Lopez v. Mesa, City of

• Court: District Court, D. Arizona
• Decided: January 31, 2022
• Docket: 2:19-cv-04764
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Patricia Lopez and Caesar Lopez, No. CV-19-04764-PHX-DLR

10 Plaintiffs, ORDER

11 v.

12 City of Mesa and Heath Carroll,

13 Defendants. 14 15 16 Officer Heath Carroll shot Anthony Lopez (“Decedent”) at a traffic stop on July 21, 17 2018. Plaintiffs, Decedent’s parents and estate, brought this suit, arguing that the shooting 18 was unjustified. Defendants City of Mesa and Carroll disagree, and their motions for 19 summary judgment now pend before the Court. For the following reasons, the Court grants 20 the motions in part.1 21 I. Background2 22 In the dark morning hours of July 21, 2018, Officer Jena Thranum saw a Kia Sorento 23 stopped at an otherwise deserted intersection, headlights off and rear windshield wiper 24 1 Both parties request oral argument. The Court denies both requests because the 25 issues are adequately briefed, and oral argument will not help the Court resolve the motion. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f); Lake at Las Vegas Investors Grp., Inc. v. Pac. 26 Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). 2 Two body-worn cameras captured the incident from two angles. (Doc. 67-3, 67- 27 4.) When the subject instance is unambiguously captured in an audio/video recording, the Court views those “facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 28 372, 380-81 (2007). The following facts are recounted from that footage unless otherwise noted. 1 oscillating. She parked her patrol vehicle behind it and approached the driver’s side; 2 Carroll approached the passenger side. Decedent sat in the driver’s seat, windows down 3 and engine running. When asked, he admitted to drinking some that night.3 4 Thranum asked for his keys, but Decedent did not comply. Instead, he placed one 5 hand on the steering wheel and another on the gear shifter. Carroll yelled, “Do not put that 6 car in drive right now. Do not put that car in drive. I’m not gonna tell you again,” and, at 7 the same time, drew his taser, thrust his arm through the open passenger window, and aimed 8 it at Decedent. 9 Decedent reversed the Sorento, striking Carroll’s outstretched arm and knocking 10 him to the ground before crashing into Thranum’s patrol vehicle and stopping. Carroll 11 scrambled to his feet and fired nine shots; eight of them struck Decedent. On the other side 12 of the Sorento, Thranum had retreated in an arc to the side and behind her patrol vehicle, 13 out of danger and out of Carroll’s line of sight. After establishing that Carroll was okay, 14 Thranum called for emergency medical services. Two seconds elapsed from the time 15 Decedent reversed the Sorento to when Carroll fired the shots. 16 Decedent died from his wounds. Carroll was transported to the hospital for his 17 injuries, which included bruises to his foot. (Doc. 67-7 at 35:21-36:16.) 18 A year later, Decedent’s parents and estate filed a complaint against the City and 19 Carroll, alleging claims under 42 U.S.C. § 1983, Monell v. Dep’t of Soc. Servs. of City of 20 New York, 436 U.S. 658 (1978), and Arizona law. Defendants now move for summary 21 judgment on all claims. 22 II. Standard 23 Summary judgment is appropriate when there is no genuine dispute as to any 24 material fact and, viewing those facts in a light most favorable to the nonmoving party, the 25 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When the facts at 26 issue are unambiguously captured in an audio/video recording, the Court views those “facts 27 in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 380-81. A fact is

28 3 Testing later determined that Decedent’s blood concentration neared 0.2%. (Doc. 67-11.) 1 material if it might affect the outcome of the case, and a dispute is genuine if a reasonable 2 jury could find for the nonmoving party based on the competing evidence. Anderson v. 3 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Villiarimo v. Aloha Island Air, Inc., 281 4 F.3d 1054, 1061 (9th Cir. 2002). Summary judgment may also be entered “against a party 5 who fails to make a showing sufficient to establish the existence of an element essential to 6 that party’s case, and on which that party will bear the burden of proof at trial.” Celotex 7 Corp. v. Catrett, 477 U.S. 317, 322 (1986). 