I.A. v. City of Redondo Beach

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 I.A., a minor by and through ) Case No. CV 20-06447 DDP (JPRx)

Guardian Ad Litem, Willnicka )

12 ReneePollarda, et al., )

) ORDER DENYING DEFENDANT’S MOTION

13 Plaintiff, ) FOR SUMMARY JUDGMENT

)

14 v. )

)

15 CITY OF REDONDO BEACH, a ) [Dkt. 74]

municipality, JOHN ANDERSON, )

16 )

Defendants. )

17 ___________________________ )

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19 Presently before the court is Defendant John Anderson’s Motion

20 for Summary Judgment (Dkt. 74). Having considered the submissions

21 of the parties and heard oral argument, the court denies the motion

22 and adopts the following Order.

23 I. Background

24 On July 26, 2018, Redondo Beach Police Department dispatch

25 issued a radio call stating that a man on the Redondo Beach “Green

26 Belt” was waving a gun, and had fired at someone who was running.

27 (Declaration of Craig Smith, Ex. C at 68.) The call identified the

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1 suspect as tall, 120 pounds, in a navy blue shirt and black shorts.

2 (Id.)

3 Defendant John Anderson (“Anderson” or “Defendant”) was the

4 supervisor of the Redondo Beach Police Department Directed

5 Enforcement Unit, the primary mission of which was to respond to

6 active shooter situations. (Declaration of Luke Fiedler, Ex. A at

7 58-59.) Anderson heard the “man with a gun” radio call and “self-

8 dispatch[ed]” to the scene in his unmarked car, even though other

9 units had already been dispatched to the scene. (Id. at 74-75.)

10 Anderson was concerned because the greenbelt was often crowded with

11 people, including joggers and children on bikes. (Smith Decl., Ex.

12 E at 239.) Although Anderson made a wrong turn on the way to the

13 scene, and had to make a u-turn, he was nevertheless the first

14 officer to arrive. (Id. at 240, Fiedler Decl., Ex. A at 75-76.)

15 The scene, however, was not the greenbelt, but rather a nearby

16 residential area. (Fiedler Decl., Ex. A at 80; Smith Decl., Ex. E

17 at 241.) Anderson did not see any pedestrians, but did see Sergio

18 Acosta (“Acosta”) walking out alone from a driveway. (Smith Decl.,

19 Ex. E at 241.)

20 When Anderson first saw Acosta, he was not sure Acosta was the

21 suspect, and checked his in-car computer to verify the description

22 of the suspect. (Smith Decl., Ex. E at 241.) From approximately

23 50 feet away, Anderson determined that Acosta was the suspect, and

24 observed that he was very sweaty and “bug-eyed,” as if he were

25 under the influence of methamphetamine. (Smith Decl., Ex. E at

26 244-45). Acosta’s left side was facing Anderson, and Acosta’s

27 right side was turned away from Anderson and away from the street.

28 (Smith Decl., Ex. E at 23.) By the time Anderson stopped his

1 vehicle, he was approximately seven yards from Acosta. (Fiedler

2 Decl., Ex. A at 203.) Anderson drew his weapon with his right

3 hand, while simultaneously reaching across his own body with his

4 left hand to put the car in park. (Fiedler Decl., Ex. A at 257.)

5 Anderson was wearing a body camera, but did not activate it.1

6 (Fiedler Decl., Ex. A at 77.)

7 At this point, witness accounts of what transpired next

8 differ. Anderson testified that he opened his car door partway,

9 wide enough for him to exit and to communicate with Acosta, but

10 narrow enough to use for concealment. (Fiedler Decl., Ex. A at

11 260.) Anderson testified that he yelled, “Police,” and that Acosta

12 stopped walking and looked at Anderson, but did not otherwise

13 respond. (Id. at 259, 270.) Acosta’s empty hands were down around

14 his belt, and his arms were held tight to his body. (Id. at 268.)

15 Anderson then saw a gun tucked into Acosta’s left armpit, with the

16 barrel pointing backward.2 (Id.) Anderson testified that he then

17 yelled, “Drop the gun” three times, and that after the second

18 command, Acosta responded, “I’m trying to protect my son.” (Id. at

19 273-274.) According to Anderson, Acosta then moved his hand above

20 the belt, toward the gun in his left armpit. (Id. at 279.)

