6 x = 8 — ee 9 Se
10 te ] aN ll JA a 12 & Officer Fachko concedes that he would “not think it was appropriate to shoot the driver of 14 a stopped vehicle.” Fachko Dep. at 30:1-2. “[A] stopped vehicle would not pose a threat to... 15 any officer or the public.” Jd. at 30:7-9. Even so, Officer Fachko asserts that he shot Gomez 16 because “I felt and believed that Gomez was trying to run me over or drive through the area where 17
I was standing in order to evade the block.” Fachko Decl. § 9. Officer Fachko also asserts that “I Z 18 concluded that I did not have an opportunity to evade Gomez’ vehicle.” Jd. 19 Police photographs taken after the shooting show that Gomez’s Honda Civic had its front 20 tires turned slightly to the right—that is, away from where Officer Fachko had been standing. 21 Fries Decl. 12 & Ex. 5. Moreover, even if Gomez’s Honda had its front tires turned fully to the 22 left, “the Honda would not have been able to turn enough to get past Officer Fachko’s police 23 vehicle or hit Officer Fachko.” Jd. 21. Gomez supports this conclusion with a driving test 24 conducted by Fries, and the fact that a Honda Civic’s minimum turning radius is 37 feet. Jd. & 25 Ex. 6. 26 27 28 Case No. 19-CV-05266-LHK
B. Procedural History 1 After the shooting, Gomez was charged with (1) resisting an officer with force in violation 2 of California Penal Code § 69; and (2) vehicle theft in violation of California Penal Code § 666.5. 3 Plea Tr. at 5:12–6:7, People v. Gomez, Nos. C1776322 & C1885082 (Cal. Sup. Ct. Jan. 24, 2019), 4 ECF No. 50-8.3 On January 24, 2019, Gomez pled no contest both to resisting an officer and to 5 stealing the Honda. Id. 6 As relevant here, Gomez expressly limited the factual basis for his no contest plea to 7 resisting an officer. Gomez and the government “stipulate[d] that there is a factual basis based on 8 the videotape of this incident that we all reviewed where he’s backing his car up into the patrol 9 vehicle.” Id. at 8:8–11 (emphasis added). Aside from that factual basis, Gomez’s defense counsel 10 stated that because “the shooting occurred after Mr. Gomez’s car backed up into the patrol 11 vehicle, [] Mr. Gomez is not agreeing that the officer [i.e., Officer Fachko] was in the lawful 12 performance of his duty at the time [Gomez] was shot.” Id. at 4:20–24 (emphasis added). “Gomez 13 wanted to state this on the record because he want[ed] to make sure there’s no confusion regarding 14 that charge [of resisting an officer].” Id. at 4:27–5:1. The Superior Court for Santa Clara County 15 then confirmed that defense counsel’s statement was “the understanding of all parties.” Id. at 5:4– 16 6. 17 On August 22, 2019, Gomez brought the instant case against the City of Santa Clara and 18 Officer Fachko (“Defendants”). ECF No. 1. Gomez alleged eight claims for damages under 42 19 U.S.C. § 1983 and state law: (1) excessive force in violation of the Fourth Amendment; (2) denial 20 of medical care in violation of the Fourth Amendment; (3) municipal liability for a 21 22 3 Defendants request judicial notice of the transcript of Gomez’s plea in the Superior Court for the 23 County of Santa Clara. ECF No. 50-7 (“RJN”). Gomez does not oppose Defendants’ request. The 24 Court may take judicial notice of matters that are either “generally known within the trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy 25 cannot reasonably be questioned.” Fed. R. Evid. 201(b). Public records are proper subjects of 26 judicial notice. See, e.g., Calhoun v. Google LLC, No. 20-CV-05146-LHK, 2021 WL 1056532, at *5 (N.D. Cal. Mar. 17, 2021) (collecting cases). Accordingly, the Court GRANTS Defendants’ 27 unopposed request for judicial notice. 1 unconstitutional custom, practice, or policy; (4) municipal liability for ratifying Officer Fachko’s 2 unreasonable use of deadly force; (5) municipal liability for failure to train; (6) battery; 3 (7) negligence; and (8) violating the Bane Civil Rights Act, Cal. Civ. Code § 52.1. Id. at 5–18. 4 On February 5, 2021, Defendants filed the instant motion for summary judgment on all 5 claims. ECF No. 50-1 (“Mot.”). Gomez filed his opposition on February 19, 2021. ECF No. 51 6 (“Opp’n”). Gomez’s opposition “dismisses his claims for denial of medical care and Monell [i.e., 7 municipal] liability” instead of opposing Defendants’ motion for summary judgment on those 8 claims. Opp’n at 1 n.1. 9 Thus, the Court DISMISSES with prejudice Gomez’s claims for (1) denial of medical care 10 under 42 U.S.C. § 1983 against Officer Fachko (Count 2); (2) municipal liability for an 11 unconstitutional custom, practice, or policy under 42 U.S.C. § 1983 against the City of Santa Clara 12 (Count 3); (3) municipal liability for ratification of a constitutional violation under 42 U.S.C. 13 § 1983 against the City of Santa Clara (Count 4); and (4) municipal liability for failure to train 14 under 42 U.S.C. § 1983 against the City of Santa Clara (Count 5). ECF No. 1. 15 On February 26, 2021, Defendants filed their reply in support of the instant motion. ECF 16 No. 55 (“Reply”). 