I.A. v. City of Redondo Beach

• Court: District Court, C.D. California
• Decided: September 6, 2023
• Docket: 2:20-cv-06447
• Status: Unknown

Opinion

1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 I.A., a minor by and through ) Case No. CV 20-06447 DDP (JPRx) Guardian Ad Litem, Willnicka ) 12 ReneePollarda, et al., ) ) ORDER DENYING DEFENDANT’S MOTION 13 Plaintiff, ) FOR SUMMARY JUDGMENT ) 14 v. ) ) 15 CITY OF REDONDO BEACH, a ) [Dkt. 74] municipality, JOHN ANDERSON, ) 16 ) Defendants. ) 17 ___________________________ ) 18 19 Presently before the court is Defendant John Anderson’s Motion 20 for Summary Judgment (Dkt. 74). Having considered the submissions 21 of the parties and heard oral argument, the court denies the motion 22 and adopts the following Order. 23 I. Background 24 On July 26, 2018, Redondo Beach Police Department dispatch 25 issued a radio call stating that a man on the Redondo Beach “Green 26 Belt” was waving a gun, and had fired at someone who was running. 27 (Declaration of Craig Smith, Ex. C at 68.) The call identified the 28 /// 1 suspect as tall, 120 pounds, in a navy blue shirt and black shorts. 2 (Id.) 3 Defendant John Anderson (“Anderson” or “Defendant”) was the 4 supervisor of the Redondo Beach Police Department Directed 5 Enforcement Unit, the primary mission of which was to respond to 6 active shooter situations. (Declaration of Luke Fiedler, Ex. A at 7 58-59.) Anderson heard the “man with a gun” radio call and “self- 8 dispatch[ed]” to the scene in his unmarked car, even though other 9 units had already been dispatched to the scene. (Id. at 74-75.) 10 Anderson was concerned because the greenbelt was often crowded with 11 people, including joggers and children on bikes. (Smith Decl., Ex. 12 E at 239.) Although Anderson made a wrong turn on the way to the 13 scene, and had to make a u-turn, he was nevertheless the first 14 officer to arrive. (Id. at 240, Fiedler Decl., Ex. A at 75-76.) 15 The scene, however, was not the greenbelt, but rather a nearby 16 residential area. (Fiedler Decl., Ex. A at 80; Smith Decl., Ex. E 17 at 241.) Anderson did not see any pedestrians, but did see Sergio 18 Acosta (“Acosta”) walking out alone from a driveway. (Smith Decl., 19 Ex. E at 241.) 20 When Anderson first saw Acosta, he was not sure Acosta was the 21 suspect, and checked his in-car computer to verify the description 22 of the suspect. (Smith Decl., Ex. E at 241.) From approximately 23 50 feet away, Anderson determined that Acosta was the suspect, and 24 observed that he was very sweaty and “bug-eyed,” as if he were 25 under the influence of methamphetamine. (Smith Decl., Ex. E at 26 244-45). Acosta’s left side was facing Anderson, and Acosta’s 27 right side was turned away from Anderson and away from the street. 28 (Smith Decl., Ex. E at 23.) By the time Anderson stopped his 1 vehicle, he was approximately seven yards from Acosta. (Fiedler 2 Decl., Ex. A at 203.) Anderson drew his weapon with his right 3 hand, while simultaneously reaching across his own body with his 4 left hand to put the car in park. (Fiedler Decl., Ex. A at 257.) 5 Anderson was wearing a body camera, but did not activate it.1 6 (Fiedler Decl., Ex. A at 77.) 7 At this point, witness accounts of what transpired next 8 differ. Anderson testified that he opened his car door partway, 9 wide enough for him to exit and to communicate with Acosta, but 10 narrow enough to use for concealment. (Fiedler Decl., Ex. A at 11 260.) Anderson testified that he yelled, “Police,” and that Acosta 12 stopped walking and looked at Anderson, but did not otherwise 13 respond. (Id. at 259, 270.) Acosta’s empty hands were down around 14 his belt, and his arms were held tight to his body. (Id. at 268.) 15 Anderson then saw a gun tucked into Acosta’s left armpit, with the 16 barrel pointing backward.2 (Id.) Anderson testified that he then 17 yelled, “Drop the gun” three times, and that after the second 18 command, Acosta responded, “I’m trying to protect my son.” (Id. at 19 273-274.) According to Anderson, Acosta then moved his hand above 20 the belt, toward the gun in his left armpit. (Id. at 279.) 21 Anderson then fired six rounds through his car window at Acosta. 22 (Id. at 291; Smith Decl., Ex. E at 249.) The gun fell from 23 Acosta’s armpit after the sixth shot. (Fiedler Decl., Ex. A at 24 291.) 