# Castillo v. Bush

> District Court, D. Oregon · August 15, 2024

URL: https://www.frixlaw.com/law-library/cases/10666371

## Case

- **Court:** District Court, D. Oregon
- **Decided:** August 15, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

MISTY L. CASTILLO, as Personal Case No. 6:22-cv-00684-MK
Representative of the ESTATE OF
ARCADIO CASTILLO, III, OPINION AND ORDER

Plaintiff,

vs.

NATHAN BUSH and CITY OF SALEM,
a municipal corporation,

Defendants.
_________________________________________

KASUBHAI, United States Magistrate Judge:
Following the July 9, 2021 police shooting and killing of Arcadio Castillo III (“Castillo
III”), Plaintiff Misty Castillo (the personal representative of Castillo III’s estate), filed this civil
rights lawsuit under 42 U.S.C. § 1983 (“Section 1983”) and Oregon State law. Compl., ECF No.
1. Plaintiff alleges claims against the officer involved in the shooting, Nathan Bush, and the City
of Salem. Before the Court are (1) Plaintiff’s Motion for Partial Summary Judgment and (2)
Defendants’ Motion for Summary Judgment. For the below reasons, Plaintiff’s motion is denied,
and Defendants’ motion is granted in part and denied in part.
FACTUAL BACKGROUND
On July 9, 2021, at approximately 11:20 p.m., Misty Castillo called 911, reporting that
her son was mentally ill, intoxicated, under the influence of marijuana, assaulting family
members, and armed with a knife. Answer ¶ 7, ECF No. 53. Misty Castillo also yelled “get away

from me” and then screamed before the 911 call was disconnected. Id. Defendant Bush was on
his way to another call when he saw the call of a nearby domestic disturbance and self-
dispatched. Bush Dep. 36:7-14, ECF 70-3. Defendant Bush was aware of the contents and nature
of the 911 call. Id. at 38:21-39:9; see also Answer ¶ 7.
When Defendant Bush arrived and exited the vehicle, he drew his gun because he thought
Misty Castillo was potentially being stabbed. Bush Dep. 68:20-69:9. He approached the
residence on foot, putting his weapon away when he saw Misty Castillo standing in the driveway
of the family home. Bush Dep. 49:4-8, 69:7-20. ECF 70-3. He observed Castillo III standing on
the porch in front of the house. Id. at 51:7-16. Defendant Bush looked for a knife but did not see
one. Id. at 55:3-11. Defendant Bush said, “What’s going on?” and Castillo III looked at him, then

turned around and entered the home, shutting the door behind him. Id. at 52:14-54:21.
Defendant Bush then approached Misty Castillo in the driveway to acquire more
information. Id. at 58:22-25; 59:8-11. Defendant Bush testified that Misty Castillo told him that
Castillo III had “drug her across the driveway,” and Defendant Bush observed fresh scrapes
underneath her kneecap and down her shin. Park Decl. Ex. 4 at 37, ECF No. 70-3. She told him
that he needed to “go help” her husband, who was located inside the house with Castillo III.
Tapia Decl. Ex. 3 at 62:7-10, ECF No. 61-3; Tapia Decl. Ex. 2 at 60:3-4, ECF No. 61-2.
Defendant Bush approached the porch and climbed the steps, eventually hearing voices
inside the home. Bush Dep. 65:13-22. As he approached the door, he drew his weapon again.
Bush Dep. 69:21-24. He heard the conversation inside the house “escalating,” and checked the
door. Bush Dep. 74:21-75:5. When he checked it a second time, he “heard a loud audible pop”
and felt that his position was compromised, so he opened the door to “get eyes on the problem.”
Id.

The parties provide different accounts of what happened next. However, the shooting
itself and state of the scene afterward are not disputed. Audio and video evidence show that
Defendant fired his first shot approximately 4.1 seconds after he opened the door. Nelson Decl.
Ex. 3, ECF No. 69-2. Defendant Bush shot Castillo III four times, in the mid-chest, left chest and
arm, right upper arm and chest, and left abdomen. Park Decl. Ex. 1, ECF No. 70-1. The crime
scene investigation report reflected that Castillo III’s body was on the carpet of the living room
floor near the front door. Park Decl. Ex. 6, ECF No. 70-5. There was blood on the floor of the
front entry, living room floor, and a brown recliner. Id. There was a 13-inch bloody kitchen knife
with a black handle between Castillo III’s body and the dining room. Id. There was a bullet strike
“midway up the [front] door with an entrance in the front of the door near the edge and an exit