17 II. LEGAL STANDARD 18 Summary judgment is proper where the pleadings, discovery, and affidavits show that 19 there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as 20 a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of 21 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact 22 is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving 23 party. See id. 24 The Court will grant summary judgment “against a party who fails to make a showing 25 sufficient to establish the existence of an element essential to that party’s case, and on which that 26 party will bear the burden of proof at trial[,] . . . since a complete failure of proof concerning an 27 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 1 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial burden 2 of identifying those portions of the record that demonstrate the absence of a genuine issue of 3 material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings, and 4 by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, 5 designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal 6 quotations omitted). If the nonmoving party fails to make this showing, “the moving party is 7 entitled to judgment as a matter of law.” Id. at 323. 8 For purposes of summary judgment, the Court must view the evidence in the light most 9 favorable to the nonmoving party; if the evidence produced by the moving party conflicts with 10 evidence produced by the nonmoving party, the Court must assume the truth of the evidence 11 submitted by the nonmoving party. Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). The 12 Court’s function on a summary judgment motion is not to make credibility determinations or 13 weigh conflicting evidence with respect to a disputed material fact. T.W. Elec. Serv. v. Pac. Elec. 14 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 15 III. DISCUSSION 16 Defendants move for summary judgment on three independent grounds. First, Defendants 17 argue that Gomez’s no contest plea to resisting an officer bars all of Gomez’s claims under Heck v. 18 Humphrey, 512 U.S. 477 (1994). Second, Defendants argue that qualified immunity bars Gomez’s 19 Fourth Amendment claims of excessive force. Third, Defendants argue that Gomez’s state law 20 claims—battery, negligence, and violation of the Bane Civil Rights Act—lack a factual basis 21 given the reasonableness of Officer Fachko’s use of force. 22 The Court analyzes each ground for summary judgment below. Ultimately, the Court 23 concludes that Gomez’s claims would not “necessarily imply the invalidity of his conviction” for 24 resisting an officer. Id. at 487. Nor does qualified immunity allow Officer Fachko to avoid liability 25 for firing at Gomez three times while (1) Gomez’s vehicle was stopped and boxed in by two police 26 SUVs; (2) Gomez’s hands were up; and (3) nobody was in the path of Gomez’s vehicle. Finally, 27 Gomez’s state law claims survive summary judgment because, as the Court’s qualified immunity 1 analysis shows, there is a material factual dispute as to whether Officer Fachko’s conduct meets 2 the elements of the state law claims. Thus, the Court DENIES Defendants’ motion for summary 3 judgment. 4 A. Heck v. Humphrey does not bar Gomez’s claims. 5 Defendants argue that Gomez’s conviction for resisting an officer, in violation of 6 California Penal Code § 69, requires dismissal of Gomez’s lawsuit under Heck v. Humphrey and 7 Heck’s California equivalent, Truong v. Orange County Sherriff’s Department, 129 Cal. App. 4th 8 1423, 1429–30 (Cal. Ct. App. 2005). Heck held that, for a 42 U.S.C. § 1983 plaintiff to recover 9 damages for conduct whose unlawfulness would render a conviction invalid, that plaintiff must 10 prove that the conviction has been reversed, otherwise set aside, or called into question. Heck, 512 11 U.S. at 486–87. Here, there is no dispute that Gomez’s conviction under California Penal Code 12 § 69 is valid. Thus, Defendants’ argument is that Gomez’s claims “necessarily imply the invalidity 13 of his [§ 69] conviction.” Id. at 487. 14 To prevail on this Heck argument, Defendants bear the burden of making “clear” that 15 success on Gomez’s claims “would necessarily imply or demonstrate that [Gomez]’s earlier 16 conviction was invalid.” Smith v. City of Hemet, 394 F.3d 689, 699 & n.5 (9th Cir. 2005) (en banc) 17 (emphasis in original) (citing Sanford v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001)). Defendants’ 18 argument starts from the premise that “[i]mplicit in a Penal Code [§] 69 conviction is a finding 19 that the officer or officers who were being resisted, were acting lawfully (i.e., not engaging in 20 excessive force).” Mot. at 12. Under this premise, Defendants argue that “[Gomez]’s plea under 21 Penal Code [§] 69 effectively concedes that Officer Fachko did not engage in excessive force 22 during the encounter.” Id. Defendants thus argue that the reasonableness of Officer Fachko’s use 23 of deadly force defeats Gomez’s federal and state claims. Id. at 12, 19–20. 24 Below, the Court first shows why Defendants’ argument is incorrect. The Court then 25 explains how Defendants’ attempts to distinguish controlling case law are unpersuasive. 26 27 1. Heck does not bar Gomez’s claims because Gomez’s plea expressly preserved an 1 excessive force claim against Officer Fachko. 