Singh v. Phoenix, City of

• Court: District Court, D. Arizona
• Decided: February 24, 2023
• Docket: 2:21-cv-00099
• Status: Unknown

Opinion

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

9 Krish Singh, No. CV-21-00099-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 City of Phoenix, et al.,

13 Defendants. 14 15 At issue are two motions filed by Defendants, the City of Phoenix (“the City”) and 16 Phoenix Police Department Officers Brittany Smith-Petersen and Annie Batway (“the 17 Officers”). The first motion at issue is Defendants’ Motion for Summary Judgment 18 (Doc. 52, “MSJ”), to which Plaintiff Krish Singh filed a Response in opposition (Doc. 68, 19 “Resp.”), and Defendants filed a Reply in support (Doc. 72, “Reply”). The second motion 20 at issue is Defendants’ Partial Daubert Motion Re: Roger Clark (Doc. 46), to which 21 Plaintiff filed a Response in opposition (Doc. 61), and Defendants filed a Reply in support 22 (Doc. 67). The Court has reviewed the briefing and evidence submitted by the parties and 23 finds these matters appropriate for resolution without oral argument. See LRCiv 7.2(f). For 24 the reasons that follow, the Court grants Defendants’ Motion for Summary Judgment only 25 as to Plaintiff’s claim under 42 U.S.C. § 1983, remands to the state court for resolution of 26 the remaining state-law claims, and denies Defendants’ Partial Daubert Motion without 27 prejudice to refiling the same or similar motion in state court on remand. 28 . . . 1 I. BACKGROUND 2 This case involves an incident that took place on November 11, 2019, in which 3 Officer Smith-Peterson shot Plaintiff during a relatively brief but tense encounter. 4 On the evening of November 11, Officers Smith-Petersen and Batway responded to 5 reports of an attempted armed robbery at the Home Depot located at 43rd Avenue and 6 Camelback Road in Phoenix. (Doc. 53, Defendants’ Statement of Facts (“DSOF”) Ex. 1 at 7 29:6–9; Doc. 58, Plaintiff’s Contravening Statement of Facts (“PSOF”), Ex. 3 at 41:6–9.) 8 Prior to the Officers’ arrival on the scene, dispatch relayed information from the caller who 9 reported the attempted robbery. In an initial report, the caller stated that a man was trying 10 to rob him with a knife. (DSOF Ex. 1 at 29:6–9.) In a subsequent report, the caller stated 11 that the man was chasing him with a knife in a parking lot. (DSOF ¶ 2.) Officers Smith- 12 Petersen and Batway arrived on the scene at the same time in separate patrol vehicles. 13 (DSOF ¶ 3.) Upon arrival, they saw Plaintiff walking through the parking lot. (DSOF ¶ 4.) 14 The Officers pulled up on either side of Plaintiff, forming an L-shaped configuration 15 around him. (DSOF Ex. 2 at 1:55; Ex. 3 at 3:35.)1 Officer Smith-Petersen told Plaintiff to 16 stop and show both of his hands. (DSOF Ex. 2 at 1:50–55.) Plaintiff was holding a knife 17 against his own throat. (DSOF ¶ 6; PSOF ¶ 6.) Officer Smith-Petersen exited the front 18 driver’s side of her patrol vehicle and told Plaintiff to “stay right there.” (DSOF Ex. 2 at 19 1:55–2:00.) She drew her handgun, aimed it at Plaintiff, and yelled, “If you come any 20 closer, I’ll fucking shoot you.” (DSOF Ex. 2 at 1:58–2:02.) She told Officer Batway to get 21 out of the way. (DSOF Ex. 2 at 2:02–04.) She told Plaintiff to drop the knife. (DSOF Ex. 22 2 at 2:04–06.) In response, Plaintiff said something to the effect of, “What? I’m going to 23 die anyway.” (DSOF Ex. 2 at 2:05–08.) For the remainder of the encounter, Plaintiff 24 continued to make statements indicating that he wanted Officer Smith-Petersen to shoot

25 1 The Officers’ interaction with Plaintiff was recorded by their body worn cameras. Both parties rely on this video evidence in their briefing; neither challenges its accuracy or 26 authenticity. The Court describes the body-worn-camera footage to the extent it shows aspects of the interaction that are undisputed or not genuinely disputable. The parties’ 27 genuine factual disputes are discussed in the analysis that follows. To the extent either party asserts a factual contention “blatantly contradicted” by the video evidence, the Court must 28 view the facts in the light depicted on video. Scott v. Harris, 550 U.S. 372, 378–81 (2007). 1 him. (DSOF ¶ 14; PSOF ¶ 14.) However, Plaintiff did not make any verbal statements 2 suggesting he intended to harm the Officers. (PSOF Ex. 3 at 47:3–5.)2 3 Officer Smith-Petersen proceeded to move around the back of her vehicle while 4 continuing to aim her gun at Plaintiff. (DSOF Ex. 2 at 2:05–14.) She stopped moving once 5 she reached the passenger’s side of the vehicle, such that the vehicle formed a barrier 6 between Plaintiff and herself. (PSOF Ex. 3 at 31:24–32:13.) She told Plaintiff, “If you come 7 any closer, I will kill you. Do you understand?” (DSOF Ex. 2 at 2:11–14.) She told him to 8 “put the gun down.” (DSOF Ex. 2 at 2:14–15.) Plaintiff corrected her that it was a knife, 9 which she acknowledged. (DSOF Ex. 2 at 2:15–19.) She told him to put the knife down. 10 (DSOF Ex. 2 at 2:18–19.) He asked why. (DSOF Ex. 2 at 2:19–20.) She responded, “We 11 can talk, I just can’t talk to you when you have a knife in your hand. My guy, I can’t talk 12 to you like this. You need to make it safe for me and you.” (DSOF Ex. 2 at 2:22–53.) He 13 said something to the effect of, “I’m making it safe for you already.” (DSOF Ex. 2 at 14 2:32-35.) She disagreed: “While you have a knife in your hand, neither one of us is safe, 15 OK? So just drop it and we will talk.” (DSOF Ex. 2 at 2:35–42.) Plaintiff did not comply 16 and continued to hold the knife against his own throat. (DSOF Ex. 2 at 2:10–4:06.) 17 By this time, Officer Batway had moved closer to Officer Smith-Petersen but 18 maintained some distance. (DSOF Ex. 3 at 4:08–11.) She had her gun aimed at Plaintiff. 