Dew v. City of Seaside

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 LORI DEW, et al., Case No. 19-cv-06009-HSG

8 Plaintiffs, ORDER GRANTING MOTION FOR

SUMMARY JUDGMENT

9 v.

Re: Dkt. No. 49

10 CITY OF SEASIDE, et al.,

11 Defendants.

12

13 As successors-in-interest of Brandon Virtue, Plaintiffs bring this suit against Seaside

14 Police Chief Abdul Pridgen (“Pridgen”) and former Seaside Police Officer Manuel Fernandez

15 (“Fernandez) (collectively, “Individual Defendants”) and the City of Seaside (together,

16 “Defendants”), alleging claims under 42 U.S.C. § 1983 (“Section 1983”) and various state law

17 claims. Pending before the Court is Defendants’ motion for summary judgment, briefing for

18 which is complete. See Dkt. Nos. 49 (“Mot.”), 51 (“Opp.”), 52 (“Reply”). The Court held a

19 hearing on the motion for summary judgment on March 4, 2021. Dkt. No. 56. Following the

20 hearing, the Court directed the parties to submit supplemental briefing concerning Defendants’

21 claim of qualified immunity. See Dkt. Nos. 63 (“PSupp.”) and 64 (“DSupp.”). For the reasons

22 stated below, the Court GRANTS Defendants’ motion as to all federal claims. The Court declines

23 to exercise supplemental jurisdiction over Plaintiffs’ remaining state law claims and DISMISSES

24 those claims WITHOUT PREJUDICE to their reassertion in state court.

25 I. BACKGROUND

26 This case arises from the shooting of Brandon Virtue by Manuel Fernandez on September

27 20, 2018, and Virtue’s suicide on February 19, 2019. On September 19, 2018, Virtue was out on

1 Services Unit. Dkt. No. 51-1, Declaration of Jeremy Lessem (“Lessem Decl.”), Ex. A, Deposition

2 of Laudemer Palado (“Palado Dep.”) at 26:21-27:10. On September 19, Probation Officer Palado

3 learned of a call reporting that Virtue might be violating the terms of his release. Id. at 21:4-

4 22:21. Probation Officer Palado met with Virtue’s assigned probation officer, Probation Officer

5 Balcazar, Probation Officer Nishimura, Probation Officer Massey, and their supervisor to develop

6 “a safe plan to contact Mr. Virtue.” Id. at 31:19-33:16; 36:20-37:7. The probation officers

7 contacted Sand City Police Department (“Sand City”) to debrief Sergeant Bushnell and further

8 coordinate. Id. at 33:21-23; 37: 8-13; 40:25-41:14. That same day, Probation Officers Palado,

9 Balcazar, Nishimura, and Massey met with Sergeant Bushnell, Commander Graziano, and another

10 Sand City officer at the Sand City Police station and developed a plan to safely contact and detain

11 Virtue. Id. at 42:21-49:24. Commander Graziano went to the target location, but the plan changed

12 when Virtue unexpectedly left and got into his SUV and drove off before officers could approach

13 him. Id. at 53:1-18.

14 Officers tried to initiate a traffic stop, but Virtue did not pull over. Dkt. No. 49-1, Ex. A

15 (“Dashcam Video”); Lessem Decl., Ex. M (“Guzman Sanchez Expert Clarification”). Five law

16 enforcement vehicles began pursuing Virtue. Palado Dep. at 58:19-59:10. Sand City was leading

17 the pursuit and was communicating over the radio. Id. at 59:1-10; 60:10-21. Then-Seaside Police

18 Officer Defendant Fernandez was at Seaside High School on an unrelated call when he learned of

19 Sand City’s pursuit over his radio. Dkt. No. 62-1, Deposition of Defendant Fernandez

20 (“Fernandez Dep.”) at 39:5-10; 43:3-23. Defendant Fernandez decided to join the pursuit without

21 communicating with other officers. Id. at 49:22-50:14; 52:15-21; 55:13-56:4.1

22 Defendant Fernandez first saw Virtue’s SUV as it was being pursued by Sand City near the

23 intersection of Fremont and Monterey Road. Id. at 62:15-20; 66:10-17. Defendant Fernandez

24 joined the pursuit without any knowledge of why Sand City was conducting a traffic stop or who

25 the driver was. Id. at 94:4-13. Defendant Fernandez positioned his police cruiser in front of

26

27

1 Plaintiffs contend that Defendant Fernandez joined the pursuit without invitation and in violation

1 Virtue’s SUV and drove in a “serpentine” motion, intending to prevent Virtue from passing. Id. at

2 70:25-71:20; 77:13-78:11. Virtue’s SUV eventually came to a stop on an embankment, but the

3 parties present different accounts of the details leading up to that point. Defendants contend that

4 Virtue “attempted to overtake Officer Fernandez’s vehicle on the left side,” and when Virtue

5 “accelerated and attempted to pass Officer Fernandez’s vehicle on the left by driving partially on

6 the center median of Fremont Boulevard . . . the right rear of [Virtue’s SUV] collided with the left

7 portion of Officer Fernandez’s vehicle.” Mot. at 5–6. Plaintiffs contend that Defendant

8 Fernandez “rammed his vehicle into the right side of Virtue’s vehicle, where an innocent

9 passenger, Jessica Fallstich was seated,” and caused Virtue’s SUV to lose control and come to a

10 stop. Opp. at 7. Citing the opinion by a police practices expert, Jeff Noble, Plaintiffs further

11 argue that Defendant Fernandez’s “reckless tactics created the alleged danger that resulted in the

12 use of deadly force.” See Dkt. No. 51-2, Declaration of Jeff Noble (“Noble Decl.”) ¶ 8.