25 1 Anderson testified that turning the camera on could have 26 taken up to five seconds. (Fiedler Decl., Ex. A at 222.) 27 2 Investigators later determined that the gun was a replica 28 Colt BB gun. 1 Acosta’s girlfriend, Ginger Mungarro, was later interviewed by 2 Redondo Beach Police. She was standing one or two houses away from 3 Acosta when Anderson arrived, and stated that Anderson “didn’t tell 4 [Acosta] to drop it or anything, no.” (Smith Decl., Ex. F at 9- 5 10.) She further stated that Acosta said, “All right, all right,” 6 and had his hands up, with the gun in hand. (Id.) Mungarro 7 further stated that she “didn’t think they would shoot that fast.”) 8 (Id. at 9.) 9 Lauren Zboril was walking her dog when Acosta was shot. 10 (Fiedler Decl., Ex. B at 10-41.) According to Zboril, she was 11 between fifteen to thirty feet away from Acosta when she saw him 12 collapse. (Id. at 40, 81.) Zboril heard no noise at all, 13 including gunshots, and did not see a police vehicle drive up to 14 Acosta. (Id. at 77.) She explicitly stated that she did not hear 15 anyone give any command to Acosta. (Id. at 84, 94.) 16 Carmen Navarro lived adjacent to the greenbelt, and ran into 17 her kitchen to call 911 after seeing someone on the greenbelt 18 holding a gun and hearing two gunshots. (Fiedler Decl., Ex. C at 19 15.) While still on the phone with 911, Navarro heard another, 20 louder shot, followed by a split-second pause and then two more 21 loud shots. (Id. at 38.) She did not hear any yelling prior to 22 the loud shots. (Id. at 48.) 23 Kayo Salako lived one house away from where Acosta was shot. 24 (Declaration of Kayo Salako; Fiedler Decl., Ex. A at 199.)3 Salako 25 heard someone yell, “Stop, stop, stop,” then “immediately” heard 26 gunshots. (Salako Decl.) He went outside and saw an unmarked 27 3 See also Supplemental Declaration of Luke Fiedler (Dkt. 91) 28 (attaching notarized versions of declarations). 1 police vehicle with a shattered driver’s side window and an officer 2 standing “between the open door and the vehicle.” (Id.) 3 John and Beverly Sullivan (collectively, “the Sullivans”) 4 lived one house away from where Acosta was shot, and two houses 5 away from Salako. (Declaration of Beverly Sullivan; Declaration of 6 John Sullivan). Both heard gunshots outside their home, but 7 neither heard any police commands or any yelling prior to the 8 shots. (Id.) 9 Four of Anderson’s six shots struck Acosta. (Fiedler Decl., 10 Ex. A at 296.) He was transported to a hospital and pronounced 11 dead approximately an hour and a half after the shooting. 12 Plaintiffs, Acosta’s parents and his minor child, I.A., 13 brought this suit, alleging claims pursuant to 42 U.S.C. § 1983 for 14 excessive force and interference with familial relationships. 15 Defendant Anderson now seeks summary judgment on both claims. 16 II. Legal Standard 17 Summary judgment is appropriate where the pleadings, 18 depositions, answers to interrogatories, and admissions on file, 19 together with the affidavits, if any, show “that there is no 20 genuine dispute as to any material fact and the movant is entitled 21 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party 22 seeking summary judgment bears the initial burden of informing the 23 court of the basis for its motion and of identifying those portions 24 of the pleadings and discovery responses that demonstrate the 25 absence of a genuine issue of material fact. See Celotex Corp. v. 26 Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from 27 the evidence must be drawn in favor of the nonmoving party. See 28 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the 1 moving party does not bear the burden of proof at trial, it is 2 entitled to summary judgment if it can demonstrate that “there is 3 an absence of evidence to support the nonmoving party's case.” 4 Celotex, 477 U.S. at 323. 5 Once the moving party meets its burden, the burden shifts to 6 the nonmoving party opposing the motion, who must “set forth 7 specific facts showing that there is a genuine issue for trial.” 8 Anderson, 477 U.S. at 256. Summary judgment is warranted if a 9 party “fails to make a showing sufficient to establish the 10 existence of an element essential to that party’s case, and on 11 which that party will bear the burden of proof at trial.” Celotex, 12 477 U.S. at 322. A genuine issue exists if “the evidence is such 13 that a reasonable jury could return a verdict for the nonmoving 14 party,” and material facts are those “that might affect the outcome 15 of the suit under the governing law.” Anderson, 477 U.S. at 248. 