through the edge of the door.” Id. Another bloody 13-inch kitchen knife—this one with a
stainless-steel handle—was found behind the brown recliner in the living room. Id. There was
also a 9.25-inch steak knife with three small spots of blood on top of a blanket on the seat of the
brown recliner.
The parties have introduced conflicting evidence about the events that took place during
time between Defendant Bush opening the door and his shooting of Castillo III. Defendant Bush
has testified that, after opening the door, he observed Castillo III facing him on the other end of a
couch, holding a large knife in his right hand. Bush Dep. 85:19-24. At initial contact, the knife
was down at Castillo III’s side and he did not appear to be threatening Castillo Jr. Id. at 87:1-11;
88:11-14. Defendant Bush testified that he pointed his gun at him and commanded him to “drop
the knife.” Id. at 86:15-24. After that, Defendant Bush described the events as follows:
Initially when I told him to "drop the knife," he began walking towards me, took
approximately two steps, a couple feet towards me, and then stopped, turned
around, and started walking away. I stopped talking to him hoping he would walk
back into the house, because my goal at that point was to get his dad out of the
house. I took one step through the doorway, and I took my left hand off my pistol.
I reached out towards Arcadio, Junior, to try to tell him to come to me so I could
pull him out of the house so he could get away from the problem, and then at that
point Arcadio, III, spun to his left, his weight shifted forward, and he charged at me
with the knife raised near his right shoulder.
Bush Dep. 89:16-90:10. He testified that Castillo III was then “running directly towards [him]”
with the knife “up and pointed towards [him]…in a stabbing motion.” Id. at 92:9-22. He testified
that he fired the first shot shortly after Castillo III began running towards him. Id. at 94:5-7.
In contrast to Bush’s testimony, Castillo Jr. testified that when Defendant Bush fired the
first shot, Castillo III was “just standing there with the knife,” both hands by his sides. Castillo
Jr. Dep. 38:22-39:19, ECF No. 70-2. Plaintiff’s expert also opined based on the physical
evidence that it is “impossible” for Castillo III to have been charging in the manner Defendant
Bush described. Howard Decl. ¶ 11, ECF No. 68. His opinion is based on, among other things,
the locations and condition of blood spatter, the condition of the recovered bullets, the nature of
Castillo III’s wounds, the locations of the knives, and the timing of the shots fired. See generally
Howard Decl.1
Pursuant to agency policy, the shooting was investigated by the “Critical Incident Review
Board, which is an interagency work group that includes several high-ranking managers within

1 Defendants’ response to Plaintiff’s motion contests Mr. Howard’s qualifications to render the
opinions in his report. However, even if considered, Mr. Howard’s opinions do not entitle Plaintiff
to summary judgment for the reasons explained later in this opinion. Accordingly, the Court
declines at this point to make a Rule 702/Daubert ruling with respect to Mr. Howard’s testimony
without a formal motion and separate briefing on the issue.
the Salem Police Department.” Ditto Decl. ¶¶ 3-6, ECF No. 64. On December 27, 2021, Chief of
Police Trevor Womack received a memorandum setting forth the findings of the Critical Incident
Review Board. Park Decl. II Ex. 2, ECF No. 93-2. The document concludes that Defendant
Bush’s actions were “within department directives and consistent with Salem Police Department

training and expectations. Id. Chief Womack signed “concur” on that memorandum. Id.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute
as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs.,
Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is
such that a reasonable jury could return a verdict for the nonmoving party determines the
authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the
absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings
and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all
reasonable doubts as to the existence of genuine issues of material fact should be resolved
against the moving party; and (2) all inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
/ / /
/ / /
DISCUSSION
I. Section 1983 Claims against Defendant Nathan Bush
A. Fourth Amendment Unlawful Entry
Defendants move for summary judgment against Plaintiff’s claim that Defendant Bush
violated Castillo’s Fourth Amendment rights by entering his home without a warrant. “It is a
basic principle of Fourth Amendment law that searches and seizures inside a home without a
warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980)

(citation and quotations omitted). However, as relevant here, warrantless entry is permissible
where the occupant consents to it or where exigent circumstances justify it. See Georgia v.
Randolph, 547 U.S. 103, 109 (2006) (warrantless entry of a home is permissible “with the
voluntary consent of an individual possessing authority); Lange v. California, 141 S. Ct. 2011,
2016 (2021) (“an officer may make a warrantless entry when ‘the exigencies of the situation’
create a compelling law enforcement need”). Defendants argue that there is no genuine issue of
fact that Defendant Bush’s entry into the home was lawful because (1) he had express consent
from Misty Castillo and Castillo Jr. to enter, and (2) exigent circumstances justified the entry.
1. Consent
“The Fourth Amendment recognizes a valid warrantless entry and search of premises
when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to

share, authority over the area in common with a co-occupant who later objects to the use of
evidence so obtained.” Randolph, 547 U.S. at 106. Defendant Bush argues that he had
unambiguous voluntary consent to enter the home based on Misty Castillo’s request that he go
help her husband (who was inside the home) and Castillo Jr.’s unlocking of the front door when
he was aware of Defendant Bush’s presence at the doorway. Plaintiff argues that—even if Misty
Castillo and/or Castillo Jr. consented to Defendant Bush’s entry—warrantless entry was not
justified because co-occupant Castillo III “unequivocally demonstrated his objection to Bush
entering the residence.” Pl. Resp. 20.
On the consent issue, the Court finds that Plaintiff has failed to establish a genuine issue
of material fact on Misty Castillo’s express consent to Defendant Bush’s entry into the home.

Misty Castillo testified that she told the officer to go help her husband, who was inside the home.
Tapia Decl. Ex. 2 at 60:3-4. Plaintiff has not identified any evidence negating this clear
testimony supporting her consent to enter the home. Accordingly, Defendants have established
that Defendant Bush had Misty Castillo’s consent to enter the home.
Notwithstanding Misty Castillo’s consent, however, there is a question of fact as to
Castillo III’s refusal of entry. The Supreme Court has held that, even where one occupant
consents to entry, “a physically present co-occupant’s stated refusal to permit entry prevails,
rendering the warrantless search unreasonable and invalid as to him.” Randolph, 547 U.S. at 106.
Plaintiff likens this case to Bonivert v. City of Clarkston, 883 F.3d 865 (9th Cir. 2018). In that
case, police responding to a domestic dispute call received the consent of the victim to enter her