21 Anderson then fired six rounds through his car window at Acosta.

22 (Id. at 291; Smith Decl., Ex. E at 249.) The gun fell from

23 Acosta’s armpit after the sixth shot. (Fiedler Decl., Ex. A at

24 291.)

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1 Anderson testified that turning the camera on could have

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taken up to five seconds. (Fiedler Decl., Ex. A at 222.)

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2 Investigators later determined that the gun was a replica

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Colt BB gun.

1 Acosta’s girlfriend, Ginger Mungarro, was later interviewed by

2 Redondo Beach Police. She was standing one or two houses away from

3 Acosta when Anderson arrived, and stated that Anderson “didn’t tell

4 [Acosta] to drop it or anything, no.” (Smith Decl., Ex. F at 9-

5 10.) She further stated that Acosta said, “All right, all right,”

6 and had his hands up, with the gun in hand. (Id.) Mungarro

7 further stated that she “didn’t think they would shoot that fast.”)

8 (Id. at 9.)

9 Lauren Zboril was walking her dog when Acosta was shot.

10 (Fiedler Decl., Ex. B at 10-41.) According to Zboril, she was

11 between fifteen to thirty feet away from Acosta when she saw him

12 collapse. (Id. at 40, 81.) Zboril heard no noise at all,

13 including gunshots, and did not see a police vehicle drive up to

14 Acosta. (Id. at 77.) She explicitly stated that she did not hear

15 anyone give any command to Acosta. (Id. at 84, 94.)

16 Carmen Navarro lived adjacent to the greenbelt, and ran into

17 her kitchen to call 911 after seeing someone on the greenbelt

18 holding a gun and hearing two gunshots. (Fiedler Decl., Ex. C at

19 15.) While still on the phone with 911, Navarro heard another,

20 louder shot, followed by a split-second pause and then two more

21 loud shots. (Id. at 38.) She did not hear any yelling prior to

22 the loud shots. (Id. at 48.)

23 Kayo Salako lived one house away from where Acosta was shot.

24 (Declaration of Kayo Salako; Fiedler Decl., Ex. A at 199.)3 Salako

25 heard someone yell, “Stop, stop, stop,” then “immediately” heard

26 gunshots. (Salako Decl.) He went outside and saw an unmarked

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3 See also Supplemental Declaration of Luke Fiedler (Dkt. 91)

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(attaching notarized versions of declarations).

1 police vehicle with a shattered driver’s side window and an officer

2 standing “between the open door and the vehicle.” (Id.)

3 John and Beverly Sullivan (collectively, “the Sullivans”)

4 lived one house away from where Acosta was shot, and two houses

5 away from Salako. (Declaration of Beverly Sullivan; Declaration of

6 John Sullivan). Both heard gunshots outside their home, but

7 neither heard any police commands or any yelling prior to the

8 shots. (Id.)

9 Four of Anderson’s six shots struck Acosta. (Fiedler Decl.,

10 Ex. A at 296.) He was transported to a hospital and pronounced

11 dead approximately an hour and a half after the shooting.

12 Plaintiffs, Acosta’s parents and his minor child, I.A.,

13 brought this suit, alleging claims pursuant to 42 U.S.C. § 1983 for

14 excessive force and interference with familial relationships.

15 Defendant Anderson now seeks summary judgment on both claims.

16 II. Legal Standard

17 Summary judgment is appropriate where the pleadings,

18 depositions, answers to interrogatories, and admissions on file,

19 together with the affidavits, if any, show “that there is no

20 genuine dispute as to any material fact and the movant is entitled

21 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party

22 seeking summary judgment bears the initial burden of informing the

23 court of the basis for its motion and of identifying those portions

24 of the pleadings and discovery responses that demonstrate the

25 absence of a genuine issue of material fact. See Celotex Corp. v.

26 Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from

27 the evidence must be drawn in favor of the nonmoving party. See

28 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the

1 moving party does not bear the burden of proof at trial, it is

2 entitled to summary judgment if it can demonstrate that “there is

3 an absence of evidence to support the nonmoving party's case.”

4 Celotex, 477 U.S. at 323.

5 Once the moving party meets its burden, the burden shifts to

6 the nonmoving party opposing the motion, who must “set forth

7 specific facts showing that there is a genuine issue for trial.”