13 Once Virtue’s SUV came to a stop on the embankment, Virtue got out and began to run

14 along the dirt embankment on the side of the road. Dashcam Video; Guzman Sanchez Expert

15 Clarification. Defendant Fernandez got out of his cruiser and pursued Virtue on foot with his gun

16 drawn and pointed in Virtue’s direction. Id.; see also Dkt. No. 49-1, Declaration of Manuel

17 Fernandez (“Fernandez Decl.”) ¶ 19 (“As I saw Mr. Virtue fleeing, I began to give chase on foot

18 and trained my weapon on Mr. Virtue as I did so.”). The parties again contest key details of what

19 followed.

20 Defendant Fernandez attests that he could see a weighted object in Virtue’s front pocket,

21 that he saw Virtue’s hands go down to his waistband area, and that Virtue “outstretched his arms”

22 in his direction in what he perceived to be a “shooting posture,” with a dark object that he

23 perceived to be a gun. Fernandez Decl. ¶ 18, 20. Defendant Fernandez indicates that though he

24 feared for his safety and the safety of others, he did not fire his weapon at the time because he was

25 “concerned about injuring an innocent person with an errant shot.” Id. at ¶ 21. But Defendant

26 Fernandez details that he again saw Virtue’s hands go toward his waist area and “begin to quickly

27 come up again as [Virtue] began to turn towards [him].” Id. at ¶ 22. According to Defendant

1 others and had a more stable platform to shoot from. Id.

2 Plaintiffs argue that Virtue’s hands were completely empty the entire time he was running

3 along the dirt embankment. Guzman Sanchez Expert Clarification at 1:07-1:10; see also Dkt. No.

4 59, Deposition of Jason Fries (“Fries Dep.”), Ex. C (“Fries Expert Animation”) at :37-:45; :46-

5 1:05; 1:49-2:05; Declaration of Thomas Guzman Sanchez (“Guzman Sanchez Decl.”), Ex. A

6 (“Guzman Sanchez Expert Report”) at 17:13-20. With respect to the first gesture Defendant

7 Fernandez refers to, Plaintiffs’ interpretation is that Virtue turned his body towards Defendant

8 Fernandez, holding his hands open in a “hands up” gesture,” and that Defendant Fernandez did not

9 fire his weapon during this gesture. Guzman Sanchez Expert Clarification at 1:07; 1:43-1:47.

10 According to Plaintiffs, Virtue completed the “hands up” gesture, and took additional steps with

11 his hands down, facing forward and away from Defendant Fernandez, when Defendant Fernandez

12 fired one shot and struck Virtue in the lower left back area. Id. at 1:07-09; 1:43-1:47; Lessem

13 Decl., Ex. L (“NATIVIDAD Medical Records”) at Bates 001778, 001780. Plaintiffs argue that

14 Virtue never brought his hands together, never locked his elbows, and never turned his body

15 towards Defendant Fernandez a second time as Defendant Fernandez describes. See Guzman

16 Sanchez Expert Clarification at 1:07-09; 1:45-1:47. Plaintiffs contend that the defense expert’s

17 animation demonstrates that Defendant Fernandez had “a clear and unobstructed view of Mr.

18 Virtue’s empty hands before shooting him.” See Fries Expert Animation at 1:02; 1:49-2:05.

19 Plaintiffs also note that no one else is in the camera frame of the dashcam video, and contend that

20 Virtue’s efforts to run away did not pose any danger to anyone. See Guzman Sanchez Expert

21 Clarification at 1:00-1:10.

22 Plaintiffs also challenge other aspects of Defendant Fernandez’s account. Defendant

23 Fernandez attests that he immediately recognized Virtue when he got out of his vehicle.

24 Fernandez Decl. ¶ 17. Though Defendant Fernandez had not had any contact with Virtue before

25 the day of the incident, Defendant Fernandez believes that he was shown a picture of Virtue and

26 that other officers had informed him of Virtue’s history of domestic violence, drug and firearm-

27 related charges, and fighting with the police. See Fernandez Decl. ¶ 17; Fernandez Dep. at 94:17-

1 stop and later yelled “[g]un, gun, gun, gun” when he saw a dark object in Virtue’s pocket that he

2 perceived to be a gun. See Fernandez Dep. at 89:6-9; 90:17-22; 101:16-20; 102:18-103:1;

3 Fernandez Decl. ¶ 18. But Plaintiffs contend that the audio recording from the dashcam

4 demonstrates that Defendant Fernandez did not give any commands to Virtue or any warning that

5 deadly force would be used. Guzman Sanchez Expert Clarification at 1:00-1:10. Plaintiffs further

6 contend that the expert clarification and analysis of the dashcam audio instead demonstrates that

7 Defendant Fernandez said “You’d rather be running?,” and that Virtue responded by stating,

8 “Don’t shoot officer. I’m not armed.” Guzman Sanchez Expert Report at 12:12-13; 16:15-16.

