United States District Court, D. Arizona
April 16, 2014
Brandon Smith, Plaintiff,
City of Chandler, et al., Defendants.
FREDERICK J. MARTONE, Senior District Judge.
The court has before it defendants' motion for summary judgment (doc. 35), plaintiff's response (doc. 39), and defendants' reply (doc. 48). We also have before us defendants' motion to strike declaration of plaintiff's expert, Jesse Torrez (doc. 50), plaintiff's response (doc. 52), and defendants' reply (doc. 53).
As an initial matter, we deny defendants' motion to strike (doc. 50). Defendants contend that we should strike and disregard the Torrez declaration in ruling on the motion for summary judgment because it is an improper attempt by plaintiff to supplement his expert report well after the close of discovery. Defendants contend that the untimely declaration contains new information and opinions that should have been included in a rebuttal report. "An objection to (and any argument regarding) the admissibility of evidence offered in support of or opposition to a motion must be presented in the objecting party's responsive or reply memorandum and not in a separate motion to strike or other separate filing." LRCiv 7.2(m)(2). Defendants' separate motion to strike violates LRCiv 7.2(m)(2), and it is therefore denied (doc. 50).
At 8:00 p.m. on the evening of December 28, 2011, 22-year old plaintiff Brandon Smith went to the home of his father and stepmother and asked if he could spend the night. Brandon had been living on the streets and using drugs "off and on, " and did not feel safe sleeping on the streets. DSOF ex. 1 at 10. Brandon was at the end of a five-day methamphetamine binge and was suffering from a persecutory delusion that he was being chased by a police task force and that if caught he would be imprisoned and tortured.
Brandon's father described Brandon's eyes as dilated; he was sweating and seemed paranoid and "drugged out." DSOF ¶ 16. Brandon went to the kitchen and picked up a large kitchen knife. His father repeatedly tried to convince Brandon to give him the knife, but Brandon refused, saying he felt safer with it. DSOF ¶ 24. Brandon's father told him that if he didn't surrender the knife, he would call the police. DSOF ¶ 25. Brandon went to the back patio to smoke a cigarette and took the knife with him. Id . Brandon's father and stepmother were "both nervous" and "didn't feel comfortable with [Brandon] there the way he was acting." DSOF ¶ 20. His stepmother said that she was "terrified." DSOF ¶ 20. Concerned "for everybody's safety, " Brandon's stepmother called 911 at 9:26 p.m., just 90 minutes after Brandon had arrived at their home. During the 911 call, Mrs. Smith reported "he's got a knife and he won't give it up, and I'm afraid.... He's had a drug problem in the past.... He's talking like he wants to kill himself, ... he's tried to hurt himself several other times... [and] has a history of... fighting with the officers." DSOF ¶ 27. This information was relayed to the responding Chandler police officers.
Chandler police officers Brian Hawkins, Keith Smith, Blake Fairclough, and Abel Aragon responded to the 911 call, which was dispatched as a suicide attempt. DSOF ¶¶ 28-29. The officers were advised that the subject had a knife, was likely on drugs, and had assaulted officers before. The officers met Brandon's father at the front of the residence. Officer Hawkins was the lead officer and carried a handgun. Officer Smith carried a beanbag shotgun. Brandon's father advised the officers that Brandon was in the backyard with a knife.
The four officers followed Brandon's father into the house and out to the back patio, where Brandon was seated on a sofa, with the knife in his hand. DSOF ¶ 30. The officers formed a semicircle around Brandon, and Officer Hawkins ordered him to drop the knife. DSOF ¶¶ 35, 37. Brandon refused. DSOF ¶ 39. Officer Smith saw Brandon "lunge forward, " bend at the waist while seated, and move the knife from the low chest to the high chest. Officer Hawkins was approximately 8 feet away. DSOF ¶ 48. As Brandon moved, Officer Smith deployed two beanbag rounds aimed at Brandon's thigh, just above the knee. DSOF ¶¶ 48-49. At this point, Brandon plunged the knife into his neck, severing his jugular vein. Once Brandon thrust the knife into his neck, Officer Hawkins holstered his gun, called out "he's doing it, " and rushed toward Brandon to stop him from injuring himself. DSOF ¶ 45. Brandon kept thrusting the knife deeper as Officer Hawkins tried to stop him. Brandon was hospitalized and on suicide watch for three months following the incident. Only 3 to 5 seconds had elapsed from the moment the officers exited the patio door to the stabbing. DSOF ¶ 55.
