Id. at 1, 5-10.) Second, Defendants contend that Officer Kostas’s 15 use of deadly force was constitutional because “Andrich had repeatedly assaulted two 16 police officers and was fleeing the scene towards a public area, including a light rail stop, 17 where innocent civilians were congregating. He manipulated a sharp handcuff into a 18 weapon. He ignored warnings from Officer Kostas to stop. It was only after Andrich 19 turned and swung the dangler at Kostas that Kostas fired his weapon. Considering the 20 totality of the circumstances, Officer Kostas’ decision to employ deadly force was 21 reasonable.” (Id. at 10-12.) Third, at a minimum, Defendants contend they are entitled to 22 qualified immunity. (Id. at 12-18.) On that point, as for the use of non-lethal force, 23 Defendants contend that no case “provide[d] notice to Officers Peters and Kostas” that it 24 would be unconstitutional to use force against a suspect who “refused to leave a hotel, 25 returned, resisted arrest, and the[n] physically assaulted officers” and who “was not known 26 27 11 Although Count One also includes an assertion that Defendants violated Andrich’s “right to be free from unreasonable searches and seizures as secured by the Fourth and 28 Fourteenth Amendments” (Doc. 31 ¶ 33), both sides only construe Count One as an excessive force claim in their summary judgment briefing.

- 14 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 15 of 40

1 to the officers, was verbally abusive, and [whose] behavior evidenced defiance, not 2 compliance.” (Id. at 12-14.) As for Officer Kostas’s use of lethal force, Defendants 3 contend “[t]here is no case, from the Ninth Circuit or Supreme Court, addressing facts 4 analogous to those faced by these responding officers: a suspect, exhibiting superhuman 5 strength, who actively resisted arrest, assaulted officers, and then fled on foot armed with 6 a handcuff, which he raised in a hostile manner towards Officer Kostas.” (Id. at 13.) 7 Defendants also argue that the Ninth Circuit and Supreme Court have repeatedly granted 8 requests for qualified immunity in cases involving analogous facts. (Id. at 15-18 [“The 9 Supreme Court’s Kisela and Booth decisions, and the Ninth Circuit’s Liberti, Woodward, 10 Isayeva, and Easley decisions furnish ample, independent legal grounds to grant qualified 11 immunity.”].) 12 In response, Plaintiff begins by identifying various ways in which the video 13 recordings, the testimony of witnesses Dickerman and McGee, and Defendants’ statements 14 to Detective Winter during the walkthrough interview contradict Defendants’ version of 15 the incident. (Doc. 89 at 1-10.) Plaintiff also identifies various reasons why Defendants’ 16 conduct during the incident was contrary to the internal policies of the PPD (e.g., no verbal 17 warning before shooting, use of closed-fist strikes without a precipitating violent attack, 18 failure to turn on body camera) and/or constituted “poor tactical decision[s].” (Id. at 10- 19 11.) With this backdrop in mind, Plaintiff first argues that Defendants’ use of non-lethal 20 force during the initial portion of the encounter was unconstitutional because there was no 21 need for the use of any force to arrest Andrich: “Defendants began the assault in the parking 22 lot by knocking the coffee out of Mr. Andrich’s hands after he complied with their orders. 23 Officer Kostas’s own admission was that he began punching and striking Mr. Andrich 24 when Mr. Andrich was not punching anyone or even attempting to do so. Mr. Dickerman 25 indicated in the parking lot that Mr. Andrich’s back was to Defendants or he was on the 26 ground, suggesting Mr. Andrich was not acting aggressively to Defendants. Mr. 27 Dickerman saw no strikes by Mr. Andrich or even any punches thrown by him. Yet, both 28 Defendants tased Mr. Andrich in his back. With this in response to a trespass call, all force

- 15 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 16 of 40

1 in the parking lot was unreasonable.” (Id. at 14-15.) Next, Plaintiff argues that Officer 2 Kostas’s use of deadly force was unreasonable because “this was not an immediate defense 3 of life situation. . . . Mr. Andrich was mentally ill and did not injure anyone before he was 4 shot, let alone injure someone with the loose handcuff. It is a reasonable inference that Mr. 5 Andrich was running away from Officer Kostas and swatting his hands away on the 6 southside of Osborn only after Officer Kostas violently assaulted Mr. Andrich by 7 repeatedly striking Mr. Andrich’s face and tasing him. On Plaintiff’s facts, Mr. Andrich 8 did not make a swinging or lunging motion toward Officer Kostas before being shot. 9 Officer Kostas decided to use deadly force against Mr. Andrich at six seconds in the video 10 when no objective facts justify the use of deadly force. At ten to twelve feet, Mr. Andrich 11 was not close enough to Officer Kostas to strike him.” (Id. at 15-16.) Finally, Plaintiff 12 argues that qualified immunity is unavailable because (1) there are too many unresolved 13 disputes of fact and/or (2) an array of Ninth Circuit cases clearly establish that it is 14 unconstitutional to use non-trivial force against a suspect who is only passively resisting 15 arrest, to use deadly force without providing a warning, and/or to use deadly force when 16 the suspect does not pose an immediate threat. (Id. at 16-20.) 17 In reply, Defendants begin by reasserting that their use of force was constitutional. 18 (Doc. 93 at 1-7.) Defendants note that Plaintiff does not contest their description of the 19 situation the night before at the Extended Stay or Andrich’s mental health history, which 20 corroborates Defendants’ version of events—that is, Andrich refused to comply with 21 lawful orders, violently resisted arrest, and posed an immediate threat to the safety of 22 Officer Kostas at the time of the shooting. (Id. at 2-3.) Defendants also reassert that the 23 right to make an arrest necessarily comes with the right to use some physical force—here, 24 knocking the hot coffee out of Andrich’s hands and attempting a wrist lock to place 25 handcuffs on him. (Id. at 3.) As for Plaintiff’s contention that Officer Kostas didn’t tell 26 Andrich he was under arrest at any time, Defendants argue this is misleading because (1) 27 Officer Peters first advised Andrich he would be detained and then, after Andrich began 28 fighting, told Andrich was under arrest, (2) Officer Kostas testified that his intention was

- 16 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 17 of 40

1 to detain Andrich about the trespassing, and the act of putting his hands on Andrich was to 2 effect an arrest, even if he didn’t directly state this, and (3) the police radio transmission 3 reveals that Andrich was indeed told he was under arrest. (Id. at 4.) As for Plaintiff’s 4 suggestion that Andrich wasn’t acting aggressively based on Dickerman’s testimony, 5 Defendants argue that Dickerman couldn’t say with certainty that Andrich never threw a 6 punch, and even assuming Andrich was on the ground or facing away from Defendants at 7 some point, no case holds that such conduct means Andrich never acted aggressively. (Id. 8 at 4-5.) As for the pre-shooting verbal warning, “[Officer] Kostas testifie[d] that he told 9 Andrich to ‘lower your hands, sit down, stop, stop’ after unholstering his weapon and 10 pointing it at Andrich,” which served as a warning. (Id. at 6.) As for the availability of a 11 lesser type of force, Defendants argue that “the entire course of the altercation between 12 Andrich and Defendants established that multiple lesser uses of force—wrist locks, leg 13 sweeps, fist strikes, and taser deployments—were unsuccessful in effectuating an arrest or 14 overcoming Andrich’s resistance” and officers are “not required to use the least intrusive 15 degree of force possible.” (Id. at 6-7.) Alternatively, Defendants argue that Plaintiff’s 16 qualified-immunity arguments are unavailing because (1) even if some of their conduct 17 was contrary to PPD policy, “a violation of department policy . . . does not itself prove a 18 constitutional violation”; and (2) the cases cited by Plaintiff are factually distinguishable. 19 (Id. at 7-11.) 20 2. Analysis 21 “Qualified immunity shields federal and state officials from money damages unless 22 a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional 23 right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” 24 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Thus, “[w]hen an officer asserts qualified 25 immunity as a defense, . . . [courts] first ask whether the facts taken in the light most 26 favorable to the plaintiff show that the officer’s conduct violated a constitutional right. If 27 so, [courts] then ask whether the right in question was clearly established at the time of the 28 officer’s actions, such that any reasonably well-trained officer would have known that his