8 The party seeking summary judgment “bears the initial responsibility of informing 9 the district court of the basis for its motion, and identifying those portions of [the record] 10 which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. 11 The burden then shifts to the non-movant to establish the existence of a genuine and 12 material factual dispute. Id. at 324. The non-movant “must do more than simply show that 13 there is some metaphysical doubt as to the material facts[,]” and instead “come forward 14 with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. 15 Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation and citation 16 omitted). 17 III. Analysis 18 A. Claim I: Unlawful Detention or Arrest Under 48 U.S.C. § 1983 19 Carroll argues that Decedent was not unlawfully detained because he had probable 20 cause that Decedent was driving under the influence and executed a traffic stop. (Doc. 67 21 at 9.) Plaintiffs do not contest this, and Carroll is entitled to judgment as a matter of law. 22 See Whren v. United States, 517 U.S. 806, 810 (1996) (probable cause of traffic violation 23 justifies a traffic stop); Lacy v. Cnty. of Maricopa, 631 F. Supp. 2d 1183, 1193 (D. Ariz. 24 2008) (“Probable cause to arrest or detain is an absolute defense to any claim under § 1983 25 against police officers for wrongful arrest.”). 26 B. Claim II: Excessive Force 27 Carroll argues he is entitled to qualified immunity against Plaintiffs’ excessive force 28 claim. (Doc. 67 at 4.) An officer is entitled to qualified immunity unless a plaintiff proves 1 that the (1) officer violated a constitutional right and (2) the right was clearly established 2 at the time of the challenged conduct. Morales v. Fry, 873 F.3d 817, 821 (9th Cir. 2017). 3 1. Violation of Constitutional Right 4 Excessive force is subject to the Fourth Amendment’s fact-sensitive reasonableness 5 requirement, which asks a court “judge[] from the perspective of the reasonable officer on 6 the scene, rather than with the 20/20 vision of hindsight,” and accommodate the reality that 7 officers face “split-second judgments—in circumstances that are tense, uncertain, and 8 rapidly evolving—about the amount of force that is necessary in a particular situation.” 9 Graham v. Connor, 490 U.S. 386, 395 (1989). Deadly force has been authorized when the 10 suspect’s actions presented an imminent threat of serious physical harm to others. See, 11 e.g., Scott, 550 U.S. at 374, 383-84; Tennessee v. Garner, 471 U.S. 1, 11 (1985); Wilkinson 12 v. Torres, 610 F.3d 546, 551 (9th Cir. 2010). 13 Whether force is objectively reasonable turns on several factors, including: (1) the 14 severity of the crime that prompted the use of force; (2) the threat posed by a suspect to the 15 police or others; and (3) whether the suspect was resisting arrest. Graham, 490 U.S. at 16 396. Still, this list is not exhaustive, and courts must “examine the totality of the 17 circumstances and consider whatever specific factors may be appropriate in a particular 18 case, whether or not listed in Graham.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 19 2010). Relevant here is whether proper warnings were given before using force. See, e.g., 20 Hughes v. Kisela, 841 F.3d 1081, 1085 (9th Cir. 2016). 21 In excessive force cases, the Ninth Circuit grants summary judgment “sparingly” 22 because the “inquiry nearly always requires a jury to sift through disputed factual 23 contentions, and to draw inferences therefrom.” Glenn v. Washington Cnty., 673 F.3d 864, 24 871 (9th Cir. 2011) (quoting Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005)). 25 “Of course, if an excessive force claim turns on which two conflicting stories best captures 26 what happened on the street, Graham will not permit summary judgment in favor of the 27 defendant official.” Carrillo v. City of Fresno, No. CVF-06-634 OWW/GSA, 2007 WL 28 3491478, at *9 (E.D. Cal. Nov. 14, 2007) (quoting Saucier v. Katz, 533 U.S. 194, 216 1 (2001) (Ginsburg, J. concurring), departed from on other grounds by Pearson v. Callahan, 2 555 U.S. 223, 236 (2009)). Thus, courts must examine all the evidence in the record, 3 including video footage, “to determine whether the officer’s story is internally consistent 4 with other known facts.” Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014). 5 Courts must also “examine circumstantial evidence that, if believed, would tend to discredit 6 the police officer’s story.” Id. Where an officer’s particular use of force is based on a 7 mistake of fact, the Court asks whether a reasonable officer would have or should have 8 accurately perceived that fact. See, e.g., Jenson v. City of Oxnard, 145 F.3d 1078, 1086 9 (9th Cir. 1998). 