9 What Plaintiffs say Virtue said was true: it is undisputed that he was not actually armed

10 during the foot pursuit or when he was shot. Following the shooting, a tool battery was found in

11 Virtue’s sweatshirt pocket. Dkt. No. 63-3 at 78:14-79:25; see also Palado Dep. at 79:23-25.

12 Virtue suffered a complete spinal cord injury resulting in paraplegia in the shooting.

13 NATIVIDAD Medical Records at Bates 001798, 001810. On January 30, 2019, Virtue’s doctor

14 told him that stem cell research would not provide any help in his lifetime. Lessem Decl., Ex. G at

15 97:22-98:9. On February 19, 2019, Virtue took his own life. See id. at 88:1-4; Dkt. No. 51-3 ¶ 9.

16 II. LEGAL STANDARD

17 Summary judgment is proper when a “movant shows that there is no genuine dispute as to

18 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

19 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson

20 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is evidence in the

21 record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. The

22 Court views the inferences reasonably drawn from the materials in the record in the light most

23 favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

24 574, 587–88 (1986), and “may not weigh the evidence or make credibility determinations,”

25 Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled on other grounds by Shakur v.

26 Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008).

27 The moving party bears both the ultimate burden of persuasion and the initial burden of

1 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the

2 moving party will not bear the burden of proof on an issue at trial, it “must either produce

3 evidence negating an essential element of the nonmoving party's claim or defense or show that the

4 nonmoving party does not have enough evidence of an essential element to carry its ultimate

5 burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102

6 (9th Cir. 2000). Where the moving party will bear the burden of proof on an issue at trial, it must

7 also show that no reasonable trier of fact could not find in its favor. Celotex Corp., 477 U.S. at

8 325. In either case, the movant “may not require the nonmoving party to produce evidence

9 supporting its claim or defense simply by saying that the nonmoving party has no such evidence.”

10 Nissan Fire & Marine Ins. Co., 210 F.3d at 1105. “If a moving party fails to carry its initial

11 burden of production, the nonmoving party has no obligation to produce anything, even if the

12 nonmoving party would have the ultimate burden of persuasion at trial.” Id. at 1102–03.

13 “If, however, a moving party carries its burden of production, the nonmoving party must

14 produce evidence to support its claim or defense.” Id. at 1103. In doing so, the nonmoving party

15 “must do more than simply show that there is some metaphysical doubt as to the material facts.”

16 Matsushita Elec. Indus. Co., 475 U.S. at 586. A nonmoving party must also “identify with

17 reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91

18 F.3d 1275, 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its

19 claim or defense, courts enter summary judgment in favor of the movant. Celotex Corp., 477 U.S.

20 at 323.

21 III. ANALYSIS

22 Plaintiffs allege various state law claims and violations of Section 1983 for (1) excessive

23 force in violation of the Fourth Amendment, (2) deprivation of substantive due process in

24 violation of the Due Process clause of the Fourteenth Amendment, and (3) municipal liability for

25 unconstitutional custom or policy under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1989).2 See

26

2 Plaintiffs also allege a wrongful death action under Section 1983, see Compl. ¶¶ 75–84. To the

27

extent Plaintiffs are attempting to state a Section 1983 claim separate from the excessive force

1 Dkt. No. 1 (“Compl.”) ¶¶ 34–123. Defendants move for summary judgment as to all of Plaintiffs’

2 causes of action. Defendants argue that Plaintiffs’ Section 1983 claims against Defendant

3 Fernandez and Defendant Pridgen fail because they acted reasonably, Plaintiffs fail to demonstrate

4 the existence of a constitutional violation, and they are entitled to qualified immunity.3 Mot. at 9.

5 Defendants argue that Plaintiffs’ Monell claim fails because there is no evidence of an official

6 policy, practice or custom that caused a deprivation of civil rights. Id. The Court GRANTS

7 Defendants’ motion as to all federal claims and declines to exercise supplemental jurisdiction over

8 the remaining state law claims.