- 17 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 18 of 40

1 conduct was unlawful.” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020) 2 (citation omitted). “Although [courts] must view the facts in the light most favorable to 3 the nonmoving party, when considering qualified immunity, [courts] are also limited to 4 considering what facts the officer could have known at the time of the incident.” Davis v. 5 United States, 854 F.3d 594, 598 (9th Cir. 2017). 6 Although it “is often beneficial” to begin the qualified-immunity analysis by 7 addressing whether a statutory or constitutional right has been violated, district courts are 8 vested with discretion to determine “which of the two prongs of the qualified immunity 9 analysis should be addressed first in light of the circumstances in the particular case at 10 hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). See also Orn, 949 F.3d at 1174 11 (“We have the discretion to skip the first step in certain circumstances, as when the officer 12 is plainly entitled to prevail at the second step.”); Sjurset v. Button, 810 F.3d 609, 615 (9th 13 Cir. 2015) (“If indeed the [Defendants] did not violate clearly established law, then we can 14 determine that qualified immunity is appropriate and may thus dispose of the case without 15 undertaking an analysis of whether a constitutional violation occurred in the first 16 instance.”). Here, the Court chooses to begin—as the parties do—by analyzing the first 17 prong. 18 a. Excessive Force—Merits 19 When the defense of qualified immunity is raised in a § 1983 action involving a 20 claim of excessive force, the first prong of the qualified-immunity analysis requires an 21 assessment of whether the force used was “objectively reasonable,” which “is determined 22 by an assessment of the totality of the circumstances.” Green v. City & Cnty. of San 23 Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014). When evaluating the totality of the 24 circumstances, courts must “balance the ‘nature and quality of the intrusion’ against the 25 ‘countervailing governmental interests at stake.’” Id. (citation omitted). “To assess the 26 gravity of the government interests, [courts] have typically considered (1) the severity of 27 the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the 28 officers or others, and (3) whether he is actively resisting arrest or attempting to evade

- 18 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 19 of 40

1 arrest by flight. Where these interests do not support a need for force, any force used is 2 constitutionally unreasonable.” Id. (citations and internal quotation marks omitted). 3 “Because this inquiry is inherently fact specific, the determination whether the force used 4 to effect an arrest was reasonable under the Fourth Amendment should only be taken from 5 the jury in rare cases.” Id. (citation and internal quotation marks omitted). 6 i. Non-Lethal Force 7 When evaluating the reasonableness of Defendants’ use of non-lethal force, it is 8 helpful to break the initial portion of the encounter into three stages. 9 The first stage occurred when Defendants slapped the coffee cups out of Andrich’s 10 hands and grabbed Andrich’s wrists in an attempt to handcuff him. This initial use of force 11 was reasonable. It is undisputed that, at the time, Defendants had probable cause to arrest 12 Andrich for the crime of trespassing. Although this is a fairly minor crime in the overall 13 scheme of things, Defendants still had the right to use some force to effectuate the arrest. 14 See, e.g., Graham v. Connor, 490 U.S. 386, 396 (1989) (“Our Fourth Amendment 15 jurisprudence has long recognized that the right to make an arrest or investigatory stop 16 necessarily carries with it the right to use some degree of physical coercion or threat thereof 17 to effect it.”); Shafer v. City of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) 18 (“Shafer’s primary argument on appeal is that Deputy Padilla . . . had no basis for using 19 any force whatsoever. We disagree. . . . Deputy Padilla had probable cause to arrest Shafer 20 for violations of California Penal Code section 148 for resisting, delaying, or obstructing 21 an officer. This entitled Deputy Padilla to use some degree of force.”). Even accepting 22 that Andrich never threatened to throw the coffee cups at Defendants—and thus slapping 23 the cups of out his hands may have been unnecessary when viewed in hindsight— 24 Defendants’ attempt to grab Andrich’s wrists so they could handcuff him was reasonable 25 and constitutionally permissible. 26 The cases cited by Plaintiff in support of her contention that “when there is no need 27 for force, any force used is constitutionally unreasonable” are distinguishable because they 28 did not involve situations in which police officers had probable cause to effectuate an arrest

- 19 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 20 of 40

1 and merely grabbed the suspect’s wrists in an attempt to handcuff him. Indeed, in one of 2 those cases, the officers’ use of force—gang-tackling a non-violent suspect where the only 3 alleged crime was “misdemeanor trespass”—was deemed excessive in part because they 4 “never tried to handcuff [the plaintiff] . . . before [they] gang-tackled him.” Blankenhorn 5 v. City of Orange, 485 F.3d 463, 478-79 (9th Cir. 2007). Here, Defendants did not skip 6 this initial, reasonable step in the arrest sequence.12 7 The second stage occurred when, after Andrich physically resisted Defendants’ 8 attempt to handcuff him, Defendants responded by employing more intrusive forms of 9 force. As noted in the factual summary appearing at the beginning of this order, the 10 relevant sequence (construed in the light most favorable to Plaintiff) is as follows: (1) 11 Andrich resisted Defendants’ attempts to handcuff him by “shaking [them] off like rag 12 dolls” and using “uncontrollable” and “superhuman strength” to “fight them off”; (2) 13 immediately after Andrich began resisting, Officer Peters told him he was under arrest; (3) 14 in response to Andrich’s initial acts of physical resistance, both Defendants used more 15 intrusive forms of force in an attempt to get Andrich onto the ground—Officer Kostas 16 repeatedly punched Andrich in the face with closed-fist hand strikes and also engaged in 17 knee strikes, even though Andrich was not throwing any punches in return, while Officer 18 Peters performed a series of leg sweeps; (4) once the leg sweeps caused Andrich to go to 19 the ground, Officer Kostas placed a handcuff on one of Andrich’s wrists; (5) Andrich then 20 got to his feet “pretty quickly”; and (6) after Andrich got up, Officer Kostas threw another 21 12 As for the other cases cited by Plaintiff, Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185 (9th Cir. 2000), is distinguishable because it involved the use of 22 pepper spray on “nonviolent” protestors where “the only crime the protesters had committed when pepper-sprayed was trespass.” Id. at 1204. In Motley v. Parks, 432 F.3d 23 1072 (9th Cir. 2005) (en banc), the challenged use of force was an officer’s pointing of his firearm at an infant during a warrantless search of a parolee’s house. Id. at 1088-89. In 24 Fontana v. Haskin, 262 F.3d 871 (9th Cir. 2001), the challenged use of force was the officer’s “purposeful sexual verbal and physical predation against a handcuffed arrestee.” 25 Id. at 881. Finally, P.B. v. Koch, 96 F.3d 1298 (9th Cir. 1996), did not involve a police officer or an attempt to effectuate an arrest—there, a high school principal was “not . . . 26 acting in a disciplinary role but rather engaging in an arbitrary assault” when he was “slapping, punching, and choking” various students. Id. at 1303-04 & n.4. None of these 27 cases remotely stands for the proposition that an officer violates the Constitution’s prohibition against the use of excessive force by attempting to handcuff a suspect whose 28 arrest is supported by probable cause and grabbing the suspect’s wrists in the course of the handcuffing attempt.

