excessive force cases “nearly always require] a jury to sift through disputed factual contentions, and to draw inferences therefrom’
How later courts described this case
- excessive force cases “nearly always require] a jury to sift through disputed factual contentions, and to draw inferences therefrom’
- “[W]hether a particular use of force was reasonable is rarely determinable as a matter of law.”
- “[i]f a genuine issue of fact exists as to “what the officer and claimant did or failed to do,” qualified immunity at summary judgment is inappropriate
- recognizing that whether officer is motivated by discriminatory animus “involves questions of fact that normally should be left for trial”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘Oo’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
Present: The Honorable CHRISTINA A. SNYDER
Catherine Jeang Not Present N/A
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Not Present Not Present
Proceedings: (IN CHAMBERS - DEFENDANT DANIEL BUNCH’S
MOTION FOR SUMMARY JUDGMENT, OR IN THE
ALTERNATIVE, SUMMARY ADJUDICATION (Dkt. 91,
filed on August 30, 2024)
DEFENDANT BRANDON KIEFER’S MOTION FOR
SUMMARY JUDGMENT (Dkt. 94, filed on August 30, 2024)
DEFENDANT AARON GREEN’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,
SUMMARY ADJUDICATION (Dkt. 97, filed on August 30,
2024)
I. INTRODUCTION
On April 16, 2021, plaintiff Zeeshan Khan (“Khan’’) filed a complaint against
defendant City of Los Angeles (“City”); defendant Los Angeles Police Department
(“LAPD”); defendant Michel Moore, LAPD’s Chief of Police, in his individual and
official capacities (“Moore”); defendant Officer Aaron Green (“Green”); and Does 1
through 10. Dkt. 1 at 2.
On June 18, 2021, plaintiff Khan filed the first amended complaint, adding
Christina Astorga (“Astorga”) as a plaintiff. Dkt. 11 at 2. On August 19, 2021, plaintiffs
Khan and Astorga filed the second amended complaint, adding plaintiff Ringo Chiu
(“Chiu”) as a plaintiff. Dkt. 25 at 2. On March 2, 2022, plaintiffs Khan, Astorga, and
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
Chiu filed the third amended complaint, the operative complaint in this action. Dkt. 49
(“TAC”). The TAC named defendant Sergeant Brandon Kiefer (“Kiefer”) as Doe 1 and
defendant Sergeant Daniel Bunch (“Bunch”) as Doe 2. Dkt. 49 at 2. It alleges five
claims for relief: (1) violation of plaintiffs’ First and Fourth Amendment rights pursuant
to 42 U.S.C. § 1983 (“Section 1983”) by Kiefer, Bunch, Green, and the individual Doe
defendants; (2) violation of plaintiffs’ First and Fourth Amendment rights pursuant to
Section 1983 by Moore, Kiefer, Bunch, and the supervisory Doe defendants; (3) violation
of plaintiffs’ First and Fourth Amendment rights pursuant to Section 1983 by City and its
relevant policymaker, Moore; (4) violation of the Bane Civil Rights Act (California Civil
Code §§ 52 and 52.1) by all defendants: and (5) assault and battery against Green, Bunch,
Kiefer (in a supervisory capacity), and City (in a vicarious capacity). TAC at 10-15. On
the same day, defendant LAPD was dismissed with prejudice from the action. Dkt. 50.
On March 23, 2022, Green filed his answer to the TAC. Dkt. 53. On March 28,
2022, City, Kiefer, and Moore filed their answer to the TAC. Dkt. 55. On April 13,
2022, Bunch filed his answer to the TAC. Dkt. 60.
On March 18, 2024, pursuant to a settlement between Khan and defendants, Khan
voluntarily dismissed his claims with prejudice. Dkt. 83. Thereafter, on August 16,
2024, pursuant to a settlement between Chiu and defendants, Chiu voluntarily dismissed
his claims with prejudice. Dkt. 90.
On August 30, 2024, Bunch filed a motion for summary judgment, or in the
alternative, summary adjudication. Dkt. 91 (“MSJ 1”). He concurrently filed a statement
of uncontroverted facts, dkt. 92, and a notice of manual filing of Exhibits | and 2, dkt. 93.
On the same day, Kiefer filed a motion for summary judgment. Dkt. 94 (“MSJ 2”). He
concurrently filed a statement of uncontroverted facts, dkt. 95, and a notice of lodging of
Exhibits C and E, dkt. 96. Green also filed a motion for summary judgment, or in the
alternative, summary adjudication. Dkt. 97 (“MSJ 3”). He concurrently filed a statement
of uncontroverted facts, dkt. 98, and a notice of lodging of Exhibits 9, 10, 12, 13, 14, and
17, dkt. 99.
On September 16, 2024, Astorga, the remaining plaintiff in the case, filed
oppositions to Bunch’s motion, dkt. 106-2 (“Opp. 1”); Kiefer’s motion, dkt. 106-3 (“Opp.
2”); and Green’s motion, dkt. 106-1 (“Opp. 3”). She concurrently filed statements of
genuine disputes of material fact in response to Bunch, Kiefer, and Green’s statements of
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title ~Zeeshan H. Khan v.CityofLos Angelesetal == ssts—~—S
uncontroverted facts. Dkts. 106-4, 106-5, 106-6. She also filed a notice of manual filing
of Exhibits A, A-1, B, B-1. C. C-1. D, D-1, E, and F. Dkt. 108.
On September 23, 2024, Green filed his reply, dkt. 110 (“Reply 3”): Kiefer filed
his reply, dkt. 111 (“Reply 2”), and Bunch filed his reply, dkt. 115 (“Reply 1”). Green
did not file a response to Astorga’s statement of genuine disputes of material fact. Kiefer
concurrently filed a response to Astorga’s statement of genuine disputes of material fact,
dkt. 112 (“SUF 2”), and objections to Astorga’s evidence, dkt. 114. Bunch concurrently
filed a response to Astorga’s statement of genuine disputes of material fact, dkt. 116
(“SUF 1”); objections to Astorga’s evidence, dkt. 117: and a notice of joinder to
defendants City, Moore, and Kiefer’s motion for summary judgment, dkt. 118.
On September 30, 2024, Astorga voluntarily dismissed all claims against Moore
and voluntarily dismissed her Monell claim (the third claim for relief) against City. Dkt.
120. The remaining claims, brought by Astorga, appear to be claim one against Bunch,
Kiefer, and Green; claim two against Bunch and Kiefer; claim four against all defendants;
and claim five against all defendants.
On October 7, 2024, the Court held a hearing. Presently before the Court are
Bunch, Kiefer, and Green’s motions for summary judgment. Having carefully considered
the parties’ arguments and submissions, the Court finds and concludes as follows.
I. BACKGROUND
Unless otherwise noted, the Court references only facts that are uncontroverted and
to which evidentiary objections, if any, have been overruled.’
Defendants Kiefer and Bunch filed a series of evidentiary objections challenging
evidence submitted by Astorga. Dkt. 114: dkt. 117. To the extent the Court relies on
evidence to which there has been an objection, the Court has overruled the objection to
that evidence. Specifically as to Bunch’s objection that plaintiff's deposition excerpts are
improperly authenticated, dkt. 117 at 9, the deposition transcripts appear to be regular on
their face. Bunch does not point to any specific testimony that he claims is inaccurate.
Accordingly, the Court overrules this objection. All other objections are denied as moot.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
A. Arrival at the Demonstration
Starting in February 2020, small rallies in support of President Donald Trump were
held in the Sunland-Tuyunga area of Los Angeles, taking place every Friday on Foothill
Boulevard. Dkt. 106-5 § 1. On August 21, 2020, LAPD expected a larger demonstration,
with a presence from supporters of President Donald Trump, Black Lives Matter, and
other organizations. Id. Astorga attended this demonstration, wearing a facemask,
black shirt, black pants, a burgundy hat, and cut-off denim jacket. Id. Supporters of
President Donald Trump rallied on the north side of Foothill Boulevard, while those
opposing President Donald Trump rallied on the south side. SUF 1 2. Astorga
participated in the rally on the south side. Id.
LAPD deployed a Mobile Field Force to the demonstration because it anticipated
the potential for conflict. Dkt. 106-5 46. Sergeant Kiefer (“Kiefer”), Sergeant Bunch
(“Bunch”), and Officer Green (“Green”) were assigned to the Mobile Field Force. SUF 1
Kiefer and Bunch were both supervisors, but Bunch was subordinate to Kiefer in the
chain of command. Id. § 6. Green was Kiefer and Bunch’s subordinate. Id. Kiefer
claims that his role was to manage his entire squad and protect himself, but Astorga
disputes this fact, citing to evidence from her retained expert, Roger Clark, that Kiefer’s
role was to ensure that officers under his supervision followed LAPD policies. SUF 1 4
8. According to Astorga, Bunch and Kiefer were briefed with an Event Action Plan
(“EAP”) before the demonstration and were expected to relay the information to their
subordinates, including Green. Opp. 1 at 2-4. The EAP states that less-lethal munitions
are authorized only for target-specific means, primarily at a suspect’s naval area or belt
line, when “[a]n officer reasonably believes that a suspect or subject is violently resisting
arrest or poses an immediate threat of violence or physical harm.” Dkt. 107-2 at 5,9. It
further states that those struck with a bean bag should be transported for medical
treatment before booking and that strikes at the head, neck, spine, chest, groin, or kidneys
may cause serious injuries. Id. at 9. The EAP also recommends that officers “verbalize
basic elements of the use of force” on their body-worn cameras for “later
documentation,” and recommends and defines tactical de-escalation. Id. at 5.