home where the plaintiff (a co-occupant of the home) was located. Id. at 868-69. The officers
approached the front door and instructed the plaintiff to come to the door. Id. at 870. The
plaintiff locked the side door and did not respond to an officer’s command to “come out or we
are coming in.” Id. After speaking with witnesses outside the home and receiving the victim’s
consent to enter, an officer again knocked on the door and advised the plaintiff to open the door.
Id. at 870. When officers shined a flashlight through the window to look inside, the plaintiff
retreated and ducked out of sight. Id. at 871. Police then broke a windowpane on the backdoor
and unlocked it. Id. at 871. After briefly interacting with the officers at the door, the plaintiff
tried to shut the door but the officer “rushed through with . . . force.” Id. at 875. The Ninth
Circuit held that the plaintiff’s behavior constituted an express refusal to permit the officers’
entry. Id. at 875. Specifically, the Ninth Circuit explained that the victim’s consent was no longer
valid once the plaintiff locked the side door and attempted to shut the front door on the officers
and that a reasonable officer would have understood the plaintiff’s behavior as an express

refusal. Id. at 875-76.
Defendants argue that Randolph and Bonivert should not apply because this case, unlike
those cases, involved an ongoing domestic violence incident in which there was an alleged
potential victim inside the home with Castillo III at the time Defendant Bush sought entry. They
argue that, where an ongoing domestic violence situation is unfolding, an alleged domestic
abuser cannot refuse consent. Defendants’ argument conflates the consent analysis with the
exigency analysis and misapprehends Justice Souter’s limitation of Randolph’s application. The
existence of potentially ongoing domestic violence is certainly relevant to the existence of
exigent circumstances justifying entry, but there is nothing in the rationale of Randolph or
Bonivert to suggest such a fact would alter the consent analysis. Indeed, Justice Souter’s

comment that Randolph “has no bearing on the capacity of the police to protect domestic
victims” notes that “[t]he undoubted right of the police to enter in order to protect a victim,
however, has nothing to do with the question in this case, whether a search with the consent of
one co-tenant is good against another, standing at the door and expressly refusing consent.”
Randolph, 547 U.S. at 118-19. In other words, recognizing the ability of a co-occupant to refuse
consent for purposes of that exception to the warrant requirement does not negate the ability of
an officer to enter the home when faced with exigent circumstances (a different exception to the
warrant requirement).
While the Court recognizes that the facts in Bonivert more clearly establish refusal of
consent than do the facts at issue here, there is enough in the record from which a juror could
conclude that a reasonable officer could have understood Castillo III’s behavior as express
refusal of entry sufficient to render Misty Castillo’s consent invalid. Specifically, Castillo III

walked inside and closed the door in response to being addressed by Defendant Bush. Thus,
Defendants are not entitled to summary judgment on this claim on the basis of consent because
there is a question of fact on whether a reasonable officer would have understood Castillo III
refused consensual entry. However, as addressed later in this opinion, Defendant Bush is entitled
to qualified immunity on this claim.
2. Exigent Circumstances2
Exigent circumstances can also justify warrantless entry. That exception applies when
“(1) considering the totality of the circumstances, law enforcement had an objectively reasonable
basis for concluding that there was an immediate need to protect others or themselves from
serious harm; and (2) the search’s scope and manner were reasonable to meet the need.” United
States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). As to the first prong, “whether the actions of

the police are objectively reasonable is to be judged by the circumstances known to them.”
United States v. Black, 482 F.3d 1035, 1040 (9th Cir. 2007). While the existence of a domestic
dispute does not per se amount to exigent circumstances, “[c]ourts have recognized the
combustible nature of domestic disputes, and have accorded great latitude to an officer’s belief

2 The parties make arguments with respect to both “exigency” and “emergency aid,” both of which
are exceptions to the rule against warrantless entry. Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th
Cir. 2009). However, “the distinction between the two exceptions largely fades away … when the
primary exigency or emergency justifying warrantless entry is…the risk of physical harm to
another person following an alleged assault.” Dold v. Snohomish Cnty., 649 F. Supp. 3d 1084,
1101 (W.D. Wash. 2022) (collecting Ninth Circuit and Supreme Court cases). Thus, the Court’s
analysis of “exigency” encompasses “emergency aid” as well.
that warrantless entry was justified by exigent circumstances when the officer had substantial
reason to believe that one of the parties to the dispute was in danger.” United States v. Brooks,
367 F.3d 1128, 1136 (9th Cir. 2004), quoting Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir.
1998). In general, “Whether reasonable cause to believe exigent circumstances existed in a given

situation, ‘and the related questions, are all questions of fact to be determined by a jury.’” Mabe
v. San Bernardino Cnty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1108 (9th Cir. 2001) (quoting
Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir.2000)).
Defendant Bush argues that he is entitled to summary judgment on Plaintiff’s Fourth
Amendment unlawful entry claim because undisputed facts establish an objectively reasonable
basis to believe there was an immediate need to protect Castillo Jr. from harm. In particular,
Defendant Bush emphasizes that he knew that Castillo III was “mentally ill and assaulting [Misty
Castillo and Castillo Jr.]” with a knife before he arrived at the home. After his arrival, Misty
Castillo expressed concern for the safety of Castillo Jr. and asked Defendant Bush to help him.
Defendant Bush observed that Misty Castillo had been injured and testified she told him Castillo