- 20 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 21 of 40

1 “flurry” of punches at him, even though Andrich was again not throwing any punches in 2 return. 3 Because Andrich engaged in active, aggressive physical resistance in response to 4 Defendants’ initial attempt to handcuff him—using “superhuman strength” to shake off 5 two adult police officers “like rag dolls” can hardly be characterized as passive resistance— 6 Defendants were entitled to use increased force in order to protect themselves and complete 7 the arrest. See, e.g., Blankenhorn, 485 F.3d at 479 (“[T]he Fourth Amendment permits 8 police officers to use some force to overcome resistance to being arrested.”); Arpin v. Santa 9 Clara Valley Transp. Agency, 261 F.3d 912, 918, 921-22 (9th Cir. 2001) (rejecting 10 excessive force claim where the officer “attempted to handcuff” the plaintiff for 11 committing a suspected misdemeanor offense, the plaintiff responded by “stiffen[ing] her 12 arm and attempt[ing] to pull free,” and the officer responded by “twisting [the plaintiff’s] 13 left arm behind her with enough force to lift her off the ground and break her watch band,” 14 because once the plaintiff “failed to cooperate and stiffened her arm when being 15 handcuffed,” the officer was justified in “us[ing] additional force”). Additionally, by this 16 point in the encounter, Defendants had probable cause to arrest Andrich for more serious 17 crimes than the misdemeanor trespassing offense that justified their initial arrest attempt— 18 Defendants argue (Doc. 86 at 6), and Plaintiff does not dispute, that Andrich’s resistance 19 created probable cause to arrest him for an array of additional crimes under Arizona law. 20 It must also be noted that Defendants were dealing with an agitated suspect who was 21 behaving erratically, that Andrich had already disobeyed earlier instructions (including the 22 instruction not to return to the hotel), that Andrich had been explicitly advised he was under 23 arrest, and that Defendants were aware of the previous night’s incident in which CIT had 24 to be called to the hotel while Andrich barricaded himself in a room.13 25 13 Defendants contend that the reasonableness of their “perception that Andrich was an immediate threat to their safety and to any civilians in the area” is bolstered by Andrich’s 26 medical and mental health records (which reflect “numerous instances of sociopathic behavior, a threat to throw hot coffee on security staff, threats of mortal violence against 27 family and mental health providers, and homicidal ideation”) and by a report of an April 2018 incident in which Andrich made death threats and engaged in erratic behavior. (Doc. 28 83 at 7.) The Court finds it unnecessary to decide whether the medical records and the April 2018 incident, which weren’t subjectively known to Defendants at the time of the

- 21 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 22 of 40

1 For these reasons, the Court has little trouble concluding that, if the force utilized 2 during the second stage of the encounter only included leg sweeps to get Andrich onto the 3 ground and grappling with Andrich while on the ground in an attempt to handcuff him, the 4 force would be constitutionally permissible. By this point in the encounter, all three of the 5 relevant factors for assessing the government’s interest in the use of force—the severity of 6 the crime, whether the suspect posed an immediate threat to the safety of the officers, and 7 whether the suspect was actively resisting arrest—supported that interest, and leg sweeps 8 and grappling are not particularly significant types of force. Cf. Luchtel v. Hagemann, 623 9 F.3d 975, 981-82 (9th Cir. 2010) (affirming dismissal of excessive force claim, where the 10 plaintiff “was actively resisting arrest” and behaving in an “unpredictable, irrational 11 manner” and the officers responded by “pinning her to the ground and handcuffing her,” 12 causing her to sustain a broken arm and dislocated shoulder, because the plaintiff’s 13 “aggressive and resistant behavior weighs in favor of a finding that the officers’ use of 14 force was justified”). 15 This would remain true even if, as Plaintiff contends, some aspects of Defendants’ 16 conduct were contrary to PPD policy. Virginia v. Moore, 553 U.S. 164, 172 (2008) (“[T]he 17 Fourth Amendment’s meaning [does] not change with local law enforcement practices— 18 even practices set by rule.”); Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) 19 (“[S]tate departmental regulations do not establish a federal constitutional violation.”); 20 Case v. Kitsap County Sheriff’s Dep’t, 249 F.3d 921, 929 (9th Cir. 2001) (“Whether the 21 deputies violated a state law or an internal departmental policy is not the focus of our 22 inquiry.”). At most, non-compliance with internal policies intended to protect suspects 23 would be “germane to,” but not dispositive of, the reasonableness inquiry. Scott v. Henrich, 24 39 F.3d 912, 915-16 (9th Cir. 1994). See also Drummond ex rel. Drummond v. City of 25 Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003) (“Although such training materials are not 26 dispositive, we may certainly consider a police department’s own guidelines when 27 underlying incident, are relevant when assessing the reasonableness of their conduct in 28 light of the undisputed fact that Defendants were aware of the previous night’s incident involving the CIT.

- 22 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 23 of 40

1 evaluating whether a particular use of force is constitutionally unreasonable.”). Nor is 2 there any merit to Plaintiff’s contention that, because Defendants previously engaged in 3 unreasonable and “provocative” conduct, Andrich was entitled to offer reasonable 4 resistance. Although the parties dispute whether the Ninth Circuit’s decisions regarding 5 provocation remain good law in light of the Supreme Court’s decision in County of Los 6 Angeles v. Mendez, 137 S. Ct. 1539 (2017), there is no need to resolve that issue here 7 because there was no provocative conduct by Defendants that might have otherwise 8 justified the resistance by Andrich—as discussed, Defendants were well within their rights 9 to grab Andrich’s wrists when attempting to arrest him, and Andrich improperly escalated 10 the encounter by resisting. 11 The closer question arising from the second stage is whether Officer Kostas used 12 excessive force by repeatedly punching Andrich in the face with closed-fist strikes and 13 using knee strikes, even though Andrich did not—at least according to the evidence viewed 14 in the light most favorable to Plaintiff—throw any punches in return. In Blankenhorn, the 15 Ninth Circuit addressed a somewhat similar (although not identical) situation. There, 16 police officers observed the plaintiff trespassing on the premises of a mall from which he 17 had previously been banned. 485 F.3d at 468. One of the officers had encountered the 18 plaintiff a few weeks earlier, and during that interaction the plaintiff was “completely 19 calm” and “cooperative.” Id. The plaintiff presented evidence that, on the night of the 20 encounter in question, he was calmly talking with one of the officers when the officer 21 grabbed his arm; that he responded by pulling his arm free; that the officer responded by 22 threatening to spray him with mace; that although he responded with some displeasure (by 23 throwing his driver’s license on the ground), he “did not take a combative stance, clench 24 his fists, or otherwise make threatening gestures”; that the officer then told him to kneel 25 down so he could be handcuffed; that he refused; that three officers then abruptly “gang- 26 tackled him” without attempting to handcuff him; that he “struggled for several moments 27 before the officers brought him to the ground” but, once on the ground, “did not attempt to 28 prevent the officers from handcuffing him”; and that despite his non-resistance to the