9 A. Excessive Force

10 With respect to Plaintiffs’ excessive force claim, Defendants argue that Defendant

11 Fernandez is entitled to qualified immunity. Mot. at 15–16; Reply at 2–4. The doctrine of

12 qualified immunity protects “government officials . . . from liability for civil damages insofar as

13 their conduct does not violate clearly established statutory or constitutional rights of which a

14 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

15 “Qualified immunity gives government officials breathing room to make reasonable but mistaken

16 judgments about open legal questions. When properly applied, it protects ‘all but the plainly

17 incompetent or those who knowingly violate the law.’ ” Ashcroft v. al-Kidd, 563 U.S. 731, 743

18 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

19 A court considering a claim of qualified immunity makes a two-pronged inquiry: (1)

20 whether the plaintiff has alleged the deprivation of a constitutional right, and (2) whether such

21 right was clearly established at the time of the deprivation. See Pearson v. Callahan, 555 U.S.

22 223, 232 (2009) (citing Saucier v. Katz, 535 U.S. 194, 201 (2001)). The court may exercise its

23

24

No. 15-CV-03226-NJV, 2016 WL 379806, at *4 (N.D. Cal. Jan. 29, 2016) (noting that “there is no

‘wrongful death’ claim under § 1983”). In any event, the Court finds that Defendant Fernandez

25

would be entitled to qualified immunity as to any such claim, because Plaintiffs point to no case

law showing that the asserted federal right was clearly established at the time of the shooting (or

26

ever). The qualified immunity legal standard is discussed in Section III(A) infra.

3 Plaintiffs alleged a Section 1983 claim against Defendant Pridgen for failure to supervise and

27

train. Compl. ¶ 64. But Plaintiffs conceded at the hearing that they did not present evidence

1 discretion in deciding which prong to address first, in light of the particular circumstances of each

2 case. Id. at 236 (noting that while the Saucier sequence is often appropriate and beneficial, it is no

3 longer mandatory). “[U]nder either prong, courts may not resolve genuine disputes of fact in

4 favor of the party seeking summary judgment,” and must, as in other cases, view the evidence in

5 the light most favorable to the nonmovant. Tolan v. Cotton, 572 U.S. 650, 656 (2014).

6 Plaintiffs allege that Defendant Fernandez used excessive force in violation the Fourth

7 Amendment. This claim is reviewed under the Fourth Amendment’s “objective reasonableness”

8 standard. Graham v. Connor, 490 U.S. 386, 388 (1989). To evaluate the reasonableness of

9 Defendant’s actions, the Court “must balance the severity of the intrusion on the individual’s

10 Fourth Amendment rights against the government’s need to use force.” Newmaker v. City of

11 Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016). The Ninth Circuit employs a three-step analysis:

12 First, [the Court] must assess the severity of the intrusion on the

individual’s Fourth Amendment rights by evaluating the type and

13 amount of force inflicted. Even where some force is justified, the

amount actually used may be excessive. Second, [the Court]

14 evaluate[s] the government’s interest in the use of force. Finally, [the

Court] balance[s] the gravity of the intrusion on the individual against

15 the government’s need for that intrusion.

16 Glenn v. Washington Cty., 673 F.3d 864, 871 (9th Cir. 2011) (internal quotations and citations

17 omitted). “A desire to resolve quickly a potentially dangerous situation is not the type of

18 governmental interest that, standing alone, justifies the use of force that may cause serious injury.”

19 Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001).

20 Viewing the evidence in the light most favorable to Plaintiffs, the Court first finds that they

21 have shown a triable issue of fact as to whether Virtue was deprived of a constitutional right. A

22 jury could reasonably conclude that the alleged intrusion on Virtue’s Fourth Amendment rights,

23 measured by the “type and amount of force inflicted,” was substantial. Id. at 1279. Plaintiffs

24 point to evidence that Defendant Fernandez shot Virtue in the back when Virtue “was facing away

25 from Fernandez, [with] his arms down by his side and his hands were completely empty.” Opp. at

26 15–16; Guzman Sanchez Expert Clarification at 1:07-1:10; Guzman Sanchez Expert Report at 16:

27 11-17:20. Plaintiffs further contend, based on the dashcam footage, that Virtue never brought his

1 second time, and that Defendant Fernandez failed to give any commands to Virtue or give any

2 warning that deadly force would be used. Guzman Sanchez Expert Clarification at 1:00-1:10;

3 1:45-1:47; Guzman Sanchez Expert Report at 12:12-13; 16:15-16. Plaintiffs note that Defendant

4 Fernandez asked Virtue, “You’d rather be running?,” demonstrating that Defendant Fernandez

5 could have given a warning. Guzman Sanchez Expert Report at 12:12-13; 16:15-16. Viewing the

6 evidence in the light most favorable to Plaintiffs, and resolving any disputes of fact in their favor,

7 the Court finds that a jury could reasonably conclude Defendant Fernandez used significant force

8 when he shot Virtue in the back, without warning, while Virtue was running away empty-handed

9 with his arms by his side. That jury also could find that these facts amounted to an excessive and

10 unjustified use of force that violated Virtue’s rights.

