The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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12 R.H., a minor, by and through No. 2:20-cv-01435 WBS DMC
her guardian ad litem, Sheila
13 Brown; ESTATE OF ERIC JAY HAMES,
by and through its personal
14 representative, Crystal Dunlap MEMORANDUM AND ORDER RE:
Bennett, DEFENDANTS’ MOTION FOR
15 SUMMARY JUDGMENT
Plaintiffs,
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v.
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CITY OF REDDING, a public
18 entity; JOE ROSSI, an
individual; KIP KINNEAVY, an
19 individual; JAY GUTERDING, an
individual; BRETT LEONARD, an
20 individual; and DOES 5 through
20 inclusive,
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Defendants.
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Plaintiffs R.H., a minor, by and through her guardian
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ad litem, and the Estate of Eric Jay Hames, by and through its
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personal representative, brought this action, alleging violations
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of federal and state law, against the City of Redding (“the
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1 City”), and City of Redding police officers Joe Rossi (“Rossi”),
2 Kip Kinneavy (“Kinneavy”), Jay Guterding (“Guterding”), and Brett
3 Leonard (“Leonard”). This suit arises from the fatal shooting of
4 Eric Hames by Rossi, Kinneavy, Guterding, and Leonard. The
5 complaint contains claims for: (1) excessive force in violation
6 of the Fourth Amendment, 42 U.S.C. § 1983, (2) unwarranted
7 interference with the right to familial association in violation
8 of the Fourteenth Amendment, 42 U.S.C. § 1983, (3) municipal
9 liability under Monell v. Department of Social Services, 436 U.S.
10 658 (1978),1 (4) battery, (5) violation of the Tom Bane Civil
11 Rights Act, Cal. Civ. Code § 52.1, and (6) negligence. Before
12 the court is the defendants’ motion for summary judgment.
13 (Docket No. 29.)
14 I. Factual Background
15 On August 27, 2018, Rossi was on patrol and heard a
16 call over the police radio about a man, later identified as
17 Hames, who was in the middle of the roadway obstructing traffic
18 at an intersection in Redding, California. (Pls.’ Resp. to
19 Defs.’ Statement of Undisputed Facts (“DSUF”) at No. 1 (Docket
20 No. 31); Defs.’ Resp. to Pls.’ Statement of Undisputed Facts
21 (“PSUF”) at No. 1 (Docket No. 35).) Dispatch services for the
22 police department had received multiple calls about Hames stating
23 he was “jumping in front of cars,” and “yelling and spitting on
24 passing vehicles.” (Decl. of Maria Nozzolino (“Nozzolino
25 Decl.”), Ex. A of Ex. D (Decl. of Chris Smyrnos) at 4. (Docket
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1 In opposition to defendants’ motion, plaintiffs have
27 withdrawn their Monell liability claim against the City of
Redding. (Pls.’ Opp’n at 16 (Docket No. 30).) Therefore, the
28 court will not address it in this order.
1 No. 29-3).)
2 Rossi arrived at the intersection and observed Hames
3 throw a glass bottle in the air, yell incomprehensibly, and take
4 a six-inch knife out from a sheath on his belt. (DSUF at No. 3;
5 PSUF at Nos. 2-3; Decl. of Neil Gehlawat (Gehlawat Decl.), Ex. C,
6 Video Summary of Subject Shooting (Docket No. 32).) Hames,
7 initially positioned closer to the passenger side of Rossi’s
8 patrol vehicle, moved no closer than 10 feet away from Rossi’s
9 driver side door. (PSUF at Nos. 4-5.) Over the PA system, Rossi
10 told Hames to put the knife down and Hames did not comply. (DSUF
11 at No. 5.) Rossi’s initial encounter with Hames lasted
12 approximately 30 seconds to one minute before Hames ran in the
13 direction of a nearby shopping center. (PSUF at No. 7.)
14 Rossi followed Hames in his patrol vehicle and
15 communicated over the dispatch radio, alerting other units that
16 Hames was armed with a knife and had fled into the shopping
17 center. (DSUF at No. 8; PSUF at No. 9.) Rossi encountered Hames
18 at the back of a Domino’s Pizza building alongside Larkspur Lane
19 and exited his patrol vehicle with his handgun drawn. (PSUF at
20 No. 10.) Guterding, Leonard, and Kinneavy arrived within seconds
21 and joined Rossi in a semi-circle around Hames, with their
22 handguns drawn, as Hames stood near two AC units at the back of
23 the building with his arms crossed and the knife in his hand.