- 23 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 24 of 40

1 handcuffing attempt, one of the officers then “punched him several times.” Id. at 478. 2 In the ensuing § 1983 action, the district court granted summary judgment in the 3 officers’ favor on the plaintiff’s excessive force claim but the Ninth Circuit reversed. As 4 relevant here, the court held that the officer’s “punching of” the plaintiff could 5 independently give rise to a valid excessive force claim. Id. at 478-80. In reaching this 6 conclusion, the court acknowledged that “[n]either tackling nor punching a suspect to make 7 an arrest necessarily constitutes excessive force.” Id. at 477. However, the court also noted 8 that “[a]lthough [the plaintiff] initially resisted being arrested, [the officer’s] punches were 9 not necessarily a reasonable response.” Id. at 480. The court ultimately held that the 10 justification for the punches turned on whether they were necessary to “take control” of the 11 suspect so he could be handcuffed, and because the plaintiff had presented evidence that 12 he “never pinned his arms underneath his body” or otherwise “maneuver[ed] his arms 13 beneath his body” in a manner that would prevent handcuffing, “a rational jury could find 14 that . . . [the] punches were not reasonably justified by the circumstances as [the officer] 15 claims.” Id. Finally, the court also held that the officer was not entitled to qualified 16 immunity on the punching-related aspect of the excessive force claim because existing law 17 would have placed “a reasonable officer on notice that punching [a suspect] to free his arms 18 when, in fact, he was not manipulating his arms in an attempt to avoid being handcuffed, 19 was . . . a Fourth Amendment violation.” Id. at 481. 20 Recognizing that it presents a fairly close call, the Court concludes that Blankenhorn 21 does not support Plaintiff’s contention that the punches and knee strikes by Officer Kostas 22 during the second stage of the encounter were constitutionally excessive. There, not only 23 did the Ninth Circuit hold that the plaintiff was entitled to use some force when resisting 24 the officers in light of the unlawfulness of their initial attempt to gang-tackle him (which 25 isn’t the case here in light of the lawfulness of Defendants’ initial use of force against 26 Andrich), but the plaintiff presented evidence that he was known to the officers as calm 27 and cooperative, that he remained calm and cooperative during the encounter and never 28 made any threatening gestures toward the officers, and that he was not making any attempt

- 24 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 25 of 40

1 to resist handcuffing at the moment the punches were thrown. Here, in contrast, Officer 2 Kostas threw the punches in the heat of a wild melee in which Andrich (who had been 3 acting erratically and uncooperatively before the encounter) was exhibiting superhuman 4 strength, throwing around officers like ragdolls, and actively resisting Defendants’ 5 handcuffing attempts, to the point that a pair of partially fastened handcuffs were dangling 6 off one of his wrists. Although it is easy to say, “with the 20/20 vision of hindsight” and 7 from “the peace of a judge’s chambers,” that Officer Kostas’s punches and knee strikes 8 were unnecessary, such second-guessing would run afoul of the principle that “[t]he 9 calculus of reasonableness must embody allowance for the fact that police officers are often 10 forced to make split-second judgments—in circumstances that are tense, uncertain, and 11 rapidly evolving—about the amount of force that is necessary in a particular situation.” 12 Graham, 490 U.S. at 396 (cleaned up). “[A]s the text of the Fourth Amendment indicates, 13 the appropriate inquiry is whether the officers acted reasonably, not whether they had less 14 intrusive alternatives available to them.” Scott, 39 F.3d at 915. Under the factual 15 circumstances of this case, it was reasonable for Officer Kostas to conclude that punches 16 and knee strikes were necessary in light of the severity of the crime at issue, the need to 17 counteract the immediate threat to Defendants’ safety, and the fact that Andrich was 18 actively resisting arrest. Cf. Gordon v. City and Cnty. of San Francisco, 2021 WL 19 5449074, *9 (N.D. Cal. 2021) (“No reasonable jury could find Pacchetti’s decision to 20 punch Gordon when he resisted arrest was unreasonable under the Fourth Amendment. A 21 punch to the head is generally treated as intermediate force that . . . presents a significant 22 intrusion upon an individual’s liberty interests. That said, neither tackling nor punching a 23 suspect to make an arrest necessarily constitutes excessive force. . . . It is undisputed that 24 Pacchetti was aware of Gordon’s history of violence, and the officers’ body camera videos 25 show Gordon acting confrontationally while actively resisting their efforts to restrain his 26 hands. Under those circumstances, Pacchetti’s interest in hitting Gordon before Gordon 27 could hit him first is obvious.”) (cleaned up). 28 The third stage occurred immediately after Officer Kostas’s final flurry of punches.

- 25 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 26 of 40

1 As noted, the relevant sequence (construed in the light most favorable to Plaintiff) is as 2 follows: (1) Officer Peters told Officer Kostas to stop punching Andrich and step away; (2) 3 Officer Peters deployed his Taser, which hit Andrich in the back; (3) Andrich fell to the 4 ground, pulled out the Taser prongs without seemingly “being fazed by it,” quickly got 5 back to his feet, and started walking away; (4) Officer Kostas deployed his Taser, which 6 again hit Andrich in the back; (5) Andrich again did not stop and continued walking away; 7 and (6) Officer Kostas pursued Andrich on foot. 8 The Ninth Circuit has recognized that Tasers deliver a “painful and frightening 9 blow” and “constitute an intermediate or medium, though not insignificant, quantum of 10 force.” Bryan v. McPherson, 630 F.3d 805, 826 (9th Cir. 2010) (cleaned up). However, 11 the Ninth Circuit has also recognized that Tasers can play an “important role . . . in law 12 enforcement” because “[t]he ability to defuse a dangerous situation from a distance can 13 obviate the need for more severe, or even deadly, force and thus can help protect police 14 officers, bystanders, and suspects alike.” Id. Thus, the “most important” factor in 15 evaluating the reasonableness of the use of a Taser “is whether the suspect posed an 16 “immediate threat to the safety of the officers or others.” Id. (internal citation and quotation 17 marks omitted). It is not enough, “by itself,” that the suspect may have engaged in 18 “volatile, erratic conduct.” Id. 19 In Bryan, the Ninth Circuit applied these principles to reverse a grant of summary 20 judgment in favor of an officer who had deployed a Taser against “a disturbed and upset 21 young man, not an immediately threatening one,” who was “twenty to twenty-five feet 22 away and not attempting to flee.” Id. at 822, 827. The court emphasized that although the 23 suspect “had shouted expletives to himself while pulling his car over and had taken to 24 shouting gibberish, and more expletives, outside his car,” “at no point did he level a 25 physical or verbal threat against” the officer. Id. at 826-27. 26 In contrast, the Ninth Circuit has rejected excessive force claims against officers for 27 deploying a Taser only after less-intrusive attempts to detain an uncooperative suspect 28 proved unsuccessful. For example, in Marquez v. City of Phoenix, 693 F.3d 1167 (9th Cir.