III. Fourth Amendment Claim
Brandon contends that his Fourth Amendment right to be free from excessive force was violated when Officer Smith shot him with the two beanbag rounds. In evaluating a Fourth Amendment excessive force claim, we consider "whether the officers' actions were objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivations." Graham v. Connor , 490 U.S. 386, 397, 109 S.Ct. 1865, 1872 (1989). The reasonableness inquiry in an excessive force case "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 . Although we will consider a number of factors when evaluating the totality of the circumstances, the "most important" factor is whether the individual posed an "immediate threat to the safety of the officers or others." Bryan v. MacPherson , 630 F.3d 805, 826 (9th Cir. 2010) (citation omitted).
Brandon contends that at no time during the encounter did he say or do anything that was threatening to the officers or himself. Instead, he claims that he was shot as he moved to comply with an officer's command to stand. He argues that Officer Smith's actions were objectively unreasonable because he failed to follow specific training that all Arizona police officers receive in dealing with an emotionally disturbed person. Specifically, officers are trained to gather background information, keep the situation calm and controlled, and establish communication with the individual. Plaintiff argues that Officer Smith ignored this training and instead failed to take time to assess the situation or develop a plan. The officers did not question Brandon's father or determine Brandon's location on the patio, but instead found themselves in a tactically unsound position, in close proximity to Brandon, as soon as they exited the back door. The officers immediately cornered Brandon with weapons raised, yelling at him to drop the knife. Brandon argues that the lack of a plan caused the officers to react in an aggressive and threatening manner, unnecessarily escalating an already tense situation, and ultimately leading to Brandon stabbing himself.
Government officials performing discretionary functions generally are shielded from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). 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 v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 815 (2009)).
Qualified immunity "generally turns on the objective legal reasonableness' of the action, assessed in light of the legal rules that were clearly established' at the time it was taken." Anderson v. Creighton , 483 U.S. 635, 639, 107 S.Ct. 3034 (1987) (citation omitted). A police officer is protected by qualified immunity if he mistakenly believed the amount of force used was appropriate under the circumstances. Saucier v. Katz , 533 U.S. 194, 205, 121 S.Ct. 2151, 2158 (2001). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Messerschmidt v. Millender , 132 S.Ct. 1235, 1244 (2012) (citation omitted).
Officer Smith was not "plainly incompetent" when he fired two beanbag rounds at Brandon's thigh. Even assuming that Brandon heard an officer's command to "stand up, " Brandon's movement in leaning forward toward Officer Hawkins could reasonably be perceived as threatening amid the tense and chaotic scene facing the officers. Officer Smith knew that he was dealing with an armed, delusional, and suicidal man who had a history of fighting with police officers. No more than 5 seconds had elapsed from the time the officers entered the scene. Under these circumstances, Officer Smith may have mistakenly but reasonably perceived Brandon's movement in standing or leaning forward as a threat toward his fellow officer. See Bell v. Irwin , 321 F.3d 637 (7th Cir. 2003) (four beanbag rounds fired at suicidal man armed with knives who "lean[ed] toward" a propane tank with what appeared to be a cigarette lighter was objectively reasonable).
Even if Brandon's movements did not justify the use of deadly force, the moderate force used by Officer Smith in firing two beanbags at Brandon's thigh in an effort to get him to drop the knife was proportionate to the circumstances. See Gregory v. County of Maui , 523 F.3d 1103, 1107 (9th Cir. 2008) (use of force in attempting to disarm emotionally unstable man holding a pen was "proportionate and reasonable"). "We take the perspective of an officer on the scene without the benefit of 20/20 hindsight" and consider that police officers must often make split-second judgments about the amount of force that is necessary in a particular situation. Gonzalez v. City of Anaheim, ___ F.3d ___, 2014 WL 1274551 (9th Cir. Mar. 14, 2014). Brandon posed a threat to the immediate safety of the officers when he attempted to stand, while holding a knife, after he refused the officers' commands to give up the knife. Officer Smith's actions were reasonable in light of the circumstances he faced.