24 (DSUF at No. 12; Gehlawat Decl., Ex. C.) Kinneavy turned back
25 and retrieved a shotgun from his nearby parked patrol vehicle.
26 (DSUF at No. 14; Gehlawat Decl., Ex. C.)
27 Rossi and Kinneavy gave Hames verbal commands to drop
28 the knife. (DSUF at No. 15.) Hames walked three steps from the
1 AC unit in the direction of Guterding, with the knife still in
2 his hand and his arms crossed. (See id. at No. 17; PSUF at No.
3 28; Gehlawat Decl., Exs. A and B, videos of shooting.) Rossi,
4 Guterding, Kinneavy, and Leonard shot Hames. (DSUF at Nos. 18-
5 21; Gehlawat Decl., Exs. A and B.) Rossi fired two or three
6 shots, Guterding fired three shots, Kinneavy fired four rounds
7 from his shotgun, and Leonard fired one shot. (PSUF at Nos. 14,
8 15, 34, 40.)
9 Hames was 23 feet, 10 inches from Guterding and more
10 than 15-20 feet from Leonard when he was shot, though the
11 officers’ recollections place Hames at a closer distance.
12 (Gehlawat Decl., Ex. C.; DSUF at Nos. 18-21.) Approximately 60
13 seconds passed from the time Rossi encountered Hames at the
14 Domino’s Pizza to the time he was shot. (Gehlawat Decl., Ex. C.)
15 II. Legal Standard
16 Summary judgment is proper “if the movant shows that
17 there is no genuine dispute as to any material fact and the
18 movant is entitled to judgment as a matter of law.” Fed. R. Civ.
19 P. 56(a). The party moving for summary judgment bears the
20 initial burden of establishing the absence of a genuine issue of
21 material fact and can satisfy this burden by presenting evidence
22 that negates an essential element of the non-moving party’s case.
23 See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
24 Alternatively, the movant can demonstrate that the non-moving
25 party cannot provide evidence to support an essential element
26 upon which it will bear the burden of proof at trial. Id. If
27 the moving party has properly supported its motion, the burden
28 shifts to the non-moving party to set forth specific facts to
1 show that there is a genuine issue for trial. See id. at 324.
2 Any inferences drawn from the underlying facts must, however, be
3 viewed in the light most favorable to the party opposing the
4 motion. See Matsuhita Elec. Indus. Co. v. Zenith Radio Corp.,
5 475 U.S. 574, 587 (1986).
6 III. Qualified Immunity on Plaintiffs’ Federal Claims
7 In actions under 42 U.S.C. § 1983, the doctrine
8 of qualified immunity “protects government officials ‘from
9 liability for civil damages insofar as their conduct does not
10 violate clearly established statutory or constitutional rights of
11 which a reasonable person would have known.’” Pearson v.
12 Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
13 457 U.S. 800, 818 (1982)). Qualified “immunity protects all but
14 the plainly incompetent or those who knowingly violate the law.”
15 White v. Pauly, 137 S. Ct. 548, 551 (2017) (quotations omitted).
16 The court has carefully reviewed the evidence submitted
17 by both parties, which includes video exhibits showing the
18 entirety of the encounter at multiple angles, depositions, and
19 expert reports. (See Gehlawat Decl., Exs. A-C.) Based on the
20 evidence and the existing case law, the court cannot conclude
21 that the officers’ acted in a manner that was “plainly
22 incompetent” or “knowingly violat[ing] the law.” See White, 137
23 S. Ct. at 551.
24 To determine whether an officer is entitled
25 to qualified immunity, the court considers: (1) whether there has
26 been a violation of a constitutional right; and (2) whether the
27 officers’ conduct violated “clearly established” federal
28 law. See Sharp v. Cnty. of Orange, 871 F.3d 901, 909 (9th Cir.
1 2017) (citing Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 788
2 (9th Cir. 2016)). The court has the discretion to decide which
3 prong of qualified immunity to address first and, if analysis of
4 one prong proves dispositive, the court need not analyze the
5 other. See Pearson, 555 U.S. at 236. Here, the court will
6 exercise its discretion to analyze the second prong first:
7 whether the officers’ conduct violated a clearly established
8 right.