At the demonstration, several squads of officers from the LAPD Foothill Division,
including Kiefer and Green, were lined up in the middle of Foothill Boulevard, to
separate the two groups. SUF 1 § 4. Bunch was tasked with forming and supervising a
portion of this line of officers, called the “skirmish line.” Id. Green was assigned to
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
protect the officers along the skirmish line with a less-than-lethal beanbag shotgun. Id. §
6. Green was trained in using the beanbag shotgun for crowd control, which had a
recommended range of between five and forty-five feet. Dkt. 106-5 4§ 7, 10.
When Green arrived at the demonstration, he claims that he observed an unknown
female, later identified as Jill O’Neill (“O’Neill’), strike an officer with a sign at 5:21:54
p-m., while standing next to Astorga. Dkt. 106-5 § 11. Astorga disputes this fact,
alleging that the body-worn video (“BWV”) shows that O’ Neill did not strike, but was
jostled by, an officer. Id. Green claims that five seconds later, he saw Astorga grab an
officer’s baton while in a verbal confrontation. Id. J 12. Astorga claims that the BWV
shows an officer jostling with two women, as Astorga held the baton reflexively and then
released it. Id.
When Bunch arrived at the demonstration, he observed that there were initially
several dozen people in each group, acting non-violently. SUF 1 § 7. He then observed a
group of approximately 50-100 individuals arrive and join the group on the south side of
the street, wearing gear including helmets, eye protection, sticks, metal objects, large
signs, weapons, barricades, and skateboards. Id. Bunch describes this gear as “consistent
with anticipated violence.” Id. Further, he observed the throwing of rocks, other
projectiles, and smoke bombs at officers on the skirmish line and was personally hit with
projectiles. Id. 8. Astorga did not throw any objects. Id. Bunch also claims to have
observed individuals from the south side group push officers on the skirmish line, attempt
to grab their batons, and spray officers in the face with an “unknown liquid.” Id. 4 9.
Bunch further claims that he was sprayed with an “unknown chemical agent.” Id.
Astorga objects to these facts as vague as to time, inflammatory, and irrelevant. Id.
The Incident Commander declared the event an unlawful assembly and gave
dispersal orders on a megaphone. Dkt. 106-5 § 11. Bunch heard these announcements,
but Astorga claims that the initial order was hard to hear, and she was not aware of it
until after she was shot. SUF 1 § 10; Opp. 1 at 15. Astorga also claims that neither side
left ummediately and the announcements continued after the incident. SUF 1 § 10.
Officers attempted to separate the groups as confrontations intensified, with protestors
throwing rocks, bottles, smoke bombs, and unknown objects, and one throwing a pole.
Dkt. 106-5 4] 14, 15.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
Objects were thrown until 5:30:27 pm. Dkt. 106-5 § 16. The parties dispute the
direction then given by Kiefer. Green claims that Kiefer directed the skirmish line to
move protestors back toward the curb. Id. § 18. Astorga claims that Kiefer told officers
to “push” people, not “move” them. Id. Green claims Kiefer’s intent was to move the
crowd back to clear the street for an additional police squad, but Astorga claims Kiefer
intended to move LAPD cars parked in the middle of the street to another parking lot. Id.
§ 19. Bunch next heard officers instructing the crowd to “back up” and “get on the
sidewalk,” and gave the same instructions himself. Id. § 11. Astorga disputes that these
instructions were given and describes them as “inaudible” on the BWV. Id. Green
claims that Astorga heard commands from officers to step back approximately 10
minutes before the use of force incident, but Astorga claims the exchange happened only
moments before the incident. Dkt. 106-5 4 21.
B. Alleged Use of Force Incident
Astorga’s claims arise from injuries she suffered when, during a demonstration,
she was seriously wounded by a baton jab and deployed beanbag. The parties dispute
certain key facts leading up to the use of force against Astorga.
In Bunch’s version of events, he saw protestors pushing officers and directed the
officers to push the “violent group” back, but the group continued to advance. SUF □
12. Astorga disputes this fact, stating that the BWVs show that protestors did not initiate
pushing. Id. Next, Bunch claims to have heard the voices of unknown female officers on
the skirmish line, in need of help. Id. { 13. He also claims to have seen protestors assault
other officers. Id. Astorga disputes these facts, stating that no female voices are audible
on the BWVs and that the female officer on the skirmish line across from Astorga,
Officer Bolen, denied that she felt threatened. Id.
Next, Bunch claims that he observed that the protestors pushing the officers were
armed with sticks, spray bottles, and other hard objects, while wearing protective gear
including shields and helmets. Id. § 14. Astorga disputes that she or the woman to her
right with the floppy sign, O’Neill , engaged in any such conduct or wore any protective
gear. Id.
Bunch claims that he observed Astorga failing to leave the area. Id. 15. Instead,
he claims to have seen Astorga insert herself on the front lines of the crowd, walk into
traffic, confront officers, and stand behind a large sign used to shield protestors and push
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
officers. Id. Astorga disputes these facts, stating that the BWVs show Astorga for the
full four minutes before Bunch jabbed her, “causing no problems.” Id. Bunch further
claims that he saw Astorga grab and attempt to pull away an officer’s baton, and then
raise her hands in a violent manner toward officers being attacked. Id. § 16. Astorga
claims that the screenshot relied upon by Bunch, depicting Astorga with a baton, was
recorded almost 15 minutes before Bunch used force on her. Id. Allegedly believing that
Astorga’s actions constituted an immediate threat of violence, Bunch then thrust his
baton at Astorga’s abdomen area to stop the threat. Id. § 17. Bunch claims he did not use
force against Astorga because of her First Amendment activities or to encourage other
officers to use force against her, but Astorga claims that he did. Id. 4 28, 30.
“Almost simultaneously” with his use of the baton, Bunch claims that Green
deployed one round from his beanbag shotgun at Astorga. Id. 4 19. Bunch claims that
Green deployed this round at Astorga because Green saw Astorga assaulting officers—
not because of anything that Bunch said to Green. Id. 20. Astorga disputes this
reasoning from Green, stating that Bunch told Green on the BWV that “I’m going to push
the crowd right here, and if we need to bean bag, we’re going to bean bag,” which could
be construed as an order. Id. 20, 22. Bunch claims he made this statement
approximately 51 minutes before Green deployed the beanbag on Astorga and said it only
to convey the plan to push the crowd and that beanbags may become necessary. Id. § 25.
Astorga claims this statement was made 51 seconds before Green shot O’Neill and then
Astorga. Id. Bunch and Astorga dispute whether he directed or encouraged officers to
use force against Astorga because of her First Amendment activities. Id. 4 29.
Bunch further claims that he did not see Green deploy the beanbag at Astorga, as
he was focused on Astorga’s actions at the time. Id. § 21. He contends that he was
several feet away from Green and did not form an opinion as to whether his use of force
was reasonable. Id. § 23. Astorga disputes these facts, stating that on Bunch’s BWV,
Green is visible to Bunch’s left, and the overhead camera footage shows them “virtually
rubbing shoulders.” Id. 4] 21, 22. Bunch further claims he did not and could not
determine if any of Green’s other uses of force were reasonable. Id. 24. Astorga again
disputes this claim, arguing that Bunch was present when Green fired “repeated rounds
‘double tap’ and out of policy” at Astorga, and that Bunch was facing directly at Chiu,
“an obviously credentialled photojournalist,” when Green shot Chiu in the abdomen. Id.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
In Green’s version of events, after the dispersal order and as the crowd became
more aggressive, he heard a detective yell for an officer to respond with the beanbag
shotgun at 5:36:48 p.m. Dkt. 106-5 § 23. Green alleges that Astorga, at the front of the
skirmish line, acted aggressively toward officers and was ordered to step back seven
times, but she refused to comply. Id. | 26. Astorga claims that the BWV does not show
any aggression from Astorga, and when Officer Bolen asked her to back away, she
complied. Id. ] 24, 26. Green claims that O’Neill, standing next to Astorga, was
fighting with an officer, and it appeared to Green that Astorga was using a large white
sign as a weapon to push, jab, or strike officers. Id. 4] 27, 28, 30. Astorga claims that
the BWV shows that O’ Neill was not fighting and that while O’Neill was holding a
floppy cardboard sign on a thin stick, neither O’Neill nor Astorga were pushing or
threatening officers with it. Id. Green alleges that, in that moment, he recognized
O’Neill and Astorga as the women he had seen fighting with officers approximately 14
minutes earlier. Id. { 29. Given that Green wrote the cited incident report 11 months
after the incident, Astorga claims that a reasonable juror could disbelieve this fact. Id.
