Tucker v. City of Elk Grove

• Court: District Court, E.D. California
• Decided: July 27, 2023
• Docket: 2:20-cv-01620
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LESTER TUCKER, No. 2:20-cv-01620-DAD-KJN 12 Plaintiff, 13 v. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 14 CITY OF ELK GROVE, et al., MOTION FOR SUMMARY JUDGMENT 15 Defendants. (Doc. Nos. 13, 16) 16 17 This matter is before the court on the motion for summary judgment filed on behalf of 18 defendants City of Elk Grove, Elk Grove Police Department, Officer Jason Kenneth Miller, and 19 Officer Musa Fuad Abedrabbo (collectively, “defendants”) on April 6, 2022. (Doc. No. 13.) The 20 pending motion was taken under submission without oral argument by the previously assigned 21 district judge on May 9, 2022.1 (Doc. No. 19.) For the reasons explained below, defendants’ 22 motion for summary judgment will be granted in part and denied in part. 23 BACKGROUND 24 A. Factual Background 25 This case arises from the non-lethal shooting of plaintiff Lester Tucker by two law 26 enforcement officers after plaintiff, who was reportedly armed, ran away from the police during 27

28 1 On August 25, 2022, this case was reassigned to the undersigned. (Doc. No. 23.) 1 their investigation of a possible trailer break-in on the streets of Elk Grove. 2 The facts leading up to the shooting are largely undisputed.2 Shortly after 11:00 p.m. on 3 April 20, 2019, the Elk Grove Police Department received an anonymous call reporting a suspect 4 fitting plaintiff’s description breaking into a parked trailer. (DUF ¶ 1.) It was further reported by 5 the anonymous caller that the individual had concealed a handgun beneath his sweatshirt (DUF 6 ¶ 2) and that he was accompanied by a female (Doc. No. 13-3 at 2). Two officers of the Elk 7 Grove Police Department were dispatched to the scene: defendant Officer Miller and defendant 8 Officer Abedrabbo. (Doc. No. 17-2 at 41.) Defendant Abedrabbo, the assigned backup officer, 9 arrived at the location first. (See Doc. No. 13-8 at 3.) When defendant Abedrabbo arrived on the 10 scene, plaintiff was with another individual, Tessa Marker, and they were standing on the 11 sidewalk with a dog on a leash. (PUDF ¶ 9.) Neither plaintiff nor Ms. Marker was in or touching 12 the trailer. (PUDF ¶ 12.) 13 Detectives from the Elk Grove Police Department interviewed the two defendant officers 14 on April 23, 2019 as part of an investigation into the April 20, 2019 shooting incident. (See Doc. 15 Nos. 13-8; 13-11; 17-2 at 60–66.) At this interview, defendant Abedrabbo mentioned having 16 been surprised to see that plaintiff and Ms. Marker were still at the scene, stating, “[W]hen you 17 get a call for this . . . usually they’re not there especially this kind associated with the call where 18 there’s a possible, um, crime.” (Doc. No. 17-2 at 60.) Similarly, defendant Miller stated in his 19 interview that he was surprised when defendant Abedrabbo had radioed that the subjects were still 20 on the scene: “I wasn’t really expecting them to be on scene just because if they’re breaking into 21 trailer . . . they . . . usually break in a trailer and they’d leave.” (Doc. No. 13-8 at 3.) Defendant 22 Miller stated that when he learned that the subjects were still present, he hurried to the scene in 23

24 2 In their statements of undisputed and disputed facts, the parties have omitted several important facts which are necessary to fully understand what occurred during the incident giving rise to this 25 lawsuit. Thus, in addition to deriving the facts from the undisputed facts as stated by defendants and responded to by plaintiff (Doc. No. 22-1 at 2–11 (“DUF”)) and the undisputed and disputed 26 facts as stated by plaintiff and responded to by defendants (id. at 11–19 (“PUDF”)), the court 27 provides the following factual background based on the exhibits filed in support of defendants’ motion for summary judgment and plaintiff’s opposition thereto. (Doc. Nos. 13-2, 13-3, 13-4, 13- 28 5, 13-6, 13-7, 13-8, 13-9, 13-10, 13-11, 13-12, 17-2). 1 order to provide backup to defendant Abedrabbo because the anonymous caller had reported 2 seeing the suspect with a weapon. (Id.) 3 Many of the events that occurred during the incident were captured to some extent on 4 defendant Abedrabbo’s body-worn camera (Doc. No. 13-4, “VA”), defendant Miller’s body-worn 5 camera (Doc. No. 13-5, “VM”), and the in-car camera recording from defendant Miller’s vehicle 6 (Doc. No. 13-6, “VC”). Defendant Abedrabbo’s body-worn camera recorded his interaction with 7 plaintiff, with audio, though not all of that video footage is clear. Nonetheless, the footage does 8 show that defendant Abedrabbo informed plaintiff and Ms. Marker that there had been a report of 9 an individual tampering with the trailer which was parked next to them. (VA at 00:45–00:48.) 10 Plaintiff explained that he was checking on the trailer for a friend. (VA at 00:49–00:52.) 11 Defendant Abedrabbo then requested identification from plaintiff and Ms. Marker, to which 12 plaintiff replied that they had not done anything wrong. (VA at 1:04–1:08.) Defendant 13 Abedrabbo instructed plaintiff not to put his hands in his pockets and told plaintiff that the 911 14 caller mentioned seeing the suspect with a gun. (VA at 1:15–1:21.) Plaintiff replied that nobody 15 had a gun. (VA at 1:20–1:23.) Defendant Abedrabbo then requested that plaintiff and Ms. 16 Marker take a seat on the curb, and they complied. (VA at 1:29–1:34.) Approximately sixteen 17 seconds later, plaintiff stood up, kissed Ms. Marker’s forehead, and started running in the 18 opposite direction from Officer Abedrabbo. (VA at 1:50–1:53.) As plaintiff was standing up, 19 defendant Abedrabbo had told him to “have a seat” three times; plaintiff did not comply with that 20 instruction. (VA at 1:50–1:52.) 21 The parties agree that plaintiff, a convicted felon, ran away because he did in fact have a 22 loaded handgun in his possession at that time and he knew that he could go back to prison 23 because he was a convicted felon in possession of a firearm. (DUF at ¶ 5.) Before plaintiff ran, 24 defendant Abedrabbo did not observe any illegal, threatening, or suspicious behavior on 25 plaintiff’s part. (PUDF ¶ 11.) Nor did defendant Abedrabbo observe any firearm. (PUDF ¶ 13.) 26 Defendant Abedrabbo chased after plaintiff on foot and radioed in, “I got one running.” 27 (VA at 1:54–1:57.) While chasing plaintiff, defendant Abedrabbo repeatedly yelled, “Get on the 28 ground.” (VA at 2:00–2:26.) Plaintiff testified at his deposition that he never heard defendant 1 Abedrabbo yelling to “stop” or “get on the ground” because he was too far away from him to hear 2 anything. (Doc. No. 17-2 at 53.) 3 According to defendant Miller, he pulled up to the scene just before plaintiff fled. (Doc. 4 No. 13-8 at 3.) As soon as plaintiff started running, defendant Miller pursued him in his vehicle. 5 (Id.) About one minute into defendant Abedrabbo’s foot chase, in an attempt to overtake 6 plaintiff, defendant Miller drove past defendant Abedrabbo, who was still chasing plaintiff on 7 foot. (DUF ¶ 8.) Defendant Miller said at his interview that when he drove past defendant 8 Abedrabbo, he had a clear view of plaintiff running “with one arm moving in a running motion 9 and the other arm kind of pinned against his body.” (Doc. No. 13-8 at 3.) However, according to 10 plaintiff, both of his arms were swinging back and forth in the typical fashion when one runs. 11 (Doc. No. 17-2 at 6.) 12 Defendant Miller turned his police vehicle to his right, and the front of the vehicle briefly 13 collided with plaintiff. (DUF ¶ 11.) In their statement of undisputed facts, defendants state, “Just 14 prior to the collision, Officer Miller could see Tucker grabbing a dark object (gun) from under his 15 hoodie.” (DUF ¶ 12.) To support this assertion, defendants cite to screenshot 00914 from the in- 16 car camera footage (id.) (citing Doc. No. 13-9 at 1), which depicts the moment defendant Miller 17 struck plaintiff with his vehicle. (Compare Doc. No. 13-9 at 1 with VC at 00:31–00:32.)3 18 However, screenshot 00914 merely depicts a black blur in plaintiff’s left hand; it certainly does 19 not show the object in plaintiff’s hand to be a gun. (See Doc. No. 13-9 at 1.) Indeed, when 20 viewing the in-car camera recording footage itself, as opposed to merely the screenshot, the court 21 notes that the black object in plaintiff’s left hand actually appears to have a floppy, cloth-like 22 form, as opposed to any sort of rigid, solid shape. (VC at 00:31–00:32.)4 In his declaration, 23 plaintiff states that the item in his left hand was a black balaclava (Doc. No. 17-2 at 7), a cloth 24 3 In support of this purported fact, defendants also cite to Miller’s interview at page 002508, 25 which is supposedly included in exhibit 6 of defense counsel Bruce Praet’s declaration. (DUF ¶ 12) (citing Doc. No. 13-8). However, defendants did not include a page 002508 in their exhibit 6. 