19 (DSOF Ex. 3 at 4:13.) Officer Batway told Plaintiff they just wanted to help. (DSOF Ex. 3 20 at 4:22–38.) He said something to the effect that he did not want any help. (DSOF at 3 21 2:50–55.) He appeared to shuffle and the Officers told him to stop. (DSOF Ex. 2 at 2:55-57; 22 DSOF Ex. 3 at 4:26–29.) He said that everyone in his family thinks he’s crazy. (DSOF 23 Ex. 3 at 4:35–38.) Officer Batway told him they did not think he was crazy. (DSOF Ex. 3 24 at 4:39–41.) Officer Smith-Petersen added, “We don’t. But you need to understand.” 25 (DSOF Ex. 2 at 3:09–19.) Plaintiff moved forward and stopped. (DSOF Ex. 2 at 3:10–15.) 26 Officer Smith-Petersen said, “Hey, one more step towards me.” (DSOF Ex. 2 at 3:15–19.) 27 2 As Plaintiff notes, the audio of his statements is less clear and discernable than the audio 28 of the Officers’ statements. (See, e.g., PSOF ¶ 14.) 1 Plaintiff told her to shoot him and pointed to his head. (DSOF Ex. 2 at 3:16–18.) She told 2 him she did not want to shoot him. (DSOF Ex. 2 at 3:18–20.) He again told her to shoot 3 him, saying it was “all good.” (DSOF Ex. 2 at 3:27–30.) She said, “No, it’s not. You want 4 that on me? You want to put that on my conscience—that I have to shoot you?” (DSOF 5 Ex. 3:30–36.) He responded, “It’s all good.” (DSOF Ex. 2 at 3:34–36.) She told Officer 6 Batway, “If he takes one more steps towards us...” (DSOF Ex. 2 at 3:40–42.) 7 Plaintiff continued to tell the officers he wanted them to shoot him; they continued 8 to tell him they did not want to do so and tried to calm him down. (DSOF Ex. 2 at 3:19– 9 4:01.) For the majority of the interaction, Plaintiff was facing Officer Smith-Petersen. 10 (DSOF Ex. 2 at 2:05–400.) Her patrol vehicle was between them. (DSOF Ex. 2 at 2:05.) 11 Approximately two minutes into the interaction, Plaintiff slowly began to move 12 around the front passenger’s side corner of the patrol vehicle, toward Officer Smith- 13 Petersen. (DSOF Ex. 2 at 4:01–04.) He said something to effect of, “I want to get shot.” 14 (DSOF Ex. 2 at 4:02–04.) Officer Smith-Petersen told him to stop. (DSOF Ex. 2 at 4:04– 15 05.) He told her, “Go ahead ma’am.” (DSOF Ex. 2 at 4:06–07.) Both Officers again told 16 him to stop. (DSOF Ex. 2 at 4:04–10.) He continued to slowly move toward her. (DSOF 17 Ex. 2 at 4:06–09.) Officer Smith-Petersen moved backwards in response. (DSOF Ex. 2 at 18 4:06–08; Ex. 3 at 75:9–15.) Plaintiff then appeared to stop next to the front passenger’s 19 side of the vehicle. (DSOF Ex. 2 at 4:07–09; DSOF Ex. 3 at 5:38–41.) Officer Smith- 20 Peterson fired a single round, striking Plaintiff in the abdomen. (DSOF Ex. 2 at 4:08–10.) 21 Plaintiff fell to the ground and dropped the knife. (DSOF Ex. 2 at 4:08–12; DSOF 22 Ex. 1 at 77:5–7.) Officer Smith-Petersen put out a radio call that an officer had been 23 involved in a shooting. (DSOF Ex. 1 at 77:15–19.) She approached Plaintiff and kicked the 24 knife out of his reach. (DSOF Ex. 1 at 77:25–78:3.) Within minutes, numerous other law 25 enforcement officers arrived on the scene. (DSOF Ex. 3 at 6:50–9:10.) 26 Officers Smith-Petersen and Batway provided additional information about the 27 shooting in deposition testimony. Officer Smith-Petersen testified that at the time she shot 28 Plaintiff, she believed he posed a threat to herself, Officer Batway, and the public because 1 he did not comply with their instructions to drop the knife and continued to advance 2 forward. (PSOF Ex. 3 at 47:6–23, 67:6–14.) She believed that the situation was not 3 “contained” because the parking lot was a “very open space” and “[a]t any point he could 4 have turned around and ran.” (PSOF Ex. 1 at 39:19–41:3.) She confirmed that Plaintiff “did 5 not make any specific sudden changes in movement to elicit me to fire my weapon sooner.” 6 (PSOF Ex. 3 at 67:15–17.) She decided to shoot “because I no longer had my barrier as 7 well as Officer Batway never had a barrier.” (PSOF Ex. 3 at 67:18–20.) 8 At the time of the shooting, both Officers carried on their person an “OC spray”— 9 similar to pepper spray—and a taser. (PSOF Ex. 3 at 33:16–18; PSOF Ex. 4 at 19:23–25.) 10 Officer Smith-Petersen testified that she did not believe it was safe to use a taser given the 11 positions they were holding and the open parking lot, which presented “containment 12 problems.” (DSOF Ex. 1 at 44:14–46:24.) Officer Batway testified that she did not feel it 13 would be effective for her to use pepper spray or a taser given the distance between her and 14 Plaintiff. (DSOF Ex. 4 at 22:15–25.) Prior to the shooting, Officer Batway had called for 15 backup and knew additional units were on their way. (PSOF Ex. 4 at 27:17–21.) She 16 testified she would have felt more comfortable if there had been more officers on the scene, 17 which might have allowed them to use less lethal options. (PSOF Ex. 4 at 28:19–29:19.) 18 Both Officers testified they might have been able to call for crisis-intervention units if there 19 had been more time or additional officers. (PSOF Ex. 3 at 53:17–21; Ex. 4 at 42:20–43:20.) 20 Both Officers testified that they did not have any prior use of force issues. (DSOF 21 Ex. 1 at 17:4–8; Ex. 4 at 4:19–5:3.) Officer Batway had never been disciplined. (DSOF 22 Ex. 4 at 4:19–5:3.) Officer Smith-Petersen had twice received communications critical of 23 her performance, neither of which involved the use of force. (DSOF Ex. 1 at 15:8–16:6.) 24 Plaintiff survived his injuries and subsequently brought suit against the Officers and 25 the City. Plaintiff filed the operative Complaint in Maricopa County Superior Court on 26 November 5, 2020. (Doc. 1-3, “Compl.”) Defendants thereafter removed the case to this 27 Court. (Doc. 1.) Plaintiff’s Complaint raises four claims for relief: state-law claims for 28 assault and battery (Count One) and negligence and gross negligence (Count Two) against 1 the Officers and the City; a state-law claim for negligent hiring, training, supervision, and 2 retention against the City (Count Three); and a Fourth Amendment claim under 42 U.S.C. 3 § 1983 (“Section 1983”) against Officer Smith-Petersen (Count Four). (Compl. ¶¶ 22–60.) 