16 There is no genuine issue of fact “[w]here the record taken as a 17 whole could not lead a rational trier of fact to find for the 18 nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio 19 Corp., 475 U.S. 574, 587 (1986). 20 It is not the court’s task “to scour the record in search of a 21 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 22 1278 (9th Cir. 1996). Counsel have an obligation to lay out their 23 support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 24 1026, 1031 (9th Cir. 2001). The court “need not examine the entire 25 file for evidence establishing a genuine issue of fact, where the 26 evidence is not set forth in the opposition papers with adequate 27 references so that it could conveniently be found.” Id. 28 /// 1 III. Discussion 2 A. Fourth Amendment Excessive Force Claim 3 In Fourth Amendment excessive force cases, the question is 4 whether a police officer’s actions were objectively reasonable 5 under the totality of the circumstances. Bryan v. MacPherson, 630 6 F.3d 805, 823 (9th Cir. 2010). Only information known to the 7 officers at the time the conduct occurred is relevant. Cty. of Los 8 Angeles v. Mendez, 137 S. Ct. 1539, 1546–47 (2017); Glenn v. 9 Washington Cty., 673 F.3d 864, 873 n.8 (9th Cir. 2011). The 10 officer’s underlying intent and motivations, however, are not 11 pertinent. Graham v. Connor, 490 U.S. 386, 396–97 (1989). 12 “[S]ummary judgment should be granted sparingly in excessive 13 force cases.” Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th 14 Cir. 2014) In deadly force cases, the decedent is, of course, not 15 able to contradict the shooting officer’s account of events. 16 Accordingly, this Court must carefully examine all evidence in the 17 record, including circumstantial evidence that might discredit the 18 officer’s story, “to determine whether the officer’s story is 19 internally consistent and consistent with other known facts.” Id. 20 (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)); Cruz 21 v. City of Anaheim, 765 F.3d 1076, 1078 (9th Cir. 2014). 22 Whether a use of force was reasonable will depend on the facts 23 of the particular case, including, but not limited to, (1) whether 24 the suspect posed an immediate threat to anyone, (2) whether the 25 suspect resisted or attempted to evade arrest, and (3) the severity 26 of the crime at issue. Id. at 396. Of these, the most important 27 factor is whether the suspect posed an immediate threat to anyone’s 28 safety. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en 1 banc). The use of deadly force is only reasonable if a suspect 2 “poses a significant threat of death or serious physical injury to 3 the officer or others.” Gonzalez, 747 F.3d at 793 (emphasis added) 4 (internal quotation omitted). Although “the mere fact that a 5 suspect possesses a weapon does not justify deadly force,” “where a 6 suspect threatens an officer with a weapon such as a gun or a 7 knife, the officer is justified in using deadly force.” Hayes v. 8 County of San Diego, 736 F.3d 1223, 1233 (9th Cir. 2013) (internal 9 alteration omitted); Smith v. City of Hemet, 394 F.3d 689, 704 (9th 10 Cir. 2005); see also Cruz v. City of Anaheim, 765 F.3d 1076, 1078 11 (9th Cir. 2014) (“It would be unquestionably reasonable for police 12 to shoot a suspect . . . if he reaches for a gun in his 13 waistband.”) 14 Somewhat curiously, Defendant’s argument rests almost entirely 15 upon Defendant Anderson’s own version of events. Certainly, if 16 Acosta ignored Anderson’s repeated warnings and then moved to 17 threaten Anderson with a gun, then the use of deadly force may have 18 been justified. See, e.g., Hayes, 736 F.3d at 1233. But the 19 question is not whether a reasonable jury could find for Defendant. 20 The question, rather, is whether a rational trier of fact could, 21 drawing all inferences in favor of Plaintiffs, find for Plaintiffs. 22 Anderson, 477 U.S. at 242. 