III had drug her across the driveway. When he approached the home and listened at the door, he
heard voices escalating. All these facts could lead a reasonable officer to conclude there was an
immediate need to protect Castillo Jr. from harm inside the home.
On the other hand, Plaintiff identifies other facts in the record from which he contends a
reasonable jury could conclude the warrantless entry was not justified based on exigent
circumstances. Specifically, she notes that Castillo III appeared calm and unarmed when
Defendant Bush arrived at the scene, and nobody was yelling or screaming. Misty Castillo’s
injuries were minor and she had not been harmed by a knife.
Despite the wealth of circumstances that suggested exigency, Plaintiff has identified
sufficient facts to the contrary such that this issue is properly resolved by a jury. Based on the
facts known to Defendant Bush at the time, viewing all the evidence in the light most favorable
to Plaintiff, a reasonable jury could find that Defendant Bush lacked an objectively reasonable

basis for concluding that there was an immediate need to protect Castillo Jr. from harm.
However, as addressed later in this opinion, Defendant Bush is entitled to qualified immunity on
this claim.
B. Fourth Amendment Excessive Use of Force
Plaintiff moves for summary judgment on her claim that Defendants violated Castillo
III’s Fourth Amendment rights by “intentionally shooting [Castillo III] without an objectively
reasonable belief that [he] presented an immediate threat of serious bodily harm to defendant
Bush or any other person and without providing [him] reasonable time to comply with his
commands nor fair warning of his intention to use deadly force.” Sec. Am. Compl. ¶ 28, ECF
No. 47.3 Defendants argue that genuine issues of material fact on the events that led to Castillo
III’s death preclude summary judgment in Plaintiff’s favor.

“Fourth Amendment excessive force claims are examined under the reasonableness
standard and the framework outlined by the Supreme Court in Graham v. Connor, 490 U.S. 386
(1989).” Price v. City of Sutherlin, 945 F.Supp.2d 1147, 1155 (D. Or. 2013) (citation omitted). In
evaluating a claim of excessive force, the critical question “is whether the use of force was
objectively reasonable in light of the facts and circumstances confronting the . . . officer.”
Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) (citation and internal
quotations omitted). This analysis requires courts to consider (1) the severity of the crime at

3 Although Defendants initially cross-moved for summary judgment on this claim, they withdrew
this motion in their reply. Def.’s Reply. 16.
issue; (2) whether the individual posed an immediate threat to the safety of the officers or others;
and (3) whether the individual was actively resisting arrest or attempting to flee. Graham, 490
U.S. at 396. The Court must also “look to whatever specific factors may be appropriate in a
particular case, whether or not listed in Graham.” Franklin v. Foxworth, 31 F.3d 873, 876 (9th

Cir. 1994). Because excessive force claims “almost always turn on . . . credibility
determinations” and “nearly always requir[e] a jury to sift through disputed factual contentions,”
summary judgment is rarely warranted. Smith v. City of Hemet, 394 F.3d 689, 701
(2005) (citation and internal quotations omitted).
1. Immediate Threat
The “most important” Graham factor is whether the individual posed a threat to the
safety of the officer or others. Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). “If the person
is armed—or reasonably suspected of being armed—a furtive movement, harrowing gesture, or
serious verbal threat might create an immediate threat. George v. Morris, 736 F.3d 829, 838 (9th
Cir. 2013). Here, the parties agree that mere possession of a weapon is not enough to establish an
immediate threat but disagree as to whether Castillo III engaged in any actions creating an

immediate threat.
As noted above, the parties offer conflicting evidence about the events that unfolded
before Defendant Bush shot Castillo III. Despite the conflicting evidence, Plaintiff contends that
the Supreme Court’s decision in Scott v. Harris, 550 U.S. 372 (2007) compels the Court to find
the absence of a genuine issue of fact because the “physical facts” directly contradict Defendant
Bush’s testimony that Castillo III was charging at him with a knife when he fired his first shot.
In Scott, the parties provided different evidence supporting their accounts of events that
took place during a car chase that culminated in the defendant police officer “ramming” the
plaintiff’s vehicle. The Supreme Court began its analysis by stating the general rule that, when
parties present different accounts of the facts, summary judgment is inappropriate. Id. at 378.
However, the Court explained that there was “an added wrinkle in this case: existence in the
record of a videotape capturing the events in question.” Id. The events depicted in the video
clearly contradicted the plaintiff’s version of the story, and “there was no contention that what

[the video] depict[ed] differs from what actually happened.” Id. The Court held that “[w]hen
opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Id. at 380.
The facts at issue here are not comparable to Scott for two related reasons. First, while
there was no contention in Scott that the events depicted in the video were different from what
actually happened, the parties here do dispute that the evidence at issue (Mr. Howard’s
interpretation of the physical evidence) align with what actually happened. Plaintiff’s argument
conflates the physical evidence at issue with her expert’s interpretation of it. While the parties
may not dispute the condition of the scene after the shooting, they do dispute Mr. Howard’s

interpretation of it (i.e. “what actually happened”). This distinguishes Scott from this case.
Second, the Court cannot equate an expert’s interpretation of physical evidence as
“physical facts” comparable to video evidence, nor has Plaintiff identified any controlling case
law supporting such an expansion of the rule announced in Scott. While the Ninth Circuit has
explained that Scott is not limited to videotapes, Plaintiff has cited no controlling case law that
has applied the rule in the manner she seeks to apply it here. Indeed, the Ninth Circuit has
declined to apply Scott when one party relied on physical evidence that they contended directly
contradicted another witness’s testimony.” Orn v. City of Tacoma, 949 F.3d 1167, 1175 (9th Cir.
2020). The Court explained that while physical evidence “provide[d] some support for [the
defendant’s] version of events, they [we]re nowhere near conclusive enough to meet Scott’s
‘blatantly contradicts’ standard, where the Court relied on a videotape clearly depicting the
events in question. Id. Whatever the outer limits of Scott’s application, there is no support for
applying it to Mr. Howard’s testimony. Significantly, Defendants identify numerous assumptions

