Barbosa v. Shasta County

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 THOMAS BARBOSA, DECEASED, by and No. 2:20-cv-02298-JAM-DMC

through his Co-Successors in

12 Interest, LUPITA BARBOSA,

Individually, and as Mother and

13 Next Friend for K.B. and T.B., ORDER GRANTING PLAINTIFFS’

minors, et al., MOTION TO CERTIFY

14 DEFENDANTS’ APPEAL AS

Plaintiffs, FRIVOLOUS

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v.

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SHASTA COUNTY, a public entity,

17 et al.,

18 Defendants.

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20 Plaintiffs move to certify Defendants’ qualified immunity

21 appeal as frivolous. See Mot. to Certify as Frivolous (“Mot.”),

22 ECF No. 63. Defendants oppose the motion. See Opp’n, ECF

23 No. 68. Plaintiffs replied. See Reply, ECF No. 70. For the

24 reasons set forth below, the Court GRANTS Plaintiffs’ motion to

25 certify Defendants’ appeal as frivolous.1

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27 1 This motion was determined to be suitable for decision without

oral argument. E.D. Cal. L.R. 230(g). The hearing was

28 scheduled for December 6, 2022.

1 I. BACKGROUND

2 As the parties are familiar with the facts of this case, the

3 Court shall recount only those facts most relevant to the present

4 motion. Decedent Thomas Barbosa was shot and killed by Shasta

5 County Sergeant Gonzalez. At the time he was shot, Decedent

6 Barbosa was struggling to exit the rear window of his truck,

7 which had overturned against a tree and thereafter rested upon

8 its side with the passenger door facing skyward. Decedent

9 Barbosa was forty-one years old, five foot five, and two hundred

10 pounds. Exh. 18 to Plaintiffs’ Opp’n, Report of Autopsy, ECF

11 No. 48-5. The window was 35-inches tall and 13-inches wide at

12 its widest part. Exh. 19 to Plaintiffs’ Opp’n, Pictures of

13 Decedent’s Truck Taken by Redding Police, ECF No. 48-5.

14 The aerial video surveillance shows that Decedent Barbosa

15 was still in the overturned car when he was shot. Exh. 1 to

16 Plaintiffs’ Opp’n, Aerial Surveillance Footage, ECF No. 72. The

17 only parts of his body visible in the video before and after the

18 gunshot are his hands, which appear in the frame of the rear

19 window. Id. Defendants contend that Decedent Barbosa had a

20 knife in his hand.

21 One shot was fired resulting in a mortal wound. Id. The

22 bullet struck Decedent Barbosa in the upper chest, tore through

23 his left lung, and lodged in his back just beneath the skin.

24 Exh. 18 to Plaintiffs’ Opp’n, Report of Autopsy.

25 Two minutes after Decedent Barbosa was shot, Officer Fleming

26 moved forward and released his canine unit. Exh. 1 to

27 Plaintiffs’ Opp’n, Aerial Surveillance Footage. The dog bit

28 Decedent’s forearm and shook it violently back and forth in its

1 jaws for twenty-five seconds before being detached. Id. Two

2 other officers then moved in and, working together, pulled

3 Decedent’s body through the narrow rear window onto the ground

4 beside the overturned truck. Id. They turned Decedent on his

5 front and cuffed his hands before rolling him onto his back and

6 pulling him downhill away from the truck. Id. Medics arrived on

7 the scene about four minutes later and pronounced Barbosa dead.

8 Id.

9 On these facts, the Court denied qualified immunity to

10 Defendants Sergeant Gonzalez and Officer Fleming. See Minutes

11 for Proceedings Held on September 13, 2022, ECF No. 52. The

12 Court held that disputes of material fact precluded summary

13 judgment on the issue of qualified immunity and the question of

14 whether each officer’s conduct violated a clear constitutional

15 right. Id.

16 Defendants appealed the Court’s qualified immunity ruling,

17 prompting this motion by Plaintiff to certify the appeal as

18 frivolous.

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20 II. OPINION

21 A. Legal Standard

22 While an appeal of an order denying qualified immunity

23 “normally divests the district court of jurisdiction to proceed

24 with trial[,]” under the Ninth Circuit’s decision in Chuman v.