10 The first two factors are undisputed: Decedent was attempting to flee and committed 11 an aggravated assault4 when he reversed the Sorento and struck Carroll. Therefore, the 12 Court turns to the most important factor, the immediacy of the threat posed by the suspect 13 to the police or others, which the parties do meaningfully dispute. See Mattos v. Agarano, 14 661 F.3d 433, 441 (9th Cir. 2011). 15 Carroll argues that Decedent posed an immediate threat of serious bodily harm to 16 Thranum. First, the relevant undisputed facts: the Decedent never displayed a firearm. 17 Although the Court recognizes that a vehicle can be used as a weapon, neither Carroll5 nor 18 Thranum lay in the path of the Sorento after Decedent reversed. (Thranum had instead 19 retreated behind her patrol vehicle without crossing into the path of a suspect’s vehicle, 20 just as she was trained.) “[A] simple statement by an officer that he fears for his safety, or 21 the safety of others is not enough; there must be objective factors to justify such a concern.” 22 Deorele v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001). 23 But, other, material facts, are disputed. First, it is disputed whether Carroll actually 24 harbored the mistaken belief that Thranum was in harm’s way. Carroll contends that he 25 believed Thranum lay beneath the Sorento because he lost sight of her when the vehicle

26 4 A person commits assault by “[i]ntentionally, knowingly or recklessly causing any physical injury to another person.” A.R.S. § 13-1203(A)(1). The assault is aggravated if 27 the person commits assault “knowing or having reason to know that the victim is . . . [among other things, a] peace officer.” A.R.S. § 13-1204(A)(8)(a). 28 5 Indeed, Carroll never argues that he himself was at risk of serious bodily harm after the Sorento reversed. 1 reversed. (Doc. 67 at 6.) Plaintiffs argue that a reasonable jury could find Carroll’s 2 testimony not credible based on the video footage because (1) Carroll did not check 3 underneath the Sorento immediately after the shooting and (2) he fired the nine shots in a 4 direction that would have risked shooting anyone who lay underneath the Sorento. (Doc. 5 71 at 6, 9, 11.) The Court agrees. A reasonable jury could agree with Plaintiffs’ 6 interpretation of the evidence and find that Carroll did not actually fear that Thranum was 7 in harm’s way. 8 Second, even if a jury were to find that Carroll actually believed Thranum was in 9 jeopardy, it might find the belief unreasonable. From the bodycam footage, Plaintiffs point 10 out that (1) Thranum never placed her limbs inside the Sorento; (2) Thranum followed her 11 training by staying out of the Sorento’s path as she retreated to safety behind her patrol 12 vehicle; (3) Thranum never made any noises of pain; and (4) the Sorento was stopped when 13 Carroll fired the nine shots. (Doc. 71 at 12.) Based on this evidence, a jury could conclude 14 that an objectively reasonable officer would or should have accurately perceived that 15 Thranum was not in the Sorento’s path. 16 Based on the competing inferences a jury could draw from the bodycam footage, 17 the Court finds that a reasonable jury could disagree as to the immediate threat factor. 18 Summary judgment on this issue is inappropriate. Gonzalez, 747 F.3d at 797 (denying 19 summary judgment where question of fact existed only as to the immediacy of threat 20 factor). 21 2. Clearly Established Right 22 An officer is not entitled to qualified immunity if the law was “sufficiently clear that 23 a reasonable official would understand what he [was] doing violate[d] [a constitutional] 24 right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). “Reasonableness is not a demanding 25 standard.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 454 (9th Cir. 2013). There need 26 not be a prior case “directly on point,” so long as there is precedent “plac[ing] the statutory 27 or constitutional question beyond debate.” Est. of Lopez by & through Lopez v. Gelhaus, 28 871 F.3d 998, 1017 (9th Cir. 2017). 