Further, Astorga claims that Green testified that he did not shoot Astorga because of what
he had witnessed 14 minutes earlier. Id.
Next, allegedly believing that Astorga posed an immediate threat of violence to
officers and was 1n control of the stick and sign, Green discharged two rounds from the
beanbag shotgun at her navel area. Id. §§ 31,40. Astorga disputes that she posed a threat
and disputes that Green shot twice at her. Id. Rather, Astorga claims that Green shot first
at O’ Neill and punctured her sign, then pumped the shotgun to chamber another round,
and then shot Astorga in her right breast, from a range of five to seven feet. Id. Green
claims that he aimed only at Astorga and shot in accordance with LAPD policies, while
Astorga claims Green was found to have violated these policies after an internal
investigation, leading to a 10-day suspension. Id. ff] 32, 41.
Green claims that after shooting Astorga, she no longer appeared to be an
immediate threat. Dkt. 106-5 § 33. However, Green also claims that Astorga continued
to confront officers. Id. { 35. Astorga disputes that she was “confronting” officers after
the incident, instead alleging that she was complaining to them about her injury. Id.
Green claims that Astorga intentionally refused to comply with officers’ instructions
because she believed her behavior was righteous; Astorga disputes this characterization
of her integratory responses. Id. 4 37.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
As for Kiefer’s version of events, the parties agree that several minutes before the
incident, Kiefer retrieved additional beanbag shells from Green’s patrol car and gave
them to Green. SUF 2 § 4. The parties also agree that Green did not reload his shotgun
with the additional shells. Id. 4 5.
At the time of Bunch’s baton thrust and Green’s firing of the beanbag at Astorga,
Kiefer claims he was not near either of them, as he was several feet away focused on
directing another officer. Id. 43. Astorga disputes this fact, claiming that Kiefer’s body
camera was pointed directly at Green from a half-of-a-car length away when Green shot
Astorga. Id. Additionally, Kiefer claims that he was not focused on Green’s shots and
did not see each shot fired by Green. Id. 9, 10. While Kiefer admits that he knew
Green was firing the beanbag shotgun, Kiefer claims that he did not know what Green
was firing at specifically, and only learned the specifics after receiving Green’s report of
the incident. Id. 9 11,22. Astorga disputes these facts, claiming that Kiefer knew Green
was firing the beanbag shotgun, as Kiefer’s BWV shows that he faced directly at Kahn,
who was acting as a peacemaker before he was shot by Green. Id. §] 9, 22. Kiefer then
went to retrieve additional beanbag shells for Green, which Astorga claims demonstrates
Kiefer’s knowledge and approval of the rounds fired by Green. Id. § 9.
C. After the Incident
Astorga and Green agree that Astorga suffered an injury. Id. 4 34: MSJ 3 at 5.
Astorga claims that she started bleeding heavily once she got to her car, noticed bruises
on her stomach, ribs, and breast, and went to the hospital the next morning. Astorga
Dep., 115:21-116:3, 116:11-17, 116:23-117:4, 110:18-24. She was in pain for three
days, her right breast remains disfigured and sore, and she still cannot sleep in certain
positions. Id. at 130:14-18, 127:4-10, 132:8-11. The parties agree that Green reported
his use of force against Astorga to his supervisor, Kiefer, but Astorga claims that Green’s
report was not accurate. Dkt. 106-5 § 38.
Il. LEGAL STANDARD
Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant 1s entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the initial burden of identifying relevant portions of the
record that demonstrate the absence of a fact or facts necessary for one or more essential
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
elements of each claim upon which the moving party seeks judgment. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its initial burden, the opposing party must then set out
specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986): see also Fed. R. Civ. P. 56(c), (e). The
nonmoving party must not simply rely on the pleadings and must do more than make
“conclusory allegations [in] an affidavit.” Lujan v. Nat’] Wildlife Fed’n, 497 U.S. 871,
888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for
the moving party if the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322; see also Abromson v. Am.
Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997).
In light of the evidence presented by the nonmoving party, along with any
undisputed facts, the Court must decide whether the moving party is entitled to judgment
as matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the
inferences to be drawn from the underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citation omitted); Valley Nat’] Bank of Ariz. v. ALE.
Rouse & Co., 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving
party is proper when a rational trier of fact would not be able to find for the nonmoving
party on the claims at issue. See Matsushita, 475 U.S. at 587.
IV. DISCUSSION
Bunch argues that he is entitled to summary judgment on Astorga’s first, second,
fourth, and fifth claims for relief. MSJ 1 at 2. He argues that Astorga lacks sufficient
evidence showing that (1) he used excessive force in violation of the Fourth Amendment;
(2) he retaliated against her in violation of the First Amendment; (3) he is liable for
Green’s conduct as his supervisor; and (4) she is entitled to punitive damages. Id.
Additionally, Bunch argues that (5) he is entitled to qualified immunity on all federal
claims. Id. Pursuant to state law, Bunch argues that Astorga cannot provide evidence
establishing the elements of a (6) Bane Act claim and (7) battery claim. Id. at 24-25.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
Kiefer also argues that he is entitled to summary judgment on Astorga’s first,
second, fourth, and fifth claims for relief. MSJ 2 at 3. He contends that Astorga cannot
prove his liability based on his personal or supervisory conduct. Id. Regardless, Kiefer
claims he is entitled to qualified immunity on all of Astorga’s Section 1983 claims. Id.
Further, Kiefer claims that Astorga cannot prove a Bane Act or battery claim. Id.
Green argues that he is entitled to partial summary judgment on Astorga’s First
Amendment claim for relief. MSJ 3 at 1-2. Because Green withdrew his motion as to all
claims except for Astorga’s First Amendment claim, it is unclear whether he still clatms
that he is entitled to qualified immunity. Reply 3 at 1-2.
The Court addresses each issue in turn below, including each defendant’s
arguments where applicable.
A. Section 1983 Fourth Amendment Claim
Section 1983 provides a claim against a person who, acting under color of state
law, deprives another of rights guaranteed under the U.S. Constitution. “To prove a case
under section 1983, the plaintiff must demonstrate that (1) the action occurred ‘under
color of state law’ and (2) the action resulted in the deprivation of a constitutional right or
federal statutory right.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (citation
omitted). An excessive force claim is analyzed under the Fourth Amendment. Graham
v. Connor, 490 U.S. 386, 395 (1989).
Bunch makes three arguments to defeat Astorga’s Fourth Amendment claim: that
his baton thrust was a reasonable use of force, that he was not an “integral participant” in
Green’s use of force, and that he did not fail to intercede in Green’s allegedly
unconstitutional actions. MSJ 1 at 8, 11-12. Kiefer, who did not use force directly
against Astorga, argues that he was not an “integral participant” in Green’s use of force,
and that he did not fail to intercede in Green’s allegedly unconstitutional actions. MSJ 2
at 7. The Court addresses each argument in turn.
1. Objectively Reasonable Use of Force
Bunch argues that Astorga’s excessive force claim cannot withstand summary
judgment because his use of force was objectively reasonable. MSJ 1 at 8-9.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
The relevant inquiry is whether officers’ actions are “objectively reasonable in
light of the facts and circumstances confronting them, without regard to their underlying
intent or motivation.” Graham, 490 US. at 397 (quotation and citation omitted). “The
calculus of reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments-in circumstances that are tense, uncertain,
and rapidly evolving-about the amount of force that is necessary in a particular situation.”
Id. at 396-97. However, “it is equally true that even where some force 1s justified, the
amount actually used may be excessive.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir.
2002). Courts apply a balancing test to determine whether force used is reasonable.
Graham, 490 U.S. at 396. Courts “must balance [1] the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against [2] the importance of
the governmental interests alleged to justify the intrusion.” Scott v. Harris, 550 U.S. 372,
383 (2007) (quotation omitted).
First, courts evaluate “the type and amount of force inflicted.” Muller v. Clark
Cnty., 340 F.3d 959, 964 (9th Cir. 2003). Here, Bunch used a baton to strike Astorga.
MSJ 1 at 9. Baton blows are capable of inflicting significant pain and causing serious
injury. Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011). They are
“regarded as “intermediate force’ that, while less severe than deadly force, nonetheless
present a significant intrusion upon an individual’s liberty interests.” Id. Bunch argues
that he used minimal force, as the baton only contacted Astorga’s forearm and did not
injure her. MSJ 1 at 9. Astorga, in opposition, argues that the baton left her with a bruise
and three days of pain, and that video footage “shows how hard he jabbed.” Opp. 1 at 12.
