Waller v. Nogales, City of

Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 1 of 43 1 KAB 2 WO — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Cora J. Waller, No. CV-22-00244-TUC-RCC 10 Plaintiff, 11 v. ORDER — 12 — City of Nogales, et al., — 13 — Defendants. — 14 — 15 Plaintiff Cora J. Waller, on her own and as personal representative of the estate of 16 Glen Ray Cockrum, Jr., brought this civil rights action pursuant to 42 U.S.C. § 1983 and 17 Arizona state law. (Doc. 63.) Pending before the Court are: (1) Defendants Hathaway and 18 Bunting's Rule 36 Motion to Determine Sufficiency of Plaintiff's Answer to Requests for 19 Admission Nos. 2 and 3 (Doc. 64); (2) Defendants Hathaway and Bunting's Motion for 20 Summary Disposition of their Rule 36 Motion to Determine Sufficiency of Plaintiff's 21 Answer to Requests for Admission Nos. 2 and 3 (Doc. 71); (3) Defendants Hathaway and 22 Bunting's Motion for Summary Judgment (Doc. 75); (4) City of Nogales, Roy Bermudez, 23 Nicholas Acevedo, Gerardo Batriz, Guadalupe Villa, Robert Gallego, Jesus Gomez, Mario 24 Lopez, and Jose Pimienta's Motion for Summary Judgment (Doc. 77); and (5) Plaintiff's 25 Motion for Partial Summary Judgment (Doc. 87). 26 I. Plaintiff's Operative Complaint (Doc. 63) 27 In Count One of the First Amended Complaint (Doc. 63), Plaintiff alleges a Fourth 28 Amendment excessive force claim against Defendants Acevedo, Gallego, Batriz, Gomez, Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 2 of 43 1 Villa, Lopez, Pimienta, Bunting, and Bermudez. 2 In Count Two, Plaintiff alleges a Monell claim against the City of Nogales and Roy 3 Bermudez in his official capacity based on allegations there was a written policy and/or 4 unwritten custom permitting firing into moving vehicles and use of excessive force when 5 faced with nonviolent individuals acting erratically, but who otherwise pose no imminent 6 threat to officers, to civilians, or to the general public. 7 In Count Three, Plaintiff alleges a Fourth Amendment failure to intervene claim 8 against Defendants Acevedo, Gallego, Batriz, Gomez, Villa, Lopez, Pimienta, and 9 Bermudez. 10 In Count Four, Plaintiff alleges a Fourteenth Amendment denial of familial 11 association claim against Defendants Acevedo, Gallego, Batriz, Gomez, Villa, Lopez, 12 Pimienta, Bunting, Bermudez, and Hathaway. 13 In Count Five, Plaintiff alleges state law claims of battery and wrongful death 14 against Defendants City of Nogales, Hathaway, Bermudez, Bunting, Acevedo, Villa, 15 Gallego, Mario Lopez, Batriz, Pimienta, and Gomez.1 16 In Count Six, Plaintiff alleges a claim under the Americans with Disabilities Act 17 (ADA) against the City of Nogales. 18 II. Dismissal of Claims 19 Plaintiff did not respond to several of Defendants' arguments that summary 20 judgment should be granted in their favor. Additionally, Plaintiff requested the denial of 21 summary judgment only as to certain claims. (See Doc. 98 at 13–14 ("For the reasons stated 22 above, Plaintiff respectfully requests that this Court deny Defendant Bunting's motion for 23 summary judgment to the extent that it seeks judgment as to Counts I and V, and deny 24 Defendant Hathaway's motion for summary judgment to the extent that it seeks judgment 25 as to the vicarious liability aspect of Count V."); Doc. 93 at 17 ("Plaintiff respectfully — 26 — 27 1 Plaintiff’s claims in Count Five against Defendants Yanez, Gomez, Luchuga, 28 Villela, Jose Bermudez, David Lopez, and Mesta were previously dismissed by the Court. (Doc. 61 at 11.) -2Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 3 of 43 1 requests that this Court deny the Nogales Defendants' motion for summary judgment to the 2 extent that it seeks judgment as to: Count I against Defendants Bermudez, Batriz, Pimienta, 3 and Gallego; Count III against all Defendants; Count IV against Defendant Bermudez; and 4 Count V against all Defendants."). 5 As such, Plaintiff concedes to the dismissal of the following claims: (1) the Count 6 One excessive force claims asserted against Acevedo, Gomez, Lopez, and Villa; (2) Count 7 Two in its entirety, (3) Count Four as asserted against Acevedo, Gallego, Batriz, Gomez, 8 Villa, Lopez, Pimienta, Bunting, and Hathaway; and (4) Count Six in its entirety. 9 Accordingly, those claims will be dismissed. 10 The remaining claims after this dismissal are: (1) Fourth Amendment excessive 11 force claims against Defendants Gallego, Batriz, Pimienta, Bunting, and Bermudez in 12 Count One; (2) Fourth Amendment failure to intervene claims against Defendants 13 Acevedo, Gallego, Batriz, Gomez, Villa, Lopez, Pimienta, Bunting, and Bermudez in 14 Count Three; (3) a Fourteenth Amendment denial of familial association claim against 15 Defendant Bermudez in Count Four; and (4) state law claims of battery and wrongful death 16 against Defendants City of Nogales, Hathaway (solely based on vicarious liability), 17 Bermudez, Bunting, Acevedo, Villa, Gallego, Lopez, Batriz, Pimienta, and Gomez in 18 Count Five. 19 III. Summary Judgment Standard 20 A court must grant summary judgment "if the movant shows that there is no genuine 21 dispute as to any material fact and the movant is entitled to judgment as a matter of law." 22 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317 , 322–23 (1986). The 23 movant bears the initial responsibility of presenting the basis for its motion and identifying 24 those portions of the record, together with affidavits, if any, that it believes demonstrate 25 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323 . 26 If the movant fails to carry its initial burden of production, the nonmovant need not 27 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099 , 28 1102–03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts -3Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 4 of 43 1 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 2 contention is material, i.e., a fact that might affect the outcome of the suit under the 3 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 4 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 5 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 6 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 7 favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 , 288–89 (1968); however, 8 it must "come forward with specific facts showing that there is a genuine issue for trial." 9 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 10 citation omitted); see Fed. R. Civ. P. 56(c)(1). 11 At summary judgment, the judge's function is not to weigh the evidence and 12 determine the truth but to determine whether there is a genuine issue for trial. Anderson, — 13 — 477 U.S. at 249 . In its analysis, the court must believe the nonmovant's evidence and draw 14 all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited 15 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 16 IV. Facts 17 On May 24, 2021, Santa Cruz County Sheriff's Deputies responded to a report of an 18 unknown individual threatening employees at H&M Distributors in Rio Rico, just outside 19 Nogales, Arizona. (Doc. 76 ¶ 1.)2 An employee stated that the individual—later identified 20 as Glen Ray Cockrum, Jr. (Cockrum)—obstructed the loading docks of the warehouse by 21 improperly parking his 18-wheel semi-trailer truck (hereinafter the semitruck). (Id. ¶ 2.) 22 When employees asked Cockrum to move his vehicle, Cockrum responded by brandishing 23 a knife and brass knuckles. (Id. ¶ 3.) Fearing for their safety, an employee texted a family — 24 — — 25 — — 2 — The Court could not locate Plaintiff’s controverting statement of facts to 26 Defendants Santa Cruz County and Bunting’s statement of facts. Accordingly, the Court 27 assumes Defendant Santa Cruz County and Bunting’s supported facts are true unless clearly contradicted by other parts of the Record. See Fed. R. Civ. P. 56(e)(2). The Court 28 did review and consider Plaintiff's "Separate Statement of Facts" filed along with her Motion for Partial Summary Judgment. (Doc. 88.) -4Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 5 of 43 1 member employed in the Santa Cruz County Sheriff's Office's dispatch center, who sent 2 over a deputy to respond to the situation. (Id. ¶ 4.) 3 By the time non-party Deputy Adrian Soto arrived, Cockrum had moved his vehicle 4 to Malena Produce, the warehouse next door. (Id. ¶ 5.) Soto proceeded to Malena Produce 5 to speak with Cockrum. (Id. ¶ 6.) Soto wore his standard issue sheriff's deputy uniform, 6 consisting of a tan shirt, green pants, a badge identifying him as a Santa Cruz County 7 Sheriff's Deputy, as well as a large shoulder patch that says "Santa Cruz County Sheriff" 8 in large capital letters. (Id. ¶ 7.) Soto approached Cockrum's vehicle, identified himself as 9 a Sheriff's Deputy, and requested that Cockrum roll down the window. (Id. ¶ 9.) Although 10 Cockrum initially rolled down the window, Cockrum rolled it back up after Deputy Soto 11 asked to speak with him. (Id. ¶ 10. ) When Deputy Soto knocked harder on the door to 12 reestablish contact, Cockrum raised his hands and Deputy Soto observed a knife with a 13 brass knuckle handle in his right hand, and a dagger-like blade in his right hand. (Id. ¶ 11.) 14 With his right hand, Cockrum made a gesture of licking the blade, followed by a gesture 15 of slitting his throat. (Id. ¶ 12.) Soto moved 15 to 20 feet away, drew his side arm, and 16 pointed it at Cockrum. (Id. ¶ 13.) He saw that Cockrum still held the blades and was 17 shaking them, giving him the impression that Cockrum was trying to "hype himself" and 18 attack. (Id. ¶ 14.) Cockrum quickly turned to the vehicle door as if he was going to open 19 it. (Id. ¶ 15.) Because he feared physical injury, Soto retreated from Cockrum's vehicle 20 towards his own conspicuously marked law enforcement vehicle. (Id. ¶ 16.) Soto yelled 21 at Cockrum to drop the weapons and come out with his hands up, but Cockrum did not 22 comply. (Id. ¶ 17.) 23 After retreating to his vehicle, Deputy Soto requested assistance over the radio, 24 stating Cockrum barricaded himself in his vehicle and pulled a knife on him. (Id. ¶ 18.) 25 Non-party Deputy Jose Muzquiz and two United States Border Patrol agents responded to 26 Soto's call for help. (Id. ¶ 19.) Soto utilized the Border Patrol's on-vehicle public 27 announcement system to broadcast a command to Cockrum to exit his vehicle with his 28 hands up. (Id. ¶ 20.) Although Soto broadcast the message multiple times, Cockrum did -5Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 6 of 43 1 not comply. (Id. ¶ 21.) Instead, Cockrum drove out of the Malena Produce parking lot 2 onto the Interstate 19 Frontage Road heading southbound. (Id. ¶ 22.) 3 At the same time, Sheriff's Corporal Alfonso Flores traveled northbound on the 4 Frontage Road to respond to Deputy Soto's request for assistance. (Id. ¶ 23.) Suddenly, 5 Cockrum veered across the double-yellow centerline of the Frontage Road towards Flores's 6 vehicle. (Id. ¶ 24.) Soto interpreted this action as Cockrum's attempt to either run Flores 7 off the road or strike his vehicle. (Id. ¶ 25.) 8 At approximately 1:00 p.m. on the same day, May 24, 2021, Defendants City of 9 Nogales Police Corporal Gerardo Batriz and Officer Jose Pimienta were traveling north on 10 I-19 in Officer Pimienta's fully marked 2021 Ford Explorer patrol vehicle. (Doc. 79 ¶ 1; 11 Doc. 94 ¶ 1.) Corporal Batriz and Officer Pimienta were traveling to Tucson to participate 12 in an "honor walk" to accompany the body of Nogales Police Department (NPD) Officer 13 Brinton, who had died as a result of injuries sustained in an on-duty traffic accident on May 14 20, 2021. (Doc. 79 ¶ 2; Doc. 94 ¶ 2.) While traveling north on I-19 approaching the Border 15 Patrol checkpoint, Corporal Batriz and Officer Pimienta observed other law enforcement 16 vehicles traveling north at high rates of speed with their emergency lights engaged. (Doc. 17 79 ¶ 3; Doc. 94 ¶ 3.) As they arrived at the checkpoint, they observed marked and 18 unmarked Santa Cruz County Sheriff's Department and Border Patrol vehicles at the 19 checkpoint, with some blocking access to northbound I-19. (Doc. 79 ¶ 4; Doc. 94 ¶ 4.) 