- 26 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 27 of 40

1 2012), police officers were “greeted by chaos” when they entered a bedroom and observed 2 evidence suggesting the suspect, who was believed to be unarmed, had just committed 3 serious crimes against a child. Id. at 1170-71. An officer warned the suspect to “[l]et go 4 of the child or I’m going to tase you,” and when the suspect failed to comply, the officer 5 deployed his Taser. Id. at 1171. Although the probes hit the suspect, the Taser “did not 6 appear to affect [the suspect] as intended.” Id. As a result, the officer pulled the Taser’s 7 trigger a second time, but the suspect again was not incapacitated. Id. At this point in the 8 encounter, another officer extracted the child from the room while the suspect was kicking 9 the officer who had deployed the Taser. Id. In response, the officer redeployed the Taser 10 in a different mode that “does not incapacitate the target, but instead encourages the suspect 11 to comply by causing pain.” Id. Over a span of three minutes, the officer (and a colleague) 12 repeatedly used the Taser in this mode, causing the suspect to “flail[] wildly.” Id. 13 Afterward, the suspect went into cardiac arrest and died. Id. In the ensuing § 1983 action, 14 the officers were accused of engaging in excessive force through their continued 15 deployment of the Taser over the course of the encounter, but the district court granted the 16 officers’ motion for summary judgment and the Ninth Circuit affirmed. Although the court 17 acknowledged that “considerable force was used here” and that the force “constituted a 18 not-insignificant potential intrusion upon [the suspect’s] Fourth Amendment rights,” it 19 concluded that the force was reasonable because (1) the officers had reason to believe that 20 serious crimes had been committed, (2) the suspect was “actively resisting arrest,” and (3) 21 “the officers could reasonably have believed that they were themselves in danger.” Id. at 22 1174-76. 23 Similarly, in Liberti v. City of Scottsdale, 2018 WL 4335442 (D. Ariz. 2018), the 24 officers—like Defendants here—responded to a 911 call from a business reporting that a 25 patron was engaging in erratic behavior. Id. at *1. There, as here, the suspect had left by 26 the time the officers arrived, but the officers later encountered the suspect nearby. Id. 27 There, as here, the officers attempted to physically grab and restrain the suspect after he 28 disregarded some of their commands, but the suspect “jerked away, briefly grappled with

- 27 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 28 of 40

1 the Officers, and fled.” Id. And there, as here, the officers deployed a Taser in an 2 unsuccessful attempt to stop the suspect before later fatally shooting the suspect in response 3 to a perceived threat. Id. at *1-2. In the ensuing § 1983 action, the district court rejected 4 an excessive force claim premised on the deployment of the Taser, explaining that when 5 the officer “deployed her TASER, she had already attempted verbal commands and empty- 6 hand coercion. [The suspect] at that point was wielding a knife, had assaulted [the officer] 7 while resisting arrest, and still was apparently under the influence of methamphetamine. 8 The government’s interest in subduing [the suspect], who was continuing to disobey police 9 commands and becoming a significant threat to the Officers and the public, had become 10 substantial. No reasonable jury could find that [the officer’s] use of force in tasing [the 11 suspect] was objectively unreasonable.” Id. at *5. The Ninth Circuit affirmed, holding 12 that “[n]o existing precedent would have given the officers notice that [the officers’] 13 grabbing of [the suspect’s] elbow in an attempt to get him to sit down or that the officers’ 14 additional attempts to subdue him when he fled were unconstitutional.” Liberti v. City of 15 Scottsdale, 816 F. App’x 89, 91 (9th Cir. 2020). 16 And again, in Beaver v. City of Federal Way, 301 F. App’x 704 (9th Cir. 2008), the 17 Ninth Circuit held that an officer’s the use of a Taser was “not patently offensive of [the 18 suspect’s] constitutional rights” where the suspect “was suspected of committing . . . a 19 felony crime,” “was attempting to flee from [the] officer,” “ignored [the officer’s] warning 20 to stop,” and “remained non-compliant to the officers’ commands.” Id. at 705. 21 This case is much closer to Marquez, Liberti, and Beaver than it is to Bryan. At the 22 time the Tasers were employed, all three of the Graham factors supported the application 23 of not-insignificant levels of force against Andrich: (1) Defendants had reason to believe 24 that Andrich had committed an array of crimes (not just the initial misdemeanor trespassing 25 offense); (2) Defendants had reason to believe that Andrich posed an immediate threat to 26 their safety (he had just thrown them around like ragdolls, using superhuman strength, as 27 they tried to arrest and handcuff him, he had a partially fastened handcuff dangling from 28 his wrist, and he was only a few feet away from them); and (3) Andrich was actively

- 28 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 29 of 40

1 resisting arrest and trying to flee. Although Plaintiff has presented evidence that the Tasers 2 hit Andrich in the back (which contradicts Defendants’ testimony that the Tasers hit 3 Andrich in the chest), the Court does not see how this changes the constitutional analysis. 4 By all accounts, this was a wild, chaotic scene and Andrich was only a few feet away from 5 Defendants when they deployed the Tasers. This is a much different scenario than Bryan, 6 where the suspect was “standing twenty to twenty-five feet away and not attempting to 7 flee.” 630 F.3d at 822. For these reasons, Defendants’ Taser use during the third stage of 8 the encounter was reasonable under the circumstances and did not violate Andrich’s 9 constitutional right to be free from excessive force. See generally Roell v. Hamilton Cnty., 10 870 F.3d 471, 481 (6th Cir. 2017) (citing earlier Sixth Circuit decision for the proposition 11 that “numerous cases hold[] that an officer’s use of a taser against a plaintiff who is actively 12 resisting arrest by physically struggling with, threatening, or disobeying officers is not a 13 violation of the plaintiff’s clearly established Fourth Amendment rights, even if the 14 plaintiff is suspected of committing only a misdemeanor”) (cleaned up). 15 ii. Lethal Force 16 In addition to challenging the reasonableness of Defendants’ use of non-lethal force 17 during the initial stages of the encounter, Plaintiff argues that Officer Kostas used 18 constitutionally excessive force when shooting Andrich during the final portion of the 19 encounter. 20 “An officer’s use of deadly force is reasonable only if ‘the officer has probable 21 cause to believe that the suspect poses a significant threat of death or serious physical injury 22 to the officer or others.’” Scott, 39 F.3d at 914 (quoting Tennessee v. Garner, 471 U.S. 1, 23 3 (1985)). “Where the suspect poses no immediate threat to the officer and no threat to 24 others, the harm resulting from failing to apprehend him does not justify the use of deadly 25 force to do so.” Garner, 471 U.S. at 11. However, “[w]here the officer has probable cause 26 to believe that the suspect poses a threat of serious physical harm, either to the officer or 27 to others, it is not constitutionally unreasonable to prevent escape by using deadly force. 28 Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe

- 29 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 30 of 40

1 that he has committed a crime involving the infliction or threatened infliction of serious 2 physical harm, deadly force may be used if necessary to prevent escape, and if, 3 where feasible, some warning has been given.” Id. at 11-12 (emphases added). 4 Here, the constitutional analysis is straightforward in light of the factual 5 determinations made in earlier portions of this order. Although Plaintiff seeks to create a 6 factual dispute about whether Andrich ever lunged or swung at Officer Kostas in a manner 7 that created an immediate threat to Officer Kostas’s safety, those arguments are foreclosed 8 by the cell-phone video, which clearly depicts Andrich stopping, turning toward Officer 9 Kostas, raising his hand (which was gripping a dangling handcuff in a dangerous manner), 10 and quickly moving that hand toward Officer Kostas. Immediately afterward, Officer 11 Kostas raised his weapon and fired. It was objectively reasonable for Officer Kostas to 12 perceive Andrich’s conduct as an immediate threat to his safety and Officer Kostas had no 13 reasonable opportunity to give a verbal warning before shooting in light of his close 14 proximity to Andrich. 15 The Ninth Circuit has repeatedly held that when an officer reasonably—even if 16 mistakenly—concludes that a nearby suspect is moving to use a weapon against him, the 17 officer is constitutionally permitted to respond by utilizing lethal force without providing 18 a verbal warning. See, e.g., Sheehan v. City and Cnty. of San Francisco, 743 F.3d 1211, 19 1229-30 (9th Cir. 2014) (“[T]he officers’ use of deadly force—viewed from the standpoint 20 of the moment of the shooting—was reasonable as a matter of law. . . . Although Sheehan 21 insists that she was blinded and disabled by the pepper spray, she indisputably continued 22 to hold the knife and advance toward the officers, in cramped quarters, after being sprayed. 23 Thus, even if Sheehan in fact was not intending to attack the officers at that point in the 24 confrontation, the officers reasonably believed they were still in danger. At the moment of 25 the shooting, the defensive use of deadly force, although unfortunate, did not violate the 26 Fourth Amendment.”); Long v. City and Cnty. of Honolulu, 511 F.3d 901, 906 (9th Cir. 27 2007) (“[W]hether Long actually fired his rifle at these officers is also immaterial. It is 28 enough that Sterling heard the radio transmission and observed Long point the rifle in the