Second, courts evaluate the countervailing governmental interests by considering a
range of factors, including: (a) whether the suspect was actively resisting or attempting to
evade arrest by flight; (b) the severity of the crime at issue; and (c) whether the suspect
posed an immediate threat to the safety of the officers or others. Lal v. California, 746
F.3d 1112, 1117 (9th Cir. 2014). This list is not exhaustive, though, and courts also
consider whether the officer warned the suspect prior to use of force, Bryan v.
MacPherson, 630 F.3d 805, 831 (9th Cir. 2010): the parties’ relative culpability, Espinosa
v. City & Cnty. of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010); and “whether there
were less intrusive means of force that might have been used,” Glenn v. Washington
Cnty., 673 F.3d 864, 876 (9th Cir. 2011). Nonetheless, the “most important” factor is
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
whether the suspect posed an “immediate threat to the safety of the officers or others.”
Bryan, 630 F.3d at 826.
Here, Bunch argues that because Astorga’s actions constituted an immediate threat
of violence, it was reasonable for him to thrust his baton at her to stop the threat. MSJ 1
at 8. Bunch was confronted with a violent crowd of protestors assaulting officers and
throwing projectiles; he was struck with weapons and liquid spray. Id. Even after
protestors were ordered to leave, Bunch argues that Astorga remained in the front of a
group violently confronting officers and refusing to comply with Bunch’s orders. Id.
Bunch further observed Astorga grab and attempt to pull away officers’ batons while
raising her hands in a violent manner. Id. at 9.
In opposition, Astorga argues that a reasonable factfinder could determine that her
actions did not constitute an immediate threat of violence and that Bunch’s use of force
was unreasonable. Opp. | at 10-11. Astorga contends that, while Bunch relies on
Astorga having “pull[ed] away” an officer’s baton, this happened almost 15 minutes
before Bunch jabbed her, and “a suspect’s previous violent conduct does not justify non-
trivial force where the suspect poses no immediate safety threat.” Andrews v. City of
Henderson, 35 F 4th 710, 719 (9th Cir. 2022). Id. at 11. Astorga states that Bunch’s
claims about Astorga’s hands being raised in a violent manner are unsupported by the
BWV evidence and that “the more disorderly phase of that day’s events ended more than
six minutes before” Bunch jabbed Astorga. Id. The BWV evidence, according to
Astorga, shows that Astorga approached the police line about four minutes before the jab,
speaking to officers and holding her cell phone. Id. Officer Bolen, who was standing in
front of Astorga at this time, testified that she was not threatened. Id. Bunch did not
even warn Astorga before deploying force. Id. at 11-12.
In reply, Bunch argues that Astorga’s reliance on Officer Bolen’s perception of the
incident is irrelevant, as the focus of the inquiry is the totality of the circumstances as
known to Bunch. Reply | at 3. Bunch then refutes Astorga’s reliance on her “innocent”
intent in grabbing another officer’s baton and raising her hands toward Officer Bolen,
arguing that Astorga’s subjective intent is not relevant to the Fourth Amendment
analysis. Id. at 5. Finally, Bunch disputes Astorga’s characterization of the importance
of an officer’s warning before deploying force, as no warning was feasible in these
circumstances. Id. at 7.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
Having considered the severity of the intrusion and the importance of the
government's interests, the Court must balance these two considerations in order to
determine whether the force used was reasonable. Santos, 287 F.3d at 854. Here,
reasonable minds could differ on whether the countervailing governmental interests
justify the amount of force used by Bunch. There are genuine disputes of material fact as
to the amount of force inflicted by Bunch and the reasonableness of his force, particularly
in relation to the threat posed by Astorga at the time of the incident. Turning to other
relevant Graham factors, it is undisputed that Bunch did not provide a warning before the
jab and that Astorga was not resisting arrest or attempting to flee when she was hit.
Based on Bunch and Astorga’s testimony and the BWVs, a reasonable jury could
choose to credit either Bunch’s or Astorga’s accounts of the events leading up to the jab,
creating a triable issue of fact on whether Bunch’s use of force was objectively
reasonable. See Sanderlin v. Dwyer, No. 23-15487, 2024 WL 4033065, at *8 (9th Cir.
Sept. 4, 2024) (“Ultimately, on this record, the reasonableness of the force used by [the
officer| thus turns on how the jury interprets the video footage, and whether the jury
credits [the officer’s] testimony [about the plaintiff's conduct].”). Therefore, the Court
cannot conclude that Bunch’s use of force was reasonable as a matter of law. See Chew
v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) (“[W]hether a particular use of force was
reasonable is rarely determinable as a matter of law.”); Santos, 287 F.3d at 853
(excessive force cases “nearly always require] a jury to sift through disputed factual
contentions, and to draw inferences therefrom’).
2. “Integral Participant” Theory
Bunch and Kiefer separately argue that they were not “integral participants” in
Green’s use of force, entitling them to judgment as a matter of law on Astorga’s second
theory of Fourth Amendment liability. MSJ 1 at 9: MSJ 2 at 7.
“{O|fficers are not integral participants simply by the virtue of being present at the
scene of an alleged unlawful act... integral participation requires some fundamental
involvement in the conduct that allegedly caused the violation.” Jimenez v. City of Napa,
No. 17-cv-01352-EMC, 2017 WL 2617964 (N.D. Cal. June 16, 2017) (emphasis in
original) (citing Jones v. Williams, 297 F.3d 930, 936 (9th Cir. 2002)). “Officers are
fundamentally involved in the alleged violation when they provide some affirmative
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
physical support at the scene of the alleged violation and when they are aware of the plan
to commit the alleged violation or have reason to know of such a plan, but do not object.”
Monteilh v. Cnty. of Los Angeles, 820 F. Supp. 2d 1081, 1089 (C.D. Cal. 2011) (citing
Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th Cir.2004)).
Here, Bunch argues that he was not “fundamentally involved” in Green’s use of
force and thus cannot be held liable as an “integral participant.” MSJ 1 at 9. Bunch
contends that the first element is unsatisfied because he did not provide affirmative
physical support to Green. Id. at 10. To the contrary, Bunch did not even see Green
deploy the beanbag. Id. at 10. Bunch contends that his statement (“I’m going to push the
crowd right here, and if we need to bean bag, we’re going to bean bag”) was made to
convey the plan to push the crowd and alert officers that beanbags may become
necessary—not to support Green. Id. Further, Green testified that he deployed the
beanbag based on Astorga’s conduct, not based on Bunch. Id. at 10-11. Bunch contends
that the second element is also unsatisfied because Astorga offers no evidence that he
knew, or had reason to know, of Green’s alleged plan to commit the violation. Id. at 11.
In opposition, Astorga argues that Bunch was “fundamentally involved” in Green’s
violation because Bunch’s unprovoked baton jab prompted Green to shoot, as it followed
Bunch telling Green, “I’m going to push the crowd right here, and if we need to bean bag,
going to bean bag.” Opp. 1 at 12. A reasonable jury could construe this remark as
authorizing Green to fire the shotgun to push people back, which Green allegedly did. Id.
at 13. Astorga disputes that Bunch made this statement 51 minutes before Green’s shot,
claiming that BWV footage shows that Bunch said it 51 seconds before the shooting,
after Kiefer ordered the officers to “push” the crowd back from the cars. Id. Astorga
characterizes this as direct encouragement from Bunch to Green to fire. Id. While Bunch
contends that he did not know about Green’s earlier shots, Astorga claims that Bunch’s
BWV shows him watching Chiu get hit by Green’s round. Id. Thus, Astorga argues that
a reasonable jury could find that Bunch’s instructions and Bunch’s baton jab made him
an integral participant in Green’s use of force. Id.
In reply, Bunch claims that Astorga fails to provide evidence of the required
elements. Reply 1 at 8. Further, he contends that no reasonable officer would interpret
Bunch’s statement as an order to indiscriminately shoot. Id.
Turning to Kiefer’s claims, he argues that he was not an integral participant in
Green’s force because no evidence suggests that he provided affirmative physical
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
support. MSJ 2 at 8. Rather, Kiefer stood several feet from Green and was focused
elsewhere. Id. Kiefer retrieved additional beanbag shells from Green’s patrol car and
gave them to Green, but contends that he did not provide the shells with knowledge that
Green’s prior shots were unlawful. Id. at 9. Additionally, Green did not use any of the
additional shells when shooting Astorga, demonstrating that no physical support was
provided. Id. Furthermore, Kiefer claims that he was not aware of any plan for Green to
shoot Astorga, much less of any plan for him to do so unlawfully. Id. at 9-10.