4 Defendants move for summary judgment on each of Plaintiff’s claims. Defendants 5 argue that summary judgment is required on Plaintiff’s Section 1983 claim because Officer 6 Smith-Petersen did not use excessive force and, even if she did, she is protected by the 7 doctrine of qualified immunity. (MSJ at 2.) Defendants argue that Plaintiff’s state-law 8 claims are subject to qualified immunity under Arizona law. (Id.) Finally, Defendants argue 9 that Plaintiff’s claims against the City fail because the Officers were not negligent and the 10 City properly trained, hired, and supervised them. (Id.) 11 II. LEGAL STANDARD 12 Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate 13 when the movant shows that there is no genuine dispute as to any material fact and the 14 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. 15 Catrett, 477 U.S. 317, 322–23 (1986). “A fact is ‘material’ only if it might affect the 16 outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could 17 resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, 18 LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 19 242, 248 (1986)). The court must view the evidence in the light most favorable to the 20 nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. 21 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). 22 The moving party “bears the initial responsibility of informing the district court of 23 the basis for its motion, and identifying those portions of [the record] . . . which it believes 24 demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 232. 25 When the moving party does not bear the ultimate burden of proof, it “must either produce 26 evidence negating an essential element of the nonmoving party’s claim or defense or show 27 that the nonmoving party does not have enough evidence of an essential element to carry 28 its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz 1 Co.’s, 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party carries this initial burden 2 of production, the nonmoving party must produce evidence to support its claim or defense. 3 Id. at 1103. Summary judgment is appropriate against a party that “fails to make a showing 4 sufficient to establish the existence of an element essential to that party’s case, and on 5 which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. 6 In considering a motion for summary judgment, the court must regard as true the 7 non-moving party’s evidence, as long as it is supported by affidavits or other evidentiary 8 material. Anderson, 477 U.S. at 255. However, the non-moving party may not merely rest 9 on its pleadings; it must produce some significant probative evidence tending to contradict 10 the moving party’s allegations, thereby creating a material question of fact. Id. at 256–57 11 (holding that the plaintiff must present affirmative evidence in order to defeat a properly 12 supported motion for summary judgment); see also Taylor v. List, 880 F.2d 1040, 1045 13 (9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on 14 conclusory allegations unsupported by factual data.”) (citation omitted). 15 III. ANALYSIS 16 A. Section 1983 Claim 17 The Court first addresses Plaintiff’s Section 1983 claim. “The purpose of 42 U.S.C. 18 § 1983 is to deter state actors from using the badge of their authority to deprive individuals 19 of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” 20 Est. of Aguirre v. County of Riverside, 29 F.4th 624, 627 (9th Cir. 2022) (quotation marks 21 and citation omitted). Here, Plaintiff alleges that Officer Smith-Petersen used excessive 22 force, depriving him of his Fourth Amendment right to be free from unreasonable seizure. 23 (Compl. ¶¶ 58–60.) Defendants move to dismiss Plaintiff’s claim on two grounds. They 24 argue that Officer Smith-Petersen’s use of force was objectively reasonable as a matter of 25 law and that she is entitled to qualified immunity in any event. (MSJ at 7–14.) 26 Qualified immunity is a judicially created doctrine. See Aguirre, 29 F.4th at 627. 27 The Ninth Circuit recently instructed that the doctrine “‘acts to safeguard government, and 28 thereby to protect the public at large, not to benefit its agents.’ As the architects of qualified 1 immunity, courts must ensure that the doctrine remains tethered to this principle.” Id. 2 (quoting Wyatt v. Cole, 504 U.S. 158, 161 (1992)). Determining whether qualified 3 immunity shields a government official from civil liability under Section 1983 is a two- 4 prong inquiry. The Court must consider: “(1) whether there has been a violation of a 5 constitutional right; and (2) whether that right was clearly established at the time of the 6 officer’s alleged misconduct.” Id. The Court has discretion as to which prong of the 7 analysis to address first. See Pearson v. Callahan, 555 U.S. 223, 235 (2009). 8 The grounds for dismissal asserted by Defendants track the two prongs of the 9 qualified immunity analysis. That is, if a reasonable jury could find that Officer Smith- 10 Petersen used excessive force in violation of Plaintiff’s right to be free from unreasonable 11 seizure, her entitlement to summary judgment turns on whether the law was “sufficiently 12 clear that every reasonable official would have understood that what he [or she] is doing 13 violates that right.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (quoting Mullenix 14 v. Luna, 577 U.S. 7, 11 (2015)). The Court considers Defendants’ arguments in turn. 15 1. The Constitutional Violation 16 It is undisputed that Officer Smith-Petersen used deadly force, which 17 unquestionably constitutes “a seizure subject to the reasonableness requirement of the 18 Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985). The Fourth Amendment’s 19 reasonableness standard is an objective one. Determining whether an officer’s use of force 20 was objectively reasonable “requires a careful balancing of ‘the nature and quality of the 21 intrusion on the individual’s Fourth Amendment interests’ against the countervailing 22 governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396–97 (1989) (quoting 23 Garner, 471 U.S. at 8). “The calculus of reasonableness must embody allowance for the 24 fact that police officers are often forced to make split-second judgments—in circumstances 25 that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary 26 in a particular situation.” Id. It therefore “must be judged from the perspective of a 27 reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. 