- 30 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 31 of 40

1 officers’ direction.”); Corrales v. Impastato, 650 F. App’x 540, 541-42 (9th Cir. 2016) (use 2 of lethal force was reasonable where the suspect “rushed toward [the officer] while pulling 3 his previously concealed hand from his waistband and forming it into a fist with a single, 4 hooked finger extended, in an attempt to scare [the officer] into believing that he had a gun 5 and he was going to try to kill him,” because the officer “had probable cause to believe that 6 [the suspect] posed a significant threat of death or serious physical injury to himself or 7 others” and the officer “was not required to issue a warning before firing . . . under the 8 rapidly changing circumstances”) (cleaned up). Indeed, even in cases (unlike this one) 9 where a factual dispute about the existence of an immediate threat precluded the entry of 10 judgment in the officer’s favor, the Ninth Circuit has emphasized that officers may use 11 lethal force in response to a perceived attacking movement by a nearby suspect with a 12 weapon. See, e.g., Cruz v. City of Anaheim, 765 F.3d 1076, 1078 (9th Cir. 2014) (“It would 13 be unquestionably reasonable for police to shoot a suspect in Cruz’s position if he reaches 14 for a gun in his waistband, or even if he reaches there for some other reason. Given Cruz’s 15 dangerous and erratic behavior up to that point, the police would doubtless be justified in 16 responding to such a threatening gesture by opening fire.”); George v. Morris, 736 F.3d 17 829, 838 (9th Cir. 2013) (recognizing that the Fourth Amendment does not “always 18 require[] officers to delay their fire until a suspect turns his weapon on them” because “[i]f 19 the person is armed—or reasonably suspected of being armed—a furtive movement, 20 harrowing gesture, or serious verbal threat might create an immediate threat”). These 21 principles compel the entry of summary judgment in Officer Kostas’s favor with respect to 22 any excessive force claim premised on the shooting. Tragic as the shooting may have been, 23 it did not violate the Constitution. 24 b. Excessive Force—Clearly Established Law 25 Although Defendants are entitled to summary judgment on Count One based on the 26 first prong of the qualified-immunity analysis, the Court will, in an abundance of caution, 27 address the second prong. 28 A government official’s conduct violates “clearly established” law when “the

- 31 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 32 of 40

1 contours of a right are sufficiently clear that every reasonable official would have 2 understood that what he is doing violates that right.” Ashcroft, 563 U.S. at 741 (cleaned 3 up). Although there need not be a “case directly on point,” “existing precedent must have 4 placed the statutory or constitutional question beyond debate.” Id. In other words, the case 5 law must “have been earlier developed in such a concrete and factually defined context to 6 make it obvious to all reasonable government actors, in the defendant’s place, that what he 7 is doing violates federal law.” Shafer, 868 F.3d at 1117. See also Kisela v. Hughes, 138 8 S. Ct. 1148, 1152 (2018) (“This Court has repeatedly told courts—and the Ninth Circuit in 9 particular—not to define clearly established law at a high level of generality.”) (citation 10 and internal quotation marks omitted); Sharp v. Cnty. of Orange, 871 F.3d 901, 910-11 11 (9th Cir. 2017) (“The Supreme Court has repeatedly instructed that we examine whether 12 the violative nature of particular conduct is clearly established by controlling precedent, 13 not whether the conduct violates a general principle of law. . . . Except in the rare case of 14 an ‘obvious’ instance of constitutional misconduct . . . , Plaintiffs must identify a case where 15 an officer acting under similar circumstances . . . was held to have violated the Fourth 16 Amendment. In other words, Plaintiffs must point to prior case law that articulates a 17 constitutional rule specific enough to alert these [defendants] in this case that their 18 particular conduct was unlawful.”) (cleaned up). Additionally, “the prior precedent must 19 be ‘controlling’—from the Ninth Circuit or Supreme Court—or otherwise be embraced by 20 a ‘consensus’ of courts outside the relevant jurisdiction.” Sharp, 871 F.3d at 911 (citation 21 omitted). See also Tuuamalemalo v. Greene, 946 F.3d 471, 477 (9th Cir. 2019) (“The right 22 must be settled law, meaning that it must be clearly established by controlling authority or 23 a robust consensus of cases of persuasive authority.”). 24 “Once the defense of qualified immunity is raised by the defendant, the plaintiff 25 bears the burden of showing that the rights allegedly violated were ‘clearly established.’” 26 LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). See also Romero v. Kitsap Cnty., 27 931 F.2d 624, 627 (9th Cir. 1991) (“The plaintiff bears the burden of proof that the right 28

- 32 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 33 of 40

1 allegedly violated was clearly established at the time of the alleged misconduct.”).14 2 Although Plaintiff purports to identify an array of earlier cases establishing that the 3 conduct at issue here was unconstitutional, the Court agrees with Defendants that Plaintiff’s 4 cited cases are too factually dissimilar to have provided fair notice to Defendants. For 5 example, Plaintiff identifies Blankenhorn as her best case supporting the denial of qualified 6 immunity as to Defendants’ use of non-lethal force (Doc. 89 at 18), but Blankenhorn does 7 not support Plaintiff’s position for the reasons stated above. There, unlike here, the 8 officers’ initial use of force when attempting to arrest the suspect (the gang-tackle) was 9 excessive and provocative, the suspect was known to the officers as calm and cooperative 10 and remained calm and cooperative throughout the encounter, and the officer’s punches 11 were unnecessary to complete the handcuffing attempt. At a minimum, Blankenhorn is too 12 factually dissimilar to serve as the sort of precedent that would qualify as clearly 13 established authority for qualified-immunity purposes.15 14 Meanwhile, the lethal force cases cited by Plaintiff (Doc. 89 at 18-19) are 15 distinguishable because they establish, at most, that the use of lethal force is impermissible 16 when a suspect, although armed with a weapon, does not make any furtive or quick motions 17 with the weapon that might be reasonably perceived as posing an immediate threat of harm 18 to officers and/or when it is feasible to provide a warning before shooting: 19 ▪ Hayes v. County of San Diego, 736 F.3d 1223, 1233-34 (9th Cir. 2013) (“Hayes 20 14 Although LSO and Romero place the burden on the plaintiff, other Ninth Circuit 21 opinions hold that “[q]ualified immunity is an affirmative defense that the government has 22 the burden of pleading and proving.” Frudden v. Pilling, 877 F.3d 821, 831 (9th Cir. 2017). These opinions are difficult to reconcile. See generally Slater v. Deasey, 943 F.3d 898, 23 909 (9th Cir. 2019) (Collins, J., dissenting from denial of rehearing en banc) (“The panel committed . . . error in suggesting that Defendants bear the burden of proof on the 24 disputed qualified-immunity issues presented in this appeal. . . . [T]he applicable—and well-settled—rule [in the Ninth Circuit] is that the plaintiff bears the burden of proof that 25 the right allegedly violated was clearly established at the time of the alleged misconduct.”) (cleaned up). 26 15 Similarly, Plaintiff’s reliance on Rice v. Morehouse, 989 F.3d 1112 (9th Cir. 2021), is misplaced because the Ninth Circuit denied qualified immunity there based on the 27 presence of evidence that the suspect “was not actively resisting arrest or attempting to evade arrest by flight” and “was not resisting in any way until after he was taken down.” 28 Id. at 1123 (internal citation and quotation marks omitted). Those are not the facts here, even when the evidence is construed in the light most favorable to Plaintiff.

