Filed 9/17/15 Arrendell v. Perez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ALFRED ARRENDELL, D065719
Plaintiff and Appellant,
v. (Super. Ct. No. ECU07337)
S. PEREZ et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa,
Judge. Affirmed.
Schonbrun, Desimone, Seplow, Harris, Hoffman & Harrison and Catherine
Sweetser for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney
General, Thomas Patterson and Christopher H. Findley, Deputy Attorneys General, for
Defendants and Respondents. Alfred Arrendell appeals from a summary judgment in favor of defendants
S. Perez, A. Din and R. Lam in his lawsuit against them alleging negligence in the
performance of their duties as correctional officers in responding to an inmate fight that
left Arrendell blinded in one eye. We conclude that the trial court properly granted
summary judgment in favor of defendants, and we accordingly affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Arrendell was an inmate at Centinela State Prison, where Perez and Din were
correctional officers and Lam was a correctional sergeant. On February 9, 2010,
Arrendell was in the prison yard when a fight broke out between three inmates whom he
did not know: Martinez, Rios and Bivens.
Perez was stationed in the tower overlooking the prison yard, approximately 32
feet above the ground. She observed as Martinez and Rios chased Bivens, caught up to
him and began fighting with him. Martinez and Rios attacked Bivens with punches and
slicing motions that indicated they had weapons. Perez saw blood coming from Bivens's
head as Bivens tried to break loose. Bivens also had a weapon and was using it.1
Perez ordered all of the inmates on the yard to get down, and reported the fight on
the institutional radio. Arrendell dropped prone to the ground about 100 feet away from
the fight. Din and Lam responded to the prison yard along with other staff.
1 Four weapons of sharpened melted plastic or sharpened metal, ranging from four to six inches long, were found in the prison yard after the fight.
2 While the other officers were arriving on the scene, Perez attempted to get the
three inmates to stop fighting by using a 40 mm launcher, which shoots nonlethal rounds.
First, Perez shot a direct impact round, consisting of a rubber projectile. Perez aimed the
round at Martinez, but the shot missed. Perez ordered the fighting inmates to get down
again, but they refused to comply, so she deployed a different type of nonlethal round,
consisting of a cartridge containing three wood blocks that are designed to disperse upon
hitting the ground about three feet in front of a target (wood block round). She used the
wood block round because it would disperse into three blocks and thus had a better
chance of hitting one of the fighting inmates. Perez did not hit any of the inmates with
the wood block round.
When the officers on the ground responded, including Din and Lam, they
repeatedly ordered the inmates to stop fighting, but the inmates did not comply. Din and
one other officer deployed a total of three oleoresin capsicum ("O.C.") grenades, which
contain a substance similar to pepper spray. The O.C. grenades did not stop the fight.
Neither Lam nor Din used physical force against the fighting inmates because, consistent
with their training, they were concerned that the inmates would use weapons against
them. Instead, the officers formed a skirmish line approximately 10 feet away from the
fight. Although no other witness recalled such an occurrence, Arrendell testified in his
deposition that at some point during the fight a correctional officer approached the
fighting inmates while they were wrestling on the ground, straddled them, and raised his
baton as if to strike them, but then desisted when Lam directed him to stop.
3 The inmates continued to fight, and Bivens was bleeding profusely. Perez
believed Bivens would be killed if she didn't shoot Rios or Martinez, and she therefore
decided that deadly force was necessary. As Perez stated in her deposition, "It had gone
too long already and I was afraid that if I didn't do something right away [Bivens] would
have died." Perez armed herself with a Mini-14 rifle that shoots .223 caliber rounds.
After the inmates again refused to comply with orders to stop fighting, Perez had a clear
shot on Rios and fired, aiming at Rios's upper torso. The shot missed and the fighting
continued.
Perez then transitioned back to the wood block round, as she was no longer able to
get a good shot on any of the assailants due to the fact that they were moving around.