26 (See generally, Doc. No. 13-8.) 27 4 The video footage also shows that defendant Miller had observed plaintiff’s hand for only one 28 or two seconds. (See VC at 00:31–00:32.) 1 headgear which only exposes a part of the face.5 According to plaintiff’s declaration, the collision 2 with the police vehicle also caused him to drop his balaclava, leaving his left hand empty when he 3 stood up. (Doc. No. 17-2 at 6.) 4 At his deposition, plaintiff testified that being struck by the police vehicle caused him to 5 fall onto his back and butt, resulting in him suffering injuries. (Id. at 55.) Plaintiff testified that 6 after being hit by the police vehicle, he stood up in preparation to flee because he feared being 7 arrested as a convicted felon in possession of a firearm. (Id. at 55, 56.) He also testified that after 8 he stood up but before he could run, the officer who drove the vehicle that hit him got out, ran to 9 the back of the vehicle, and then rushed toward plaintiff, firing shots at him. (Id. at 56.) 10 Defendant Miller’s body-worn camera shows him exiting his vehicle from the driver’s 11 seat door and moving toward the back of his vehicle. (VM at 5:31–5:33.) Approximately two 12 seconds after defendant Miller exited the vehicle, just as he was rounding the driver’s-side back 13 corner of the vehicle, he shot plaintiff, who was standing next to the passenger side of the vehicle. 14 (Id.) At that point, defendant Abedrabbo had just caught up to plaintiff, and plaintiff was facing 15 away from defendant Abedrabbo and towards defendant Miller. (VA at 2:23-2:27.) Defendant 16 Abedrabbo likewise shot plaintiff. (id.; DUF ¶ 15.) 17 The parties purport to dispute a key fact: whether plaintiff reached for his waistband or 18 sweatshirt pocket immediately before being shot. Plaintiff testified at his deposition and stated in 19 his declaration that at no time did he reach for his waistband or gun. (Doc. No. 17-2 at 6, 57.) 20 Defendants, on the other hand, assert in their statement of undisputed facts that the defendant 21 officers saw plaintiff reach for his waistband. First, defendants assert: “As Officer Miller exited 22 his police vehicle, Tucker reached for his waistband and Miller fired.” (DUF ¶ 14.) Because of 23 the grainy nature of the video footage and screenshots that defendants cite in support of this 24 asserted fact, the court cannot find that the evidence substantiates defendants’ assertion that 25 plaintiff was reaching for his waistband. (See VM at 5:34; VA at 2:26; Doc. No. 13-10.) Next, 26

27 5 Defendant Abedrabbo’s body-camera footage does show that when he was first talking with plaintiff and Ms. Marker, plaintiff was carrying a cell phone in his right hand and a dark cloth-like 28 item in his left hand. (VA at 1:17.) 1 defendants assert: “Seeing Tucker reach for his waistband and hearing a gunshot, Officer 2 Abedabbo [sic] fired.” (DUF ¶ 15.) Defendants cite page 002494 of defendant Abedrabbo’s 3 interview transcript to support this asserted fact. (Id.) (citing Doc. No. 13-11.) Yet, nowhere on 4 that page of the transcript does defendant Abedrabbo state that he saw plaintiff reaching for his 5 waistband or that he heard a gunshot. (See Doc. No. 13-11 at 3.) 6 Another officer, Officer Cristina Gonzalez, arrived on scene shortly after the defendant 7 officers shot plaintiff. (See Doc. No. 17-2 at 41.) According to her incident report, plaintiff was 8 laying on the ground where defendant Miller had him at gun point when Officer Gonzalez 9 handcuffed plaintiff and located a small automatic handgun tucked under plaintiff’s shirt and 10 sweatshirt on his right side. (Id.) On June 9, 2020, after an internal administrative investigation, 11 Lieutenant Ryan Elmore at the Elk Grove Police Department exonerated both officers with 12 respect to the shooting in accordance with police department policy. (Id. at 68–69.) 13 B. Procedural Background 14 On August 12, 2020, plaintiff filed the complaint initiating this civil action against 15 defendants. (Doc. No. 1.) In his complaint, plaintiff asserts a constitutional claim under 42 16 U.S.C. § 1983 against all defendants for allegedly violating his rights under the Fourth 17 Amendment by unlawfully seizing him. (Id. at 5.) In addition, plaintiff brings the following state 18 law claims against all defendants: (1) violation of Article I § 13 of the California Constitution; 19 (2) violation of California Civil Code § 43; (3) violation of the Bane Act, California Civil Code § 20 52.1; (4) negligence; and (5) battery. (Id. at 6.) 21 On April 6, 2022, defendants filed the pending motion seeking summary judgment in their 22 favor as to all of plaintiff’s claims. (Doc. No. 13.) Specifically, as to plaintiff’s § 1983 claim 23 against the defendant officers, defendants argue that they did not violate plaintiff’s constitutional 24 rights, and that even if they did, they are entitled to qualified immunity. (Id. at 13–18.) As to 25 plaintiff’s other claims, defendants argue that they are entitled to summary judgment because 26 plaintiff has failed to come forward with evidence establishing the requisite elements of those 27 claims. (See id. at 18–23.) On April 29, 2022, plaintiff filed an opposition to the pending motion, 28 ///// 1 and on June 13, 2022, defendants filed their reply thereto. (Doc. Nos. 17, 22.)6 2 LEGAL STANDARD 3 Summary judgment is appropriate when the moving party “shows that there is no genuine 4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 5 Civ. P. 56(a). 6 In summary judgment practice, the moving party “initially bears the burden of proving the 7 absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 8 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party 9 may accomplish this by “citing to particular parts of materials in the record, including 10 depositions, documents, electronically stored information, affidavits or declarations, stipulations 11 (including those made for purposes of the motion only), admissions, interrogatory answers, or 12 other materials,” or by showing that such materials “do not establish the absence or presence of a 13 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 14 Fed. R. Civ. P. 56(c)(1)(A), (B). 15 Where the party moving for summary judgment will bear the burden of proof at trial, as is 16 the case here with respect to defendants’ affirmative defense of qualified immunity, that party 17 must come forward with evidence that would entitle it to a directed verdict if the evidence were 18 uncontroverted at trial. Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992); see also 19 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Where the moving party 20 will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that 21 no reasonable trier of fact could find other than for the moving party.”) 22 When the non-moving party bears the burden of proof at trial, “the moving party need 23 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 24 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 25 Indeed, after adequate time for discovery and upon motion, summary judgment should be entered 26 6 With his opposition to the pending motion for summary judgment, plaintiff filed a separate 27 “motion to strike” (Doc. No. 16), which is not procedurally proper, and in any event consists of objections to certain of defendants’ evidence. Therefore, the court will construe that motion as 28 plaintiff’s objections to defendants’ evidence and will address those objections in this order. 1 against a party who fails to make a showing sufficient to establish the existence of an element 2 essential to that party’s case, and on which that party will bear the burden of proof at trial. See 3 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the 4 nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322–23. In such a 5 circumstance, summary judgment should be granted, “so long as whatever is before the district 6 court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Id. at 7 323. 8 If the moving party meets its initial responsibility, the burden then shifts to the opposing 9 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 10 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 11 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 12 of its pleadings but is required to tender evidence of specific facts in the form of affidavits or 13 admissible discovery material in support of its contention that the dispute exists. See Fed. R. Civ. 14 P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 15 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for 16 summary judgment.”). The opposing party must demonstrate that the fact in contention is 17 material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the 18 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the 19 non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986). 