The opinion
FILED
NOT FOR PUBLICATION FEB 20 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. L. D., a minor, individually and as No. 12-56013
Successor in Interest to Reginald Doucet,
Jr. Deceased by and through her Guardian D.C. No. 2:11-cv-03141-SVW-
Ad Litem Shenaiah K Draper, MAN
Plaintiff - Appellant,
MEMORANDUM*
v.
CITY OF LOS ANGELES; OFFICER
AARON GOFFMAN, #40283,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued February 7, 2014 and Submitted February 20, 2014
Pasadena, California
Before: KLEINFELD, SILVERMAN, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
This is an appeal from a summary judgment entered against J.L.D. in her suit
asserting claims under 42 U.S.C. § 1983 and California law against Los Angeles
Police Officer Aaron Goff and the City of Los Angeles. Reginald Doucet, J.L.D.’s
father, was fatally shot by Officer Goff. The shooting occurred after an unarmed
Doucet had forced Goff and his partner, who were attempting to arrest Doucet for
petty theft and indecent exposure, to their knees and pummeled them with his fists.
The district court held that Goff’s use of deadly force was objectively reasonable and
alternatively that Goff was entitled to qualified immunity even if the use of deadly
force was not objectively reasonable.
We review the district court’s grant of summary judgment de novo. Ramirez
v. City of Buena Park, 560 F.3d 1012, 1019 (9th Cir. 2009). We have jurisdiction
under 28 U.S.C. § 1291, because the defendants moved for summary judgment on
both the federal and state law claims, and the district court granted that motion in its
entirety. Finding disputed issues of material fact, we reverse and remand.
In their depositions, both Goff and his partner recalled only one shot being
fired. It is undisputed, however, that Doucet was shot twice. The medical examiner’s
report establishes that Doucet was shot once in his torso and also (the fatal shot) once
in the base of his neck. The shot to the neck traveled in a downward position through
Doucet’s chest. Goff recalled only firing upwards into Doucet’s torso from a kneeling
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position. Both officers and a witness agreed that Doucet fell backwards after being
shot.
According to the report of J.L.D.’s expert, the difference in the locations and
direction of the two gunshot wounds directly contradicted Goff’s account of the
shooting. Not only was Goff incorrect as to the number of gunshots, but the expert
also opined that “Goff, from his stated and demonstrated position, could not have
positioned his pistol to produce the neck wound present on Mr. Doucet in terms of
height, wound directionality, or firearm distance.”
We assume the correctness of the district court’s conclusion that Goff was
entitled to use deadly force to repel an attacker who had forced him to the ground and
continued an attack. But, assuming, as we must, that Goff fired two shots, the first to
Doucet’s torso from a kneeling position and the second, after Doucet fell backwards,
from an angle downward into Doucet’s neck, we are unable to conclude as matter of
law that the use of force in its totality was reasonable. In Hopkins v. Andaya, this
court held that it was reasonable for an officer to empty his revolver on a suspect “to
avoid being bludgeoned to death with his own club,” but a fact question as to
reasonableness was raised when the officer then shot the wounded and unarmed
suspect four more times. 958 F.2d 881, 887 (9th Cir. 1992). Although it is not clear
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how much time transpired between the two shots, J.L.D.’s expert opined that there
“would also be a corresponding time delay between the two shots. The two shots
would not have been discharged in rapid succession as would typically be described
as a two shot burst.” That opinion creates a fact issue on whether the second shot was
reasonable. See Ting v. United States, 927 F.2d 1504, 1510–11 (9th Cir. 1991)
(denying summary judgment where an expert opinion “directly contradicts” the
officer’s version of the shooting and a jury could conclude that it was unreasonable
to shoot “an unarmed and injured felon”).1
REVERSED and REMANDED.
1
The district court held that the reasonableness of Goff’s actions also required
dismissal of the state law claims. Because we find a material issue of fact as to
reasonableness, the judgment dismissing those claims is also vacated.
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