According to Perez and Din, the second wood block round hit Martinez, and he stopped
fighting, threw his weapon over the fence, and laid down on the ground, not getting back
up until the fight was over. According to Arrendell's account, Martinez was hit with
either a wood block round or a direct impact round, which caused him to get down on the
ground and stop fighting for a short time, but then he got back up and rejoined the fight.2
As Perez and Din described the situation, Bivens and Rios continued to fight after
Martinez left, and Bivens was still bleeding profusely. Perez continued to believe that
Rios would kill Bivens if she did not shoot Rios. When she had a clear shot on Rios,
2 The eyewitness accounts also differed as to whether the fight took place with the combatants on the ground, on their feet in a standing position, or a combination of both. According to Perez, the inmates never fought on the ground. Din and Lam stated that the inmates moved back and forth between standing and being on the ground, and Arrendell stated that the inmates wrestled on the ground for most of the fight.
4 Perez fired her Mini-14 rifle at Rios's upper torso. The shot missed. After again ordering
the inmates to stop fighting and then waiting 10 seconds, Perez fired another shot from
the Mini-14 rifle. After that shot, Rios stopped fighting and went prone to the ground.
Bivens moved away and sat down, and the fight was over. A photograph in the record
shows Bivens with numerous bloody wounds immediately after the fight.
Perez's third rifle shot ricocheted after missing Rios and travelled approximately
100 feet to where Arrendell was prone on the ground. The bullet entered Arrendell's
skull through his left eye, causing him to permanently lose sight in that eye. Medical
personnel arrived within 60 seconds to tend to Arrendell's injuries.
Arrendell filed a lawsuit against Perez, Din and Lam (collectively defendants),
asserting a single cause of action for negligence.3 Arrendell alleged that defendants did
not use reasonable care in employing deadly force to control the fight in the prison yard,
causing him to suffer injury.
Defendants filed a motion for summary judgment, which argued that the
undisputed facts established they did not breach their duty of care to act reasonably in
using deadly force. The trial court granted the motion for summary judgment, explaining
that "the undisputed facts show that defendants' actions fell within a reasonable range of
conduct." Arrendell appeals from the judgment.
3 Arrendell earlier filed a federal lawsuit against the State of California and several individuals, which the parties stipulated to having dismissed in favor of litigating the case in superior court.
5 II
DISCUSSION
A. Applicable Legal Standards
1. Summary Judgment Standards
We begin our discussion with an overview of the rules governing motions for
summary judgment.
A defendant "moving for summary judgment bears an initial burden of production
to make a prima facie showing of the nonexistence of any triable issue of material fact."
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant may meet
this burden either by showing that one or more elements of a cause of action cannot be
established or by showing that there is a complete defense. (Ibid.) "[A]ll that the
defendant need do is to show that the plaintiff cannot establish at least one element of the
cause of action[;] . . . the defendant need not himself conclusively negate any such
element . . . ." (Id. at p. 853.) If the defendant's prima facie case is met, the burden shifts
to the plaintiff to show the existence of a triable issue of material fact with respect to that
cause of action or defense. (Id. at p. 849; Silva v. Lucky Stores, Inc. (1998) 65
Cal.App.4th 256, 261 (Silva).)
We review a summary judgment ruling de novo to determine whether there is a
triable issue as to any material fact and whether the moving party is entitled to judgment
as a matter of law. (Certain Underwriters at Lloyd's of London v. Superior Court (2001)
24 Cal.4th 945, 972.) "In practical effect, we assume the role of a trial court and apply
the same rules and standards which govern a trial court's determination of a motion for
6 summary judgment." (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61
Cal.App.4th 1073, 1079.) Thus, on appeal we apply the same three-step analysis used by
the trial court. "We identify the issues framed by the pleadings, determine whether the
moving party has negated the opponent's claims, and determine whether the opposition
has demonstrated the existence of a triable, material factual issue." (Silva, supra, 65
Cal.App.4th at p. 261.)4
2. Law Applicable to the Officers' Use of Deadly Force
We next examine the law that applies to Arrendell's cause of action for negligence
against defendants.
" '[I]n order to prove facts sufficient to support a finding of negligence, a plaintiff
must show that [the] defendant had a duty to use due care, that he breached that duty, and
that the breach was the proximate or legal cause of the resulting injury.' " (Hayes v.
County of San Diego (2013) 57 Cal.4th 622, 629 (Hayes).)