9 The clearly established inquiry “serves the aim of
10 refining the legal standard and is solely a question of law for
11 the judge.” Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d
12 1075, 1085 (9th Cir. 2009). The Supreme Court has noted that the
13 law “does not require a case directly on point for a right to be
14 clearly established, [but] existing precedent must have placed
15 the statutory or constitutional question beyond debate.” White,
16 137 S. Ct. at 551 (quotations and citations omitted).
17 When determining whether the right at issue has been
18 clearly established, the court may not “define clearly
19 established law at a high level of generality.” See Kisela v.
20 Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting Ashcroft v. Al-
21 Kidd, 563 U.S. 731, 742 (2011)). Rather, “the clearly
22 established law at issue must be particularized to the facts of
23 the case.” White, 137 S. Ct. at 552. This is particularly
24 important in excessive force cases because “[i]t is sometimes
25 difficult for an officer to determine how the relevant legal
26 doctrine, here excessive force, will apply to the factual
27 situation the officer confronts.” Mullenix v. Luna, 136 S. Ct.
28 305, 308 (2015).
1 With the framework above in mind, the court analyzes
2 whether the law was clearly established such that reasonable
3 officers on August 27, 2018 would have known that the use of
4 deadly force is unreasonable against an armed suspect who was
5 acting erratically, had ignored commands, fled from an initial
6 encounter with an officer, moved toward an officer with a knife
7 in hand, and caused the officers to fear for their safety.
8 The case in which the court finds the circumstances to
9 be most analogous to those here is Kisela v. Hughes, 138 S. Ct.
10 1148 (2018). In Kisela, officers responded to reports of a woman
11 with a knife acting erratically in a neighborhood. Id. at 1151.
12 Upon arrival, the officers saw the suspect come out of the home
13 with a large kitchen knife, and stand within six feet, and
14 “striking distance,” of another woman. See id. at 1151, 1154.
15 There, as here, the suspect did not hold up the knife or run
16 toward anyone but ignored the officers’ orders to drop the
17 weapon. Id. at 1151. There, as here, the officers shot the
18 suspect within a minute of arriving on the scene. Id. The
19 Supreme Court reversed the district court’s denial of qualified
20 immunity because the law was not clearly established that the use
21 of deadly force in such a situation violated the decedent’s
22 constitutional rights. Id. at 1154-55.
23 Given the similarity to the facts in Kisela, decided
24 just four months prior to the incident here, the court concludes
25 that reasonable officers would not have been put on notice that
26 use of deadly force in the instant case was unreasonable. Though
27 the distance between Hames and the officers was greater than the
28 six feet in Kisela, there is no clearly established law from the
1 Ninth Circuit or the Supreme Court that establishes a minimum
2 distance between the suspect and the officers before they are
3 justified in using deadly force.
4 Courts do take the distance between the suspect and the
5 officers into account when evaluating the totality of the
6 circumstances. For example, although it was decided after the
7 incident in this case, in Ventura v. Rutledge, 978 F.3d 1088 (9th
8 Cir. 2020), the court concluded the officer was entitled to
9 qualified immunity where the officer shot a suspect who was 10-15
10 feet away. Id. at 1090. The officer had received domestic
11 violence related reports about the suspect and the suspect was
12 armed with a knife, ignoring commands, and advancing toward the
13 officer. Id. The court determined there was no clearly
14 established law demonstrating the officer’s use of deadly force
15 was unconstitutional. Id. at 1092. The 23 feet and 10 inches
16 between the officers and Hames is relatively close in range to
17 the distance in Ventura. Accord Buchanan v. City of San Jose,
18 782 F. App’x 589 (9th Cir. 2019) (holding officers did not use
19 excessive force when they shot a man armed with a knife who was
20 55 feet away and advancing toward the officers).
21 The court’s finding of qualified immunity is further
22 supported by Blanford v. Sacramento County, 406 F.3d 1110 (9th
23 Cir. 2005). Blanford involved a man whom officers, after
24 receiving several reports about, observed walking through a
25 neighborhood with a sword and behaving erratically. Blanford,
26 406 F.3d at 1112. As in the instant case, the man failed to heed
27 warnings or commands. See id. at 1112-13; (DSUF at No. 16.) The
28 man eventually tried to enter a home through the front door and
1 then through the backyard. Id. at 1113. Officers believed the
2 man posed an imminent threat to anyone that could be in the home
3 or the backyard, though he had never advanced toward the
4 officers. Id. The officers shot the man multiple times as he
5 tried to enter the home. Id. at 1113-14. Only later did the
6 officers learn that he was trying to enter his own home and did
7 not hear the officers because he had headphones in. Id. at 1112-
8 14. The Ninth Circuit concluded the use of deadly force did not
9 violate the Fourth Amendment. Id. at 1119.