Mr. Howard makes to arrive at his conclusion that it was “impossible” that Castillo III was
charging Defendant Bush, including which knife Castillo III held, which of Castillo III’s wounds
were sustained in which order, and differing interpretations of blood stain patterns. The
numerous pieces of physical evidence and inferences drawn from them underscores the danger of
applying the Scott rule to an expert’s interpretation of physical evidence.
In sum, the Court cannot say, as the Supreme Court did in Scott, that “no reasonable jury
could believe” Defendant Bush’s testimony. Thus, Scott does not foreclose a jury from
considering Defendant Bush’s testimony and weighing it against an expert’s interpretation of
physical evidence. Because Defendant Bush’s testimony contradicts Mr. Howard’s analysis of
the physical evidence as well as Castillo Jr.’s testimony on the issue of Castillo III’s immediate

threat, a genuine issue of fact remains on the issue of Castillo III’s immediate threat at the time
Defendant Bush shot him. Viewing the evidence in the light most favorable to Defendant, a
reasonable jury could find that Castillo III posed an immediate threat.
2. Severity of the Crime at Issue
The next factor to consider is the severity of the crime at issue. See Graham, 490 U.S. at
396. As with the other factors, the scope of this inquiry is “judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Glenn v. Wash.
Cnty., 673 F.3d 864, 871 (9th Cir. 2011) (internal citation and quotation omitted).
Plaintiff concedes that Defendant Bush had probable cause to believe that Castillo III
may have committed Assault IV, ORS 163.160, and Menacing, 163.190, but argue that such
crimes cannot justify the use of deadly force. Plaintiff relies on Smith, 394 F.3d 689 in support of
her assertion that use of deadly force was prohibited as a matter of “clearly established law.” See
Pl.’s Mot. 21. In Smith, the police responded to a report of domestic abuse, but upon arrival the
suspect was “standing on his porch alone and separated from his wife.” Smith, 394 F.3d. 702-03.

He “had no guns or other weapons in his possession and there were none in the house.” Id.
The facts in Smith are distinguishable from those here. Here, unlike in Smith, the suspect
was neither separated from all potential or alleged victims, nor was it clear that he had no
weapons on his person or in the home. Although Misty Castillo was separated from Castillo III,
Defendant Bush knew that Castillo Jr. was still in the house, that Castillo III had just walked
back into it, that Castillo III had possession of a knife, and that Misty Castillo was fearful for her
husband’s safety. Defendants also identify other crimes Defendant Bush had reason to believe
Castillo III committed. Defendant Bush received a report that Castillo III had threatened family
members with a knife, which would constitute felony Unlawful Use of a Weapon under ORS
166.220. He also understood that Castillo III had interrupted Misty Castillo’s 911 call, which

would constitute Interference with Making a Report under ORS 165.572.
In response, Plaintiff argues that Defendant Bush’s “behavior in his approach to the
scene” indicates that he was unconcerned about the commission of felony crimes. Pl. Reply 14.
As an initial matter, Plaintiff does not identify any case law holding that a defendant’s subjective
belief regarding the commission of dangerous crimes is relevant to the Court’s inquiry on this
factor, which is an objective test that depends on whether a reasonable officer would have
concluded a serious crime was occurring. See Lowry v. City of San Diego, 858 F.3d 1248, 1258
(9th Cir. 2017). Even if relevant, Defendant Bush’s alleged lack of concern appears to be a
question of fact; although Plaintiff points out that Defendant Bush made little attempt to conceal
himself and only heard voices talking, he had also drawn his weapon and testified that he heard
the conversation escalating. Finally, the question of Defendant Bush’s behavior and its
consistency with his beliefs about the commission of dangerous felony or person crimes goes to
the credibility of his testimony, which is inappropriate for this Court to resolve at summary

judgment.
In sum, viewing the evidence in the light most favorable to Defendant, a jury could find
that a reasonable officer under the circumstances would have had probable cause to believe that
Castillo III had committed serious crimes.
3. Attempt to Resist or Flee

The final Graham factor involves an inquiry into whether Castillo III was resisting or
attempting to evade arrest. Plaintiff argues that she is entitled to summary judgment because
“Castillo III’s location within his home and physical orientation to Bush when shot, in
conjunction with the short period of time the shooting occurred after the front door opened[,]
conclusively controvert a reasonable inference that Castillo III was either resisting arrest or
attempting to flee.” Pl.’s Mot. 21. But, as explained in detail above, there is a dispute of fact on
Castillo III’s position and actions immediately preceding the shooting. Moreover, there is
evidence that Castillo III failed to respond to Defendant Bush before withdrawing into the home,
and that he failed to drop the knife during his confrontation with Defendant Bush inside the
home. Drawing all inferences in Defendants’ favor as to Castillo III’s response to Defendant
Bush’s inquiries and commands and his position prior to the shooting (i.e. whether he was
charging), a reasonable jury could conclude that Castillo III was resisting or attempting to evade
arrest.
In sum, the disputed facts about the events that led to Castillo III’s shooting preclude this
Court from granting summary judgment for Plaintiff on this claim.
C. Qualified Immunity
Qualified immunity “protects government officials from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quotation marks and citation omitted). The purpose of qualified immunity is to “strike a balance
between the competing ‘need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably.’” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011)
(quoting Pearson, 555 U.S. at 231). Qualified immunity “applies regardless of whether the
government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed
questions of law and fact.” Pearson, 555 U.S. at 231.
“Determining whether officials are owed qualified immunity involves two inquiries: (1)
whether, taken in the light most favorable to the party asserting the injury, the facts alleged show