20 Defendant Detective Bunting, who was at his desk at the Santa Cruz Sheriff's Office, 21 learned of a subject (Cockrum) who barricaded himself at Malena Produce, and Bunting 22 and non-party Detective Jorge Ainza drove separate vehicles to respond to the scene. (Id. 23 ¶¶ 35-36.) Bunting and Ainza learned over the radio that Cockrum left Malena Produce 24 and was progressing up Interstate 19 northbound. (Id. ¶ 37.) When Detective Bunting 25 spotted Cockrum's vehicle, he observed Cockrum cross into the median turnaround just 26 before the Border Patrol checkpoint, and observed a female Border Patrol agent between 27 the truck and trailer portions of Cockrum's vehicle. (Id. ¶¶ 38-39.) Detective Bunting lost 28 sight of the agent after Cockrum's vehicle drove by and he then heard non-party Ainza fire -6Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 7 of 43 1 shots at the vehicle's tires. (Id. ¶ 40.) At the time, Detective Bunting believed Cockrum 2 may have struck the Border Patrol agent with his truck. (Id. ¶ 41.) While near the Border 3 Patrol checkpoint, non-party Detective Ainza fired six shots into Cockrum's vehicle's tires 4 to disable it. (Id. ¶ 43.) The attempt was unsuccessful, and Cockrum barreled onward on 5 Interstate 19 towards Nogales. (Id. ¶ 44.) 6 Corporal Batriz and Officer Pimienta observed a white semi driven by Cockrum 7 making a U-turn in the median to head south on I-19. (Doc. 79 ¶ 5; Doc. 94 ¶ 5.) In their 8 experience, this was an unusual and unexpected maneuver, and normally the only time a 9 driver makes a U-turn at a border patrol checkpoint is when there are people with warrants 10 in the vehicle or the vehicle is loaded with contraband or undocumented immigrants. (Doc. 11 79 ¶ 6; Doc. 94 ¶ 6.) As Cockrum made the U-turn, Batriz and Pimienta observed the semi12 trailer narrowly miss Deputy Ainza, who had to take rapid evasive action to get out of the 13 way of the semi to avoid being hit. (Doc. 79 ¶ 7; Doc. 94 ¶ 7.) They observed Deputy 14 Ainza shoot at the semi's tires with his sidearm. (Doc. 79 ¶ 8; Doc. 94 ¶ 8.) 15 Corporal Batriz rolled down the passenger window and asked a Border Patrol agent 16 what was happening, and the Border Patrol agent responded, "White semi, male subject, 17 armed and dangerous." (Doc. 79 ¶ 9; Doc. 94 ¶ 9.) Corporal Batriz and Officer Pimienta 18 decided to assist with the pursuit of Cockrum, who was now heading southbound on I-19 19 towards Nogales rather than continue to Tucson for the honor walk for Officer Binton. 20 (Doc. 79 ¶ 10; Doc. 94 ¶ 10.) It appeared to Corporal Batriz that Cockrum had no regard 21 for the life and safety of the involved law enforcement officers. (Doc. 79 ¶ 11; Doc. 94 ¶ 22 11.) 23 Detective Bunting pulled in behind Cockrum with his lights and sirens activated, 24 but Cockrum did not stop. (Doc. 76 ¶ 45.) As they pursued Cockrum with the vehicles 25 from other law enforcement agencies, Officer Pimienta and Corporal Batriz took the lead 26 position behind the semi with their siren and emergency lights engaged, and used their PA 27 system to instruct the driver to pull over, but Cockrum did not comply. (Doc. 79 ¶ 12; Doc. 28 94 ¶ 12.) Officer Pimienta also radioed the NPD dispatch with the license plate of the -7Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 8 of 43 1 trailer and informed them they were assisting other agencies in pursuit of a semi headed 2 south on I-19 toward Nogales, and that the driver was armed, though Officer Pimienta did 3 not know the weapon with which Cockrum was armed. (Doc. 79 ¶ 13; Doc. 94 ¶ 13.) 4 Defendant Acting Lieutenant Acevedo relayed on the radio that the driver of the semi had 5 committed assault against a Santa Cruz County Sheriff's deputy, a felony. (Doc. 79 ¶ 14; 6 Doc. 94 ¶ 14.) Near Exit 25, Cockrum threw items out the window of the semi. (Doc. 79 7 ¶ 15; Doc. 94 ¶ 15.) As Cockrum approached a construction zone near kilometer marker 8 15 or 14, the law enforcement vehicles slowed down and backed off from the semi, which 9 continued going sixty-five miles an hour through the construction zone, which had a speed 10 limit of 45 or 55 miles an hour. (Doc. 79 ¶ 16; Doc. 94 ¶ 16.) Officer Pimienta was 11 concerned that a civilian vehicle in the construction zone might get hit by the semi, but this 12 did not occur. (Doc. 79 ¶ 17; Doc. 94 ¶ 17.) 13 While Corporal Batriz and Officer Pimienta continued following Cockrum towards 14 Nogales, Acevedo was communicating with other NPD officers about setting up 15 roadblocks on the I-19 exits into Nogales to keep Cockrum from entering city limits. (Doc. 16 79 ¶ 18; Doc. 94 ¶ 18.) Defendants Officers Villa and Gomez, and Sergeant Gallego went 17 to Exit 4, while two other officers went to Exit 8. (Doc. 79 ¶ 15; Doc. 94 ¶ 15.) Cockrum 18 was able to get around the two vehicles blocking Exit 8 in Nogales and entered the City, 19 proceeding south on Grand Avenue. (Doc. 79 ¶ 20; Doc. 94 ¶ 20.) Detective Bunting 20 discontinued pursuit once Cockrum entered Nogales because Sheriff's Office Commander 21 Castillo directed the deputies to serve as backup to the Nogales officers. (Doc. 76 ¶¶ 48– 22 49.) Bunting maintained visual contact with Cockrum in Nogales and observed Cockrum 23 run multiple red lights. (Id. ¶ 50.) 24 Grand Avenue is a busy street with congested intersections and there are usually 25 some pedestrians. (Doc. 79 ¶ 21; Doc. 94 ¶ 21.) Cockrum ran a red traffic light at Grand 26 and Country Club going between 35 and 40 miles per hour, then stopped for a red light at 27 Grand and Reed. (Doc. 79 ¶ 22; Doc. 94 ¶ 22.) Other officers arrived at intersections on 28 Grand ahead of Cockrum to clear them as much as possible of vehicular and pedestrian -8Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 9 of 43 1 traffic before the semi arrived. (Doc. 79 ¶ 23; Doc. 94 ¶ 23.) Cockrum ran another red 2 light at Grand and Mariposa, one of the busiest intersections in Nogales, traveling at a 3 speed between 35 and 40 miles per hour while occupying both lanes of traffic. (Doc. 79 ¶ 4 24; Doc. 94 ¶ 24.) 5 Defendant NPD Chief Roy Bermudez was on foot at the Grand-Mariposa 6 intersection and made eye contact with Cockrum as he ran the red light, describing the 7 interaction as follows: "I observed [the semi] approaching and raised my hands to the driver 8 in a gesture of, 'What the hell?' The driver looked me in the eyes, made an obscene gesture 9 (commonly known as 'flipping the bird') and continued driving." (Doc. 79 ¶ 25; Doc. 94 ¶ 10 25.) Shortly after running the red traffic light at Mariposa and Grand, Cockrum turned into 11 the Walmart parking lot from the Grand Avenue access road south of White Park Drive 12 and hit the median, causing a tire on the first rear axle to go flat. (Doc. 79 ¶ 28; Doc. 94 ¶ 13 28.) The Nogales Walmart was busy on the date of the incident. (Doc. 79 ¶ 29; Doc. 94 ¶ 14 29.) 15 Cockrum pulled the semi up in front of the west entrance to the Walmart, stopped, 16 and pulled the curtains inside the cab of the truck closed so that officers could not see what 17 he was doing inside. (Doc. 79 ¶ 30; Doc. 94 ¶ 30.) Officers were yelling commands for 18 Cockrum to get out of the truck. (Doc. 79 ¶ 31; Doc. 94 ¶ 31.) Officer Pimienta attempted 19 to open the driver's door to the truck, but it was locked. (Doc. 79 ¶ 32; Doc. 94 ¶ 32.) The 20 NPD officers present at the scene attempted to disable the semi in a number of ways, 21 including cutting the air hose/brake line causing the brakes to the trailer to seize; placing a 22 spike strip in front of the trailer tires; breaking out one of the rear windows of the truck 23 cab; and attempting to deploy a flashbang distraction device. (Doc. 79 ¶¶ 33–35; Doc. 94 24 ¶¶ 33–35.) 25 Many of the officers deployed their duty firearms and aimed them at the semi and 26 its driver because of the threat it posed and out of concern over what the driver might be 27 doing out of view inside the cab of the truck. (Doc. 79 ¶ 36; Doc. 94 ¶ 36.) Despite the 28 trailer brakes being locked up, Cockrum began to pull forward towards the parking lot exit -9Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 10 of 43 1 onto White Park Drive, an area where there were many civilians and two NPD vehicles 2 were parked to block egress in that direction. (Doc. 79 ¶ 37; Doc. 94 ¶ 37.) As Cockrum 3 began to pull forward it appeared to some of the officers that he was shooting through the 4 window of the truck because the window was shattered by other officers. (Doc. 79 ¶ 38; 5 Doc. 94 ¶ 38.) Detective Bunting and Officer Pimienta planned to use a non-lethal grenade 6 to distract Cockrum and remove him from the vehicle, so Officer Pimienta broke the glass 7 of the passenger side window, but before the officers could deploy the grenade, Cockrum 8 began driving forward once again. (Doc. 76 ¶ 59.) 9 Acting Lieutenant Acevedo, Sergeant Gallego, Corporal Batriz, Detective Lopez, 10 and Officer Gomez ensured they had a safe back stop and each fired at Cockrum as he 11 moved towards the two NPD vehicles blocking the parking lot exit in order to stop what 12 they perceived to be an imminent deadly threat to the lives of law enforcement officers and 13 civilians. (Doc. 79 ¶ 39; Doc. 94 ¶ 39.) 14 Officer Villa shot at the vehicle's tires and attempted to disable it while it was 15 heading for another officer as it was leaving the Walmart. (Doc. 79 ¶ 40; Doc. 94 ¶ 40.) 16 Cockrum was not deterred by the shots and kept heading for the exit, where he impacted 17 the two NPD patrol vehicles in order to get through to White Park Drive. (Doc. 79 ¶ 41; 18 Doc. 94 ¶ 41.) Cockrum proceeded down White Park Drive and turned south onto Grand 19 Avenue where he was pursued by law enforcement officers, including NPD Chief 20 Bermudez, Sergeant Gallego, Corporal Batriz and Officer Pimiento who, once they were 21 able to get in front of Cockrum in an area with a safe backstop, together with Santa Cruz 22 Sheriff's Deputy Bunting, shot at Cockrum again, ultimately causing the semi to come to a 23 stop. (Doc. 79 ¶ 42; Doc. 94 ¶ 42.)3 One of the shots was fatal and it is believed the fatal 24 shot was one of the shots fired by Chief Bermudez. (Doc. 79 ¶ 42; Doc. 94 ¶ 42.) Law — 25 — 26 3 Detective Bunting took up a position in front of Cockrum’s vehicle, put his hand 27 in the air and commanded Cockrum to stop his vehicle, saying “Stop. Police,” and when Cockrum did not stop, he used a Colt M4 Commando, serial number #A0203009 with .223 28 caliber ammunition and opened fire while hearing other officers fire as well. (Doc. 76 ¶¶ 65-71.) - 10 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 11 of 43 1 enforcement officers removed Cockrum, who was wearing brass knuckles, from the cab of 2 the truck and attempted CPR, but Cockrum was declared deceased at the scene. (Doc. 79 3 ¶ 43; Doc. 94 ¶ 43.) 4 The Arizona Department of Public Safety (DPS) investigated the incident and issued 5 a report that found each of the members of the NPD who fired at Cockrum were justified 6 in using physical force and deadly physical force against Cockrum because his actions 7 threatened deadly physical force against law enforcement officers, placed law enforcement 8 officers and civilians in reasonable apprehension of imminent physical injury or death, and 9 through his past and present conduct was known to likely endanger human life or inflict 10 serious bodily injury unless apprehended without delay. (Doc. 79 ¶ 44; Doc. 94 ¶ 44.) 11 DPS found officers fired 146 shots total between Scene One (Border Patrol 12 Checkpoint), Scene Two (Walmart Parking Lot), and Scene Three (Grand Avenue). (Doc. 13 76 ¶ 81.) As part of the investigation, the Pima County Office of the Medical Examiner 14 (OME) conducted an autopsy and toxicological screening of Cockrum's body, which 15 indicated Cockrum had Benzoylecgonine—the primary metabolite of cocaine—in his 16 system at the time of death. (Id. ¶ 82–88.) 17 V. Discussion 18 A. Fourth Amendment Excessive Force Claims against Defendants Gallego, Batriz, Pimienta, Bunting, and Bermudez in Count One — 19 — 1. Legal Standards — 20 — a. Excessive Force — 21 — If the alleged use of excessive force was applied during the plaintiff's arrest, the — 22 — Fourth Amendment objective-reasonableness standard applies. Graham v. Connor, 490 23 U.S. 386, 388 (1989). Under this standard, a court considers certain objective factors and — 24 — does not consider the defendant officer's intent or motivation. See id. at 397 , 399 — 25 — ("subjective concepts like 'malice' and 'sadism' have no proper place in [this] inquiry"). — 26 — Under the Fourth Amendment standard, the reasonableness of the use of force "must — 27 — be judged from the perspective of a reasonable officer at the scene, rather than with the — 28 — 20/20 vision of hindsight." Id. at 396 . When determining whether the totality of the - 11 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 12 of 43 1 circumstances justifies the degree of force, the court must consider "the facts and 2 circumstances of each particular case, including the severity of the crime at issue, whether 3 the suspect poses an immediate threat to the safety of the officers or others, and whether 4 he is actively resisting arrest or attempting to evade arrest by flight." Id. The inquiry is 5 "whether the officers' actions are 'objectively reasonable' considering the facts and 6 circumstances confronting them, without regard to their underlying intent or motivation." — 7 — Id. at 397 (citations omitted). 