28 . . . . 1 “The intrusiveness of a seizure by means of deadly force is unmatched.” Garner, 2 471 U.S. at 9. In Graham, the Supreme Court identified three non-exhaustive factors to 3 consider in evaluating the strength of the government’s interests in using such force: (1) 4 “the severity of the crime at issue”; (2) “whether the suspect poses an immediate threat to 5 the safety of the officers or others”; and (3) “whether he is actively resisting arrest or 6 attempting to evade arrest by flight.” 490 U.S. at 396. The Ninth Circuit also has considered 7 factors including (4) “the availability of less intrusive alternatives to the force employed”; 8 (5) “whether proper warnings were given”; and (6) “whether it should have been apparent 9 to the officers that the person they used force against was emotionally disturbed.” Isayeva 10 v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 947 (9th Cir. 2017). The “most important” 11 factor is the second: whether the suspect posed an immediate threat to the safety of the 12 officers or others. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). 13 When considering qualified immunity, the Court is “limited to considering what 14 facts the officer could have known at the time of the incident.” Est. of Lopez v. Gelhaus, 15 871 F.3d 998, 1006 (9th Cir. 2017), cert denied, 138 S. Ct. 2680 (2018). Consistent with 16 summary judgment standards, the Court must view the evidence in the light most favorable 17 to Plaintiff and resolve genuine factual disputes in his favor. See id. at 1006–10. 18 Many of the relevant facts are undisputed. For example, there is no genuine dispute 19 that Officers Smith-Petersen and Batway were responding to reports of an attempted armed 20 robbery with a knife; when they arrived on the scene, the Officers saw Plaintiff walking 21 through the parking lot with a knife; Plaintiff held the knife against his own throat and did 22 not point it at the Officers; Plaintiff did not verbally threaten to harm the Officers; the 23 Officers ordered Plaintiff to stop and/or drop the knife approximately twenty times, but he 24 refused to do so; both Officers had tasers and pepper spray, which they did not employ; 25 Officer Smith-Petersen warned Plaintiff that she would shoot him if he came any closer; 26 Plaintiff repeatedly told the Officers that he wanted them to shoot him; approximately one 27 minute into the encounter, Plaintiff slowly began advancing toward Officer Smith- 28 Petersen; the Officers told him to stop, which he did; approximately one minute later, 1 Plaintiff began moving toward Officer Smith-Petersen again, breaking her cover; the 2 Officers repeatedly told him to stop and he said, “Go ahead man, go ahead, man”; and 3 Officer Smith-Petersen then shot him. (DSOF ¶¶ 1–2, 6, 10, 14, 16–17, 20–21, 24–25, 29, 4 32–33, 35, 38–40, 43; PSOF ¶¶ 1–2, 6, 10, 14, 16–17, 20–21, 24–25, 29, 32–33, 35, 38– 5 40, 43, 68–69, 72, 87; see generally DSOF Ex. 2 at 1:50–4:15; Ex. 5 at 3:30–5:45.) 6 There are genuine disputes as to other relevant facts. First, the parties dispute 7 whether Plaintiff stopped moving toward Officer Smith-Petersen immediately prior to her 8 shooting him. (PSOF ¶ 41; Reply at 2 n.2.) A jury reasonably could conclude from the 9 body-worn-camera footage that he did stop. (See DSOF Ex. 2 at 4:01–4:08; DSOF Ex. 3 at 10 5:36–42.) Second, there is a genuine dispute as to whether Officer Smith-Petersen safely 11 could have moved her position relative to Plaintiff to maintain cover and/or the distance 12 between them. (Resp. at 2–3; Reply at 2–3.) Officer Smith-Petersen plausibly explained 13 that she could not have done so, but it would not be irrational for a jury to find that she 14 could have moved at least some distance, as she had done at various points during the 15 encounter. (See, e.g., DSOF Ex. 2 at 2:05–14, 4:00–10; PSOF Ex. 3 at 31:24–32:13, 62:4– 16 64:25; Ex. 4 at 35:6–36:16.) Third, there is a genuine dispute as to whether the Officers 17 could have used less-lethal options, such as a taser. (MSJ at 10–11; Resp. at 9–11.) The 18 Officers plausibly explained why they could not have used a taser given their positions and 19 the lack of containment, but their explanations are not indisputable. The parties’ use-of- 20 force experts disagree on this question. (PSOF Ex. 1 at 25–26; DSOF Ex. 9 at 15.)3 Fourth, 21 there is a genuine dispute about the extent to which Plaintiff’s movements toward Officer 22 Smith-Petersen were threatening. Officer Smith-Petersen testified that Plaintiff disobeying 23 her commands to drop the knife and advancing toward her suggested to her that he intended

24 3 Defendants’ Partial Daubert Motion regarding Plaintiff’s expert, Roger Clark, challenges the statement in Mr. Clark’s report that “there were far more reasonable and obvious less 25 than lethal force options available besides shooting Mr. Singh.” (Doc. 46 at 10.) Defendants contend that this statement is inconsistent with the Officers’ testimony. (See id.) But 26 Defendants do not proffer a compelling reason why expert testimony on this issue would be improper. Cf. S.R. Nehad v. Browder, 929 F.3d 1125, 1136 (9th Cir. 2019) (finding a 27 genuine factual dispute as to the availability of less-lethal alternatives where plaintiff’s expert described less-lethal alternatives as “obvious,” but defendants contended for various 28 reasons that such alternatives were not practical). Indeed, Defendants’ own expert opined in his report about the availability of less-lethal alternatives. (See DSOF Ex. 9 at 15.) 1 to harm her. (DSOF Ex. 1 at 47:6–23.) However, she acknowledged that Plaintiff “did not 2 make any specific sudden changes in movement to elicit me to fire my weapon sooner.” 