the official’s conduct violated a constitutional right; and (2) if so, whether the right was clearly
established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th
Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Here, the Court has already found
that Plaintiff has presented sufficient evidence from which a reasonable jury could find that
Castillo III’s Fourth Amendment rights against unlawful entry and excessive use of force were
violated. Thus, the first prong of the analysis is satisfied, and the remaining question is whether
the rights allegedly violated were clearly established in light of the specific context of the case.
The Supreme Court has emphasized that the asserted right “must be sufficiently clear that
every reasonable official would have understood that what he is doing violates that
right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (brackets and internal quotation marks
omitted).
To be clearly established, a legal principle must have a sufficiently clear foundation
in then-existing precedent. The rule must be “settled law,” which means it is
dictated by “controlling authority” or “a robust ‘consensus of cases of persuasive
authority[.]’ ” It is not enough that the rule is suggested by then-existing precedent.
The precedent must be clear enough that every reasonable official would interpret
it to establish the particular rule the plaintiff seeks to apply. Otherwise, the rule is
not one that “every reasonable official” would know.

District of Columbia v. Wesby, 138 S. Ct. 577, 589-90 (2018) (citations omitted). In other words,
while qualified immunity does not require “a case directly on point, [ ] existing precedent must
have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011). The specificity of the clearly established law is “especially important in
the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for
an officer to determine how the relevant legal doctrine…will apply to the factual situation the
officer confronts.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal citation, quotation, and
alterations omitted).
For the reasons explained below, the Court grants Defendant Bush summary judgment on
the basis of qualified immunity against Plaintiff’s unlawful entry claim but denies summary
judgment against Plaintiff’s excessive use of force claim.
1. Unlawful Entry
Defendant argues that even if there were a genuine issue of material fact as to unlawful
entry—as this Court has found there is—he is still entitled to summary judgment based qualified
immunity. Plaintiff contends that Defendant Bush is not entitled to qualified immunity because
the law applicable to the consent and exigency exceptions was clearly established based on
Randolph, supra, and Bonivert, supra, respectively.
As to the consent exception, neither Randolph nor Bonivert clearly establish the law such
that every reasonable official would have understood that Defendant Bush’s reliance on consent
would violate Castillo III’s Fourth Amendment right. As explained above, Randolph establishes
the law that an occupant’s refusal to permit entry renders warrantless entry invalid even if

another co-occupant consents. Randolph, 547 U.S. at 106. But a qualified immunity analysis
requires factually analogous circumstances, and neither Randolph nor Bonivert are sufficiently
similar. With respect to Randolph, the co-occupant there was specifically asked for permission to
search the house and “unequivocally refused;” the issue in the case was not whether he refused,
but rather the effect of that refusal. See id. at 107. It does not clearly establish the law on what
conduct constitutes refusal of consent. Although the facts in Bonivert as illustrated above are
somewhat more analogous to those here, that case is still insufficient to clearly establish the law.
In particular, the behavior of the officers there (who were clearly seeking entry) followed by the
multiple indications of refusal by the plaintiff (refusing to answer the door when asked,
affirmatively locking the door, hiding within the home, and attempting to close the door on the

officers) were far more unequivocal. By contrast, Castillo III’s simply walked inside the house
following a vague police inquiry that did not suggest the officer was requesting permission to
enter the home. The facts are insufficiently similar to clearly establish the law on Castillo III’s
alleged refusal of entry.
As to the exigency exception, Bonivert does not clearly establish the inapplicability of the
exigency exception to warrantless entry. In that case, the alleged victim of the domestic abuse
was “safely outside the home before the officers even arrived.” Bonivert, 883 F.3d at 879. By
contrast, here, Castillo Jr. was inside the home with Castillo III, Misty Castillo had expressed
concern for her husband’s safety, and Defendant Bush heard escalating voices prior to his entry.
Not every reasonable official would conclude from Bonivert that Defendant Bush’s entry under
those circumstances would violate Castillo III’s Fourth Amendment rights.
Defendant Bush is therefore entitled to qualified immunity on Plaintiff’s unlawful entry
claim and is entitled to summary judgment in his favor on that claim.

2. Excessive Use of Force
Defendant Bush also moves for summary judgment against Plaintiff’s excessive use of
force claim based on qualified immunity. However, whether Defendant Bush’s use of force
violated clearly established law in this case depends on the disputed facts about what happened
after Defendant Bush opened the front door and immediately prior to his shooting of Castillo III.
Qualified immunity is, “by design,” usually resolved before trial “in order to preserve the
doctrine’s status as a true immunity from suit rather than a mere defense to liability.” Morales v.
Fry, 873 F.3d 817, 822 (9th Cir. 2017) (internal quotation, citation, and alteration omitted).
However, “when there are disputed factual issues that are necessary to a qualified immunity
decision, these issues must first be determined by the jury before the court can rule on qualified
immunity.” Id. (quoting commentary to Ninth Circuit Model Civil Jury Instruction 9.34 (2017)).