8 b. Qualified Immunity 9 A defendant in a § 1983 action is entitled to qualified immunity from damages for 10 civil liability if his conduct does not violate clearly established federal statutory or 11 constitutional rights of which a reasonable person would have known. Harlow v. 12 Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity analysis formerly required 13 the court to make two distinct inquires, the "constitutional inquiry" and the "qualified 14 immunity inquiry." See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 15 2002). The "constitutional inquiry" asks whether, when taken in the light most favorable 16 to the non-moving party, the facts alleged show that the official's conduct violated a 17 constitutional right. Saucier v. Katz, 533 U.S. 194 , 201 (2001). The "qualified immunity 18 inquiry" asks if the right was clearly established at the relevant time. Id. at 201–02. 19 "A right is clearly established when it is sufficiently clear that every reasonable 20 official would have understood that what he is doing violates that right." Waid v. Cnty. of 21 Lyon, 87 F.4th 383 , 387 (9th Cir. 2023) (quotation omitted). While a case need not be 22 directly on point, existing precedent must "place the statutory or constitutional question 23 beyond debate." Id. (cleaned up). "Such specificity is especially important in the Fourth 24 Amendment context, where the Court has recognized that it is sometimes difficult for an 25 officer to determine how the relevant legal doctrine, here excessive force, will apply to the 26 factual situation the officer confronts." Id. (internal citations omitted). "Cases cast at a 27 high level of generality are unlikely to establish rights with the requisite specificity." Id. 28 at 388 (internal citation omitted). "While a case addressing general principles may clearly - 12 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 13 of 43 1 establish a right in an obvious case, such obvious cases are rare." Id. (cleaned up). "[T]his 2 obviousness principle, an exception to the specific-case requirement, is especially 3 problematic in the Fourth-Amendment context" "because a categorical statement that 4 conduct obviously violates the Fourth Amendment is particularly hard to make when 5 officers encounter suspects every day in never-before-seen ways, including countless 6 confrontations that yield endless permutations of outcomes and responses." Id. (cleaned 7 up). As such, Fourth Amendment violations must be beyond debate to be considered 8 obvious. Id. (citation omitted); Villanueva v. California, 986 F.3d 1158 , 1171 (9th Cir. 9 2021) ("Because excessive use of force is a highly fact-specific inquiry, even when we 10 determine excessive force was used, 'police officers are entitled to qualified immunity 11 unless existing precedent 'squarely governs' the specific facts at issue.'") (quoting Kisela v. 12 Hughes, 138 S. Ct. 1148, 1153 (2018)). 13 "Instead, a clearly established right usually requires controlling authority or a 14 robust consensus of cases of persuasive authority." Id. (citations omitted). "Plaintiffs must 15 either explain why their case is obvious under existing general principles or, more 16 commonly, show specific cases that control or reflect a consensus of non-binding 17 authorities in similar situations." Id. With regard to the "reasonableness of lethal force as 18 a response to vehicular flight, . . . this is an area in which the result depends very much on 19 the facts of each case." Plumhoff, 572 U.S. at 777. The Court must "view the facts as an 20 officer would have encountered them on the night in question, not as an ex post facto critic 21 dissecting every potential variance under a magnifying glass." Monzon v. City of Murrieta, — 22 — 978 F.3d 1150, 1157 (9th Cir. 2020). 23 2. Analysis 24 a. Batriz, Pimienta, and Gallego's Arguments 25 Defendants Batriz, Bermudez, Pimienta, and Gallego argue that they are entitled to 26 summary judgment on Plaintiffs' excessive force claims because they did not violate 27 Cockrum's constitutional rights and they are entitled to qualified immunity because the law 28 was not clearly established that they could not shoot at Mr. Cockrum in the semitruck under - 13 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 14 of 43 1 the circumstance of this case. 2 Specifically, Defendants argue that when balancing the factors articulated in 3 Graham, the force used was objectively reasonable because Cockrum engaged in 4 aggravated assault on law enforcement officers and presented a deadly threat to law 5 enforcement officers and the public, multiple attempts were made to stop him before the 6 Border Patrol station, at the Border Patrol station, before he entered the City of Nogales, at 7 Walmart, and then as he left the Walmart, and Cockrum was actively attempting to evade 8 felony arrest by flight. Defendants further argue that every case to consider a similar 9 situation has found that the officers acted reasonably, and it was not clearly established that 10 the officers could not take the actions they did under these circumstances. 11 In Response, Plaintiff argues that Defendants Batriz, Bermudez, Pimienta, and 12 Gallego used excessive force when they shot at Cockrum at the final location along Grand 13 Avenue because none of the four officers who fired along Grand Avenue claimed that they 14 were in harm's way. 15 In Reply, Defendants assert that Plaintiff misrepresents the threat posed by Cockrum 16 at the time of the shots. Defendants point to Officer Pimienta's deposition testimony where 17 he described Mr. Cockrum's truck just before he shot: 18 I mean, he was – that truck was dragging that trailer with flat tires like it was nothing. So I'm, you know, I'm thinking he's — 19 — basically driving a Howitzer shell down and it's only a matter 20 of time before he winds up hitting or killing someone. So my frame of thought was I have to stop him. He can't leave that 21 location at all. I mean he had already rammed one of our patrol 22 cars and just by rubbing it. I remember driving by and just seeing, like, the fender just peeled back. . . . He's going to kill 23 someone. That's, I mean seeing – seeing how he just peeled the 24 – the fender back it just – it reminded me of those old tuna cans – with no force at all. I mean just ripped it off, kept going, 25 dragging that trailer like it was nothing, like, it was, you know, 26 a wagon tied to a car. I was like, "Nah, this – this guy is going to kill someone, we need to stop him. We need to stop him as 27 quickly as we can before that happens." 28 (Doc. 88-1 at 38, 41.). - 14 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 15 of 43 1 Defendants assert that at the time of the shooting Batriz and Pimienta knew: (1) a 2 Border Patrol agent told them that Cockrum was "armed and dangerous"; (2) Cockrum 3 almost ran over Deputy Ainza and Deputy Ainza had fired shots at the semi's tires; (3) 4 Cockrum committed felony flight in violation of A.R.S. § 28-622.01 by refusing to stop 5 for law enforcement vehicles for an extended distance; (4) Cockrum had sped through a 6 construction zone, ran red lights in city limits, and continued driving recklessly in Nogales 7 City limits; (5) Cockrum pulled the curtains in his truck to prevent officers from viewing 8 what he was doing inside the truck; (6) Cockrum continued to attempt to flee and evade 9 law enforcement despite attempts to disable his vehicle by flattening multiple tires on the 10 truck and trailer, cutting the brake lines to lock up the brakes on the trailer, and law 11 enforcement officers already shooting at him as he left the Walmart parking lot moments 12 earlier; (7) Cockrum had crashed through two law enforcement vehicles to gain access to 13 the exit of the Walmart parking lot and continued to drag the trailer with locked up brakes 14 and flat tires towards the congested Nogales downtown and border crossing area. 15 Defendants assert that Chief Bermudez and Sgt. Gallego witnessed many of these events 16 and heard some information over the radio. 17 Defendants assert that Cockrum was committing dangerous felony flight in 18 violation of A.R.S. § 28-622.01(1) and allowing Cockrum to continue to travel on public 19 streets within City limits posed an imminent risk of death or serious bodily injury to persons 20 on or near city streets. Defendants assert that Gallego and Bermudez were aware through 21 radio communications of much of what had occurred with Cockrum prior to when he 22 entered Nogales, they were witnesses of what occurred as he travelled south on Grand 23 Avenue after exiting I-19 and then his actions in the Walmart parking lot and his further 24 actions as Cockrum dragged the trailer back onto Grand Avenue and headed towards 25 downtown Nogales. 26 Defendants assert that Plaintiff does not discuss the Graham factors or explain how 27 the constitutional questions are beyond debate. 28 Defendants argue that, at the time of the shooting, the evidence shows other vehicles - 15 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 16 of 43 1 in the vicinity of Cockrum's vehicle, the officers testified that the area south of the Walmart 2 on Grand, including downtown Nogales and the border crossing, was busy with pedestrian 3 and vehicular traffic around 1:50 p.m. on a weekday, the officers are familiar with this area 4 and able to speak to what would be normal amounts of expected traffic and pedestrians on 5 a normal day. Defendants assert that it was Cockrum's own refusal to yield to law 6 enforcement, his insistence on continuing his unlawful flight by ramming law enforcement 7 vehicles after passing through a fusillade of bullets (that Plaintiff does not dispute was 8 justified) only moments before the fatal shots on Grand Avenue, that forced the final 9 outcome, the truck was not disabled, and was pulling the trailer "like it was nothing," "like 10 it was a wagon tied to a car . . ." 11 Batriz described what occurred during this 90-second interval: 12 Um, the semi, I - like I said, I ran after the semi on foot thinking if he hits Sergeant (Bermudez)'s unit, it's gonna slow him — 13 — down. I'm gonna run-up to the driver's side and use lethal force 14 again to stop - stop the driver. That was my thought. I need to stop him from hitting more people or shooting again because I 15 thought he had shot.[4] It looked like he had shot from inside 16 the truck. He hits - he hits the patrol vehicle but at an angle. He doesn't hit it straight. He tried - he moved his truck out of the 17 way. But he catches it with the back end of the truck or the 18 trailer. I don't know exactly because of the angle that I had. He hits the unit and then proceeds north through the parking lot 19 and then makes another right turn on White Park Drive. At that 20 point, I had seen all the trailer - well the trailer didn't have air brakes. So it was, you know, the tires weren't – weren't 21 functioning right. There was . . . He's dragging the trailer, yes. 22 He's dragging it. It was actually positioned kind of weird when he turned towards White Park. The trailer wasn't moving 23 normally like it normally would. It wasn't turning. He was turning. The truck was turning. And the trailer was like — 24 — positioned oddly. I don't - I don't know how to describe it, but 25 the truck is basically facing east to west and the trailer is like north, northeast-ish. I don't know. It just didn't look right. It — 26 — didn't look like he had control of the trailer at all. He turns to — 27 — 28 4 As noted above, some officers mistakenly believed that Cockrum was shooting when other officers broke the drivers’ side window of the semitruck. - 16 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 17 of 43 1 White Park. I noticed Officer (Pimienta) drove up in his unit at this point. He yells at me to get back in the patrol car. I run 2 around the car, get in the passenger side again. We proceed after the vehicle. We turn to White Park, make the right turn. — 3 — At this point, the semi's already reaching White Park and Grand 4 and there was a red truck stopped at the red light in the turning lane, the left turning lane. He was going straight towards the — 5 — truck and I told Officer (Pimienta), "He's gonna hit that truck." 