2 Defendants’ argument is incorrect for a simple reason: “Under Heck, [Gomez] [is] allowed 3 to bring a § 1983 action [because] the use of excessive force occurred subsequent to the conduct 4 on which his conviction was based.” Smith, 394 F.3d at 698 (emphasis in original). The basis for 5 Gomez’s plea was Gomez resisting Officer Pianto, not Officer Fachko. Officer Fachko’s alleged 6 use of excessive force “occurred subsequent to” Gomez resisting Officer Pianto. Id. Specifically, 7 at the plea hearing, the parties “stipulate[d]” that the “factual basis” for Gomez’s plea was 8 “[Gomez] backing his car up into the patrol vehicle.” Plea Tr. at 8:8–11. That patrol vehicle was 9 Officer Pianto’s. 10 Then, as detailed in the Factual Background section above, three events separated the basis 11 for Gomez’s plea from Officer Fachko’s use of deadly force. See Section I-A, supra (detailing 12 background and images of shooting). First, Gomez’s Honda Civic rebounded four inches off 13 Officer Pianto’s vehicle, which had boxed in the Honda from behind. Fries Decl. ¶¶ 12, 14. 14 Second, 0.5 seconds after rebounding, the Honda stopped moving. Id.; Pianto Dep. at 54:5–8; 15 Fachko Dep. at 38:2–12. At no point did Gomez turn the Honda left toward Officer Fachko. 16 Fachko Dep. at 56:19–57:2, 68:15–17. In fact, the Honda wheels were turned away from Officer 17 Fachko in police photographs. Fries Decl. ¶ 12 & Ex. 5. Third, Gomez put his hands up and 18 removed his foot from the gas pedal. Gomez Dep. at 38:9–22, 63:19–64:23, 75:10–12; see also 19 Fachko Dep. at 58:18–19 (“I remember the driver’s hands were either -- I think they were kind of 20 like toward his chest . . . .”). Only then, about one second after the Honda stopped moving and 21 Gomez’s hands were up, did Officer Fachko fire three shots at Gomez from the driver’s side of the 22 Honda. Fachko Dep. at 14:14–17; Video at 0:05–0:08. 23 Pursuant to this chain of events, Gomez’s plea of no contest expressly preserved the 24 argument that Officer Fachko used excessive force. At Gomez’s plea hearing, Gomez’s counsel 25 stated that because “the shooting occurred after Mr. Gomez’s car backed up into the patrol 26 vehicle, [] Mr. Gomez is not agreeing that the officer [i.e., Officer Fachko] was in the lawful 27 performance of his duty at the time [Gomez] was shot.” Id. at 4:20–24 (emphasis added). “Gomez 1 wanted to state this on the record because he want[ed] to make sure there’s no confusion regarding 2 that charge [i.e., resisting an officer].” Id. at 4:27–5:1. The Superior Court for Santa Clara County 3 then confirmed that defense counsel’s statement was “the understanding of all parties.” Id. at 5:4– 4 6. 5 Thus, if Gomez prevailed on his claims that Officer Fachko used excessive force, that 6 would not “necessarily imply or demonstrate that [Gomez]’s earlier conviction was invalid.” 7 Smith, 394 F.3d at 699 (emphasis in original). Rather, the only basis for Gomez’s § 69 conviction 8 is that Gomez resisted Officer Pianto by backing the Honda into Officer Pianto’s patrol vehicle. 9 Plea Tr. at 8:8–11. Even if Officer Fachko’s subsequent shooting of Gomez was unlawful, that 10 would not necessarily imply that Officer Pianto had also acted unlawfully. 11 Three cases illustrate the en banc Ninth Circuit’s holding that, under Heck, a plaintiff is 12 “allowed to bring a § 1983 action [] if the use of excessive force occurred subsequent to the 13 conduct on which his conviction was based.” Smith, 394 F.3d at 698 (emphasis in original). The 14 first case is Sanford v. Motts, 258 F.3d 1117 (9th Cir. 2001). In Sanford, plaintiff’s case was even 15 weaker than Gomez’s. Unlike Gomez, plaintiff Regina Sanford brought an excessive force claim 16 against the same officer she pled nolo contendere (“no contest”) to resisting. Id. at 1118. The 17 officer argued, as Defendants do here, that a finding of excessive force would imply the invalidity 18 of plaintiff’s conviction for resisting arrest. Id. at 1119. The Ninth Circuit disagreed. The Ninth 19 Circuit held that “if [the officer] used excessive force subsequent to the time Sanford interfered 20 with [the officer’s] duty, success in [Sanford’s] section 1983 claim will not invalidate her 21 conviction.” Id. at 1120 (emphasis added). Applying this holding, the Ninth Circuit reasoned that 22 “[n]othing in the record informs us what the factual basis was for Sanford’s plea of nolo.” Id. at 23 1119. Thus, the Sanford defendants failed to show that the officer had used allegedly excessive 24 force before or during Sanford’s resistance, rather than afterwards. Id. 25 Gomez’s argument against the Heck doctrine is even stronger than Sanford’s. The basis for 26 Sanford’s plea of no contest was merely unclear. Id. By contrast, the basis for Gomez’s plea of no 27 contest expressly preserves an excessive force claim against Officer Fachko. Plea Tr. at 4:20–5:1 1 (emphasis added). Moreover, viewing the facts in the light most favorable to Gomez, Officer 2 Fachko used excessive force “subsequent to” Gomez’s interference with Officer Pianto’s duty. Id. 3 at 1120 (emphasis in original). 4 The second case that confirms that Gomez may bring this lawsuit despite Heck is Hooper 5 v. County of San Diego, 629 F.3d 1127 (9th Cir. 2011). There, the Ninth Circuit held that plaintiff 6 Deborah Hooper’s excessive force claim was not Heck-barred even though (1) she had pleaded 7 guilty to resisting arrest; and (2) her arrest—and the allegedly excessive force—occurred “in a 8 single continuous chain of events lasting a very brief time.” Id. at 1129, 1131. The Ninth Circuit 9 reasoned that “a plaintiff alleging excessive force ‘does not collaterally attack his conviction or 10 deny that he resisted. Rather, plaintiff claims that he suffered unnecessary injuries because the 11 response to his resistance was not objectively reasonable.” Id. at 1133 (emphasis added) 12 (alterations in original omitted) (quoting VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006)). 