In such a case, “only the jury can decide the disputed factual issues, while only the judge can
decide whether the right was clearly established once the factual issues are resolved.” Id. at 823.
Here, with so many material facts in dispute over the circumstances that preceded
Defendant Bush’s use of force, the Court cannot determine whether Castillo III’s Fourth
Amendment right against the use of excessive force was clearly established. That issue can be
resolved only after the jury decides on the disputed facts. Accordingly, Defendant’s motion for
summary judgment against Plaintiff’s excessive force claim on the basis of qualified immunity is
denied.4
II. Section 1983 Municipal Liability against Defendant City of Salem
Defendants move for summary judgment against Plaintiff’s claim for municipal liability

under Section 1983 against Defendant City of Salem, arguing that Plaintiff cannot offer any
evidence from which a jury could conclude that Defendant City of Salem had a pattern and
practice of unconstitutional conduct.
In certain circumstances, a municipality may be held liable as a “person” under Section
1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690–91 (1978). However, “a municipality
cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.” Id. Liability only attaches
where the municipality itself causes the constitutional violation through the “execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury that the government as an entity

is responsible under § 1983.” Id. at 694; see also Gillette v. Delmore, 979 F.2d 1342, 1347 (9th
Cir. 1992) (“[i]f the mere exercise of discretion by an employee could give rise to a
constitutional violation, the result would be indistinguishable from respondeat
superior liability”) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988)).
There are three methods by which a plaintiff may establish municipal liability under
Monell. First, a local government may be liable where the “execution of a government’s policy
or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to

4 While the Court allowed supplemental briefing on the effect Calonge v. City of San Jose, 104
F.4th 39 (9th Cir. 2024), on the question of qualified immunity, that case does not alter the Court’s
conclusion that addressing qualified immunity is inappropriate here given the disputed facts.
represent official policy, inflict[s] the injury.” Rodriguez v. City of Los Angeles, 891 F.3d 776,
802 (9th Cir. 2018) (quoting Monell, 436 U.S. at 694). Second, a local government can fail to
train employees in a manner that amounts to “deliberate indifference” to a constitutional right,
such that “the need for more or different training is so obvious, and the inadequacy so likely to

result in the violation of constitutional rights, that the policymakers of the [government entity]
can reasonably be said to have been deliberately indifferent to the need.” Id. (quoting City of
Canton v. Harris, 489 U.S. 378, 390 (1989)). Third, a local government may be held liable if
“the individual who committed the constitutional tort was an official with final policy-making
authority or such an official ratified a subordinate’s unconstitutional decision or action and the
basis for it.” Id. at 802–03 (quoting Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097 (9th Cir.
2013)).
Here, Plaintiff advances two theories of municipal liability: (A) that Chief Womack, an
individual with final policy-making authority, ratified Defendant Bush’s unconstitutional
conduct; and (B) that Defendant City of Salem had a longstanding policy and practice of failing

to conduct bona fide internal reviews of officer-involved shootings.
A. Ratification
Plaintiff’s first theory of municipal liability is that Chief Womack ratified Defendant
Bush’s unconstitutional conduct by concurring in the findings of the Critical Incident Review
Board that Defendant Bush’s use of force was within policy. Under a ratification theory, “a
plaintiff must prove that the authorized policymakers approve a subordinate’s decision and the
basis for it.” Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999) (quotations and citation
omitted). Ratification is typically a question for the jury, but a plaintiff must still “establish that
there is a genuine issue of material fact regarding whether a ratification occurred.” Id.
A policy-maker’s finding that an officer’s conduct was not wrongful is not, standing
alone, sufficient to go to the jury on a ratification theory. Haugen v. Brosseau, 339 F.3d 857, 875
(9th Cir. 2003). When relying on a single decision of a policymaker to establish municipal
liability, “the plaintiff must show that the triggering decision was the product of a ‘conscious,

affirmative choice’ to ratify the conduct in question.” Id. (internal quotations omitted). For
example, in Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991), the Ninth Circuit held
that a city could be liable based on a single decision where an expert testified that “any
reasonable police administrator” should have identified the “holes and inconsistencies” contained
in the investigation that resulted in the failure of the chief of police to discipline an officer
accused of using excessive force.” Id. at 647.
Here, Plaintiff’s conclusory ratification theory notes that Chief Womack concurred with
the conclusion of the Critical Incident Review Board that Defendant Bush acted within
department policy. Pl. Resp. 29. But unlike in Larez, Plaintiff has not introduced any expert
evidence that a reasonable police administrator should have identified any issues with the report,

nor any other evidence that Chief Womack made any “conscious affirmative choice” to ratify
any unconstitutional conduct. While Plaintiff may object to the adequacy of the general
investigation and review process, that is the subject of Plaintiff’s other theory of liability, not her
ratification theory. The evidence shows only that, in this case, Chief Womack agreed with the
report’s conclusion that Defendant Bush’s conduct was within department policy. There is no
evidence that he was aware of any unconstitutional conduct which he then ratified, nor is there
any evidence that he knew the investigation was inadequate. Defendant is therefore entitled to
summary judgment against Plaintiff’s ratification theory of Monell liability.
B. Policy and Practice of Inadequate Investigations
Plaintiff’s second theory of Monell liability is that Defendant City of Salem had a
longstanding policy and practice of failing to conduct bona fide internal reviews of officer-
involved shootings. Plaintiff’s response in opposition to Defendants’ Motion for Summary
Judgment identifies myriad evidence that she contends supports her theory and she includes

expert testimony evaluating that evidence. See Black Decl. Ex. 1, ECF No. 94-1. That expert
identifies deficiencies in the investigation processes and policies, concluding that “the current
internal review process is inadequate and not indicative of accepted practices found within sound
inquiry when police officers use deadly force. It can be reasonably inferred that the inadequacy
of the process contributes to an incomplete understanding of the event. An incomplete
understanding can allow potential violations of policy and training, as well as areas for agency
improvement, to go undetected[.]” Id. at 42. Defendant argues that, even accepting all of
Plaintiff’s evidence as true, such evidence cannot support liability because there is no evidence
of a constitutional violation, and no evidence that deficient policies caused the conduct at issue.
First, Defendant argues that Plaintiff cannot defeat summary judgment without showing