1 Viewing evidence in the light most favorable to Plaintiffs and drawing all 2 reasonable inferences in their favor, as the Court must, a jury could find it unreasonable 3 for Carroll to have believed Thranum lay beneath the Sorento after it reversed. Decedent 4 never displayed a weapon or verbally threatened the officers and the Sorento had come to 5 a full stop. Under this view of the facts, Decedent presented no immediate threat to 6 Thranum or to Carroll. And, Carroll never warned Decedent that he would shoot him. 7 Carroll “cannot credibly argue that the prohibition on the use of deadly force under 8 those circumstances was not clearly established” at the time of the shooting. Garner, 471 9 U.S. at 21 (holding that it is unconstitutional for an officer to shoot a suspect who does not 10 reasonably pose a threat, even if that suspect is fleeing). Carroll’s reliance on Wilkinson is 11 misplaced. There, the Wilkinson court, reviewing the facts in the light most favorable of 12 the plaintiff, determined that (1) the officer saw his partner “fall,” (2) the officer worried 13 that the partner had been run over and that the van would “arc” back toward the partner, 14 and (3) the suspect vehicle was in motion at the time the shots were fired. These are 15 different facts from the facts here, when viewed in the light most favorably to Plaintiffs. A 16 reasonable jury could find that Carroll unreasonably believed Decedent posed a significant 17 threat of bodily harm to Thranum. And if a jury were to make such a finding, clearly 18 established law would not have authorized the use of deadly force. Carroll is not entitled 19 to judgment as a matter of law on qualified immunity. 20 C. Claim III: Denial of Medical Care 21 Carroll argues that Decedent was not denied medical care because the officers called 22 emergency medical services immediately after the shooting. (Doc. 67 at 11.) Plaintiffs do 23 not dispute these facts, and under these facts, Carroll is entitled to judgment. 24 D. Claim IV: Interference with familial relations 25 To determine whether an officer’s use of force interferes with familial relations 26 courts apply different tests, depending on whether the officer had time to deliberate before 27 using force. Compare Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (looking to 28 whether the officer had a “purpose to harm” if acting without the opportunity to deliberate 1 but looking to whether the officer had “deliberate indifference” if acting with the 2 opportunity to deliberate), with id. at 1130 (asking whether an officer “act[ed] with a 3 purpose to harm unrelated to legitimate law enforcement objectives” if there was no 4 opportunity to deliberate). But, because either test asks about Carroll’s intent in using 5 force, which the parties genuinely dispute, this claim survives summary judgment. 6 Similarly, whether punitive damages are available for this claim also turns on Carroll’s 7 intent; those damages survive summary judgment. 8 E. Claims V-VII and X(f)-(g): The Monell and Monell-style Claims 9 1. Claim V: Ratification 10 To survive summary judgment on the ratification claim, Plaintiffs must present 11 evidence that a City policymaker “made a deliberate choice to endorse” Carroll’s actions. 12 Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992) overruled on other grounds by 13 Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). “[M]ere refusal to overrule 14 a subordinate’s completed act does not constitute approval.” Christie v. Iopa, 176 F.3d 15 1231, 1239 (9th Cir. 1999). Indeed, ratification resembles an affirmative agreement, 16 Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999), requiring municipal approval to be 17 “express[],” Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996). Because Plaintiffs point 18 to no evidence that the City ratified Carroll’s conduct in any express way or affirmatively 19 agreed with it, no genuine dispute of fact exists, and the City is entitled to judgment as a 20 matter of law. 21 2. Claims VI and X(f)-(g): Failure to Train 22 To establish a Monell or Arizona failure to train claim, Plaintiffs must identify a 23 specific deficiency in the City’s training of Carroll and show that the deficiency directly 24 caused the constitutional deprivation. Connick v. Thompson, 563 U.S. 51, 61 (2011); 25 Gibson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). The failure to train must rise to 26 “deliberate indifference to the rights of persons with whom the [untrained employees] came 27 into contact,” which usually requires proving a “pattern of violations.” Connick, 563 U.S. 28 at 61. 