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Kennedy v. County of Mohave

United States District Court, D. Arizona

July 22, 2019

Kimberly Kennedy, Plaintiff,
v.
County of Mohave, et al., Defendants.

          ORDER

          HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE

         Decedent Kenneth Jack Kennedy, III was shot and killed during a traffic stop performed by Defendant Deputy Mark Giralde (“Giralde”) and former defendant Sergeant Mike Ramirez (“Ramirez”). (Doc. 87 at 7; Doc. 29 at 7) Plaintiff Kimberly Kennedy (the “Plaintiff”) filed suit against the County of Mohave and Giralde (together, the “Defendants”) alleging causes of action pursuant to 42 U.S.C. § 1983, among other claims. (Doc. 29) The Defendants moved for summary judgement on each of the Plaintiff's claims (the “Motion”). (Doc. 76) The Motion was fully briefed on January 28, 2019. (Docs. 83, 91) The Court's ruling is as follows.

         I. Legal Standard

         A court shall grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party “show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those facts “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact arises if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         The party moving for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the movant is able to do such, the burden then shifts to the non-movant who, “must do more than simply show that there is some metaphysical doubt as to the material facts, ” and instead must “come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A judge's function' at summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Cable v. City of Phoenix, 647 Fed.Appx. 780, 781 (9th Cir. 2016).

         II. Background[1]

         In October 2016, [2] the decedent was driving a vehicle without operating taillights, and the Plaintiff, the decedent's wife, was a passenger in the vehicle. (Doc. 87 at 7) Giralde and Ramirez began to follow the decedent's vehicle to conduct a traffic stop. (Doc. 87 at 7) The decedent pulled off the road into a driveway and shut off the vehicle. (Doc. 87 at 7) Ramirez was the first officer to engage the decedent. Ramirez followed the decedent into the driveway, parked his patrol vehicle behind the decedent's vehicle, illuminated his red and blue overhead lights, and exited his patrol vehicle. (Doc. 87 at 8) Ramirez then approached the driver's side window of the decedent's vehicle and asked for the decedent's driver's license and car registration information. (Doc. 87 at 8) When Giralde pulled into the driveway and parked his patrol car, Ramirez was already standing at the driver's side of the decedent's vehicle. (Doc. 87 at 9)

         The decedent informed Ramirez that he did not have identification with him. (Doc. 87 at 9) While the decedent and Ramirez were talking, Giralde approached the passenger's side of the stopped vehicle and asked the Plaintiff for identification. (Doc. 87 at 9) The Plaintiff stated that she did not have identification. (Doc. 87 at 9) At that time, Giralde noticed that the ignition to the decedent's vehicle was broken, which raised Giralde's suspicion that the decedent was driving a stolen vehicle. (Doc. 87 at 9) Meanwhile, the decedent and Ramirez were engaging in a conversation about whether the decedent was required to possess a driver's license “just to travel”. (Doc. 87 at 9) Based on the content of the conversation between the decedent and Ramirez, Giralde became concerned that the decedent and the Plaintiff were sovereign citizens, also known as constitutionalists. (Doc. 87 at 10) In his deposition, Giralde testified that he had been trained to believe that sovereign citizens had a reputation for responding to police encounters with deadly force. (Doc. 87 at 10)

         Ramirez asked the decedent to step out of the vehicle, and the decedent did not follow Ramirez's instruction. (Doc. 87 at 11) Ramirez testified that he told the decedent that the decedent was under arrest for failing to produce identification, and Giralde yelled at the decedent to step out of the vehicle. (Doc. 87 at 11) It is undisputed that the decedent did not follow Ramirez's commands and instead started the vehicle by plunging a screwdriver into the broken ignition. (Doc. 87 at 11-12) Ramirez then instructed the decedent to stop, and Ramirez struck the driver's side window of the decedent's vehicle with a baton. (Doc. 87 at 12)

         III. Disputed Facts

         The subsequent series of events is disputed between the parties.

         Officer's Account:

         After Ramirez struck the driver's side window with a baton, the Defendants state that the decedent shifted the vehicle into reverse, hitting both Ramirez's and Giralde's patrol vehicles. (Doc. 77 at 4, 5) Ramirez stepped back from the vehicle when it reversed, and Giralde moved towards his patrol car and unholstered his weapon. (Doc. 77 at 5) Next, the Defendants state that the decedent shifted his vehicle into drive and accelerated forward, turning the vehicle towards Giralde. (Doc. 77 at 5) The Defendants state that Giralde fired his weapon through the vehicle's windshield while the vehicle was moving forward. (Doc. 77 at 5) At the time Giralde's first shots were fired, Giralde states that he believed the vehicle would hit him, and Ramirez was standing in an open part of the driveway. (Doc. 77 at 5) The Defendants state that the vehicle never reversed a second time, but continued to move forward towards Giralde until it hit a fence. (Doc. 77 at 5)

         The vehicle was still running at the time it hit the fence. (Doc. 77 at 5) The Defendants state that Giralde then moved toward the vehicle and fired his weapon through the passenger's side window at the driver. (Doc. 77 at 6) Giralde states that he feared that the vehicle would continue to move towards him or reverse backward into Ramirez; however, Giralde admits that he did not know Ramirez's location at the time the shots were fired through the passenger's side window. (Doc. 77 at 6, 34) In his deposition, Giralde also stated that at the time he fired the fatal shots through the passenger's side window, he did not believe that the vehicle could hit him. (Doc. 77 at 34)

         Plaintiff's Account:

         For the purpose of resolving the Motion, the Court finds that the Plaintiff's testimony is unclear and inconsistent. In the Plaintiff's amended statement of facts, [3] she states that after Ramirez struck the driver's side window with a baton, the decedent put the car into reverse and the decedent's vehicle moved backward, becoming wedged between the two patrol vehicles. (Doc. 87 at 2) On Page 3 of the Plaintiff's amended statement of facts, the Plaintiff states that after backing up, the decedent drove his vehicle forward, stopped the vehicle from moving forward, and then put the vehicle in reverse again to move backwards.[4] (Doc. 87 at 3) On Page 13 of the Plaintiff's amended statement of facts, the Plaintiff states that ...


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