23 Here, a reasonable factfinder could well question Anderson’s 24 account of events, and thus the reasonableness of his use of deadly 25 force. For example, whether and how an officer warned a suspect 26 can be important to a totality of the circumstances analysis. See 27 Deorle v. Rutherford, 272 F.3d 1272, 1283-84 (9th Cir. 2001); 28 Gonzalez, 747 F.3d at 794; S.R. Nehad v. Browder, 929 F.3d 1125, 1 1137-38 (9th Cir. 2019). Here, at least three nearby witnesses 2 stated that they did not hear Anderson give any commands or 3 warnings at all.4 Although Salako did hear someone yell, “Stop, 4 stop, stop,” his declaration does not corroborate Anderson’s 5 version of events, in which Anderson not only identified himself as 6 a police officer, but also thrice commanded Acosta to “drop the 7 gun.” There is, therefore, a genuine dispute, not only as to what, 8 if any, warnings Anderson may have given Acosta prior to shooting 9 him, but as to the overall credibility of Anderson’s account as 10 well. 11 Even more curiously, aside from Anderson’s own version of 12 events, the only account of the incident that Defendant 13 acknowledges at all is that of Acosta’s girlfriend, Ginger 14 Mungarro.5 Mungarro’s statements, however, directly conflict with 15 Defendant Anderson’s account, and alone are sufficient to create a 16 genuine dispute of material fact. As an initial matter, as 17 4 Whether those witness accounts create a genuine dispute of 18 fact is a close question. Although the Sullivans were only one house away from the shooting, and did hear the gunshots, their 19 declarations do not state where in the house they were, or whether they could or would have heard anything quieter than a gunshot out 20 on the sidewalk next door. As for Zboril, the fact that she did not even hear gunshots from thirty feet away casts serious doubt 21 upon the evidentiary value of her declaration. At this stage, however, all reasonable inferences must be drawn in Plaintiff’s 22 favor. Anderson 477 U.S. at 242. 23 5 Mungarro’s statements are drawn from an unsworn, recorded interview with investigating officers. Defendant describes those 24 statements at length in his memorandum in support of the instant motion, and attaches a transcript of the Mungarro interview as an 25 exhibit in support of his motion. Later, however, including at argument, Defendant objected to and questioned the admissibility of 26 his own exhibit. The court deems any such objection waived, for purposes of summary judgment. Defendant may not introduce an 27 exhibit, thus inducing Plaintiff to discuss it, and then later seek to preclude any consideration of that evidence on grounds that it 28 was inadmissible all along. 1 Defendant himself acknowledges, Mungarro, like several of the other 2 witnesses, did not hear Anderson say anything to Acosta. And, 3 contrary to Anderson’s testimony that Acosta said, “I’m trying to 4 protect my son,” Mungarro told police that Acosta said, “All right, 5 all right.”6 Moreover, more fundamentally, and as Defendant also 6 acknowledges, Mungarro told police that Acosta had his hands up 7 when he was shot. This directly contradicts Anderson’s testimony 8 that Acosta had his hands down around his belt, and had moved his 9 right hand only a few inches when Anderson first pulled the 10 trigger. 11 More troublingly, Defendant’s argument could be read to 12 suggest that, because even Mungarro stated that Acosta was holding 13 the gun (albeit, while his hands were up), Anderson’s use of deadly 14 force was reasonable as a matter of law.7 Even putting aside the 15 factual inconsistency between Mungarro’s version of events and 16 Defendant Anderson’s, any such argument fails. It is well- 17 established that “[t]he mere fact that a suspect possesses a weapon 18 does not justify deadly force.” Hayes, 736 F.3d at 1233; see also 19 Nehad, 929 F.3d at 1134 (“That a person is armed does not end the 20 reasonableness inquiry.”). The relevant question is whether a 21 6 Although this statement could support an inference that 22 Anderson did say something, at this stage, as stated above, all inferences must be drawn in Plaintiffs’ favor. Anderson, 477 U.S. 23 at 242. It is not inconceivable that someone might respond, “All right, all right,” unbidden, to an unidentified individual who 24 emerged from an unmarked car holding a gun. And, even assuming that Anderson did say something to prompt Acosta to speak, there 25 remains a genuine dispute as to what Anderson said. 26 7 Indeed, at argument, Defendant suggested that, so long as Acosta possessed a gun and Anderson knew that Acosta had shot at 27 someone earlier on the greenbelt, any other circumstances were “immaterial.” That argument is simply incorrect, for the reasons 28 stated herein. 