20 In the endeavor to establish the existence of a factual dispute, the opposing party need not 21 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 22 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 23 trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 24 Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in 25 order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations 26 omitted). 27 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 28 court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. 1 Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party’s 2 obligation to produce a factual predicate from which the inference may be drawn. See Richards v. 3 Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 4 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 5 simply show that there is some metaphysical doubt as to the material facts. . . . Where the record 6 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 7 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 586–87 (citations omitted). 8 ANALYSIS 9 A. Plaintiff’s Objections to Defendants’ Evidence 10 In connection with his opposition to the pending motion for summary judgment, plaintiff 11 filed objections to certain evidence presented by defendants. (Doc. No. 16.) Specifically, 12 plaintiff objects to the excerpts of transcripts of audio-recorded interviews of defendant Officer 13 Miller (Doc. No. 13-8) and defendant Officer Abedrabbo (Doc. No. 13-11), which are included as 14 exhibits 6 and 9 to defense counsel’s declaration (Doc. No. 13-2). (Doc. No. 16 at 3.) 15 First, plaintiff objects to the transcript excerpts on the ground that they have not yet been 16 properly authenticated and because the “best evidence” of what the officers said in their audio- 17 recorded interviews are the audio recordings themselves. (Doc. No. 16 at 3–4.) At summary 18 judgment, evidence must be authenticated by affidavits or declarations of persons with personal 19 knowledge through whom they could be introduced at trial. Zoslaw v. MCA Distrib. Corp., 693 20 F.2d 870, 883 (9th Cir. 1982). Moreover, “[a] district court may consider inadmissible evidence 21 as long as the evidence could be presented in an admissible form at trial.” Fraser v. Goodale, 342 22 F.3d 1032, 1036–37 (9th Cir. 2003); see also Sandoval v. Cnty. of San Diego, 985 F.3d 657, 666 23 (9th Cir. 2021). Specifically, here, plaintiff argues that defendants’ attorney’s declaration that the 24 transcripts were “true and accurate” copies did not properly authenticate the transcripts because 25 defense counsel lacks the personal knowledge necessary to do so. (Doc. No. 16 at 4) (citing Orr, 26 285 F.3d at 776–77). Plaintiff does not dispute the authenticity of either transcript; he merely 27 contends that defense counsel did not sufficiently authenticate them. Notably, plaintiff relies on 28 ///// 1 many of the same interview transcript excerpts as evidence in support of his opposition to the 2 motion for summary judgment. (See Doc. No. 17-2 at 60–66.) 3 Nevertheless, in connection with their opposition to plaintiff’s evidentiary objections, 4 defendants cured any arguable defect by submitting: (1) defendant Miller’s declaration that, 5 based on his personal knowledge, exhibit 6 is an accurate transcript of his interview (Doc. No. 18- 6 1); and (2) defendant Abedrabbo’s declaration that, based on his personal knowledge, exhibit 9 is 7 an accurate transcript of his interview (Doc. No. 18-2). This is evidence “sufficient to support a 8 finding that the item is what the proponent claims it is.” See Fed. R. Evid. 901(a). Furthermore, 9 both plaintiff’s authentication and best evidence objections are unavailing because the facts 10 underlying the transcript excerpts could be presented in an admissible form at trial through 11 defendants’ live testimony and can thus be considered by the court on summary judgment. See 12 Fraser, 342 F.3d at 1037; see also Hughes v. United States, 953 F.2d 531, 543 (9th Cir. 1992) 13 (holding that an affidavit could be considered on summary judgment, despite hearsay and best 14 evidence rule objections, because the underlying facts of the affidavit would be admissible at 15 trial); Hodges v. Hertz Corp., 351 F. Supp. 3d 1227, 1232 (N.D. Cal. 2018) (“[D]istrict courts in 16 this circuit have routinely overruled authentication and hearsay challenges at the summary stage 17 where the evidence could be presented in an admissible form at trial, following Fraser.”).7 18

19 7 Some courts have concluded that this relaxed standard under Fraser applies only to the non- moving party. See, e.g., Cook v. Lee, No. 17-cv-02569-PHX-DGC, 2019 WL 2525373, at *3 n.3 20 (D. Ariz. June 19, 2019) (“[T]his focus on the content over the form of evidence at the summary judgment stage applies to the nonmovant[.]”); United States v. Pac. Health Corp., No. 12-cv- 21 00960-RSWL-AJW, 2018 WL 1026361, at *6 n.5 (C.D. Cal. Feb. 20, 2018) (“Exhibits offered ‘in a form not admissible in evidence may be used to avoid, but not to obtain summary judgment.’”) 22 (citations omitted). However, the Ninth Circuit has itself applied the Fraser principle to allow 23 consideration of inadmissible evidence submitted by the moving party at summary judgment so long as that evidence can ultimately be presented in an admissible form at trial. See Jeffries v. 24 Las Vegas Metro. Police Dep’t, 713 Fed. App’x 549, 550 (9th Cir. 2017) (holding the district court did not err in considering the moving party’s exhibits, stating that “a district court may 25 consider inadmissible evidence as long as the evidence could be presented in an admissible form at trial”) (citing Fraser 342 F.3d at 1036–37). The court finds Jeffries to be persuasive authority 26 that the Fraser standard applies to both the moving and the non-moving party. See 713 Fed. 27 App’x at 550; see also Enriquez v. Gemini Motor Transp. LP, No. 19-cv-04759-PHX-GMS, 2021 WL 5908208, at *2–3 (D. Ariz. Dec. 14, 2021) (concluding that Fraser applies to a moving 28 party’s evidentiary submissions on summary judgment). 1 Second, plaintiff objects to the transcripts of defendants’ interviews on the grounds that 2 they constitute hearsay. (Doc. No. 16 at 5.) Plaintiff argues that the transcripts constitute two 3 levels of hearsay, the first being that “[d]efendants proffer their own self-serving unsworn 4 statements made outside of court to prove the officers’ version of what supposedly occurred,” and 5 the second being that “the transcript excerpts purport to represent, for the truth of the matter 6 asserted therein, the actual contents of the officers’ audio recorded interviews.” (Doc. No. 16 at 7 5.) The court finds that the defendant officers’ statements are not inadmissible hearsay with 8 regard to their contents because the defendant officers could testify as witnesses at trial. See 9 Cherewick, 578 F. Supp. 3d at 1157 (“[A]s long as a court finds that hearsay evidence could be 10 presented in an admissible form at trial . . . , it may consider the evidence when ruling on the 11 motion for summary judgment.”). 12 Because the court concludes that the officers’ interview statements can be presented in an 13 admissible form at trial, i.e., by their live testimony, the court may consider the contents of the 14 interview transcripts in addressing the pending summary judgment motion. See Fraser, 342 F.3d 15 at 1037; see also Sandoval, 985 F.3d at 666 (“If the contents of a document can be presented in a 16 form that would be admissible at trial—for example, through live testimony by the author of the 17 document—the mere fact that the document itself might be excludable hearsay provides no basis 18 for refusing to consider it on summary judgment.”). Accordingly, plaintiff’s objections to 19 defendants’ evidence will be overruled. 20 B. Defendants’ Motion for Summary Judgment on Plaintiff’s Claims 21 1. Fourth Amendment Excessive Use of Force Claim: Individual Liability 22 Defendants move for summary judgment in their favor as to plaintiff’s 42 U.S.C. § 1983 23 excessive use of force claim, in which plaintiff alleges that defendants violated the Fourth 24 Amendment by shooting him. (Doc. No. 13 at 13–18.) Defendants so move on two grounds. 