6 I didn't see any lights and sirens on the truck, so I assumed it was a civilian. We proceeded after the truck, the semitruck, and 7 I noticed that the tires, some of the tires were blown out. Ah, 8 we did see an officer. I think it was Officer - no, it was Officer (Rene Lechuga) on the corner of White Park and Grand. I told 9 Officer (Pimienta) to get close to the semi, but since Officer 10 (Lechuga) was pointing his rifle at the semi, we didn't want to have that crossfire. Officer (Pimienta) slowed down. The semi 11 passed, made another right turn on to Grand Avenue, and then 12 we proceeded after we saw that Officer (Lechuga) didn't shoot his weapon. We proceeded after the semi and there was high 13 traffic. The semi was blocking all of the southbound lanes 14 because of the trailer and how it was turning. So at that point, the chief's unit, Chief (Bermudez), made a turn into - onto 15 Grand Avenue, but on the northbound lanes to make its way towards the semi. I told Officer (Pimienta), "Follow, follow the — 16 — chief or the chief's unit," because we didn't see who was driving 17 to be honest. Well, I didn't. We followed through the northbound lanes. We we- weaved in and out of traffic and we — 18 — drove up clearing the – there's a center divider there on Grand 19 and White Park. We drove past it as the semi was parallel to us. We drove past the semi a bit and the - the center divider 20 into the median as a semi was approaching. We're passing that 21 same entrance he went into through the Walmart on Grand Avenue. Got off - I got off my patrol vehicle and I proceeded 22 to shoot into the driver's side door. I do remember seeing what 23 I thought was the driver's head on the driver's side window, partial - like a partial, the top of his head, I would say, from the 24 ear, the top of the ear up. And that's what gave me my target. I 25 shot at the door thinking I'm gonna shoot him on his - not center mass, but on his body, hopefully stopping this truck and, you 26 know, stopping any other further damage or any other harm to 27 any other civilians, possible, you know, danger to the public. That was my concern was the - him running over somebody or 28 hitting a car or hurting somebody, a civilian. - 17 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 18 of 43 1 (Doc. 88-1 at 69-70.) Defendants assert that the 90-second period between when Cockrum 2 began pulling out of the Walmart and the first shots were fired, and when the shots were 3 fired on Grand Avenue was a rapidly evolving chaotic maelstrom as officers rushed to 4 contain the threat Cockrum created. 5 b. Arguments related to Bermudez and Bunting 6 The Parties cross-move for summary judgment as to the excessive force claims 7 asserted against Bermudez and Bunting in Count One. 8 Plaintiff argues that she is entitled to summary judgment against Defendants 9 Bermudez and Bunting on the excessive force claim because Officers Bunting and 10 Bermudez were not in fear for their safety, they fired their weapons from the side, chased 11 after a fleeing Mr. Cockrum in the moment before shooting, and raced ahead of Mr. 12 Cockrum's lumbering truck with the goal of staging themselves for a shootout. Plaintiff 13 asserts that although Bermudez and Bunting explained to investigators that they primarily 14 feared for the safety of civilians who may come into contact with Mr. Cockrum and his 15 large truck, they did not identify a single pedestrian or civilian vehicle that was in the path 16 of Mr. Cockrum's southbound truck along Grand Avenue, which is a speculative danger 17 that cannot serve as the basis for deadly force under the Fourth Amendment. 18 Plaintiff further argues that Cockrum's past actions could not be used to justify the 19 deadly force and that "all the evidence available to Detective Bunting and Chief Bermudez 20 suggested that Mr. Cockrum intended no harm with his truck and that he merely wished to 21 escape the grasp of the pursuing officers." Plaintiff asserts that Cockrum "was accused 22 merely of flashing a knife earlier in the day, at a distance from the individuals who 23 perceived a threat. . . . at least one of the knives had been discarded while Mr. Cockrum 24 was traveling along the interstate, long before he reached the location where officers 25 opened fire on him [and] [o]fficers knew this fact before the shooting began." Plaintiff 26 asserts that the large number of pedestrians that officers were originally concerned about 27 in the Walmart Parking Lot were non-existent on Grand Avenue (a four-lane highway), 28 there were also no civilian vehicles traveling in the immediate vicinity of Mr. Cockrum in - 18 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 19 of 43 1 the two southbound lanes, Mr. Cockrum's truck was traveling slowly along Grand Avenue, 2 with the brakes of the trailer fully engaged and forcing the trailer to essentially drag along 3 the pavement, and any theoretical threat to civilians that may have existed along Grand 4 Avenue had been eliminated by Detective Bunting's 28 shots just seconds before Chief 5 Bermudez opened fire. 6 Plaintiff claims that Chief Bermudez started firing after Detective Bunting 7 independently perceived that his own gunshots were "effective" at reducing the speed of 8 Mr. Cockrum's truck and even if Detective Bunting had reasonably perceived a threat in 9 the moment that he fired his 28 shots, Plaintiff is still entitled to judgment with regard to 10 the reasonableness of Chief Bermudez's 13 gunshots. 11 In Response, Defendants argue that responding with deadly force to the threat 12 Cockrum posed was not a Fourth Amendment violation and the law is not clearly 13 established that any actions against Cockrum violated the Fourth Amendment. Defendants 14 assert that Cockrum's encounter with law enforcement began with him threatening a 15 civilian and a deputy with a knife, he then led law enforcement officers from three different 16 agencies (Santa Cruz County Sheriff's Department, Border Patrol, and Department of 17 Public Safety) on a several mile chase on northbound I-19 to the border patrol checkpoint 18 where he almost ran over a Border Patrol agent and a Sheriff's Department detective while 19 turning around in the median to head southbound on I-19, where he sped through a 20 construction zone, and bypassed patrol cars blocking access to the city of Nogales, then 21 drove recklessly on Nogales city streets, running red lights and reaching speeds as high as 22 55 mph before turning abruptly into a Walmart parking lot where he struck a curb and then 23 parked in front of the store. Defendants assert that Cockrum pulled the blackout curtains 24 inside the cab of the truck to prevent officers from seeing what he was doing inside; 25 Officers yelled at Cockrum to get out of the truck and tried to open the driver's side door, 26 but it was locked; other officers cut the air hose between the truck and the trailer locking 27 the trailer brakes and placed a spike strip in front of the trailer's tires in an effort to disable 28 the vehicle; other officers tried to break a window in the back of the truck and deploy a - 19 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 20 of 43 1 flashbang distraction device, but before they could complete their attempt, Cockrum began 2 heading for the exit through the busy parking lot. 3 Defendants assert that at this point, officers opened fire to attempt to stop the vehicle 4 from continuing, and it appeared to some of the officers that Cockrum was shooting at them 5 from inside the vehicle as the windows shattered from other officers' shots, but even with 6 the trailer brakes locked and multiple tires flat, Cockrum continued towards the exit, 7 ramming two police vehicles placed there to block the semi and pushing them out of the 8 way, other vehicles swerved to avoid a collision as Cockrum proceeded back towards 9 Grand Avenue, heading south towards the center of Nogales and the congested border 10 crossing area. Defendants assert that Bunting, Bermudez, Gallego, Batriz, and Pimienta 11 traveled down Grand Avenue and stationed themselves in front of Cockrum's semi, exited 12 their vehicles and took up positions where they could fire at the semi with a hill behind it 13 as a safe backstop. Bunting, Gallego and Batriz had rifles, and they and Chief Bermudez 14 all began firing at approximately the same time, Chief Bermudez with a pistol. Officer 15 Pimienta also had a pistol and waited slightly longer before he began firing, but all of the 16 law enforcement officers stopped firing at approximately the same time, as the semi finally 17 stopped. 18 Defendants assert that Cockrum's actions threatened to harm civilians in the area 19 demonstrated by his refusal to stop his eighteen wheel semi trailer truck and his 20 demonstrated willingness to ram vehicles out of his way so he could continue his 21 determined and sustained attempts to evade arrest by flight even after multiple efforts by 22 law enforcement to stop and disable his vehicle. Defendants assert that Plaintiff is incorrect 23 that Cockrum drove at or below the speed limit as he exceeded the speed limit through 24 construction zones on I-19 and in Nogales City limits, and he also ran stop lights, rammed 25 patrol vehicles, and refused to stop for law enforcement officers. Defendants assert that 26 Cockrum dragging a trailer with locked brakes and flat tires after being shot at and having 27 to ram patrol vehicles out of the way to exit the Walmart parking lot demonstrated that he 28 was undeterred by efforts to stop him and remained determined to avoid law enforcement - 20 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 21 of 43 1 at all costs, showing the level of threat he presented to officers and the public. 2 Defendants assert that Plaintiff's theory that Chief Bermudez may still be liable even 3 if Detective Bunting is not is based on the false premise that Detective Bunting fired first, 4 and had stopped firing and the truck had come to rest before Chief Bermudez or any of the 5 Nogales officers began firing, but there is no evidence to support such a claim, and Plaintiff 6 cites the interview transcript of Detective Bunting to support this claim, but the transcript 7 only states that Detective Bunting did not hear the other officers firing until after he stopped 8 firing himself, which is not evidence of when Bermudez started shooting. Defendants 9 assert that Pimienta described Bunting, Bermudez, Batriz, and Gallego all shooting at the 10 same time, with himself beginning to shoot shortly after the rest of them and Chief 11 Bermudez stated in his Declaration: "I stopped firing when the truck stopped moving" and 12 Gallego testified that "Once the semi stopped, all shooting ceased." (Doc. 79-1 at 6; 79-3 13 at 7.) 14 Defendants further assert that the expert report commissioned by the Santa Cruz 15 County Sheriff's Office Defendants concluded that all three law enforcement officers who 16 were firing rifles, Bunting, Batriz, and Gallego, were standing in similar locations, and 17 engaged the truck in similar locations as it came towards them, all beginning to fire at 18 around the same time, and terminating their fire at approximately the same time, based on 19 the locations of bullet holes in the truck caused by rifles. That report concluded that rifle 20 shooters who were positioned north of the truck (as it passed by) did not continue to shoot 21 into the truck from behind the driver's door area. Defendants additionally assert that the 22 video submitted by Plaintiff shows officers firing as the truck comes to a stop, with all 23 shots stopping within a couple of seconds of the truck coming to a complete stop.5 24 Accordingly, Defendants assert that the evidence confirms that all of the officers fired 25 within seconds of each other, and all terminated their fire within 2-3 seconds of the semi 26 coming to a complete stop, and there is no evidence of two separate volleys or a separate — 27 — — 28 — — 5 — The video submitted by Plaintiff confirms this. - 21 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 22 of 43 1 volley after the semi came to a stop and Cockrum gave up; rather the video shows officers 2 running over to the semi and removing Cockrum within seconds of the shots ceasing. 3 With regard to Bunting,6 Defendants assert that Bunting personally observed what 4 he reasonably believed was Cockrum's attempt to run down a United States Border Patrol 5 agent on Interstate 19 at the checkpoint, and he observed Cockrum run red lights on city 6 streets while driving a large, heavy semitruck with trailer, and Cockrum smash through 7 NPD vehicles "like nothing" to escape the Walmart parking lot. Bunting asserts that 8 Cockrum posed a continuous and immediate threat to the community and Plaintiff's 9 argument that Detective Bunting could not "identify a single pedestrian or civilian vehicle 10 that was in the path of Mr. Cockrum's southbound truck along Grand Avenue" is 11 misleading because even if there were not vehicles in view in the southbound lanes of 12 travel, there were vehicles in the northbound lanes of travel, and there is no raised median 13 or barrier separating the southbound and northbound travel lanes. 