13 Thus, Hooper could challenge the lawfulness of force used after “the initial arrest attempt.” Id. 14 (quoting Yount v. City of Sacramento, 43 Cal. 4th 885, 899 (Cal. 2008)). In Hooper, that allegedly 15 unlawful force was the use of a police dog after Hooper stopped resisting arrest. Id. at 1129. 16 Analogously here, Officer Fachko used deadly force after Gomez stopped resisting arrest. 17 Moreover, as in Hooper, it is immaterial that Gomez’s arrest was “a single continuous chain of 18 events lasting a very brief time.” Id. at 1131. Hooper instructs that Gomez’s claims may proceed 19 because Gomez’s claims do not “negate the lawfulness of the initial arrest attempt, or negate the 20 unlawfulness of [Gomez’s] attempt to resist it.” Id. at 1133 (quoting Yount, 43 Cal. 4th at 899). 21 Rather, it is entirely consistent for two things to be true simultaneously: (1) Gomez resisted arrest 22 by backing into Officer Pianto’s car (i.e., the express basis for Gomez’s plea); and (2) Officer 23 Fachko’s used excessive force when he shot at Gomez three times while Gomez’s hands were up, 24 Gomez’s car was stopped and boxed in between two police SUVs, and the front wheels of 25 Gomez’s car were turned away from Officer Fachko. 26 The third case that illustrates why Gomez’s case is not Heck-barred is Harris v. Simental, 27 No. 11-CV-5306-LHK, 2013 WL 3733429 (N.D. Cal. July 15, 2013). There, as here, plaintiff pled 1 no contest to violating California Penal Code § 69 and then sued two arresting police officers for 2 excessive force. Id. at *2. The officers argued that, under Heck, plaintiff Emmett Harris’s § 69 3 conviction barred Harris’s excessive force lawsuit. This Court disagreed. This Court reasoned that 4 “[Harris]’s federal claim stems from the events that occurred after [Harris]’s unlawful behavior— 5 i.e., resisting [one of the two officers].” Id. at *4 (emphasis in original). Specifically, Harris’s 6 claim challenged the other officer repeatedly tasing Harris even after Harris stopped resisting. Id. 7 at *2. That tasing officer had come to assist the officer whom Harris had forcefully resisted. Id. 8 Given that Harris’s § 69 conviction was based on Harris’s earlier resistance against the non-tasing 9 officer, Harris’s excessive force claim against the tasing officer did not necessarily imply the 10 invalidity of his conviction. Id. at *4. 11 The same rule holds true here. Gomez’s § 69 conviction is based on Gomez’s resistance 12 against Officer Pianto, not any resistance against Officer Fachko. Indeed, Gomez’s plea expressly 13 preserved an excessive force claim against Officer Fachko. Thus, the instant case does not 14 “necessarily imply the invalidity” of Gomez’s § 69 conviction. Smith, 394 F.3d at 699 (explaining 15 standard for Heck bar). 16 2. Defendants’ attempts to distinguish controlling case law are unpersuasive. 17 Defendants offer two responses to this weight of authority. Neither is persuasive. First, 18 Defendants argue that the plaintiffs in Sanford and Hooper did not resist arrest as violently as 19 Gomez did. Reply at 3–4. Specifically, Defendants note that those plaintiffs were convicted of 20 resisting an officer under California Penal Code § 148, rather than § 69. Id. Defendants conclude 21 this argument by stating that “Penal Code § 69 is a more serious crime which requires the 22 prosecutor to prove that the defendant willfully used violence or threat of violence to resist the 23 officer.” Reply at 3; accord Judicial Council of California Criminal Jury Instructions, CALCRIM 24 No. 2651 (March 2021 revision) (stating elements of § 69). 25 Defendants’ first argument is besides the point. It is true that Gomez willfully used 26 violence to resist Officer Pianto. Specifically, as the basis for his § 69 conviction, Gomez 27 stipulated to reversing his Honda into Officer Pianto’s SUV and striking it. Plea Tr. at 8:8–11. Yet 1 nothing about Gomez’s § 69 conviction required the government to prove that Officer Fachko’s 2 subsequent shooting of Gomez was lawful. To the contrary, Gomez stated at his plea hearing— 3 and the Superior Court confirmed—that his § 69 conviction did not concede the lawfulness of 4 Officer Fachko’s use of force. Id. at 4:27–5:6. 5 Defendants’ other argument is that Hooper is distinguishable under another Ninth Circuit 6 case, Beets v. County of Los Angeles, 669 F.3d 1038, 1044 (9th Cir. 2012). Reply at 4. 7 Specifically, Defendants argue that, under Beets, Heck bars an excessive force lawsuit where 8 “there was no break between the criminal defendant’s assault with the [vehicle] and the police 9 response.” Reply at 4. Applying Beets’s supposed rule, Defendants conclude that Heck bars 10 Gomez’s lawsuit because “there was no meaningful break between the provocative act that Gomez 11 admitted to in his criminal proceeding (reversing the Honda back into Pianto’s vehicle) and the 12 Honda’s sudden forward movement which put Officer Fachko in reasonable fear of life.” Id. 13 Defendants overread Beets. Beets did not disturb Hooper’s holding, which is that Heck is 14 no bar “when the conviction [for resisting arrest] and the § 1983 claim are based on different 15 actions during ‘one continuous transaction.’” Hooper, 629 F.3d at 1134. To the contrary, Beets 16 confirmed that “an allegation of excessive force by a police officer would not be barred by Heck if 17 it were distinct temporally or spatially from the factual basis for the person’s conviction.” Beets, 18 669 F.3d at 1042 (emphasis added). 