3 (PSOF Ex. 3 at 67:6–20.) Plaintiff maintains that he made no movements or gestures 4 indicating that he intended harm to anyone, but himself. (PSOF ¶ 44.) This presents a 5 difficult question, but the Court finds that it is one properly reserved for a jury as it weighs 6 the evidence and the reasonable inferences to be drawn from the evidence. 7 Construing the evidence in Plaintiff’s favor, as it must, the Court now applies the 8 Graham factors, and other factors identified by the Ninth Circuit, to consider whether 9 Officer Smith-Petersen’s use of deadly force was objectively reasonable as a matter of law. 10 a. Severity of the crime 11 The Ninth Circuit has applied the first Graham factor in “two slightly different 12 ways.” Browder, 929 F.3d at 1136. First, the Ninth Circuit has held that “a particular use 13 of force would be more reasonable, all other things being equal, when applied against a 14 felony suspect than when applied against a person suspected of only a misdemeanor.” Id. 15 Second, the court has used the severity of the crime as a proxy for the second Graham 16 factor: the danger that a suspect poses at the time force is applied. Id. 17 Officers Smith-Petersen and Batway were responding to reports of an attempted 18 armed robbery, a felony. See A.R.S. §§ 13-1904(B), 13-1001(C)(2). The Ninth Circuit has 19 observed that armed robbery is “a serious crime that poses an obvious risk of violence,” 20 which “suggests that the government may have an interest in using force to effect an arrest.” 21 Andrews v. City of Henderson, 35 F.4th 710, 716 (9th Cir. 2022) (emphasis in original). 22 Here, the Officers reasonably concluded that Plaintiff was the suspect in the reported 23 attempted robbery. However, it is not clear that Plaintiff was engaged in that crime when 24 the officers arrived, let alone when Officer Smith-Petersen shot him—a factor the Ninth 25 Circuit has recognized as one the jury can consider in assessing deadly force. See Browder, 26 929 F.3d at 1136 (holding that even if the decedent previously had made felonious threats 27 or committed a serious crime, a jury could find that these crimes did not render the use of 28 deadly force reasonable because he was “indisputably not engaged in any such conduct” 1 when the officer shot him); see also Harris v. Roderick, 126 F.3d 1189, 1203 (9th Cir. 2 1997) (“[T]he fact that [the suspect] had committed a violent crime in the immediate past 3 is an important factor but it is not, without more, a justification for killing him on sight.”). 4 Second, Defendants contend that during the confrontation, “Plaintiff refused to obey 5 commands, brandished a knife, and repeatedly moved towards Officer Smith-Petersen on 6 at least three occasions”—actions that “clearly constitute attempted or completed 7 dangerous felonies under Arizona law.” (MSJ at 8 (citing A.R.S. §§ 13-1202 (threatening 8 or intimidating), 13-1204 (aggravated assault with a deadly weapon), 13-2508 (resisting 9 arrest)).) The success of these arguments rests, at least in part, on disputed facts. As noted, 10 Plaintiff did not verbally threaten to harm the Officers. Further, as noted, a jury reasonably 11 could conclude that Plaintiff’s movements and gestures indicated an intent to harm only 12 himself. A jury also could conclude that Plaintiff’s efforts to resist arrest only amounted to 13 “passive resistance,” a misdemeanor. See A.R.S § 13-2508. In short, a jury could conclude 14 that the severity of any crimes that Plaintiff previously had committed or was committing 15 during the encounter did not, in and of itself, justify the use of deadly force against him. 16 See Browder, 929 F.3d at 1136. 17 b. Immediate Threat to Officers or the Public 18 The next Graham factor is the most important: whether Plaintiff posed an immediate 19 threat to the Officers or the public. Mattos, 661 F.3d at 441. “A desire to resolve quickly a 20 potentially dangerous situation is not the type of governmental interest that, standing alone, 21 justifies the use of force that may cause serious injury.” Bryan v. MacPherson, 630 F.3d 22 805, 826 (9th Cir. 2010). “Rather, the objective facts must indicate that the suspect poses 23 an immediate threat to the officer[s] or a member of the public.” Id. (emphasis added); see 24 Browder, 929 F.3d at 1133 (“The use of deadly force is only reasonable if a suspect ‘poses 25 a significant threat of death or serious physical injury to the officer or others.’” (quoting 26 Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014)). Here, it cannot be 27 disputed that Plaintiff created a potentially dangerous situation for the Officers and the 28 public. On this record, however, the Court finds that the question of whether or not Plaintiff 1 posed an immediate threat to the Officers or the public is properly reserved for a jury. This 2 conclusion is supported by comparing the facts of this case—including the genuinely 3 disputed facts resolved in Plaintiff’s favor—to cases cited by Defendants. (See MSJ at 9.) 4 In Gonzales v. City of Antioch, the Ninth Circuit affirmed summary judgment in 5 favor of a city on negligence and battery claims arising from a fatal police shooting. 697 6 F. App’x 900 (9th Cir. 2017). The undisputed evidence showed that the decedent had 7 contacted the police and “repeatedly made statements from which it could be inferred that 8 he was planning to kill a police officer”; refused to drop the gun he was carrying when 9 ordered to do so by officers who subsequently arrived at his house; and momentarily raised 10 his gun in the officers’ direction as he retreated toward his garage. Id. at 901–02. The Ninth 11 Circuit held that the fact that the decedent “only momentarily raised his gun and then 12 lowered it as he was retreating . . . d[id] not create a genuine factual dispute as to whether 13 the force used was reasonable.” Id. Where “the responding officers were confronted with 14 a suspect who had repeatedly threatened to kill a police officer and raised his gun in the 15 direction of the officers,” the use of deadly force was reasonable as a matter of law. Id. 16 In Smith v. City of Hemet, the Ninth Circuit held that “where a suspect threatens an 17 officer with a weapon such as a gun or a knife, the officer is justified in using deadly force.” 