8 Anderson, 477 U.S. at 256. Summary judgment is warranted if a

9 party “fails to make a showing sufficient to establish the

10 existence of an element essential to that party’s case, and on

11 which that party will bear the burden of proof at trial.” Celotex,

12 477 U.S. at 322. A genuine issue exists if “the evidence is such

13 that a reasonable jury could return a verdict for the nonmoving

14 party,” and material facts are those “that might affect the outcome

15 of the suit under the governing law.” Anderson, 477 U.S. at 248.

16 There is no genuine issue of fact “[w]here the record taken as a

17 whole could not lead a rational trier of fact to find for the

18 nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio

19 Corp., 475 U.S. 574, 587 (1986).

20 It is not the court’s task “to scour the record in search of a

21 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275,

22 1278 (9th Cir. 1996). Counsel have an obligation to lay out their

23 support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d

24 1026, 1031 (9th Cir. 2001). The court “need not examine the entire

25 file for evidence establishing a genuine issue of fact, where the

26 evidence is not set forth in the opposition papers with adequate

27 references so that it could conveniently be found.” Id.

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1 III. Discussion

2 A. Fourth Amendment Excessive Force Claim

3 In Fourth Amendment excessive force cases, the question is

4 whether a police officer’s actions were objectively reasonable

5 under the totality of the circumstances. Bryan v. MacPherson, 630

6 F.3d 805, 823 (9th Cir. 2010). Only information known to the

7 officers at the time the conduct occurred is relevant. Cty. of Los

8 Angeles v. Mendez, 137 S. Ct. 1539, 1546–47 (2017); Glenn v.

9 Washington Cty., 673 F.3d 864, 873 n.8 (9th Cir. 2011). The

10 officer’s underlying intent and motivations, however, are not

11 pertinent. Graham v. Connor, 490 U.S. 386, 396–97 (1989).

12 “[S]ummary judgment should be granted sparingly in excessive

13 force cases.” Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th

14 Cir. 2014) In deadly force cases, the decedent is, of course, not

15 able to contradict the shooting officer’s account of events.

16 Accordingly, this Court must carefully examine all evidence in the

17 record, including circumstantial evidence that might discredit the

18 officer’s story, “to determine whether the officer’s story is

19 internally consistent and consistent with other known facts.” Id.

20 (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)); Cruz

21 v. City of Anaheim, 765 F.3d 1076, 1078 (9th Cir. 2014).

22 Whether a use of force was reasonable will depend on the facts

23 of the particular case, including, but not limited to, (1) whether

24 the suspect posed an immediate threat to anyone, (2) whether the

25 suspect resisted or attempted to evade arrest, and (3) the severity

26 of the crime at issue. Id. at 396. Of these, the most important

27 factor is whether the suspect posed an immediate threat to anyone’s

28 safety. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en

1 banc). The use of deadly force is only reasonable if a suspect

2 “poses a significant threat of death or serious physical injury to

3 the officer or others.” Gonzalez, 747 F.3d at 793 (emphasis added)

4 (internal quotation omitted). Although “the mere fact that a

5 suspect possesses a weapon does not justify deadly force,” “where a

6 suspect threatens an officer with a weapon such as a gun or a

7 knife, the officer is justified in using deadly force.” Hayes v.

8 County of San Diego, 736 F.3d 1223, 1233 (9th Cir. 2013) (internal

9 alteration omitted); Smith v. City of Hemet, 394 F.3d 689, 704 (9th

10 Cir. 2005); see also Cruz v. City of Anaheim, 765 F.3d 1076, 1078

11 (9th Cir. 2014) (“It would be unquestionably reasonable for police

12 to shoot a suspect . . . if he reaches for a gun in his

13 waistband.”)

14 Somewhat curiously, Defendant’s argument rests almost entirely

15 upon Defendant Anderson’s own version of events. Certainly, if

16 Acosta ignored Anderson’s repeated warnings and then moved to

17 threaten Anderson with a gun, then the use of deadly force may have

18 been justified. See, e.g., Hayes, 736 F.3d at 1233. But the

19 question is not whether a reasonable jury could find for Defendant.

20 The question, rather, is whether a rational trier of fact could,

21 drawing all inferences in favor of Plaintiffs, find for Plaintiffs.