25 (See id.) First, defendants contend that under the undisputed evidence on summary judgment, the 26 defendant officers’ use of force was “objectively reasonable under the circumstances,” and thus 27 plaintiff cannot establish the requisite use of unreasonable force. (Id. at 13.) Second, defendants 28 argue that they are entitled to judgment in their favor on qualified immunity grounds. (Id. at 15.) 1 Because defendants’ argument that the defendant officers’ conduct was “objectively reasonable” 2 (id. at 13) is part of the qualified immunity analysis, the court will not address it separately. 3 Under § 1983, a private right of action exists against anyone who, “under color of” state 4 law, causes a person to be subjected “to the deprivation of any rights, privileges, or immunities 5 secured by the Constitution and laws . . . .” 42 U.S.C. § 1983. “Section 1983 does not create 6 substantive rights; it merely serves as the procedural device for enforcing substantive provisions 7 of the Constitution and federal statutes.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) 8 (citing Chapman v. Hous. Welfare Rights Org., 441 U.S. 600, 617 (1979)). State officials are 9 entitled to qualified immunity from a § 1983 suit unless “(1) they violated a federal statutory or 10 constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the 11 time.’” District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 589 (2018) (quoting 12 Reichle v. Howards, 566 U.S. 658, 664 (2012)). 13 Here, “[b]ecause the moving defendant bears the burden of proof on the issue of qualified 14 immunity, he or she must produce sufficient evidence to require the plaintiff to go beyond his or 15 her pleadings. The defendant’s burden is to demonstrate the absence of a genuine issue of 16 material fact.” Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005) (internal citation omitted). 17 a. Step One: Whether a Constitutional Right Was Violated 18 Under the Fourth Amendment, “[t]he right of the people to be secure in their persons, 19 houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 20 no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. “The Fourth 21 Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those 22 which are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citations omitted); see 23 also United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997) (“For purposes of the 24 Fourth Amendment, a seizure occurs when a law enforcement officer, by means of physical force 25 or show of authority, in some way restrains the liberty of a citizen.”). 26 Plaintiff’s § 1983 claim for the excessive use of force in violation of the Fourth 27 Amendment is governed by an “objective reasonableness standard.” Graham v. Connor, 490 U.S. 28 386, 388 (1989) (internal quotation marks omitted). This standard requires a “careful balancing 1 of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against 2 the countervailing governmental interests at stake.” Id. at 396 (quoting Tennessee v. Garner, 471 3 U.S. 1, 8 (1985)). The calculus “must embody allowance for the fact that police officers are often 4 forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly 5 evolving—about the amount of force that is necessary in a particular situation.” Id. at 396–97. 6 Reasonableness in this context is to be judged “from the perspective of a reasonable officer on the 7 scene, rather than with the 20/20 vision of hindsight.” Id. at 396. 8 “[T]he reasonableness of force used is ordinarily a question of fact for the jury.” Liston v. 9 Cnty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997), as amended (Oct. 9, 1997). Indeed, 10 the Ninth Circuit has repeatedly recognized that “summary judgment should be granted sparingly 11 in excessive force cases.” Gonzalez, 747 F.3d at 795; see also Seidner v. de Vries, 39 F.4th 591, 12 601 (9th Cir. 2022); Estate of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017); 13 C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016); Green v. City of 14 San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014); Avina v. United States, 681 F.3d 1127, 1130 15 (9th Cir. 2012) (citation omitted); Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (“Because 16 such balancing nearly always requires a jury to sift through disputed factual contentions, and to 17 draw inferences therefrom, we have held on many occasions that summary judgment or judgment 18 as a matter of law in excessive force cases should be granted sparingly.”). Thus, while it is true 19 that officers “are often forced to make split-second judgments,” “it is equally true that even where 20 some force is justified, the amount actually used may be excessive.” Santos, 287 F.3d at 853 21 (citations omitted). In the final analysis, “[f]orce is excessive when it is greater than is reasonable 22 under the circumstances.” Id. at 854 (citing Graham, 490 U.S. at 395). 23 Here, on one side of the balancing scale, the “nature and quality of the intrusion” were the 24 most intrusive possible: the defendant officers used deadly force in shooting plaintiff. See 25 Seidner, 39 F.4th at 596 (quoting Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 2005)) 26 (“Some uses of force can be quantified categorically. The best example is shooting a firearm, 27 which by definition is ‘deadly force’: force that ‘creates a substantial risk of causing death or 28 serious bodily injury.’”). 1 On the other side of the scale is the countervailing governmental interests at stake. In 2 Graham, the Supreme Court listed several factors to be considered in determining the 3 government’s interest in the force it used: (1) “the severity of the crime at issue,” (2) “whether 4 the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether [the 5 suspect] is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396. The 6 threat element is the most important consideration, and “[a]n officer’s use of deadly force is 7 reasonable only if ‘the officer has probable cause to believe that the suspect poses a significant 8 threat of death or serious physical injury to the officer or others.’” Gonzalez v. City of Anaheim, 9 747 F.3d 789, 793 (9th Cir. 2014) (quoting Garner, 471 U.S. at 3); see also S.R. Nehad v. 10 Browder, 929 F.3d 1125, 1132–33 (9th Cir. 2019). The question on summary judgment “is 11 whether a reasonable jury would necessarily find that [the officer] perceived an immediate threat 12 of death or serious physical injury at the time he shot” the plaintiff. Gonzalez, 747 F.3d at 794. 13 Here, defendants argue that the available evidence on summary judgment could lead a reasonable 14 jury to only one conclusion: the officers reasonably perceived that plaintiff posed an immediate 15 threat to their life and safety. (Doc. No. 13 at 14–15.) 16 In assessing the governmental interests at stake to determine whether they justify the use 17 of deadly force, the court begins with the “most important” Graham factor: whether plaintiff 18 posed a threat to the officers or the public. See Gonzalez, 747 F.3d at 793. The court will analyze 19 this factor as to each defendant officer in turn. Because the court finds consideration of this factor 20 dispositive on summary judgment, the court will not address the other Graham factors, nor 21 complete the balancing test prescribed by Graham. 22 i. Defendant Abedrabbo 23 Defendants argue that defendant Abedrabbo shot plaintiff because he reached for his 24 waistband, contending that an officer may use deadly force against a person who is armed, or 25 reasonably suspected of being armed, when he reaches for his waistband. (Doc. No. 13 at 14.) 26 The case law supports defendants’ statement of the law. For instance, the Ninth Circuit has held 27 that “[i]t would be unquestionably reasonable for police to shoot a suspect in [plaintiff’s] position 28 if he reaches for a gun in his waistband, or even if he reaches there for some other reason.” Cruz 1 v. City of Anaheim, 765 F.3d 1076, 1078 (9th Cir. 2014). But to accept defendants’ contention 2 that defendant Abedrabbo’s actions were objectively reasonable as a matter of law, the court 3 would have to find that under the undisputed evidence, defendant Abedrabbo reasonably believed 4 that plaintiff was reaching for his waistband. However, there is simply no evidence before the 5 court on summary judgment to support such a finding. 6 The only evidence that defendants have cited in support of their assertion that “[s]eeing 7 Tucker reach for his waistband and hearing a gunshot, Officer Abedabbo [sic] fired” was 8 defendant Abedrabbo’s interview at page 002494. (DUF ¶ 15.) But, as discussed above, page 9 002494 of the interview does not support this assertion whatsoever. Of course, it is possible that 10 the assertion might find some support elsewhere in the evidence submitted on summary judgment. 