18 394 F.3d 689, 704 (9th Cir. 2005). The court cited several examples: violently resisting 19 arrest, physically attacking an officer, and grabbing the officer’s gun, Billington v. Smith, 20 292 F.3d 1177, 1185 (9th Cir. 2002); swinging a knife at an officer after behaving 21 erratically, Reynolds v. County of San Diego, 84 F.3d 1162, 1168 (9th Cir. 1996); pointing 22 a gun at officers, Scott v. Henrich, 39 F.3d 912, 914–15 (9th Cir. 1994); and attacking an 23 agent with a rock and stick, Garcia v. United States, 826 F.2d 806, 812 (9th Cir. 1987). 24 Later, in George v. Morris, the Ninth Circuit recognized that officers do not necessarily 25 have “to delay their fire until a suspect turns his weapon on them. If the person is armed— 26 or reasonably suspected of being armed—a furtive movement, harrowing gesture, or 27 serious verbal threat might create an immediate threat.” 736 F.3d 829, 838 (9th Cir. 2013). 28 1 Here, Plaintiff did not verbally threaten the Officers. Nor did he “make any specific 2 sudden changes in movement to elicit [Officer Smith-Petersen] to fire [her] weapon.” 3 (PSOF Ex. 3 at 67:6–20.) Moreover, as noted, it would not be irrational for a jury to 4 conclude that Plaintiff’s conduct indicated an intent to harm only himself, and that his 5 movements were not “furtive,” nor his gestures “harrowing.” Morris, 736 F.3d at 838. As 6 noted, a jury also could find that Plaintiff stopped at the corner of the patrol vehicle 7 immediately before Officer Smith-Petersen shot him, possibly diminishing the immediacy 8 of any threat he posed to her safety. As noted, a jury also could find that Officer Smith- 9 Petersen safely could have moved, at least some distance. As to any threat to the public, “a 10 jury could conclude that no one was close enough to [Plaintiff] to be harmed by him before 11 police could intervene.” Glenn v. Washington County, 673 F.3d 864, 874 (9th Cir. 2011). 12 c. Resisting Arrest or Attempting to Escape 13 The third Graham factor asks “whether the suspect was actively resisting arrest or 14 attempting to evade arrest by flight.” Mattos, 661 F.3d at 441. Defendants correctly note 15 that “Plaintiff indisputably failed to heed 20+ officer commands to relinquish and lower 16 his weapon so the deputies could control him.” (MSJ at 10.) In response, Plaintiff cites 17 Hayes v. County of San Diego, in which the Ninth Circuit found no evidence that the 18 decedent, who was holding a knife when an officer shot him, was actively resisting, or 19 attempting to evade, arrest. 736 F.3d 1223, 1233 (9th Cir. 2013). Hayes is distinguishable. 20 Among other things, the decedent in Hayes complied with the only command the officers 21 gave him: to show his hands. Id. at 1228. Here, Plaintiff indisputably refused to comply 22 with the Officer’s commands. Nonetheless, the jury could consider whether Plaintiff’s 23 resistance was “passive” or “active,” a distinction the Ninth Circuit has identified as 24 relevant. See, e.g., Glenn, 673 F.3d at 874–85 (holding that the third Graham factor did not 25 support force used where “the crux of the resistance was the refusal to follow officers’ 26 commands, rather than actively attacking or threatening officers or others”). 27 . . . . 28 . . . . 1 d. Additional Relevant Factors and Summation 2 The parties discuss two additional factors that the Ninth Circuit has considered as 3 relevant: the availability of less intrusive alternatives to the force used; and “whether it 4 should have been apparent to the officers that the person they used force against was 5 emotionally disturbed.” Isayeva, 872 F.3d at 947. (See MSJ at 10–11; Resp. at 9–12.)4 6 As discussed, there are genuine factual disputes as to whether Officer Smith- 7 Petersen safely could have moved, at least some distance, and whether the Officers could 8 have employed less lethal options. The Officers were not constitutionally obligated “to 9 employ the least intrusive means available so long as they act[ed] within a range of 10 reasonable conduct.” Glenn, 673 F.3d at 877–78. However, the jury still could consider the 11 availability of less lethal alternatives—for example, the tasers the Officers carried on their 12 persons—in assessing whether deadly force was justified. See id. Similarly, the jury could 13 consider Plaintiff’s mental or emotional disturbance. Defendants do not seriously dispute 14 this, but maintain that it is not dispositive. (Reply at 8–9.) This point is well taken; “the 15 fact that [Plaintiff] was intent on ‘suicide by cop’ did not mean that the officers had to 16 endanger their own lives.” Lal v. California, 746 F.3d 1112, 1117 (9th Cir. 2014). 17 Unlike in Lal, however, the Court cannot conclude that Officer Smith-Petersen’s 18 use of deadly force was reasonable as a matter of law. See id. at 1115–19. “Because the 19 disputed facts and inferences could support a verdict for either party,” Officer Smith- 20 Petersen is not entitled to summary judgment on this ground. Glenn, 673 F.3d at 878. For 21 Plaintiff to overcome qualified immunity, however, it must have been “clearly established” 22 that Officer Smith-Petersen’s use of force violated Plaintiff’s Fourth Amendment right. 23 2. Whether The Right Was “Clearly Established” 24 A right is clearly established when it is “sufficiently clear that every reasonable 25 official would have understood that what he [or she] is doing violates that right.” Mullenix, 26 577 U.S. at 11. Although the Supreme Court has not required “a case directly on point for