25 Wright, 960 F.2d 104, 105 (9th Cir. 1992), a district court “may

26 certify the appeal as frivolous and may proceed then with trial.”

27 Padget v. Wright, 587 F.3d 983, 985 (9th Cir. 2009) (citing

28 Michell v. Forsyth, 472 U.S. 511, 530 (1985)). Under Chuman, a

1 district court that finds an appeal frivolous “may certify, in

2 writing, that defendants have forfeited their right to pretrial

3 appeal, and may proceed with trial.” 960 F.2d at 105.

4 An appeal is frivolous when it is “so baseless that it does

5 not invoke appellate jurisdiction, such as when the disposition

6 is so plainly correct that nothing can be said on the other

7 side.” Schering Corp. v. First DataBank Inc., No. C 07-01142-

8 WHA, 2007 WL 1747115, at *3 (N.D. Cal. June 18, 2007) (internal

9 citations omitted). That is to say, “if the results are obvious,

10 or the arguments of error are wholly without merit,” then the

11 district court should certify the appeal as frivolous. In re

12 George, 322 F.3d 586, 591 (9th Cir. 2003) (internal citations

13 omitted). When a district court certifies an appeal as

14 frivolous, the defendant may apply to the Ninth Circuit for a

15 discretionary stay. Chuman, 960 F.2d at 105 n.1.

16 B. Discussion

17 Defendants oppose Plaintiffs’ motion to certify Defendants’

18 qualified immunity appeal as frivolous on two grounds. First,

19 Defendants argue an interlocutory appeal is appropriate because

20 there is no genuine issue of material fact. Opp’n at 6. Second,

21 Defendants argue that an appeal is appropriate because the Court

22 applied the wrong standard of analysis when it denied qualified

23 immunity. Id. at 5. The Court finds both arguments are

24 unavailing, and the appeal is frivolous.

25 Contrary to Defendants’ first contention, the Court found on

26 summary judgment that there are genuine disputes of material fact

27 that precluded a finding of qualified immunity. In particular,

28 the reasonableness of the officers’ actions hinged on the

1 material question of whether Decedent could have exited the

2 vehicle, risen to his feet, and charged the officers so

3 expeditiously that a reasonable officer was put in fear of

4 imminent danger. Defendants do not challenge the materiality of

5 the disputed facts, but rather, they contend that there are no

6 disputed facts at all because the aerial video “renders the facts

7 of this case undisputed and amenable to summary judgment.” Opp’n

8 at 6.

9 The Court disagrees. “The mere existence of video footage

10 of the incident does not foreclose a genuine factual dispute as

11 to the reasonable inferences that can be drawn from the footage.”

12 Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir.

13 2018). A video is only dispositive when it presents a record of

14 events so clearly as to utterly discredit the narrative put

15 forward by one of the parties. See Scott v. Harris, 550 U.S.

16 372, 380-81 (2007); Vos, 892 F.3d at 1028. Because more than one

17 reasonable inference may be drawn from the video, the video does

18 not ameliorate the genuine disputes of material fact at play in

19 this case.

20 As the Court noted at hearing, the aerial video recording

21 raised numerous issues of material fact such that a jury could

22 find Plaintiffs’ version of facts to be credible. Further,

23 because these questions of fact turn on one’s interpretation of

24 the aerial video and the credibility of the officers, they are

25 properly left to the jury. See Fresno Motors, LLC v. Mercedes

26 Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2015) (observing

27 that the trier of fact is the ultimate decider of how to view

28 evidence that lends itself to more than one reasonable

1 inference).