11 Defendant Fernandez’s asserted interest in the use of force is that he was reacting to a

12 gesture that he perceived as a threat. Mot. at 12–13. However, “a simple statement by an officer

13 that he fears for his safety or the safety of others is not enough; there must be objective factors to

14 justify such a concern.” Deorle, 272 F.3d at 1281. Noting that no one else was in the camera

15 frame of the dashcam video, Plaintiffs argue that Virtue’s efforts to run away did not pose any

16 potential danger to any officer or civilian. Guzman Sanchez Expert Clarification at 1:00-1:10; see

17 also Noble Decl. ¶ 13. Defendants point to Virtue’s attempt to evade arrest, Virtue’s “threatening

18 gestures,” Defendant Fernandez’s “immediate” recognition of Virtue as someone with “a history

19 of violent contacts with police and fire-arm related offenses,” Defendant Fernandez’s observation

20 of a weighted object in Virtue’s pocket, the surrounding “heavily populated urban area,” and

21 Virtue’s “purposeful colli[sion]” with Defendant Fernandez’s cruiser that amounted to “assault

22 with a deadly weapon.” Mot. at 12–15.

23 Plaintiffs’ evidence, including video of the pursuit and incident, calls some of Defendants’

24 characterization into question. See e.g., Guzman Sanchez Expert Clarification at 1:00-1:10. First,

25 there is a factual dispute regarding whether Defendant Fernandez knew who Virtue was or what

26 criminal history he had. The record reflects that Defendant Fernandez had not had any contact

27 with Virtue prior to the day of the incident, but Defendant Fernandez says he believes that he was

1 violence, drug and firearm-related charges, and fighting with the police. See Fernandez Decl. ¶

2 17; Fernandez Dep. at 94:17-95:4; 95:18-96:11; 96:20-100:17. In light of the circumstances, a

3 jury easily could find Defendant Fernandez’s story not credible. Second, there is a factual dispute

4 regarding whether Virtue turned his body towards Defendant Fernandez a second time as

5 Defendant Fernandez describes. See id. at 1:07-09; 1:43-1:47. In analyzing the dashcam video,

6 Plaintiffs’ expert contends that the video shows Virtue was not facing Defendant Fernandez at the

7 time of the shooting. Guzman Sanchez Expert Report at 16:1-4. Accordingly, when balancing the

8 nature of the intrusion against Defendant Fernandez’s asserted need for that intrusion, the Court

9 finds that, viewing the evidence in the light most favorable to Plaintiffs, and resolving any

10 disputes of fact in their favor, Plaintiffs have shown at least a triable issue of fact as to whether

11 Defendant Fernandez deprived Virtue of a constitutional right.4

12 Under the second prong of the qualified immunity inquiry, “[a]n officer ‘cannot be said to

13 have violated a clearly established right unless the right’s contours were sufficiently definite that

14 any reasonable official in [his] shoes would have understood that he was violating it.’ ” City &

15 Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (quoting Plumhoff v.

16 Rickard, 572 U.S. 765, 778 (2014)). While this does not “require a case directly on point, [ ]

17 existing precedent must have placed the statutory or constitutional question beyond debate.”

18 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The Supreme Court has “repeatedly told courts . . .

19 not to define clearly established law at a high level of generality.” Id. at 742. And the Supreme

20 Court has further instructed that, where “the result depends very much on the facts of each case . .

21 . officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the

22

23

4 Defendants contend that Defendant Fernandez’s decision to use deadly force was “entirely

reasonable under the totality of circumstances,” characterizing Scott v Harris, 550 U.S. 372

24

(2007), as a factually analogous case holding that a police officer’s actions in attempting to stop a

fleeing motorist were reasonable. DSupp. at 15. In Scott, the United States Supreme Court found

25

that a videotape capturing the events underlying the plaintiff’s excessive force claim contradicted

his version of events such that no reasonable jury could believe him, and thus viewed the facts in

26

the light depicted by the videotape. Id. at 378–84. In doing so, the Scott Court held that it was

clear that the defendant did not violate the Fourth Amendment. Id. at 381. But the video

27

recording in this case is readily subject to more than one interpretation, particularly in light of the

1 specific facts at issue.” Nicholson v. City of Los Angeles, 935 F.3d 685, 695 (9th Cir. 2019)

2 (citing Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)); see also City of Escondido v. Emmons,

3 139 S. Ct. 500, 504 (2019) (“[W]e have stressed the need to identify a case where an officer acting

4 under similar circumstances was held to have violated the Fourth Amendment. . . . While there

5 does not have to be a case directly on point, existing precedent must place the lawfulness of the

6 particular [action] beyond debate.”) (internal quotations omitted and brackets in original).