14 Bunting asserts that officers employed a variety of less-lethal means to attempt to 15 stop Cockrum's rampage, including Deputy Soto's first attempt to make peaceful contact, 16 only for Cockrum to draw a knife and make a throat slitting motion, Officers used flashing 17 lights and sirens to attempt to have Cockrum pull over and surrender, Border Patrol agents 18 threw down stop sticks to puncture Cockrum's tires, Detective Ainza shot at Cockrum's 19 tires to deflate them, NPD officers threw up roadblocks on the Interstate 19 exit ramps that 20 Cockrum ignored, Officers in the Walmart parking lot cut the air hoses and attempted to 21 toss a non-lethal stun grenade into Cockrum's cab, but none of these measures succeeded 22 at stopping Cockrum. Bunting asserts that he ordered Cockrum to stop, but Cockrum did 23 not stop, and after Bunting caught up with Cockrum on Grand Avenue, Bunting drove — 24 — — 25 — — 6 — Defendants assert an alternate argument that Cockrum was never “seized” by 26 Bunting within the meaning of the Fourth Amendment because none of his shots ever hit 27 Cockrum. There is no dispute that Bunting fired into Cockrum’s vehicle. As such, there is a disputed issue of material fact as to whether any of Bunting’s shots hit Cockrum. 28 Because the Court decides the Motion on other bases, the Court will not further discuss this argument herein. - 22 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 23 of 43 1 ahead of him, exited his marked Santa Cruz County Sheriff's Office vehicle, and stood 2 where Cockrum could see him, put his hand up and said "Stop. Police." But Cockrum still 3 did not stop. Defendants assert that Detective Bunting waited to shoot until he knew he 4 had a safe backdrop that would not expose other officers or civilians to his shots, and he 5 acted reasonably and there is no clearly established law demonstrating that Bunting did not 6 act reasonably. 7 Bunting asserts that in assessing the Graham factors, only the first factor regarding 8 the amount of force inflicted would favor Plaintiff, but the remaining factors favor 9 Defendant Bunting because Cockrum committed multiple acts of aggravated assault by 10 brandishing a knife at H&M Distributor employees and then again at Deputy Soto in the 11 Malena Produce parking lot, he engaged in felony flight from a law enforcement vehicle 12 and committed reckless endangerment by swerving his truck towards Corporal Flores while 13 leaving Malena Produce, by nearly striking a Border Patrol agent at the Border Patrol 14 checkpoint, and by smashing police vehicles out of his way in a crowded Walmart parking 15 lot, Detective Bunting heard about the incident at Malena Produce over the radio, and 16 personally observed Cockrum at the Border Patrol checkpoint, down Interstate 19, at the 17 Walmart parking lot, and on Grand Avenue. Detective Bunting observed Cockrum 18 continuing to drive his large tractor-trailer down Grand Avenue, he saw Cockrum drive his 19 vehicle through two NPD SUVs even after officers took steps to disable Cockrum's vehicle, 20 and he gave clear, unambiguous commands to Cockrum to stop, but Cockrum continued 21 driving forward. 22 Defendants assert that with these facts, it was reasonable for Detective Bunting to 23 conclude Cockrum posed an imminent threat to the public, thus justifying the use of deadly 24 force. 25 In Response, Plaintiff asserts that several of Cockrum's "supposed dangerous 26 crimes" took place as much as 67 minutes before Bunting made the considered decision to 27 use deadly force, and Detective Bunting knew that Mr. Cockrum had a knife, but didn't 28 "know how the knife was involved," Bunting did not know about the near-collision with - 23 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 24 of 43 1 Deputy Flores, and the two police vehicles that Cockrum smashed into were unoccupied 2 and Cockrum hit them "only after Nogales police officers opened fire upon him and 3 intentionally placed the vehicles in his way." 4 In Reply, Bunting asserts he knew Cockrum barricaded himself with a knife before 5 fleeing, he observed Cockrum illegally turning through a median and believed Cockrum 6 struck a Border Patrol agent, he followed Cockrum's felony flight from law enforcement, 7 dodging around NPD vehicles, and running red lights and smashing through two other NPD 8 vehicles "like nothing" after less than lethal attempts to stop him failed. Bunting asserts 9 that there were motorists present in the northbound lanes on Grand Avenue as Cockrum 10 proceeded southbound and Bunting reasonably concluded Cockrum was an immediate 11 threat because the weight of the truck was more than sufficient to push through police 12 SUVs "like nothing" even after officers cut air lines and deployed spike strips, and Bunting 13 knows the busy nature of Downtown Nogales based on his own personal experience as a 14 19-year veteran of the Santa Cruz County Sheriff's Office, an area that geographically 15 includes Nogales. As a result, Detective Bunting asserts that his actions did not violate 16 Cockrum's Fourth Amendment rights. 17 c. Whether the Law was Clearly Established 18 i. Arguments 19 Plaintiff argues that the law was clearly established that the officers could not shoot 20 when they did and relies on Orn v. City of Tacoma, 949 F.3d 1167 , 1178 (9th Cir. 2020) 21 for the proposition that "an officer lacks an objectively reasonable basis for believing that 22 his own safety is at risk when firing into the side or rear of a vehicle moving away from 23 him" and asserts "[t]hat is precisely what happened here." Plaintiff asserts that each officer 24 raced ahead of Mr. Cockrum's truck with the goal of staging himself for a shootout and 25 stood 12-15 feet to the east of the truck while it was traveling southbound. Plaintiff also 26 cites Adams v. Speers, 473 F.3d 989, 992 (9th Cir. 2007), Villanueva, 986 F.3d at 1172, 27 and Acosta v. City & County of San Francisco, 83 F.3d 1143, 1148 (9th Cir. 1996) to 28 support her contention that the law was clearly established that the officers could not shoot - 24 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 25 of 43 1 at Cockrum when they did. Plaintiff further argues that to the extent that Defendants 2 Bermudez, Batriz, Gallego, and Pimienta relied on Mr. Cockrum's past actions to predict 3 how he might behave toward civilians, such reliance was unreasonable pursuant to A.D. v. 4 California Highway Patrol, 712 F.3d 446, 451 (9th Cir. 2013), which held that officers 5 cannot use deadly force to neutralize a future threat. Plaintiff asserts that there is no 6 indication that there were any oncoming cars at either of the two intersections at which Mr. 7 Cockrum ignored the red lights, he obeyed at least one red light during the same time 8 period, on Grand Avenue, he never exceeded 40 mph, and he maneuvered around a 9 roadblock instead of going through it. Plaintiff further asserts that Defendant Bermudez 10 "had no idea what had transpired" before he returned to his patrol vehicle from his lunch 11 break and Defendant Pimienta was unaware that Mr. Cockrum had brandished a knife at 12 the produce warehouse an hour earlier. Plaintiff asserts that the evidence shows that the 13 officers were not motivated by public safety at the time of the shooting because Cockrum's 14 truck was moving very slowly, and Pimienta knew the truck was not in gear and that it was 15 dragging a trailer. Plaintiff further asserts that the officers did not spot a single pedestrian 16 along Grand Avenue at the time they opened fire, and Cockrum was 3.2 miles away from 17 the central business district where there were generally pedestrians, but the Defendant 18 officers did not possess "real-time information about the presence or absence of pedestrians 19 located more than three miles away." 20 Plaintiff argues that even if Defendants had identified specific pedestrians in Mr. 21 Cockrum's immediate path and even if a reasonable jury were to treat Mr. Cockrum's 22 "badly-hobbled truck as a weapon," the "mere possession of a weapon is insufficient to 23 justify the use of deadly force" under Estate of Lopez by & through Lopez v. Gelhaus, 871 24 F.3d 998, 1013 (9th Cir. 2017) and Tan Lam v. City of Los Banos, 976 F.3d 986 , 1001 (9th 25 Cir. 2020). 26 Plaintiff further asserts that Pimienta radioed to request authorization for deadly 27 force five minutes prior to shooting, but never received a response and Bermudez, who had 28 "no idea" what Cockrum did, thought to himself "that truck needed to be stopped at all - 25 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 26 of 43 1 costs." 2 Plaintiff further argues that while there exists clearly-applicable Ninth Circuit 3 caselaw, this case may additionally fall within that narrow class of circumstances in which 4 a constitutional right is deemed to be clearly established even without a body of relevant 5 case law. 6 Plaintiff asserts that every circuit to have considered a Fourth Amendment claim 7 against an officer firing into a slow-moving vehicle from the side has found a constitutional 8 violation (citing Smith v. Cupp, 430 F.3d 766, 774 (6th Cir. 2005); Cowan ex rel. Estate of 9 Cooper v. Breen, 352 F.3d 756, 763 (2d Cir. 2003); Abraham v. Raso, 183 F.3d 279 , 293– 10 94 (3d Cir. 1999); Cordova v. Aragon, 569 F.3d 1183, 1195 (10th Cir. 2009); Williams v. 11 Strickland, 917 F.3d 763, 770 (4th Cir. 2019)). 12 Defendants argue that the cases cited by Plaintiff to establish that the constitutional 13 right was clearly established are clearly distinguishable from the facts of this case. 14 Defendants assert that the Supreme Court has never found the use of deadly force in 15 connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a 16 basis for denying qualified immunity. They argue that there is no case from the Ninth 17 Circuit or Supreme Court that clearly establishes a constitutional violation under facts 18 analogous to those faced by Defendants: where a suspect who had committed multiple 19 felonies, refused to stop for law enforcement, plowed through two law enforcement 20 vehicles, and despite clear instruction to stop by Detective Bunting, continued to barrel 21 onward in a tractor-trailer toward a downtown area and the US-Mexico border, 22 endangering the public. 23 Plaintiff asserts that the Ninth Circuit regularly finds that officers act unreasonably 24 in shooting at motorists who are actively fleeing, and here Mr. Cockrum's truck was 25 incapable of engaging in a high-speed chase because its trailer had been disabled. 26 ii. Discussion 27 Plaintiff has not met her burden of showing that the law was clearly established such 28 that the officers knowingly violated the Fourth Amendment when they shot at Cockrum - 26 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 27 of 43 1 and his eighteen wheel semi-trailer truck as it attempted to exit the Walmart parking lot. 2 The cases cited by Plaintiff are simply too attenuated to demonstrate that the law was 3 clearly established. 4 "The [Supreme] Court has . . . never found the use of deadly force in connection 5 with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for 6 denying qualified immunity." Mullenix v. Luna, 577 U.S. 7 , 13–15 (2015). 7 In Villanueva, police officers in an unmarked police car observed a pickup truck 8 performing an illegal maneuver in a parking lot at 10:35 p.m., and the officers entered the 9 parking lot with the intention of performing a stop. 986 F.3d at 1163. The unmarked police 10 car had amber lights and an unusual siren and when the officers pursued the pickup truck, 11 the pickup truck driver exited the parking lot at a speed that did not "feel fast." Id. Still 12 being pursued by the unmarked police car, the driver of the truck drove 50 to 70 miles per 13 hour on surface streets and ran at least three red lights. (Id.) The pickup truck then entered 14 a dead end street and came to a stop. Id. The police officers exited their vehicle and drew 15 their firearms; one stood near the open driver's side door of the police car and the other 16 stood near the open passenger's door. (Id.) At the same time, the driver of the pickup 17 attempted to reverse out of the street in a three-point turn that resulted in the rear of his 18 vehicle pointing toward a dead-end and the front generally facing the officers, who were 19 approximately 15 to 20 feet away. Id. The officers then opened fire on the vehicle and 20 shouted a warning of some kind at the same time or within a second of firing. Id. The 21 shots killed the driver and injured the passenger. Id. 22 The Ninth Circuit Court of Appeals found that the police officers were not entitled 23 to qualified immunity because it was "clearly established that an officer violates a person's 24 constitutional rights by shooting at a slow-moving vehicle that the officer could reasonably 25 have side-stepped to remove himself from danger." Id. at 1173. 