19 Applying this settled rule, the Beets Court explicitly reached a “conclusion [] based on, and 20 limited to, the particular facts in th[e] case.” Id. at 1048. Specifically, the Beets Court concluded 21 that Heck barred plaintiffs’ excessive force claim on two grounds. First, based on written 22 representations on direct appeal of the underlying criminal conviction, the only factual basis for 23 the conviction was the “same factual basis as the alleged civil rights violations.” Id. at 1045. 24 Second, the conviction was rendered by a jury rather than entered by a plea. Id. (distinguishing 25 Sanford, 258 F.3d at 1118–19). Unlike a plea, a jury verdict “does not determine which specific 26 act or acts form the basis for the conviction. Thus, a jury’s verdict necessarily determines the 27 lawfulness of the officers’ actions throughout the whole course of the defendant’s conduct.” Id. 1 (emphasis omitted) (quoting Smith, 394 F.3d at 699 n.5). 2 Neither ground for Beets’s explicitly “limited” conclusion applies here. Id. at 1048. The 3 only factual basis for Gomez’s conviction—“[Gomez] backing his car up into [Officer Pianto’s] 4 patrol vehicle”—was expressly distinct from Officer Fachko’s subsequent use of deadly force. 5 Plea Tr. at 8:8–11. Moreover, like in Sanford and unlike in Beets, Gomez’s conviction was the 6 result of a no contest plea, not a jury conviction. Gomez’s plea “determine[d] which specific act or 7 acts form[ed] the basis for the conviction.” Id. (quoting Smith, 394 F.3d at 699 n.5). 8 In sum, Heck does not bar Gomez’s federal claims against Defendants. Nor does Heck’s 9 California equivalent, Truong, bar Gomez’s state law claims. 129 Cal. App. 4th at 1429–30. As 10 Defendants’ concede, “[t]he California Supreme Court does not distinguish between the 11 application of Heck to a section 1983 claim and the state law analogues based on the same 12 conduct.” Reply at 9. Thus, because Gomez’s federal claims are not Heck-barred, Gomez’s state 13 law claims are not Truong-barred. 14 B. Officer Fachko is not entitled to qualified immunity. 15 Defendants’ other argument for summary judgment is that Officer Fachko is entitled to 16 qualified immunity. “The doctrine of qualified immunity protects government officials ‘from 17 liability for civil damages insofar as their conduct does not violate clearly established statutory or 18 constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 19 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome 20 qualified immunity, Gomez must make two showings. First, Gomez must show that “the facts 21 alleged, taken in the light most favorable to [Gomez] asserting the injury, show that the official’s 22 conduct violated a constitutional right.” Clairmont, 632 F.3d at 1100. Second, Gomez must show 23 that the right at issue “was clearly established ‘in light of the specific context of the case’ at the 24 time of the alleged misconduct.” Id. (quoting Saucier, 533 U.S. at 201). Particularly in excessive 25 force cases, the United States Supreme Court “ha[s] stressed the need to identify a case where an 26 officer acting under similar circumstances was held to have violated the Fourth Amendment. 27 While there does not have to be a case directly on point, existing precedent must place the 1 lawfulness of the particular action beyond debate.” City of Escondido v. Emmons, 139 S. Ct. 500, 2 504 (2019) (per curiam) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam)). 3 Below, the Court first explains why Officer Fachko is not entitled to qualified immunity. 4 The Court then explains why Defendants’ arguments for qualified immunity are unpersuasive. 5 1. Viewing the facts in the light most favorable to Gomez, Officer Fachko violated Gomez’s clearly established right to be free from excessive force. 6 Here, existing precedent involving “officer[s] acting under similar circumstances” places 7 the unlawfulness of Officer Fachko’s actions “beyond debate.” Id. Two published Ninth Circuit 8 opinions require this conclusion. Both opinions analyzed police shootings predating the October 9 21, 2017 shooting here. See Orn v. City of Tacoma, 949 F.3d 1167, 1176 (9th Cir. 2020) (October 10 12, 2011 shooting); Villanueva v. California, 986 F.3d 1158, 1162 (9th Cir. 2021) (July 3, 2016 11 shooting). Both opinions held that, at the time of the shootings, qualified immunity did not shield 12 police officers who shoot at a slow-moving (or stopped) car when (1) no one is “in the vehicle’s 13 path of travel”; (2) the vehicle was not accelerating toward an officer; and (3) the officers had no 14 reason to believe that the car’s driver committed a “violent crime,” had engaged in a “high-speed 15 chase,” or would otherwise pose a threat of “serious physical harm to others.” Orn, 949 F.3d at 16 1175–76; accord Villanueva v. California, 986 F.3d 1158, 1170 (9th Cir. 2021) (collecting cases). 