that prior constitutional violations did in fact occur. In other words, evidence of “a widespread
custom of unlawful shootings, or unlawful investigations, or unlawful entry into homes, or
unconstitutional anything.” Def. Reply 25. But Defendant’s theory of the law on this issue would
allow municipalities to avoid Monell liability by simply turning a blind eye to potentially
unconstitutional conduct and therefore never identifying it as such.
The Ninth Circuit explained in the Larez case that a jury may conclude from expert
testimony about past complaints and investigations that “[police] disciplinary and complaint
processes, executed by policy or custom, contributed to the police excesses complained of
because the procedures made clear to officers that, at least in the absence of independent, third-
party witnesses, they could get away with anything.” Larez v. City of Los Angeles, 946 F.2d 630,
647 (9th Cir. 1991). Here, Plaintiff’s expert explains that:
In my expert opinion, there is evidence that SPD both knew (as found within the
evidence provided) and should have known (as found within accepted
understandings within the profession of law enforcement and related research) that
the current review process is unlikely to achieve the purpose of fully understanding
whether policy had been violated or determining areas of agency improvement
reliably when police officers use deadly force.
Black Decl. Ex. 1 at 43, ECF No. 94-1. A reasonable jury could conclude from this expert
testimony (and the evidence it relies on) that Defendant City of Salem had a custom or policy of
failing to investigate officer-involved shootings such that it amounted to deliberate indifference
to the risk of excessive use of force in violation of the Fourth Amendment.
Defendant’s second argument, that Plaintiff has shown no evidence of causation, is
equally unavailing. Given the evidence in the record about the policies and practices regarding
investigation of officer-involved shootings, including expert testimony on its deficiencies, a jury
could conclude that adequate investigation could have resulted in policies that would have
prevented Castillo III’s shooting. While Defendant may frame this as “speculation,” it is based
on evidence that supports the inference. Because there are genuine issues of material fact on
Plaintiff’s inadequate investigation theory, Defendants are not entitled to summary judgment
against it.
III. State Law Claims
A. Wrongful Death – Battery
The parties cross-move for summary judgment on Plaintiff’s wrongful death claim based
on battery (Second Claim for Relief). The parties’ arguments on this claim—which relate to the
common law defenses of defense of self and of a third person—rest on the same disputes of fact
as for the Section 1983 excessive force claim. Thus, for the same reasons, there is a genuine
issue of material fact as to the threat Castillo III posed to Defendant Bush that prevents summary
judgment in either party’s favor. Accordingly, the parties’ cross-motions for summary judgment
as to this claim is denied for the same reasons explained above with respect to the Section 1983
excessive force claim.

B. Wrongful Death – Negligence
Defendants move for summary judgment on Plaintiff’s wrongful death claim based on
negligence (Third Claim for Relief). Defendants’ argument is based on a series of decisions in
this district which have held that “it is settled law in this district that a state common-law claim
of negligence may be maintained separately from a § 1983 claim only when the negligence claim
is based on facts that are different from the facts on which the § 1983 claims are based.” Lifestyle
Ventures, LLC v. Cnty. of Clackamas, No. 3:15-CV-1291-SB, 2016 WL 11394982, at *5 (D. Or.
May 18, 2016) (collecting cases); but see Johns v. City of Eugene, No. 6:16-CV-00907-AA,
2018 WL 634519, at *13 (D. Or. Jan. 30, 2018) (finding that “neither federal nor Oregon law
prohibits negligence claims and civil rights claims based on the same set of facts from
proceeding to trial together”), reversed on other grounds, 771 F. App'x 739 (9th Cir. 2019).
As an initial matter, there can be no “settled law” based on other district court decisions,
which are not controlling. Defendants have cited no binding authority setting forth a bright line

rule that negligence and Section 1983 excessive force claims cannot coexist. The binding
authority Defendants do cite relates to the general proposition that intentional conduct is
“categorically not negligence.” Defs.’ Mot. 20, citing Daniels v. Williams, 474 U.S. 327, 328
(1986); Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002), Kasnick v. Cooke, 116 Or. App.
580, 582-583 (1992); Denton v. Arnstein, 197 Or. 28, 45 (1952). Defendants argue that because
Section 1983 excessive force claims requires intentional conduct, there can be no negligence
claim based on the same facts.
But here, the negligence and excessive force claims are not coextensive with one another
such that the rationale of those cases should bar a negligence claim. Specifically, Plaintiff’s
specifications of negligence pertain to Defendant Bush’s actions leading up to the shooting,
including the failure to summon and wait for help, failure to knock and announce, and failure to

prioritize the removal of Castillo Jr. See Compl. ¶ 36. In other words, the negligence claim here
relates to Defendant Bush’s alleged creation of the risks that led to the confrontation and
shooting, while the Section 1983 claim relates to the shooting itself. Defendants express concern
that allowing both claims to proceed creates a risk that the jury will confuse the two and find a
Section 1983 claim based on negligent, rather than intentional, behavior. Although the Court
acknowledges that there is some possibility that a jury might confuse the issues, it finds that risk
can be sufficiently mitigated by carefully constructed jury instructions and verdict forms.
CONCLUSION
Plaintiff’s Motion for Partial Summary Judgment is DENIED. Defendants’ Motion for
Summary Judgment is GRANTED in part and DENIED in part. Specifically, Defendants are

entitled to summary judgment against (1) Plaintiff’s Unlawful Entry claim based on qualified
immunity, and (2) Plaintiff’s Monell claim to the extent that it relies on a “ratification” theory.
Defendants’ motion is otherwise denied.

DATED this 15th day of August 2024.

s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI (He / Him)
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666371. Public record. Not legal advice.