26 Villanueva is distinguishable from the facts before the Court. The driver in 27 Villanueva was merely performing an illegal driving maneuver in a parking lot, was not 28 driving a large eighteen wheeled semi trailer truck, possibly did not know he was being - 27 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 28 of 43 1 pursued by a police vehicle, and the police in Villanueva gave no warnings or orders prior 2 to shooting and made no other attempts to stop the vehicle prior to opening fire. While the 3 emphasis in Villanueva was placed on the vehicle being a slow-moving car, it did not 4 involve an eighteen wheel semitruck pulling a large trailer, which even at slower speeds 5 poses more danger than a pickup truck. And there was no argument in Villanueva that the 6 driver posed a risk to the general public, especially where officers tried nothing but deadly 7 force to stop the pickup truck, which was entirely blocked by police cars. 8 Here, officers attempted to stop Cockrum and the semitruck on several occasions 9 and in various ways, but Cockrum showed a reckless disregard for the lives of the officers 10 and the public as he drove through the police vehicles that attempted to block his path. 11 Moreover, at the time the officers used deadly force on Cockrum, he was driving his 12 semitruck onto a road where there were other vehicles, and it was the middle of the day 13 where other motorists were expected to be at that time. The Villanueva Court noted "we 14 have found use of deadly force against a stopped or slow-moving vehicle reasonable only 15 when the driver was trying to evade arrest in an aggressive manner involving attempted or 16 actual acceleration of the vehicle." Id. at 1170. Here, Cockrum was trying to evade arrest 17 in an aggressive manner and, although the police themselves had slowed the semitruck 18 down to some degree by disabling the trailer, but not disabling the truck itself, Cockrum 19 was nonetheless still aggressively driving through police cars in an attempt to evade arrest. 20 Plaintiff's arguments that the police could not use deadly force until the moment 21 Cockrum was going to kill a pedestrian are likewise not supported by the case law. Indeed, 22 the Supreme Court has recognized an open question as to whether an imminent, but not 23 immediate, threat to members of the public or to police officers could support the use of 24 deadly force. Mullenix, 577 U.S. at 14 (discussing cases and noting "[t]he threat [a driver 25 who was engaged in a high speed chase and threatened to kill police officers] posed was at 26 least as immediate as that presented by a suspect who had just begun to drive off and was 27 headed only in the general direction of officers and bystanders"); see also Monzon, 978 28 F.3d at 1161 ("While Plumhoff may instruct us that Monzon's reckless, high-speed driving - 28 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 29 of 43 1 posed a severe enough threat to public safety to itself justify the use of deadly force, we 2 need not reach that issue because here the use of deadly force was reasonable to protect the 3 officers whose lives were threatened by the accelerating van."). 4 In Plumhoff, officers pulled over a driver for a headlight violation near midnight and 5 observed that he seemed nervous. 572 U.S. at 768. Rather than produce his driver's license 6 at the officer's request, the driver sped away and, during the police chase, the driver 7 exceeded speeds of 100 miles per hour and passed more than two dozen vehicles. Id. at 8 769. The driver, while exiting the freeway, hit one of the police cruisers, which caused 9 him to spin into another police cruiser. Id. The driver attempted to reverse and accelerate 10 his vehicle, but his car was stuck to the bumper of a police cruiser. Id. Two officers 11 approached him with weapons drawn and one officer pounded on the passenger side 12 window. Id. The driver then "made contact" with another police cruiser and the wheels of 13 the vehicle were spinning and it was rocking back and forth, although it was still stuck. Id. 14 One officer then fired three shots into the vehicle and, at that point, the driver was able to 15 pull away, causing an officer to step out of the way of his vehicle. Id. As the driver sped 16 away, the officers fired 12 shots into his car, causing the driver to crash into a building. Id. 17 The United States Supreme Court found that the shooting was reasonable, reasoning 18 "[u]nder the circumstances at the moment when the shots were fired, all that a reasonable 19 police officer could have concluded was that [the driver] was intent on resuming his flight 20 and that, if he was allowed to do so, he would once again pose a deadly threat for others 21 on the road. [The driver's] conduct even after the shots were fired—as noted, he 22 managed to drive away despite the efforts of the police to block his path—underscores 23 the point." Id. at 776–77 (emphasis added). The Court further stated that the number of 24 shots fired was reasonable because "if police officers are justified in firing at a suspect in 25 order to end a severe threat to public safety, the officers need not stop shooting until the 26 threat has ended." Id. at 777. 27 The Tenth Circuit's decision in Cordova is the case that is most supportive of 28 Plaintiff's position that a police officer may not use the deadly force of a gun to stop an - 29 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 30 of 43 1 imminent, but not immediate, threat to the public.7 But, Cordova is simply not enough to 2 demonstrate that the law was clearly established for several reasons. First, Cordova was 3 decided before Plumhoff and its reasoning, at least as it pertains to the situation before this 4 Court, is inconsistent with the reasoning in Plumhoff. Compare Plumhoff, 572 U.S. at 779 5 ("the officers here shot at [the driver] to put an end to what had already been a lengthy, 6 high-speed pursuit that indisputably posed a danger both to the officers involved and to 7 any civilians who happened to be nearby") with Cordova v. Aragon, 569 F.3d 1183 , 1190 8 (10th Cir. 2009) ("To the extent that the district court held that the hypothetical risk Mr. 9 Cordova posed to fellow motorists who might happen along was itself enough to render 10 the shooting reasonable, it was in error. The threat must have been more than a mere 11 possibility. The facts show that Mr. Cordova was driving recklessly down the wrong side 12 of the highway. The facts do not, however, show that any other motorists were in the 13 vicinity, or that other motorists would not be able to spot Mr. Cordova and avoid an 14 accident themselves. Mr. Cordova's behavior did, of course, create risks for other motorists 15 who might come along, but that risk of future harm was not enough to justify the near 16 certainty of Mr. Cordova's death."). 17 Moreover, even if Cordova did find that a pedestrian or officer must be facing 18 immediate, but not imminent danger before a police officer may use a gun in a way that 19 may inflict deadly force, Cordova is an out-of-circuit case and cannot be said to constitute 20 the "weight of authority" necessary to show that a right is clearly established. See Plumhoff 21 at 778 (for a right to be clearly established, a Plaintiff must show "controlling authority or 22 a robust consensus of cases of persuasive authority") (citation and quotation marks — 23 — — 24 — — 25 — — 7 — In Cordova, the court, having found a constitutional violation nonetheless granted 26 qualified immunity to the defendant officer on the ground that the right at issue was not 27 clearly established. Cordova, 569 F.3d at 1192–93 (“Given that our precedent does authorize the use of deadly force when a fleeing suspect poses a threat of serious harm to 28 others, Officer Aragon was not unreasonable in believing that a potential threat to third parties would justify such a level of force.”). - 30 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 31 of 43 1 omitted).8 2 In A.D. v. California Highway Patrol, the Ninth Circuit Court of Appeals found 3 that it was clearly established that "a police officer who acted with the purpose to harm a 4 civilian, unrelated to the legitimate law enforcement objectives of arrest, self-defense, or 5 the defense of others, violated the Fourteenth Amendment due process clause." 712 F.3d 6 446, 451 (9th Cir. 2013). In A.D., officers were pursuing a stolen vehicle at 2:00 a.m.; the 7 driver of the vehicle was driving on a freeway without headlights at high speeds. Id. 8 Eventually, the driver of the vehicle encountered a dead end. Id. Police cars surrounded 9 the vehicle and the driver of the stolen car backed into one of the police cars, drove forward 10 and stopped. Id. A police officer ordered the driver to stop, but she responded "fuck you," 11 and rammed the police car two more times. Id. A supervisor ordered all officers onto the 12 sidewalk on the same side of the street, but one of the officers ignored the order, and opened 13 fire on the driver of the stolen car. Id. The supervisor ordered him to stop, but he continued 14 to fire 12 rounds through the passenger side window killing the driver. Id. In A.D., unlike 15 here, there was no dispute that the driver of the stolen car was "contained on the street" 16 posing no threat to the public, there was no threat of harm to any of the officers, no threat 17 that at the moment of the shooting, the driver intended to continue, and other officers did 18 not perceive a threat when the shooting commenced. Id. 19 In Orn v. City of Tacoma, police officers attempted to pull a driver over for driving 20 without headlights, but the driver, who had a suspended license and had just smoked crack 21 cocaine, ignored the signals for him to pull over and proceeded to drive home. 949 F.3d 22 1167, 1171–72 (9th Cir. 2020). On the way home, the driver drove 25 to 35 miles per hour 23 and obeyed traffic lights and stop signs. Id. at 1172 . During the pursuit, several officers — 24 — — 25 — — 8 — The Court has reviewed the other out-of-circuit cases cites by Plaintiff: Smith v. 26 Cupp, 430 F.3d 766, 774 (6th Cir. 2005), Cowan ex rel. Estate of Cooper v. Breen, 352 27 F.3d 756, 763 (2d Cir. 2003), Abraham v. Raso, 183 F.3d 279, 293-94 (3d Cir. 1999), and Williams v. Strickland, 917 F.3d 763, 770 (4th Cir. 2019), but the facts of those cases are 28 so dissimilar to the case before the Court they cannot be considered a robust consensus of cases of persuasive authority. - 31 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 32 of 43 1 unsuccessfully attempted to box the driver in, and when the officers attempted to block his 2 path, the driver drove onto a curb and a partially closed road to avoid them, and when the 3 officers laid spike strips, he drove into the lane of oncoming traffic, though no other traffic 4 was present when he did this. Id. When the driver reached his apartment complex, 5 followed by other police vehicles, he noticed that a police SUV was blocking the exit. Id. 6 He came to a brief stop and the officer driving the vehicle that was blocking the exit stood 7 on the grassy area to the left of his SUV as the driver approached, and the officer had his 8 gun drawn with the barrel pointed toward the ground and repeatedly yelled at the driver to 9 stop. Id. Rather than heed the command to stop, the driver attempted to squeeze past the 10 police SUV by driving onto the grass at about 5 miles per hour. Id. at 1172. As he made 11 this attempt, another officer drove behind the SUV to prevent the escape, and the driver 12 turned more, coming into contact with the initial SUV and the second police car blocking 13 his path. Id. The officer who had been standing outside his vehicle then ran toward the 14 driver's vehicle on the passenger side and fired three rounds, striking the driver in the spine 15 causing his body to slump forward and the car began to speed away, at which point the 16 officer fired seven more rounds through the rear windshield. Id. 17 The Orn Court noted that the Supreme Court has held that "[a]n officer may use 18 deadly force to apprehend a fleeing suspect only if the officer has probable cause to believe 19 that the suspect poses a threat of serious physical harm, either to the officer or to others 20 [and] [a] suspect may pose such a threat if there is probable cause to believe that he has 21 committed a crime involving the infliction or threatened infliction of serious physical harm, 22 or if the suspect threatens the officer or others with a weapon capable of inflicting such 23 harm." Id. at 1174 (citation omitted). The Court noted that in cases where the Supreme 24 Court found that deadly force was permissible in the context of a car chase, "the suspect's 25 conduct before the shooting demonstrated that he was likely to continue to threaten the 26 lives of those around him in his attempt to escape." Id. at 1180 (citation omitted). In Orn, 27 there was never any suggestion that the driver posed any threat to the public, and there 28 were disputed issues of fact as to whether the officer was ever threatened by the slow - 32 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 33 of 43 1 driving. Id. The Court recognized that "[b]y the time of the shooting in October 2011, at 2 least seven circuits had held that an officer lacks an objectively reasonable basis for 3 believing that his own safety is at risk when firing into the side or rear of a vehicle moving 4 away from him," and there was a question of material fact whether the driver posed any 5 threat to the officer before the shooting. Id. at 1178. The Orn Court noted, however, that 6 "[o]fficers may use deadly force to halt the flight (or continued flight) of a motorist who 7 they reasonably believe will pose a deadly threat to the lives of pedestrians or other 8 motorists." Id. at 1180. 