United States District Court, D. Arizona
Douglas L. Rayes United States District Judge.
Sarah Coleman and Calvin Hollins allege that Defendant Edward
Ouimette, a police lieutenant with Defendant the City of
Tempe, unlawfully used deadly force when he shot and killed
their son, Dalvin Hollins. Before the Court is Defendants'
motion for summary judgment (Doc. 78), which is fully
briefed. For the following reasons, Defendants' motion is
granted in part and denied in part.
27, 2016, Dalvin Hollins, a 19-year-old black male, was shot
and killed. Earlier that morning, at approximately 9:05 a.m.,
Hollins robbed a pharmacy. Wearing a mask and carrying a
black bag, Hollins jumped the pharmacy counter and demanded
pharmacy employees turn over liquid codeine. Hollins told
employees he had a gun and threatened to kill. After filling
his bag with the drugs, Hollins jumped back over the counter
and fled on foot. The pharmacy employees reported the robbery
to police, providing a description of Hollins and recounting
Hollins' threat of having a gun and a willingness to
minutes after the robbery, Tempe Police Officer Terry Spencer
observed Hollins, who no longer was wearing his shirt or
mask, walking through a shopping center parking lot in the
area. Spencer parked his patrol car, exited his vehicle,
radioed for confirmation of the suspect's description,
and approached Hollins. Before receiving clarification as to
the suspect's description, Spencer asked Hollins if he
could speak with him. Hollins demurred. When Spencer asked
again, Hollins took off running northbound.
into the parking lot as Spencer approached Hollins, Ouimette
observed Hollins begin running northbound and attempted to
block his path with his patrol car. Hollins evaded
Ouimette's car by pushing off the car's front fender.
Hollins continued flight northbound. Ouimette followed in his
patrol car. As Hollins neared Westchester Senior Care
Center's campus, however, Ouimette exited his vehicle and
continued the pursuit on foot. Walter Ramos, a Westchester
employee, decided to follow behind the pursuit after seeing
Hollins and Ouimette run past his office.
parties offer vastly different versions of what happens next.
According to Defendants, Hollins unsuccessfully tried to
enter Westchester's Care Center. Turning westerly,
Hollins next ran down the sidewalk bordering
Westchester's parking lot. Still in pursuit, Ouimette ran
through the center of the parking lot, parallel to Hollins.
When the sidewalk ended, Hollins was forced to change
directions southbound, and cut in front of Ouimette. At this
point, Ouimette gave Hollins an oral command: “Police.
Stop or I will shoot you.” Hollins stopped and turned
to face Ouimette with an outstretched arm and a black object
in his hand. Perceiving the black object to be a gun,
Ouimette feared that Hollins was going to kill him. Ouimette
aimed at Hollins' chest. The moment he fired, Hollins
turned away from Ouimette and began to run. The single shot
struck Hollins in the back. As Ouimette fired, he moved for
cover and fell on the parking lot pavement, breaking his
wrist. By the time Ouimette returned to his feet, Hollins was
to Plaintiffs, however, Hollins did not have a gun or
anything that could be confused for one. Nor did he attempt
to enter Westchester's Care Center. Instead, when Hollins
reached Westchester's parking lot he turned left in a
westerly direction and ran down the middle of the parking
lot. Ouimette then shot Hollins in the back either (1)
without issuing an oral command, (2) issuing a deficient
command, or (3) after Hollins heeded the alleged command.
Despite suffering a gunshot wound to his back, Hollins
continued fleeing and entered Westchester's maintenance
building when Luis Flores, a Westchester employee, exited.
there, the remaining events are more or less undisputed.
Ouimette got back on his feet and transmitted “shots
fired” from his radio. Ouimette neither radioed nor
told officers on scene that Hollins had a gun and pointed it
at him. Next, Ouimette began evacuating the Care Center.
Marlon Cruz, a Westchester employee who saw Hollins enter the
maintenance building, informed Tempe Police that Hollins was
bleeding from a wound in his chest and that there were no
interior doors between the maintenance building and the Care
Center. Cruz also told Tempe Police that Hollins could access
the Care Center if he climbed through the maintenance
building's drywall ceiling and onto the roof.
approximately 9:29 a.m., Officers Adam and Michael Miller
attempted to open the maintenance room's door, but it was
locked. Officers then had Cruz unlock the door with his key,
and an officer commanded Hollins to come out with his hands
up. Officers received no response from Hollins, nor did they
observe any movement from him. Officers then issued commands
using a megaphone, instructing Hollins to come out with his
hands up, or to yell if he was injured and unable to exit.