11 However, courts are not required to scour the summary judgment record to piece together the 12 facts of the case. As has often been recognized, “[j]udges are not like pigs, hunting for truffles 13 buried” in the record. Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (quoting United 14 States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)); see also Keenan v. Allan, 91 F.3d 1275, 15 1279 (9th Cir. 1996) (noting that “[i]t is not our task, or that of the district court, to scour the 16 record in search of a genuine issue of triable fact”) (citation omitted). As the moving party 17 bearing the burden of proof, defendants have simply failed to establish that it is undisputed that 18 defendant Abedrabbo reasonably believed that plaintiff was reaching for his waistband. 19 Nor does the body-worn camera footage evidence before the court support defendants’ 20 purported fact that defendant Abedrabbo reasonably believed he saw plaintiff reaching for his 21 waistband. Defendant Abedrabbo’s body-worn camera footage shows that when defendant 22 Abedrabbo shot plaintiff, he had only just caught up to him and plaintiff was facing away from 23 Abedrabbo such that plaintiff’s hand movements were not clearly visible to the officer. Again, 24 defendants therefore have not established the absence of a genuine dispute of material fact as to 25 whether defendant Abedrabbo reasonably believed that plaintiff reached for his waistband or 26 made any other furtive movements suggesting that he posed an imminent threat to the safety of 27 the officers or others. 28 ///// 1 In its decision in Cruz, the Ninth Circuit made clear that an officer may shoot a suspect 2 reaching for his waistband, but the court also went on to observe that “if the suspect doesn’t reach 3 for his waistband or make some similar threatening gesture, it would clearly be unreasonable for 4 the officers to shoot him[.]” 765 F.3d at 1078–79; see also Peck v. Montoya, 51 F.4th 877, 887– 5 88 (9th Cir. 2022) (acknowledging that officers may not “kill suspects who do not pose an 6 immediate threat to their safety or to the safety of others simply because they are armed” and 7 noting that “[w]e have repeatedly distinguished between a suspect who is actively reaching for a 8 weapon and a suspect who is armed but not reaching for the weapon.”) (citations omitted). There 9 is a lack of evidence presented by defendants, and it is coupled with defendants’ failure to cite 10 evidence that actually supports their version of the undisputed facts. In short, the evidence before 11 the court on summary judgment does not establish that defendant Abedrabbo had “probable cause 12 to believe that [plaintiff] pose[d] a significant threat of death or serious physical injury to the 13 officer or others.” Gonzalez, 747 F.3d at 793. Rather, the question of whether defendant 14 Abedrabbo saw what he believed to be plaintiff reaching for his waistband is a disputed material 15 fact. Thus, the court cannot determine as a matter of law, based on the evidence before it on 16 summary judgment, that defendant Abedrabbo’s use of force was reasonable or that he is entitled 17 to qualified immunity on that basis. 18 ii. Defendant Miller 19 Here too, the court will begin with the “immediate threat” inquiry. Critically, there is also 20 a genuine dispute of material fact regarding whether plaintiff was reaching for his waistband 21 immediately before he was shot, thus precluding the granting of summary judgment in favor of 22 defendant Miller. 23 Defendants point to video footage evidence in support of their assertion that defendant 24 Miller shot plaintiff because he saw plaintiff reach for his waistband. However, as discussed 25 above, because of the grainy nature of the videos and screenshots that defendants have cited in 26 support of this asserted fact, it is impossible to determine from that evidence whether plaintiff was 27 reaching for his waistband. Plaintiff testified and stated in his declaration that he did not reach for 28 his waistband or gun at any time before he was shot by police. In determining whether defendant 1 Miller is entitled to summary judgment on qualified immunity grounds, the court must credit 2 plaintiff’s deposition testimony and declaration that he did not reach for his waistband because 3 plaintiff’s version of the events is certainly not “blatantly contradicted by the record.” See Gomez 4 v. Fachko, No. 19-cv-05266-LHK, 2021 WL 1721067, at *9 (N.D. Cal. Apr. 30, 2021) (“In 5 weighing whether an officer is entitled to qualified immunity at summary judgment, the Court 6 ‘must construe the facts in the light most favorable to the plaintiff.’ Specifically, as the Ninth 7 Circuit has explained, the Court must credit plaintiff’s version of events unless it is ‘blatantly 8 contradicted by the record, so that no reasonable jury could believe it.’”) (quoting Orn v. City of 9 Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020)). 10 Furthermore, in their statement of undisputed facts, defendants assert that just prior to 11 defendant Miller’s vehicle colliding with plaintiff, defendant Miller could see plaintiff grabbing a 12 dark object from under his sweatshirt, citing the in-car camera footage evidence. (DUF ¶ 12) 13 (citing Doc No. 13-9 at 1). However, while the video footage itself captures a fleeting glimpse of 14 what the court perceives as a dark cloth-like item in plaintiff’s hand, the video clip itself is 15 extremely brief and quite difficult to discern. Notably, plaintiff states in his declaration that the 16 dark object seen in that footage was a black balaclava, which he dropped when he was struck by 17 defendant Miller’s vehicle. (Doc. No. 17-2 at 7.) Viewing this evidence in the light most 18 favorable to plaintiff, a reasonable jury could certainly conclude from this evidence that it was 19 unreasonable for defendant Miller to believe that plaintiff posed an immediate threat to the safety 20 of the defendant officers or others when he shot him. See Est. of Diaz v. City of Anaheim, No. 12- 21 cv-01897-JVS-RNB, 2013 WL 12207504, at *5 (C.D. Cal. Dec. 18, 2013) (“[I]f Diaz did not 22 have an object resembling a gun in his hand, if he discarded the object before Officer Bennallack 23 shot . . . a reasonable jury could find no immediate threat to the Officers’ safety existed.”). 24 Confusingly, despite citing to evidence of plaintiff holding a dark object in his hand and 25 asserting in a parenthetical that the object was a “(gun),” defendants do not argue in their pending 26 motion for summary judgment that defendant Miller witnessed the presence of a dark item in 27 plaintiff’s hands at the time he actually fired his weapon, or that that was the reason he shot at 28 ///// 1 plaintiff.8 Instead, they argue that defendant Miller saw plaintiff reaching for a weapon at his 2 waistband, and that is why he shot plaintiff. (Doc. No. 13 at 14.) Either way, there remains a 3 genuine dispute of material fact on the question of whether defendant Miller reasonably believed 4 he saw plaintiff reaching for his waistband. This critical dispute—which is the crux of 5 defendants’ contention that defendant Miller’s use of force was objectively reasonable—precludes 6 the granting of summary judgment in defendant Miller’s favor on qualified immunity grounds. 7 See Cruz, 765 F.3d at 1079–80 (holding that summary judgment in the defendant officers’ favor 8 was precluded by disputed factual issues regarding whether the suspect—a known gang member 9 whom officers had been told was carrying a gun in his waistband—had reached for his waistband 10 just before being shot, despite officers’ testimony that the suspect had reached for his waistband). 11 In sum, viewing the evidence in the light most favorable to plaintiff, as the court must do 12 at this stage of the case, defendant Miller has not established that his use of force was objectively 13 reasonable such that he is entitled to qualified immunity.9 14 b. Step Two: Whether the Constitutional Right Was Clearly Established 15 Even if a reasonable jury could find that the defendant officers violated plaintiff’s Fourth 16 Amendment right against the use of excessive force, the officers would be entitled to judgment in 17 their favor on qualified immunity grounds if the right was not clearly established at the time of the 18

19 8 Nor does it seem could defendants make such an argument in light of the evidence that after plaintiff was shot by defendants and was laying on the ground being held at gun point by 20 defendant Miller, Officer Gonzalez handcuffed plaintiff and located a small automatic handgun still tucked in the right side of plaintiff’s waistband under his shirt and sweatshirt. (Doc. No. 17-2 21 at 41.)