1 Plaintiffs point to three pieces of evidence to prove failure to train: (1) “Carroll’s 2 use of deadly force against Lopez”; (2) “the high number of threshold-related incidents 3 preceding the Lopez shooting”; and (3) that Carroll allegedly lied about serving as an Army 4 Ranger. (Doc. 73 at 7.) But Carroll’s conduct at the subject incident does not identify a 5 “specific deficiency” in the City’s training because an officer can be well trained and yet 6 act unconstitutionally. And the mere number of “threshold-related incidents” does not 7 indicate whether the uses of force were improper, and Plaintiffs’ expert conceded as much: 8 “[the incidents] could all be reasonable.” (Doc. 68-1 at 15.) Finally, Plaintiffs do not 9 explain how Carroll’s untruthfulness caused the force against Decedent. Plaintiffs fail to 10 meet their burden to identify a specific deficit in the City’s training and to show how that 11 training caused Carroll’s actions, much less how it amounted to “deliberate indifference.” 12 Connick, 563 U.S. at 61. 13 3. Claim VII: Unconstitutional Customs, Practices, or Policies 14 To survive summary judgment on an unconstitutional customs, practices, or policies 15 claim, a plaintiff must show (1) that he possessed a constitutional right of which he was 16 deprived; (2) that the municipality had a policy; (3) that this policy “amounts to deliberate 17 indifference” to the plaintiff's constitutional right; and (4) that the policy is the “moving 18 force behind the constitutional violation.” Oviatt By & Through Waugh v. Pearce, 954 19 F.2d 1470, 1474 (9th Cir. 1992). “[A] single instance” of unconstitutional conduct may 20 suffice if “taken pursuant to a municipal policy.” Long v. Cnty of Los Angeles, 442 F.3d 21 1178, 1185 (9th Cir. 2006). 22 Plaintiffs offer two examples, that the City (1) failed to discipline Carroll after his 23 “repeated use-of-force incidents” and (2) ignored Carroll’s untruthfulness. (Doc. 73 at 8.) 24 But, as above, Plaintiffs have not shown that the use-of-force incidents were unlawful and 25 thus subject to discipline; neither have they shown how Carroll’s alleged untruthfulness 26 was the “moving force behind” the shooting. The City is entitled to judgment as a matter 27 of law. 28 F. Claims VIII-X(a)-(e), (h): State Law Claims 1 Defendants marshal procedural and substantive against the state law claims 2 collectively and individually. 3 1. Procedural Challenge 4 a. Proper Notice as to Carroll 5 First, Carroll argues that all state law claims against him must be dismissed because 6 Plaintiffs did not strictly comply with A.R.S § 12-821.01. (Doc. 67 at 12.) That statute 7 requires a plaintiff with claims against a public employee “to deliver or ensure delivery of 8 the Notice of Claim” to the public employee within 180 days after the cause of action 9 accrues. A.R.S § 12-821.01. For a notice of claim, a cause of action accrues according to 10 the discovery rule, Thompson v. Pima Cnty., 243 P.3d 1024, 1028 (Ariz. Ct. App. 2010) 11 (applying the discovery rule to a notice of claim analysis), which provides that an action 12 accrues when a plaintiff “possesse[s] a minimum requisite of knowledge sufficient to 13 identify that a wrong occurred and caused injury.” Doe v. Roe, 955 P.2d 313, 323 (Ariz. 14 1998). In other words, once a plaintiff comprehends a “what” and a “who” “in such a way 15 that a reasonable person would be on notice to investigate,” the action accrues. Walk v. 16 Ring, 44 P.3d 990, 996 (Ariz. 2002). 17 Plaintiffs contend that they delivered a notice of claim to Carroll on July 17, 2019, 18 and that it was timely because they delivered the notice as soon as they learned that Carroll 19 fired the shots that killed Decedent. Carroll argues this was too late; the cause of action 20 accrued on the date of the shooting, and he was not served within 180 days of the shooting. 21 The Court agrees. Learning of the shooting itself put Plaintiffs on notice to investigate. 22 Walk, 44 P.3d at 996 (action accrues when a reasonable person would have been on notice 23 to investigate). Although Plaintiffs argue that they did not, in fact, learn Carroll’s identity 24 until much later, they fail to explain why they could not have learned his identity sooner 25 with due diligence. The state law claims against Carroll must be dismissed. 