9 Here, unlike in Orn, Cockrum's leading the police on a chase of a semi truck 10 involving high speeds, during the day, toward a populated Walmart parking lot after having 11 threatened a warehouse employee and a police officer, nearly running a border patrol 12 officer over, and continuing to drive onto a populated freeway while striking police 13 vehicles posed an imminent threat to other drivers and members of the public. The driver 14 in Orn had not committed any serious crime and had not posed any danger to the public 15 through his driving. The facts of Orn and the reasoning of the Court are simply too 16 different to have clearly established that the force used in this case was unacceptable. 17 In Adams v. Speers, a teenager was driving through the country in the afternoon and 18 ran several stop signs. 473 F.3d 989 , 991 (9th Cir. 2007). An officer signaled for the 19 teenager to pull over, but the teenager ignored the signal and continued to drive at a 20 leisurely pace, while waving at acquaintances. (Id.) Other officers joined the pursuit and 21 one of these officers, without conveying his intentions to other officers, rammed the 22 teenager's vehicle. (Id.) When that did not work, the rogue officer successfully rammed 23 the vehicle, but both the rogue officer and teenager were able to keep driving Id. As the 24 teenager attempted to execute a U-turn, the rogue officer "cut through the divider and 25 rammed the left rear of [the teenager's] vehicle with sufficient force to knock it off the 26 shoulder of the road and down into a sandy embankment or ditch where it came to rest." 27 Id. Patrol cars then surrounded the teenager's vehicle, preventing escape, and the teenager 28 began to slowly inch the vehicle into a turn. Id. Another officer approached the vehicle, - 33 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 34 of 43 1 broke the window with a baton and was planning to pepper spray the driver, when the rogue 2 officer drew his service weapon without warning and fired six rounds, killing the teenager. 3 Id. The Circuit held that the right was clearly established because "the absence of warning 4 and the lack of danger to the shooter or others distinguish the case from Cole, Smith, and 5 Brosseau." Id. at 994. Unlike in this case, the teenager in Adams posed no threat to anyone, 6 had no opportunity to escape, no alternatives were used although one officer was already 7 carrying out an alternative that did not require lethal force, no warning was given prior to 8 the shooting, and the other officers at the scene did not perceive the threat. 9 Acosta v. San Francisco bears little resemblance to the facts of this case. In Acosta, 10 a police officer shot into a car, killing the driver, after the officer witnessed what he 11 believed to be a mugging. 83 F.3d 1143, 1144 (9th Cir. 1996). There was no suggestion 12 that the driver or the car were a threat to the general public, and the Court solely decided 13 whether the officer could claim that he was threatened when he positioned himself in front 14 of the slow moving vehicle and began shooting on the mere suspicion that some of the 15 occupants had been involved in a mugging. Id. 16 Here, there is no dispute that the Defendant officers used deadly force, which is "the 17 greatest degree of force possible," and the "most severe intrusion on . . . Fourth Amendment 18 rights." Tan Lam v. City of Los Banos, 976 F.3d 986 , 997–98 (9th Cir. 2020). "When 19 evaluating the government's interest, the most important factor is whether the person posed 20 an immediate threat to the safety of the officer or another." Id. at 998 . Although Plaintiff 21 argues that Cockrum did not pose an immediate threat to anyone in particular, Cockrum's 22 actions throughout the day, and his driving a large eighteen wheel semi trailer truck with a 23 dangerously disabled trailer into traffic in the middle of the day toward another populated 24 area continued to pose a threat to the public. 25 Accordingly, the Court cannot find that it was clearly established such that every 26 reasonable officer would have understood that lethal force could not be used to stop 27 Cockrum from continuing to drive his eighteen-wheel semi trailer truck under the 28 circumstances of this case. Moreover, the officers tried various alternatives to firing their - 34 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 35 of 43 1 weapons, including erecting roadblocks, which Cockrum drove through, and the officers 2 attempted to disable Cockrum's vehicle, but he nonetheless continued to engage in 3 extremely dangerous behavior in his large vehicle and was intent on resuming his flight. 4 The officers likewise gave orders to stop and warnings before firing. See Marquez v. City 5 of Phx., 693 F.3d 1167, 1175 (9th Cir. 2012) ("if the officer warned the offender that he 6 would employ force, but the suspect refused to comply, the government has an increased 7 interest in the use of force."). Although Plaintiff argues that the number of shots exceeded 8 the force necessary, the facts of this case do not support this contention and are readily 9 distinguishable from cases where the officer continued to shoot after it was indisputably 10 clear that the threat had ended. Here, there is no evidence that any officer continued to 11 shoot after it was indisputably clear that the threat had ended and it is not clearly established 12 that the number of shots fired violated the Fourth Amendment. See Wilkinson v. Torres, — 13 — 610 F.3d 546 , 552–53 (9th Cir. 2010) ("To the extent that Cowan requires an officer to 14 reevaluate whether a deadly threat has been eliminated after each shot, we disagree that it 15 should be applied in the circumstances of this case. Such a requirement places additional 16 risk on the officer not required by the Constitution."). 17 For all of the foregoing reasons, Plaintiff has not met her burden of showing that the 18 officers' actions, under the circumstances of this case, were in clear violation of the Fourth 19 Amendment, and the Court will grant qualified immunity in favor of the Defendant officers 20 as to the Fourth Amendment excessive force claim. 21 B. Fourth Amendment Failure to Intervene against Defendants Acevedo, Gallego, Batriz, Gomez, Villa, Lopez, Pimienta, and Bermudez 22 in Count Three 23 The Nogales Defendants assert that they are entitled to summary judgment as to 24 Plaintiff's failure to intervene claims because there was no underlying constitutional 25 violation, and a failure-to-intervene claim cannot be supported when the alleged violative 26 act took place during a rapidly unfolding situation. 27 In Response, Plaintiff asserts that the four officers who opened fire along Grand 28 Avenue violated a clearly established Fourth Amendment right, and to the extent - 35 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 36 of 43 1 Defendants are claiming they did not have a realistic opportunity to stop their fellow 2 officers, Plaintiff's Count Three is premised on the final volley of gunshots fired on Grand 3 Avenue, and "each officer had a meaningful opportunity" to intervene during the 4 approximately 90 seconds between the initial gunshots in the Walmart parking lot and the 5 later volley. Plaintiff asserts that none of the officers claim that they lacked opportunity to 6 intervene in the gunshots, Defendants Lopez, Pimienta, and others were subjectively aware 7 that their colleagues were opening fire in the Walmart parking lot because Lopez testified 8 that he "heard other officers firing their weapons" within the Walmart parking lot, and 9 Pimienta testified that "[a]s the truck started to move, I heard a gunshot." 10 In Reply, Defendants assert that simply because some of the Defendants heard 11 gunshots in the Walmart parking lot shortly before the shots were fired on Grand Avenue 12 does not establish that these officers had a "meaningful opportunity" to intercede, and the 13 rapidly evolving, chaotic situation makes any claim of failure to intervene inappropriate. 14 As an initial matter, Plaintiff's failure-to-intervene claim fails because the Court has 15 already found that the Defendant officers are entitled to qualified immunity as to the 16 excessive force claim and such immunity would thus necessarily apply to a failure-to17 intervene claim. Additionally, Plaintiff has made no showing that the individual 18 Defendants to this Count had a meaningful opportunity to intervene and does not discuss 19 any evidence showing a meaningful opportunity to intervene. 20 For the foregoing reasons, summary judgment will be granted as to the failure-to21 intervene claims in Count Three. 22 C. Fourteenth Amendment Denial of Familial Association against Defendant Bermudez in Count Four — 23 — Defendant Bermudez asserts that he is entitled to summary judgment on Count Four — 24 — because to prevail on a Fourteenth Amendment right of familial association, Plaintiff must — 25 — prove that the officers' conduct shocks the conscience, but here there is no evidence that — 26 — Defendants were deliberately indifferent or that their actions were unrelated to legitimate — 27 — law enforcement objectives. — 28 — In Response, Plaintiff argues that actual deliberation was practical for Defendant - 36 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 37 of 43 1 Bermudez because he had "no idea" why his law enforcement colleagues were pursuing 2 Cockrum, he knew only that Cockrum had carefully avoided striking two of his colleagues' 3 patrol vehicles, that Cockrum was traveling at approximately 35 to 40 miles per hour along 4 Grand Avenue (sometimes running red lights), and that Cockrum had shown Mr. Bermudez 5 disrespect by "flipping the bird" at him. Plaintiff asserts that Defendant Bermudez's 6 conclusion that "that truck needed to be stopped at all costs" shows that he had time for 7 deliberation, and he fired 13 rounds from the side and acted without any objectively 8 reasonable basis to protect civilians. 9 In Reply, Defendants assert that assuming "actual deliberation" includes thinking 10 on the side of the road about how to stop Cockrum and his 18-wheeler from killing 11 someone, this assumption changes nothing because the facts do not show that the officers 12 acted either with deliberate indifference or a purpose to harm unrelated to legitimate law 13 enforcement objectives. 14 1. Legal Standard 15 "The substantive due process right to family or to familial association is well 16 established," and the state's interference with this liberty interest without due process of 17 law is remediable under § 1983. Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1079 (9th 18 Cir. 2011) (citation omitted). "To amount to a violation of substantive due process, 19 however, the harmful conduct must shock [ ] the conscience' or 'offend the community's 20 sense of fair play and decency.'" Rochin v. California, 342 U.S. 165 , 172–73 (1952). The 21 "shocks-the-conscience" standard is, depending on the circumstances, met either by 22 showing that a defendant (1) acted with "deliberate indifference" or (2) with a "purpose to 23 harm" for reasons unrelated to legitimate law enforcement objectives. Porter v. Osborn, — 24 — 546 F.3d 1132, 1137 (9th Cir. 2008) (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833 , 25 846 (1998)). Under the first situation, if a defendant is in a position "[w]here actual 26 deliberation is practical," then his deliberate indifference to the harm he caused may be 27 sufficient to "shock the conscience." Gantt v. City of Los Angeles, 717 F.3d 702 , 707–08 28 (9th Cir. 2013) (quoting Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)). "On the - 37 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 38 of 43 1 other hand, when an officer makes a snap judgment because of an escalating situation," 2 then the courts apply the "purpose-to-harm" standard. Id. (quoting Wilkinson, 610 F.3d at 3 554). 