1 suspect poses an immediate threat of harm at the time force is 2 applied. Andrews v. City of Henderson, 35 F.4th 710, 717 (9th Cir. 3 2022) (quoting Nehad, 929 F.3d at 1136.) If, as Mungarro stated, 4 Acosta’s hands were up when Anderson shot him, that would seriously 5 undercut any claim that the use of deadly force was reasonable 6 under the totality of the circumstances. Any argument premised on 7 Mungarro’s statements is, therefore, self-defeating. 8 The law does not permit a grant of summary judgment under 9 circumstances such as those here, where there are disputes about 10 material facts. Defendant’s Motion for Summary as to the excessive 11 force claims is, therefore, denied.8 12 B. Fourteenth Amendment Interference with Familial 13 Relationships Claim 14 Plaintiffs also bring a Fourteenth Amendment claim for 15 interference with familial relationships. See Wilkinson v. Torres, 16 610 F.3d 546, 554 (9th Cir. 2010) (“[P]arents have a Fourteenth 17 Amendment liberty interest in the companionship and society of 18 their children.”). Official conduct violates the Fourteenth 19 Amendment if it “shocks the conscience.” Id. “Police action 20 8 Defendant also argues that, even if his use of deadly force 21 was unconstitutional, he is entitled to qualified immunity. However, “when there are disputed factual issues that are necessary 22 to a qualified immunity decision, these issues must first be determined by the jury before the court can rule on qualified 23 immunity.” Morales v. Fry, 873 F.3d 817, 824 (9th Cir. 2017) (citing commentary to Ninth Circuit Model Civil Jury Instruction 24 9.34 (2017); see also Espinosa v. City & Cty. of San Francisco, 598 F.3d 528, 532 (9th Cir. 2010). Contrary to Defendant’s suggestion, 25 the crux of the matter here is not whether Anderson reasonably believed that the gun in Acosta’s armpit was real. Drawing all 26 inferences in favor of Plaintiffs, Defendant cannot credibly contend that Anderson was not “on notice” that deadly force cannot 27 be employed without warning on a person, armed or not, whose hands are in the air and whose only words to police were, “All right, all 28 right.” 1 sufficiently shocks the conscience . . . if it is taken with either 2 (1) deliberate indifference or (2) a purpose to harm, unrelated to 3 legitimate law enforcement objectives,” depending on whether an 4 officer has the opportunity to deliberate before acting. Nehad, 5 929 F.3d at 1139 (internal quotation marks and alteration omitted); 6 A.D. v. California Highway Patrol, 712 F.3d 446, 453 (9th Cir. 7 2013). 8 Here, Defendant argues that there is no “evidence that ‘actual 9 deliberation’ by Sergeant Anderson was practical, during the 10 subject incident that could amount to ‘deliberate indifference.’” 11 (Motion at 18:22-24.) This argument is not entirely clear to the 12 court. “Where actual deliberation is practical, then an officer’s 13 ‘deliberate indifference’ may suffice to shock the conscience. On 14 the other hand, where a law enforcement officer makes a snap 15 judgment because of an escalating situation, his conduct may only 16 be found to shock the conscience if he acts with a purpose to harm 17 unrelated to legitimate law enforcement objectives.” Wilkinson, 18 610 F.3d at 554. Thus, if Anderson did not have time to 19 deliberate, as Defendant appears to suggest, then Plaintiffs must 20 show a purpose to harm, not deliberate indifference. 21 In any event, Plaintiffs’ Fourteenth Amendment claim is not 22 amenable to summary judgment for the same reasons that preclude 23 summary judgment on the Fourth Amendment claim. Defendant’s 24 argument is premised on Anderson’s version of events, as to which 25 there is a genuine dispute. That dispute extends to the threshold 26 question in the Fourteenth Amendment analysis: whether Anderson was 27 forced to make a snap decision, or had time to deliberate while 28 Acosta had his arms up in the air and was complying, or attempting to comply, with any commands Anderson may have given. Defendant’s 2} Motion for Summary Judgment on Plaintiffs’ Fourteenth Amendment claim is, therefore, denied. IV. Conclusion 5 For the reasons stated above, Plaintiff’s Motion for Summary Judgment is DENIED. 7 IT IS SO ORDERED. Dated: September 6, 2023 DEAN D. PREGERSON 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13