22 Anderson, 477 U.S. at 242.

23 Here, a reasonable factfinder could well question Anderson’s

24 account of events, and thus the reasonableness of his use of deadly

25 force. For example, whether and how an officer warned a suspect

26 can be important to a totality of the circumstances analysis. See

27 Deorle v. Rutherford, 272 F.3d 1272, 1283-84 (9th Cir. 2001);

28 Gonzalez, 747 F.3d at 794; S.R. Nehad v. Browder, 929 F.3d 1125,

1 1137-38 (9th Cir. 2019). Here, at least three nearby witnesses

2 stated that they did not hear Anderson give any commands or

3 warnings at all.4 Although Salako did hear someone yell, “Stop,

4 stop, stop,” his declaration does not corroborate Anderson’s

5 version of events, in which Anderson not only identified himself as

6 a police officer, but also thrice commanded Acosta to “drop the

7 gun.” There is, therefore, a genuine dispute, not only as to what,

8 if any, warnings Anderson may have given Acosta prior to shooting

9 him, but as to the overall credibility of Anderson’s account as

10 well.

11 Even more curiously, aside from Anderson’s own version of

12 events, the only account of the incident that Defendant

13 acknowledges at all is that of Acosta’s girlfriend, Ginger

14 Mungarro.5 Mungarro’s statements, however, directly conflict with

15 Defendant Anderson’s account, and alone are sufficient to create a

16 genuine dispute of material fact. As an initial matter, as

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4 Whether those witness accounts create a genuine dispute of

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fact is a close question. Although the Sullivans were only one

house away from the shooting, and did hear the gunshots, their

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declarations do not state where in the house they were, or whether

they could or would have heard anything quieter than a gunshot out

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on the sidewalk next door. As for Zboril, the fact that she did

not even hear gunshots from thirty feet away casts serious doubt

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upon the evidentiary value of her declaration. At this stage,

however, all reasonable inferences must be drawn in Plaintiff’s

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favor. Anderson 477 U.S. at 242.

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5 Mungarro’s statements are drawn from an unsworn, recorded

interview with investigating officers. Defendant describes those

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statements at length in his memorandum in support of the instant

motion, and attaches a transcript of the Mungarro interview as an

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exhibit in support of his motion. Later, however, including at

argument, Defendant objected to and questioned the admissibility of

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his own exhibit. The court deems any such objection waived, for

purposes of summary judgment. Defendant may not introduce an

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exhibit, thus inducing Plaintiff to discuss it, and then later seek

to preclude any consideration of that evidence on grounds that it

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was inadmissible all along.

1 Defendant himself acknowledges, Mungarro, like several of the other

2 witnesses, did not hear Anderson say anything to Acosta. And,

3 contrary to Anderson’s testimony that Acosta said, “I’m trying to

4 protect my son,” Mungarro told police that Acosta said, “All right,

5 all right.”6 Moreover, more fundamentally, and as Defendant also

6 acknowledges, Mungarro told police that Acosta had his hands up

7 when he was shot. This directly contradicts Anderson’s testimony

8 that Acosta had his hands down around his belt, and had moved his

9 right hand only a few inches when Anderson first pulled the

10 trigger.

11 More troublingly, Defendant’s argument could be read to

12 suggest that, because even Mungarro stated that Acosta was holding

13 the gun (albeit, while his hands were up), Anderson’s use of deadly

14 force was reasonable as a matter of law.7 Even putting aside the

15 factual inconsistency between Mungarro’s version of events and

16 Defendant Anderson’s, any such argument fails. It is well-

17 established that “[t]he mere fact that a suspect possesses a weapon

18 does not justify deadly force.” Hayes, 736 F.3d at 1233; see also

19 Nehad, 929 F.3d at 1134 (“That a person is armed does not end the

20 reasonableness inquiry.”). The relevant question is whether a

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6 Although this statement could support an inference that

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Anderson did say something, at this stage, as stated above, all

inferences must be drawn in Plaintiffs’ favor. Anderson, 477 U.S.

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at 242. It is not inconceivable that someone might respond, “All

right, all right,” unbidden, to an unidentified individual who

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emerged from an unmarked car holding a gun. And, even assuming

that Anderson did say something to prompt Acosta to speak, there

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remains a genuine dispute as to what Anderson said.

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7 Indeed, at argument, Defendant suggested that, so long as

Acosta possessed a gun and Anderson knew that Acosta had shot at

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someone earlier on the greenbelt, any other circumstances were

“immaterial.” That argument is simply incorrect, for the reasons

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stated herein.