17 Below, the Court compares the circumstances in each Ninth Circuit case and Officer 18 Fachko’s circumstances here. In detailing what Officer Fachko faced, the Court must credit 19 Gomez’s version of events—even if it conflicts with Defendants’ version of events—unless 20 Gomez’s account is “blatantly contradicted by the record, so that no reasonable jury could believe 21 it.” Orn, 949 F.3d at 1171 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). 22 In Orn v. City of Tacoma, police officers tailed Than Orn in a 15-minute slow-speed pursuit 23 that ended in the police shooting Orn. Orn, 949 F.3d at 1172. The pursuit started when Orn 24 ignored “a police car with its lights activated attempting to pull him over.” Id. at 1171. Rather than 25 pull over, Orn decided to drive home. Id. “As he made his way home, Orn traveled at 25–35 miles 26 per hour and stopped at traffic lights and stop signs.” Id. at 1172. Along the way, more police 27 1 officers joined the pursuit. Id. They tried to block Orn in several ways—including “box[ing] him 2 in,” “dr[iving] in front of Orn’s vehicle to block his path,” and laying spike strips. Id. Orn evaded 3 these efforts with unlawful driving: driving “onto a curb and down a portion of a close roadway,” 4 and “swerving . . . into the oncoming lane of traffic.” Id. Eventually, the officers boxed in Orn’s 5 car between two police vehicles and a nearby parked car. Id. at 1173. In response, Orn tried to 6 “navigate through a narrow opening” between the vehicles. Id. To do this, Orn made a sharp turn 7 at about five miles per hour toward the two police cars and a nearby officer standing to the side of 8 Orn’s car. Id. Orn ignored the officer’s “repeated[] yell[s] at Orn to stop,” even though the officer 9 had his gun drawn. Id. Orn’s car struck both police vehicles. Id. The nearby officer then shot Orn 10 through Orn’s passenger-side windows. Id. 11 Orn sued the shooting officer for excessive force. Id. at 1171. The district court denied the 12 officer’s motion for summary judgment based on qualified immunity, and the Ninth Circuit 13 affirmed. Id. The Ninth Circuit reached its conclusion on two grounds. First, “according to Orn’s 14 version of events, [the officer] was never at risk of being struck by Orn’s vehicle because he was 15 never in the vehicle’s path of travel.” Id. at 1174–75. Second, the officer lacked “an objectively 16 reasonable basis for believing that Orn posed a threat of serious physical harm to others.” Id. at 17 1176. In the Ninth Circuit’s view, Orn’s driving immediately before the shooting had been “slow” 18 and “non-reckless,” and his collision with the two police cars was “slight.” Id. at 1176. Moreover, 19 Orn’s 15-minute pursuit at 25 to 35 miles per hour did not justify deadly force either. Id. 20 In weighing whether an officer is entitled to qualified immunity at summary judgment, the 21 Court “must construe the facts in the light most favorable to the plaintiff.” Orn, 949 F.3d at 1171. 22 Specifically, as the Ninth Circuit has explained, the Court must credit plaintiff’s version of events 23 unless it is “blatantly contradicted by the record, so that no reasonable jury could believe it.” Id. 24 (quoting Scott, 550 U.S. at 380). Here, on Gomez’s account of the facts—which are not “blatantly 25 contradicted by the record”—Officer Fachko’s case for qualified immunity is even weaker than 26 the unsuccessful case for qualified immunity in Orn. Id. Officer Fachko had less reason to believe 27 that Gomez posed a threat to officers or others. Three facts show why. First, Gomez had not led 1 officers on a pursuit—let alone one in which he evaded police vehicles boxing him in and drove 2 into oncoming traffic. Rather, officers only tried to stop Gomez once: when he was parked at a red 3 light. See Section I-A, supra (factual background); Video at 0:03. Second, Gomez struck only one 4 police vehicle (compared to Orn striking two) and did so at a slower speed of 1.2 miles per hour. 5 Jason Fries Decl. ¶ 10. Third, at the time of the shooting, Gomez’s hands were up, his foot was off 6 the gas pedal, his car was stopped, and its wheels were turned slightly away from Officer Fachko. 7 Fries Decl. ¶¶ 12, 14; Pianto Dep. at 54:5–8; Fachko Dep. at 38:2–12, 56:19–57:2, 68:15–17. By 8 contrast, Orn was driving forward with his car wheels turned directionally toward the firing 9 officer. Orn, 949 F.3d at 1172–73. Thus, just as the officer in Orn was not entitled to qualified 10 immunity, Officer Fachko is not either. 11 A second Ninth Circuit case denying qualified immunity confirms this conclusion. In 12 Villanueva v. California, police officers pursued Armando Villanueva in a high-speed chase that 13 ran at least three red lights. 986 F.3d at 1163. The officers eventually cornered Villaneuva in a 14 dead end. Id. On seeing Villanueva’s stopped car, the officers “immediately exited their vehicle 15 and drew their firearms.” Id. Yet “at the same time,” Villanueva tried to reverse out of the dead end 16 in a way that had the front of his vehicle “facing the [o]fficers, who were approximately 15 to 20 17 feet away. The [o]fficers then opened fire on the vehicle.” Id. 18 As in Orn, the district court denied qualified immunity and the Ninth Circuit affirmed. The 19 Ninth Circuit rejected the officers’ arguments that Villaneuva had just led the officers on a high- 20 speed chase, and that at the time of the shooting, Villanueva’s car “faced their direction and hit the 21 gas.” Id. at 1170. The Ninth Circuit held that the high-speed chase was immaterial because, at the 22 time of the shooting, Villaneuva’s car was “slow-moving.” Id. The Ninth Circuit also held 23 immaterial that Villaneuva’s car was facing the officers. Id. “The key question,” the Ninth Circuit 24 reasoned, was “whether Villanueva accelerated or attempted to accelerate toward the [o]fficers.” 