2 It is thus apparent that questions of fact precluded the

3 Court from either granting qualified immunity or holding that no

4 Fourth Amendment violation occurred. Moreover, a defendant may

5 not base an interlocutory appeal solely on whether there exists a

6 genuine dispute of fact. The Ninth Circuit has stated that it

7 “do[es] not have jurisdiction over an interlocutor appeal that

8 focuses on whether there is a genuine dispute about the

9 underlying facts.” Knox v. Southwest Airlines, 124 F.3d 1103,

10 1107 (9th Cir. 1997) (citing Armendariz v. Penman, 75 F.3d 1311,

11 1317 (9th Cir. 1996) (en banc) (“We have jurisdiction to review

12 the district court's decision that the defendants' alleged

13 conduct violated clearly established law, but the collateral

14 order doctrine does not provide appellate jurisdiction to review

15 the district court's decision that genuine issues of material

16 fact exist for trial”). As such, Defendants’ argument that there

17 are no factual disputes is without merit upon appeal.

18 Defendants next contend that qualified immunity should have

19 been granted because a reasonable officer would not have known

20 that his alleged conduct violated clearly established law. Opp’n

21 at 5. While this issue is appropriate for an interlocutory

22 appeal, the Court finds Defendants’ argument in support of this

23 issue to be baseless such that the appeal is frivolous.

24 The main thrust of Defendants’ argument is that the Court

25 failed to apply the appropriate degree of specificity in its

26 qualified immunity analysis. Id. Defendants put forth that

27 “whether the violative nature of particular conduct is clearly

28 established” is a question to be answered “not as a broad general

1 proposition,” but with reference to the facts of specific cases.

2 Opp’n at 5, citing Mullenix v. Luna, 577 U.S. 7, 12 (2015). In

3 the absence of a case directly on point, the Ninth Circuit

4 compares “specific factors” relevant to the excessive force

5 inquiry to determine whether a reasonable officer would have

6 known that the conduct in question was unlawful. Bryan v.

7 MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). Based on these

8 principles of law, Defendants argue that the Court improperly

9 denied qualified immunity on the broad generalization that an

10 officer may not use excessive force, instead of utilizing a “more

11 factually-individualized analysis” as directed by the Ninth

12 Circuit. Opp’n at 5

13 The record proves the opposite to be true. At hearing, the

14 Court considered specific caselaw analogous to the present case.

15 In particular, the Court considered two cases put forth by

16 Plaintiffs: S.B. v. Cnty. of San Diego, 864 F.3d 1010 (9th Cir.

17 2017) (holding that it was a violation of the Fourth Amendment

18 for an officer to shoot a man for grabbing a knife while kneeling

19 six to eight feet from the nearest officer when there were non-

20 lethal options available) and Chew v. Gates, 27 F.3d 1432, 1442-

21 43 (9th Cir. 1994) (surmising that it is not reasonable as matter

22 of law for an officer to release a dog “trained to seize suspects

23 by biting hard and holding” upon a suspect who was merely quietly

24 hiding).

25 Taking Plaintiffs’ version of the facts on summary judgment,

26 the Court found that Defendants were on notice that their conduct

27 violated Decedent’s Fourth Amendment rights. Under S.B. v. Cnty

28 of San Diego, it was a clear violation for Defendant Gonzalez to

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1 shoot a man struggling to wiggle out of a narrow window of an

2 overturned car, even if he were wielding a knife. And under

3 Chew, it was a clear violation for Defendant Fleming to use his

4 canine unit against a man who had just been shot and was lying

5 completely still.

6 Because Defendants fail to distinguish either case in their

7 opposition, much less discuss them in the context of Plaintiffs’

8 facts, their appeal is patently frivolous. The Court engaged in

9 a fact specific inquiry, as directed by the Ninth Circuit, and

10 Defendants have not shown otherwise.

11 In sum, the Court denied qualified immunity because there

12 were genuine issues of material fact despite aerial video footage

13 and because Plaintiffs’ version of the facts supports a finding

14 that Defendants violated clearly established Fourth Amendment

15 law. Accordingly, the Court concludes that Defendants’ appeal is

16 frivolous under Chuman and hereby certifies as much.

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18 Til. ORDER

19 For the reasons set forth above, the Court GRANTS

20 Plaintiffs’ Motion to Certify Defendants’ Appeal as Frivolous.

21 IT IS SO ORDERED.

22 Dated: February 6, 2023

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open

JOHN A. MENDEZ

25 SENIOR UNITED*STATES DISTRICT JUDGE

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