United States District Court, D. Arizona
LAWRENCE O. ANDERSON, Magistrate Judge.
On November 1, 2013, Defendants filed a Motion for Summary Judgment. (Doc. 143) Thereafter, Plaintiffs filed a Response in opposition to the Motion and Defendants filed a Reply. (Docs. 149, 152) All parties have consented to magistrate-judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Docs. 7-8)
Because of the parties' familiarity with the facts surrounding this most unfortunate shooting and the various versions of those facts provided by the parties and witnesses, the Court will not repeat them except as may be necessary to rule on the Motion.
This is a fatal police shooting lawsuit that arises out of a 9-1-1 call to the Avondale Police Department on October 28, 2011 by Plaintiff Marisol Martinez, requesting police assistance with her 20-year old son, Gregory Martinez, Jr., now deceased. Plaintiffs are the decedent's parents, his three minor siblings (I.M.,  M.M., and L.M.), and the Estate of Gregory Martinez, Jr., by and through its personal representative, Gregory Martinez, Sr., the decedent's father. The Second Amended Complaint names as defendants the City of Avondale ("City"), Officer Kevin Sapp, and seven other Avondale police officers who allegedly unreasonably detained the decedent's family members after the shooting.
Plaintiff Marisol Martinez called 9-1-1 after her son had become violent within the family home. Mrs. Martinez communicated to the 9-1-1 operator that her son was "on something, " had "just punched the wall, " but he "didn't hit anybody." (Doc. 144, Defendants' Statement of Facts ("DSOF"), ¶ 6, Deposition of Gregory Martinez, Sr., Exhibit ("Exh.") 5 at 22) Officer Sapp was the first police officer to respond to the emergency call of a domestic disturbance. ( Id., ¶ 7) Officer Sapp's mother, Terry Sapp, was a ride-along passenger in Officer Sapp's patrol vehicle when he responded to the call. ( Id. )
The parties agree that the decedent was holding two kitchen knives when Officer Sapp arrived at the Martinez residence and encountered the decedent outside the residence on the public street, but they disagree on what the decedent did immediately thereafter until the shooting. According to Plaintiffs, the decedent walked around a pickup truck parked in the street, "moving really slow" and "dragging his feet, " in the general direction of Officer Sapp's patrol car stopped across from the parked truck. (PSOF, at 5, Exh. 8, Deposition of Sharon Nunez at p. 32.1; see diagrams in PSOF at 3-4) As Officer Sapp exited his vehicle, he drew his firearm from its holster, and moved south on 117th Drive, into the middle of the street away from his patrol car. ( Id., Exh. 4 Jesse Wobrock Report; Exh. 9, Deposition of Kevin Sapp at pp. 87-89) Officer Sapp and eyewitnesses report varying distances between Officer Sapp and the decedent, ranging from 10 to 30 feet, at the time of the shooting. ( Id. ¶ 12 at 9) In addition to Gregory Martinez, Sr., and possibly Mrs. Martinez, Officer Sapp twice shouted at the decedent to drop the knives, but he never dropped the knives to the ground before he was shot. ( Id., ¶ 10; DSOF, ¶ 10) Officer Sapp also yelled "show me your hands, " and the decedent puts his hands up with the knives in them. He was not holding the knives in a combative manner nor was he charging or advancing upon Officer Sapp when he was shot. Witnesses indicate the decedent was holding the knives in the air over his head, with the tips pointed upward, and then he lowered them to his waist. ( Id., ¶ 9, Exh. 6, Deposition of Marisol Martinez at p. 22) A few seconds later, while the decedent was not moving at all, Officer Sapp shot the decedent twice. ( Id. at 7, Exh.10, Deposition of Isaiah Martinez, at pp. 53-54; ¶ 11, Exh. 6, Deposition of Marisol Martinez at p. 26) Gregory Martinez, Jr. was transported by helicopter to St. Joseph's Hospital, where he was pronounced dead. (DSOF, ¶ 14)
No evidence has been presented that Officer Sapp warned the decedent that if the decedent did not drop the knives immediately or if he came any closer, Officer Sapp would shoot him. In addition to his firearm, Officer Sapp possessed other non-deadly weapons on him at the time of the shooting, including a Taser, baton, and OC (pepper) spray. ( Id., ¶ 35, Exh. 20, Roger Clark Report at p. 4; Exh. 9, Deposition of Officer Sapp at p. 54) None of the Taser's capabilities are presented by the parties.
Defendants seek summary judgment on Plaintiffs' 42 U.S.C. § 1983 and false arrest claims, as alleged in the Second Amended Complaint, that
1) Defendant Officer Kevin Sapp used excessive force when he shot and killed the decedent in violation of the Plaintiffs' Fourth Amendment right to be free from the use of unreasonable force (Count 4);
2) the Defendant City of Avondale ("City") and several Defendant police officers wrongfully seized the Plaintiffs after the shooting in violation of Plaintiffs' Fourth Amendment right to protection against unreasonable seizures and Fourteenth Amendment right to procedural and substantive due process of law (Count 5);
3) assuming arguendo violations of Plaintiffs' constitutional rights, Defendants are entitled to qualified immunity for Officer Sapp's use of excessive force. Defendants, however, do not raise the issue of qualified immunity in the Motion for Summary Judgment regarding Plaintiffs' § 1983 cause of action for unreasonable seizures of the Plaintiffs after the shooting; and
4) on Plaintiffs' false arrest claim, Defendants unlawfully and unreasonably detained, falsely arrested, or imprisoned the Plaintiffs after the ...