Here, because Arrendell was injured when the officers used deadly force to control
the fight in the prison yard, we focus on the case law establishing the circumstances
4 In a footnote in his opening brief, Arrendell states that had the case gone to trial he "would have presented expert testimony regarding the training of correctional officers, including a policy preventing the discharge of weapons if there is reason to believe persons other than the target will be injured. We do not consider this evidence as it was not submitted to the trial court in connection with the summary judgment motion. (Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 790 [" '[I]n reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal.' "].)
7 under which a law enforcement officer may reasonably use deadly force.5 Our Supreme
Court "has long recognized that peace officers have a duty to act reasonably when using
deadly force. [Citations.] The reasonableness of an officer's conduct is determined in
light of the totality of circumstances." (Hayes, supra, 57 Cal.4th at p. 629.) The same
standards apply when a suspect is injured by an officer's use of deadly force or, when as
here, an officer uses deadly force that unintentionally causes injury to an innocent
bystander. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 534 (Brown) [examining
whether officers acted reasonably under the totality of circumstances in using deadly
force that caused injury to a bystander in a nearby building].)
More specifically, case law establishes that "[a] police officer's use of deadly force
is reasonable if ' " 'the officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the officer or others.' " ' " (Brown,
supra, 171 Cal.App.4th at p. 528.) "Where potential danger, emergency conditions, or
other exigent circumstances exist, ' "[t]he Supreme Court's definition of reasonableness is
. . . 'comparatively generous to the police. . . .' " [Citation.]' [Citation.] ' "In effect, 'the
Supreme Court intends to surround the police who make these on-the-spot choices in
dangerous situations with a fairly wide zone of protection in close cases.' " ' " (Ibid.)
5 Although the case law that we cite was developed in noncustodial situations where a plaintiff was injured by law enforcement officers' use of deadly force, the parties both rely on that case law as controlling here, where correctional officers, not police officers, used deadly force. Like noncustodial law enforcement officers, correctional officers are subject to reasonable force restrictions. (C.f., In re Riddle (1962) 57 Cal.2d 848, 852 ["custodial officers may use reasonable force upon a prisoner to enforce proper prison regulations"].)
8 "Also, as the nation's high court has observed, '[t]he "reasonableness" of a particular use
of force must be judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.' " (Hayes, supra, 57 Cal.4th at p. 632, quoting
Graham v. Connor (1989) 490 U.S. 386, 396.) " ' "We must never allow the theoretical,
sanitized world of our imagination to replace the dangerous and complex world that
policemen face every day. What constitutes 'reasonable' action may seem quite different
to someone facing a possible assailant than to someone analyzing the question at leisure."
[Citation.]' [Citation.] Placing the burden of proof on the plaintiff to establish that an
officer's use of force was unreasonable 'gives the police appropriate maneuvering room in
which to make such judgments free from the need to justify every action in a court of
law.' " (Brown, at pp. 527-528.)
Because of the deference given to law enforcement officers in making tactical
decisions in exigent circumstances, " '[a]s long as an officer's conduct falls within the
range of conduct that is reasonable under the circumstances, there is no requirement that
he or she choose the "most reasonable" action or the conduct that is the least likely to
cause harm and at the same time the most likely to result in the successful apprehension
of a violent suspect, in order to avoid liability for negligence.' [Citation.] . . . Law
enforcement personnel have a degree of discretion as to how they choose to address a
particular situation." (Hayes, supra, 57 Cal.4th at p. 632, italics added.)
The issue of whether a law enforcement officer acted within the range of
reasonable conduct in using deadly force may, when appropriate, be decided on summary
judgment. "Summary judgment is appropriate when the trial court determines that,
9 viewing the facts most favorably to the plaintiff, no reasonable juror could find
negligence." (Hayes, supra, 57 Cal.4th at p. 632.) When, in considering a summary
judgment motion, the trial court determines that a "decision to use deadly force and . . .