22 9 Because there is a genuine dispute of material fact precluding the court from resolving this 23 factor on summary judgment, the court need not consider the remaining Graham factors, nor can the court complete the balancing test required under Graham. See, e.g., Goodlow v. City of El 24 Cajon, No. 13-cv-01524-DMS-NLS, 2015 WL 11251804, at *3 (S.D. Cal. Jan. 20, 2015) (denying summary judgment in the defendants’ favor as to the plaintiff’s excessive use of force 25 claim, finding that there was a genuine dispute of fact regarding whether the plaintiff reached his hands toward his waistband); Sommers v. City of Santa Clara, 516 F. Supp. 3d 967, 981–83 (N.D. 26 Cal. 2021) (denying summary judgment in the defendants’ favor as to the plaintiff’s excessive use 27 of force claim, finding that there were genuine disputes of fact regarding whether the plaintiff posed an immediate threat to the officers and public and finding itself unable to complete the 28 balancing test required under Graham). 1 encounter. See C.V. ex rel. Villegas, 823 F.3d at 1257. “A Government official’s conduct 2 violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] 3 right [are] sufficiently clear’ that every ‘reasonable official would [have understood] that what he 4 is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (alterations in 5 original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Wesby, 138 S. Ct. 6 at 589. “We do not require a case directly on point, but existing precedent must have placed the 7 statutory or constitutional question beyond debate.” Wesby, 138 S. Ct. at 590 (quoting Ashcroft, 8 563 U.S. at 741); see also Jessop v. City of Fresno, 936 F.3d 937, 940 (9th Cir. 2019). 9 It is not appropriate for courts to define clearly established law at a high level of 10 generality; instead, the inquiry “must be undertaken in light of the specific context of the case, not 11 as a broad general proposition.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation omitted); see 12 also Wesby, 138 S. Ct. at 590. “Such specificity is especially important in the Fourth Amendment 13 context, where . . . [i]t is sometimes difficult for an officer to determine how the relevant legal 14 doctrine, here excessive force, will apply to the factual situation the officer confronts.” Mullenix, 15 577 U.S. at 12 (internal quotation marks and citation omitted); see also Peck, 51 F.4th at 891. 16 In this case, plaintiff has pointed to evidence that raises a disputed issue of material fact 17 regarding whether the defendant officers saw plaintiff reach for his waistband just before he was 18 shot. Viewing the evidence before the court on summary judgment in the light most favorable to 19 plaintiff, a reasonable jury could find that plaintiff did not reach for his waistband. Assuming that 20 version of the facts to be true, the defendant officers’ actions violated clearly established law. As 21 noted above, the Ninth Circuit has repeatedly held that officers cannot use deadly force against a 22 suspect who does not threaten them with a weapon, even if a weapon is within the suspect’s reach 23 at the time. See Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) 24 (holding that officers could not use deadly force to shoot a fleeing armed suspect who was not 25 pointing a gun at the officers and was not facing them); Gelhaus, 871 F.3d at 1020 (specifically 26 recognizing that the 1991 decision in Curnow gave “‘fair notice’ that the use of deadly force is 27 unreasonable where the victim does not directly threaten the officer with the gun”); see also id. at 28 1010, 1021 (affirming the district court’s denial of the defendants’ motion for summary judgment 1 on qualified immunity grounds where the suspect had a gun in his hand with the barrel pointing 2 towards the ground); see also Peck, 51 F.4th at 887, 888 (determining that officers who shot a 3 suspect were not entitled to qualified immunity at summary judgment where, in drawing all 4 reasonable inferences in the plaintiff’s favor, the suspect was in the presence of a gun but never 5 picked it up and was moving away from it when he was shot); George v. Morris, 736 F.3d 829, 6 838 (9th Cir. 2013) (affirming the district court’s denial of the defendants’ motion for summary 7 judgment on qualified immunity grounds where the suspect held a gun with the barrel pointed 8 downward, without pointing it at the officers or engaging in threatening behavior). 9 Furthermore, in his opposition to the pending motion for summary judgment, plaintiff 10 cites to the Ninth Circuit’s decision in Cruz v. City of Anaheim, 765 F.3d 1076 (9th Cir. 2014) 11 (Doc. No. 13 at 17), a decision which this court finds to be highly relevant and directly applicable 12 to the present case. In that case, the Ninth Circuit considered the reasonableness of officers 13 “opening fire” on a suspect whom officers had pursued for suspected criminal activity, who was 14 reported to be carrying a gun in his waistband, and who was “surrounded by officers with guns 15 drawn.” Cruz, 765 F.3d at 1078, 1079. According to the officers’ accounts, the suspect “ignored 16 [the officers’] commands and instead reached for the waistband of his pants.” Id. Nonetheless, 17 the Ninth Circuit reversed the district court order granting summary judgment in the officers’ 18 favor, holding that a genuine factual dispute existed as to whether the officers saw the suspect 19 reach for his waistband such that he posed an immediate threat at the time the officers shot him. 20 Id. at 1079–1080. As noted above, the Ninth Circuit stated that “[i]t would be unquestionably 21 reasonable for police to shoot a suspect in Cruz’s position if he reaches for a gun in his waistband, 22 or even if he reaches there for some other reason,” especially “[g]iven Cruz’s dangerous and 23 erratic behavior up to that point.” Id. at 1078. But the court went on to say that “[c]onversely, if 24 the suspect doesn’t reach for his waistband or make some similar threatening gesture, it would 25 clearly be unreasonable for the officers to shoot him[.]” Id. Thus, the Ninth Circuit’s decision in 26 Cruz established beyond any doubt that officers may not use deadly force against individuals who 27 are presumed to have a gun but do not reach for it or make any other movements indicating an 28 imminent threat to the officers or the public. See id.; see also Peck, 51 F.4th at 888 (“Cruz 1 establishes that officers may not fire at a suspect—even an armed suspect—absent some reason to 2 believe that the suspect will soon access or use the weapon.”)10 3 Even more recently, the Ninth Circuit reviewed a similar case and affirmed the lower 4 court’s determination that the defendant officers were not entitled to qualified immunity on 5 summary judgment where the officers shot plaintiff, who was armed and running away from 6 them, and it was disputed whether the plaintiff reached for his pocket or gun. See Edmond v. 7 Lockwood, No. 22-55024, 2023 WL 2423340 at *1 (9th Cir. Mar. 9, 2023).11 In Edmond, the 8 Ninth Circuit cited five Ninth Circuit decisions (all of which were decided before the shooting of 9 plaintiff in this case), and held that it was “clearly established law” that officers “may not use 10 deadly force on an individual who has not acted threateningly at any time during or prior to the 11 encounter, even if they believe the individual has a firearm . . . [and] even where the suspect is 12 fleeing on foot.” Id. (citations omitted). 13 In light of these binding Ninth Circuit decisions, the granting of summary judgment in the 14 defendant officers’ favor is not appropriate here because their entitlement to qualified immunity 15 depends on disputed factual issues which must be resolved by the trier of fact. See Peck, 51 F.4th 16 at 888 (affirming the denial of summary judgment on qualified immunity grounds because 17 “where, as here, a jury could find that no such movement occurred, our cases clearly establish that 18