10 Hames posed at least as much of a threat as the man in
11 Blanford. Hames had ignored multiple commands to drop his knife
12 and had fled from his initial encounter with Rossi. Unlike the
13 officers in Blanford who were uncertain if anyone was even in the
14 home when the man began to enter, here, the officers observed
15 Hames moving toward one of them with his knife. The
16 circumstances here could be viewed by a reasonable officer as
17 more threatening.
18 Plaintiffs bear the burden of “proving that the right
19 allegedly violated was clearly established at the time of the
20 official’s allegedly impermissible conduct.” Camarillo
21 v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993). Plaintiffs
22 primarily rely on three cases — Tennessee v. Garner, 105 S. Ct.
23 1694 (1985), Glenn v. Washington County, 673 F.3d 864 (9th Cir.
24 2011), and Espinosa v. City of San Francisco, 598 F.3d 528 (9th
25 Cir. 2010) — to further their argument against qualified
26 immunity. However, these cases are insufficient to put
27 reasonable officers in these circumstances on notice that their
28 conduct was violating clearly established law.
1 The leading case of Tennessee v. Garner simply sets out
2 the general proposition that when a law enforcement officer is
3 pursuing a fleeing suspect the officer may not use deadly force
4 unless the officer has probable cause to believe the suspect
5 poses a significant threat of death or serious physical injury to
6 the officer or others. Garner, 105 S. Ct. at 1697. It does not
7 speak to any set of circumstances similar to those presented in
8 this case. To the contrary, the facts here differ significantly
9 from the conduct the Supreme Court found to be unconstitutional
10 in Garner, which involved the shooting of a clearly unarmed
11 suspect in the back of the head while he was running away from
12 the officers. Id.
13 In Glenn, officers responded to a call from family
14 members and friends about an intoxicated, suicidal teenager
15 standing outside his home. Glenn, 673 F.3d at 867. The teen was
16 holding a pocketknife to his own neck and would not drop it, but
17 was not threatening anyone else. Id. at 873. While the teenager
18 stood still, one of the officers fired beanbag rounds at him.
19 Id. at 869. As he was being hit with the beanbag rounds, the
20 teenager took one or two steps toward the home, in which his
21 parents remained, and the officers fired 11 shots at him. Id. at
22 879. The Ninth Circuit reversed the grant of summary judgment
23 for the Glenn defendants and determined that there were material
24 questions of fact that precluded a conclusion that the force used
25 by the officers, the beanbag rounds and the deadly force, was
26 reasonable as a matter of law. Id. at 879-80. This case is
27 distinguishable from Glenn in that Hames was not a threat just to
28 himself, as the teen was in Glenn, but posed an immediate threat
1 to the officers. Hames was advancing toward Guterding with a
2 knife and not standing still like the teenager in Glenn.
3 Plaintiffs’ reliance on Espinosa is also insufficient.
4 In Espinosa, officers used deadly force in an attempt to make an
5 arrest of an unarmed suspect who was hiding in an attic and
6 resisting arrest when officers searched a home. Espinosa, 598
7 F.3d at 533. The Ninth Circuit affirmed the district court’s
8 denial of qualified immunity because there was evidence that the
9 officers’ initial entry into the premises violated the occupant’s
10 Fourth Amendment right and that such illegal entry provoked the
11 confrontation which resulted in the shooting. Id. at 539. Here,
12 unlike in Espinosa, there is no suggestion that the officers
13 improperly on the scene or that they did anything to provoke
14 Hames’ conduct, and they were not approaching an unarmed suspect,
15 rather one who was indisputably armed with a knife.
16 Even if the officers were mistaken about whether Hames
17 was going to harm them, the reasonableness inquiry recognizes
18 “that it is inevitable that law enforcement officials will in
19 some cases reasonably but mistakenly conclude” that their conduct
20 comports with the Constitution and thus shields officials from
21 liability when their mistake is reasonable. See Anderson v.
22 Creighton, 483 U.S. 635, 641 (1987). Given the precedent
23 outlined above, the court concludes that at the time of the
24 shooting, a reasonable officer in these circumstances would not
25 have known that he was violating Hames’ constitutional rights.