7 Plaintiffs contend that Defendant Fernandez’s use of deadly force was contrary to

8 established law set out in Tennessee v. Garner, 471 U.S. 1, 11 (1985), which held that “an officer

9 can only use deadly force to effect the arrest of a fleeing felon if, under the circumstances, he

10 reasonably believed such force was necessary to protect himself or others from death or serious

11 physical harm.” PSupp. at 1 Plaintiffs argue that at the time of the shooting, existing precedent

12 clearly established that it is a “Fourth Amendment violation to shoot a person who is unarmed and

13 poses no threat of serious bodily injury or death.” Opp. at 19. In arguing that existing precedent

14 placed the unlawfulness of Defendant Fernandez’s actions beyond dispute, Plaintiffs cite Garner

15 and five other cases: Longoria v. Pinal County, 873 F.3d 699 (9th Cir. 2017), Cruz v. Anaheim,

16 765 F.3d 1067 (9th Cir. 2014), Landeros v. City of Tustin, 837 F.3d 1005 (9th Cir. 2016), Curnow

17 v. Ridgecrest Police, 952 F.2d 321 (9th Cir. 1991), and Estate of Lopez v. Gelhaus, 871 F.3d 998

18 (9th Cir. 2017). See id. at 6–15.

19 Here, because the legality or illegality of Defendant Fernandez’s actions depends very

20 much on the facts, Plaintiffs must identify precedent that “squarely governs” the specific facts at

21 issue. See Nicholson, 935 F.3d at 695. Looking to the facts of this case, the Court cannot say that

22 any reasonable officer in Defendant Fernandez’s position would have known “beyond debate,”

23 based on any case cited by Plaintiffs, that he was violating the Constitution. None of those cases

24 involved a suspect who continued to flee on foot following a vehicle collision, or presented

25 sufficiently similar facts so as to place the lawfulness of Defendant Fernandez’s actions beyond

26 debate. See, e.g., Garner, 471 U.S. at 3–4, 21 (officer with no basis to believe burglary suspect

27 was armed shot suspect in the back of the head as suspect climbed over a fence); Curnow, 952

1 shot suspect inside his home and a second time as he exited his home with his gun). The cases

2 cited that involved vehicle collisions ended with the suspect inside or near the vehicle and

3 presented markedly different facts, including conduct that potentially reflected an intention to

4 surrender or comply with an order. See Longoria, 873 F.3d at 705 (officer shot and killed

5 unarmed suspect, who was surrounded by law enforcement officers and “in the process of putting

6 his hands over his head reflexively or in an effort to surrender” after being tased and shot with

7 bean bags); Cruz, 765 F.3d at 1078–80 (officers surrounding suspect with guns draw shot suspect

8 after suspect opened car door). And other cases involved no attempt to flee at all. See Landeros,

9 837 F.3d at 1009, 1011–12 (officer responding to domestic dispute drove up to suspect who was

10 on foot and quickly resorted to use of deadly force after suspect complied with command to

11 remove his hand from his pocket); Lopez, 871 F.3d 1002–04 (officer shot teen-aged suspect who

12 was walking in the direction away from the officers with a toy gun that looked like an AK-47 in

13 broad daylight); see Graham, 490 U.S. at 396 (noting that “whether [a plaintiff] is actively

14 resisting arrest or attempting to evade arrest by flight” is relevant in assessing the “totality of the

15 circumstances” preceding an officer’s use of force).

16 The Court finds that none of these cases squarely govern the specific facts at issue under

17 the standard required by the Supreme Court. As previously noted, the qualified immunity

18 standard is exacting, “protect[ing] ‘all but the plainly incompetent or those who knowingly violate

19 the law.’” Ashcroft, 563 U.S. at 743 (quoting Malley, 475 U.S. at 341). Accordingly, the Court is

20 compelled to find that Defendant Fernandez is entitled to qualified immunity, and GRANTS

21 Defendants’ motion for summary judgment as to the excessive force claim.

22 In reaching this conclusion, the Court notes that there is much about this shooting that

23 would benefit from a jury’s careful assessment and judgment, including Defendant Fernandez’s

24 decision to fire in the direction of a high-school athletic field, within a matter of seconds and while

25 on the run, and his questionable claim to have immediately identified the suspect as a violent felon

26 despite never having seen him in person before. As the Ninth Circuit has explained, excessive

27 force cases “almost always turn on a jury’s credibility determinations,” such that summary

1 (9th Cir. 2005). But the qualified immunity standard routinely precludes federal juries of the

2 plaintiff’s and defendant’s peers from evaluating the conduct of police officers, even where, as

3 here, a shooting results in paralysis or even death. This rule thus negates the critical role of juries

4 in assessing the reasonableness of lethal force applied in the community’s name. As Judge

5 Molloy of the District of Montana has aptly explained:

The jury of any given community in our federal system plays a

6 significant constitutional role. When violence occurs, whether

prosecuted by the state or claimed as a violation of the constitutional

7 prohibition against the use of excessive force, the community should

have a role. . . . Part of that role is based on a community’s judgment

8 of the propriety and extent of force that is justifiable.

9 Brawley v. Punt, 186 F.Supp.3d 1102, 1107 (D. Montana 2016).

10 The current state of the qualified immunity doctrine thus imposes very significant costs on

11 American communities. This Court admits to having “strong doubts” about the application of that

12 doctrine in cases like this one, paralleling the conclusion recently reached by a Justice of the

13 United States Supreme Court. See Baxter v. Bracey, --- U.S. ----, 140 S. Ct. 1862, 1865, 207 L.

14 Ed. 2d 1069 (2020) (Thomas, J., dissenting from denial of certiorari). Because, as noted below,

15 the Court declines supplemental jurisdiction over the state law claims (to which qualified

16 immunity does not apply), perhaps a California state court jury will someday have the opportunity

17 to serve this vital community oversight function as to those claims.