- 33 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 34 of 40

1 appears to have been complying with Deputy King’s order to show his hands when Hayes 2 raised his hands and revealed the knife. His statement that the deputies could take him to 3 jail further suggests his compliance at the time. Although Hayes was walking towards the 4 deputies, he was not charging them, and had not been ordered to stop. He had committed 5 no crime and had followed all orders from the deputies at the time he was shot. . . . 6 [T]hreatening an officer with a weapon does justify the use of deadly force. There is no 7 clear evidence, however, that Hayes was threatening the officers with the knife here.”) 8 (internal citations omitted). 9 ▪ S.B. v. County of San Diego, 864 F.3d 1010, 1014 (9th Cir. 2017) (“Moses shot 10 Brown as soon as his hand touched the knife; . . . Brown was on his knees when he was 11 shot; . . . when he grabbed the knife, Brown was approximately six to eight feet away from 12 Vories; . . . Moses could not see the other officers at the time Brown grabbed the knife; . . 13 . after Brown went for the knife, the officers did not order him to drop the knife or warn 14 that he was about to be shot; and . . . Vories had a non-lethal option—a Taser gun.”). 15 ▪ Hughes v. Kisela, 862 F.3d 775, 780 (9th Cir. 2016) (“[W]hen viewing the facts 16 in the light most favorable to Ms. Hughes, the record does not support Corporal Kisela’s 17 perception of an immediate threat. Officer Garcia told Tucson police that Ms. Hughes did 18 not raise the knife and did not make any aggressive or threatening actions toward Ms. 19 Chadwick. Officer Kunz similarly did not see Ms. Hughes raise her arm. Ms. Chadwick 20 describes Ms. Hughes as having been composed and non-threatening immediately prior to 21 the shooting.”). 22 ▪ Chien Van Bui v. City and Cnty. of San Francisco, 699 F. App’x 614, 615 (9th 23 Cir. 2017) (“Although Bui was holding an ‘X-Acto’ knife in his hand when he was shot, 24 he did not raise his arm or make any other threatening gestures. On the contrary, on 25 Plaintiffs’ facts, Bui assumed a cringing, fearful posture as he shuffled slowly down the 26 hallway toward the officers and was turning away from the officers when they used deadly 27 force. . . . A reasonable jury could conclude that the relatively slight and somewhat 28 impaired Bui, who made no threatening motions with the small blade in the officers’

- 34 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 35 of 40

1 presence, did not present a significant threat of death or serious physical injury.”). 2 ▪ N.E.M. v. City of Salinas, 761 F. App’x 698, 699-700 (9th Cir. 2019) (“At the 3 time of the shooting, Mejia-Gomez [who was holding garden shears] turned toward the 4 officers in a ‘normal’ manner. His turning was not sudden. . . . At the time of the shooting, 5 it was clearly established that officers may not use deadly force against a person who is 6 armed but cannot reasonably be perceived to be taking any furtive, harrowing, or 7 threatening actions.”). 8 ▪ Bascomb v. City of Seattle, 9 F.3d 1550, *1 (9th Cir. 1993) (unpub.) (“According 9 to evidence submitted by the plaintiff, Bascomb was turning away from the officer and 10 could not have been perceived as a looming threat.”). 11 ▪ Harris v. Roderick, 126 F.3d 1189, 1203 (9th Cir. 1997) (“Even though Harris 12 was armed, he made no aggressive move of any kind when Horiuchi started shooting; 13 instead, with the others, he ran back toward the cabin from which they had recently 14 emerged. . . . Graham’s totality of the circumstances test does not permit the use of deadly 15 force to kill a suspect who is running back to a cabin where he is temporarily staying and 16 who makes no threatening movement of any kind. . . .”). 17 ▪ Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) (“[T]he police 18 officers could not reasonably have believed the use of deadly force was lawful because 19 Curnow did not point the gun at the officers and apparently was not facing them when they 20 shot him the first time.”). 21 ▪ Newmaker v. City of Fortuna, 842 F.3d 1108, 1110, 1116 (9th Cir. 2016) (although 22 “Officer Soeth maintained in the district court that he shot Newmaker after [Newmaker] 23 grabbed Soeth’s police baton . . . [and] was standing upright and was swinging the baton 24 violently toward Sergeant Charles Ellebrecht at head height,” “[a] reasonable jury could 25 conclude that Soeth and Ellebrecht were wrong when they claimed that Newmaker grabbed 26 the baton”). 27 ▪ Hulstedt v. City of Scottsdale, 884 F. Supp. 2d 972, 1002 (D. Ariz. 2012) (“[T]here 28 was some danger that David may drop D.H., but at the time he was shot he did nothing to

- 35 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 36 of 40

1 suggest an immediate danger that he would throw her to the ground. Furthermore, David 2 was not armed, was not evading the police . . . , and was not warned that he would be shot 3 if he did not comply with the officers’ commands.”). 4 Put simply, Plaintiff’s cited cases would not have provided notice to Officer Kostas 5 that the use of lethal force was impermissible under the circumstances of this case—where 6 an agitated suspect who had previously resisted arrest in a physically aggressive manner, 7 and against whom less-intrusive forms of force (including two Taser deployments) had 8 proved ineffective, stops moving away from a pursuing offer, turns toward the officer, 9 raises his hand in close proximity to the officer while holding a dangerous makeshift 10 weapon, and quickly moves that hand toward the officer in an objectively threatening 11 manner. Thus, because the law governing the shooting decision was not “earlier developed 12 in such a concrete and factually defined context to make it obvious to all reasonable 13 government actors, in the defendant’s place, that what he is doing violates federal law,” 14 Shafer, 868 F.3d at 1117, the absence of clearly established law provides an additional 15 reason why Defendants are entitled to summary judgment on Count One. 16 III. Count Two: Denial Of Medical Care 17 A. The Parties’ Arguments 18 In Count Two of the SAC, Plaintiff asserts a § 1983 claim premised on the theory 19 that “the wrongful denial of medical care by [Defendants] deprived [Andrich] of his right 20 to receive medical care, treatment, and monitoring while seized or in custody as guaranteed 21 . . . under the Fourteenth Amendment to the United States Constitution.” (Doc. 31 ¶ 42.) 22 Elsewhere in the SAC, Plaintiff elaborates that “[a]fter [Andrich] was unlawfully shot, 23 [Defendants] failed to provide timely medical care to [Andrich], and also failed to timely 24 report the use of force/shooting to a supervisor. Twenty-nine minutes had passed from the 25 time [Andrich] was shot before [Defendants] timely reported the use of force and 26 summoned medical care for [Andrich’s] fatal gunshot wound.” (Id. ¶ 24.) 27 Defendants argue they were not deliberately indifferent to Andrich’s serious 28 medical needs because all that is constitutionally required is the prompt summoning of