1 suspect poses an immediate threat of harm at the time force is

2 applied. Andrews v. City of Henderson, 35 F.4th 710, 717 (9th Cir.

3 2022) (quoting Nehad, 929 F.3d at 1136.) If, as Mungarro stated,

4 Acosta’s hands were up when Anderson shot him, that would seriously

5 undercut any claim that the use of deadly force was reasonable

6 under the totality of the circumstances. Any argument premised on

7 Mungarro’s statements is, therefore, self-defeating.

8 The law does not permit a grant of summary judgment under

9 circumstances such as those here, where there are disputes about

10 material facts. Defendant’s Motion for Summary as to the excessive

11 force claims is, therefore, denied.8

12 B. Fourteenth Amendment Interference with Familial

13 Relationships Claim

14 Plaintiffs also bring a Fourteenth Amendment claim for

15 interference with familial relationships. See Wilkinson v. Torres,

16 610 F.3d 546, 554 (9th Cir. 2010) (“[P]arents have a Fourteenth

17 Amendment liberty interest in the companionship and society of

18 their children.”). Official conduct violates the Fourteenth

19 Amendment if it “shocks the conscience.” Id. “Police action

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8 Defendant also argues that, even if his use of deadly force

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was unconstitutional, he is entitled to qualified immunity.

However, “when there are disputed factual issues that are necessary

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to a qualified immunity decision, these issues must first be

determined by the jury before the court can rule on qualified

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immunity.” Morales v. Fry, 873 F.3d 817, 824 (9th Cir. 2017)

(citing commentary to Ninth Circuit Model Civil Jury Instruction

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9.34 (2017); see also Espinosa v. City & Cty. of San Francisco, 598

F.3d 528, 532 (9th Cir. 2010). Contrary to Defendant’s suggestion,

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the crux of the matter here is not whether Anderson reasonably

believed that the gun in Acosta’s armpit was real. Drawing all

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inferences in favor of Plaintiffs, Defendant cannot credibly

contend that Anderson was not “on notice” that deadly force cannot

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be employed without warning on a person, armed or not, whose hands

are in the air and whose only words to police were, “All right, all

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right.”

1 sufficiently shocks the conscience . . . if it is taken with either

2 (1) deliberate indifference or (2) a purpose to harm, unrelated to

3 legitimate law enforcement objectives,” depending on whether an

4 officer has the opportunity to deliberate before acting. Nehad,

5 929 F.3d at 1139 (internal quotation marks and alteration omitted);

6 A.D. v. California Highway Patrol, 712 F.3d 446, 453 (9th Cir.

7 2013).

8 Here, Defendant argues that there is no “evidence that ‘actual

9 deliberation’ by Sergeant Anderson was practical, during the

10 subject incident that could amount to ‘deliberate indifference.’”

11 (Motion at 18:22-24.) This argument is not entirely clear to the

12 court. “Where actual deliberation is practical, then an officer’s

13 ‘deliberate indifference’ may suffice to shock the conscience. On

14 the other hand, where a law enforcement officer makes a snap

15 judgment because of an escalating situation, his conduct may only

16 be found to shock the conscience if he acts with a purpose to harm

17 unrelated to legitimate law enforcement objectives.” Wilkinson,

18 610 F.3d at 554. Thus, if Anderson did not have time to

19 deliberate, as Defendant appears to suggest, then Plaintiffs must

20 show a purpose to harm, not deliberate indifference.

21 In any event, Plaintiffs’ Fourteenth Amendment claim is not

22 amenable to summary judgment for the same reasons that preclude

23 summary judgment on the Fourth Amendment claim. Defendant’s

24 argument is premised on Anderson’s version of events, as to which

25 there is a genuine dispute. That dispute extends to the threshold

26 question in the Fourteenth Amendment analysis: whether Anderson was

27 forced to make a snap decision, or had time to deliberate while

28 Acosta had his arms up in the air and was complying, or attempting

to comply, with any commands Anderson may have given. Defendant’s

2} Motion for Summary Judgment on Plaintiffs’ Fourteenth Amendment

claim is, therefore, denied.

IV. Conclusion

5 For the reasons stated above, Plaintiff’s Motion for Summary

Judgment is DENIED.

7 IT IS SO ORDERED.

Dated: September 6, 2023

DEAN D. PREGERSON

9 United States District Judge

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