4 Under Supreme Court precedent, conduct that "shocks the conscience" includes 5 conduct that violates the "decencies of civilized conduct," that is "brutal" or "offensive" or 6 "arbitrary." Cnty. of Sacramento, 523 U.S. at 846–47 (citations omitted). Negligence, 7 however, "is categorically beneath the threshold of constitutional due process." Id. at 849. 8 Whether conduct such as recklessness or gross negligence shocks the conscience "is a 9 matter for closer calls." Id. at 849 (noting that rules of due process are not "subject to 10 mechanical application" and depend on the particular facts in a case). 11 2. Analysis 12 Here, the purpose-to-harm standard applies because the evidence supports that the 13 officers had to make snap judgments in an escalating situation. I.A. v. City of Emeryville, 14 No. 15-cv-04973-DMR, 2017 WL 952894 , at *10 (N.D. Cal. Mar. 13, 2017) ("A court may 15 determine at summary judgment whether the officer had time to deliberate . . . or instead 16 had to make a snap judgment because he found himself in a quickly escalating situation . . 17 . 'so long as the undisputed facts point to one standard or the other.'") (citations omitted). 18 The Ninth Circuit has twice found that in the context of a car chase, where officers were 19 forced to make "repeated split second decisions" about moving vehicles that had the 20 potential to harm not only the defendant officers, but also the surrounding public, actual 21 deliberation was not practicable. See Gonzalez v. City of Anaheim, 747 F.3d 789, 798 (9th 22 Cir. 2014) (even where there was a question of fact as to whether the force was excessive, 23 because the minivan was moving at the time the defendant officer, who was in the minivan, 24 shot the decedent in the head; the decedent did not obey the defendant officer's commands 25 to stop the minivan, actual deliberation was not practicable); Wilkinson, 610 F.3d at 554 - 26 55 (the minivan was accelerating in close proximity to other officers). 27 Moreover, the evidence shows that Defendant Bermudez acted with the purpose of 28 legitimate law enforcement objectives. "Legitimate objectives can include arrest, self- - 38 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 39 of 43 1 protection, and protection of the public," and "[i]llegitimate objectives include 'whether the 2 officer had any ulterior motives for using force against the suspect, such as to bully a 3 suspect or get even, or when an officer uses force against a clearly harmless or subdued 4 suspect. " Ochoa v. City of Mesa, 26 F.4th 1050 , 1056 (9th Cir. 2022) (cleaned up). 5 Here, there is no indication in the record that Bermudez had any improper or ulterior 6 motives when he shot Cockrum, and there is no evidence in the record that Cockrum was 7 "clearly harmless" or "subdued" when Bermudez shot him. 8 Because there are no disputed issues of material fact, summary judgment will be 9 granted in favor of Defendant Bermudez as to Count Four. 10 D. Battery and Wrongful Death (Count Five) 11 Plaintiff's wrongful death claim is based on the intentional tort of battery as asserted 12 against Bermudez, Bunting, Acevedo, Villa, Gallego, Lopez, Batriz, Pimienta, and Gomez. 13 Plaintiff additionally purports to bring a wrongful death claim based on "negligence" 14 against the City of Nogales and Hathaway based on: 15 1) respondeat superior liability as the employers of the individual defendants who committed intentional torts; and — 16 — 2) negligence liability on the basis that the City of Nogales and 17 Hathaway negligently failed to: a. Establish proper communication to ensure that the 18 employees of Santa Cruz County Sheriff's Office and 19 employees of the Nogales Police Department all had access to the relevant information during the approximately two hours 20 leading up to the shooting death; 21 b. Train and supervise their employees on the proper circumstances in which to engage in lengthy law enforcement 22 chases, where the suspect neither poses an immediate threat 23 nor is wanted for a serious crime; c. Train and supervise their employees on the proper use 24 of deadly force, particularly in the context of shooting into 25 moving vehicles. (Doc. 63 at 29-30.) — 26 — .... — 27 — .... — 28 — - 39 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 40 of 43 1 1. Nogales and Hathaway 2 Defendants assert that they are entitled to summary judgment on Plaintiff's wrongful 3 death negligence claim because there is no evidence that they knew of a propensity for the 4 use of excessive force by the officers. "A public entity is not liable for losses that arise out 5 of and are directly attributable to an act or omission determined by a court to be a criminal 6 felony by a public employee unless the public entity knew of the public employee's 7 propensity for that action." Ariz. Rev. Stat. Ann. § 12-820.05 (B). In Response, Plaintiff 8 argues that Defendants cannot simultaneously argue that the officers acted reasonably and 9 argue that their conduct was a felony. Plaintiff additionally argues that it would be 10 improper for the Court to determine whether the conduct at issue was a felony based solely 11 on Plaintiff's allegations. To support the latter proposition, Plaintiff cites a case decided 12 on a motion to dismiss, which declined to decide the issue until the factual record was 13 developed. 14 Here, the factual record is developed, and Plaintiff's claims are based on the 15 allegation that the officers shot Cockrum without cause and the shots struck Cockrum. 16 Accordingly, under Plaintiff's theory, the Defendant officers would at least be guilty of 17 felony aggravated assault.9 Plaintiff does not point to any evidence that the City or 18 Hathaway knew of a propensity for the use of excessive force by any of the individual 19 Defendants. As such, Plaintiff's claims against the City of Nogales and Hathaway are 20 precluded pursuant to Arizona Revised Statutes § 12-820.05(B). 21 2. Bermudez, Bunting, Acevedo, Villa, Gallego, Lopez, Batriz, Pimienta, and Gomez — 22 — 23 To succeed on a battery claim, Arizona law requires a plaintiff to prove "that the 24 defendant intentionally engaged in an act that results in harmful or offensive contact with — 25 — 26 9 Arizona Revised Statutes § 13-1204(A) relevantly provides that a person commits 27 aggravated assault if they cause “serious physical injury to another” or “[i]f the person commits the assault by any means of force that causes temporary but substantial 28 disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part.” Ariz. Rev. Stat. § 13-1204 (A)(1) and (3). - 40 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 41 of 43 1 the person of another." Lewis v. Dirt Sports LLC, 259 F. Supp. 3d 1039, 1044 (D. Ariz. 2 2017) (citations omitted). 3 Defendants argue that they are entitled to summary judgment on Plaintiff's battery 4 claims because Arizona's justification defenses protect their conduct. Under Arizona law, 5 "[n]o person . . . shall be subject to civil liability for engaging in conduct otherwise justified 6 pursuant to the provisions of this chapter." Ariz. Rev. Stat. § 13-413 . Law enforcement 7 officers are justified in using deadly force "when the peace officer reasonably believes that 8 it is necessary . . . [t]o effect an arrest or prevent the escape from custody of a person whom 9 the peace officer reasonably believes . . . [h]as committed . . . a felony involving the use of 10 a deadly weapon." Id. § 13-410(c). Defendants may also rely on presumptions in Arizona 11 Revised Statutes § 12-716, which sets forth presumptions concerning crime victims and 12 law enforcement officers. Ryan v. Napier, 425 P.3d 230, 241 (Ariz. 2018). If a 13 presumption applies, the burden shifts to the plaintiff to produce evidence to rebut the 14 presumption, although the defendant retains the burden of persuasion. Id. The relevant 15 presumption applies if an officer proves by a preponderance of the evidence that the 16 decedent was "fleeing after having committed . . . a felony criminal act" and that the officer 17 used deadly physical force to "[e]ffect an arrest or prevent or assist in preventing a 18 plaintiff's escape." Ariz. Rev. Stat. § 12-716 . 19 Defendants assert that there was probable cause to believe Cockrum had committed: 20 1) Aggravated Assault in violation of A.R.S. § 13-1204(A)(8)(a) on a Sheriff's Deputy by 21 displaying two knives and brass knuckles when the deputy attempted to contact him, and 22 against a Border Patrol agent by driving towards her while avoiding stop sticks when 23 engaging in his U-turn in the median at the Border Patrol Checkpoint; (2) Endangerment 24 in violation of A.R.S. 13-1201(A) against the Border Patrol agent in (1) above, and against 25 Santa Cruz Sheriff's Department Deputy Ainza when he endangered Deputy Ainza with a 26 substantial risk of imminent death or physical injury when Cockrum drove towards Deputy 27 Ainza who was ordering him to stop after witnessing Cockrum almost strike the Border 28 Patrol agent, and Cockrum continued driving towards Deputy Ainza forcing him to move - 41 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 42 of 43 1 out of the way or be struck by Cockrum's vehicle; and (3) Unlawful Flight in violation of 2 A.R.S. § 28-622.01, including attempting to elude marked law enforcement vehicles with 3 emergency lights and sirens activated and speeding 65-70 miles per hour in a marked 4 construction zone with a posted speed limit of 45 miles per hour. 5 In Response, Plaintiff asserts that "Arizona's justification statutes mirror the Fourth 6 Amendment standard for the use of deadly force," and if any of the four officers who fired 7 on Grand Avenue acted unreasonably for Fourth Amendment purposes, "the justification 8 statutes therefore provide no defense" on the state-law battery claim. Plaintiff further 9 argues that the NPD Defendants failed to explain why force of more than 100 bullets "was 10 necessary." 11 Here, Defendants have shown by a preponderance of evidence that Arizona's 12 justification statutes support the shooting as Cockrum had committed felony acts and the 13 officers shot to prevent or assist in preventing Cockrum's escape. Plaintiff does not rebut 14 this presumption. Accordingly, Defendants are entitled to summary judgment on the 15 battery claims in Count Five. 16 IT IS ORDERED: 17 (1) The reference to the Magistrate Judge is withdrawn as to: (1) Defendants 18 Hathaway and Bunting's Rule 36 Motion to Determine Sufficiency of Plaintiff's Answer to 19 Requests for Admission Nos. 2 and 3 (Doc. 64); (2) Defendants Hathaway and Bunting's 20 Motion for Summary Disposition of their Rule 36 Motion to Determine Sufficiency of 21 Plaintiff's Answer to Requests for Admission Nos. 2 and 3 (Doc. 71); (3) Defendants 22 Hathaway and Bunting's Motion for Summary Judgment (Doc. 75); (4) City of Nogales, 23 Roy Bermudez, Nicholas Acevedo, Gerardo Batriz, Guadalupe Villa, Robert Gallego, 24 Jesus Gomez, Mario Lopez, and Jose Pimienta's Motion for Summary Judgment (Doc. 77); 25 and (5) Plaintiff's Motion for Partial Summary Judgment (Doc. 87). 26 (2) Defendants Hathaway and Bunting's Motion for Summary Judgment (Doc. 27 75) is granted. — 28 — - 42 - Case 4:22-cv-00244-RCC Document 107 Filed 02/21/24 Page 43 of 43 1 (3) The City of Nogales, Roy Bermudez, Nicholas Acevedo, Gerardo Batriz, 2 Guadalupe Villa, Robert Gallego, Jesus Gomez, Mario Lopez, and Jose Pimienta's Motion 3 for Summary Judgment (Doc. 77) is granted. 4 (4) Plaintiff's Motion for Partial Summary Judgment (Doc. 87) is denied. 5 (5) Defendants Hathaway and Bunting's Rule 36 Motion to Determine 6 Sufficiency of Plaintiff's Answer to Requests for Admission Nos. 2 and 3 (Doc. 64) and 7 Defendants Hathaway and Bunting's Motion for Summary Disposition of their Rule 36 8 Motion to Determine Sufficiency of Plaintiff's Answer to Requests for Admission Nos. 2 9 and 3 (Doc. 71) are denied as moot. 10 (6) This action is terminated with prejudice. The Clerk of Court must enter 11 judgment accordingly. 12 Dated this 20th day of February, 2024. — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — - 43 -