In opposition, Astorga argues that Kiefer provided affirmative physical support
when he resupplied Green’s rounds after Green fired a dozen rounds at protestors and
before Green fired at Astorga. Opp. 2 at 10. His provision of additional ammunition
proves, according to Astorga, that Kiefer was aware of the number of shots fired and
gave Green the “green light” to continue shooting in the same manner. Id. Astorga
argues that Kiefer’s knowledge of the unlawfulness of Green’s conduct is disputed, given
his role as supervisor; his knowledge that Green was shooting; and his BWV, which
demonstrates that he saw Khan, an “obvious peacemaker,” on the curb after Green
wounded him. Id. at 11. Astorga also claims that a reasonable jury could disbelieve
Kiefer’s testimony, given allegedly false descriptions in his activity log. Id. at 11.
In reply, Kiefer claims that it 1s undisputed that Green did not reload his shotgun
after receiving rounds from Kiefer, proving that Kiefer did not provide physical support.
Reply 2 at 2. Kiefer also argues that no evidence shows his knowledge of any plan for
Green to use excessive force against Astorga. Id. at 3.
The Court finds that there are genuine disputes of material fact as to whether
Bunch and Kiefer provided affirmative physical support to Green and whether they knew,
or had reason to know, of a plan for Green to commit the alleged violation. Viewing the
evidence in the light most favorable to Astorga, a reasonable jury could find that Bunch’s
statement (“I’m going to push the crowd right here, and if we need to bean bag, we’re
going to bean bag”), spoken 51 seconds before Green’s shot, followed by Bunch’s use of
the baton on Astorga, constituted affirmative physical support for Green to fire on
Astorga. Similarly, a reasonable jury could find that Kiefer’s provision of additional
ammunition for Green before he fired on Astorga constituted affirmative physical
support. Compare Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th Cir. 2004) (finding that
officers who participated in a search with and provided backup to an officer who
unconstitutionally deployed a flashbang were “integral participants” in the unlawful act),
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
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with Torres v. City of Los Angeles, 548 F.3d 1197, 1206 (9th Cir. 2008) (holding that
officer was not an “integral participant” in a false arrest because he was not present at
time of arrest, did not instruct officers to effectuate arrest, and did not consult with
arresting officers before arrest).
Additionally, a reasonable jury could find that Bunch and Kiefer knew, or had
reason to know, of Green’s plan to shoot unlawfully at protestors, including Astorga.
Viewing the evidence in the light most favorable to Astorga, a juror might infer from
Bunch and Kiefer’s BWVs that they saw Green firing at protestors like Khan and
Astorga. A juror might also infer from the video footage that Bunch and Kiefer could
perceive that Khan and Astorga did not pose immediate threats, but that neither officer
objected to Green’s actions. See Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th Cir.
2004) (finding that officers were “integral participants” in an officer’s unconstitutional
deployment of a flashbag when they knew the flashbag was going to be deployed and did
not object to it). Further, reasonable jurors may differ in how they evaluate the
credibility of Bunch and Kiefer’s testimony on their knowledge of Green’s alleged
violations. See Newmaker v. City of Fortuna, 842 F.3d 1108 (9th Cir. 2016) (summary
judgment inappropriate where credibility of defendant officer in dispute).
Given genuine disputes of material fact as to Bunch and Kiefer’s affirmative
physical support for Green and Bunch and Kiefer’s actual or constructive knowledge of
Green’s alleged plan to violate protestors’ rights, the Court finds that neither defendant is
entitled to judgment as a matter of law on Astorga’s integral participant claim.
3. “Failure-to-Intercede” Theory
Bunch and Kiefer separately argue that they did not fail to intercede in Green’s
unlawful use of force, entitling them to judgment as a matter of law on Astorga’s third
theory of Fourth Amendment liability. MSJ 1 at 12; MSJ 2 at 10.
“{PJolice officers have a duty to intercede when their fellow officers violate the
constitutional rights of a suspect or other citizen.” United States v. Koon, 34 F.3d 1416,
1446-47 n. 25 (9th Cir. 1994), rev’d on other grounds, 518 U.S. 81 (1996). However,
officers can be held liable for failing to intercede only if they had an opportunity to
intercede. Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000). Furthermore,
the officer must know or have reason to know that a constitutional violation 1s occurring.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
See Ramirez v. Butte-Silver Bow Cnty., 298 F.3d 1022, 1029-30 (9th Cir. 2002).
Here, Bunch argues that Astorga’s theory fails because she lacks evidence that
Bunch knew Green had previously fired unconstitutionally or that Bunch had a realistic
opportunity to intercede. MSJ 1 at 12-14. Bunch argues that the evidence is to the
contrary: Bunch’s role was to assist Kiefer in managing the squad, not to focus on each
particular round fired by Green, which he did not see. Id. at 13. In opposition, Astorga
argues that Bunch was Green’s supervisor and Bunch knew Green was firing; as such, a
reasonable jury could conclude that Bunch noticed Green was shooting people without
justification. Opp. 1 at 14. Further, a reasonable jury could determine that Bunch could
have realistically interceded by disarming Green after he shot Chiu and Khan, but before
he shot Astorga. Id. In reply, Bunch restates the claims from his moving papers, adding
that once Green fired, Bunch could not intervene and stop it. Reply 1 at 12.
Turning to Kiefer’s claims, he argues that the failure-to-intercede theory fails
because he did not have a realistic opportunity to stop Green’s shot. MSJ 2 at 10.
Further, he did not know that Green’s prior shots were unconstitutional. Id. at 11. Kiefer
contends that the evidence is to the contrary: as a supervisor, his focus was not on
particular individuals or shots. Id. at 12. He did not see each shot fired by Green and did
not know what Green was firing at specifically. Id.
In opposition, Astorga argues that Kiefer knew Green was firing the beanbag
shotgun and Kiefer saw Khan on the curb, having just been wounded by Green. Opp. 2 at
12. Nevertheless, Kiefer retrieved additional rounds for Green, indicating that he knew
and approved of the number of rounds fired. Id. Astorga claims that Kiefer had plenty of
time to disarm Green, as the situation stabilized for several minutes after Green’s
shooting of Khan and Chiu. Id. at 13. Astorga also argues that Kiefer at least had
constructive knowledge of Green’s unlawful conduct. Id. He was responsible for
ensuring that Green followed policy, he was present for Green’s prior shootings, he
resupplied Green with ammunition, and he repeatedly yelled “Push!” at his officers. Id.
at 14. He then allegedly watched Bunch jab Astorga and Green shoot her, and
subsequently ignored Astorga’s injuries and filed a false report about the incident. Id.
In reply, Kiefer argues that Astorga still fails to show Kiefer’s actual or
constructive knowledge of Green’s unlawful acts. Reply 2 at 4. Kiefer alleges that
nothing in the still frame relied upon by Astorga shows that Khan was peaceful or that he
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
was wounded by Green. Id. Rather, Kiefer’s BWV shows that Kiefer did not see Khan
hit with anything and did not see Green’s involvement. Id. at 5. Further, Kiefer argues
that Astorga does not have evidence to support her allegation that Kiefer falsified
incident reports. Id. Kiefer was supervising multiple officers, including multiple less-
lethal shooters, while dozens of protestors fought and threw objects at him and others. Id.
Kiefer contends that his retrieval of additional rounds showed, at most, that he knew
Green fired the shotgun—not that he knew Green fired unconstitutionally. Id. at 10.
The Court finds that there are genuine disputes of material fact as to whether
Bunch and Kiefer knew, or had reason to know, that Green’s acts were unconstitutional
and whether they had a realistic opportunity to intercede. Here, the Court’s analysis of
Bunch and Kiefer’s disputed knowledge mirrors that of the “integral participant theory.”
See supra Part [V.A2. A reasonable jury could find, examining BWV footage and
parties’ testimony, that Bunch and Kiefer saw Green’s shots and knew, or had reason to
know, that they were unlawful. The Court finds that Ramirez, where the officer had no
reason to know of the violation, is distinguishable, given the circumstantial evidence
offered by Astorga of Bunch and Kiefer’s alleged awareness. See Ramirez v. Butte-
Silver Bow Cnty., 298 F.3d 1022, 1029-30 (9th Cir. 2002) (holding that bystander
officers could not be held liable for failing to stop an unlawful search when they had no
reason to believe the warrant at issue was defective).
Additionally, a reasonable jury could find that Bunch had an opportunity to
intercede in the several minutes of “stabilization” before Astorga was shot and that Kiefer
had an opportunity to intercede before providing Green with additional ammunition. See
Bartholomew v. Cnty. of Los Angeles, No. CV 07-1530-CAS-SHx, 2008 WL 1924903,
at *6 (C.D. Cal. Apr. 28, 2008) (finding that sergeant’s ability to have intervened to
prevent or control the conduct of his deputies when he was present during their use of
force was an issue of fact); see Gonzales v. Phoenix Police Dep’t, 2007 U.S. Dist. LEXIS
47949, at *15 (D. Ariz. 2007) (“Whether Plaintiff was hit, kicked, and stomped, and
whether Norton could have intervened to prevent the alleged beating by verbally ordering
Trynosky or Latham to cease beating Plaintiff or by radioing other officers to intervene
are disputed issues of material fact.”)