use of deadly force were objectively reasonable under the circumstances," judgment may
be granted for the defendant. (Brown, supra, 171 Cal.App.4th at p. 534, italics added
[affirming summary judgment in negligence claim against police officers who used
deadly force that inadvertently injured a bystander in a nearby building, as the actions
were objectively reasonable under the circumstances].) Only "[i]f the circumstances
permit a reasonable doubt whether defendants' conduct violated the boundaries of due
care, [must] the doubt . . . be resolved as an issue of fact by the jury rather than of law by
the court." (Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 887.)6
6 Arrendell cites Giraldo v. California Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 250, when discussing the applicable duty of care. However, Giraldo is inapposite under the facts of this case. Giraldo concerned a lawsuit by a transgender prisoner who challenged implementation of " 'prison policies that place transgender inmates, such as [plaintiff], who have the physical appearance of women, in the male inmate population without any meaningful precaution to the obvious risk of sexual assault to them,' " and which allegedly led to the plaintiff being beaten and raped by a cellmate. (Id. at p. 237.) Giraldo held that "there is a special relationship between jailer and prisoner, imposing on the former a duty of care to the latter." (Id. at p. 250.) That duty arises from the fact that prisoners are "vulnerable" and "dependent," with the "relationship between them . . . protective by nature, such that the jailer has control over the prisoner, who is deprived of the normal opportunity to protect himself from harm inflicted by others." (Ibid.) The special duty of a correctional officer to protect prisoners from other inmates is not applicable here because Arrendell was not harmed by another inmate. The injury to Arrendell resulted from an inadvertent ricochet of a bullet when officers were acting on their duty to protect another inmate, Bivens, from being harmed by fellow inmates.
10 B. Perez, Din and Lam Established as a Matter of Law That the Decision to Use Deadly Force Was Objectively Reasonable Under the Circumstances
Arrendell contends that in responding to defendants' summary judgment motion,
he established a material factual dispute about whether defendants acted within the range
of reasonable conduct by responding with deadly force to the prison yard fight. As we
will discuss, under any version of the facts supported by the record, the defendants'
conduct was objectively reasonable.
As we have explained, the fundamental applicable principle is that the "use of
deadly force is reasonable if ' " 'the officer has probable cause to believe that the suspect
poses a significant threat of death or serious physical injury to the officer or others.' " ' "
(Brown, supra, 171 Cal.App.4th at p. 528.) Here, it is undisputed that Bivens was being
stabbed, was bleeding profusely, and Perez believed that Bivens would be killed if she
did not act immediately to stop the fight. This situation satisfies the criteria for use of
deadly force.
Arrendell's main dispute is not with whether Bivens's life was in danger.7 Instead,
Arrendell criticizes the use of deadly force because he believes that nonlethal measures
could have been just as effective without putting bystanders in danger of suffering injury
7 We note, however, that Arrendell tries to distinguish one of the applicable cases cited by the People, Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, by arguing that unlike in this case, in Lopez the officer's unintended shooting of a person behind a closed door was reasonable based on "the exigency of the circumstances." (Id. at p. 690.) If Arrendell means to argue that no exigent circumstances existed here, we disagree. As we have explained, there was evidence that Rios was stabbing Bivens, and Perez believed that Bivens would soon be killed if she did not quickly stop the fight.
11 from a ricocheting bullet. However, Arrendell overlooks two important points. First,
case law gives officers wide discretion in exigent circumstances to determine how to
respond to a situation. As we have explained, " 'there is no requirement that [the officer]
choose the "most reasonable" action or the conduct that is the least likely to cause harm
and at the same time the most likely to result in the successful apprehension of a violent
suspect, in order to avoid liability for negligence.' " (Hayes, supra, 57 Cal.4th at p. 632.)
Second, the evidence shows that the nonlethal measures were not effective at stopping the
fight. Rios was still stabbing Bivens even after Perez fired three nonlethal rounds and the
other officers threw several O.C. grenades at the fighting inmates. Based on those facts,
Arrendell's suggestion that the officers could have stopped the fight using nonlethal
measures "is pure conjecture, and does not establish that [the officers'] actual response to
the situation was unreasonable." (Brown, supra, 171 Cal.App.4th at p. 537.)
In an attempt to establish that the officers' response with deadly force was not
within the range of reasonable conduct under the circumstances, Arrendell contends that
it was not reasonable for Perez to shoot the rifle a third time because she "herself
admitted that she could not accurately hit the inmates." According to Arrendell, Perez
"knew her aim was not good enough to reliably hit the moving people at whom she was
firing" and that "[i]t was undisputed that . . . Perez did not have a clear shot at the three
inmates that were fighting . . . ." Those assertions have no support in the record, as there
is no evidence of Perez ever admitting that she could not accurately hit the inmates. On
the contrary, Perez stated in her deposition testimony that she shot the rifle on occasions
when she did have a clear shot at her target. She chose to use a wood block round, not
12 the rifle, during the interval when the subjects were moving around too much to allow her
to aim accurately.