19 10 In Peck, the Ninth Circuit concluded its analysis with the following: 20 To be sure, the Fourth Amendment does not necessarily “require[ ] officers to delay their fire until a suspect turns his weapon on them,” 21 and “[i]f the person is armed—or reasonably suspected of being armed—a furtive movement, harrowing gesture, or serious verbal 22 threat might create an immediate threat.” George, 736 F.3d at 838. But where, as here, a jury could find that no such movement 23 occurred, our cases clearly establish that the use of deadly force would be impermissible. Id.; accord Curnow, 952 F.2d at 325; Cruz, 24 765 F.3d at 1079. We therefore affirm the district court’s denial of qualified immunity to Montoya and Johnson at this stage of the 25 litigation. 26 51 F.4th at 888. 27 11 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 1 the use of deadly force would be impermissible”); Gelhaus, 871 F.3d at 1021 (“Because 2 [officer’s] entitlement to qualified immunity ultimately depends on disputed factual issues, 3 summary judgment is not presently appropriate.”). Accordingly, the court will deny defendants’ 4 motion for summary judgment as to plaintiff’s Fourth Amendment excessive use of force claim 5 brought against defendants Abedrabbo and Miller. 6 2. Monell Liability 7 Defendants have also moved for summary judgment in favor of defendants City of Elk 8 Grove and the Elk Grove Police Department as to plaintiff’s 42 U.S.C. § 1983 claim pursuant to 9 Monell v. Department of Social Services, 436 U.S. 658 (1978) (Doc. No. 13 at 18), which appears 10 to be predicated on a ratification theory of entity liability (Doc. No. 17 at 15–16). In opposing 11 summary judgment, plaintiff asserts that the entity defendants ratified the wrongful shooting of 12 plaintiff (id.) because the City of Elk Grove exonerated the defendant officers after an internal 13 administrative investigation. (PUDF ¶ 28; 17-2 at 4.) 14 “[A] municipality cannot be held liable solely because it employs a tortfeasor—or, in other 15 words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” 16 Crowe v. Cnty. of San Diego, 608 F.3d 406, 445 (9th Cir. 2010) (quoting Monell, 436 U.S. at 17 691); see also Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997). To prevail on his 18 Monell claim against the city, plaintiff “must demonstrate that an ‘official policy, custom, or 19 pattern’ on the part of [the city] was ‘the actionable cause of the claimed injury.’” Tsao v. Desert 20 Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (quoting Harper v. City of Los Angeles, 533 21 F.3d 1010, 1022 (9th Cir. 2008)); see also Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1247 22 (9th Cir. 2016) (stating that to establish municipal liability under § 1983, a plaintiff must show a 23 direct causal link between the municipal policy or custom and the alleged constitutional 24 violation). 25 A municipality may be liable under § 1983 if “the individual who committed the 26 constitutional tort was an official with final policy-making authority or such an official ratified a 27 subordinate’s unconstitutional decision or action and the basis for it.” Rodriguez v. Cnty. of Los 28 Angeles, 891 F.3d 776, 802–03 (9th Cir. 2018) (quoting Gravelet-Blondin v. Shelton, 728 F.3d 1 1086, 1097 (9th Cir. 2013)). Ratification is generally a fact question for the jury, but “a plaintiff 2 must establish that there is a genuine issue of material fact regarding whether a ratification 3 occurred.” Christie v. Iopa, 176 F.3d 1231, 1238–39 (9th Cir. 1999). “To show ratification, a 4 plaintiff must prove that the ‘authorized policymakers approve a subordinate’s decision and the 5 basis for it.’” Id. at 1239 (quoting City of St. Louis v. Praprotnik, 485 U.S. at 127). “The mere 6 failure to discipline [employees] does not amount to ratification of their allegedly unconstitutional 7 actions.” Sheehan v. City of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014), rev’d in part on 8 other grounds, 575 U.S. 600 (2015); see also Dodge v. Evergreen School Dist. #114, 56 F.4th 9 767, 788 (9th Cir. 2022); Oakry v. City of Tempe, No. 20-cv-01167-PHX-JAT, 2021 WL 10 8155158, at *6 (D. Ariz. May 18, 2021) (“[I]t is well-settled in this circuit that without 11 ‘something more,’ a City’s failure to discipline an officer, or its finding that an officer’s conduct 12 did not violate policy, does not amount to ratification.”); Mueller v. Cruz, No. 13-cv-01274-CJC- 13 JCG, 2015 WL 9455565, at *3 (“[C]ourts in this circuit have stopped short of holding that a 14 plaintiff can prove Monell liability simply on the basis of a defendant department’s post-incident 15 ratification through failure to discipline or take other action concerning the officer directly 16 involved.”). 17 Here, plaintiff has not established a genuine issue of material fact with regard to whether 18 any policymaker knew of the defendant officers’ actions “before the alleged constitutional 19 violations ceased.” Christie, 176 F.3d at 1239. Rather, plaintiff’s Monell claim is based on an 20 Elk Grove Police Department supervisor’s exoneration of defendants Miller and Abedrabbo after 21 their alleged use of excessive force. (Doc. Nos. 1 at ¶ 17; 17 at 15–16; 17-2 at 69.) 22 Consequently, a violation of plaintiff’s constitutional right to be free from excessive force was not 23 caused by the purported actions of any policymaker at the Elk Grove Police Department, as is 24 required by Monell. See Mueller, 2015 WL 9455565, at *3 (holding that Monell liability could 25 not be established based on the plaintiff’s allegation that the officer in question was exonerated 26 after the alleged use of excessive force occurred); Chavez v. City of Hayward, No. 14-cv-00470- 27 DMR, 2015 WL 3833536, at *8 (N.D. Cal. June 19, 2015) (“Chief Urban’s exoneration of the 28 Defendant Officers took place after the alleged use of excessive force; therefore, her action did 1 not result in or cause the violation of Plaintiff’s constitutional right to be free from excessive 2 force.”). 3 Accordingly, the court will grant defendants’ motion for summary judgment on plaintiff’s 4 § 1983 constitutional claim brought against the Elk Grove Police Department and the City of Elk 5 Grove under Monell. 6 3. State Law Claims 7 Defendants also move for summary judgment in their favor on plaintiff’s state law claims. 