Given genuine disputes of material fact as to Bunch and Kiefer’s actual or
constructive knowledge of Green’s unlawful acts and Bunch and Kiefer’s opportunity to
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
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intervene to prevent these acts, the Court finds that neither defendant is entitled to
judgment as a matter of law on Astorga’s failure-to-intercede claim.
B. —_ Section 1983 First Amendment Claim
Bunch and Green separately argue that they are entitled to judgment as a matter of
law on Astorga’s Section 1983 First Amendment claim. MSJ 1 at 14: MSJ 3 at 7.
To establish a claim for retaliatory violation of the First Amendment, a plaintiff
must show (1) that he or she was engaged in a constitutionally protected activity; (2) that
the defendant’s actions would “chill a person of ordinary firmness from continuing to
engage in the protected activity;” and (3) that “the protected activity was a substantial or
motivating factor in the defendant’s conduct.” Index Newspapers LLC v. U.S. Marshals
Serv., 977 F.3d 817, 827 (9th Cir. 2020).
Bunch argues that Astorga cannot prove that Bunch used force against her in
retaliation for her alleged First Amendment activities. MSJ 1 at 14. As a threshold
matter, Bunch contends that Astorga had no First Amendment right to remain in the area
after police issued dispersal orders. Id. at 15. Even if she did, Astorga’s claim fails
because she cannot establish that her First Amendment activity was the “but-for” cause of
Bunch’s use of force against her. Id. Bunch claims that the undisputed evidence shows
that force was used because of Astorga’s actions: fighting with officers, refusing to leave,
grabbing an officer’s baton, and raising her hands violently. Id. at 15-16. Bunch argues
that he did not use force because of his alleged view of Astorga as a “continuation of
George Floyd protests.” Id. at 16. While Astorga claims that officer reports referenced
Astorga’s group as “Antifa or BLM,” Bunch claims that no evidence shows he knew that
Astorga was associated with these groups or any political viewpoints. Id. Even if he did,
it would not mean that he used force against Astorga based on this information. Id.
In opposition, Astorga argues that Sanderlin controls, where the Ninth Circuit
denied summary judgment when the plaintiff was hit with a less-lethal projectile at a
protest and brought First and Fourth Amendment claims. Opp. | at 14-15. Like Astorga,
Sanderlin was injured after a dispersal order, but was not precluded from asserting his
First Amendment retaliation claim. Id. Astorga contends that, as in Sanderlin, a
reasonable jury could find that Bunch acted with retaliatory animus, especially given
conflicts between the BWV and his testimony. Id. at 16. In reply, Bunch distinguishes
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title ~-Zeeshan H. Khan v. City of Los Angeles et al.
Sanderlin, where the plaintiffs testtmony was consistent with the officer’s BWV, arguing
that here, Astorga’s testimony does not match the BWV footage. Reply | at 8.
Turning to Green’s claims, he also argues that Astorga was not engaged in
constitutionally protected activity, as LAPD had declared an unlawful assembly at the
time of the incident. MSJ 3 at 8. Even if she was, Green claims that there is no nexus
between Green’s conduct and an intent to chill Astorga’s speech. Id. at 7-8. Rather,
Green holds that his use of force was based upon his reasonable belief that Astorga was
using a sign to push officers and as a weapon to jab or strike officers. Id. at 9.
In opposition, Astorga claims that Green’s arguments fail for the same reasons the
shooter’s claims failed in Sanderlin. Opp. 3 at 10. Astorga contends that neither side of
the demonstration dispersed after the dispersal order, as in Sanderlin, and she was not
aware of the order until after the incident. Id. While Green contends that there is no
evidence of retaliation, the Ninth Circuit rejected this argument in Sanderlin. Id. at 11.
In reply, Green argues that the initial reason for Astorga’s presence at the demonstration
was political, but Green only came into contact with Astorga because the demonstration
turned violent. Reply 3 at 4. He contends that a jury could not reasonably conclude from
these facts that his “true” motivation was First Amendment retaliation. Id. at 5.
The Court finds that there are genuine disputes of material fact as to Astorga’s
First Amendment claim. The Court finds that Sanderlin, where the Ninth Circuit
affirmed the denial of summary judgment on First and Fourth Amendment claims when
the plaintiff was struck with a less-lethal projectile at a protest in summer 2020, is
dispositive. Sanderlin, 2024 WL 4033065, at *10. As an initial matter, the Court finds
that the dispersal order does not preclude Astorga from asserting her retaliation claim, as
neither the Sanderlin plaintiff nor Astorga heard the initial dispersal order. Id. at *7.
Sanderlin also distinguished Felarca v. Birgeneau, 891 F.3d 809, 818 (9th Cir. 2018) on
these grounds, as the Felarca plaintiffs understood police officers’ dispersal orders and
chose to ignore or dismiss them. Id.
The Court finds that the first element of Astorga’s retaliation claim—that she was
engaging in protected First Amendment activity—is a factual issue. In Sanderlin, the
Ninth Circuit reasoned:
Whether or not Sanderlin was in fact obstructing officers, rather than engaging in
the protected activity of peacefully protesting, will turn on whether a factfinder
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
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eventually credits [the officer’s] description of the circumstances surrounding the
shooting. According to Sanderlin, he was merely standing peacefully on the
sidewalk holding the sign. Resolving the disputed facts in Sanderlin’s favor, he
was engaged in protected First Amendment activity.
Id. at *4. Here, whether or not Astorga was engaged in the protected activity of
peacefully protesting will also turn on whether the jury credits Bunch and Green’s
description of the activities leading up to the use of force. But according to Astorga, she
was not a threat to officers when she was jabbed by the baton or struck by the beanbag.
Thus, the Court must deny summary judgment.
The Court finds that the third element of Astorga’s retaliation clatm—that
Astorga’s First Amendment activities were “a substantial or motivating factor” in Bunch
and Green’s conduct—also turns on factual disputes. In Sanderlin, the Ninth Circuit
held: “If a factfinder concludes that there was no legitimate justification for [the officer’s]
actions, they could reasonably infer that those actions were motivated by retaliatory
animus.” Id. Here, if a yury concludes that Bunch and Green did not have a legitimate
justification for their use of force, they could reasonably infer that the officers acted with
retaliatory animus toward Astorga. Thus, neither Bunch nor Green is entitled to
judgment as a matter of law on Astorga’s First Amendment claim. See Index
Newspapers LLC, 977 F.3d at 827 (recognizing that whether officer is motivated by
discriminatory animus “involves questions of fact that normally should be left for trial”);
Duran v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir. 1990) (denying summary
judgment on First Amendment claim where officer claimed he lacked retaliatory motive
but reasonable juror could find traffic stop was retaliatory in absence of “legitimate,
articulate” reason for traffic stop).
Given genuine disputes of material fact as to the elements of retaliation, the Court
finds that neither Bunch nor Green is entitled to judgment as a matter of law on Astorga’s
First Amendment claim.
C. Section 1983 Supervisory Liability Claims
Bunch and Kiefer separately argue that they cannot be held liable for Green’s
allegedly unlawful conduct as his supervisors. MSJ 1 at 17; MSJ 2 at 12.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
Pursuant to Section 1983, supervisory liability can be imposed if (1) the supervisor
was personally involved in the constitutional deprivation, or (2) there is a sufficient
causal connection between the supervisor’s wrongful conduct and the constitutional
violation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). “A plaintiff may state a
claim against a supervisor for deliberate indifference based upon the supervisor’s
knowledge of and acquiescence in unconstitutional conduct by his or her subordinates.”
Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).
Bunch argues that he cannot be held liable under any supervisory theories of
Section 1983. MSJ 1 at 17. Bunch contends that his statement (“I’m going to push the
crowd right here, and if we need to bean bag, we’re going to bean bag”), allegedly made
51 minutes before the incident, was not a direction to Green to deploy the beanbag
specifically at Astorga nearly an hour later. Id. at 18. Further, Bunch argues that Astorga
lacks evidence that Bunch knew Green’s shots were unconstitutional or that Bunch’s
baton thrust caused Green to shoot Astorga. Id. at 18-19.
In opposition, Astorga contends that the record shows that Bunch, as Green’s
supervisor, directed Green to “begin looking for possible threats.” Opp. 1 at 16. Astorga
argues that Bunch watched Green fire 13 rounds, hitting Chiu (an innocent photographer)
and Khan. Id. Then, only 51 seconds before Green shot Astorga, Bunch directed Green
to “bean bag.” Id. A reasonable jury could find, according to Astorga, that Bunch knew
of his subordinate Green’s unconstitutional acts and acquiesced to them. Id. at 16-17. In
reply, Bunch argues that Green’s use of force against third parties is irrelevant, because
there is no evidence that Bunch was aware of Green’s prior shots or that Bunch knew of
the circumstances facing Green. Reply | at 10. Bunch refutes Astorga’s reliance on
Bunch’s BWV, given that the BWV does not move when an officer turns their head or
moves their eyes. Id. Next, Bunch argues that there is no evidence that Bunch did not
relay the substance of the EAP briefing to Green or that his failure to do so caused Green
to beanbag Astorga unlawfully. Id. at 11.