In a similar argument, Arrendell contends that Perez "kn[e]w from missing with
the less-lethal rounds that she [could not] accurately hit the person at whom she [was]
aiming." (Italics omitted.) Arrendell contends that "it is undisputed that the tower officer
was unable to hit the fighting inmates . . . ." That assertion is not supported by the
record, as Arrendell did not miss with all of the nonlethal rounds. As we have explained,
according to Perez, she missed with the initial direct impact round and with the first wood
block round, but she hit Martinez with the second wood block round. Arrendell contends
that the second wood block round missed its mark because it hit the ground near the
inmates. However, as Perez explained in her deposition testimony, she was not aiming
directly at the inmates. Instead, because the wood block round is designed to disperse
and hit people after striking the ground in front of them, she aimed three feet in front of
the inmates. After the wood block round hit where Perez aimed, it dispersed and struck
Martinez. Similarly, under the facts as described in Arrendell's deposition, Perez hit
Martinez with one of the nonlethal rounds, which was either the direct impact round or
the wood block round, depending on which part of Arrendell's deposition is consulted.
Under either of these factual scenarios, there is no basis for a finding that Perez knew she
could not hit a target accurately with a shot from the tower.
Arrendell also contends that Perez should have continued to use nonlethal rounds
because she purportedly had success with the wood block round in getting the inmates to
desist. Arrendell specifically argues that Perez should not have used lethal force because
13 the nonlethal force "was effective in getting the inmates to 'prone out' or lay prone on the
floor and stop fighting." We reject this argument for two reasons. First, under
Arrendell's version of the facts as described in his deposition testimony, the nonlethal
rounds did not cause the inmates to desist, as Martinez returned to the fight after briefly
going to the ground when hit with a nonlethal round. Next, under the officers' version of
events, Perez fired three nonlethal rounds, with a wood block round finally getting
Martinez to stop fighting, but the nonlethal measures did not stop Rios, who continued to
stab Bivens. As exigent circumstances existed based on the immediate threat to Bivens's
life, it was objectively reasonable for Perez to switch to deadly force when the nonlethal
measures had not stopped Rios from stabbing Bivens.
Turning his attention to the officers on the ground — Din and Lam — Arrendell
contends that they did not act reasonably because they did not physically intervene to
stop the fight, which contributed to Perez's ultimate decision to use deadly force.8 As an
initial matter, we note that according to Arrendell's version of events, an officer did
physically intervene by straddling the three assailants and threatening to use his baton on
them, but then desisting at Lam's orders. Assuming that Arrendell is arguing either that
this physical intervention was not sufficiently extensive, or that there was no physical
8 We consider the reasonableness of Din's and Lam's conduct as part of the inquiry into whether it was reasonable, under the totality of the circumstances, for the officers to use deadly force. As our Supreme Court has recently clarified, officers' "preshooting conduct should not be considered in isolation" as a possible separate breach of duty. (Hayes, supra, 57 Cal.4th at p. 632.) "Rather, it should be considered in relation to the question whether the officers' ultimate use of deadly force was reasonable." (Ibid.)
14 intervention at all, as the officers testified, we reject the argument and conclude that the
officers' conduct was well within the range of reasonable conduct. The officers on the
ground did not simply stand by without doing anything. Instead, they deployed several
O.C. grenades at the feet of the fighting inmates and repeatedly ordered the inmates to
stop fighting. Further, the officers are trained to avoid physical combat with inmates who
possess weapons because the inmates may turn the weapons on them.9 Under the
circumstances here where (1) exigent circumstances existed; (2) Perez was in the tower,
with both nonlethal and lethal measures available to her; and (3) the officers were trained
not to engage armed inmates, it was objectively reasonable for the officers on the ground
to employ O.C. grenades rather than engaging in a physical confrontation with armed
inmates.10
9 Arrendell contends that Perez "specifically told Arrendell that the officers on the ground should have approached the inmates and it was only when they failed to break up the fight that she felt she had to use deadly force." The record does not support that assertion. Arrendell testified in his deposition that he spoke to Perez at some point after the incident, but in the excerpts contained in the record, Arrendell did not describe a discussion with Perez on that subject. Perez testified in her deposition that during the fight she wished that the officers on the ground could have done something to stop the fight, but in her deposition testimony she quickly clarified that the only options available to them were to throw the O.C. grenades.