Plaintiff's expert concluded that Officer Smith was not justified in firing the less-lethal shotgun at Brandon. The expert opined that the situation could have been resolved with no injuries had training and safety procedures been followed. PSOF ex. 1 at 7.
The fact that an expert disagrees with the officer's actions does itself not render the officer's actions unreasonable. Although the expert's report may be relevant to the issue of reasonableness, a plaintiff cannot avoid summary judgment "by simply producing an expert's report that an officer's conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless." Billington v. Smith , 292 F.3d 1177, 1189 (9th Cir. 2002). "Rather, the court must decide as a matter of law whether a reasonable officer could have believed that his conduct was justified." Id . Even though the officers might have had "less intrusive alternatives available to them, " or perhaps under departmental guidelines should have "developed a tactical plan" instead of attempting an immediate seizure, police officers "need not avail themselves of the least intrusive means of responding to an exigent situation" and need only act "within that range of conduct we identify as reasonable." Scott v. Henrich , 39 F.3d 912, 915 (9th Cir. 1994).
Plaintiff's reliance on Glenn v. Washington County , 673 F.3d 864 (9th Cir. 2011) is misplaced. The police officers in Glenn shot 6 beanbag rounds at Lukus Glenn, an emotionally disturbed young man who held a knife to his neck, but made no threatening moves toward officers or others. Then, while retreating from the beanbag shots, Lukus was shot 8 times with lethal force and was killed. The Ninth Circuit held that the officers were not entitled to qualified immunity for firing the beanbag rounds because Lukus made no threatening moves. "He showed no signs of attempting to move until after he was fired upon." Id. at 874. Here, in contrast, plaintiff admits that at the moment of the shooting, he moved to stand up from a seated position in the direction of an officer who stood less than 10 feet away. A reasonable officer in Officer Smith's position could have believed at that moment that Brandon was a threat to the officers and that the use of less-than-lethal force was justified. Accordingly, we conclude that there was no constitutional violation and Officer Smith is entitled to summary judgment on plaintiff's Fourth Amendment claim.
IV. State Law Negligence Claim
Plaintiff also asserts a state law negligence claim against the City of Chandler, alleging that the City is vicariously liable for the negligent actions of its employees. Relying on Landeros v. City of Tucson , 171 Ariz. 474, 475, 831 P.3d 850, 851 (Ct. App. 1992), defendants argue that Arizona does not recognize a negligence claim against police officers for their law enforcement activities and therefore plaintiff's negligence claim must be dismissed. But Landeros held only that a city may be liable if its police officers are grossly negligent in the investigation of a crime. Id . Landeros does not apply to a claim for negligence in disarming an emotionally disturbed individual.
Nevertheless, even applying a simple negligence standard, we have already concluded that Officer Smith's decision to use two beanbag rounds to subdue and disarm Brandon before he had a chance to reach Officer Hawkins was justified and reasonable. Officers may use proportionate, reasonable force whenever they reasonably believe it is necessary to "effect an arrest... of a person whom the peace officer reasonably believes... is likely to endanger human life or inflict serious bodily injury to another unless apprehended without delay." Marquez v. City of Phoenix , 693 F.3d 1167, 1176 (9th Cir. 2012) (citing A.R.S. § 13-410(C)(2)(c)); see also A.R.S. § 13-409 (providing law enforcement officers with immunity for all reasonable uses of non-deadly force); A.R.S. § 13-403(4) (providing immunity to any person who uses physical force reasonably necessary to prevent a suicide). Because we conclude that, under the totality of the circumstances, Officer Smith acted reasonably and was justified in using force, plaintiff's negligence cannot succeed.
IT IS ORDERED GRANTING defendants' motion for summary judgment (doc. 35).
IT IS ORDERED DENYING defendants' motion to strike (doc. 50).