Kiefer argues that he cannot be held lable as a supervisor under any Section 1983
theory, as Astorga failed to provide evidence that Kiefer knew his subordinates were
violating her nghts. MSJ 2 at 12. In opposition, Astorga argues that Kiefer knew Green
was violating protestors’ rights and acquiesced in those violations. Opp. 2 at 14. Astorga
contends that Kiefer was Green’s supervisor, and with Bunch, directed Green to “begin
looking for possible threats” to shoot with his shotgun. Id. at 15. While Kiefer argues
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
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that he did not know that Green’s shots were unconstitutional, Astorga contends that this
allegation is disputed by circumstantial evidence. Id. In reply, Kiefer restates his rebuttal
of Astorga’s prior theories on Kiefer’s alleged knowledge. Reply 2 at 11.
The Court finds that there are genuine disputes of material fact as to whether
Bunch and Kiefer knew and acquiesced in Green’s allegedly unconstitutional conduct,
constituting deliberate indifference for supervisory liability. Here, the Court’s analysis of
Bunch and Kiefer’s disputed knowledge mirrors the analysis for Astorga’s “integral
participant” and “failure-to-intercede” theories under the Fourth Amendment. See supra
Part IV.A. A reasonable jury could find, from the BWVs and parties’ testimony, that
Bunch and Kiefer saw Green’s shots and knew they were unlawful based on the absence
of threat posed by his targets. A factfinder could then infer that Bunch and Kiefer’s
knowledge of Green’s unlawful shots and lack of response amounted to acquiescence in
his unconstitutional conduct. See Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011)
(finding that sheriffs “knowledge of the unconstitutional conditions in the jail, including
his knowledge of the culpable actions of his subordinates, coupled with his inaction,
amounted to acquiescence in the unconstitutional conduct of his subordinates.”).
Given genuine disputes of material fact as to Bunch and Kiefer’s knowledge of the
nature of Green’s conduct, the Court finds that neither defendant is entitled to jadgment
as a matter of law on Astorga’s Section 1983 supervisory liability claim.
D. Punitive Damages
Punitive damages are available against individual officers under Section 1983, to
be awarded in the jury’s discretion. Smith v. Wade, 461 U.S. 30, 56 (1983). The jury
must find either that the defendant acted with an evil motive or intent or with reckless or
callous indifference to the federally protected rights of others. Id.
Bunch argues that Astorga’s punitive damages claim fails under Section 1983
because Astorga cannot meet the burden of showing that Bunch acted with evil intent or
callous indifference. MSJ 1 at 25. In opposition, Astorga argues that a reasonable jury
could find that Bunch acted with these mental states when he attacked Astorga without
provocation or warning and prompted Green to inflict a grievous injury. Opp. | at 20.
Further, while LAPD policy requires that those struck with a less-lethal shotgun be
provided medical attention as soon as practical, Bunch ignored Astorga after the
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
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shooting, another indicator of evil or reckless intent. Id. In reply, Bunch reiterates that
Astorga lacks evidence that Bunch acted with the requisite intent. Reply 1 at 15-16.
The Court finds that Bunch’s motion is premature at this juncture, as the punitive
damages issue is better decided after a liability determination. Thus, the Court reserves
judgment on Bunch’s motion as it relates to punitive damages until a liability
determination is made at trial.
E. Qualified Immunity
Bunch and Kiefer each argue that they are entitled to qualified immunity on all of
Astorga’s federal claims. MSJ 1 at 22; MSJ 2 at 17-18. Green argues that he is entitled
to qualified immunity on the First Amendment claim. MSJ 3 at 9, n.1.
“Qualified immunity is an immunity from suit rather than a mere defense to
liability,” and therefore must be resolved “at the earliest possible stage in litigation.”
Pearson v. Callahan, 555 U.S. 223, 231-32 (2009) (quotation omitted). Qualified
immunity balances “the need to hold public officials accountable when they exercise
power irresponsibly” against “the need to shield officials from harassment, distraction,
and liability when they perform their duties reasonably.” Id. at 231. In excessive force
cases, it protects officers in the “hazy border between excessive and acceptable force.”
Saucier v. Katz, 533 U.S. 194, 206 (2001) (quotation omitted). Accordingly, an officer
will be denied qualified immunity in a Section 1983 action if, “(I) taken in the light most
favorable to the party asserting injury, the facts alleged show that the officer’s conduct
violated a constitutional right, and (2) the right violated was ‘clearly established’ at the
time of the incident such that a reasonable officer would have understood his conduct to
be unlawful in that situation.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir.
2011) (quoting Saucier, 533 U.S. at 201). Courts may address either prong first.
Pearson, 555 U.S. at 236. ““‘|W]hether the violative nature of particular conduct is clearly
established’... must be answered ‘not as a broad general proposition,’ but with reference
to the facts of specific cases.” Isayeva v. Sacramento Sheriffs Dep’t, 872 F.3d 938, 947
(9th Cir. 2017) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)).
Bunch contends that is entitled to qualified immunity on all federal claims. MSJ 1
at 22. He argues that a reasonable officer would have found his force to be reasonable,
no existing precedent put him on notice that he violated the First Amendment, and no law
clearly established that his supervisory conduct was unconstitutional. Id. at 23-24.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
In opposition, Astorga argues that Bunch was on notice of relevant clearly
established law because he attended a briefing on constitutional uses of less-lethal
shotguns on the day of the incident. Opp. 1 at 17. Astorga then analogizes to Nelson,
where the Ninth Circuit held that “the firing of a projectile that risked causing serious
harm, in the direction of non-threatening individuals who had committed at most minor
misdemeanors... constitute|d] unreasonable force in violation of the Fourth
Amendment.” Nelson v. Davis, 685 F.3d 867, 886 (9th Cir. 2012). Id. Astorga also
notes that LAPD policy limits the use of the baton as an impact weapon to those who are
aggressive or combative or pose a threat to the safety of others. Id. at 18. Astorga claims
that exercising her First Amendment rights did not make her a proper target, citing Ford
v. City of Yakima, 706 F.3d 1188, 1195 (9th Cir. 2013), Starr, and Sanderlin. Id.
In reply, Bunch argues that Astorga failed to provide precedent existing at the time
of the incident which squarely governs the facts at issue. Reply 1 at 13. Bunch then
distinguishes several cases relied upon by Astorga as factually irrelevant. Id. at 14.
Specifically as to Sanderlin, he argues that the BWV was consistent with the plaintiffs
claims that he was peaceful, unlike here. Id. at 15. Further, 1t could not have put Bunch
on notice, as Sanderlin was decided four years after the demonstration. Id. at 15.
Kiefer argues that he is entitled to qualified immunity because Astorga cannot
provide case law clearly establishing that his specific conduct was unconstitutional. MSJ
2 at 17-18. In opposition, Astorga contends that Sanderlin is dispositive. Opp. 2 at 16.
The Ninth Circuit found that the Sanderlin plaintiffs rights to be free from First
Amendment retaliation and excessive force were clearly established as of May 2020,
almost three months before the incident here. Id.
In reply, Kiefer argues that Astorga fails to distinguish between Kiefer’s claim of
qualified immunity and Green’s claim of qualified immunity. Reply 2 at 12. Astorga
must prove that Kiefer had fair notice that his conduct violated clearly established law,
not Green’s conduct. Id. However, Kiefer claims that cases relied upon by Astorga do
not address facts specific to Kiefer’s conduct. Id. In Sanderlin, the Ninth Circuit
discussed only the actions of the officer who fired the less-lethal ammunition, not the
actions of any supervisor. Id. at 13. In Starr, when the plaintiff sued the county sheriff
for his deliberate indifference to his deputies’ Eight Amendment violations, the Ninth
Circuit at most held that supervisors can be liable for their own actions—a principle that
is too general to defeat Kiefer’s qualified immunity claim. Id. at 14.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
Green argues that even if the Court finds that Astorga suffered a First Amendment
violation, he is entitled to qualified immunity. MSJ 3 at 9,n.1. In opposition, Astorga
argues that Sanderlin defeats his claim. Opp. 3 at 12, 16. Itis unclear from Green’s
reply if he maintained this argument from his original motion. Reply 3 at 1-2.
Here, there are genuine disputes of material fact as to the actions of Astorga,
Bunch, and Kiefer leading up to and during the use of force. See supra Part IV.A.