- 36 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 37 of 40

1 medical assistance, Officer Kostas requested emergency medical services (“EMS”) right 2 after the shooting, and EMS arrived about five minutes later. (Doc. 86 at 18-20.) 3 Defendants also note that the allegation in the SAC that they waited 29 minutes before 4 summoning medical care “is clearly incorrect.” (Id.) Alternatively, Defendants contend 5 that Plaintiff cannot prove causation with respect to Count Two because “Plaintiff has not 6 hired any medical expert to opine that [Andrich’s] injuries were survivable and that had 7 the Defendants acted differently, that his prognosis would have been different.” (Id.) 8 Plaintiff responds that “Defendants violated their own training and PPD policies by 9 not controlling or attempting to stop Mr. Andrich’s bleeding for five minutes. Allowing 10 Mr. Andrich to bleed out before any ambulance arrived on scene without any care provided 11 violates the constitution and essentially prevented Mr. Andrich’s version of the story from 12 ever being disclosed. This is enough for a constitutional violation[,] as whether Defendants 13 satisfied their constitutional obligation to provide ‘prompt’ medical attention to Mr. 14 Andrich is a jury question.” (Doc. 89 at 20.) Plaintiff also disputes Defendants’ assertion 15 that the time stamps on the surveillance video and the incident report are synchronized. 16 (Id.) Finally, as for causation, Plaintiff contends that an expert isn’t required because “the 17 medical examiner opined that Mr. Andrich’s chances of survival would have increased 18 with CPR provided.” (Id.) Plaintiff concludes: “Simply, Defendants failed to provide Mr. 19 Andrich medical care for minimally five minutes in violation of PPD policies.” (Id.) 20 In reply, Defendants accuse Plaintiff of “attempt[ing] to move the goalposts” on 21 Count Two, because the allegation that they were negligent by not controlling the bleeding 22 for five minutes differs significantly from the allegation in the SAC that “[t]wenty-nine 23 minutes had passed from the time [Andrich] was shot before [Defendants] timely reported 24 the use of force and summoned medical care for [Andrich’s] fatal gunshot wound.” (Doc. 25 93 at 11-12.) At any rate, Defendants reassert that they were only constitutionally required 26 to promptly summon EMS and were not required to perform CPR or blood-loss prevention. 27 (Id.) Defendants also contend that “Plaintiff cites no evidence to contradict the testimony 28 of Officer Kostas that he began performing life-saving measures prior to the arrival of

- 37 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 38 of 40

1 medical personnel.” (Id.) 2 B. Analysis 3 Defendants are entitled to summary judgment on Count Two. “Just as the Fourth 4 Amendment does not require a police officer to use the least intrusive method of 5 arrest, neither does it require an officer to provide what hindsight reveals to be the most 6 effective medical care for an arrested suspect.” Tatum v. City & Cnty. of San Francisco, 7 441 F.3d 1090, 1098 (9th Cir. 2006) (internal citation omitted). “Due process requires that 8 police officers seek the necessary medical attention for a detainee when he or she has been 9 injured while being apprehended by either promptly summoning the necessary medical 10 help or by taking the injured detainee to a hospital.” Maddox v. City of Los Angeles, 792 11 F.2d 1408, 1415 (9th Cir. 1986). As relevant here, “a police officer who promptly 12 summons the necessary medical assistance has acted reasonably for purposes of the Fourth 13 Amendment, even if the officer did not administer CPR.” Tatum, 441 F.3d at 1099. 14 Similarly, an officer is not required to personally engage in other types of life-saving 15 measures, such as efforts to stop or control bleeding, so long as the officer promptly 16 summons medical assistance. See, e.g., Krause v. County of Mohave, 2020 WL 2541728, 17 *12 (D. Ariz. 2020) (“[I]t is evident that the deputies did not act with deliberate indifference 18 to Krause’s medical needs. The deputies requested emergency medical services within 19 sixty seconds of the shooting. Emergency medical care arrived within eight minutes. 20 Plaintiff fails to cite any authority establishing that the deputies[’] prompt request for 21 emergency medical care constitutes deliberate indifference. There is no affirmative duty 22 for the officers to personally administer first aid as Plaintiff suggests.”) (citations omitted); 23 Dunbar v. City of Riverside, 2014 WL 12962881, *3-6 (C.D. Cal. 2014) (no constitutional 24 violation where officers fired multiple shots at a suspect “causing immediate, arterial 25 bleeding” and failed to personally provide medical assistance as the suspect was saying “I 26 can’t breathe,” “please,” and “help me,” because the officers placed a radio call for 27 emergency medical assistance “immediately after the shooting” and the plaintiff did not 28 “identify a single case that holds that personal medical care is constitutionally required”);

- 38 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 39 of 40

1 Duenez v. City of Manteca, 2013 WL 6816375, *11 (E.D. Cal. 2013) (“Plaintiffs argue that 2 the constitution requires the officers to personally administer medical care to a person 3 whom they injure. However, plaintiffs . . . do [not] identify even a single case that holds 4 that personal medical attention is required by the constitution.”). 5 Here, the undisputed evidence establishes that Defendants called for emergency 6 medical assistance within a few seconds of the shooting and that medical personnel arrived 7 about five minutes later. This timeline is established by Defendants’ undisputed testimony 8 (Doc. 86-2 at 94, 107) and is corroborated by multiple pieces of evidence in the record, 9 including the surveillance video from a nearby hotel, which reflects that Andrich fell to the 10 ground at 7:45 (MSJ Exhibit No. 11); the CAD report, which likewise reflects that Andrich 11 went to the ground (“SUBJ DOWN”) at 7:45 and also reflects that a call for medical 12 assistance (“AMBULANCE”) was made one second later, at around 7:46 (Doc. 86-2 at 13 41); the Phoenix Fire Department’s incident report, which reflects that Defendants’ call for 14 emergency medical assistance was received at 7:45:33 and that EMS personnel arrived at 15 the scene at 7:50:53 (id. at 109-10); and the medical records from the hospital, which reflect 16 that Andrich was brought to the hospital by EMS personnel at “[a]pproximately 08:00” and 17 “had been coded for 10 minutes prior to his arrival” (id. at 113). Although Plaintiff 18 speculates that the time stamps on some of these exhibits may not be synchronized, Plaintiff 19 presents no evidence in support of this theory and does not, at any rate, proffer any evidence 20 that would create a legitimate dispute of fact concerning the relevant timeline. Thus, even 21 assuming that Plaintiff has not forfeited her ability to pursue a claim based on Defendants’ 22 failure to personally provide medical care in the aftermath of the accident (which appears 23 to be different from the theory articulated in the SAC), no reasonable juror could rule in 24 Plaintiff’s favor on that claim in light of Defendants’ prompt efforts to summon EMS 25 personnel to the scene. This conclusion makes it unnecessary to resolve Defendants’ 26 alternative challenge to the sufficiency of Plaintiff’s causation evidence. 27 … 28 …

- 39 - Case 2:19-cv-02212-DWL Document 104 Filed 07/22/22 Page 40 of 40

1 Accordingly, 2 IT IS ORDERED that: 3 1. Defendants’ motion for summary judgment (Doc. 86), is granted. 4 2. Plaintiff’s motion to exclude certain expert opinions (Doc. 78) is denied as 5 moot. 6 3. The Clerk shall enter judgment accordingly and terminate this action. 7 Dated this 21st day of July, 2022. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 40 -