25 Id. On the Villaneuva plaintiffs’ version of the facts, Villaneuva had “never accelerated toward the 26 police vehicle or the [o]fficers.” Id. Thus, the plaintiffs’ excessive force claim could survive 27 summary judgment. 1 Like Orn, Villaneuva presented a stronger case for qualified immunity than the instant 2 case. As detailed above, Officer Fachko had not followed Gomez on any pursuit, let alone a high- 3 speed one that ran several red lights. At the time of the shooting, Gomez had his hands up, and his 4 car (1) was stopped at a red light; (2) was not accelerating because Gomez’s foot was off the gas; 5 and (3) had its wheels pointed slightly away from Officer Fachko. See Section I-A, supra (factual 6 background). Moreover, Officer Fachko stood to the side of Gomez’s car, not in front of it. On 7 these facts, Officer Fachko violated Gomez’s clearly established constitutional right to be free 8 from excessive force by shooting at him three times. 9 2. Defendants’ arguments in support of qualified immunity are unpersuasive. 10 Defendants respond with three unpersuasive arguments to support qualified immunity. 11 First, Defendants try to distinguish Orn and Villaneuva on two grounds: (1) Gomez was allegedly 12 more dangerous because he was a suspect who had stolen a vehicle; and (2) Officer Fachko was 13 allegedly in the path of Gomez’s vehicle at the time of the shooting. Mot. at 6–7. Neither ground 14 distinguishes those cases. Though Gomez had stolen the car he was driving, even Officer Fachko 15 admits that deadly force requires more justification than car theft. See Fachko Dep. at 40:5–15 16 (conceding it would be inappropriate to shoot Gomez while Gomez was stopped or backing up). 17 Moreover, unlike the criminal defendants in Orn and Villaneuva, Gomez had not engaged officers 18 in a pursuit. Rather, until he backed into Officer Pianto’s vehicle at 1.2 miles per hour, there was 19 no indication that Gomez would resist arrest. 20 Nor can Officer Fachko’s assertion that he was in the path of Gomez’s vehicle support 21 qualified immunity. At summary judgment on a qualified immunity defense, the Court must credit 22 plaintiff’s version of the facts unless it is “blatantly contradicted by the record, so that no 23 reasonable jury could believe it.” Orn, 949 F.3d at 1171 (quoting Scott, 550 U.S. at 380). Here, 24 video footage, police photographs, Gomez’s sworn deposition testimony, and expert 25 reconstructions of the shooting all support Gomez’s version of the facts. See Section I-A, supra 26 (factual background). On that version of the facts, Officer Fachko stood about 2.2 feet from 27 Gomez’s driver’s side window when he fired three shots at Gomez. Fries Decl. ¶ 8, Ex. 2. The 1 shots’ trajectory—most clearly illustrated by a police photograph—was from the driver’s side of 2 the car, not its front. Id. ¶ 7, Ex. 1. Thus, as in Orn and Villaneuva, the Court must credit 3 plaintiff’s version of the facts and deny qualified immunity. See Villanueva, 986 F.3d at 1170 4 (“[t]aking the facts in the light most favorable to the plaintiffs” as to path of car); Orn, 949 F.3d at 5 1178 (same). 6 Second, Defendants argue that Gomez cannot overcome qualified immunity by “retaining 7 experts who contend[] the officer ‘could have taken other actions in his confrontation with 8 [Gomez].’” Reply at 8 (quoting Reynolds v. County of San Diego, 858 F. Supp. 1064, 1072 (S.D. 9 Cal 1994), aff’d in part and rev’d in part, 84 F.3d 1162 (9th Cir. 1996), overruled on other 10 grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th Cir. 1997)). Defendants 11 mischaracterize Gomez’s proffered expert testimony. Neither of Gomez’s two expert witnesses 12 merely “contend that [the officer] could have taken other actions in his confrontation with 13 [Gomez].” Reynolds, 858 F. Supp. at 1072. Instead, forensics expert Jason Fries proffers three- 14 dimensional reconstructions of the shooting to show that (1) Officer Fachko was 2.2 feet to the 15 side of Gomez’s car, away from its path of travel; and (2) the turn radius of Gomez’s car was too 16 wide to have hit Officer Fachko. Fries ¶¶ 7, 21 & Exs. 1, 6. Former police officer Scott DeFoe— 17 on whom the Court need not rely to deny qualified immunity—proffers that Officer Fachko 18 violated police training and policies. ECF No. 54. Thus, Defendants’ characterization of Gomez’s 19 proffered expert testimony is inaccurate. Moreover, the proffered testimony addresses appropriate 20 topics for evaluating an officer’s defense of qualified immunity. See, e.g., Smith, 394 F.3d at 703 21 (considering expert testimony on police policies); Est. of Lopez by & through Lopez v. Gelhaus, 22 871 F.3d 998, 1008 (9th Cir. 2017) (considering experts’ “three-dimensional models” of police 23 shooting). 