Again, officers neither received a response from Hollins nor
observed any movement. At 10:20 a.m., Tempe Police deployed a
small robot into the maintenance building to locate Hollins.
The robot found Hollins unresponsive on the floor. Paramedics
entered the room at 10:25 a.m. and pronounced Hollins dead
just three minutes later.
judgment is appropriate if the evidence, viewed in the light
most favorable to the nonmoving party, demonstrates
“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). A fact is material if it
might affect the outcome of the case, and a dispute is
genuine if a reasonable jury could find for the nonmoving
party based on the competing evidence. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1061 (9th Cir. 2002). Summary judgment may also be entered
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue
of material fact.” Id. at 323. The burden then
shifts to the non-movant to establish the existence of a
genuine and material factual dispute. Id. at 324.
Thus, the nonmoving party must show that the genuine factual
issues “‘can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party.'” Cal. Architectural Bldg. Prods., Inc.
v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th
Cir. 1987) (quoting Anderson, 477 U.S. at 250).
Counts I and V, Plaintiffs allege that Ouimette is liable
under 42 U.S.C. § 1983 for using excessive force and
depriving Plaintiffs of familial relationships in violation
of their Fourth and Fourteenth Amendment rights. In Counts II
and VIII, Plaintiffs allege that Ouimette is liable under
§ 1983 for acting with deliberate indifference to
Hollins' serious medical needs in violation of
Hollins' Fourteenth Amendment rights. As to Counts VI and
VII, Plaintiffs allege that the City of Tempe is liable under
§ 1983 for failing to adequately train Ouimette with
respect to firearm recognition, body-worn camera usage, and
providing prompt medical attention. Finally, in Counts III,
IV, IX, and X, Plaintiffs allege state law claims for
intentional infliction of emotional distress
(“IIED”), assault and battery, negligence, and
wrongful death under A.R.S. § 12-612. Defendants move
for summary judgment on all counts.
Excessive Force in Violation of § 1983 (Counts I,
argue that Ouimette is entitled to qualified immunity against
Plaintiffs' excessive force claim. In determining
whether an officer is entitled to qualified immunity, the
Court must consider (1) whether there has been a violation of
a constitutional right; and (2) whether that right was
clearly established at the time of the officer's alleged
misconduct.” Lal v. California, 746 F.3d 1112,
1116 (9th Cir. 2014).
Violation of Constitutional Right
Fourth Amendment excessive force cases, courts examine
whether police officers' actions are objectively
reasonable given the totality of the circumstances.
Graham v. Connor, 490 U.S. 386, 397 (1989); Byrd
v. Phx. Police Dep't, 885 F.3d 639, 642 (9th Cir.
2018). “The calculus of reasonableness 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.”
Graham, 490 U.S. at 396. And “[t]he
‘reasonableness' of a particular use of force must
be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”
Id. at 396.
force is objectively reasonable depends on several factors
(“Graham factors”), including: (1) the
severity of the crime that prompted the use of force; (2) the
threat posed by a suspect to the police or others; and (3)
whether the suspect was resisting arrest. Id. The
Graham factors, however, are not exclusive and
courts must “examine the totality of the circumstances
and consider whatever specific factors may be appropriate in
a particular case, whether or not listed in
Graham.” Bryan v. MacPherson, 630
F.3d 805, 826 (9th Cir. 2010) (internal quotation marks and
citation omitted). Another relevant factor important here is
whether proper warnings were given before employing force.
See, e.g., Hughes v. Kisela, 841 F.3d 1081,
1085 (9th Cir. 2016).
the excessive force inquiry nearly always requires a jury to
sift through disputed factual contentions, and to draw
inferences therefrom, [the Ninth Circuit has] held on many
occasions that summary judgment . . . in excessive force
cases should be granted sparingly.” Glenn v. Wash.
Cty., 673 F.3d 864 (9th Cir. 2011). This principle
applies with particular force here, where the only witness to
the shooting other than the officer was killed during the
encounter. See, e.g., Gonzalez v. City of
Anaheim, 747 F.3d 789, 795 (9th Cir. 2014); Lopez v.
Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017). “In
such cases, [courts] must ensure that the officer is not
taking advantage of the fact that the witness most likely to
contradict his story-the person shot dead-is unable to
testify.” Gonzalez, 747 F.3d at 795 (internal
quotation marks omitted). As such, courts are tasked with
examining all the evidence in the record, including
contemporaneous statements by the officer and available
physical evidence, “to determine whether the
officer's story is internally consistent with other known
facts.” Id. Courts also must “examine
circumstantial evidence that, if believed, would tend to
discredit the ...