18 B. Substantive Due Process

19 Defendants also move for summary judgment on Plaintiffs’ Fourteenth Amendment

20 substantive due process claim against Defendant Fernandez. “Parents and children may assert

21 Fourteenth Amendment substantive due process claims if they are deprived of their liberty interest

22 in the companionship and society of their child or parent through official conduct.” Lemire v.

23 California Dep’t of Corr. & Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013) (citation omitted).

24 “[O]nly official conduct that ‘shocks the conscience’ is cognizable as a due process violation.”

25 Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (quoting Cnty. of Sacramento v. Lewis, 523

26 U.S. 833, 846 (1998)). “Where actual deliberation is practical, then an officer’s ‘deliberate

27 indifference’ may suffice to shock the conscience.” Hayes v. Cty. of San Diego, 736 F.3d 1223,

1 disregard the consequences of one’s acts or omissions.” Tatum v. Moody, 768 F.3d 806, 813 (9th

2 Cir. 2014). “On the other hand, where a law enforcement officer makes a snap judgment because

3 of an escalating situation, his conduct may be found to shock the conscience only if he acts with a

4 purpose to harm unrelated to legitimate law enforcement objectives.” Hayes, 736 F.3d at 1230

5 (citation omitted); see also Tatum, 768 F.3d at 821 (noting examples of circumstances where

6 “[d]eliberation is impractical” include “chasing a fleeing suspect or responding to gunfire in

7 crowded public spaces”).

8 Plaintiffs have not met their burden to show a triable issue of fact as to whether Defendant

9 Fernandez’s conduct shocked the conscience under either standard. Additionally, Defendant

10 Fernandez is entitled to qualified immunity because there was no clearly established law that

11 would have placed him on notice that his conduct violated the Fourteenth Amendment. See T.D.P.

12 v. City of Oakland, No. 3:16-CV-04132-LB, 2019 WL 913840, at *18 (N.D. Cal. Feb. 24, 2019)

13 (finding plaintiffs failed to meet either standard and noting that “[i]n any event, the defendants

14 [were] entitled to qualified immunity”); see also Rivera v. Cater, No. 218CV00056WBSEFB,

15 2019 WL 5102287, at *5 (E.D. Cal. Oct. 11, 2019) (finding defendants were entitled to qualified

16 immunity because “just as there was no clearly established law to put the officers on notice that

17 their conduct was violative of the Fourth Amendment, there was even less law to even suggest that

18 their conduct violated the Fourteenth Amendment right to familial association”). Accordingly, the

19 Court GRANTS the motion for summary judgment as to the substantive due process claim.

20 C. Monell

21 Defendants argue that Plaintiffs’ Section 1983 Monell claim against Defendant City of

22 Seaside fails as a matter of law. Mot. at 9. A municipality is not subject to § 1983 liability based

23 on a theory of respondeat superior. See Monell, 436 U.S. at 691. To establish municipal liability

24 under Monell, a plaintiff must show that his injury was caused by an official policy or custom.

25 See id. at 694. A plaintiff can establish the existence of a municipal policy in three ways: “by

26 showing that the alleged violation in question was committed by the employee pursuant to a

27 longstanding practice or custom; by showing that the employee causing the violation in question

1 or her actions ‘ratified’ by the ‘final policymaker.’ ” Harris v. City & Cty. of San Francisco, No.

2 C 08-2353 PJH, 2009 WL 2421732, at *13 (N.D. Cal. Aug. 6, 2009) (citing Christie v. Iopa, 176

3 F.3d 1231, 1235–40 (9th Cir.1999); see also Heath v. City of Desert Hot Springs, 618 F. App’x

4 882, 885 (9th Cir. 2015) (same). “After proving that one of the three circumstances existed, a

5 plaintiff must also show that the circumstance was (1) the cause in fact and (2) the proximate

6 cause of the constitutional deprivation.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996);

7 Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). “A single constitutional

8 deprivation ordinarily is insufficient to establish a longstanding practice or custom.” Christie, 176

9 F.3d at 1235.

10 Here, Plaintiff asserts a Monell claim based on a theory of ratification. Opp. at 29. To

11 show ratification, Plaintiffs must show the “authorized policymakers approve a subordinate’s

12 decision and the basis for it.” Christie, 176 F.3d at 1239 (citation omitted). “The policymaker

13 must have knowledge of the constitutional violation and actually approve of it. A mere failure to

14 overrule a subordinate’s actions, without more, is insufficient to support a § 1983 claim.” Lytle v.