24 Lastly, Defendants assert without citation that “Ninth Circuit precedent published after 25 2017—including Villanueva and Orn—may not be considered in determining whether the 26 contours of the constitutional rights were clearly established at the time of the incident.” Reply at 27 7. Defendants misstate the import of Villaneuva and Orn. Neither case stopped at merely the first 1 step of the qualified immunity analysis. Rather, both cases held not only that officers had violated 2 constitutional rights, but also that those rights were already clearly established at the time of the 3 police shootings in those cases. See Orn, 949 F.3d at 1180 (holding right clearly established); 4 Villanueva, 986 F.3d at 1173 (same). The shootings in those cases occurred on October 12, 2011 5 and July 3, 2016, respectively. Orn, 949 F.3d at 1171; Villanueva, 986 F.3d at 1162. Thus, at the 6 time of Gomez’s shooting in October 21, 2017, it had long been clearly established that facts close 7 to those in Villaneuva and Orn could defeat qualified immunity. In other words, “[i]n both cases 8 the courts were examining the clarity of the law long before the time of the incident here.” 9 Capoeman v. Reed, 754 F.2d 1512, 1515 (9th Cir. 1985) (weighing cases that were decided after 10 challenged incident). 11 In sum, viewing the facts in the light most favorable to Gomez, Officer Fachko is not 12 entitled to qualified immunity. 13 C. There are genuine disputes of material fact as to Gomez’s claims under California law. 14 Lastly, Defendants cursorily move for summary judgment on Gomez’s claims under 15 California law. Mot. at 19–20. Gomez claims that Officer Fachko (1) committed battery and 16 negligence; and (2) violated the Bane Civil Rights Act, Cal. Civ. Code § 52.1. As to the battery 17 and negligence claims, Defendants argue that they fail because “Officer Fachko’s decision to use 18 deadly force[] was reasonable.” Mot. at 19. Yet as detailed above, there is a genuine dispute of 19 material fact as to whether Officer Fachko acted reasonably. Viewing the facts in the light most 20 favorable to Gomez, Officer Fachko in fact violated Gomez’s clearly established constitutional 21 rights. See Section III-B, supra (qualified immunity analysis). Thus, the Court denies Defendants’ 22 motion for summary judgment as to the battery and negligence claims. 23 As for the Bane Civil Rights Act (“Bane Act”) claim, Defendants argue that “Gomez 24 cannot show that Officer Fachko had the specific intent to violate Gomez’ constitutional rights.” 25 Mot. at 20 (emphasis added) (citing Reese v. Cnty of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 26 2018)). Defendants are incorrect. As the Ninth Circuit held in Reese, “reckless disregard for a 27 1 person’s constitutional rights is evidence of a specific intent to deprive that person of those 2 rights.” Reese, 888 F.3d at 1045 (quoting United States v. Reese, 2 F.3d 870, 885 (9th Cir. 1993)). 3 Here, viewing the facts in the light most favorable to Gomez, the qualified immunity 4 analysis above shows that Officer Fachko acted with reckless disregard for Gomez’s constitutional 5 right to be free from excessive force. See Section III-B, supra. Specifically, Officer Fachko fired 6 three shots at Gomez while Gomez’s car was stopped and boxed in by two police SUVs, Gomez’s 7 hands were up, and nobody was in the path of Gomez’s vehicle. Id. Thus, summary judgment is 8 inappropriate on the Bane Act claim. 9 Indeed, on reply, Defendants appear to recognize the weakness of their position by 10 abandoning their attack on the Bane Act claim. Despite Gomez’s arguments in opposition, 11 Defendants’ reply brief does not analyze the Bane Act at all. Reply at 9; see also, e.g., Maciel v. 12 Cate, 731 F.3d 928, 932 (9th Cir. 2013) (holding that a party ““forfeited [an] argument by failing 13 to address it in his reply brief”). Accordingly, the Court denies Defendants’ motion for summary 14 judgment as to the Bane Act claim as well. 15 IV. CONCLUSION 16 For the foregoing reasons, the Court DENIES Defendants’ motion for summary judgment. 17 Moreover, as stated above, Gomez did not oppose Defendant’s motion for summary 18 judgment as to Gomez’s claims for (1) denial of medical care under 42 U.S.C. § 1983 against 19 Officer Fachko (Count 2); (2) municipal liability for an unconstitutional custom, practice, or 20 policy under 42 U.S.C. § 1983 against the City of Santa Clara (Count 3); (3) municipal liability for 21 ratification of a constitutional violation under 42 U.S.C. § 1983 against the City of Santa Clara 22 (Count 4); and (4) municipal liability for failure to train under 42 U.S.C. § 1983 against the City of 23 Santa Clara (Count 5). ECF No. 1. Instead, Gomez dismissed these claims. Thus, the Court 24 DISMISSES these claims with prejudice. 25 Accordingly, Gomez’s remaining claims for trial are (1) excessive force in violation of the 26 Fourth Amendment under 42 U.S.C. § 1983 against Officer Fachko (Count 1); (2) battery under 27 California law against Officer Fachko and the City of Santa Clara (Count 6); (3) negligence under 1 California law against Officer Fachko and the City of Santa Clara (Count 7); and (4) violation of 2 the Bane Civil Rights Act, Cal. Civ. Code § 52.1, against Officer Fachko and the City of Santa 3 Clara (Count 8). Id. 4 || ITISSO ORDERED. 5 6 || Dated: April 30, 2021
LUCY @. KOH 8 United States District Judge 9 10 11 12
Z 18 19 20 21 22 23 24 25 26 27 28 23 Case No. 19-CV-05266-LHK