8 (Doc. No. 13 at 19.) 9 a. Bane Act Claim 10 The Bane Act provides a right of action to “[a]ny individual whose exercise or enjoyment 11 of rights secured by the Constitution or laws of the United States, or of rights secured by the 12 Constitution or laws of [California] has been interfered with” by another person's “threats, 13 intimidation, or coercion.” Cal. Civ. Code § 52.1(b)–(c). To prevail on a claim for violation of 14 the Bane Act, a plaintiff must show “a specific intent to violate the arrestee’s right to freedom 15 from unreasonable seizure.” Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) 16 (citing Cornell v. City of San Francisco, 17 Cal. App. 5th, 766, 801 (2017)). A “mere intention to 17 use force that the jury ultimately finds unreasonable—that is, general criminal intent—is 18 insufficient.” Id. at 1045 (quoting United States v. Reese, 2 F.3d 870, 885 (9th Cir. 1993)). 19 Instead, “the jury must find that the defendants intended not only the force, but its 20 unreasonableness, its character as more than necessary under the circumstances.” Id. (internal 21 quotations omitted). However, it is not necessary for defendants “to have been thinking in 22 constitutional or legal terms at the time of the incidents, because a reckless disregard for a 23 person’s constitutional rights is evidence of a specific intent to deprive that person of those 24 rights.” Id. (internal quotations omitted). 25 The inquiry into specific intent focuses on: (1) whether “the right at issue [was] clearly 26 delineated and plainly applicable under the circumstances of the case”; and (2) whether the 27 “defendant commit[ed] the act in question with the particular purpose of depriving the citizen 28 victim of his enjoyment of the interests protected by that right[.]” Sandoval v. Cnty. of Sonoma, 1 912 F.3d 509, 520 (9th Cir. 2018) (citation omitted). If both requirements are met, “specific 2 intent can be shown ‘even if the defendant did not in fact recognize the unlawfulness of his act’ 3 but instead acted in ‘reckless disregard’ of the constitutional right.” Id. (quoting Cornell, 17 Cal. 4 App. 5th at 803). 5 Here, defendants argue that they are entitled to summary judgment in their favor on 6 plaintiff’s Bane Act claim because there is no evidence before the court on summary judgment 7 that the defendant officers possessed the requisite “specific intent” to violate plaintiff’s rights. 8 (Doc. No. 13 at 20.) The court disagrees. 9 Plaintiff’s claim against defendants for violation of the Bane Act is based on the same 10 alleged facts as his claim of use of excessive force in violation of the Fourth Amendment. The 11 court has concluded that, viewing the evidence in the light most favorable to plaintiff, a 12 reasonable juror could conclude that the defendant officers acted unreasonably under the Fourth 13 Amendment when they shot plaintiff. From this same evidence, a reasonable juror could 14 conclude that the defendant officers acted in reckless disregard for plaintiff’s rights. See Taylor v. 15 Cnty. of Calaveras, No. 1:18-cv-00760-BAM, 2020 WL 7406527, at *17 (E.D. Cal. Dec. 17, 16 2020) (“Because Plaintiffs’ Bane Act claims are, at a minimum, predicated on the same facts as 17 the unlawful entry, arrest and excessive force claims . . . , and genuine disputes of fact exist with 18 respect to those claims, summary judgment cannot be granted.”); Est. of Smith v. Holslag, No. 16- 19 cv-02989-WQH-MSB, 2020 WL 7863428, at *11 (S.D. Cal. Dec. 31, 2020), aff’d and remanded, 20 No. 21-55073, 2022 WL 1224001 (9th Cir. Apr. 26, 2022) (finding that because the Bane Act 21 claim was based on the same facts as the Fourth Amendment claim, and because the court had 22 already found that a reasonable juror could conclude that the defendant officer acted unreasonably 23 under the Fourth Amendment when he shot and killed the decedent, a reasonable juror could 24 conclude from those same facts that the defendant officer acted in reckless disregard of the 25 decedent’s rights.). Accordingly, defendants’ motion for summary judgment in their favor with 26 respect to plaintiff’s Bane Act claim will be denied. 27 ///// 28 ///// 1 b. Negligence Claim 2 Defendants also argue that they are entitled to summary judgment in their favor on 3 plaintiff’s negligence claim because plaintiff has produced no evidence suggesting any negligence 4 on the part of the defendant officers. (Doc. No. 13 at 20.) Furthermore, they argue that “it cannot 5 be disputed that all officers only shot at Tucker after he refused to comply and instead reached for 6 his loaded handgun in his waistband.” (Id. at 21.) As discussed in detail above, the court has 7 determined that based upon the evidence presented on summary judgment, triable questions of 8 material fact exist with respect to whether defendants’ version of the relevant facts is true, as well 9 as to the reasonableness of the defendant officers’ actions. Therefore, defendants’ argument in 10 support of their motion for summary judgment on plaintiff’s negligence claim is unavailing. See 11 Banks v. Mortimer, 620 F. Supp. 3d 902, 935 (N.D. Cal. 2022) (noting that courts analyze 12 negligence claims “under the same rubric as § 1983 claims based on the Fourth Amendment”). 13 Accordingly, the court will also deny defendants’ motion for summary judgment in their favor as 14 to plaintiff’s negligence claim. 15 c. Other State Law Claims 16 Defendants summarily argue in their motion that they are entitled to summary judgment in 17 their favor as to plaintiff’s remaining state law claims (violation of Article I § 13 of the California 18 Constitution; violation of California Civil Code § 43; and battery) merely because they are 19 entitled to summary judgment on plaintiff’s § 1983 claims. (Doc. No. 13 at 19.) Because the 20 court has concluded that defendants’ motion for summary judgment as to plaintiff’s § 1983 claims 21 must be denied, defendants’ argument with respect to plaintiff’s remaining state law claims is 22 unpersuasive. Accordingly, the court will also deny defendants’ motion for summary judgment as 23 to plaintiff’s remaining state law claims. 24 CONCLUSION 25 For the reasons explained above, 26 1. Defendants’ motion for summary judgment (Doc. No. 13) is granted in part and 27 denied in part as follows: 28 ///// 1 a. Defendants’ motion for summary judgement in their favor as to □□□□□□□□□□□ 2 42 U.S.C. § 1983 claim brought pursuant to Monell against defendants City 3 of Elk Grove and the Elk Grove Police Department is granted; and 4 b. Defendants’ motion is otherwise denied; 5 2. Plaintiff's motion to strike (Doc. No. 16), which the court construed as □□□□□□□□□□□ 6 evidentiary objections, is overruled; and 7 3. Consistent with the initial scheduling order which still governs in this case, the 8 “parties are ordered to file a Jomt Notice of Trial Readiness not later than thirty 9 (30) days” after the date of entry of this order. (Doc. No. 4 at 5.) 10 IT IS SO ORDERED. Dated: _ July 26, 2023 Dal A. 2, el 12 UNITED STATES DISTRICY JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27