27 4 Defendants do not press the point, but the Ninth Circuit has also considered whether adequate warnings were given, see Isayeva, 872 F.3d at 947, which they indisputably were 28 here. 1 a right to be clearly established, existing precedent must have placed the statutory or 2 constitutional question beyond debate.” Cortesluna, 142 S. Ct. at 8. “This inquiry ‘must be 3 undertaken in light of the specific context of the case, not as a broad general proposition.’” 4 Id. (quoting Brousseau v. Haugen, 543 U.S. 194, 198 (2004)). 5 As noted, the Supreme Court more than three decades ago set forth the standards 6 governing the use of deadly force. See Graham, 490 U.S. at 396; Garner, 471 U.S. at 11. 7 In an “obvious case,” these standards can “clearly establish” that a reasonable officer would 8 have understood that what he or she is doing violates the Fourth Amendment, “even 9 without a body of relevant case law.” Brousseau, 543 U.S. at 199. As the foregoing analysis 10 shows, this is not an obvious case. Thus, to show a violation of clearly established law, 11 Plaintiff must identify a case that put Officer Smith-Petersen on notice that the use of 12 deadly force in these circumstances was unreasonable. See Cortesluna, 142 S. Ct. at 8. 13 Plaintiff identifies several cases he contends provided such notice. (See Resp. at 1–15.) 14 In George v. Morris, the Ninth Circuit held that it was unconstitutional for officers 15 to fatally shoot a terminally ill man who emerged from his home onto his porch with both 16 a walker and a gun. 736 F.3d at 832–33. Most relevant here, it was genuinely disputed in 17 Morris whether the decedent made any “furtive movement, harrowing gesture, or serious 18 verbal threat.” Id. at 838. There, however, the “core” factual dispute was whether the 19 decedent manipulated the gun or pointed it at the officers. See id. at 833 & n.4, 838–39. 20 Here, the crux is not about what movements and gestures Plaintiff made—which are 21 disputed but, to a large extent, evident from the video footage—but whether they would 22 cause a reasonable officer to view him as an immediate threat given his erratic behavior. 23 In Hughes v. Kisela, officers responded to a “check welfare” call regarding a person 24 with a knife who was acting erratically. 862 F.3d 775, 778 (9th Cir. 2016). When officers 25 arrived, they saw a woman carrying a large kitchen knife. Id. When she began to walk 26 toward another woman, the police yelled for her to drop the knife, which she did not do. 27 Id. Unable to get any closer to intervene and prevent the perceived threat to the other 28 woman, an officer shot the woman with the knife. Id. The Ninth Circuit held that, viewing 1 the facts in the light most favorable to the decedent, the record did not support the officer’s 2 perception of an immediate threat to the other woman. Id. at 780. The Ninth Circuit also 3 held that it was clearly established under prior case law that the officer’s conduct was 4 unconstitutional. Id. at 782–85. The Supreme Court reversed the latter holding. 138. S. Ct. 5 1148, 1153–55 (2018). Whether or not the former holding remains good law—which the 6 Supreme Court deemed a “proposition that is not at all evident,” id.—it is distinguishable. 7 Most importantly, Hughes did not involve a perceived threat to the officer’s own safety. 8 The same is true of Glenn v. Washington County. There, officers responded to the 9 scene of a suicidal young man with a knife acting erratically. 673 F.3d at 867. When the 10 officers arrived at the home, the young man was holding the knife to his own throat. Id. at 11 868. After he did not comply with their instructions to drop the knife, an officer shot him 12 with a beanbag shotgun; after he then started moving towards the home, officers fatally 13 shot him with live rounds. Id. at 869. The Ninth Circuit reversed the district court’s grant 14 of summary judgment in favor of the officers, concluding that “the officers’ use of force 15 was not undisputably reasonable.” Id. at 872. There are important distinctions in the 16 circumstances in which Officer Smith-Petersen shot Plaintiff. For one, the officers in Glenn 17 were responding to a domestic disturbance and there was no indication that the decedent 18 previously had threatened another person. See id. at 867, 873. Here, by contrast, dispatch 19 relayed to the Officers that a suspect had tried to rob someone with a knife. They saw 20 Plaintiff with a knife in the parking lot soon after. More importantly, unlike Plaintiff, the 21 decedent in Glenn did not make movements toward the officers. See id. at 869. 22 In Hayes, the Ninth Circuit held that officers used excessive force when they fatally 23 shot a man after encountering him inside his girlfriend’s home with a large knife. 736 F.3d 24 at 1227–28. The officers were responding to a domestic disturbance call in which the 25 decedent’s girlfriend had raised concerns that he was suicidal. Id. at 1227. When officers 26 searched the house, they saw the decedent in a kitchen area and ordered him to show his 27 hands. Id. “While taking one step towards [one of the officers], [the decedent] raised both 28 his hands to approximately shoulder level, revealing a large knife pointed tip down in his 1 right hand.” Id. at 1228. Perceiving a threat, the officer shot him. Id. Applying Graham, 2 the Ninth Circuit considered that there was no evidence that the decedent had committed a 3 crime; the decedent “had followed all orders from the deputies at the time he was shot,”; 4 and he “had not been told to stop, nor had he been given any indication that his actions 5 were perceived as a threat.” Id. at 1233–34. Each of those factors is distinguishable here. 6 The remaining cases cited by Plaintiff are likewise distinguishable. In Vos v. City of 7 Newport Beach, officers fatally shot a man who had been behaving erratically in a 7-Eleven 8 store, including reportedly cutting someone with scissors, when the man charged at the 9 officers with something in his upraised hand. 892 F.3d 1024, 1028–30 (9th Cir. 2018). 