15 Carl, 382 F.3d 978, 987 (9th Cir. 2004). Defendant Pridgen details that he learned of the incident

16 later that day. Dkt. No. 49-2, Declaration of Abdul Pridgen (“Pridgen Decl.”) ¶ 7. On April 15,

17 2019, the Monterey County District Attorney’s Office informed Defendant Pridgen that it

18 concluded that Defendant Fernandez had committed no crime. Id. ¶ 8. The Seaside Police

19 Department also conducted an internal investigation 1) “to determine whether Officer Fernandez

20 had violated any Seaside PD policies on the day of the incident,” and 2) “to determine whether

21 Officer Fernandez’s use of force on the day of the incident was lawful, justified and reasonable

22 based on applicable law and Seaside PD policy.” Id. ¶ 9. The review board that conducted the

23 investigation “had access to reports, evidence and dashcam video pertaining to the subject

24 incident, as well as materials generated during the DA investigation.” Id. ¶ 10. The board

25 concluded that there was no violation of any Seaside PD policy and that the use of force was

26 reasonable. Id. ¶¶ 11–12. Here, Plaintiffs point to the conclusion of the Seaside Police

27 Department that Defendant Fernandez’s force was reasonable. Opp. at 30. Plaintiffs contend the

1 Virtue,” (2) “that Fernandez ordered Virtue to stop,” and (3) “that Virtue raised his hands in a

2 manner that simulated pointing a firearm.” Id.

3 The Court does not find Plaintiffs’ evidence sufficient to create a triable issue for Monell

4 liability under a ratification theory. Plaintiff must show more than a finding from an after-the fact

5 internal investigation. See Aguilar v. City of Los Angeles, No. CV 17-4382-CBM-MRW, 2018

6 WL 6016278, at *10 (C.D. Cal. Sept. 10, 2018) (holding that “Chief of Police and Board of

7 Commissioners’ findings that Defendants’ actions complied with policies . . . during a single,

8 after-the-fact, internal investigation . . . cannot be the sole basis for a ratification claim”); German

9 v. Roberts, No. CV 15-5237 BHS-DWC, 2017 WL 6547472, at *2 (W.D. Wash. Dec. 22, 2017)

10 (“[W]hen establishing Monell liability under a ratification theory, a plaintiff must present more

11 than just a police investigation that concludes an officer applied reasonable force.”). Plaintiffs

12 instead must point to evidence to suggest that the internal investigation “reflect[s] a policy or

13 custom that encourages or condones the alleged underlying constitutional deprivation.” German,

14 2017 WL 6547472, at *2. Plaintiffs contend that Defendant Fernandez’s “deficiencies in the areas

15 of use of excess force, credibility, and decision making” that were left unpunished “effectively

16 ratified and encouraged” behavior that “ultimately resulted in Mr. Virtue’s death.”5 Opp. at 30.

17 But this contention is contradicted by Plaintiffs’ recognition that Defendant Fernandez “was

18 repeatedly disciplined over the course of his career with the Seaside Police Department.” Id. at

19 29. The Court finds that Plaintiffs reference to Defendant Fernandez’s personnel file does not

20 create a triable issue for purposes of establishing Monell liability. Accordingly, the Court

21 GRANTS Defendants’ motion for summary judgment as to the Monell claim.

22 D. Supplemental Jurisdiction

23 A district court may decline to exercise supplemental jurisdiction if it has dismissed all

24 claims over which it has original jurisdiction. Sanford v. MemberWorks, Inc., 625 F.3d 550, 561

25

5 Defendants filed evidentiary objections to evidence that Plaintiffs submitted in opposition to the

26

motion for summary judgment, including Defendant Fernandez’s personnel file. Dkt. No. 52-1.

However, Defendants’ submission does not comply with Civil Local Rule 7-3(c), which requires

27

that “[a]ny evidentiary and procedural objections to the opposition must be contained within the

1 (9th Cir. 2010) (citing 28 U.S.C. § 1367(c)(3)). “[I]n the usual case in which all federal-law

2 claims are eliminated before trial, the balance of factors to be considered under the pendent

3 jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward

4 || declining to exercise jurisdiction over the remaining state-law claims.” /d. (internal quotations

5 and citation omitted). Having granted summary judgment as to Plaintiffs’ federal claims, the

6 || Court, in its discretion, declines to assert supplemental jurisdiction over the remaining state law

7 claims. Accordingly, the Court DISMISSES Plaintiffs’ remaining state law claims WITHOUT

8 || PREJUDICE.

9 IV. CONCLUSION

10 The Court GRANTS Defendants’ motion for summary judgment on Plaintiffs’ Section

11 1983 claims for excessive force, substantive due process, municipal liability, and failure to

12 supervise and train. And the Court declines to exercise supplemental jurisdiction over the

13 || remaining state law claims and DISMISSES those claims WITHOUT PREJUDICE to Plaintiffs

14 || asserting them in state court. The Clerk is directed to enter judgment in Defendants’ favor in

3 15 accordance with the above and to close the case.

a 16

IT IS SO ORDERED.

|] dated: 5/4/2021

19 Abeiprerd 3. Mb).

HAYWOOD S. GILLIAM, JR.

20 United States District Judge

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