10 In a related contention, Arrendell states that all three of the fighting inmates went to the ground, at which point the officers on the ground should have moved in to physically restrain them. This argument fails because its premise is faulty. There is no evidence that all of the inmates were on the ground and in a position to be physically restrained at any point during the fight. According to all of the witnesses, the inmates continued to actively fight throughout the entire incident, with only Martinez stopping (either briefly or permanently). There was accordingly no good opportunity to physically restrain the inmates that did not involve risk to the officers. If Arrendell means to argue that the officers should have restrained Martinez when he went down to the ground, it 15 Finally, Arrendell argues that factual disputes exist on issues that are important in
establishing whether the officers' conduct was within the range of reasonable conduct.
Specifically, the following factual disputes exist: (1) whether Martinez stopped fighting
and threw away his weapon after being hit with a nonlethal round, or only temporarily
stopped fighting; (2) whether the inmates were ever fighting on the ground, as Din, Lam
and Arrendell recalled, or fighting while standing, as Perez remembered; and (3) whether
an officer straddled the fighting inmates on the ground and raised a baton, but then
moved away at Lam's orders.11
Regardless of how a finder of fact were to resolve these three factual disputes, the
officers' approach would still be within the range of reasonable conduct as a matter of
law. First, regardless of whether Martinez rejoined the fight after being hit with a
nonlethal round, the undisputed fact remains that Rios was still stabbing Bivens, and
was within the range of reasonable conduct for the officer to have decided not to do so. Assuming that, as Arrendell described, Martinez only temporarily stopped fighting and still had his weapon, it was reasonable for the officers to stand back from Martinez at that point, as Martinez might turn his weapon on them. Restraining Martinez would also have put the officers in the danger zone of any rounds fired by Perez to control Rios, who was still actively stabbing Bivens. If, on the other hand, events unfolded as the officers described, with Martinez going to the ground and discontinuing the fight after throwing away his weapon, it would not have been important for the officers to immediately restrain Martinez.
11 Arrendell contends that there is also a factual dispute about whether all of the fighting inmates went prone to the ground and could have been handcuffed after the wood block rounds were deployed. As we have explained, there is no evidence in the record supporting Arrendell's scenario. Although witnesses described the fight as transitioning to the ground rather than with the inmates standing up, and Martinez going to the ground after being hit with a nonlethal round, no witness described all of the inmates as taking a prone position during which they stopped fighting and could have been handcuffed prior to Perez firing the third lethal round. 16 Perez believed that Bivens would be killed if she did not do something quickly. Under
either scenario, the remaining threat posed by Rios justified the use of deadly force.
Second, regardless of whether the inmates fought on the ground or standing up, it is
undisputed that nonlethal measures had not stopped Rios from stabbing Bivens, justifying
Perez's resort to deadly force to try to stop the attack. Third, even if, as Arrendell
testified, an officer with a drawn baton straddled the fighting inmates at some point and
then desisted at the direction of Lam, the officers' actions would still be within the range
of reasonable conduct. There is no indication in Arrendell's testimony that the officer
straddling the inmates was making any progress in stopping the fighting, and, as we have
described, officers are trained to stay out of a physical altercation with armed inmates
because the officers may be harmed. Further, with the officer straddling the inmates,
Perez would be prevented from taking a shot at the fighting inmates to get them to stop
fighting without putting the officer in danger. Based on all those considerations, it would
be within the range of reasonable conduct for the officer straddling the inmates to back
off and allow Perez to handle the situation by shooting rounds from the tower.
In sum, we conclude that under any factual scenario of how the incident occurred,
the officers' use of deadly force was objectively reasonable under the circumstances.
Therefore, the trial court properly granted summary judgment in favor of defendants.
17 DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
HALLER, J.