Viewing facts most favorably to Astorga, a jury could reasonably find that Astorga posed
no threat to the officers. It is also undisputed that she was not arrested and thus did not
resist arrest. In these circumstances, Bunch and Kiefer would have been on notice of
clearly established law that it was unreasonable to use significant force against her. See
Sanderlin, 2024 WL 4033065 at *8 (“We held [in Nelson] that “the firing of a projectile
that risked causing serious harm, in the direction of non-threatening individuals who had
committed at most minor misdemeanors... constitute[d] unreasonable force in violation
of the Fourth Amendment.”); see id. at *10 (as of May 29, 2020, “Nelson and Deorle
together clearly established that [the officer’s] use of force under the circumstances was
unreasonable.”). In the same vein, Bunch and Kiefer would have been on notice that it
was unconstitutional to integrally participate in the use of significant force against her,
fail to intervene when significant force was used against her, or knowingly acquiesce to
their subordinate’s use of significant force against her. See Act Up!/Portland v. Bagley,
988 F.2d 868, 873 (9th Cir. 1993) (“[i]f a genuine issue of fact exists as to “what the
officer and claimant did or failed to do,” qualified immunity at summary judgment is
inappropriate): see Maxwell v. Cnty. of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013)
(affirming denial of summary judgment on qualified immunity grounds to officers,
including supervisors who did not directly participate in the clearly established unlawful
acts, but knew about them, were present for them, and failed to act to prevent them).
Additionally, the Court finds that there are genuine disputes of material fact that
prevent the granting of summary judgment on Astorga’s First Amendment claims.
Viewing facts in favor of Astorga, Bunch and Green retaliated against her because she
was engaging in First Amendment-protected protest activity. Sanderlin is dispositive:
is clearly established law that police officers may not use their authority to retaliate
against individuals for protected speech.” Sanderlin, 2024 WL 4033065, at *4 (citing
Ford v. City of Yakima, 706 F.3d 1188, 1195 (9th Cir. 2013), abrogated on other grounds
by Nieves v. Bartlett, 587 U.S. 391 (2019)).
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
F. Bane Act Claims
Bunch argues that he is entitled to summary judgment on Astorga’s Bane Act
claims because Astorga cannot show that Bunch intended to use unreasonable force to
violate her rights. MSJ 1 at 24. Additionally, Bunch argues that Astorga’s Bane Act
claim fails because her Section 1983 claim fails. Id. In opposition, Astorga claims that
reckless disregard for a plaintiffs rights can also trigger Bane Act liability. Opp. 1 at 18-
19. Here, Astorga argues that Bunch jabbed her intentionally, knowing it would prompt
Green to “beanbag” her in line with Bunch’s instructions. Id. Bunch’s actions thus
interfered with her mght to free speech and her right to be free from excessive force. Id.
at 19. Accordingly, Astorga argues that a reasonable factfinder could determine that
Bunch’s state of mind satisfied the Bane Act standard. Id. In reply, Bunch again argues
that Astorga lacks evidence to support these claims. Reply | at 15.
The Court finds that there are genuine disputes of material fact as to Bunch’s
mental state. See supra Part [V.A2, A3, C. There are also genuine disputes of material
fact as to the reasonableness of Bunch’s force and Bunch’s potentially retaliatory motive.
See supra Part [V.A1, B. Because a reasonable jury could infer from BWVs that Bunch
acted intentionally or recklessly while violating Astorga’s rights, Bunch is not entitled to
judgment as a matter of law.
Kiefer argues that he cannot be held liable under the Bane Act because he did not
personally use force against Astorga or engage in “threats, intimidation, or coercion.”
MSJ 2 at 20. Kiefer also contends that he did not commit any act with the specific intent
of depriving Astorga of her rights. Id. Further, Kiefer states that he cannot be held liable
as a supervisor pursuant to Cal. Gov. Code § 820.8. Id. at 19-20. In opposition, Astorga
argues that California law recognizes tort concepts of “aiding and abetting” and “concert
of action,” both of which make the Bane Act claims against Kiefer viable. Opp. 2 at 18.
In reply, Kiefer argues that Astorga failed to address his arguments. Reply 2 at 15.
The Court finds that Kiefer can be held liable under the Bane Act. See Johnson v.
Baca, No. CV 13—-04496 MMM-AJWx, 2014 WL 12588641, at *16 (C_D. Cal. Mar. 3,
2014) (finding that several California courts, including the California Supreme Court,
have “implicitly held” that a Bane Act claim “can be asserted against a sheriff based on
his or her conduct as a supervisor rather than on personal involvement in violence or a
threat of violence against a plaintiff.”). After Johnson was decided, several federal courts
found that there was no supervisory liability under the Bane Act. See Est. of Chivrell v.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘O’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title Zeeshan H. Khan v. City of Los Angeles et al.
City of Arcata, 694 F. Supp. 3d 1218, 1231-32 (N.D. Cal. 2023) (“Courts are divided as
to whether a supervisor may be held liable under the Bane Act.”). The Court finds the
reasoning in Johnson to be more persuasive.
Here, the Court finds that there are genuine disputes of material fact as to Kiefer’s
mental state and to whether he was personally involved in “threats, intimidation, or
coercion” toward Astorga. See supra Part IV.A2, A3. Given Astorga’s account of Kiefer
yelling “Push!” at officers, knowing that Green was shooting unlawfully, and providing
Green with more ammunition to continue shooting, a reasonable jury could find that
Kiefer was involved personally or as a supervisor in “threats, intimidation, or coercion”
towards Astorga, with specific intent or reckless disregard for her rights. Thus, the Court
finds that Kiefer is not entitled to summary judgment on Astorga’s Bane Act claim.
G. Battery Claim’
Bunch argues that he is entitled to summary judgment on Astorga’s battery claim
because if Astorga’s Section 1983 excessive force claim fails, her battery claim also fails.
MSJ | at 25. In opposition, Astorga claims that viewing the record favorably to her,
Bunch’s baton blows and participation in Green’s shooting constituted unreasonable
force, satisfying the elements of a battery claim against a police officer. Opp. at 19.
The Court finds that there are genuine disputes of material fact regarding Astorga’s
battery claim against Bunch, for the same reasons that there are genuine disputes of
material fact regarding Astorga’s Fourth Amendment claim under Section 1983. See
supra Part IV.A. Accordingly, Bunch is not entitled to judgment as a matter of law.
Kiefer argues that he cannot be liable for battery, as he did not make any physical
contact with Astorga. MSJ 2 at 21. Further, Kiefer states that he cannot be held liable as
Bunch or Green’s supervisor under state law. Id. at 19-20. In opposition, Astorga again
argues that “aiding and abetting” and “concert of action” theories make her battery claim
against Kiefer viable. Opp. 2 at 19. In reply, Kiefer argues that Cal. Gov. Code § 820.8
? While Astorga alleged assault and battery claims in her TAC, she appears to only allege
a battery claim in her oppositions to defendants’ motions. See Opp. | at 19, Opp. 2 at 12,
Opp. 3 at 19. As such, the Court only discusses Astorga’s battery claim.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’
Case No. 2:21-cv-03289-CAS-MARx Date October 7, 2024
Title ~Zeeshan H. Khan v. City of Los Angeles et al.
forecloses his liability for state law claims, and that Astorga cannot rely on cases between
private parties to hold a public employee liable. Reply 2 at 15.
The Court finds that, viewing facts favorably to Astorga, Kiefer could be held
liable for battery as Bunch’s supervisor, and is thus not entitled to judgment as a matter
of law. A municipal officer is generally not liable for an injury caused by the act or
omission of another person, unless that injury 1s proximately caused by the officer’s own
wrongful act or omission. Cal. Gov. Code § 820.8. However, a supervising municipal
officer may be liable for the acts or omissions of his subordinates if the supervisor directs
the acts or personally cooperates in them. See Michel v. Smith, 188 Cal. 199, 201
(1922): Oppenheimer v. City of Los Angeles, 104 Cal. App. 2d 545, 549 (1951).
Viewing evidence in the light most favorable to Astorga, Kiefer knew, or had
reason to know, that Green’s conduct was unlawful. He nevertheless provided Green
with additional beanbag rounds before Green shot at Astorga, indicating his approval and
encouragement of Green shooting Astorga. A reasonable jury could infer that Green’s
provision of supplies and encouragement constituted a wrongful act that proximately
caused Astorga’s injuries, as Green could have decided to continue shooting based on
Kiefer’s conduct. Additionally, a reasonable jury could infer that Green’s lack of
intervention to stop Green’s conduct constituted a wrongful omission that proximately
caused Astorga’s injuries. Thus, a factfinder could determine that Kiefer proximately
caused Astorga’s injury through his own wrongful act or omission or that Kiefer
“personally cooperated” in Green’s unlawful acts. The Court therefore finds that triable
issues of fact preclude summary judgment on Kiefer’s state law immunity claim.
V. CONCLUSION
In accordance with the foregoing, the Court DENIES Bunch, Kiefer, and Green’s
motions for summary judgment.
IT IS SO ORDERED.
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