26 To the contrary, clearly established law would signal to a
27 reasonable officer that it was permissible to use deadly force in
28 these circumstances.
1 Accordingly, the court will grant summary judgment to
2 defendants Rossi, Kinneavy, Guterding, and Leonard on the Fourth
3 and Fourteenth Amendment claims on the ground of qualified
4 immunity.2
5 IV. State Law Claims
6 Because the court will grant summary judgment for
7 defendants on plaintiffs’ federal claims, the court no longer has
8 federal question jurisdiction, and there is no suggestion that
9 there is diversity jurisdiction in this case. Federal courts
10 have “supplemental jurisdiction over all other claims that are so
11 related to claims in the action within such original jurisdiction
12 that they form part of the same case or controversy under Article
13 III of the United States Constitution.” 28 U.S.C. § 1367(a). A
14 district court “may decline to exercise supplemental jurisdiction
15 . . . [if] the district court has dismissed all claims over which
16 it has original jurisdiction.” 28 U.S.C. §
17 1367(c); see also Acri v. Varian Assocs., Inc., 114 F.3d 999,
18 1001 n.3 (9th Cir. 1997) (en banc) (explaining that a district
19 court may decide sua sponte to decline to exercise supplemental
20 jurisdiction).
21 The Supreme Court has stated that “in the usual case in
22 which all federal-law claims are eliminated before trial, the
23 balance of factors to be considered under the pendent
24 jurisdiction doctrine – judicial economy, convenience, fairness
25 and comity – will point toward declining to exercise jurisdiction
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2 Because the court determines the defendants are
27 entitled to qualified immunity based on the second prong of the
analysis, it does not address whether plaintiffs’ constitutional
28 rights have been violated.
1 over the remaining state-law claims.” Carnegie-Mellon Univ. v.
2 Cohill, 484 U.S. 343, 350 n.7 (1988).
3 Here, comity strongly weighs in favor of declining to
4 exercise supplemental jurisdiction over plaintiffs’ state law
5 claims. The state courts are fully competent to adjudicate such
6 claims. Some of plaintiffs’ claims raise particularly complex
7 questions of state law, such as the Tom Bane Civil Rights Act,
8 which are better left for California courts to resolve.
9 As for judicial economy, plaintiffs’ state law claims
10 have not been the subject of any significant litigation in this
11 case, as this is the first instance in which the merits of
12 plaintiffs’ claims are being considered. Judicial economy does
13 not weigh in favor of exercising supplemental jurisdiction. And
14 finally, convenience and fairness do not weigh in favor of
15 exercising supplemental jurisdiction over plaintiffs’ remaining
16 state law claims. The federal and state fora are equally
17 convenient for the parties. There is no reason to doubt that the
18 state court will provide an equally fair adjudication of the
19 issues. There is nothing to prevent plaintiffs from refiling
20 their state law claims against defendants in state court, and any
21 additional cost or delay resulting therefrom should be minimal.3
22 Accordingly, the court declines to exercise supplemental
23 jurisdiction and will dismiss plaintiffs’ remaining state law
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3 “[T]he period of limitations for any claim asserted
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under [28 U.S.C. § 1367(a)], and for any other claim in the same
action that is voluntarily dismissed at the same time or after
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the dismissal of the claim under subsection (a), shall be tolled
27 while the claim is pending and for a period of 30 days after it
is dismissed unless State law provides for a longer tolling
28 period.” 28 U.S.C. § 1367(d).
eee enn nee ene non nnn on on nnn nn nnn OO IS IE I
1 claims without prejudice to refiling in state court.
2 IT IS THEREFORE ORDERED that defendants’ motion for
3 summary judgment (Docket No. 29) be, and the same hereby is,
4 GRANTED on the ground of qualified immunity on plaintiffs’
5 federal claims under 42 U.S.C. § 1983 against defendants Rossi,
6 Kinneavy, Guterding, and Leonard.
7 IT IS FURTHER ORDERED that plaintiffs’ remaining state
8 law claims against defendants be, and the same hereby are,
9 DISMISSED WITHOUT PREJUDICE to refiling in state court.
10 The Clerk shall enter Judgment in favor of all
11 defendants in accordance with this Order.
12 | Dated: February 10, 2022 bette 2d. □□
13 WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE
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