Coleman v. City of Tempe

          ORDER

          Douglas L. Rayes United States District Judge.

         Plaintiffs 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.^[1] 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.

         I. Background

         On July 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 kill.

         Nineteen 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.

         Pulling 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.

         The 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 gone.

         According 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.

         From 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.

         At 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.

         II. Legal Standard

         Summary 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).

         The 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).

         III. Discussion

         In 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^[2] 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.

         A. Excessive Force in Violation of § 1983 (Counts I, V)

         Defendants argue that Ouimette is entitled to qualified immunity against Plaintiffs' excessive force claim.^[3] 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).

         1. Violation of Constitutional Right

         In 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.

         Whether 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).

         “Because 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 ...