26 b. The Estate as Proper Party 27 Defendants argue that the Estate must be dismissed as a party to the wrongful death 28 claims (Claims IX and X) because A.R.S. § 12-612(A) prohibits a decedent’s estate from 1 bringing wrongful death state law claims if any of the statutory beneficiaries—here, 2 Decedent’s parents—survived the Decedent. (Doc. 67 at 13.) Plaintiffs do not contest this, 3 and the Estate must be dismissed from Claims IX and X as a matter of law. 4 2. Substantive Challenges 5 As noted above, the state law claims against Carroll are dismissed. Accordingly, 6 the remainder of this analysis concerns Plaintiffs’ state law claims against the City. 7 a. Claim VIII: False Arrest 8 As explained above, it is undisputed that there was probable cause to detain 9 Decedent for a traffic stop when Decedent did not use his headlights at night, admitted to 10 drinking, and did not follow officer commands. Thus, any detention was justified, and the 11 City is entitled to judgment. See Slade v. City of Phoenix, 541 P.2d 550, 552 (Ariz. 1975) 12 (noting that an unlawful detention is an essential element of false arrest and false 13 imprisonment). 14 b. Claim IX: Wrongful Death—Battery 15 The City seeks summary judgment on Claim IX on the theory that the use of deadly 16 force was justified. (Doc. 67 at 9.) But whether deadly force was justified turns on whether 17 Carroll reasonably believed that it was necessary (1) to defend himself or another from 18 what he reasonably believes is an immanent use of deadly force or (2) to effect an arrest or 19 prevent escape in certain situations. A.R.S. § 13-410(C). Again, whether Carroll 20 reasonably believed himself or Thranum subject to the imminent use of deadly force is 21 genuinely disputed. And by the time Carroll used force, Plaintiffs argue, the vehicle had 22 come to a complete stop and Decedent had not resisted arrest, genuinely disputing whether 23 it was reasonable to believe deadly force was necessary. The City is vicariously liable for 24 the acts of Carroll that occurred during the course and in the scope of his employment as a 25 City Police officer. See A.R.S. § 12-2506. The City is not entitled to summary judgment 26 on Claim IX. 27 c. Claim X(a)-(e), (h): Wrongful Death6 28 6 The Complaint does not include a subparagraph (d). (Doc. 1 at 26.) 1 The City argues that Arizona law does not recognize the wrongful-death theory 2 underlying Claim X(a)-(c) and (h). In cases advancing a wrongful death claim based 3 “solely on an officer’s intentional use of physical force,” a plaintiff may only advance a 4 theory of intentional use of force and not a negligent use of intentional force. Ryan v. 5 Napier, 425 P.3d at 236-37 (Ariz. 2018); see also Liberti v. City of Scottsdale, 816 F. App’x 6 89, 91 (9th Cir. 2020) (applying Napier to wrongful-death actions). Here, subclaims (a) 7 through (e) all allege a negligent use of intentional force or the negligent evaluation of 8 whether to use intentional force. (Doc. 1 at 26.) Plaintiffs argue that Carroll’s allegedly 9 negligent conduct precludes any justification defense, and therefore the claims alleging the 10 negligent use of force survive summary judgment. (Doc. 71 at 16.) But bringing a claim 11 and attacking a defense are two separate things. Plaintiffs cannot maintain a vicarious 12 liability claim against the City when the underlying theory alleges the negligent use of 13 intentional force. The City is entitled to judgment as a matter of law on Claims X(a)-(c), 14 (h). 15 Claim X(e) alleges the failure to provide prompt medical care to decedent. As stated 16 above, it is undisputed that the officers immediately radioed for medical assistance after 17 Carroll shot Decedent. The City is entitled to judgment as a matter of law. 18 IV. Conclusion 19 Carroll is entitled to judgment on Claims I, III, and VII-X(a)-(e), (h). Carroll is not 20 entitled to judgment on Claim II and VI (including punitive damages). The City is entitled 21 to judgment on Claims V-VIII, and X. The City, is not entitled to judgment on Claim XI. 22 The Estate is dismissed from IX and X. Therefore, 23 IT IS ORDERED that Defendants’ motions for summary judgment (Docs. 67 and 24 68) are GRANTED IN PART and DENIED IN PART, as outlined in this order. 25 / / / 26 / / / 27 / / / 28 1 IT IS FURTHER ORDERED that the parties shall participate in a telephonic trial 2|| scheduling conference before Judge Douglas L. Rayes on February 17, 2022, at 11:00 3 || a.m. Call-in instructions will be provided to the parties via separate email. 4 Dated this 31st day of January, 2022. 5 6 ‘boy tha 9 Upied States Dictria Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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