10 Unlike here, the officers in Vos already had less-lethal methods ready to employ, including 11 a 40-millimeter less-lethal weapon, a canine unit, and tasers. Id. at 1032–34. In S.B. v. 12 County of San Diego, the Ninth Circuit held that a jury could conclude that officers acted 13 unreasonably when they fatally shot a man who was grabbing a knife from his pocket while 14 on his knees. 864 F.3d 1010, 1011–12 (9th Cir. 2017). Unlike here, the jury in S.B. also 15 could have concluded the officers never ordered the decedent to drop the knife or warned 16 him he was about to be shot. Id. There are many distinctions between this case and Lopez 17 v. Gelhaus, including that the officers there only indisputably gave one command for the 18 decedent—a thirteen-year-old holding a toy gun while walking down the road—to drop his 19 weapon before shooting him. 871 F.3d at 1001. Similarly, in C.V. v. City of Anaheim, the 20 jury could have concluded that the decedent was complying with the officers’ instructions 21 before they fatally shot him. 823 F.3d 1252, 1256 (9th Cir. 2016). Finally, Plaintiff cites 22 cases standing for the proposition that officers may not use deadly force merely because a 23 subject is armed. (See e.g., Resp. at 4 (citing Glenn, 673 F.3d at 872–73), and 14 (citing 24 Curnow v. Ridgecrest Police, 952 F.2d 321, 324–25 (9th Cir. 1991)).) This proposition is 25 too generalized to provide sufficient notice of the bounds of reasonableness here. 26 In sum, while a reasonable jury could conclude that Officer Smith-Petersen’s use of 27 deadly force against Plaintiff was unreasonable, existing law did not place that conclusion 28 1 “beyond debate.” Cortesluna, 142 S. Ct. at 8. Officer Smith-Petersen therefore is entitled 2 to qualified immunity and, thus, summary judgment on Plaintiff’s Section 1983 claim. 3 B. State-Law Claims 4 Defendants move for summary judgment on the remainder of Plaintiff’s state-law 5 claims. (MSJ at 14–20.) There is a threshold question: whether the Court should continue 6 to exercise jurisdiction over Plaintiff’s state-law claims in light of its above ruling 7 disposing of Plaintiff’s federal claim. As noted, Plaintiff initially filed this action in 8 Maricopa County Superior Court. (See Doc. 1, Notice of Removal, ¶ 1.) Defendants 9 thereafter removed the case to this Court, invoking the Court’s jurisdiction under 28 U.S.C. 10 §§ 1331, 1367, 1441, and 1446. (Id. ¶¶ 6–8.) The sole basis for removal asserted by 11 Defendants was this Court’s original jurisdiction under 28 U.S.C. § 1331 over Plaintiff’s 12 federal claim, and its supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff’s 13 state-law claims arising from the same case or controversy. (See id.) In light of the Court’s 14 above ruling, the Court no longer retains federal question jurisdiction. 15 The Court therefore has discretion to decline to exercise jurisdiction over Plaintiff’s 16 remaining state-law laws. See 28 U.S.C. § 1367(c)(3). The Supreme Court has recognized 17 “that in the usual case in which all federal-law claims are eliminated before trial, the 18 balance of factors to be considered under the pendent jurisdiction doctrine—judicial 19 economy, convenience, fairness, and comity—will point toward declining to exercise 20 jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ., 484 U.S. 343, 21 350 n.7 (1988); accord Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997). 22 While the Court is mindful that declining to exercise jurisdiction is often the appropriate 23 course under these circumstances, the Court highlights two particularly important factors 24 informing its decision to do so in this case. First, Plaintiff initially filed this case in state 25 court, to which the case will be remanded, and he therefore will not be prejudiced. 26 Second, the parties here dispute several questions of state law, including a question 27 with respect to which courts in this district have come to apparently orthogonal 28 conclusions: whether the common-law-qualified-immunity doctrine set forth in Spooner v. 1|| City of Phoenix, 435 P.3d 462 (Ariz. Ct. App. 2018), applies to torts other than simple 2|| negligence. See, e.g., Hamberlain v. Arizona, No. CV-18-03624-PHX-DLR, 2021 WL || 2805628, at *5 (D. Ariz. July 6, 2021) (noting that “[t]his District has since construed 4|| Spooner as applying only to cases of simple negligence, as opposed to gross negligence” 5 || and finding no authority extending Spooner to torts of invasion of privacy, conversion, 6 || trespass to chattels, trespass to land, gross negligence, or intentional infliction of emotional distress) (citing Merritt v. Arizona, 425 F. Supp. 3d 1201 (D. Ariz. 2019)); Johari v. City || of Tempe, No. CV-17-00095-PHX-ROS, 2019 WL 4451348, at *8 (D. Ariz. Sept. 17, 2019) 9|| (applying Spooner to malicious prosecution claims); Krause v. County of Mohave, No. CV- 17-08185-PCT-SMB, 2020 WL 2541728, at *16 (D. Ariz. May 19, 2020) (applying 11} common law qualified immunity recognized in Spooner to wrongful death, negligence and battery claims). The principle of comity favors the resolution of these questions by Arizona 13 || courts. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). 14 IT IS THEREFORE ORDERED granting in part Defendants’ Motion for 15 || Summary Judgment (Doc. 52). Defendant Smith-Petersen is entitled to qualified immunity 16]| on Plaintiff's claim under the Fourth Amendment and 42 U.S.C. § 1983 (Count Four). 17 || Count Four therefore is dismissed. The Court declines to exercise supplemental jurisdiction 18 || over Plaintiff's remaining state-law claims (Counts One, Two, and Three) and therefore 19 || remands this case to the Maricopa County Superior Court for resolution of those claims. 20 IT IS FURTHER ORDERED denying Defendants’ Partial Daubert Motion Re: || Roger Clark (Doc. 46) without prejudice to refiling in state court on remand. 22 IT IS FURTHER ORDERED directing the Clerk of the Court to remand this case 23 || to the Maricopa County Superior Court and close this matter. 24 Dated this 23rd day of February, 2023. CN

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